IN THE HHIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. S.B.Cr.Appeal.No.146/2006. Bharat Singh @ Sonu Versus. State of Rajasthan. Date of Judgment: 19.5.2009. Hon'ble Mr.Justice Mahesh Chandra Sharma. Mr.Vivek Goyal for the appellant. Mr.Pradeep Srimal P.P. This appeal has been filed by the accused appellant against the judgment and order dated 15.12.2005 passed by the Addl.Sessions Judge (Fast Track) No.1 Ajmer in Session Case No.104/2004, whereby he convicted and sentenced the accused appellant for the offence under Section 304 IPC for 10 years Rigorous Imprisonment with fine of Rs.1000.00 in default of payment of fine, to undergo 3 months simple imprisonment. ..2.. The brief facts of the case are that on 2.8.2004 one Parcha Bayan No.315/04 of Ex.p- 15 of deceased Mohan Singh @ Sindhi S/O.Hari Singh was recorded in JLN Hospital, Ajmer at 2.30.P.M by Hanuman Singh ASI with regard to the incident alleged to have been taken place on the same day at 1.P.M. The contents of aforesaid Parcha Bayan reads as under:- "पचार् बयान ौी मोहनिसंह उफर् िसन् धी पुऽ ौी हरीिसंह जाित जाटव उॆ 38 साल िनवासी झलमारी नगर लुहार बः ती अजमेर बिसलिसले जांच नकल रपट 71 रोजनामचा आम थाना अलवर गेट ने दिरयाफत पर बयान िकया िक मैं पकवान बेचने का काम करता हं आज िदनांक ू 2.8.04 को जादघर में पकवान बेच रहा था। ौी सोनू कोली आया ू मुझे कहा िक पकवान दे मैनें कहा मेरे पास अपिठत नहीं है यह बात िदन के 1 बजे करीब की है सोनू ने अपनी जेब से चाकू िनकाला व मेरे को जान से मारने की िनयत से मेरे पर वार िकया तो मेरी अपिठत के पास लगा उस समय जगदीश व दीपक कोली मौजूद थे िजन् होनें देखा है उस समय ..3.. काफी भीड़ इकटठी हो गई थी फीर मैं थाना की तरफ आया तो वहां से मुझे इलाज हेतु अः पताल ले आये सोनू ने मुझे जान से मारने की नीयत से चाकू मारा है।" On the basis of aforesaid Pacha Bayan police registered a case FIR No.249/2004 for the offence under Section 324, 307 IPC. During investigation injured Mohan Singh @ Sindhi was died on 3.8.2004 at 11.20 A.M. After investigation, Investigating Agency added Section 302 IPC and submitted a charge sheet before the Court of Judicial Magistrate for the offence under Section 302 IPC against the accused appellant. The learned Magistrate committed the case to the court of Sessions Judge, Ajmer. The learned Sessions Judge transferred the case to the court of Addl.Sessions Judge (Fast Track)No.1 Ajmer who framed charges under Section 302 IPC against the accused appellant. ..4.. The charges were read over and explained to the accused appellant who denied all the allegations and claimed for trial. During trial, the prosecution in support of its case examined as many as seventeen witnesses and got exhibited some documents. Thereafter,the statement of accused appellant were also recorded under Section 313 Cr.P.C and five witnesses in defence have been examined and some documents have also been exhibited. After hearing both the parties, the trial court convicted the accused appellant 304 IPC as indicated above vide it's order dated 15.12.2005. Aggrieved against the judgment and order of conviction and sentence passed by the trial court dated 15.12.2005, the ..5.. accused appellant has preferred the present appeal with the prayer to quash the same. In this appeal during the course of arguments, Mr.Vivek Goyal Advocate appearing on behalf of the accused appellant has made request to this Court that he is not challenging the conviction part of the judgment of trial court, but he is only requesting to this Court that the sentence should be reduced for the period already undergone by the appellant. The trial court has convicted the accused appellant under Section 304 IPC. Section 304 IPC reads as under:- “304 Punishment for culpable homicide no amounting to murder- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily ..6.. injury as is likely to cause death,or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death”. From a bare perusal Section 304 IPC, it will reveal that it is not clear whether the accused appellant has committed offence under Section 304 IPC or under Section 304-Part II IPC. Learned counsel for the accused appellant has contended that accused petitioner is in judicial lock up since last 4 years 10 months and 19 days. During those days of judicial lock up his behavior found good and the age of the accused appellant is 25 years, he is a young person. He further drawn attention of this Court that this is the first offence of the ..7.. accused appellant and according to him, the case of the accused appellant jumps under Section 304 Part-II IPC because there was no intention erroneously by committing such offence. Hence, accused appellant be convicted for the offence under Section 304 Part-II IPC instead of Section 304 Part-I. the incident took place approximately 18 years ago since then they are facing trial which itself tantamount punishment and they are facing mental agony. He further contended that the accused appellant remained in judicial lock up for four years 10 months and 19 days respectively and instead of convicting him under Section 304 Part II IPC, in such circumstances, benefit of Section 432 IPC or the benefit of Probation of Offenders Act should be granted to the accused appellant. ..8.. Mr.Pradeep Srimal Public Prosecutor has controverted the arguments advanced by Mr.Goyal. For these reasons, I convict the accused appellant under Section 304 Part-II IPC instead of Section 304 IPC. But looking to the facts and circumstances of the case and the fact that the appellant has already remained in judicial lock up for 4 years 10 months and 19 days and ends of justice would be met in case the appellant is released on the period already undergone by him in judicial custody. The judgment and order dated 15.12.2005 passed by Addl. Sessions Judge (Fast Track) No.1, Ajmer in Session Case No.104 of 2004 is modified to the extent as indicated above. ..9.. If the accused petitioner is not required to be detained in any other case, he may be released forthwith. This appeal is partly allowed. (Mahesh Chandra Sharma)J. k.