1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Suraj & Anr. vs. The State of Rajasthan. D.B.Cri. Appeal No.601/2002 Under Section 374 (2) Cr.P.C. Against the judgment dated 05.06.02 passed by the Addl. Sessions Judge (Fast Track), Pratapgarh in Sessions Case No.209/2001. ....... Date of Order: 09th August, 2007. PRESENT HON'BLE MR.JUSTICE BHAGWATI PRASAD HON'BLE MR.JUSTICE MUNISHWAR NATH BHANDARI Mr.Doongar Singh for the appellants. Mr.JPS.Choudhary, Public Prosecutor. BY THE COURT :(PER HON.MR.BHAGWATI PRASAD,J.)- The present appeal has been filed by the accused appellants against the decision of the court of Addl. Sessions Judge , (Fast Track), Pratapgarh , in Sessions Case No.209/2001 dated 05.06.02. The first information was lodged, being first 2 information report No.120/2001 at Police Station , Pratapgarh on the basis of a written report Ex.P/1 by Ambalal. Amba Lal gave this written report to the SHO, when he was informed of the incident, he arrived at the scene of occurrence . On the basis of the said report, charges under Section 342 IPC was registered against the accused persons. After lodging of the first information, the investigation was conducted. Charge sheet was filed in the court of Sessions, from where it was made over to the trial court . At the trial 16 witnesses were examined, 19 documents were exhibited. Accused was examined under section 313 Cr.P.C. The accused denied the prosecution case and exhibited two documents in defence. The trial court, after considering the case of the prosecution, has convicted and sentenced both the accused appellants as under:- 1 Suraj 302, 302/34 IPC 341 IPC Imprisonment for life and a fine of Rs.10,000/- and in default of payment of fine to further undergo two years' R.I. One month's R.I. And a fine of Rs.500/- . In default of payment of fine to further undergo 7 days' R.I. Both the sentences were ordered to run concurrently. 2 Babu -do- -do- 3 Assailing the judgment, the learned counsel for the appellants stressed before us that he is not impugning the incident but he seriously contends the nature of offence as made out against the accused appellants. According to the prosecution case, while the deceased was coming back to his house at about 10.00 in the night, the accused persons stopped him. Then there was quarrel in between them and during that quarrel Babu held the deceased and Suraj inflicted a knife blow on his chest and Prabhu and Ganpat had witnessed the incident. When the accused saw these witnesses, they made their escape good. According to the learned counsel for the appellants the incident was not preplanned. It was on the spur of the moment that the accused and the deceased quarreled. It was pursuant to an altercation and abuses ,which were exchanged between the parties. This is the admitted case of the prosecution as stated by PW/8 Dashrath that the accused and the deceased both were drunk. If the accused and the deceased both were drunk, then both were not in their senses and were high on liquor. This also occurred in some of the statement that it was regarding Santosh , daughter of the deceased, that some misgiving was there in between the parties and on that matter at 10.00 PM when both the accused and the deceased 4 met on the way, the quarrel started. There is no reason why at 10 o'clock the accused and the deceased would encounter each other. Both having been under the influence of liquor, the untoward incident happened. The accused having not taken undue advantage of his position, and having inflicted only one injury , that too under the influence of liquor, it cannot be said that the accused had any pre- motive or preparation for committing the crime. It was only at the spur of the moment that things occurred. There was no repetition of the blow. That being the position, it cannot be said that the accused had determined to cause such injury to the deceased whereby he expected that the deceased would die. The learned counsel is of the opinion that if we go to exception (1) of Section 300 IPC we find that when the offender commits a crime, being deprived of the power of his control by sudden and grave provocation, then it comes within the definition of culpable homicide not amounting to murder. In the instant case, both the deceased and the accused Suraj were under the influence of liquor. They had exchanged abuses. Thus, there was provocation which was sudden, and due to that sudden happening, the incident occurred and in that background , the act of Suraj would fall within exception (1) of Section 300 IPC and then 5 it would be punishable under section 304 IPC. As regards the other accused, the learned counsel submits that it cannot be expected that the accused Babu had known that Suraj would inflict a knife blow to the deceased. Therefore, sharing common intention cannot be presumed exhortion, and holding the deceased are such features which are generally introduced by the prosecution to implicate as many accused as possible and in that background, the participation of Babu is doubtful . In any case, he having not caused any injury, his case falls under section 324 IPC. Per contra, the learned Public Prosecutor submitted that in the night, when accused holds the deceased and the other one causes injury on the chest, then obviously their intention is one which is commensurate with the findings of the trial court. The trial court has rightly convicted the accused appellant . We have heard the learned counsel for the parties and have given our thoughtful consideration to the material available on record. There was a chance meeting. It was not expected that the accused would know that the deceased is likely to meet them on way. 6 PW/8 Dashrath, prosecution witness, has admitted that the accused and the deceased both were under the influence of liquor. Accused Suraj has caused only one injury. There was no allegation that he attempted second injury or did any thing to aggravate the offence as committed by him. It was an encounter which resulted into an incident which was sad but then the gravity of the offence has to be judged dispassionately. We are persuaded to believe that exception (1)of Section 300 IPC is called into operation and in that view of the matter, the offence under section 302 IPC is not held to be made out. Since only one injury has been caused , that too by knife, it can be said that it was an intentional injury, as required under section 304 (1). We hold that the accused is held guilty under section 304 I IPC and his conviction under section 302 IPC is set aside He is sentenced to 7 years' R.I. The other accused Babu, his participation is only to the extent as alleged for holding the deceased. His knowledge about the other accused having knife is not made out. This also cannot be inferred that the act of the other accused was done with his knowledge. This is an event which is not reliable and in that light of 7 the matter, the conviction of the accused Babu under section 302/34 IPC is not sustainable . He deserves to be acquitted of the charge. Both the accused have been convicted under section 341 IPC . That conviction is maintained. In the result, the appeal is partly allowed. The accused Babu had already served out the sentence of more than one year as awarded to him because he was arrested in 2001 and was released on bail in 2003. His conviction being under Section 341 IPC and having been sentenced only for one year, he is entitled to remain at large and therefore, his bail bonds are cancelled and he need not surrender. As regards accused Suraj is concerned, he is behind the bars, his conviction is altered from Section 302 IPC to Section 300 (1) IPC and is sentenced to 7 years' R.I. And a fine of Rs.1,000/- (MUNISHWAR NATH BHANDARI), J. (BHAGWATI PRASAD), J. L.George