{1} S.B.CRIM. APPEAL NO.122/1986 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO.122/1986 CHHOTU Vs. STATE OF RAJASTHAN DATE :: 22.12.2010 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Vijay Choudhary, for accused-appellant. Mr. J.R. Bijarnia, Public Prosecutor for the State. **** Heard the learned counsel for the parties. 2. Appellant Chhotu has preferred this criminal appeal under Section 374 of the Code of Criminal Procedure challenging his conviction and sentence awarded by the Additional Sessions Judge No.1, Ajmer vide judgment/order dated 22.01.1986/23.01.1986 in Sessions Case No.40/1985(5/1984), whereby he was convicted and sentenced under Section 304 Part-I IPC to seven years rigorous imprisonment and a fine of Rs.200/-, and in default of payment of fine to further undergo one month's additional rigorous imprisonment. 3. Submission of learned counsel for appellant is that as per the statement of PW1 {2} S.B.CRIM. APPEAL NO.122/1986 Ridhkaran and PW2 Magna, fatal injury on the person of deceased Champa Lal was inflicted by the appellant, but the incident in the present case took place all of a sudden and it is a case of single injury and the weapon used was also blunt object, therefore, there was no intention to cause death of deceased, therefore, the trial Court committed an illegality in convicting the appellant under Section 304 Part-I IPC. He submitted that looking to the nature of injury, weapon used in the case and further that there was no enmity between the parties and the incident took place all of a sudden, the offence, at the most, cannot travel beyond the scope of Section 304 Part-II IPC. 4. He further submitted that the appellant remained in jail from 21.08.1983 to till 07.05.1986 when he was released on bail by this Court after his conviction by the trial Court, therefore, he had already remained in jail for about 2 years, 8 months and 14 days. The incident in the present case took place in the year 1983, therefore, the offence is of 27 years old. Appellant is on bail for last more than 24 years and he is already settled in his village and has not committed any other offence, therefore, {3} S.B.CRIM. APPEAL NO.122/1986 looking to all the facts and circumstances of the case, his sentence of imprisonment may be reduced to a period of 2 years, 8 months and 14 days, already undergone by him. 5. Learned counsel for the State defended the impugned judgment and prayed for dismissal of the appeal. 6. I have considered the submissions of learned counsel for the parties in the light of reasons assigned by the trial Court for convicting the accused-appellant for the offence under Section 304 Part-I IPC. 7. The incident in the present case took place on 19.08.1983 at about 8.00 a.m. and written report Ex.P11 was lodged by Gambhira (Pw5) at Police Station Bhinay at 11.30 a.m. Since Champa Lal succumbed to injuries before lodging of FIR when he was being taken to hospital for treatment, therefore, FIR No.63/83 was registered under Section 302/34 IPC. Chalked FIR is Ex.P15. Post-mortem of dead body of deceased Champa Lal was conducted by PW10 Dr. M.K. Gupta. Post-mortem Report is Ex.P17, according to which following injuries were found:- {4} S.B.CRIM. APPEAL NO.122/1986 “There is fracture of occipital, parietal and temporal bone, fracture line from post side of Rt. ear to lower end of centre of occipital bone and then from occipital end to centre of parietal & temporal bone. Middle cranial fossa is also fractured on Rt. side at the base of brain.” 8. As per opinion of Dr. M.K. Gupta, the cause of death is crush injury of brain and fracture of skull and middle cranial fossa leading to extensive haemorrhage and shock. 9. Accused-appellant was arrested on 21.08.1983 vide Arrest Memo Ex.P12. During his custody, he gave information under Section 27 of the Evidence Act vide Information Memo Ex.P18, about weapon i.e. 'Khoontla', used by him to inflict injury on the person of deceased and the said 'Khoontla' was recovered vide Recovery Memo Ex.P10. 10. After completion of investigation, the Police filed charge-sheet against the accused-appellant as well as two co-accused persons, namely Surajkaran and Mewa in the Court of Munsif and Judicial Magistrate, Kekri, who committed the case for trial on {5} S.B.CRIM. APPEAL NO.122/1986 22.11.1983 to the Court of Sessions Judge, Ajmer, who transferred the case for trial to the Court of Additional Sessions Judge No.1, Ajmer. 11. Learned trial Court framed charge against the appellant for the offence under Section 302 IPC and against two remaining accused-persons Surajkaran and Mewa under Section 302 read with Section 34 IPC. Accused-persons denied the charges and claimed trial. 12. The prosecution, in support of its case, examined PW1 to PW12 and produced documentary evidence Ex.P1 to Ex.P21. Thereafter, statements of accused persons were recorded under Section 313 Cr.P.C. In defence, statement of DW1 Mishri Lal was recorded. 