1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR D.B. Criminal Appeal No. 70/1987 Shankar Versus State of Rajasthan Date of Judgment: 26.03.2010 Hon'ble Mr. Narendra Kumar Jain,J. Hon'ble Mrs. Meena V. Gomber,J. Mr. Syed Manzoor Ali, for the appellant. Mr. Piyush Kumar, Public Prosecutor, for the State. REPORTABLE BY THE COURT:(Per Hon'ble N.K. Jain, J.) Heard learned counsel for the parties. 2. The accused appellant Shankar S/o Nathu has preferred this appeal under Section 374 Cr.P.C. challenging his conviction and sentence awarded by Sessions Judge, Tonk in Case No. 29/1986 vide judgment and order dated 30.01.1987 whereby the appellant was convicted under Section 302 IPC to undergo imprisonment for life and fine of Rs. 200 and in default to further undergo one month's 2 simple imprisonment and under Sections 447 and 323 IPC to three months' rigorous imprisonment and fine of Rs. 50/- in each offence and in default to further undergo 15 days’ simple imprisonment. 3. Briefly stated the facts of the case are that a Parcha Bayan, Exhibit P-1 of injured Isar, P.W.1, was recorded on 28.03.1986 at about 8.00 P.M. at Hospital, Tonk by ASI, Police Station Kotwali, Tonk wherein it was alleged by him that on that day at about 2.00 P.M. while his wife, Smt. Kamla and daughter Santra were doing work in their field, the accused Shankar, husband of his daughter Santra, came armed with lathi. On asking about the reason of his coming, Shankar stated that he had come to take his wife Santra and that he should send her with him. Thereupon, Isar, on asking as to why he was angry and he will bring his daughter Santra to her matrimonial home, caught hold of his daughter’s hand and it was at that time that Shankar inflicted two lathi blows on his back and when he, in order to save, ran, Shankar gave lathi blows to Santra and when his wife (deceased) Smt. Kamla intercepted to rescue Santra, he gave two 3 lathi blows on her head whereupon she fell on the ground. Isar and his daughter Santra took her to the Hospital. On the basis of this Parcha Bayan, FIR No. 56/1986 was registered at Police Station Kotwali, Tonk under Sections 341, 447, 323, 307 IPC. Smt. Kamla succumbed to the injuries and her post mortem examination was conducted in the morning of 29th March, 1986. Thereupon Section 307 IPC was converted into an offence under Section 302 IPC. After completion of investigation, the Police filed charge sheet against accused Shankar alongwith two others namely Chothu S/o Ura and Peeru S/o Bhura in the Court of Chief Judicial Magistrate who committed the case for trial to the Court of Sessions Judge, Tonk. The trial court framed charges against accused appellant Shankar under Section 302, 447 and 323 IPC whereas other two accused persons named Chothu and Peeru were charged with the offences under Sections 323 read with Section 109 IPC. They denied charges and claimed trial. In order to prove its case, the prosecution examined 8 witnesses and produced documentary evidence in the form of Exhibit P-1 to Exhibit P-23. Thereafter statements of the accused persons 4 under Section 313 Cr.P.C. were recorded wherein they pleaded innocence but did not lead any defence evidence. Learned trial court, after considering the submissions of both the parties and examining the record, recorded a finding of acquittal of Sarvashri Chothu and Peeru. However, the appellant was convicted and sentenced for the offences as mentioned above. 4. Only submission of learned counsel for the appellant is that there are two eye witnesses in the present case, P.W. 1 Isar and P.w.2 Santra and from their statements it is clear that the incident took place all of sudden and that there was no intention or premeditation of mind to inflict any injury by the accused on the person of the deceased. From the prosecution case, it is an admitted fact that the deceased Smt. Kamla came for rescue of her daughter Santra and when she intervened, lathi blows were given by the accused on her person. Therefore, even from the admitted facts, the present case does not go beyond the scope of Section 304 Part II IPC. 5. He referred to the statements of P.w.1 Isar and P.W.2 Santra and contended 5 that while acquitting the co-accused persons Chothu and Perru, the learned trial court disbelieved the testimony of both the witnesses but by placing reliance on such testimony for accused Shankar the trial court committed an illegality in convicting the accused appellant under Section 302 IPC. The accused appellant, therefore, deserves to be acquitted and if