JUDGMENT 1. Pappu Lal son of Shri Shyoji Lal, aged 20 years, his father Shyoji Lal, aged 50 years, two brothers, namely Abhay Singh and Ratan Lal, sons of Shyoji Lal aged 30 years and 26 years, respectively, were tried by the court of Additional Sessions Judge (Fast Track) No.3, Bundi, for the offences punishable under Sections 147, 148, 149, 341, 323 and 302 IPC. 2. The trial court vide impugned judgment dated 28.9.2004, acquitted co-accused of the appellant, namely Ratan Lal brother, and Shyoji father, for all the offence, i.e. for offences under Sections 147, 148, 341, 323 and 302/149 IPC. The trial court also acquitted Abhay Singh for the offences, under Sections 147, 148, 341 and 302/149 IPC. However, Abhay Singh was convicted for the offence under Section 323 IPC and was released on probation under Section 4 of the Probation of Offenders Act. The trial court acquitted the present appellant, Pappu for the offence under Sections 147, 148, 341 and 323 IPC. However, the trial court held the appellant Pappu guilty of offence under Section 302 IPC and sentenced him to undergo life imprisonment and pay a fine of Rs. 1,000/-, in default thereof, to undergo one month's simple imprisonment. 3. In the present case, the statement of injured Abhay Singh, PW-9, son of Sultan, was recorded at Primary Health Center, Dei, District Bundi, by Assistant Sub Inspector, Prem Chand, who was then posted at Police Station Dei, District Bundi. Abhay Singh in his statement stated that on 1.8.2003, at about 6:00 PM, he was present in his house. He heard noise outside his house, as his brother Gopal Singh was being given injuries. The witness, Abhay Singh, PW-9, came running out of the house and saw that Abhay Singh son of Shyoji, Ratan Lal and Pappu sons of Shyoji and Shyoji son of Deepa, were giving injuries to his brother, Gopal with lathis. Abhay Singh, PW-9, along with Manphool and Mangi Lal went to the place of occurrence. They intervened to rescue Gopal. At that time, Abhay Singh son of Shyoji, who was having lathi in his hand, gave an injury on the left shoulder of Abhay Singh son of Sultan, PW-9. He also gave another injury on the right cheek, from which blood started oozing. They intervened to rescue Gopal. At that time, Abhay Singh son of Shyoji, who was having lathi in his hand, gave an injury on the left shoulder of Abhay Singh son of Sultan, PW-9. He also gave another injury on the right cheek, from which blood started oozing. Ratan Lal son of Shyoji, was having wood in his hand, he gave an injury on the back of the head of Gopal, from which blood started oozing. Pappu, was having Gandasi in his hand. Meanwhile, Radha Bai, wife of Abhay Singh son of Sultan, came to save them and suffered Gandasi injury on left side of head at the hands of Pappu Lal, the accused appellant. She became unconscious and fell on the ground. Shyoji, who was having wood in his hand, gave one injury to Manphool, (complainant's Baba). On the left hand and another injury was caused on his head from which blood started oozing. Meera, the wife of Abhay Singh gave one stone injury to Mangi Lal. This injury was caused on ankle and blood started oozing. On raising of noise, Hukmaram, Dhumaram, Dudharam, Hari Singh and Kashi Ram came at the spot and saved the complainant party and his family members, otherwise accused would have caused more injuries. 4. The above said FIR was investigated. The report of investigation under Section 173 Cr.P.C. was submitted and the charge-sheet along with the accused was committed to the court of Sessions and was entrusted for trial to Additional Session Judge (Fast Track) No.3, Bundi, Camp Nainwa. The appellant was charged for the offence under Section 302 IPC. 5. The charge stated that on 1.8.2003, at about 6:00 PM, he caused injury on the head of Radha Bai, with an intention to cause murder and thus, had committed the offence punishable under Section 302/34 IPC. The charges were also framed against the appellant and his father and two brothers for offence under Sections 147, 148, 341 and 323 IPC. 6. Dr. Ishaq Mohd., PW-17, on 1.8.2003 at about 10:55 PM, at Primary Health Center, Dei, had examined Mangi Lal, who was having one lacerated wound having dimension of ¾" x ⅕" x " on the joint of right ankle. On the same day, Dr. Ishaq Mohd. 6. Dr. Ishaq Mohd., PW-17, on 1.8.2003 at about 10:55 PM, at Primary Health Center, Dei, had examined Mangi Lal, who was having one lacerated wound having dimension of ¾" x ⅕" x " on the joint of right ankle. On the same day, Dr. Ishaq Mohd. PW-17, at about 10:50 PM, had examined Gopal, who was having one lacerated wound on the back of his head having dimension of ½" x x ½". On the same day, at about 10:45 PM, the said witness also examined Manphool, who was having one wound on the face having dimension of ¾" x ¼" x ¼". He had also contusion wound present on the right shoulder and another on right arm. On the same day, at about 10:40 PM, he had also examined Abhay Singh and had found two injuries on his person. Injury No.1, was lacerated wound on the right cheek having dimension of ¾" x ¼" x ¼". Injury No.2, was a contusion on left shoulder having dimension 3" x 1". 