1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CRIMINAL APPEAL No.506/1986. : : Tej Mal Vs. State of Rajasthan. : : Date of Order 4.9.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Rajveer Singh for the appellant. Mr.D.D.Sharma, P.P. for the State. Reportable This appeal is directed against the judgment dated 30.10.1986 passed by the learned Sessions Judge, Sawai Madhopur by which the accused-appellant was convicted for offence under Section 304-II IPC and was sentenced to undergo rigorous imprisonment for two years and fine of Rs.200/- with the stipulation that in the event non-payment of fine he shall have to further undergo rigorous imprisonment for two months. I have heard Shri Rajveer Singh, learned counsel for the petitioner and Shri D.D.Sharma, learned Public Prosecutor for the State. 2 Shri Rajveer Singh, learned counsel for the appellant has argued that the offence under Section 304-II IPC has not been proved against the accused-appellant beyond reasonable doubt. Out of the six eye-witnesses cited by the prosecution, four witnesses namely; PW.4 Laxminarayan, PW.5 Gopilal, PW.6 Golia and PW.7 Harphool, have not supported the prosecution story and they were declared hostile. Conviction of the accused-appellant on the testimony of PW.1 Radheyshyam, who is the son of the deceased and PW.2 Kamla, who is wife of the deceased, cannot be recorded because these two witnesses are interested witnesses and their testimony indicates that they tried to exaggerate. Evidence of these witnesses, is not corroborated by the medical evidence inasmuch as the prosecution has failed to prove motive of the crime. The genesis of the crime is not clear. The first information report, Ex.P/1 was not admissible as it hit by Section 162 Cr.P.C. because investigation had already been commenced prior to lodging of first information report on the information of Medical Officer of the Government Hospital, Chouth-ka- Barwara who had informed about the incident at 4.15 pm. 3 Learned counsel further argued that while convicting the accused-appellant for offence under Section 304-II IPC, the learned trial Court sentenced him to undergo rigorous imprisonment for two years, the incident had taken place at the spur of the moment, the dispute in fact originated between Radheyshyam, the son of the deceased and the accused. While the accused were running after him, suddenly they met with Prahlad on the way and there was thus no pre-meditation of causing injury to Prahlad. Only one injury was caused. He was not on bail during the pendency of trial and remained in jail till he was enlarged on bail during the pendency of the present appeal by this Court on 25.11.1986. Thus from the date of incident on 20.2.1986 till he was enlarged on bail on 25.11.1986, the accused- appellant has already remained in jail for 9 months and 10 days. He has thus substantially served the sentence of the awarded term of two years. It was, therefore, prayed that in the event of conviction being maintained, the sentence awarded to the accused-appellant may be considered to be reduced to the period already undergone by him. Learned counsel in support of his arguments relied on the judgment of Supreme Court in the case of Chand Lal & Ors. Vs. State of Rajasthan : AIR 1992 SC 597 and this Court in Sitaram Vs. State of Rajasthan : WLC (Raj.) 1995 (1) 758 and Kishan Lal 4 @ Bandu Vs. State of Rajasthan : Criminal Law Reporter (Raj.) 2004 (2) 1006. Mr.D.D.Sharma, learned Public Prosecutor opposed the appeal and argued that evidence against the accused-appellant conclusively proved his complicity with the crime. He referred to the statements of PW.1 Radheyshaym, PW.3 Girraj and PW.4 Laxmi Narain. It was argued that statements of Radheshyam, son of the deceased and Kamla, wife of the deceased cannot be disbelieved merely because they are related to the deceased. These witnesses have remained unshaken during their cross-examination and their testimony even otherwise inspire confidence because their presence at the scene of occurrence was natural. Learned Public Prosecutor submitted that PW.10 Kajod has proved that gandasi was recovered at the instance of accused- appellant and recovery memo Ex.P/8 was also proved in this behalf. Learned Public Prosecutor referred to the statement of PW.11 Dr.O.P.Garg and argued that Dr.O.P.Garg has proved injury report Ex.P/11. He has also referred to statement of PW.17 Dr.S.C. Jain, who conducted post- mortem on the body of the deceased and proved the post- mortem report Ex.P/22. It was argued that the deceased sustained incised wound 5” X 1” which was vertically placed 5 on fronto parietal region left to mid line and was caused by sharp edged weapon. In the opinion of the Dr.S.C.Jain, cause of death was coma due to compression of brain of the deceased. Dr.S.C.Jain opined that this injury was sufficient in the ordinary course of nature to cause death. Upon consideration of the arguments aforenoted and perusal the record, I find that even if the statements of other four witnesses who were originally cited as eye- witnesses but did not support the prosecution case are ignored, the question to be examined by this Court would be that whether conviction of the accused-appellant can be sustained on the testimony of other three eye-witnesses namely; PW.1 Radheshyam, PW.2 Kamla and PW.3 Girraj and the medical evidence proved by PW.11 Dr.O.P.Garg and PW.17 