A K.MATHUR,J. - (1.) THIS is appeal against the judgment given by the learned Additional Sessions Judge Udaipur dated 30th July, 1979 where by the learned Judge has convicted accused Rajkumar Under Section 304, Part -II, IPC and sentenced him to three years' R.I. and a fine of Rs. 500/ -. in default of payment of fine to further undergo simple imprisonment for a period of six months. He also convicted accused Shrikishan and gave him the benefit of probation Under Section 4 of the Probation of Offenders Act and released him on furnishing a bond in the sum of Rs. 3000/ - with one surety in the like amount with a stipulation to appear and receive sentence when ever called upon during the period of years along with a further stipulation that during the intervening period be shall keep peace and be of good behaviour, in the event of breach of condition of bond, he shall appear before the Court and receive his sentence of rigorious imprisonment for a period of 3 years and a fine of Rs. 1000/ - in default of payment of fine to further undergo simple imprisonment for six months.
(2.) THE brief fact giving rise to this appeal are that on 9th October, 1978 deceased Kanhaiyalal accompanied by another Kanhaiyalal, Dharam -narain, Ashok Kumar and Anil Lodha along with children and ladies of their family bad gone from Udaipur to village temple of Awri Mata. They have travelled by a truck belonging to Ashok Kumar after performing the prayer at temple. The party got ready to return back. They were approched by the accused persons and one Ramchandra. These three accused persons requested for a lift upto Udaipur after some hesitation the accused was given lift in the truck. On reaching the village Rama the passengers were asked to get down. The truck was to be filled in sand. During the interval demanded fare from the accused persons but accused refused to pay the fare. Thereafter the Lot words were exchanged. Rajkumar is said to have whiped out knife and pointed it to Kanhaiyalal. Meanwhile other persons intervened and matter was bushed up. The accused persons were how ever, not allowed to board the truck. The truck thereafter arrived at Udaipur. The truck when reached at Udaipur the passengers were getting down in front of Ramchandra Chopra Dharamshala. Meanwhile accused Rajkumar and Shrikishan accompanied by Ramchandra appeared on the scene. Accused Ramchandra, Rajkumar and Shrikishan jumped on the deceased Kanhaiyalal and Rajkumar is said to have given a first blow on the near portion of the neck of Kanhaiyalal where as Shrikishan is reported to have hit deceased with fist on his chin. After receiving these two fist blows deceased fell down on the ground and accused ran away from that place. Deceased Kanhaiyalal became unconscious and he was immediately rushed to the hospital Udaipur but on reaching there he was declared dead. A First Information Report was lodged by Dharam Narain at Police Station Surajpol and the police registered a case Under Section 302 IPC and investigation was taken up. Police after close of the investigation filed a challan against the accused person Under Section 302 read with Section 34 IPC. The case was ultimately committed to the court of Sessions for the trial. How ever after hearing the arguments accused Ramchandra was discharged and how ever, accused -appellants were charged Under Section 304, Part -II, IPC. The learned Sessions Judge after examining the statement of PW 1 Kanhaiyalal PW 2 Vishnu Kumar PW 3 Rakeshlal found accused appellants guilty and convicted as aforesaid. Hence the present appeal. Mr. Mahesh Bishnoi appearing for the accused -appellant submitted that he does not challenge the finding of the learned Sessions Judge but in the present situation the offence cannot travel beyond Section 323 IPC. In this connection learned Counsel has invited my attention to the statement of PW 6 Dr. B.P. Gupta Dr. B.P. Gupta PW 6 has deposed that there was external injury on the body of the deceased. How ever, on account of a blow given on the back of the neck of the deceased which has caused a haemorrhage in the brain and as a result of this the deceased got a shock add he died. From this it appears that in fact both the accused never intended to cause any serious injury muchless the death. Only 2 fist blows were given one at the back of the neck and another on the chin. In ordinary course of nature these injuries would have hardly left any mark. But on account of sheer misfortune that the blow caused haemorrhage in the brain and the deceased died to shock. In these circumstances, I am of the opinion that the offence cannot travel beyond Section 323 IPC.
(3.) IN the aforesaid circumstances, I convert the conviction of the accused appellants Under Section 304, Part -II, IPC to Section 323, IPC, So far as the accused Shrikishan is concerned, be has already been released on probation. The order of the learned Sessions Judge is upheld. The accused Rajkumar has remained behind the bars for more than 1/2 months. Therefore, he is sentenced to the sentence already undergone by him. But, I impose a fine on Rs. 1,000/ -. The accused appellant shall deposit the amount of fine of Rs. 1,000/ - within a period of 2 month from today failing which he will further undergo six months rigorous imprisonment.;