7. What is required to be noticed by us is that on 1.8.2003, at about 10:30 PM, medico-legal examination of Radha Bai was also conducted and only one injury was found on her person. The injury suffered by Radha Bai noted in medico-legal examination is reproduced as under: " dqpyk gqvk ?kko <+kbZ bZap x 1/4 bZap x 1/2 bZap flj ds lkeus ds Hkkx ij " 8. This injury was advised X-ray. Since Radha Bai was unconscious, she was referred to Bundi. As per inquest Exhibit P-2, the deceased had died on 6.8.2003, at MBS Hospital, Kota. Dr. G.S. Vaishnav, PW-16, stated that on 6.8.2003, at 12:15 PM, he had conducted autopsy on the dead body of deceased Radha Bai. She was having one stitch wound 6 cm long on the head. The wound was having five stitches and was on the front of parietal region. There was another abrasion of ½cm x ¼cm on the lower portion of lip. After opening the skull, doctor had found sub-dural homotoma in tempo-parietal region. Size of sub-dural homotoma was 9.3 cm x 0.6 cm. Duration between death and post mortem was 6 to 12 hours. As per opinion of the Doctor, cause of death was coma due to head injury. 9. Gopal, PW-2, the injured stated that on 1.8.2003, had lost his billy-goat " cdjk ". Size of sub-dural homotoma was 9.3 cm x 0.6 cm. Duration between death and post mortem was 6 to 12 hours. As per opinion of the Doctor, cause of death was coma due to head injury. 9. Gopal, PW-2, the injured stated that on 1.8.2003, had lost his billy-goat " cdjk ". He was searching for the same and when he came to the house of accused Abhay Singh, he found that something was cooking in the pot. Abhay Singh protested as to why he is looking inside the pot, and gave him injury. This witness raised noise. Then accused Pappu, Ratan Lal sons of Shyoji, Meera and Abhay Singh came running. Meanwhile, Abhay Singh son of Sultan, brother of the witness and Radha Bai also came to intervene. At that stage, Pappu had given injury with Gandasi, on the head of Radha Bai. She became unconscious. 10. Mangi Lal, PW-4, the injured stated that on the day of occurrence, he found that Abhay Singh, Shyoji and Meera were cutting " cdjk " (billy-goat) of Gopal. When Gopal protested, the occurrence started. He came to intervene and then Meera caused him an injury with stone. While describing injuries caused to others, this witness stated that Pappu had caused injury to Radha Bai on her head, due to which she became unconscious. 11. Manphool, PW-7 stated that six months ago at about 6:00 PM, fight was going on. Pappu caused an injury on the head of Radha Bai. 12. We need not notice the statement of other witnesses and police personnel, who had participated in the investigation, as counsel for the appellant had only argued on question of offence. 13. The learned trial court held that since in the present case, both the sides were quarreling with each other, and due to injury caused by one accused to the intervener, it cannot be assumed that all the accused constituted unlawful assembly. 13. The learned trial court held that since in the present case, both the sides were quarreling with each other, and due to injury caused by one accused to the intervener, it cannot be assumed that all the accused constituted unlawful assembly. The trial court in Para 17 of the judgment held as under: " tgkWa rd lkekU; mn~ns'; ds vxzlj.k dk iz'u gS] ;g rF; Hkh bl izdj.k esa fl) ugha gksrk gSa] D;ksafd nksuksa gh i{k cdjs dks ysdj yM+s gS eqyfteku i{k us ifjoknh i{k ds xksiky dk cdjk dkVdj [kk;k] bl ij nksuksa i{kksa esa i{kksa esa ,d nwljs dks lcd fl[kkus ds fy, >xM+k gqvk vkSj ;g >xM+k tSlk fd ih0M0 9 vHk; flag iq= lqYrku 'kq: esa dgrk gS fd iIiw] 'kksth] jru] vHk; flag iq= 'kksth us fd;k vkSj mUgksaus xksiky ds lkFk ekjihV djuk 'k: dj fn;k rks vfHk;qDrx.k dk mn~ns'; ek= xksiky dks ekjus dk Fkk vkSj tc vU; yksx xksiky dks cpkus ds fy, ogka vk, rks mudks mifgr dkfjr djus dk jgkA ,slh ifjfLFkfr esa tc nksuks gh i{k vki esa >xM+ jgs gks] vkSj tc mudh dksbZ chp cpko djkus vk, vkSj ,d vfHk;qDr chp cpko djkus okys ds izk.k ?kkrd pksaVs dkfjr dj ns rks vfHk;qDrx.k dks ml vijk/k ds fy, fdlh Hkh izdkj ls nks"k fl) ugha fd;k tk ldrkA bl izdj.k esa Hkh ;g rF; gS fd eqyfteku o ifjoknh i{k esa >xM+k gqvk] ftlesa ifjoknh i{k ds pksVsa vkbZ] brus esa gh jk/kk ckbZ chp cpko djkus vkbZ rks ,d vfHk;qDr us mlds pksV dkfjr dj nh] rks ml vfHk;qDr dh O;fDrxr :i ls ftEesnkjh ekuh tkosxhA u fd lHkh vfHk;qDrx.k blds fy, ftEesnkj gksaxsA vkSj ,slh ifjfLFkfr esa bl izdj.k esa lkekU; mn~ns'; ds vxzlj.k esa Hkh dksbZ d`R; fd;k x;k gks] ;g fl) ugha ekuk tk ldrkA " 14. Having held that over a trivial issue, both the parties were fighting and causing injuries to each other, the trial court in concluding portion of Para 23, held that as per narration of witnesses, Radha Bai came to intervene and Pappu caused her injury. 