Point of Law: As under-For bringing in operation of Exception 4 to Section 300 Indian Penal Code, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

JUDGMENT :

MEHTA, J.

1. The appellants herein have been convicted and sentenced as below vide Judgment dated 24.09.2016.

2. Being aggrieved of their conviction and sentences, the appellants have preferred the instant appeal under Section 374(2) Cr.P.C.

3. Brief facts relevant and essential for disposal of the appeal are noted herein below:

4. The victim Gopal son of Jagannath Kothyari lodged a written report (Ex.P/1) to the SHO, Police Station Bowli on 24.11.2013 alleging inter alia that he was working in his field. In the afternoon at about 3 O’ Clock, the accused Hanuman Singh, Gopal S/o Ramkishore, Kuldeep, Bahadur, Jai Singh, Rasaal and Sampat, with an intention to do mischief, put a water pipe on the passage on which, the complainant requested them that the pipe be removed because the passage would be damaged. Being enraged, the accused persons launched an indiscriminate assault upon the informant by axes, lathis, etc. Hanuman Singh drove his tractor over the informant and then, he inflicted an axe blow on his head. Hanuman Singh’s son Kuldeep also drove the tractor over the victim due to which, he received injuries all over his body including a deep wound on his head. He was saved by Prahlad Singh or else, the assailants would have done him to death.

On the basis of this report, an FIR No.320/2013 (Ex.P/21) came to be registered at the Police Station Bowli, District Sawai Madhopur for the offences punishable under Sections 143, 341, 323 and 336 of the IPC and investigation was commenced. It came to light that in addition to Gopal, his son Bhagwan Singh had also received injuries in this very incident. Both injured persons were medically examined by the Medical Jurist G.P. Goyal (PW-8) posted at the CHC, Bowli. He noticed two minor lacerated wounds on the left arm and right forearm of the injured Bhagwan Singh. On examining Gopal, a cut wound admeasuring 5 cm. X .05 cm deep upto bone was noticed on the left side of the head. A lacerated wound admeasuring 8 cm. X 1 cm. was noticed on the right forearm. In addition thereto, there were two abrasions on the left hand of the injured Gopal. X-ray was recommended for finding out nature of injuries of Gopal. The condition of Gopal deteriorated on which, he was provided treatment at various medical facilities. Ultimately, he succumbed on 29.01.2014 i.e. after 2 months 5 days of the incident. Postmortem upon the dead body of Gopal was conducted by Dr. G.P. Goyal (PW-8) on 29.01.2014 and while issuing the postmortem report (Ex.P/10), the Medical Jurist took note of the fact that the head injury was caused to the injured on 24.11.2013. He was operated upon. On 07.12.2013, follow-up treatment was provided at Jaipur. The head injury was reopened and fresh surgical procedure was undertaken. On 18.01.2014, the head injury was again reopened at the SMS Hospital, Jaipur and treatment was provided to Gopal. The doctor observed that pus was oozing out from the operated wound on skull of the deceased. Bone pieces were present and foul smell was emanating therefrom. The doctor opined that cause of death of Gopal was septicemic shock. The accused appellants were arrested and a charge-sheet was filed against them for the offences punishable under Sections 302, 341, 323/34 of the IPC. As the offence under Section 302 was exclusively triable by court of Sessions, the case was committed to the Sessions Judge, Sawai Madhopur from where, the same was transferred to the court of the Additional Sessions Judge (Special Court), Sawai Madhopur. Following charges were framed against all the accused as below: Section 323