M. B. SHARMA, J. - (1.) UNDER judgment dated September 12, 1978, learned Sessions Judge. Ajmer has convicted the accused-appellant under Section 304 part I and 448 I. P. C. UNDER the former count the appellant has been sentenced to undergo rigorous imprisonment for three years and under the second count he has been sentenced to undergo rigorous imprisonment for six months. Both the substantive sentences have been ordered to run concurrently.
(2.) THERE is Jadugar Mohalla in Ajmer and in a house situated in that locality deceased Nandkishore used to reside in a part thereof. Some part of that house has been purchased from Nandkishore by the accused-appellant who was residing in that portion. Radhey Shyam PW. 1 was a tenant of Nandkishore in that house Sunil PW. 8 is the sister's son of deceased Nandkishore. DW. 1 Nerni Chand is brother of accused appellant and was residing with him. On March 31, 1978 at about 6. 45 a. m. Sunil heard the cries of Nandkishore deceased 'bachao bachao'. He reached to the room and he saw that Madanlal was armed with a fire-wood and with it he was giving blows to deceased Nandkishore. He (accused-appellant) was saying that Nandkishore was always troubling him. On the hue and cry of Nandkishore PW. 1 Radhey Shyam was attracted. He saw the appellant coming out of the room of Nandkishore with a fire-wood. Nandkishore was taken to the hospital. He was profusely bleeding with his injuries. Dr. R. K. Soni PW 7 examined him. He found the following injuries: 1. Swelling temporoparietal region right side in area of 3" x 3" bleeding per right ear present, right eye was black. 2. Swelling right leg lower one-third part and right ankle joint. Contusion l-1/2"x 3/4" longitudinal on upper half of front part of right leg. In the opinion of the doctor injuries were inflicted by blunt weapon. He advised X-ray of skull. Dr. Ashwani Kumar Bhargava has stated that there was a fracture of parietal and occipital bone on right side. He recorded his opinion on Ex. Aa/6 and Aa/13, and the X-ray plates are Aa/12 and Aa/13. Nandkishore died in the hospital as indoor patient on April 9, 1978 at 5 50 a. m. and Dr. R. K. Soni conducted the autopsy on the dead-body. External injuries were the same as described in injury report Ex. A/5. There was a fracture of right side temporal parietal and occipital bone Fracture line from right temporal bone going straight backward to parietal to occipital bone. On right and left parietal bone, operation for decompression was one. First operation was done on April 1, 1978. Then the extradural hematoma was present on right temporal parietal and occipital region. There was also subdural hematoma present. The doctor found that the cause of death was shock and intracranial haemorrhage as a result of head injury. 3. The accused was arrested and at the time of his arrest vide arrest memo Ex. P/l there was an injury on the right thumb which was fresh. A firewood was recovered from the place of incident and was seized and sealed vide memo Ex. P/2. After investigation the police' filed a charge-sheet against the accused-appellant. The accused was examined vide Ex. P/9 and Dr. R-K. Soni found that there were two injuries namely (i) Parllent blister 1/2"x 1/8" transverse on right thumb palmer side on proximel interphalangial joint and (ii) contusion-two parallel 1- l/2"x 3/4" transverse on left glutial region with clear space 1/2" in between bluish browny in colour. But duration of these injuries was within two or three days. This examination was done on April 1, 1978. The accused pleaded not guilty to the charge and claimed to be tried and the prosecution examined in all 12 witnesses. Thereafter the accused was examined under section 313 Cr. P. C. and in answer to the last question, the accused came out with the case that deceased Nandkishore used to tease his daughter and on the date of incident in the early morning he teased Meera and Meera complained to him. He went to make Nandkishore understand not to tease his daughter Meera and not to cause injuries to Nandkishore and in case he would not have done so. Nandkishore would have killed him. The accused in his support produced Meera Devi. The learned Sessions Judge convicted and sentenced the accused-appellant as mentioned above. His first contention is that there is no eye-witness to the occurrence and so far as Sunil PW. 8 is concerned, in view of the statement of Radhey Shyam PW. l it becomes doubtful that he witnessed the occurrence. He contends that Radhey Shyam PW. 1 made a categorical statement that Sunil Kumar only came when the accused came out of the room of Nandkishore. In my opinion, there is sufficient material on record from which it can be said that the accused is the author of the injuries to the deceased Nandki shore Besides this, the case of the prosecution stands to some extent corroborated from the statement of the accused under section 313 Cr. P. C. wherein the accused had admitted to have caused injuries though according to him, injuries had to be caused in self-defence. Radhey Shyam PW. 1 is the tenat in one part of the said house, He has clearly stated that first he saw the accused going from a part of the house abusing and sometime