SHARMA, J. - (1.) IN the instant appeal challenge is made to the judgment dated July 7, 2004 of the learned Additional Sessions Judge (Fast rack) No. 1 Alwar whereby the appellant was convicted and sentenced as under:- u/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 10,000/-, in default to further suffer rigorous imprisonment for two years. u/s. 460 IPC: To suffer rigorous imprisonment for ten years and fine of Rs. 2,000/-, in default to further suffer rigorous imprisonment for one year. u/s. 333 IPC: To suffer rigorous imprisonment for seven years and fine of Rs. 1,000/-, in default to further suffer rigorous imprisonment for six months. u/s. 332 IPC: To suffer rigorous imprisonment for three years. u/s. 353 IPC: To suffer rigorous imprisonment for two years. u/s. 3/25 Arms Act: To suffer rigorous imprisonment for three years and fine of Rs. 3,000/- in default to further suffer rigorous imprisonment for one year. u/s. 4/25 Arms Act: To suffer rigorous imprisonment for one year and fine of Rs. 500/- in default to further suffer rigorous imprisonment for three months. The substantive sentences were ordered to run concurrently.
(2.) IT is the prosecution case that on October 17, 1989 at 1. 05 AM informant Amar Singh, (PW. 4) Sub Inspector submitted a written report (Ex. P. 12) at PS MIA Alwar to the effect that on receiving telephonic message that a person was wandering on the roof of house No. 220, Scheme No. 8 Alwar, he rushed to the spot with police squad where Kamal Singh Yadav, owner of the house told him that the miscreant was on the roof and had revolver. The police party pursuaded the miscreant to come down. In the meanwhile when Raghunath Prasad SI made attempt to catch hold of him, the miscreant inflicted katar-blow on the neck of Raghunath Prasad. The miscreant thereafter was over powered by Bhagat Ram who snatched the revolver and katar from the miscreant. The miscreant disclosed his name as Shankar Yadav. The Police Station MIA Alwar registered a case under Sections 302, 332, 353 IPC and 3/25 Arms Act against the appellant and investigation commenced. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Alwar. Charges under Sections 302, 460, 333, 332, 353 IPC and 3/25 & 4/25 Arms Act were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In the explanation under Sec. 313 Cr. PC. , the appellant claimed innocence. Four witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. We have pondered over the submissions and with the assistance of learned counsel scanned the record. Death of deceased Raghunath Prasad was homicidal in nature. As per post mortem report (Ex. P. 14) he received following ante mortem injuries:- Incised wound 3cm x 1/2 cm x upto trachea with sharp and clean cut margins on neck. Antero lat. aspect on Lt. side in mid region of neck. Wound is obliquely placed there is clotted blood present around the wound. On dissection there is sub cut tissue stained with blood. The wound involved common carotid artery and cut below & inferior to wound with adjacent muscle in the length and width of wound. Trachea is also involved 2 cm x. 5cm with full thickness of trachel wall lat. and antero aspect corresponding to the Ext. wound. In the opinion of Dr. P. S. Chaudhary (PW. 9) the cause of death was shock due to extensive haemorrhage as a result of injury to common carotid artery, which was sufficient to cause death. The appellant Shankar Yadav vide injury report (Ex. D. 6) also received following injuries in the same incident:- 1. Abrasion 3 cm middle finger Lt. hand 2. Lacerated wound (Rt.) hand palm 5 x 2 cm 3. Abrasion 2 x 1 cm (Rt.) temporal. The informant Amar Singh, Sub Inspector (PW. 4) in his deposition stated that on October 17, 1999 he was posted at Police Station Aravali Vihar. Around 12. 15 AM he received telephonic message that a person armed with weapon is wandering on the roof of house No. 220, Scheme No. 8 Alwar and his motor cycle Yamaha was parked in the warrandah of that house. On such message he along with Raghunath Prasad, Ram Singh, Krishna Kumar, Bhagat Ram and Balveer reached on the spot and Kamal Singh Yadav, owner of the house told them that the said miscreant is on the roof. Raghunath Prasad pursuaded him to come down. The miscreant Shankar Yadav was having revolver in his left hand. When he did not come down the policy party came down from the roof, following them the miscreant also came down and when they were entering in a room miscreant Shankar Yadav was caught hold of by Krishna Kumar. His left hand, free in which he was having katar, by which he gave katar blow on the neck of Raghunath Prasad due to which he fell down. Meanwhile Bhagat Ram, Ram Singh and others caught hold of Shankar Yadav. During this incident Shanker Yadav also sustained some injuries. Testimony of Amar Singh finds corroboration from the testimony of Ram Singh (PW. 7), Bhagat Ram (PW. 8), Krishna Kumar (PW. 3 ).
(3.) SALIENT features appears from the record are as under:- (i) There was dispute regarding the house between the appellant and Kamal Singh (cousin brother of appellant's wife ). (ii) The house from where the appellant was arrested was alleged to have given in dowry to appellant. (iii) The appellant was caught hold of by the police personnels from the roof and he was being taken down from the roof. (iv) The appellant was beaten up by police personnels at the behest of Kamal Singh and the appellant also sustained injuries. (v) In FIR the appellant was not shown to have katar in his hand. (vi) The deceased sustained only one injury over his neck. Having analysed the evidence adduced at the trial by the yardstick of probabilities, its intrinsic worth and animus of witnesses we find that the prosecution is only able to establish beyond reasonable doubt that appellant committed house trespass by night and inflicted katar blow on the neck of deceased when he was caught hold of by the police personnels, appellant inflicted solitary blow with Katar while he was beaten up by police personnels. The evidence on record relating to the occurrence cannot be taken to provide any safe basis for coming to a conclusion that the appellant was having any intention to commit death of the deceased. Hence the charge under Section 302 IPC is not proved beyond all reasonable doubt. It also appears from the record that the appellant caused the solitary blow when he was caught hold of by police personnels and was given beating. At best the case can be one where appellant might be said to have caused a bodily injury as is likely to cause death, with an intention to cause death, he can be convicted under section 304 Part I. Therefore, there is every justification to alter the conviction recorded under Section 302 into one Section 304 Part I IPC. On the facts and circumstances of the case, the imposition of 10 years rigorous imprisonment and fine would sufficiently meet the requirements of justice and to this extent the judgment of the court below shall stand altered and modified. Since the appellant committed house trespass by night and caused injury to police personnel conviction under Section 460 IPC cannot be said to be improper. We however do not find any cogent material on record on the basis of which the conviction of appellant under Sections 333, 332, 353 IPC and 3/25 and 4/25 Arms Act can be said to be justified. In our opinion these charges are not established against the appellant beyond reasonable doubt and we acquit the appellant of the said charges. ;