ORDER Mathur, J.
1. This appeal against the judgment dated 8.7.1994 passed by the Additional Sessions Judge No.2, Hanumangarh convicting the appellant for offence under Sec. 302, I.P.C. and sentenced to imprisonment for life was heard by the Division Bench consisting of Hon'ble Justice V.G. Palshikar and Hon'ble Justice R.R. Yadav. As both the Hon'ble Judges differed in their opinion, in accordance with the provisions of Rule 61A of the Rules of the High Court of Judicature for Rajasthan, 1952 as per the directions of Hon'ble the Chief Justice, this appeal has been placed before me.
(2). The prosecution case as disclosed during the trial is as follows.
The appellant Satya Narain @ Satpal was an exorcist and fortune teller in village Pukkabhadwa, District Hanumangarh. People used to visit him either for fortune telling or for exorcism. On 8.10.90 at the time of sunset deceased Balram and P.W. 6 Moduram went to the house of the appellant to know about their future and about the evil soul troubling the wife of Balram. It is alleged that accused Satya Narain and his wife Mst. Guddi asked them to bring a bottle of liquor for the sake of offering it to Karnimata as a part of ritual for Akha Dikhana i.e. for future telling. Accordingly, the deceased Balram went out to bring a bottle of liquor as offering to the deity. The deceased brought two bottles of liquor. The liquor was offered to the photo of Karnimata kept in the temple. Thereafter the appellant asked all of them present there to drink liquor as prasad. Accordingly, the liquor was consumed by all present in the house except co-accused Mst. Guddi, wife of the appellant. After consuming liquor as prasad of Karnimata the appellant and two other co-accused persons, namely, Mst. Guddi and Kalu, tied hands and feet of P.W. 6 Moduram and Balram by ropes. The accused persons assaulted deceased Balram and P.W.6 Moduram. The appellant was armed with an iron rod whereas co-accused Kaluram was armed with lathi and Smt. Guddi with wooden pitta used for washing cloths. It is also alleged that the appellant struck iron rod on the head of the deceased Balram and also twisted his neck due to which he died. While Balram was being beaten he fried to scream but he was prevented to do so by pressing his neck. P.W. 6 Moduram raised voice to attract the people of the vicinity to interfere on which the accused persons forcibly pushed cotton in his mouth. P.W.9 Mst. Savitri Devi and P.W.7 Om Prakash, both wife and son respectively of P.W. 6 Moduram came to know about the beating from P.W. 4 Bhanwara Ram. They rushed to the house of the appellant to save him. When P.W. 7 Om Prakash and P.W.9 Mst. Savitri Devi reached the house of the accused appellant they found the room closed where the healing was being administered by the accused persons to deceased Balram and P.W. 6 Moduram. The door was opened by Om Prakash and Smt. Savitri Devi. They found deceased Balram and Moduram lied with ropes. They made a request to the appellant and two other co-accused persons to stop beating and to release them, but they refused to concede their request. On the contrary both the witnesses were threatened that they will be killed if they do not leave the place. Both of them left the place but soon returned with P.W. 10 Ramjas. All the accused persons again refused to stop beating and release P.W. 6 Moduram and deceased Balram. It is stated that the accused persons carried P.W. 6 Moduram to his house and dumped him there. Moduram gave information of the incident to P.W. 1 Kishan Lal, the Sarpanch of the village. The Sarpanch went to the house of accused Kaluram and inquired about Balram. They were told that the appellant had dropped the dead body of Balram in the field of Surjeet Singh. The body of deceased Balram was recovered from the field of Surjeet Singh. On 9.10.90 P.W. 5 Bishna Ram and P.W. 3 Triloka Ram went to P.W. 14 Bhagiram, the brother of the deceased Balram and narrated the incident. On 10.10.90 at about 12.15 P.M. P.W. 14 Bhagiram submitted a written report Ex. P/20 at Police Station, Hanuman-garh Junction. On the basis of the said report FIR Ex.P/21 was registered for offence under Sections 302, 307 read with 34, I.P.C. The police prepared the inquest and sent the dead body of Balram for post-mortem. Moduram was also medically examined. P.W. 11 Dr. Rajendra Kumar Gupta conducted the post- mortem of the dead body of Balram and prepared the post-mortem report Ex.P/18. He found the following injuries on his person:
1. Right temporal bone fractured.
2. Spinal cord and cervical region lacerated.
3. 4th & 5th cervical vertebra dislocated.
