1. Vinod s/o Chandu, Raju Singiwala s/o Gafoor, Chhotu s/o Goverdhan and Hamid @ Ameen s/o Jahir Ahmed, were nominated as accused in a case arising out of FIR No. 529/2006 (Exhibit-P/20) registered at Police Station Kotwali, District Sawaimadhopur for the offences under Sections 341, 323 and 307/34 IPC. The court of Additional Sessions Judge, Sawaimadhopur, vide impugned judgment dated 23.10.2008 convicted the appellant, Vinod for the offences under Sections 302, 341 and 323/34 IPC. The trial court acquitted the appellants Raju Singiwala and Chhotu for the offence under Section 302/34 IPC, but convicted them for the offence under Section 341 and 323/34 IPC.

2. Having convicted the appellants for the aforesaid offences, the trial court vide a separate order of even date, sentenced them as under:-

Appellant Vinod:

U/s 302 IPC- to undergo life imprisonment and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo ten days additional S.I.

Appellants Vinod, Raju & Chhotu:

U/s 323/34 IPC- to undergo one year S.I. and to pay a fine of Rs. 1,000/-, in default of payment of fine, to further undergo seven days additional S.I.

U/s 341 IPC- to undergo one month S.I. and to pay a fine of Rs. 5,00/-, in default of payment of fine, to further undergo seven days additional S.I.

3. The criminal proceedings in the present case were set into motion on the basis of written report (Exhibit-P/1) lodged by Kanhaiya (P.W.2) before Suresh Kumar (P.W.21), who was then posted as SHO, Police Station Kotwali, Sawaimadhopur. On the basis of written report (Exhibit-P/1), a formal FIR (Exhibit-P/20) was registered.

4. Kanhaiya (P.W.2) in the written report (Exhibit-P/1) stated that on 29.11.2006 at 6:30 PM, he was going from his shop to his house. In the Maliyon Ka Mohalla, Raju Singiwala s/o Gafoor Singiwala caught hold of him and gave him a slap on the face. The witness in order to save himself, came running to his Mohalla and informed his brother Prakash. After sometime, Raju Singiwala, Vinod s/o Chandu, Amid @ Amin s/o Jahir, Chhotu s/o Goverdhan Singiwala came and immediately on coming Vinod gave a knife blow to Prakash in the left side of neck in order to kill him. The blood started oozing out and his brother fell on the ground. Others had given injuries to his brother with kick and fist blows. When the witness along with Shankar and other residents of the colony came forward to save them and apprehend the accused, the accused decamped from the spot. Witness brought Prakash to the hospital from where he was referred to the hospital at Jaipur. Kanhaiya also stated that about one year ago, he advanced Rs. 50/- to Raju Singiwala and today when he asked him to return the amount, he feeling annoyed had given a slap and had caused a knife blow to his brother.

5. A perusal of the written report reveals that the occurrence had taken place in two parts. Raju Singiwala first had caused a slap to Kanhaiya (P.W.2). Thereafter, Kanhaiya ran away from the spot. He was chased and when Prakash had stepped forward, Vinod had caused a solitary blow on the neck of Prakash, as a result thereof, he had died due to excessive bleeding.

6. The prosecution in all had examined 22 witnesses and had proved on record 22 documents from Exhibit-P/1 to Exhibit-P/22. Accused examined three witnesses as defence witnesses and had proved on record the statement of witnesses recorded under Section 161 Cr.P.C. as Exhibit-D/1 to Exhibit-D/6.

7. Dr. R.P. Gupta (P.W.15), on 29.11.2006 at 7:20 PM, had examined Prakash, who was lying admitted in Male Surgical Ward, and as per injury report (Exhibit-P/10), had found the following injury on his person:-

"Incised wound with bleeding, 1 x cm, muscle deep on left side of neck. Oblique transverse placed with swelling and tenderness."

8. Dr. Kamlesh Gupta (P.W.16) stated that on 30.11.2006, at 9:00 AM, he conducted the autopsy on the dead body of Prakash and as per Post Mortem Report (Exhibit-P/11), he found the following injury:-

"Ext. Injury- Incised wound 1" x ", cavity deep on left side of neck. Obliquely, transversely placed just above the clavicle.

On Dissection- There is a big hemetoma below the skin of neck. The wound is going downward and medially with perforating the left carotid artery partially and reaching upto the apex of left pleaura and perforating it. The left pleural cavity was full of clotted and fluid blood which is about 1 litre.

The injury is ante-mortem in anture and dangerous to life in ordinary course of life by sharp weapon."

9. According to this witness, the cause of death was hemorrhagic shock resulting from injury caused over the neck. This witness in cross-examination further stated that in the present case, the death had taken place as carotid artery was cut.

10. Be that as it may, from the perusal of the injury report (Exhibit-P/10) and Post Mortem Report (Exhibit-P/11), it is evident that the deceased Prakash had suffered single injury, as a result of solitary blow caused.

