KASLIWAL, J. - (1.) BRIEF facts lodging to this appeal are that PW 1 Pyare Lal lodged an FIR Ex. P 8 on 27th November, 197 , at Police Station, Tapukda, that Ghasi Ram @ Kalu (accused) was resident of this village. The sister-in law (SALI) of Ghasi Ram, whose age was 7-8 years, had come to the house of Ghasi about two months back. Yesterday, is 6th November, 1979, in the morning the accused had brought his sister in-law from his house to leave her at her parent's house. The accused, however, did not take her sister-in-law to her parent's house and killed her in a nearby Nala He did not know as to in what manner the accused had killed his sister-in-law. The dead body of Sunita was brought by the wife of the accused. It had been further mentioned in the FIR by the informant that when he came back in the night for making a report at 10. 00 then Panci, Dwara Ram Matadin s/o Kudia Harijan and his own mother Shanti and other villagers informed him about the incident. He, therefore, searched the Sarpanch Ayub Khan in the night for making a report but he could not be tracted. He waited for the Sarpanch but he had not returned till then as such it is stated that the informant himself thought it proper to lodge the report. The accused had ran away from the Nala and was seen running by the villagers. The police registered a case under section 302 IPC and PW 10 Sita Ram Station House Officer went on the spot and recovered the dead body of Km Sunita vide Ex. P 5 from the house of the accused and prepared Panchnama Ex. P7. The post-mortem of the dead body of Km Sunita was conducted by Dr. R. L. Agrawal PW 7 and he prepared post-mortem report Ex P 13 Dr. Agrawal found the following three external injuries on the body of the deceased; 1. Bruice 4" x 1" on right side of face 2" way and parallel to the angle of right mouth. 482
(2.) BRUICE 1, 1/2" x 1" on left side of face just below the lobule of left ear. Bruice 2, 1/2" x 1" on left middle of back 6" above left illist crest. According to doctor Agarwal after opening the body of the deceased it was found that teeth of Km. Sunita had occured on account of fracture and dislocation of second servical vertabrae leading to laceration of spinal cord at C-2 level. According to Dr. Agarwal this injury was sufficient to cause death in the ordinary course of time by spinal shock. After usual investigation the police filed a challan on 15th Jan. , 1979, under section 302 and 364 IPC in the court of Munsif and Judicial Magistrate, Tijara. Learned Magistrate committed the case for trial in the court of Sessions Judge, Alwar, from where the case was transferred to the court of Additional Sessions Judge, Kishangarh Bas for trial. 2. The prosecution in support of its case examined 11 witnesses. The accused was then examined under Section 313 Cr. P. C. and he admitted that he had brought Km. Sunita to his own house from the house of her parents. On the day of incident he was taking back Km. Sunita to her parent's house. His case is, however, that Km. Sunita was lying ill and in a Nala in the Jungle she eased in her clothes on account of which he had removed her clothes and had washed the same. He totally denied to have inflicted any injury on the body of Km. Sunita. He further explained that he was sitting by the side of Km. Sunita in the Nala and thereafter brought her to his own house. His further case was that Km. Sunita died on account of illness and did not die due to any injury. His further case was that his neighbours have falsely implicated him on account of enmity. 3. The learned Additional Sessions Judge after recording the above evidence and hearing the arguments arrived at the conclusion that no case under section 384 has been made out as such he was acquitted of the said charge. Learned Additional Sessions Judge also held that the accused was not guilty under sec. 302 IPC but was found to have committed an offence under section 304 part II IPC. In this view of the matter learned Sessions Judge convicted the accused under section 304 Part II IPC and sentenced him to six years rigorous imprisonment & a fine of Rs. 200/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two months. In these circumstances the accused has filed the above appeals. Appeal No. 309/80 is represented appeal while appeal No. 335/80 is a jail appeal. Shri Dave, learned counsel for the accused submitted that even if the prosecution case is believed at the most an offence under section 325 IPC is made out and no case under section 304 Part II IPC is held established as found by the learned trial Court. In this regard it was contended by the learned counsel that admittedly no motive has been alleged of proved for the commission of the crime by the prosecution. It is also established beyond any manner of doubt that the accused had no intention to cause death of the deceased nor he was armed with any weapon. It is further submitted that even the learned Additional Sessions Judge has held that the accused had no intention to cause any death or inflict such bodily injury, which was likely to cause his death. The accused had taken Km Sunita for dropping her parents house. At that time he was not armed with any weapon. Learned Additional Sessions Judge then held that when Km. Sunita eased into her own clothes then the accused washed the clothes as there were no other clothes at that time for change The accused got annoyed on account of such act of easing done by Km. Sunita in her clothes and on that account the accused inflicted injuries on the body of Km Sunita as mentioned in Ex. P. 13 post mortem report and during this period the accused twisted the neck of Km. Sunita and such act committed by the accused would show that he had knowledge that such act would cause death of Km. Sunita. Shri Dave submitted that from the evidence of Dr. Agarwal it was clear that there were marks of external injury on the neck of Km, Sunita so as to show that her neck was twisted with such force that it caused the dislocation and fracture of cervical vertebrae. It is further submitted that in the facts and circumstances of this case it cannot be held that such act, even if committed by the accused, would attribute any knowledge to the accused to cause death of Km. Sunita so as to bring the case within the purview of Section 304 Part II IPC. Shri Dave also submitted that the accused had already remained in Jail for more than 4 years and the ends of justice would meet if the accused is sentenced to an imprisonment for a period already undergone by him. Learned Public Prosecutor, on the other hand, supported the order of the learned Additional Sessions Judge and prayed for dismissing the appeal.