4. Extraden haematoma right parietal region and region 2" x 5"
The post mortem report shows that the face of the deceased was swollen, salvia secreted by saliary glands mixed with blood was oozing from his nose, testicles were found to be swollen, 4th and 5th cervical vertebral bones were found to be fractured and spinal cord was lacerated. On opening the skull the doctor found that the right parietal temporal bone was fractured. The injuries were found to be ante mortem. The doctor opined that each injury separately and in cumulative effect was sufficient in the ordinary course of nature to cause death.
P.W. 11 Dr. Rajendra Kumar also examined the injuries on the person of P.W. 6 Moduram and prepared the injury report Ex. P/19 showing the following injuries:
1. Bruise and Abrasion 1 1/2" x 1/2" left cheek
2. M. Bruise and swelling left upper arm.
3. M. Bruise on the back of the chest. Both sides of abdomen.
4. Swelling and bruise on the left scrotem.
5. Swelling and bruise on right fore arm upper 3/4th portion.
6. Abrasion 3 1/2" x 1/4" on the right hand.
7. Abrasion 3" x 1/8" right forearm posterior upper half.
8. Abrasion 3/4" x 1/8' right hand posterior.
9. Abrasion 2" x 3/8" right arm lateral upper 1/2.
10. Swelling 1" x 1" occipital region.
11. Swelling and slight laceration 1" x 1"on the right parietal region.
12. Bruise 6" x 4" life Iliac region.
13. Bruise 6" x 6" Left thigh lateral posterior upper half.
14. Abrasion 3" x 1/8" left thigh posterior.
15. Swelling and bruise on left leg middle 1/3 part.
16. Abrasion 1" x 3/8" right leg ant. upper 1/3.
17. Abrasion 3/4" x 3/8" right leg post. middle
18. Bruise and swelling right genital region & right thigh upper 1/4th.
19. Bruise and laceration on lower lip.
The appellant Satya Narain was arrested on 25.10.90 vide Ex.P/22. In pursuance of his information the iron rod was recovered vide Ex.P/7. In pursuance of the information given by accused Satya Narain the blood stained rope and a writ watch were also recovered. The incriminating articles were sent for chemical analysis. After usual investigation the police laid charge-sheet against the appellant Satya Narain and two other accused persons, namely Kaluram and Mst. Guddi for offence under Sec. 302, 307/34 and 201, I.P.C.
(3). All the three accused persons denied the charges levelled against them and claimed trial. The prosecution in support of its case examined 15 witnesses. The accused appellant in his statement under Sec. 313, Cr.P.C. denied the correctness of the prosecution evidence appearing against him. He also stated that there is an open Kotha in his house without panels. He also stated that the deceased Balram had entered into an agreement to sell his land with one Chena Ram but it was objected by his brothers Bhagirath and Shera Ram and that led to a quarrel between them. A Panchayat had assembled in which Devilal, the father of the accused Kaluram. Surjararn also assembled. The compromise entered in the Panchayat was not accepted by the brothers of the deceased and, therefore, they gave him warning saying that they will settle the score with them. Thus in fact it was Bhagi Ram and Shera Ram who committed the murder of Balram and he has been falsely implicated. He also stated that his wife Mst. Guddi had gone to her parents house for delivery for about 1 1/2 months' back. The accused persons in support of their defence examined six witnesses. Analysing the evidence, the trial court found the prosecution case proved. The trial court held that the injuries inflicted by the accused appellant on the deceased Balram were so severe that there could be no other conclusion but that the appellant intended to commit the murder of Balram. In view of the finding the learned Judge convicted the appellant Satya Narain for offence under Section 302, I.P.C. and sentenced him to imprisonment for life.
