S. N. BHARGAVA, J. - (1.) ACCUSED-appellant Boriya was tried with Jaldar Khan under Section 302, I. P. C. for committing murder of Suleman Khan by causing gandasi blow on his leg on November 28, 1979. The learned Sessions Judge acquitted accused Jaldar Khan of all the charges framed against him, but he convicted the accused-appellant for the offence punishable under Section 302, I. P. C. and sentenced him to suffer imprisonment for life.
(2.) WE are not required to detail the facts and circumstances brought forth on record by the prosecution in this case, as the learned counsel for the accused has already conceded that there are sufficient evidence on record to hold that the accused Boriya, inflicted fatal blow on the leg of the deceased. However, we have also looked into the record and are satisfied that by cogent, reliable and consistent evidence the prosecution has been able to prove that the occurrence did take place in the manner alleged by the prosecution and the accused-appellant was rightly held guilty for causing injury on the leg of deceased Suleman Khan. The only point seriously pressed before us by the learned counsel for the appellant is that the injury sustained by Suleman Khan when he was running into the house of Smt. Nirmala and the blow accidentally fell on the deceased and as such the learned Session Judge has committed an error of law in convicting the accused-appellant under Sections 302 I. P. C. He could at the most be convicted under Section 304 Part II, I. P. C. We have looked into the record. The prosecution has not been able to prove any motive or immediate cause for infliction of injury by accused Boriya. Only one blow was inflicted and that was also not on the vital part of the body. The injury was caused at the spur of moment and in the heat of passion. It appears that some verbal altercation must have taken place between the accused and the deceased prior to the incident. It cannot be said with certainty that the accused had intention to cause death or cause such bodily injury as was likely to cause death. As Gandasi was used by the accused, though the injury was not caused on the vital part of the body of the deceased, the accused appellant must have known that death would be the likely result of the injury. The result of the above discussion is that the conviction and sentence awarded to the accused-appellant under Section 302 I. P. C. are set aside, Instead he is convicted under Section 304 Part II, I. P. C. and sentenced to suffer five years' rigorous imprisonment. It is, however, made clear that the accused-appellant shall be entitled to the benefit of Section 428, Cr. P. C. The period of detention undergone by him during inquiry, investigation or trial shall be set off against that term of imprisonment awarded by this Court.
(3.) A copy of this order be sent to the lower court as well as at the Central Jail, Jaipur. .;