at all some case was made out, it could not be beyond Section 304 Part II IPC. 6. Learned counsel for the appellant further contended that admittedly, the age of the appellant, as per Exhibit P-19, memo of arrest, was 20 years. He also referred to Exhibit D-3, Injury Report of accused Shankar as well as Exhibit D-4, Medical Report in respect of his age estimation and contended that as per Exhibit D-3, the age of the accused was 16 years and as per Medical Report, Exhibit D-4, the age of the appellant was in between 17 to 19 years. He contended that as per Section 360 of Code of Criminal Procedure, the accused appellant is entitled for the benefit of probation, as he was below 21 years of age at the time of incident. He also contended that it is a fit case for 6 granting the benefit of probation because the incident took place in the year 1986 when accused was less than 21 years of age and the age of case is also 24 years. During the pendency of this appeal he has been allowed to remain on bail and has already settled in his life in the village and has also not committed any offence during the pendency of this appeal. In support of his submissions, learned counsel for the appellant relied upon case titled State of Karnataka Vs. Muddappa, reported in (1999) 5 SCC 732 wherein the High Court of Karnataka while acquitting the accused from the offence under Section 302 IPC, convicted him under Section 304 Part II IPC and granted the benefit of probation. On the appeal filed by the State, Hon'ble Apex Court dismissed the appeal and upheld the order of High Court of Karnataka granting probation. 7. Learned counsel for the appellant also contended that the appellant has already remained in jail for about 10 months and 9 days from 02.04.1986 to 11.02.1987 and no minimum sentence of imprisonment has been prescribed under Section 304 Part II IPC. He, therefore, contended that either the 7 benefit of probation be granted to the appellant under Section 360 Cr.P.C. or he may be awarded sentence of imprisonment of a period already undergone by him. 8. Learned Public Prosecutor contended that in the facts and circumstances of the present case, learned trial court was justified in convicting the accused appellant under Section 302 IPC. However, during the course of arguments and while reading the statements of P.W.1 Isar and P.W.2 Santra, he was convinced that it was a case wherein there was no premeditation of mind of the accused to commit any offence of Section 302 IPC and that the incident took place at the spur of moment. So far as grant of benefit of probation or awarding of sentence of imprisonment already undergone by the appellant is concerned, he contended that it is the discretion of the Court and whatever suitable order, this Court thinks fit and proper in the administration of justice, may be passed. 9. We have considered the submissions of learned counsel for the parties and minutely scanned the impugned judgment as well as record of the trial court. 8 10. There is no dispute that accused Shankar is son-in-law of P.W.1 Isar and deceased Smt. Kamla and the husband of P.W.2 Santra. Even from the contents of Exhibit P- 1, Parcha Bayan, it is clear that when altercation was going on between Shankar and Isar with regard to sending of his wife Santra with him, the accused inflicted lathi blows on the person of P.W.1 Isar as well as on deceased Smt. Kamla. P.W.1 Isar, in his statement, has corroborated the version mentioned in Exhibit P-1, Parcha Bayan. P.W.2 Santra has also corroborated the fact that when her mother came for her rescue, the accused inflicted lathi blow on her person. There are only two eye witnesses namely P.W.1 Isar and P.W.2 Santra and from their statements it is clear beyond all reasonable doubt, that the incident took place all of sudden and that there was no intention or premeditation of mind of the accused to kill Smt. Kamla. 11. As per statement of P.W.3 Dr. Ratan Lal Bansiwal, it is clear that there were two injuries on the person of Isar. His Injury Report, Exhibit P-9, reads as under: 9 “1. Complaint of pain right and left throaic region of back. 2. Contusion with swelling 1”x1” on right and left throaic region of back.” 12. Both the injuries mentioned above show that injury No. 1 is only pain and injury No. 2 is contusion and are simple in nature caused by blunt object. 13. Three injuries were found on the person of deceased Kamla as shown in Injury Report, Exhibit P-11, which reads as under: “1. Lacerated wound 3½”x3/4”x3/4” right parietal reigon. 