(4). On reapprecication of evidence both the Hon'ble Judges constituting the Division Bench unanimously found the involvement of the appellant Satya Narain in the killing of deceased Balram. However the difference of opinion occurred with respect to the nature of offence. Mr. V.G. Palshikar, J. keeping in view the fact that the appellant was an exorcist to whom villagers used to regularly visit so as P.W.6 Moduram and deceased Balram also visited him for redressal of their problem, they brought and consumed liquor as prasad of the deity and volunteered for recourse of lynching as a part of the black magic or exorcism concluded that no inference can be drawn against the appellant that he in assaulting Balram intended to cause death or cause such bodily injury sufficient in the ordinary course of nature to cause death. Palshikar, J. also found that while as per the medical evidence the cause of death was breaking of neck the appellant could not be held responsible for neck breaking on the basis of solitary and unconnected testimony of P.W.6 Moduram. In the opinion of Palshikar, J the case was covered by exception (5) to Sec. 300. IPC as deceased Balram was above the age of 18 years, himself had given his consent to suffer death or atleast had taken the risk of his death by going to the house of the appellant-for obtaining the benefit of prediction of his future life events after undergoing the rituals of Akhs Dikhana i.e. foretelling. The victim volunterely consented to be assaulted and had acted which resulted in his death. Accordingly, Palshikar, J. concluded that the appellant acted rashly, illegally and committed the offence of culpable homicide not amounting to murder punishable u/S. 304, IPC.
(5). On the other hand, Mr. R.R. Yadav, J. on re-appreciation of evidence on record found statement of injured eye witness P.W.6 Moduram reliable being corroborated in all material particulars from the statement of P.W. 7 Om Prakash, P.W. 9 Mst. Savitri Devi and P.W. 10 Ramjas, further corroborated by post mortem report Ex. P/18, injury report Ex.P/19 and the statement of P.W.11 Dr. Rajendra Kumar Gupta, Yadav, J. on elaborate discussion of the evidence upheld finding of the learned trial court that appellant caused injuries on the vital part of the body of the deceased i.e. hands, neck etc., with such brutal force that each injury separately and both the injuries in their cumulative effect were sufficient in the ordinary course of nature to cause death. Accordingly, in the opinion of Yadav, J. the case falls under clause (3) of Sec. 300, IPC and as such held the appellant guilty of murder. Dealing with the exception (5) to Sec. 300 in the opinion of Yadav, J. in view of Section 105, Evidence Act the burden of proving the existence of circumstances bringing the case within exception (5) was on the appellant. But no such plea has been taken neither in the statement u/S. 313, Cr.P.C. nor any suggestion has been given by the defence to the prosecution witnesses pointing towards the circumstances to fall case under exception (5) to Section 300. Dealing with the possible circumstance, Yadav J. was of the opinion that barbarous unlawful act of tying hands and feet of the deceased Balram with rope, giving blow on the head by iron rod, twisting the neck cannot be said to be part of ritual of Akha Dikhna. Thus is the opinion of Yadav J. the trial court rightly held appellant guilty of murder of Balram.
(6). I have heard Mr. Kulwant Singh, learned counsel for the appellant and Shri Rajendra Vyas, Additional Advocate General for the State. It is contended by Mr. Kulwant Singh that in the facts of the case it is not possible to say that the appellant intended to cause death of Balram. It is submitted that he can at the most be clothed with the knowledge that the injuries which were being caused to deceased Balram were likely to cause death and as such it was an offence of culpable homicide not amounting to murder punishable u/S. 304 Part I, I.P.C. Thus the learned counsel has supported the view of Palshikar, J. On a court querry he submitted that he is not advancing argument if the act of the appellant falls under exception (5) to Sec. 300, IPC. According to Mr. Kulwant Singh the case of the appellant is squarely covered by the decision of the Apex Court in State of Madhya Pradesh vs. Shyam Sunder Trivedi (1) where in the identical circumstances the court found it to be a case falling u/S. 304 Part II IPC. On the other hand. Mr. Rajendra Vyas. learned Additional Advocate General has supported the judgment of the trial court and the view taken by R.R. Yadav, j. it is submitted that the act of the appellant falls under clause (3) of Sec. 300 IPC and as such the appellant Satya Narain is guilty of murder of Balram. he has placed reliance on Jai Prakash vs. State (2), Riyasat vs. State of U.P. (3), Bakhtawar vs. State of Haryana (4), Vishnu Daga pagar vs. State of Maharashtra (5), State of Haryana vs. Pala (6) and Bhakua Kampa vs. State of Orissa (7).
(7). In the scheme of Penal Code culpable homicide is genus and murder is species. All murders are culpable homicide but all culpable homicides are not murder. Sec. 299, I.P.C. defines what is culpable homicide. To fall under the definition of culpable homicide u/S. 299, the act of the accused should cause death and it must be.