11. Shanker s/o Damodar (P.W.1) in the court stated that Kanhaiya came running and informed that Raju Singiwala had given a slap. Meanwhile, Raju Singiwala, Chhotu, Vinod and Hamid followed and came running. Kanhaiya informed that he had to take Rs. 50/- from Raju Singiwala and thus, on demand he had slapped him. Meanwhile, Prakash brother of Kanhaiya came forward and Vinod gave a knife blow and other accused started giving beating to Prakash. Vinod caused a knife blow on the neck of Prakash (deceased).

12. To similar effect is the statement of Kanhaiya (P.W.2), who was first slapped and had come running to his brother. This witness in the court improved the case of prosecution and stated that Hamid had taken his brother in grip, Raju Singiwala and Chhotu caught hold of his brother and Vinod had given a blow in the neck of Prakash.

13. Shankar Lal s/o Ram Niwas (P.W.7) in the court admitted that on 29.11.2006, at about 6:00/6:30 PM, there was a quarrel between Prakash and the accused in front of the shop of Shambhu. This witness stated that the accused had taken the deceased into grip and Vinod had given a blow on the left side of neck of Prakash. He brought Prakash to the hospital. This witness was declared hostile by the prosecution.

14. Shankar Lal s/o Rampal (P.W.8) also in the court stated that Vinod had caused a knife injury in the neck of the deceased Prakash.

15. We need not notice the statement of remaining witnesses, who had participated in the investigation.

16. Suffice it to say that all the witnesses have stated that the appellant, Vinod had caused the injury on the neck of the deceased Prakash.

17. Mr. Ashindra Gautam, the learned counsel for the appellant unable to impeach the credibility of the eyewitnesses and question their presence has prayed before us that we should convert the offence to Section 304-I IPC. The learned counsel for the appellants, has placed reliance upon Arumugam v. State of Tamil Nadu, (2008) 15 SCC 590 , to contend that the appellant Vinod had not taken undue advantage and had caused only one injury in the occurrence. Therefore, we should convert the offence.

18. Merely because the blow was not repeated, in every case of a single blow, the offence cannot be converted to Section 304-I IPC. Though, no arguments have been raised by the counsel for the appellants relying upon the defence witnesses, we shall briefly notice the testimony of the defence witnesses to satisfy ourselves, whether any gain has been made by the appellant by examining the witnesses in defence or not

19. Kamal Singh (D.W.1) in the court stated that on 29.11.2006, when Babu Kumhar under the influence of liquor was driving the motorcycle at a very high speed. Prakash was sitting as pillion rider. The motorcycle slipped due to which Prakash received an injury in the neck from Patti (metal leaf) of the motorcycle.

20. To similar effect is the statement of Girraj Prasad (D.W.2) and Raj Kumar (D.W.3).

21. We are not convinced with the defence witnesses, near relations of the deceased shall be last person to screen the real offender and implicate the appellant falsely. It is not a case of any previous enmity. Thus, to us, the defence witnesses are not credible.

22. We are unable to agree with the sole argument raised before us. A perusal of the judgment in the case of Arumugam (supra) reveals that it was a case of sudden fight. In the present case, no provocation or fight had taken place. The present appellants chased and followed Kanhaiya, who had come to take shelter from his elder brother Prakash. When Prakash came forward, the appellant Vinod caused single blow on the neck, whereby carotid artery was cut. That single blow proved fatal. It is true that the appellant Vinod had not repeated the blow, but we cannot say that the blow was caused due to some hot words exchanged or on the spur of moment. Rather, it has come in the evidence that the present appellants had chased Kanhaiya, to whom Raju Singiwala had allegedly slapped.

23. Consequently, we do not find any merit in the argument raised before us. We have also examined the testimony of the eyewitnesses, namely Shanker s/o Damodar (P.W.1), Kanhaiya (P.W.2), Shankar Lal s/o Ram Niwas (P.W.7) and Shankar Lal s/o Rampal (P.W.8). Even though, Shankar Lal s/o Ram Niwas (P.W.7), brother of the deceased, Prakash had turned hostile, he had stated in categoric terms that the appellant, Vinod had caused injury on the neck of the deceased Prakash.

24. Consequently, we find no merit in the appeal preferred by the appellant Vinod and the same is dismissed.

25. So far as the conviction of appellants, namely Raju Singiwala and Chhotu is concerned, they have been convicted for the offence under Section 323/34 and and 341 IPC. They have not caused any injury to the deceased Prakash. The trial court has framed charge for the offence under Section 323 IPC against these two appellants for causing injury to the deceased, Prakash, but except one, no other injury has been found on the person of the deceased, Prakash.

26. To us, testimony of the witnesses that both the appellants caused injuries to the deceased Prakash with kick and fist blows is an exaggeration. Furthermore, the appellants have not been convicted with the aid of Section 34 IPC for the offence under Section 302 IPC. They have been simply convicted and sentenced for the offence under Section 323/34 and 341 IPC.

27. Taking totality of the circumstances, that the witnesses are prone to exaggerate the role of other co-accused and no such injury has been found in the medical evidence, we shall extend the benefit of doubt to the appellants, Raju Singiwala and Chhotu and by extending benefit of doubt, hence, we acquit them of both the offences.

28. As a result of above, the present appeal qua Vinod is dismissed and is accepted qua the appellants, namely Raju Singiwala and Chhotu.