SAXENA, J. - (1.) THIS appeal filed under section 374 (2) Cr. P. C. has been directed against the judgment dated 31. 7. 1981 passed by learned Additional Sessions Judge, Nagaur, Camp Deedwana, whereby he found the appellant guilty of offence punishable under section 324 I. P. C. and sentenced him to four month's simple imprisonment and a fine of Rs. 100/- and in default to further undergo 15 days simple imprisonment.
(2.) SUCCINCTLY stated the prosecution case is that on 2. 4. 1978, Bhagwati Prasad Pump Driver-IH, P. H. E. D. Ladnu was on duty from 4 P. M. to 12 O'clock mid-night, at tube well No. L-3, that after finishing his duty he went to deposit the log-book and keys at the main Pump House, but did not find any person to receive those articles. He reported the matter to the A. En. , who asked him to search at Pump No. L-2. Thereupon Bhagwati Prasad climbed over Clear Water Reservoir and from there saw appellant Babu Singh alongwith Hari Ram, Vachan Singh and others taking alcoholic drinks. It is alleged that those persons threw stones towards Bhagwati Prasad, but he escaped, and that thereupon appellant Babu Singh having a bottle of wine came to Bhagwati Prasad and assaulted him. He also inflicted a blow on the neck of Bhagwati Prasad by that bottle, which had broken and caused injury around his neck. Bhgwati Prasad was immediately taken to Seth Ganpat Rai Saravgi Hospital, Ladnu at about 11. 40 P. M. where he was examined and treated by Dr. R. S. Choudhary, Deputy CM&ho (Health), Churu. The doctor found a lacerated wound on the left side of the neck of Bhagwati Prasad. Bhagwati Prasad was admitted in the Hospital and later on due to some intestinal complications was referred to Sawai Man Singh Hospital, Jaipur, where his ailment was diagonised as intestinal obstruction with peripheral circulatory failure. He died on 20. 4. 1978. It is alleged that Bhagawati Prasad had also submitted a complaint against the accused appellant Babu Singh & others on 3. 4. 1978 to the Executive Engineer, P. H. E. D. , Nagaur about the said incident. It appears that no police case was registered at that time. Thereafter, Bhagwati Prasad's father Shri Onkar Prasad submitted a report dated 30. 9. 1978 Ex. P. 5 to the Inspector General of Police (Raj.) Jaipur, whereupon on 11. 10. 1978 a case under section 302 I. P. C. was registered at Police Station, Ladnu. The S. H. O. after usual investigation submitted a charge-sheet against the appellant under section 304 I. P. C. before the Munsif & Judicial Magistrate, Deedwana, who in his turn committed the case to the learned Additional Sessions Judge, Nagaur. The appellant was charged for the offence under section 304 I. P. C. to which he pleaded not guilty and claimed trial. After conducting the trial, the learned Sessions Judge held that the prosecution had failed to prove that the appellant had inflicted such injuries to Bhagwati Prasad, which were likely to cause death in the ordinary course of nature and that he had not inflicted any injury on his stomach. He further held that the death of Bhagwati Prasad had occured due to internal intestinal obstruction, which was not a direct cause of the injury received by him on his neck. The learned Sessions Judge, therefore, acquitted the appellant for the offence under section 304 I. P. C, but found him guilty for voluntarily causing hurt on his neck by a broken glass bottle and convicted him for the offence punishable under section 324 I. P. C. and sentenced him in the manner detailed above. Hence this appeal. I have heard Shri S. R. Singhi the learned counsel for the appellant & Shri V. S. Choudhary, the learned Public Prosecutor for the State and carefully perused the record of the lower court. The first point urged by Shri S. R. Singhi is that the alleged occurrence had taken place all of a sudden, that the appellant and the deceased were colleagues working in the same department and had no previous enmity, that the incident took place on 2. 4. 1978 and that a period of 131/2 years had now elapsed. He submitted that the appellant has small children and a meagre income, that he has already suffered the agony of prosecution and has been under suspension for the last so many years. He has, therefore, prayed that the benefit of provisions of section 360 Cr. P. C. or the Probation of Offenders Act be given to him. Shri V. S. Choudhary has strenuously opposed this submission on the ground that no sufficient reasons exist for releasing the appellant on probation. I have given my thoughtful consideration to the rival contentions. Having regard to the peculiar facts and circumstances of this case including the nature of offence, age, conduct and character of the appellant, I am of the considered opinion that it is not a fit case, wherein it is expedient to release him on probation of good conduct either under section 360 Cr. P. C. or under the provisions of Probation of Offenders Act, 1958.
(3.) SHRI Singhi then argued that the appellant has been under detention from 18. 8. 1979 to 30. 8. 1979, that he has been under suspension for the last so many years and undergone unbearable strech and strain in facing this trial for last 13 1/2 years, and therefore, the sentence be reduced to the period to which he has been under detention. The learned Public Prosecutor has no serious objection to it. The learned Sessions Judge has held that the appellant and the deceased Bhagwati Prasad had no previous enmity and that the incident had taken place all of a sudden. It stands well established from the evidence recorded in this case that when Bhagwati Prasad saw appellant and others taking alcoholic drinks during duty hours in the night, the appellant got enraged and inflicted a blow on the neck of Bhagwati Prasad by a bottle, which was held by him in his hand and which had broken. The death of Bhagwati Prasad had no direct nexus with the injury sustained by him on the neck. The appellant has been facing this trial for last more than 13 1/2 years, and is under suspension. He had also been under detention from 18. 8. 1979 to 30. 8. 1979 i. e. for a period of 13 days. If now he is again sent to the jail, he may loose his service, which may adversely affect the livelihood of his innocent family members. He has already suffered the agony of protracted prosecution and sustained financial loss. The offence committed by the appellant also does not affect the moral turpitude. Hence keeping in view all these mitigating circumstances, I am of the considered opinion that a sentence for the period for which the appellant has been under detention in this case will be appropriate and adequate alongwith an enhanced fine of rupees one thousand. The up-shot of above discussion is that I partly accept this appeal and while maintaining the conviction of the appellant for the offence under section 324,1. P. C. , I reduce his sentence from four months simple imprisonment to the period he has already been in detention in this case but enhance his fine from rupees one hundred to rupees one thousand. In default of payment of fine, he will further undergo two months simple imprisonment. The fine, if deposited by the appellant shall be paid to the legal representatives of late Shri Bhagwati Prasad. The appellant is allowed two months time from today to deposit the fine in the trial court. ;