(a) with intention of causing death, or
(b) with intention of causing such bodily injury as or is likely to cause death, or
(c) with the knowledge that the act is likely to cause death.
Under Sec. 300, IPC except in the cases falling under exception (1) to exception (5) culpable homicide is murder if the act by which the death is caused is shown.
Firstly, With the intention of causing death, Secondly, if it is done with intention of causing such bodily injury as the offender know to be likely to cause death.
Thirdly, if it is done with the intention of causing bodily injury and such injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
Fourthly, the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.
(8). Thus to prove the charge of murder, the prosecution is required to establish if the case falls in any of the four clauses. Once it is established, it is further required to be seen if the case falls in any of the exceptions to Sec. 300. When a case falls under any of the exceptions the offence may amount to culpable homicide yet may not amount to murder. Such may be cases of culpable homicide not amounting to murder. For the purpose of fixing punishment, the court recognises three decrees of culpable homicide. The first degree is of culpable homicide defined u/S 300 IPC as murder which is the gravest form of culpable homicide. The second may be termed as culpable homicide of the second degree punishable u/S. 304 Part I, I.P.C. The third degree is the lowest type of culpable homicide punishable u/S. 304 Part II, I.P.C.
(9). Under clause (2) of Sec. 300, IPC it is only the intention of the causing bodily injury with the offender's knowledge of likelihood of such injury causing the death of particular victim is sufficient to bring the killing within the ambit of this clause. The intention to cause death is not essential. In clause (3) of Sec. 300 instead of the words "likely to cause" occurring in corresponding clause of Sec. 299 the words "sufficient in the ordinary course of nature" have been used. Thus distinction lies between bodily injury likely to cause death and bodily injury sufficient in the ordinary course of nature to cause death. Thus for cases falling under clause (3) it is not necessary that offender intends to cause death, so long as death ensues from the intentional bodily injury or injury sufficient to cause death in the ordinary course of nature.
(10). The supreme Court in Virsa Singh vs. State of Punjab (8) observed thus:
"To put it shortly, the prosecution must prove the following facts before it can bring a case u/S. 300 "3rdly".
First, it must establish quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved.
These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
Once these four elements are established by the prosecution (and of course, the burden is on the prosecution throughout) the offence is murder u/S. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature....."
(11). In State of Haryana vs. Pala and others (supra) dealing with thirdly clause to Sec. 300, IPC the Apex Court held that when injury is caused by deadly weapon on the vital part of the body and death is occurred as a result thereof, it must be inferred that the attack was with an intention to cause death. The court observed that the intention is to be inferred from the acts and attending circumstances. The court observed thus;-
"Clause thirdly of Sec. 300, I.P.C. envisages that if the act is done with intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, it would be murder coming u/S. 300, I.P.C. and that, therefore, it would not be a culpable homicide u/S. 299, I.P.C. When the accused emerged from their house and beat with deadly weapon on the head and other parts of the body and death occurred as a result of the injuries, it must be inferred that the attack on vital pans of the body was intended to be caused with an intention to cause death. Intention is locked up in the heart of the assailant and the inference is to be drawn from acts and attending circumstances."
(12). In the instant case PW 6 Moduram has stated hat the appellant was armed with an iron rod. He struck iron rod on the head of the deceased Balram and there after he twisted the neck of Balram due to which he died. He has also stated that when Balram was being beaten he tried to scream but was prevented to do so by pressing his neck. When he started shouting to attract the people of the vicinity to intervene, the accused persons forcibly pushed cotton in his mouth. This part of the statement of P. W. 6 Moduram is corroborated by the post mortem report Ex.P/18 and injury report Ex.P/19. PW 11 Dr. Rajendra Kumar Gupta who conducted the post-mortem of the body of deceased Balram found that his body was found in the state of decomposition, rigor mortis has set in and movements of maggots were seen, his face was found to be swollen, saliva secreted by salivary gland mixed with blood was oozing from his nose, the skin of his body was not traceable, his testicles were found to be swollen, the fourth and fifth cervical vertebrae bones were found to be fractured and spinal cord was also found to be lacerated. After opening of the skull the said doctor found that right parietal temporal bone was fractured. PW 11 Dr. Rajendra Kumar Gupta during the course of his statement on oath opined that both the injuries on the head and on the neck were of grievous nature. The injury on the head could be caused by blunt weapon whereas the injury on the neck could be caused by twisting the neck or by blunt weapon. The aforesaid injuries were found to be ante mortem and each injury separately and in cumulative effect were sufficient in the ordinary course of nature to cause death of deceased Balram. Thus the case of the appellant clearly falls under clause (3) of Sec. 300, I.P.C. I am in agreement with the conclusion arrived at by the trial court and upheld by Mr.R.R. Yadav, J. that the prosecution has succeeded in establishing its case of culpable homicide amounting to murder beyond all reasonable doubt as the fatal injuries found on the body of the deceased Balram were caused by the appellant which were sufficient in the ordinary course of nature to cause his death.
