(1.) APPELLANTS have preferred this appeal against the judgment dated 18 -12 -1991 of the learned Second Additional Sessions Judge, Balaghat, in Sessions Trial No. 61 of 1991, by which each of the appellants has been convicted of offence under section 304, Part I, of the Indian Penal Code and sentenced to R.I. for seven years.
(2.) THE appellants were tried for offences under sections 302 and 323 read with section 34 of the Indian Penal Code. The prosecution story, in brief, was that there was enmity between the appellants and the complainant. It was alleged that on 30 -1 -1991, there was a quarrel between appellants and Parvatbai in respect of the character of Kasturibai and in the evening at about 8.00 P.M., while the deceased Shivcharan and his wife were in their house, accused Parasram and Maniram came to their house and started criticising them, with the result, the deceased Shivcharan came out and asked them to behave properly. It is alleged that the appellant Maniram then gave a blow with lathi on his head and Shivcharan fell down. Appellants Sewakram and Gyaniram also joined him and assaulted Shivcharan with lathis. Santoribai (complainant) and her daughter Saganbai intervened to save Shivcharan but they were also beaten. Shivcharan became unconscious and was taken to the police station Katangi where report Ex. P -1 was lodged by Santoribai (P.W.1). The injured were forwarded to the Primary Health Centre, Katangi, where Dr. R.S. Sisodia examined the injuries of Shivcharan and in view of the nature of the injuries, referred him to the District Hospital, Balaghat. Shivcharan, however, succumbed to his injuries on 1 -2 -1991 while under treatment in the hospital. Intimation of the death of Shivcharan was sent to the police station, on the basis whereof a case of - death was registered vide Marg Ex. P -13 and after holding inquest, requisition for postmortem of the body was sent. Dr. R.P. Pandey (P.W.6) performed autopsy and gave report Ex. P -5. As per the opinion of the doctor, death was due to coma resulting from the extensive head injury which was ante -mortem and was sufficient to cause death. After completion of investigation, the accused were prosecuted.
(3.) THE learned Additional Sessions Judge, although observed that the deceased Shivcharan had come out with a sharp weapon and caused injuries to Parasram while his wife Santoribai and Parvatbai, wife of accused Sewakram, were quarrelling and because -accused Parasram and Maniram were also abusing, he had assaulted accused Parasram, negatived the right of private defence on the ground that after the blow was given by Shivcharan, the apprehension ceased as there were no circumstances to suggest that Shivcharan had attempted or intended to cause any further injury to any of the accused. The learned Additional Sessions Judge, however, observed that since it was clear that the deceased Shivcharan had assaulted accused Parasram with sharp weapon in a trivial incident of quarrel between his wife and the wife of the accused Sewakram and the incident had suddenly developed without any premeditation, in a sudden fight in which the accused had not taken any undue advantage or acted in cruel or unusual manner, the act of the accused fell within exception 4 to section 300 of the Indian Penal Code and they were, thus, guilty of offence under section 304, Part I, Indian Penal Code and not of an offence of murder punishable under section 302 thereof. The learned trial Court, therefore, convicted each of the accused under section 304, Part I, Indian Penal Code and passed the sentence as stated above.