SHARMA, J. - (1.) THE appellants (hereinafter described as `accused') were placed on trial before the learned Additional Sessions Judge, Fast Track, Tonk in Sessions Case No. 18/2001. Learned Judge vide judgment dated January 19, 2002 convicted and sentenced the accused as under:- Accused Devalal: U/s. 302 IPC: Each to suffer Imprisonment for life and fine of Rs. 2000/-, in default to further suffer Three Months Imprisonment. U/s. 341 IPC: To suffer Simple Imprisonment for Six Months and fine of Rs. 200/-, in default to further suffer Simple Imprisonment for Fifteen Days. Accused Gopal: U/s 302/34 IPC: Each to suffer Imprisonment for life and fine of Rs. 2000/-, in default to further suffer Three Months Imprisonment. U/s 341 IPC: To suffer Simple Imprisonment for Six Months and fine of Rs. 200/-, in default to further suffer Simple Imprisonment for Fifteen Days. THE substantive sentences were directed to run concurrently.
(2.) A written report (Ex. P-9) was submitted on November 14, 2000 at the Police Station Tonk by Ladu (PW. 7) with the averments that on the preceding day i. e. , November 13, 2000 around 8. 00 PM, the informant's brother Ram Narain (now deceased) had gone to the well, as on the said day it was their turn to use the well. For the purpose of using the well Ram Narain got the engine, fitted with the well, halted. While Ram Narain was coming back, the accused inflicted lathi blows on the person of Ram Narain, who died after some time. The Police Station Tonk registered a case under Sections 341, 302 and 341 IPC. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge, Fast/track Tonk. Charge under Sections 341 and 302 IPC was framed against the accused Devalal and against Gopal under Sections 341 and 302/34 IPC. The accused denied the charge and claimed trial. The prosecution in support of its case examined as may as 15 witnesses. In the explanation under Sec. 313 Cr. P. C. , the accused claimed innocence and stated that the deceased was lying dead on the field. In defence they exhibited the revenue record and examined three witnesses. Learned trial Judge on hearing final submissions convicted and sentenced the accused as indicated herein above. The Post Mortem on the dead body was performed by Dr. P. C. Soni (Pw. 11) vide Post Mortem Report (Ex. P-11), according to which deceased sustained following ante mortem injuries:- " (1) Lacerated wound 1/4" x 1/4" with swelling 1" x 1" on parietal region in midline, blood fluidy coming out. (2) Abrasion 1/2" x 1/2" with swelling 2" x 2" on Lt. Elbow. (3) Abrasion 2" x 1/2" on Dorso medial side of Lt. Foot. (4) Abrasion 1" x 1/2" on Rt. Side of back. The cause of death was coma as a result of head injury leading to subdural haemorrhage, compression of brain stem. " Mr. Bishnoi, learned counsel for the accused, canvassed that evidence adduced at the trial reveals that the incident occurred all of a sudden, on a spur of moment and the accused Devalal did not take undue advantage of the situation. He is alleged to have caused only one injury with bamboo stick and did not repeat it. Attack was not premeditated as there was no bad blood between the deceased and the accused Devalal. There was no intention on the part of accused Devalal to kill the deceased and the case does not travel beyond Section 304 Part II IPC. In regard to accused Gopal it is contended that being the father of Devalal, he has been over implicated in the case. Per contra, Mr. M. L. Goyal, learned Public Prosecutor, supported the impugned judgment and urged that the case against the accused was established beyond reasonable doubt and they have been rightly convicted and sentenced. Turning on to the point of nature of offence it is evident from the testimony of informant Ladu (PW. 7) that when the deceased asked accused Gopal to stop the engine, Devalal inflicted a lathi blow on the head of deceased. At the trial Ladu was confronted with his police statements and the FIR and it appears that he made material improvements and changed his earlier version in so far it relates to the part taken by accused Gopal. In the police statements Ladu stated that when the deceased stopped the engine Devalal inflicted lathi blow on his head. Ladu no where stated that as to on what part of body of the deceased, Gopal caused injury. It also appears from the earlier version that on hearing the cries Ladu and Sheoji had reached at the place of occurrence. Sheoji (PW. 5) did not support the prosecution story and he was declared hostile. Dr. P. C. Soni (PW. 11), who performed the autopsy on the dead body, did no say about the head injury attributed to accused Devalal that it was sufficient to cause death in the ordinary course of nature. Ramjilal (PW. 15) deposed that the bamboo stick recovered at the instance of accused Devalal was eaten by termite.
(3.) HAVING closely scanned the prosecution evidence we are of the view that the prosecution has failed to establish the guilt against the accused Gopal under sections 302/34 and 341 IPC beyond reasonable doubt. In regard to accused Devalal we find that he is alleged to have inflicted single blow and fled away. He could have repeated the infliction of blows but he did not. Neither did he act in a cruel manner nor took undue advantage of the situation. Since the element of intention is missing it can safely be inferred that the accused Devalal had knowledge that the injury which he was going to inflict could likely to cause death. Considering the peculiar facts and circumstances of the case and keeping in view the gravity of the offence, we hold that the case against accused Devalal does not travel beyond section 304 Part II IPC. For these reasons we dispose of the appeal in following terms:- (i) We allow the appeal of Gopal and set aside his conviction under sections 302/34 and 341 IPC and acquit him of the said charges. The appellant Gopal is on bail, he need not surrender and his bail bonds stand discharged. (ii) We partly allow the appeal of appellant Devalal and instead of section 302 IPC we convict him under section 304 Part II IPC and sentence him to suffer Rigorous Imprisonment for Five years. We however maintain his conviction and sentence under section 341 IPC. (iii) The impugned judgment of learned trial Judge stands modified as indicated above. .;