JUDGMENT 1. - Challenge in this appeal is the judgment and order dated 30.08.2003 passed by the Additional Sessions Judge (Fast Track) No. 4, Jhalawar, Camp Aklera in Sessions Case No. 79/03, whereby, while acquitting three co-accused persons, namely Gaurilal S/o Bhanwar Lal, Shivlal S/o Gaurilal and Amarlal S/o Bapulal, convicted and sentenced the accused-appellant Beeram S/o Shri Gauri Lal, under Section 302 IPC to imprisonment for life and a fine of Rs. 1,000/-, in default of payment of fine, to further undergo one years rigorous imprisonment. 2. Briefly stated the facts of the case are that on 16.10.2002, a written report (Ex. P3) was lodged by PW3 Beeram S/o Kaniram, by caste-Bheel, R/o Devkho, at Police Station Ghatoli, District Jhalawar, wherein it was alleged that yesterday on 15.10.02, at about 6:30 pm, he along with his maternal uncle Ghasi Lal S/o Lachman Bheel, R/o Devari Chanchal were coming to his village Devkho from Churelia. Near village, Beeram S/o Gaurilal, Shivlal S/o Gaurilal, Amarlal S/o Bapulal and Gaurilal S/o Bhanwarlal Bheel of Devkho were sitting. On seeing us, they ran to beat us. Biram was armed with Gandasi, Gaurilal was having stone and rest of them were having 'Lathies' in their hands. Beeram with an intention to kill, inflicted injury by Gandasi on the head of his maternal uncle Ghasi Lal, resulting in oozing out of blood, as a result of which his maternal uncle fell down on the ground. He ran away from the spot to rescue himself and came at Devari Chanchal, where he narrated the incident to Amarlal S/o Lachman Bheel his maternal uncle and Roshan S/o Puri Lal Bheel, Bapulal S/o Puri Lal Bheel, all residents of Devari Chanchal. Thereafter, he along with all the above three persons came to the spot near his village, where his uncle was lying and took him on a cot to Churelia for treatment, wherefrom they taken him to Aklera by Jeep of Ramswaroop Rathore, where Doctor referred him to Jhalawar. At Jhalawar his uncle succumbed to injuries during treatment. Beeram, Shivlal, Amarlal and Gaurilal, all with common intention, stopped them and then Beeram inflicted injury by Gandasi on the head of his maternal uncle and Shivlal, Amarlal and Gaurilal all the three, caught hold of him and stopped him to intervene. Somehow, he ran away from there to save his life, otherwise, they would have killed him also. Beeram, Shivlal, Amarlal and Gaurilal, all with common intention, stopped them and then Beeram inflicted injury by Gandasi on the head of his maternal uncle and Shivlal, Amarlal and Gaurilal all the three, caught hold of him and stopped him to intervene. Somehow, he ran away from there to save his life, otherwise, they would have killed him also. He has previous enmity with all those four persons. 3. On the basis of above report, the Police registered FIR No. 144/2002 (Ex. P4), under Section 302, 341/ 34 IPC and started investigation. During investigation, the accused persons were arrested and after completion of investigation, a challan was filed against 4 accused persons, namely Beeram, Gaurilal, Shivlal and Amarlal, under Section 341, 323 and 302/ 34 IPC in the Court of Additional Chief Judicial Magistrate, Aklera, who transferred the case for trial to the Court of Additional Sessions Judge, Aklera. 4. The learned trial Court framed charges against the accused persons under Section 302 or 302/ 34 IPC, who denied the charges and claimed trial. In support of its case, the prosecution examined PW1 Poor Singh, PW2 Ramswaroop, PW3 Beeram, PW4 Roshan, PW5 Bapulal, PW6 Lalchand, PW7 Karan Singh, PW8 Jamna Lal, PW9 Dr. Ashrat Ali, PW10 Ratan Singh, PW11 Kailash Chand, PW12 Radhey Shyam Pareek, PW13 Babulal, PW14 Devi Singh, PW15 Kalyan, PW16 Amar Lal and PW17 Onkar Lal and also produced the documentary evidence. Thereafter, the statements of accused persons were recorded under Section 313 Cr.P.C. No evidence in defence was led. 5. Learned trial Court, after hearing and considering the arguments of the parties and also examining the record, acquitted the three co-accused namely Gaurilal S/o Bhanwar Lal, Shivlal S/o Gaurilal and Amarlal S/o Bapulal of the charge under Section 302 or 302/34 IPC by giving them the benefit of doubt, but convicted and sentenced the accused-appellant, as mentioned above. Hence, the appellant has preferred the instant appeal. 6. Submission of the learned Counsel for appellant is that it is case where the learned trial Court has committed an illegality in convicting and sentencing the appellant under Section 302 IPC. Hence, the appellant has preferred the instant appeal. 6. Submission of the learned Counsel for appellant is that it is case where the learned trial Court has committed an illegality in convicting and sentencing the appellant under Section 302 IPC. He submitted that in the present case, there is only one eye-witness, namely PW3 Beeram S/o Kaniram, who lodged the report and according to his statement, it is clear that there was no premeditation of mind to commit the murder of the deceased, there was no previous enmity between the accused and the complainant party. As per his statement, the accused inflicted only one injury by 'Gandasi', which proved to be fatal, but since it was a case of single injury without any premeditation of mind and it was inflicted all of a sudden, therefore, it could not have been a case of culpable homicide amounting to murder, but it was a case of culpable homicide not amounting to murder and was falling in Exception 4 of Section 300 IPC, therefore, at the most the appellant could have been convicted under Section 304 Part-I IPC. In support of his submissions, he referred the statement of PW3 Beeram S/o Kaniram. 