Gopal Krishan Vyas, J. - (1.) THIS criminal appeal is directed against the judgment dated 19.04.1988 passed by Sessions Judge, Dungarpur in Sessions case No. 65/1987whereby the appellant was acquitted from the charge of offence under Section 302 IPC and convicted for offence under Section 323 IPC and he was sentenced to one year simple imprisonment.
(2.) IT is contended by the learned Counsel for the appellant that appellant is real elder brother of deceased. As per the contention of FIR, some quarrel took place in between Shankar and Kala - the present appellant. During the quarrel, the appellant gave a kick in the stomach of Shankar on account of which he died. After investigation, the police filed challan under Section 302 IPC against the appellant. As per the prosecution witness PW -7 Dr. Bhagwati Prasad, who conducted the post -mortem, Shankar died on account of head injury. However relying upon the testimony of PW -2 Ghoola to the extent that the accused gave kick in the stomach of Shankar and he died, the trial Court convicted the appellant for offence under Section 323 IPC It is contended by the learned Counsel for the appellant that the testimony of PW -2 Ghoola cannot be accepted because as per statement of PW -7 Dr. Bhagwati Prasad, the deceased died due to head injury, thus, it cannot be said that PW -2, Ghoola was present at the time the occurrence took place. The statement of PW -2 Ghoola is not trust -worthy. Hence, the judgment impugned to the extent of convicting the appellant for offence under Section 323 IPC is also not sustainable in the eye of law. Learned Counsel for the appellant without prejudice to the above contentions contended that the appellant and deceased were real brothers and on the spur of moment due to sudden quarrel, injury upon the stomach was inflicted by the appellant and the said injury was not the cause of death, deceased fell down and received head injury which was cause of death, therefore, the appellant was not convicted for offence under Section 302 IPC as such it is prayed that the appellant may be given the benefits of probation under Section 360 Cr.P.C. The appellant is not a previous convict and he was 45 years of age at the time the occurrence took place. As per the record, the appellant has remained in custody from 22.08.1987 to 29.01.1988.
(3.) LEARNED Public Prosecutor opposed and contended that the judgment rendered by learned trial Court is perfectly based upon the cogent evidence, which is on record. Learned Public Prosecutor also opposed the prayer for granting the benefits of probation to the appellant.;