15. The court further held that it is not stated by the witnesses that Pappu intended to cause injury to any other person and since, Radha Bai came in between and suffered injury on the head. 15. The court further held that it is not stated by the witnesses that Pappu intended to cause injury to any other person and since, Radha Bai came in between and suffered injury on the head. Thus, the court held the appellant intended to cause that injury to deceased and hence was guilty of offence under Section 302 IPC. 16. We have heard the learned counsel for the appellant and Mr. N.S. Dhakad, the learned Public Prosecutor. 17. Counsel for the appellant in support of contention raised before us, has relied upon Babu Lal v. State of Rajasthan (142) RLW 1988(1) 493 where a Division Bench of this Court relying upon judgments of Hardev Singh v. State of Punjab ( AIR 1975 SC 179 ), Jagat Singh v. State of Haryana ( 1977 1 SCC 225 ), Tholan v. State of Tamil Nadu (1984 Cr.L.J. 478 ), Kesar Singh v. State of Rajasthan (1981 Raj. Criminal Cases 20 ), Munshi v. State of Rajasthan (1981 Cr.L.J. Raj. 503 ), Badri Lal v. State of Rajasthan (1981 Cr.L.J.Raj. 474 ) and Chaman Budhwa v. State of M.P. ( AIR 1954 SC 652 ) , held that if intervener suffer an injury, offence will not fall under culpable homicide amounting to murder punishable under Section 302 IPC. Thus, the learned counsel for the appellant contended that in present case, Radha Bai was intervener and since she has received an injury, the offence will fall under the ambit of Section 304 Part II IPC and not under Section 302 IPC. 18. The trial court has drawn a very fine distinction by holding that it is not a case where accused intended to cause injury to anybody else and Radha Bai came in between and suffered injury, rather it was held that to ward off Radha Bai from intervening injury was caused on her head. 19. We need not detain ourselves to examine the fine/subtle distinction drawn by the trial court, as we cannot become oblivious of the fact that occurrence in the present case was a sudden affair. There was no pre mediation on the part of the accused. Occurrence had ensued between Gopal PW-2, and Abhay Singh, the co-accused of the appellant, who has been convicted for the offence under Section 323 IPC. 20. There was no pre mediation on the part of the accused. Occurrence had ensued between Gopal PW-2, and Abhay Singh, the co-accused of the appellant, who has been convicted for the offence under Section 323 IPC. 20. It is case of prosecution that when, family members of the complainant and the family members of the accused were fighting, Radha Bai also came to save her family members. At that stage, the present appellant had given one blow of Gandasi, which landed on the head of Radha Bai. The very fact that the appellant had not repeated the blow and Radha Bai had suffered only one injury in the occurrence, which was sudden affair and had taken place spontaneously without any pre mediation, we are of the view that knowledge can be attributed to the appellant and not the intention to cause murder and hence, the offence will fall within the ambit of Section 304 Part II IPC and not under Section 302 IPC. 21. Consequently, we set aside the conviction of the appellant for the offence punishable under Section 302 IPC and set aside life sentence awarded on that count. Having held the appellant guilty for the offence under Section 304 Part II IPC, we are firmly of the view that the sentence of five years shall be adequate sentence and serve ends of justice. However, we also impose fine of Rs. 20,000/- upon the appellant. The said fine upon deposit shall be disbursed to the legal heirs of the deceased Radha Bai. In default of payment of fine, the appellant shall undergo rigorous imprisonment for one year. 22. Thus, the offence stands converted from Section 302 IPC to 304 Part II IPC and the appellant shall undergo the sentence in the above terms. 23. With the above modification in offence and sentence, the present appeal stands disposed of. *******