7. He further submitted that although PW7 Karan Singh S/o Kanhiram stated himself to be an eye-witness to the incident before the trial Court, but neither he was named as eye-witness in the list of calender, annexed with the challan, filed by the Police, nor he was an eye-witness to the incident. Even, the Investigating Officer was not satisfied, during investigation, that he was an eyewitness. From his statement recorded under Section 161 Cr.P.C., it is clear that he was not an eye-witness. Learned Counsel for the appellant also submitted that the learned trial Court itself has disbelieved his statement as eye-witness and has recorded a finding that he was not an eye-witness to the incident. He also submitted that although information was given by the accused, while in custody, with regard to weapon i.e. 'Gandasi' and the same was also recovered in pursuance of his information, but both the Motbirs/witnesses to the recovery memo, did not support the prosecution case and stated before the trial Court that no 'Gandasi' was recovered, but it was only a 'lathi', which was recovered at the instance and information of the accused-appellant. He, therefore, submitted that recovery of 'Gandasi' is doubtful and should not be believed and has wrongly been believed by the trial Court. 8. Learned Counsel for the appellant also submitted that from the nature of injury inflicted on the person of the deceased i.e. injury No. 1, clearly shows that there was no intention, at all, on the part of the accused to commit murder of deceased Ghasi Lal. He submitted that although there were as many as 4 injuries, mentioned in the post-mortem report Ex. P9, but there is no allegation or statement of any prosecution witness in respect of remaining 3 injuries. From the statement of PW3 Beeram, it is clear that some injuries were inflicted by other co-accused persons by kicks and fists, but other co-accused persons have already been acquitted by the trial Court, therefore, there is no relevancy of other injuries sustained by deceased Ghasi Lal. Since it is a case of single injury, without any premeditation of mind and it was inflicted all of a sudden, therefore, the case of appellant does not travel beyond the scope of Section 304 Part-I IPC and he is entitled to get the benefit of Exception 4 of Section 300 IPC. He also submitted that the appellant was arrested on 28.10.2002 and since then, he is in judicial custody, therefore, he has already remained in jail for more than 10 years, therefore, ends of justice will meet, in case he is awarded the sentence of imprisonment, already undergone by him. 9. Learned Public Prosecutor supported the impugned judgment passed by the trial Court and submitted that there is no merit in any of the submissions of the learned Counsel for appellant and the appeal is liable to be dismissed. She submitted that although there is only one eye-witness to the incident i.e. PW3 Beeram and according to his statement, the appellant inflicted only one injury by 'Gandasi', but from the post-mortem report, it is clear that the deceased sustained 4 injuries. She, therefore, submitted that other injuries must have been inflicted by the appellant himself, therefore, it is a case of inflicting of number of injuries. She also submitted that it is not a case of sudden fight, therefore, the appellant is not entitled to get the benefit of Exception 4 of Section 300 IPC. She, therefore, submitted that the appeal of appellant may be dismissed. 10. She also submitted that it is not a case of sudden fight, therefore, the appellant is not entitled to get the benefit of Exception 4 of Section 300 IPC. She, therefore, submitted that the appeal of appellant may be dismissed. 10. We have considered the submissions of the learned Counsel for the parties and examined the impugned judgment passed by the trial Court and other record of the case. 11. From the submissions of the learned Counsel for the parties and the judgment of the learned trial Court, it is clear that there is no other eye-witness in the present case, except PW3 Beeram S/o Kaniram. The conviction of the appellant is entirely based on the statement of PW3. Although, PW7 Karan Singh S/o Kanhiram stated himself to be an eye-witness to the incident in the trial Court, but the learned trial Court itself has recorded a finding that he is not an eyewitness, by assigning reason that during investigation of the case, he did not state to the Police that he is an eye-witness and his name was not shown as an eye-witness in the list of calender, annexed with the challan filed in the Court against the accused-appellant, therefore, the conviction of appellant is based on the statement of PW3 Beeram S/o Kaniram along with other prosecution witnesses, including the Investigating Officer, who recorded the statement of accused under Section 27 of the Indian Evidence Act, while the accused was in custody and recovery of weapon was made, in pursuance of the information furnished by the accused. The documentary evidence i.e. information given by the accused and recovery memo prepared by the Investigating officer, are also available on the record. 