KASLIWAL, J. - (1.) LEARNED counsel for the appellant submitted that the main appeal itself be decided at this staged she wanted to argue only on the point that on the admitted facts of the case at the most of an offence under Section 304 Part two I. P. C. can only be made out and not under Section 302 IPC.
(2.) LEARNED Public Prosecutor, in the circumstances also agreed to hear the main appeal and decide the same on merits. It would not be necessary to give detailed facts of the case as learned counsel for accused appellant frankly conceded that the finding of the trial Court as regards the causing of death of Sharad Kumar by accused Munna Sharma, is correct and is not assailed by him. We have also gone through the record and perused the judgment of the learned Sessions Judge, Jaipur City and we are also convinced that the finding of the learned Sessions Judge that accused caused the death of Sharad Kumar by inflicting injuries, is correct. The prosecution story in brief is that one Bhanwar Lal had let out a room in the ground floor to Ashok Kumar of Ujjain @ Rs. 70/- p. m. Sharad Kumar deceased had also started living with Ashok Kumar in the aforesaid room. After sometime Ashok Kumar left the premises and Sharad Kumar continued to live there. Adjacent to the aforesaid room Munna accused was also occupying premises on rent of Babu Modi. The prosecution case further is that on the fateful night at about 10-30 p. m. when Bhanwar Lal was returning back after closing his shop and was going up stairs then he heared a loud voice of Sharad Kumar and Munna inside the room of Sharad Kumar. Door of the room was opened and the light was on. In the morning when he was going to the latrine & was going to wash his hands then he peeped inside the room of Sharad Kumar and saw that Sharad Kumar was lying flat on the ground and blood was spreading on all sides. Thereafter he reported the matter to Bhagwan Sahai. Then he himself, Bhagwan Sahai and Ganshyam a Chowkidar of Dharamshala went to the house of Munna which was found closed. Thereafter they brought Nand Kishore and went in search of Munna. At about 8. 30 a. m. Munna was found near Khura Kanwatiyan and when Munna was interrogated he became dumb. There were injuries on the hands and arms of Munna At the asking of Bhanwar Lal and other persons the accused told that he had a quarrel with Sharad Kumar and as Sharad Kumar had inflicted injuries on him as such he also killed him and this was a mistake committed by him. Thereafter the matter was reported to the police station and the police arrested the accused Munna and recovered clothes and scissor at the instance of the accused under section 27 of the Evidence Act. The police after usual investigation filed a challan in the court of Judicial Magistrate No. I, Jaipur who after usual proceedings committed the case for trial to the Sessions Court. The prosecution in support of its case examined 15 witnesses and statement of accused was recorded under Section 313 Cr. P. C. and thereafter the accused also examined two witnesses in defence. Learned trial Court after hearing the arguments in the case found that there was circumstantial evidence of last seen of the accused with the deceased. There was evidence of Shyam Sunder and Satya Narain meeting the accused in the fateful night. There was also evidence of the accused having gone to Ashok Kumar in the night at 10'o clock & having slept in the room and also the evidence of extra judicial confession. Learned Sessions Judge also found injuries on the accused himself and also human blood on the clothes. Learned trial Court after taking in to consideration all the circumstances arrived at a finding that an altercation took place between Shard Kumar & the accused in which Sharad Kumar first thew a bottle of glass over the accused and on this account the accused inflicted number of injuries on the deceased by a scissor. Learned Sessions Judge in these circumstances, found the accused guilty under section 302 IPC and sentenced him to imprisonment for life. It was contended by Mr. Gupta, learned counsel for the accused-appellant that even if the entire circumstances led against the accused are believed, there is a clear finding of the learned Sessions Judge that the deceased first inflicted injuries by a bottle of glass on the accused and thereafter the accused without any premeditation and without any intention to cause death inflicted injuries on the deceased by a scissor as a retaliation. It is also contended that PW 12 Dr. Mahesh Chaturvedi had examined injuries of the accused and Ex. P 30 is injury report according to which there were 12 injuries on the body of the accused. It is contended that out of the aforesaid 12 injuries 10 injuries were incised wounds and the others were abrasions. It is contended that in the circumstances the accused had no intention to cause death and injuries were inflicted without pre meditation in a sudden fight in the heat of passion, upon a sudden quarrel. The accused as such should not have been punished under section 302 I. P. C. As regards sentence it is contended that the accused had already remained in jail for about 2 years and it would serve the end of justice if the accused awarded a sentence of the period already undergone by him.
(3.) WE have given our careful consideration to the facts and circumstances of the case and the arguments advanced by learned counsel for the accused appellant. The case is based on the circumstantial evidence and it is proved beyond reasonable doubt that the accused appellant inflicted injuries on deceased Sharad Kumar which caused his death. There is finding of the Sessions Judge himself that injuries were first inflicted by Sharad Kumar on the accused by a bottle of glass. It has also come in evidence on record of PW 12 Dr. Mahesh Chaturvedi that the accused had 10 incised wounds and abrasions. There is nothing on record to show that the accused had any previous enmity for inflicting injuries on the deceased or any other grievance to cause the death of Sharad Kumar. Thus, it is proved on evidence that the incident took place without premeditation and the accused inflicted injuries by a scissor which was lying on the spot in sudden fight in the heat of passion. The nature of injuries found on the body of the deceased also show that the accused had no intention to cause death nor had acted in a cruel or unusual manner. Thus, taking in view the entire facts and circumstances of the case and the nature of the injuries found on the body of the accused as well on the deceased Sharad Kumar we are of the view that the accused appellant committed an offence of culpable homicide not amounting to murder and is punishable under part two of Section 304 I. P. C. At the time of recording of statement under Section 313 Cr. P. C. the accused had stated his age as 21 years. He is a young man and in our opinion the sentence of imprisonment already undergone by him would serve the ends of justice. In the result, we partly allow this appeal, set aside the conviction and sentence of the accused under section 302 I. P. C. , and instead of convict him under section 304 part two I. P. C. and award sentence of imprisonment of period already undergone by him. The accused appellant may be released forthwith if he is not required in any other case. . ;