2. Abrasion 1/2” in size medial aspect of right thigh. 3. Abrasion 1/2” in size on left wrist.” 14. Injury No. 1 found to be grievous, caused by blunt object and Nos. 2 and 3 are simple abrasions. However, P.W.3 Dr. Ratanlal Bansiwal has opined that the cause of death, in this case, was injury on the head and subdural Hemorrhage and that the injuries were sufficient to cause death in the ordinary course of nature. 15. It is relevant to mention that while dealing with the case of co-accused persons namely Chothu and Peeru, learned Sessions 10 Judge observed that the statements of P.W.1 Isar and P.W.2 Santra are contradictory with regard to allegations against them and the statements of both these witnesses in part were disbelieved and co-accused namely Chothu and Peeru were acquitted by the trial court. Said findings recorded by the learned trial court have not been challenged by the State. 16. We have also examined the statements of P.W.1 Isar and P.W.2 Santra and we find that Isar has not explained the injuries on the person of accused as shown in Exhibit D- 3, proved by P.W.3 Dr. Ratan Lal Bansiwal, who found two injuries out of which one lacerated wound on parietal region of scalp. As per defence version, Isar inflicted injury first on the appellant and it was thereafter that he gave lathi blows to Isar as well as the deceased. It appears that P.w.1 and P.W. 2 were not come out with clean hands and have not explained about injuries sustained by the appellant. However, learned counsel for the appellant did not claim the appellant to be having right of private defence and rightly so and confined his arguments that there was no intention or premeditation of mind to kill Smt. Kamla and even on admitted facts of the 11 prosecution, the case could not travel beyond the scope of Section 304 Part II IPC. 17. We have examined the findings of learned trial court in the light of submissions of learned counsel for the parties and also minutely scanned the statements of P.W.1 Isar, P.w.2 Santra and P.W.3 Dr. Ratanlal Bansiwal and the Injury Reports of P.W. 1 and P.W.2 and also of the appellant and are satisfied that there is force in the submission of learned counsel for the appellant and we are of the view that in the facts and circumstances of the case, the learned trial court committed an illegality in convicting the accused appellant for the offence under Section 302 IPC. On the basis of the facts and circumstances of the case we are of the firm view that even if the incident took place at the spur of moment, then also it cannot be denied that while giving lathi blows by a young matured boy on the head of an old lady, the appellant had knowledge that the injury inflicted by him on the person of the deceased was likely to cause death. Therefore, even if there was no intention or premeditation of mind to kill Smt. Kamla by 12 accused, but it is established from the evidence that the appellant had knowledge that injury inflicted by him on the person of the deceased was likely to cause death of Smt. Kamla. In these circumstances, we are of the considered view that the case of appellant falls within the provisions of Section 304 Part II IPC. 18. Now, the question for our consideration is whether the appellant should be granted benefit of probation under Section 360 Cr.P.C. as he was admittedly below 21 years of age on the date of incident or he should be awarded lesser sentence of imprisonment i.e. sentence of imprisonment of 10 months and 9 days already undergone by him. 19. Hon’ble Apex Court in the case of State of Karnataka Vs. Muddappa(supra) affirmed the view of the Karnataka High Court whereby the accused was granted benefit of Probation under Section 360 Cr.P.C. by applying the provisions of Section 4 of Probation of Offenders Act, 1958 under Section 304 Part II IPC. Para 1 to 3 of the judgment(supra) are reproduced as under: “1. This appeal is directed 13 against Accused 3 alone who was convicted by the learned Sessions Judge under Section 302 IPC. But, on appeal, the High Court set aside the conviction under Section 302 IPC and instead, convicted him under Section 304 Part II IPC. For such conviction, the High Court also examined the circumstances under which the blow was inflicted by the accused on the deceased and, on consideration of the provisions of Section 360 of the Code of Criminal Procedure as well as under Section 4 of the Probation of Offenders Act, 1958, the High Court instead of sentencing him, directed to release the accused on admonition. 