12. Since, it is a case of single eyewitness in support of the prosecution case, therefore, we have examined the statement of PW3 Beeram S/o Kaniram, minutely. It is a settled law that conviction can be based on a single testimony, if it is worth reliable. It is also settled law that in a case of single testimony, if there is no corroborative evidence on record, then the statement of single witness has to be read and examined minutely. 13. It is a settled law that conviction can be based on a single testimony, if it is worth reliable. It is also settled law that in a case of single testimony, if there is no corroborative evidence on record, then the statement of single witness has to be read and examined minutely. 13. With this background, we have examined the statement of PW3 Beeram S/o Kaniram, who stated that on the day of Dushera, his maternal uncle Ghasi Lal and he, both were coming from Churelia to Devkho, they had started at about 05.00 p.m. from Churelia, when they were on the way to their Village Devkho, four persons, namely Amarlal, Beeram, Shivlal and Gaurilal came, Beeram inflicted a 'Gandasi' blow on the head of Ghasi Lal, Amarlal and Shivlal inflicted injuries on the person of deceased by kicks and fists, Ghasi Lal fell down and thereafter, Gaurilal came and pulled off 'Dhoti' of Ghasi Lal and tied him with his 'Dhoti'. Thereafter, they ran to beat him, but he ran away. 14. From the above statement, it appears that there were four accused persons. One accused person Beeram i.e. the present appellant, was having a weapon i.e. 'Gandasi'. It is relevant to mention that on the date of incident, it was Dashera and as per the submission of the learned Counsel for appellant, 'lathi' and 'Gandasi', are usually kept by the villagers on such occasion. PW3 Beeram has not disclosed any premeditation of mind of accused persons, rather in his cross-examination, PW3 Beeram has specifically admitted that there was no previous enmity between parties. 15. It is relevant to mention that the learned trial Court, while considering the case of three co-accused persons, has recorded a finding that there was no premeditation of mind of these three co-accused persons and there was no common intention of these three accused persons with accused Beeram to kill Ghasi Lal, they were simply present, therefore, while giving them the benefit of doubt, they were acquitted. The said finding of the trial Court has attained finality. Learned Public Prosecutor has admitted that no leave to appeal has been preferred by the State, against the acquittal of these three accused persons. 16. The said finding of the trial Court has attained finality. Learned Public Prosecutor has admitted that no leave to appeal has been preferred by the State, against the acquittal of these three accused persons. 16. So far as other evidence is concerned, the statements of other prosecution witnesses are only formal and are not material or relevant, except the statement of PW12 Radhey Shyam Pareek, who was the S.H.O., Police Station Ghatoli, District Jhalawar at the relevant point of time. He has stated that he arrested all the four accused persons including present appellant Beeram, Accused Beeram gave an information, while in custody, about 'Gandasi', vide information memo Ex. P18, in pursuance whereof, a 'Gandasi' was recovered, vide recovery memo Ex. P19. 17. PW9 Dr. Ashrat Ali, the then Medical Jurist, Jhalawar Hospital, who conducted the post-mortem of deceased Ghasi Lal, has proved post-mortem report Ex. P9. As per post-mortem report, there were four injuries on the person of the deceased. Injury No. 1 was incised wound on frontal parietal and temporal bone right side and cut of brain; Injury No. 2 was incised wound to zygomatic bone right side of face; Injury No. 3 was haematoma left side of skull and Injury No. 4 was multiple abrasion on left leg. As per opinion of PW9 Dr. Ashrat Ali, the cause of death is coma, due to severe haemorrhage and head injury. Injury No. 4 is only abrasion on left leg and injury No. 3 is haematoma. 