13. It is relevant to mention that in the mid of trial, the learned trial Court acquitted co-accused Surajkaran and Mewa from the offence under Section 302/34 IPC vide order dated 31.07.1985 in view of the fact that there was no incriminating evidence available against them. {6} S.B.CRIM. APPEAL NO.122/1986 14. Learned trial Court after considering the submissions of parties and the evidence available on record, acquitted the accused-appellant from the charge under Section 302 IPC, but convicted and sentenced him under Section 304 Part-I IPC, as mentioned above. 15. From the statement of PW1 Ridkaran and Pw2 Magna, it is clear that injury on the person of deceased was inflicted by the appellant. The question is only whether looking to all surrounding circumstances of the case and nature of injury, the case against appellant will fall under Part-I, as convicted by the learned trial Court or Part- II, as argued by the learned counsel for appellant, of Section 304 IPC. 16. From the scrutiny of statements of PW1 Ridkaran, PW2 Magna and other prosecution witnesses, it is clear that there was no enmity between the parties and the incident took place all of a sudden. The injury was inflicted by 'Khoontla i.e. blunt or wooden object and the doctor has also opined that injury was inflicted by wooden object. The said 'Khoontla' is available at the houses of villagers in the village. PW10 Dr. M.K. {7} S.B.CRIM. APPEAL NO.122/1986 Gupta, in his cross examination, has admitted that “I can't say how many injuries must have been inflicted on the head of the deceased because there was no external mark of injury”. From the post-mortem report, it is clear that there was no external mark on injury on the person of deceased. 17. From the post-mortem report, it appears that there was only one head injury on the person of deceased inflicted by blunt object. Injury was not repeated by the accused, therefore, it can safely be said that there was no intention to cause death of the deceased, but certainly it can be inferred that appellant had the knowledge that injury inflicted by him may be sufficient to cause death. 18. Hon'ble Apex Court in Madhusudan Satpathy and others Vs. State of Orrissa, AIR 1994 SC 474, where the accused persons used 'bhala' and 'wooden plank' observed that weapons used were not deadly weapons and converted the conviction of the accused from Section 304 Part-I to Part-II IPC. Para 3 of the judgment is reproduced as under:- “3. According to the prosecution, the deceased Bharat {8} S.B.CRIM. APPEAL NO.122/1986 Satpaty purchased a piece of land from one of the accused and Nrusingha Misra had also borrowed Rs.1,000/- from him. In that connection there were some disputes and it created ill- feelings. On 16th June, 1976, the date of occurrence, it is alleged that the deceased came to the House of Madhua for receiving payment. The deceased however, consented but told that he would go after answering call of nature. Meanwhile, P.W. 1 who heard the deceased shouting in agony rushed there. He saw the deceased lying there and some of the accused giving bhala blows to him. According to the version of the eye-witnesses, the first appellant gave a Bhala blow on the right temporal region of his head and the second appellant gave a blow on the right side of his head with a wooden plank and the third appellant Nrusingha Charan Misra gave a blow on the bridge of the nose. The other accused are generally alleged to have given lathi blows. The report was given to the Police and the case was registered and after completion of the investigation charge-sheet was framed. It is already noted that the case mainly rests on the evidence of the eye-witnesses P.Ws. Nos.1, 4, 5, 8 and 10. The High Court has considered their evidence in great details on the question of law namely the scope of an appeal against acquittal, the Division Bench has also referred to the relevant decisions and keeping in view of the settled principles, the High Court proceeded to discuss the evidence and ultimately found that they had no intention to cause death but they had intention to cause such injuries which would likely to cause death. The High Court convicted these accused under S.304, Part I, I.P.C. read with S.34, I.P.C. {9} S.B.CRIM. APPEAL NO.122/1986 and sentenced them to undergo 6 years R.I. The medical evidence shows that there is only one injury on the head that proved to be fatal. The other injuries were found to be simple. Weapons used also were not deadly. Under these circumstances it is reasonable to hold that the appellants had only knowledge that the injuries inflicted by them were likely to cause death. In this view of the matter we alter the conviction from S.304, Part I, I.P.C. to one punishable under S.304, Part II, I.P.C. and we reduce the sentence of each of the appellants from 6 years R.I. to 3 years R.I.” 19. From