P.N.Goel - (1.) IN this appeal by Lachhia alias Laxmi Prasad aged about 31 years, son of Din Dayal, resident of village Andwara, police station Kulpahar, district Hamirpur against the order dated 13-11-1976 passed by the Sessions Judge, Hamirpur convicting and sentencing him under section 304 Part I IPC to 5 years R. I., the learned counsel for the appellant pressed 2 points. " (1) The offence fell within Part ii of section 304 IPC and not within Part I, and (2) Sentence of 5 years R. I. was severe.
(2.) FACTS of the case are more or less undisputed. The occurrence took place on 8-6-1975 at about 8 A. M. near the house of Ramai Barber in the village of the appellant. The appellant assaulted Baijnath, elder brother of Tulsi Das (PW 1) with a lathi. On account of the injuries sustained Baijnath died at 12.20 hours when he was being taken from the police station which is 9 miles away towards the hospital. First Information Report of the occurrence was lodged by Tulsi Das at 11 A. M. He did not see the occurrence. FACTS of the occurrence were told to him by Mahadeo and Dhanaiya (PWs 2 and 3). Mahadeo did not support the prosecution version. He was declared hostile by the prosecution. Dhanaiya faithfully supported the version of the prosecution. He used to cultivate the fields of Tulsi Das on Batai. He is an interested person in the sense that he had connections with the family of the deceassd. But he was not inimical to the appellant or members of his family from before the occurrence. There was also no enmity between the appellant and his family with the deceased or his family. The deceased had a monkey. In the morning on the date of occurrence his monkey bit the mother of the appellant. She gave abuses to Baijnath, who was sitting nearby. Baijnath in reply gave abuses to her The case of the prosecution is that the appellant and his father Din Dayal came up, giving abuses to Baijnath. Baijnath thereupon gave abuses to him. Din Dayal caught the hands of Baijnath. Lachhia gave a lathi blow on the head of Baijnath who fell down. Lachhia then gave 3-4 lathi blows to Baijnath. According to the appellant, he [reached the scene of occurrence on hearing noise, that he asked Baijnath as to why he allowed his monkey to bit his mother, that Baijnath gave 5-6 lathi blows to him, that he stopped the attacks of Baijnath on his lathi, that he wielded a lathi in self defence and that thereupon Baijnath fell down on stones.
(3.) THE appellant did not receive any injury at the hands of the deceased. THE deceased was aged about (sic) years. It is rather surprising that the deceased could not cause any injury to the appellant. Baijnath had served out a sentence of 7 years imprisonment for arson and marpit, 2 years before the occurrence. He was of quarrelsome nature. His monkey had bitten other women and children (vide statement of Tulsi Das). Taking into consideration such a character of the deceased, it has to be repeated again that it is strange that he wielded lathi 5 or 6 times upon the appellant and could not cause a single injury to him. Therefore, statement of the appellant in this respect cannot be believed.;