Dr.S.C.Jain. PW.1 Radheshaym was the witness whose presence cannot be denied because the proven case of the prosecution is that the accused-appellant Tejmal with co- accused Chotu Lal were chasing Radheshyam when he was rushing towards the village and they suddenly met with his father Prahlad. PW.1 Radheshyam clearly stated that his father apologised to the accused but the accused-appellant Tejmal nevertheless inflicted a gandasi blow on the middle of his head. PW.2 Kamla wife of deceased Prahlad has also 6 stated that when Radheshyam came rushing towards the village, the accused-appellant and Chotu Lal armed with gandasi and lathi were chasing him. She also stated that her husband pleaded forgiveness even than the accused- appellant did not spare him. While Chotulal inflicted a lathi blow on the deceased, Tejmal caused a blow of gandasi on his head. PW.3 Girraj has also stated that the accused- appellant Tejmal inflicted a gandasi blow on the head of deceased Prahlad. Recovery of gandasi has been made at the instance of accused-appellant and recovery memo Ex.P/8 has been proved by PW.10 Kajod. PW.11 Dr.O.P.Garg has proved the injury report Ex.P/11 and PW.17 Dr.S.C.Jain has proved the post-mortum report and has opined that the cause of death was coma due to compression of brain in relation to injury No.1. Injury No.1 was the one which has been attributed to the accused-appellant. PW.16 Premchand the Investigating Officer has proved the site plan Ex.P/8 and recovery of gandasi from the accused-appellant vide Ex.P/9. In the face of all foregoing evidence, the contention that the offence against the accused-appellant is not proved beyond reasonable doubt cannot be accepted. The accused-appellant was arrested on 20.2.1986 and was enlarged on bail on 25.11.1986, therefore, he has in this manner already served sentence of more than 9 months and 7 5 days. In the case of Chanda Lal (supra), the Supreme Court altered the conviction recorded under Section 304-I IPC into Section 304-II IPC and sentenced the accused- appellant to the period already undergone by enhancing the fine. In Kishan Lal @ Banda (supra) the conviction of the accused-appellant was for offence under Section 304-II he was sentenced to undergo simple imprisonment for 7 years, considering the fact that the appellant was 65 years of age and had already undergone sentence for 21 months, coordinate bench of this Cort reduced the sentence to the period already undergone, but at the same time enhanced the fine of Rs.1000/- to Rs.35,000/- and directed that out of the fine, an amount Rs.33,000/- shall be paid to the widow of the deceased as compensation. The case relied upon by the learned counsel for the appellant in Sitaram (supra) was also a matter in which accused-appellant was convicted for offence under Section 304-II and sentenced to undergo rigorous imprisonment for 5 years with a fine of Rs.1000/-. This Court considering the fact that the accused-appellant had already suffered imprisonment of one year, three months and seven days directed him to be enlarged on probation and pay a sum of Rs.5,000/- as compensation to the widow of the deceased. 8 In Kuldeep Sign Vs. State of Haryana : AIR 1996 (SC) 2988 also the accused-appellant was convicted for offence under Section 304-II and sentenced to undergo rigorous imprisonment for four years with a fine of Rs.5000/-, the Supreme Court while maintaining the conviction reduced the sentence to the period already undergone by the accused-appellant as he had already served imprisonment of two years. In Venkatesh Vs. State of Tamil Nadu : Criminal Law Journal 1993 Vol.99, 61, the accused-appellant was convicted for offence under Section 304-II and was sentenced to undergo rigorous imprisonment for five years and a fine of Rs.3,000/-. The Supreme Court taking note of the fact that the accused-appellant after being released on bail tried to commit suicide and he realised his mistake; the accused-appellant was a young graduate; he hails from a very respectable family, he had no criminal antecedents; he committed the offence in the heat of the moment and finally that he had already remained in jail for about 7 months and 5 days out of the sentence of 5 years, directed that the sentence originally awarded be substituted by the period already undergone by enhancing the fine of Rs.3000/- to Rs.1,00,000/- and directed that the same be paid to the widow of the deceased. 9 In the present case, the period of the sentence that has been awarded is only two years and the substantive part of the sentence i.e. nine months and ten days has already been served by the accused-appellant. The accused- appellant was 22 years of age when the incident took place and now 25 more years have gone by then. He is now 46 years of age and well settled in the life. In totality of the circumstances, ends of justice would be met if the sentence of two years awarded to the accused-appellant is reduced for a period already undergone by him but at the same time the amount of fine Rs.200/- is enhanced to Rs.5,000/-. It is accordingly ordered. If the appellant fails to make payment of the enhanced amount of the fine then he shall have to undergo remaining sentence. However, the amount of fine deposited by the appellant shall be paid to the widow of the deceased by the trial Court. In the result, this criminal appeal is accordingly allowed in part. (MOHAMMAD RAFIQ)J. A.Arora/-