(13). The decision of the Apex Court in State of Madhya Pradesh vs. Shyam Sunder Trivedi (supra) is of no help to the appellant, it was a case of custodial death. The deceased was taken to the police station with an intention of extracting the confession of guilt in connection with murder of one Harijan woman. As a result of extensive injuries the deceased Nathu died in the police custody. Looking to the injuries on facts the court found that it was not possible to say that the police officials intended to cause death of Nathu and only a knowledge could be attributed that the injuries cause to the deceased were likely to cause death. In these circumstances it was found that the case falls u/S 304 Part II, IPC. The case is clearly distinguishable as in the instant case with a weapon like iron rod a blow has been given on the vital part of the body i.e. head and neck has been broken. There are other circumstances and well that inspite of repeated requests the deceased Balram and PW 6 were not released. In these circumstances the only inference can be drawn that in all probabilities the injuries were sufficient in the ordinary course of nature to cause death of Balram. Thus Shyam Sunder's case (supra) does not help the appellant.
(14). As regards exception (5) to Sec. 300 IPC it is not in dispute that the appellant u/S. 313, Cr.P.C. has neither taken such plea nor any suggestion has been given by the defence to the prosecution witnesses to draw benefit of exception (5) to Sec. 300. No evidence has been produced to say that his barbarous unlawful act of tying the hands and feel of deceased Balram with rope and beating him with iron rod, twisting the neck of deceased was a part of ritual of Akha Dikhana and which was known to the deceased Balram prior to giving of his consent and he consciously undertook the risk of his life. The burden of proof of exception (5) is to be discharged by the accused charged with a crime of murder as envisaged in Sec. 105, Evidence Act which reads as follows:-
"105. Burden of proving that case of accused comes within exceptions. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case of within any of the General Exceptions in the Indian Penal Code 45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances."
A plain reading of the provision shows that the onus of proving the circumstances which give the benefit of the general or special exception to an accused person lies on him and in absence of the evidence the presumption is against the accused. The use of word "shall presume the absence of such circumstances" is of great significance and has been a subject matter of debate. While one view is that the burden of proving that the case falls within the exceptions lies on accused and if such a burden is not discharged there is a presumption of absence of such circumstances. The other view is that the burden cast on accused by virtue of Sec. 105. Evidence Act can not be so onerous so as to absolve the prosecution of its primary burden to prove the offence beyond reasonable doubt. It is not necessary for me to examine all those cases as the learned counsel for the appellant has not addressed on the question of exception (5) to Sec. 300, IPC. However, it would be profitable to refer to the decision of the Apex Court in Vijayee Singh vs. State of U.P. (9) wherein the entire controversy has been discussed at length and concluded in para 33 which reads as follows:
"The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. Even in respect of the cases covered by S. 105 the prosecution is not absolved of its duty, of discharging the burden, the accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case. He may adduce the evidence in support of his plea directly or rely on the prosecution case itself or, as stated above, he can indirectly introduce such circumstances by way of cross/examination and also rely on the probabilities and the other circumstances. Then the initial presumption against the accused regarding the non-existence of the circumstances in favour of his plea gets displaced and on the examination of the material if a reasonable doubt arises the benefit of it should go to the accused. The accused can also discharge the burden u/S. 105 by preponderance of probabilities in favour of his plea. In case of general exceptions, special exceptions, provision contained in the Penal Code or in any law defining the offence, the Court, after due consideration of the evidence in the light of the above principles, if satisfied, would state, in the first instance, as to which exception the accused is entitled to then see whether he would be entitled for a complete acquittal of the offence charged or would be liable for a lesser offence and convict him accordingly."
