- (1.) This appeal has been filed by the accused-appellant against the judgment and order dated 30-10-1987 passed by the learned Sessions Judge. Dungarpur in Sessions Case No. 41/87 by which he convicted the accused-appellant for the offence under Section 304. Part-II in place of S. 302. IPC and S. 323. IPC and sentenced him in the following manner : Name of Convicted Sentence accused u/S. awarded appellant Shankar 304 Part-II. To undergo 4 years IPC RI and to pay a fine of Rs. 500/-, in default ol payment of line, to further undergo 5 months' RI 323, IPC To undergo one month RI Both the sentences were ordered to run concurrently.
(2.) It arises in the following circumstances: On 29-5-1987, PW 1 Mansaram lodged an oral report in the Police Station. Sadar. Dungarpur before PW-9 Jeetmal, SHO of that Police Station stating inter alia that his elder brother Shankar (accused-appellant) was living separately along with his wife and since the accused-appellant was not doing any job, his parents were not happy with him and his parents used to ask the accused-appellant to do some job and because of that, he was also angry with them and the accused-appellant used to tell that if his parents (PW8 Velaram, father of the accused appellant and Varju Devi, mother of the accused-appellant (hereinafter referred to as the deceased)) compel him to do some job, he would kill them. It was further stated in the report by PW-1 Mansaram that on 23-5-1987 the accused-appellant went to the house of his parents and started abusing them and asked them to come out from the house and thereupon, deceased and PW-8 Velaram. father of the accused-appellant, came out from the house and upon this, the accused-appellant started throwing stones on them and one of the stones, which were being thrown by the accused-appellant, struck on the head of the deceased, as a result of which, blood came out profusely and her voice went off and PW-8 Velaram also received injuries. It was further stated in the report by PW-1 Mansaram that PW-2 Deva PW-5 Kamla, sister of the accused appellant and oilier witnesses intervened in the mailer and thereafter, deceased was taken to the Dungarpur hospital in A truck where she was got admitted. It was further stared in the report by PW- 1 Mansaram that sinee her mother was not in a position to speak and her head was broken, as a result of throwing stones by the accused-appellant, therefore, he was lodging the report. On this report, police registered the ease initially under Section 307, IPC and chalked out regular FIR Ex. P/1 and started investigation. Before the report was lodged by PW-1 Mansaram. deceased was got medically examined by PW-7 Dr. Balmukund and her injury report is Ex. P/9 and her X-ray report is Ex. P/10, which shows two fractures on her head. The injury report of PW-8 Velaram is Ex. P/11. It may be stated here that deceased died in the hospital on 31-5-1987 and thereafter, post-mortem of the dead body of the deceased was got conducted by PW-7 Dr. Balmukund and the post mortem report is Ex. P/12, where it was opined that the cause of her death was increased intracranial tension as a result of head injury. After usual investigation, police submitted challan for the offence under Section 302, IPC against the accused-appellant in the Court of Magistrate, from where the case was committed to the Court of Session. On 10-7-1987, the learned Sessions Judge, Dungarpur framed charges for the offence under Sections 302 and 323, IPC against the accused-appellant. The charges were read over and explained to the accused-appellant, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 9 witnesses and got exhibited some documents. There after, statement of the accused-appellant under Section 313, Cr.P.C. was recorded. In defence, one witness was produced by the accused-appellant. After conclusion of trial, the learned Sessions Judge, Dungarpur through his judgment and order dated 30-10-1987 convicted the accused-appellant for the offence under Section 304, Part 11. IPC in place of 302, IPC and 323, IPC and sentenced him in the manner as indicated above holding inter alia : 1. That the accused-appellant caused injuries to PW-8 Velaram voluntarily. 2. That the deceased was first medically examined on 23-5-1987 and on 26-5-1987 she received paralytical attack and not prior to that and, therefore, the plea of the defence that she received injuries on head because of earlier paralytic attack was rejected by the learned trial Judge. 3.That the death of the deceased was homicidal one. 4.That since other witnesses especially all relatives were declared hostile, therefore, the learned trial Judge placed reliance on the solitary statement of PW-8 Velaram, who is father of the accused-appellant and husband of the deceased. 5.That since the injuries on the head of the deceased were caused by the accused-appellant by throwing stones. therefore. there was no intention on the part of the accused-appellant to cause murder of the deceased, but he was having knowledge and. therefore, he convicted the accused-appellant for the offence under Section 304, Part- II in place of 302, IPC. Aggrieved from the said judgment and order dated 30-10-1987 passed by the learned Sessions Judge, Dungarpur, this appeal has been filed by the accused-appellant.
(3.) In this appeal, the learned counsel appearing for the accused-appellant has made the following submissions : (i) That since in this case all the witnesses have been declared hostile and PW-8 Velaram being husband of the deceased and interested witness and there is no corrobo-ration to his statement, therefore, conviction cannot take place on his sole testimony. (ii) That the deceased received injuries as a result of her head strucking against the wall and furthermore, her death was caused because of paralytical attack. (iii) That the alleged incident took place on 23-5-1987 and the report was lodged on 29-5-1987 and, therefore, there is a delay in lodging the report. Therefore, from this point of view also, the prosecution case comes under the shadow of doubt, (iv) That since the accused-appellant is the son of the deceased, therefore, lenient view in awarding sentence to the accused-appellant should be taken.;