(3.) I have given my careful consideration to the arguments advanced by learned counsel for both the sides and have thoroughly perused the record. I have gone through the statement of PW 1 Pyare Lal, PW 2 Dwari Bai, PW 3 Shanti Bai (declared hostile), PW 4 Runia, PW 3 Matadin (declared hostile), Poona PW 6, Dr. Agarwal PW 7, PW 8 Ram Singh, PW 9 Bakhat Ram, PW 10 Sita Ram S. H. O. and PW 11 Akram Prakash A. S. I. From the evidence of Dwari Bai PW 2, Runia PW 4, Puna PW 6 and Bakhat Ram PW 9 apart from the hostile witnesses PW 3 Shanti Bai, PW 5 Matadin and PW 8 Ram Singh it is proved beyond any manner of doubt that Km. Sunita was taken by the accused for dropping her at her parent's house. The accused was seen with Km. Sunita in the Mula near the Village and at that time Km. Sunita was lying in an unconscious state. The dead body of Km. Sunita has been recovered from the house of the accused. External and internal injuries have been found on the body of Km. Sunita proved by Dr. R. L Agarwal PW 7. All these circumstances clearly go to show that Km. Sunita died on account of the injuries found on her body and no other person except the accused had inflicted such injuries. The question thus remained to be examined is as to what offence has been committed by the accused. Admittedly there is no motive of the crime and the injuries are alleged to have been inflicted by hand alone and not by any weapon. The death of Km Sunita as stated by Dr. Agarwal was caused due to fracture and dislocation of second servical vertebrae leading to laceration of spinal cord at C-2 level. I am in agreement with the Additional Sessions Judge to the extent that there was no intention on the part of the accused to cause death or to inflict such bodily injury as was likely to cause the death of Km. Sunita. So far as the knowledge attributed to the accused is concerned it cannot be said that the accused had any knowledge in the present case. There is no mark of external injury on the neck of Km. Sunita connecting the same with the internal injury which proved fatal. There is no evidence on the part of the prosecution that the accused was annoyed or become so angry with Sunita because she had eased in her own clothes and the accused had to wash her clothes. Admittedly Km. Sunita is the sister-in-law (Saali) of the accused who himself was 21 years of age at the time of incident It is not disproved by the prosecution that Km. Sunita was suffering from disease as explained by the accused. In view of these circumstances it is difficult to attribute any knowledge to the accused for inflicting such injuries which were likely to cause death of Km. Sunita. The only offence, in these circumstances, proved against the accused is punishable under section 326 IPC and not under section 304 Part II IPC as found by the learned Additional Sessions Judge. The accused had already remained in Jail for more than 4 years during trail as well as after conviction. Thus, the ends of justice would meet if the accused is awarded a sentence of imprisonment of the period already undergone by him. In view of these circumstances both these appeals also partly allowed, the convictions and sentences of the appellant under section 304 Part II IPC are set aside instead he is convicted under section 325 IPC and is sentenced to an imprisonment for the period already undergone by him. The sentence of fine is also set aside. The accused- appellant would be released forthwith if he is not required in any other case. . ;