(15). Thus it is always on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden never shifts and it always rests on the prosecution. Sec. 105 places "burden of proof" on the accused in the first part and second, a presumption which the court can draw regarding the absence of the circumstances. This presumption is rebuttable. Once prosecution has established ingredients of the offence charged, the burden shifts on the accused to prove certain facts within his knowledge or exception to which he is entitled. He may take specific plea falling case in the category of exception provided under the law and adduce oral or documentary evidence, admission appearing in the prosecution evidence or elicited from prosecution witnesses in the cross-examination and the statement u/S. 313, Cr.P.C. The standard of proof required to establish the circumstances is that of "prudent man". Once the accused succeeds in showing by preponderance of probabilities that there is reasonable doubt in his favour, the burden shift again on prosecution to prove the case against the accused beyond reasonable doubt.
(16). In the instant case, though the appellant has not taken the specific plea of consent but even according to the prosecution the appellant was a fortune teller and exorcist. PW 6 Moduram and deceased Balram themselves had gone to the house of Satya Narain for knowing their fortune. According to PW 6 Modu Ram the liquor was brought by deceased Balram at the behast of the accused persons. Taking into account the said evidence, Palshikar J. has observed that the normal human conduct is that when a exorcist or fortune teller lakes recourse of lynching as a part of black magic or exorcism even the relation of the person assaulted do not take serious objection to such lynching. Palshikar, J. has also disbelieved the statement of PW 6 Moduram to the limited extent of causing injury by the appellant on the neck of deceased Balram. In view of the said finding Palshikar, J. has concluded that the accused had no intention either to cause death or such bodily injury as is likely to cause death or cause such bodily injury as was sufficient in the ordinary course of nature to cause death and, therefore, conviction u/S. 302, IPC was not possible. With profound respect, I am unable to agree with the view of Palshikar, J. As far as recourse to lynching as a part of black magic or exorcism is concerned, on the basis of ordinary human conduct it cannot be said that it may be permitted to the extent of causing such bodily injury as is likely to cause death or sufficient in the ordinary course of nature to cause death. There is also no reason to disbelieve the statement of PW 6 Moduram so far as holding the appellant responsible for injury on the neck on the basis of his statement. Palshikar, J. has translated the word "GALA GHONTNA" as strangulation and on that basis evidence of PW 6 Modu Ram has been discarded because as per medical evidence the neck was broken, and not strangulated. It is to be born in mind that PW 6 Modu Ram is an illiterate person. He is likely to commit mistake in using correct vocublary, and not making a fine distinction between twisting and strangulation. The fact remains that he has stated that appellant caught hold and pressed the neck of the deceased Balram. This act could cause neck breaking or strangulation. This is a matter of inference. This part of the statement cannot be read in isolation. It is also borne out from the testimony of PW 6 Moduram that while deceased Balram was trying to scream the appellant pressed this neck to prevent his screaming so that other persons of the vicinity or bye passers may not intervene in saving his life. It is further stated by PW 6 Moudram that when he made a scream for help to save his life and the life of Balram cotton was pushed with force in his mouth to prevent from screaming to attract persons either passing on the pathway or living in the vicinity to intervene and save the life of victims. Even the request of PW 7 Om Prakash and PW 9 Smt. Savitri to release them was rejected by the appellant. The request was again repeated in second round by PW 7 Om Prakash, PW 9 Smt. Savitri and PW 10 Ramjas which was not only rejected but they were threatened that if they do not leave the place they will face the same consequence. Thus I am of the view that the appellant after tying the hands and feet of Balram with rope has acted in a most brutal and cruel manner in causing injuries on the head of the deceased by a weapon like iron rod and pressing neck, such an act by no stretch of imagination be said to be part of ritual of Akha Dikhana. Thus in my view the case of the appellant in no way falls under exception (5) to Sec. 300, IPC (17). In view of the aforesaid I am in respectful agreement with the view of Mr. R.R. Yadav, J. Thus by the majority view this appeal deserves to be rejected.
(18). Consequently, the appeal filed by Satya Narain @ Satpal is dismissed. The conviction of the appellant Satya Narain for offence under Sec. 302 and 323, IPC and the sentence awarded is upheld. The appellant will undergo the remaining part of the sentence.