the nature of injury sustained by the deceased, the intention of the accused-appellant to cause death cannot be inferred, but at least knowledge can be gathered therefrom that his act was likely to cause death. In these circumstances, I am of the view that the accused-appellant could have been convicted only under Section 304 Part-II IPC and the learned trial Court committed an illegality in convicting the appellant under Section 304 Part-I IPC. 20. So far as sentence of imprisonment to be awarded to the appellant under Section 304 Part-II IPC is concerned, it is relevant to mention that no minimum sentence of imprisonment has been prescribed under Section 304 Part-II IPC. {10} S.B.CRIM. APPEAL NO.122/1986 21. Hon'ble Apex Court in Pooran Singh Vs. State of U.P. (AIR 1981 SC 1638), reduced the sentence of imprisonment of accused to a period of 18½ months, already undergone by him under Section 304 Part-I IPC. The order of the Hon'ble Apex Court is reproduced as under:- “We have heard Mr. Garg, learned counsel for the appellant and Mr. O.P. Rana, learned counsel for the respondent State. Taking into consideration all the circumstances of the case, including the fact that at the time of occurrence the appellant was a raw youth of 19 years, we, while maintaining the conviction of the appellant under Section 304, Part I, I.P.C., reduced his sentence to imprisonment already undergone, which is stated to be about 18½ months. Subject to this reduction in the sentence, the appeal is dismissed. The bail bond of the appellant is discharged.” 22. In the matter of Kuldeep Singh Vs. State of Haryana {1996 Cri.L.J. 1884(SC)}, Hon'ble Apex Court reduced the sentence of imprisonment from four years rigorous imprisonment to the period of two years rigorous imprisonment already undergone by the accused for offence under Section 304 Part II IPC. {11} S.B.CRIM. APPEAL NO.122/1986 23. Similarly, in the matter of State of Punjab Vs. Mohinder Singh {1993 Cri.L.J. 3903(SC)}, Hon'ble Apex Court considered the matter wherein the accused was convicted under Section 304 part II IPC and was awarded five years' rigorous imprisonment and was also imposed a fine of Rs.2,000/-. However, in view of the fact that the occurrence took place in the year 1975 and having regard to the long lapse of time, Hon'ble Apex Court did not think it proper to send the accused to jail. In that case the accused had only served a sentence of 2½ months' which although was observed to be quite inadequate, still Hon'ble Apex Court considered the fact of long lapse of time to be a strong fact in favour of the accused appellant and the same was reduced to already served sentence of 2½ months'. Although the amount of fine of RS.2,000/- was enhanced to an additional fine of Rs.10,000/- to be paid to the family of the deceased. In para 6 of the said judgment it was held:- “6......”Therefore, now turning to the question of sentence we find that the accused had hardly served 2½ months in jail which is grossly inadequate. However, having regard to the fact that the occurrence took place on 5th August, 1975 and having regard to the long lapse of time we do {12} S.B.CRIM. APPEAL NO.122/1986 not think that accused should be sent to jail....... deceased.” 24. Recently, in the matter of Md. Monir Alam Vs. State of Bihar (AIR 2010 SC 698), Hon'ble Apex Court considering the specific circumstances that the accused had acquired a Doctorate degree during the pendency of the case and got a prestigious employment of Senior Assistant Professor in the Department of Strategic and Regional Studies, University of Jammu, even released him on probation under Section 4 of the Probation of Offenders Act, 1958 for offence under Sections 304 part II and 323 IPC. 25. Offence under Section 304 Part II IPC is punishable with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine or with both. No minimum sentence has been prescribed. Admittedly, the offence relates to the year 1983 and the matter is 27 years old and appellant is on bail. He was arrested on 21.08.1983 and was not released on bail during trial of the case, but after filing of appeal, this Court vide order dated 07.05.1986, granted bail to him. Therefore, it is clear that he has already remained in {13} S.B.CRIM. APPEAL NO.122/1986 jail for about 2 years, 8 months and 14 days. Therefore, ends of justice will meet in case the sentence of imprisonment of 2 years, 8 months and 14 days, already undergone by him, is awarded under Section 304 Part-II to the appellant. 26. Consequently, the appeal is partly allowed. The impugned judgment is modified. The conviction of appellant is altered from offence under Section 304 Part-I IPC to 304 Part-II IPC and he is awarded sentence of imprisonment to a period of 2 years, 8 months and 14 days, already undergone by him. He is on bail and need not to surrender. His bail bonds are discharged. (NARENDRA KUMAR JAIN),J. /KKC/