18. As per statement of eye-witness PW3 Beeram S/o Kaniram, accused Beeram inflicted one injury by 'Gandasi' and the said statement is corroborated by Ex. P9, the postmortem report, as the deceased sustained injury No. 1-incised wound on frontal parietal and temporal bone right side. As per Ex. P18 and Ex. P19 and as per the statement of PW12 Radhey Shyam Pareek, it is also proved that 'Gandasi' was recovered at the instance of accused-appellant, therefore, from the prosecution evidence, it is proved that injury No. 1 was fatal and the same was inflicted by the accused-appellant. Although, there is no other statement of any prosecution witness to corroborate the statement of PW3 Beeram S/o Kaniram, but after close scrutiny of his statement, we are satisfied that his statement is worth reliable and can be relied upon. 19. Although, there is no other statement of any prosecution witness to corroborate the statement of PW3 Beeram S/o Kaniram, but after close scrutiny of his statement, we are satisfied that his statement is worth reliable and can be relied upon. 19. The question arises, for consideration is as to whether appellant is guilty of culpable homicide amounting to murder, punishable under Section 302 IPC or he is guilty of culpable homicide not amounting to murder and is entitled to get the benefit of Exception 4 of Section 300 IPC. 20. So far as premeditation of mind and common intention of accused persons is concerned, the learned trial Court has recorded a finding that the same are not established from the prosecution evidence and gave benefit of doubt to three co-accused persons, while acquitting them, therefore, from the statement of PW3 and the finding of the trial Court, we are satisfied that it is a case where there is no evidence available on record to state that there was any premeditation of mind of accused-appellant to commit murder of Ghasi Lal. As per statement of PW3 Beeram, it is clear that there was no previous enmity between the accused and the deceased. From his statement, it is also clear that appellant inflicted only one injury by 'Gandasi' on the person of the deceased and there is no allegation that the accused repeatedly inflicted any more injury on the person of the deceased. 21. In this background, we have to examine the matter of present accused-appellant. 22. In Salim Sahab v. State of M.P., reported in (2007) 1 SCC 699 , the Hon'ble Apex Court considered the case where facts of the case were that, "while grappling with deceased Salim, the accused took out a pair of scissors, with which he assaulted the deceased in his abdomen and chest with the result that the deceased fell down unconscious, and there was profuse bleeding from his wounds". The Hon'ble Apex Court considered its earlier various judgments and also the fourth exception of section 300 and held "that during a quarrel between the deceased and the accused, they were grappling and during that quarrel, the accused attacked the deceased with a pair of scissors. It was not a very big sized weapon though it was certainly having a sharp-edged point" and altered the conviction of appellant from Section 302 to Section 304 Part-II IPC. It was not a very big sized weapon though it was certainly having a sharp-edged point" and altered the conviction of appellant from Section 302 to Section 304 Part-II IPC. Paras 17 & 18 of the judgment are reproduced as under:- 17. The factual scenario shows that during a quarrel between the deceased and the accused, they were grappling and during that quarrel, the accused attacked the deceased with a pair of scissors. It was not a very big-sized weapon though it was certainly having a sharp-edged point. 18. In view of the factual position as noted above the applicable provision would be Section 304 Part II IPC and not Section 302 IPC. The conviction is accordingly altered. Custodial sentence of seven years' rigorous imprisonment would suffice. 23. In Vadla Chandraiah v. State of A.P., reported in (2006) 13 SCC 587 , where 'appellant (carpenter) and his son intervened. The quarrel continued for 10-15 minute. Allegedly, the appellant hacked the deceased with a badze (a heavy sharp axe like instrument used in the carpentry work) causing instantaneous death of the deceased'. There were four injuries on the person of deceased by sharp edged weapon. The Apex Court considered the question 'whether in the absence of any motive and the fight, which took place was a sudden one, a case under Section 304 Pat-II IPC was made out against the appellant or not'. Hon'ble Apex Court considered its earlier various judgments and also the fourth exception of Section 300 IPC and came to a conclusion that conviction of appellant may be altered from Section 302 to one under Section 304 Part-II IPC. 24. In State of U.P. v. Indrajeet alias Sukhatha, reported in 2000 Cr.L.J. 4663 (SC) , the Hon'ble Apex Court observed that in absence of intention to cause death coupled with the lack of knowledge that death would be inevitably caused on account of the injury would make the offence fall only under Section 304, Part II, IPC, and not under Section 302, IPC. Hon'ble Apex court observed as under:- There is no clinching circumstance or evidence to reasonably establish the culpability of the accused for a charge of murder. Hon'ble Apex court observed as under:- There is no clinching circumstance or evidence to reasonably establish the culpability of the accused for a charge of murder. Absence of intention to cause the death coupled with the lack of knowledge that death would be inevitably caused on account of the injury would make the offence fall only under Section 304, Part II, IPC, and not under Section 302, IPC. Consequently, in the absence of any motive or intention to kill and having regard