1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: S.B. CRIMINAL APPEAL NO.568/1998 (Mavji Vs. State of Rajasthan) S.B. CRIMINAL APPEAL AGAINST THE JUDGMENT DATED 10.09.1998 PASSED BY THE LEARNED SPECIAL JUDGE, SCHEDULED CASTE AND SCHEDULED TRIVE (PREVENTION OF ATROCITIES) ACT CASES, JODHPUR IN SESSIONS CASE NO.53/98. DATE OF JUDGMENT : 20th August, 2008 P R E S E N T HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Shambhoo Singh for the appellant. Mr. O.P. Rathi, Public Prosecutor. BY THE COURT : 1. This appeal is directed against the judgment dated 10.09.1998 passed by the learned Special Judge, SC/ST 2. (Prevention of Atrocities) Act Cases, Jodhpur, whereby, he convicted accused appellant Mavji for offence under Section 304 Part-II IPC and sentenced him to undergo 1½ years' simple imprisonment. Accused appellant Mavji was also convicted for offence under Section 323 IPC and was sentenced to 15 days' simple imprisonment. Both the sentences were ordered to run concurrently. 2. Facts leading to this appeal are that on 3.3.98, one Raju son of Kaliyan informed at Railway Police Station, Abu Road that his father Kaliyan was Jamadar at Abu Road Railway, and on that day at about 4 pm, when his wife Kalyani went for taking water from tap near the railway line, accused appellant used filthy language and damaged her matka (water pot). He also slept his wife. On hearing cry of his wife, he went on the spot, where, accused appellant also inflicted blow by stone on his right finger. Thereafter, his father Kaliyan came and intervened, but, accused appellant inflicted three to four fist blows and also threw stone on his chest, whereby, Kaliyan died. Post mortem was conducted and after investigation, case was registered for offence under Sections 302, 323 IPC as well as under Section 145-B of the Railway Act before the learned Addl. Chief Judicial Magistrate (Railways) Jodhpur. Thereafter, the case was committed to the court of sessions, where, accused appellant was charged 3. accordingly, to which, he pleaded not guilty. Prosecution examined 10 witnesses. Statement of the accused appellant was recorded under Section 313 Cr.P.C. He produced his wife Prema in defence. After hearing the arguments, the learned trial Judge acquitted accused appellant for offence under Section 145-B of the Railway Act, but convicted him for offence under Section 304 Part II instead of Section 302 IPC and under Section 323 IPC. 3. Learned counsel for the accused appellant has submitted that the fight took place on the spur of moment on account of taking water from the tap near railway line and accused appellant has remained in jail for a period of six months, therefore, he should be released under the Probation of Offenders Act, so that his service as a railway employee may be saved and also to maintain his livelihood. In support of his contention, learned counsel has placed reliance on a decision of this Court in Kailash Vs. The State of Rajasthan, reported in 1990 Cr.L.R. (Raj.) 426. 4. Per contra, learned Public Prosecutor has supported the judgment of the learned trial court and submitted that the trial court has already sentenced to the lowest extent in a case of murder. 4. 5. Having re-appreciated the evidence on record, it is true that the eye witnesses have turned hostile but the evidence of Raju, who is the son of deceased and his wife Smt. Kalyani PW-2 reveals that firstly, accused appellant inflicted injuries on the person of Raju on the issue of taking water from tap and thereafter, when his father came, he inflicted three four blows and also inflicted injuries on his chest with stone of 400 grams. This subsequent act of the accused appellant indicates that he was having knowledge that by inflicting such blows on the vital part of the body, death might be caused. In this regard, Doctor Tarun Agrawal PW-5, who conducted the post mortem has stated that on cutting of large vessels ulterior was cut and it was full of blood. The cause of death as opined by the Doctor in his post mortem report Ex.P-9 is due to rupture of major vessel thereby leading to internal hemorrhage and shock. In the cross examination, he has also stated that this injury was sufficient in the ordinary course of nature to cause death. Though, he has not stated this fact in the post mortem report. Merely because this injury may be caused by fall, the suggestion which has been put to the Doctor is not sufficient to delink the act of committing culpable homicide not amounting to murder. 6. That apart, there are two injuries, though, they are simple in nature caused by blunt weapon on the person of Raju PW-1, 5. who is the son of deceased. Simply on the basis of this petty incident of taking water, a railway employee acted in such a brutal manner that he killed his fellow employee, this cannot be said to be a case of leniency. The learned trial Judge while appreciating the evidence of the two eye witnesses namely Raju PW-1 and Smt. Kalyani PW-2 coupled with the testimony of the Doctor has rightly come to the conclusion that it is a case of culpable homicide not amounting to murder punishable under Section 304 Part II IPC and also under Section 323 IPC. From the cross examination of the witnesses, nothing can be revealed that incident is concocted one or deceased died on account of fall on the stone as deposed by Prema DW-1, who is the wife of accused appellant. In her defence, she has admitted that the incident took place but it was someone else who intervened and her husband did not kill the deceased. 7. So far as sentence part is concerned, the learned trial court has already taken a very lenient view by imposing sentence of 1½ years in case under Section 304 Part II IPC. The law cited by learned counsel for the accused appellant is not helpful to the facts of the present case. In the cited case, accused was a student of 18 years of age and he remained in custody for a period of 20 months and it was not proper to send him back to jail after nine years of the incident. The present case is not one 6. where accused appellant should be released under the Probation of Offenders Act. 8. Consequently, this appeal is dismissed. The judgment dated 10.09.1998 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jodhpur, convicting the accused appellant for offence under Section 304 Part II IPC and sentencing him to undergo 1½ years simple imprisonment and for offence under Section 323 IPC to undergo 15 days' simple imprisonment is confirmed. Accused appellant Mavji is on bail, his bail bonds stand cancelled. Let a warrant of arrest be issued against accused appellant Mavji to send him to judicial custody to serve out the remaining part of the sentence. (DEO NARAYAN THANVI), J. ms rathore