K.D.SHARMA, J. - (1.) THIS appeal by Prabhu is directed against the judgment of the Additional Sessions Judge, Gangapur City, dated September 28, 1972, by which the appellant was convicted under Section 304 Part II I.P.C. and sentenced to undergo rigorous imprisonment for two years.
(2.) THE prosecution case against the appellant was that on June 13, 1972, at about 2 pan Jeet Ram and his father Lohdey potters, left their village for their klin to make earthenware pots. At that time, Maluka approached them and asked them not to use the klin, as the former would cover it with kelus. Thereupon, Lohdey replied that the klin was meant for his use and that he would expose his earthen pots there to file. Maluka resented the above reply and went towards the village faying that he would teach Lohdey a lesson. After a short while, Maluka returned to the place for making earthenware vessels along with Ramjilal, Prabhu appellant, Badri and Bheru. Maluka and his companions were armed with lathis. As soon as they reached the spot, they asked Lohdey to remove his earthen posts from there. Lohdey refused to remove he pots. Thereupon, Maluka and his associates openly declared that Lohdey must be done away with Prabhu appellant, in the first instance, inflicted a lathi blow on the head of Lohdey as a result of which the latter fell down and became unconscious. The head injury caused by the blow started bleeding profusely. The miscreants ran away from there, as they considered Lohdey to be dead The sons of Lohdey removed their father from the place of occurrence and brought him to Gangapur in a bullock -cart. Mishra son of Lohdey lodged the first information report with the police at police -station Gangapur on June 14, 1972, at 5 p.m. The injured was admitted to the hospital at Gangapur. On the basis of the report, the police registered a criminal case under Section 307 I.P.C. and made inquiries into the physical condition of Lohdey. Lohdey succumbed to the injuries after two days in the hospital. The police altered the case to one under Section 302 I.P.C. and made usual investigation into it. After collecting necessary evidence against the accused persons, the police put up a charge sheet against them under Section 302 I.P.C. in the court of Magistrate, Gangapur The learned Magistrate held an inquiry, preparatory to commitment, in the case and committed the appellant Prabhu, Ramjilal,. Maluka, Badri and Bheru to the court of Additional Sessions Judge, Gangapur City, under Sections 302, 147 I.P.C. and Section 302 read with Section 149 I.P.C. The Addition Sessions Judge, Gangapur City tried the accused persons for the aforesaid offences and found Phabhu appellant guilty of an offence punishable under Section 304 Part II I.P.C. only. The other accused, namely, Ramjilal, Maluka, Badri and Bheru were acquitted of all the charges framed against them After convicting Prabhu appellant for the offence under Section 304 part II I.P.C., the learned Additional Sessions Judge took a lenient view in the matter of sentence and awarded to him two years, rigorous imprisonment only, as stated above.
(3.) AGGRIEVED by his conviction and sentence, the appellant has come up in appeal to this court.;