DR.DHANANJAYA Y.CHANDRACHUD, J. - (1.) This appeal arises from a judgment of a Division Bench of the High Court of Judicature for Rajasthan dated 13 August 2008. The HighCourt, while allowing the appeal filed by the respondent, convicted him under Section304 Part-II of the Indian Penal Code ('Penal Code') instead of Section 302. The HighCourt sentenced the respondent to the period which was already undergone, stated tohave been approximately five years and five months. The State is in appeal against thedecision.
(2.) A First Information Report was lodged by Satya Narayan Swami (PW-2) at Singhana(Rajasthan), that at about 6.30 p.m. on 27 February 2003, the deceased-Ram KumwarSwami - was proceeding for some work at a chakki. While he was passing by the handpump near the house of Sriram Swami, three persons - Rajesh, Jagdish and Leela Ram(the respondent herein) attacked the deceased and caused serious injuries to him. Thecase of the prosecution is that the respondent inflicted an axe injury on the skull of thedeceased which was the cause of death. Rajesh, Jagdish and the respondent were triedfor offences under Sections 341, 323, 336 and 302, read with Section 34 of the PenalCode. The case of the prosecution rested principally on the evidence of PW-1 BasantiDevi, the complainant PW-2 Satya Narayan Swami, PW-3 Nathu Ram and PW-4 GyarsiLal. PW-1, PW-2, PW-3 and PW-4 were all eye-witnesses to the incident. PW-4 is also aninjured witness.
(3.) The cause of death, as deposed to by PW-5 Dr. Hari Singh Gothwal, was the injurywhich was sustained on the skull by the deceased. While conducting the post-mortem,PW-5 observed the following injury on the body of the deceased: "Injury No.1 :- Crush injury 10 cm x 0.5 cm x depth of bone in the middle of the skull. The left eye was closed as an impact of this injury. The injury was causedwith the help of sharp edged weapon. The injury was caused within the duration ofsix hours." ;