to the type of weapon used and the number as well as the nature of injuries found inflicted, the case on hand could not appropriately be said to be one warranting the application of Section 302, IPC. 25. In Surinder Kumar v. Union Territory, Chandigarh, reported in AIR 1989 SC 1094 , the Hon'ble Apex Court considered the facts that the possession of the kitchen was not delivered to PW 4 till January 3, 1975 and that led to the quarrel in which PW 2 received a knife injury on the neck and his brother Nitya Nand lost his life. There were 3 injuries by knife. The trial court and the High Court both convicted the accused under Section 302 IPC. By taking an over all view of the incident, the Apex Court observed that accused is entitled to the benefit of the exception fourth of Section 300 IPC and convicted the accused under Section 304 Part I IPC. Hon'ble Apex Court observed as under:- Taking an overall view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under S. 304, Part I, I.P.C. 26. Under these circumstances, we think it proper to convict the accused under S. 304, Part I, I.P.C. 26. The Division Bench of this Court in Vinod Kumar v. The State of Rajasthan, reported in 2011 (1) WLC (Raj.) 182 , considered the above referred judgments of the Hon'ble Apex Court and in the facts and circumstances of that particular case and by considering the facts that there was no previous enmity, there was sudden quarrel and there was no motive to kill, altered the conviction of the accused from offence under Section 302 to that one under Section 304 Part-I IPC. Para 30 of the judgment as reproduced as under:- "Looking to the evidence of the present case, we find that before the date of incident, there was no enmity in between the deceased, there was no motive on the part of the accused to kill the deceased, the incident took place all of a sudden in the Noon at about 12 O' Clock of 14th March, 2002, a chair was put by accused Vinod for cutting hairs of his customers near to the chair of deceased. From the statements of all the four eye-witnesses, it is clear that quarrel took place all of a sudden, therefore, it is case of sudden fight and there was no premeditation. Deceased and accused were abusing each other, accused took his scissors, which is always available at the shop of barbers and inflicted injuries on the person of deceased. Although there were four injuries on the person of deceased, but merely because of four injuries, it cannot be said that accused acted in a cruel and unusual manner, as held by Hon'ble Apex Court in Surinder Kumar's case (supra). Therefore, exception 4 to Section 300 IPC is fully attracted in the facts & circumstances of the present case." 27. Now, we will consider, whether exception 4 of Section 300 IPC is attracted in the present case or not. Exception 4 to Section 300 IPC reads as under:- "Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault." 28. Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault." 28. To invoke Exception fourth of Section 300 IPC, four requirements must be satisfied namely; (i) it was a sudden fight; (ii) there was no premeditation of mind; (iii) the act was done in a heat of passion; and (iv) the assailants had not taken any undue advantage or acted in a cruel manner. 29. The Hon'ble Apex court in Surinder Kumar (supra) observed that the number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. 30. So far as the present case is concerned, it is clear that the conviction of appellant is entirely based on the statement of PW3 Beeram S/o Kaniram and from his testimony as well as the finding of the learned trial Court, while acquitting three co-accused persons, it is clear that there was no premeditation of mind of appellant to kill the deceased; there was no enmity between the accused and the deceased; there was no motive on the part of the accused-appellant to kill the deceased; the incident took place all of a sudden, therefore, in our view, Exception 4 of Section 300 IPC is fully attracted, in the facts and circumstances of the present case and the appellant is entitled to get the benefit of Exception 4 of Section 300 IPC and his conviction is liable to be altered from Section 302 IPC to one under Section 304 Part-I IPC. 31. Consequently, we partly allow the appeal. The conviction of accused-appellant under Section 302 IPC is altered to one under Section 304 Part-I IPC. 31. Consequently, we partly allow the appeal. The conviction of accused-appellant under Section 302 IPC is altered to one under Section 304 Part-I IPC. He is in jail since 28.10.2002, thus, he has already undergone more than 10 years and 2 months of imprisonment, therefore, in our view, ends of justice will meet, in case the sentence of 10 years and 2 months imprisonment, already undergone by the appellant in custody, is awarded to him as punishment for the offence under Section 304 Part-I IPC. Accused-appellant Beeram S/o Shri Gauri Lal is in jail, therefore, he shall be released forthwith, if his custody is not required in any other case. The impugned judgment and order of the learned trial Court is modified to the above extent.Appeal partly allowed. *******