2. The learned counsel for the appellant is not in a position to assail the acquittal of the accused under Section 302 IPC, but he vehemently contends that the Court did not bear in mind germane considerations for releasing the accused on probation after convicting him under Section 304 Part II IPC. Whether the benefit of the Probation of Offenders Act could be extended in any particular case depends upon the circumstances of that case. Admittedly, there is no statutory bar for application of the Act to an offence under Section 304 Part II where the maximum punishment is neither death nor imprisonment for life. In that view of the matter and on examining the impugned judgment of the High Court, we find that the Court did consider the relevant material and then came to the conclusion that the accused should be released on probation by applying the provisions of Section 4 of the Probation of 14 Offenders Act. We see no infirmity with that order to be interfered with by this Court after this length of time, more so when nothing has been pointed as to whether the accused has, in any way, violated the terms and conditions of allowing him on probation. 3. We, accordingly, dismiss this appeal. Bail bonds of the respondent stand discharged.” 20. This Court in State of Rajasthan Vs. Harlal, D.B. Criminal Appeal No. 358/1982 and Harlal Vs. State of Rajasthan, D.B. Criminal Appeal No. 9/1982 considering various judgments of Hon’ble Apex Court including the cases of Pooran Singh Vs. State of U.P. reported in AIR 1981 SC 1638; Kuldeep Singh Vs. State of Haryana reported in 1996 Criminal Law Journal 1884(SC); State of Punjab Vs. Mohinder Singh reported in 1993 Cri.L.J. 3903(SC) wherein Hon’ble Apex Court considering the circumstances of each case reduced the sentence of imprisonment to 18½ months in Pooran Singh’s case; to 2 years in Kuldeep Singh’s case and to 2½ months in Mohinder Singh’s case under Section 304 Part II IPC. 21. In the case of Md. Monir Alam Vs. State of Rajasthan reported in AIR 2010 SC 15 698 Hon’ble Apex court even granted the benefit of probation under Section 4 of the Probation of Offenders Act, 1958 under Section 304 Part II IPC. 22. This Court in State of Rajasthan Vs. Harlal(Supra), after considering the above referred judgments of the Hon’ble Apex Court reduced the sentence of imprisonment of accused to a period of 15½ months already undergone by him under Section 304 Part II IPC. Para 15 of the judgment(supra) is reproduced as under: “15. 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 1980 and the matter is 30 years old and the accused appellant is on bail. He was arrested on 3rd November, 1980 and was convicted by the trial court on 9th December, 1981. He was not released on bail during trial of the case but after the appeal was filed, this Court vide its order dated 18th February, 1982 granted bail to him. From the above it is clear that he has already remained in jail for about 15½ months. The accused was admittedly around 21½ years of age at the time of the occurrence. In these circumstances, in particular 16 because of lapse of three decades from the date of occurrence and the age of the accused at that time, we are of the view that ends of justice will meet in case the sentence of imprisonment awarded by the trial court be reduced to the period of imprisonment already undergone by the accused.” 23. The appellant in the present case was arrested on 02.04.1986 and remained in police custody for some time and thereafter in judicial custody till 11.02.1987, therefore, he has already undergone the sentence of imprisonment for 10 months and 9 days and the matter is 24 years old as incident took place in the year 1986. The appellant was also granted indulgence of bail by this Court during the pendency of this appeal. Looking to all the facts and circumstances of the case as narrated above, we are of the view that ends of justice will meet, in case the appellant is awarded a sentence of imprisonment of 10 months and 9 days already undergone by him under Section 304 Part II IPC. 24. Consequently, the appeal is partly allowed. The conviction and sentence of the appellant Shankar S/o Nathu under Section 302 17 IPC is set aside and he is convicted under Section 304 Part II IPC to a sentence of imprisonment already undergone by him. The conviction and sentence of the appellant under Sections 447 and 323 IPC is maintained. The appellant has already undergone his sentence awarded, therefore, he need not surrender and his bail bonds are cancelled. (Meena V. Gomber),J. (Narendra Kumar Jain),J. Manoj.