thereafter he heard the cries coming from that portion of the house where Nandkishore was residing. He came out of his room and asked why Madanlal was quarrelling. Madanlal in the meantime came out of the house with a Lathi in his hand which Radhey Shyam snatched and threw. Many persons came there. Nandkishore was taken to the hospital. He did not identify the lathi which was seized and sealed but he stated that the accused was seen coming out from the house of Nandkishore with a lathi. No doubt Radhey Shyam admitted that Sunil Kumar came only after he had snatched the lathi but oh account of that it cannot be said that Sunil did not witnesses the occurrence. Sunil is none-else but Bhanja of Nandkishore and residing in the same house. Sunil Kumar PW 8 states that at about quarter to 7 a. m. he was sleeping in the house. According to him, it was a time when one could be sleeping. He heard cries of Nand Kishore where he was sleeping. Nandkishore was given blows on his head by the accused- When he tried to intervene, the accused did not stop. He snatched the lathi from his house and took him outside the room, Though, there was some conflict between the. statements of Sunil and Radhey Shyam whether Radhey Shyam came inside or not, but I will not attach much importance to it. From the statement of Sunil Kumar it can be said that it was the accused who caused injuries to deceased Nandkishore. The report of incident was lodged immediately after the occurrence and it is mentioned therein that it was the accused-appellant who caused injuries to deceased Nandkishore. Not only this, all those who were attracted near the place of occurrence were told by Radhey Shyam and Sunil Kumar that it was the accused who caused injuries to deceased Nandkishore. It can therefore be said that it is the accused and accused alone who caused the injuries to deceased Nandkishore notwithstanding the statement of DW 1 Nemichand, brother of the accused, who stated that it is he who caused the injuries to Nandkishore. His statement is contrary to the admission of the accused made in his statement under section 313 Cr. P. C. Not only this, there was no suggestion to the eye-witnesses that Nemi Chand had caused injuries to the deceased. The defence of the accused is that in the early hour i. e. in the morning the deceased had misbehaved with his daughter Meera. He went to the accused to tell him not do so and the accused then gave beating to him and he in self-defence caused injuries to Nandkishore. It may be stated that there is nothing on record as to why the incident took place that morning. There is material on record that relationship between accused and deceased were not bad. Therefore, there must be some immediate cause for the incident. The learned Sessions Judge in his judgment, at page 14 of the typed judgment, has concluded that it appears that because the deceased had misbehaved the daughter of the accused, the accused got provoked and caused injuries to Nandkishore. This inference of the learned Sessions Judge appears to be reasonable and as already slated earlier it is the immediate cause for the incident. Meera has been examined as DW. 2. She stated that at about 6. 30 a. m. that day she had gone to the house of Madanlal to call his mother, but she was not there and Nandkishore was alone there. He misbehaved her and tried to take her inside the house. She does not state that any complaint was made to the father, who had gone to the house of Nandkishore, but from the statement it appears that the complaint was made to him, or if complaint was made to Nemichand, he might have been present. He went to the house of Nandkishore and the incident took place. The very fact that the accused was not seen armed with lathi while going to the house of Nandkishore as stated by Radhey Shyam PW. 1 that when, the accused was going to the house of Nandkishore, he was not armed, his intention was not to kill him. It can be said that fire wood which was the weapon of offence and must have been picked up by the accused there, and the blow was given to Nand kishore with it. P. W. I Radhey Shyam admitted that Madan Lal was saying that Nandkishore deceased used to tease his daughter and used to tell his children to address him as 'jija'. Under exception 1 to section 300 IPC. ' culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake. The above exception is subject to some provisions which are not relevant and need not be dealt with, it can therefore be said that accused on being provoked because the accused (sic deceased) misbehaved his daughter in the morning, went to the deceased, some altercation took place, the accused also received injuries, accused took fire wood and caused injuries to the deceased. Under these circumstances, the accused appellant has been rightly convicted under section 304 part II IPC. But the question is as to whether under the circumstances of the case benefit of section 4 of the Probation of Offenders Act should be given or not. The circumstances have been stated earlier in which the offence has been committed, and in my opinion it is a fit case which should be dealt with under section 4 of the Probation of Offenders Act, so far as section 304 part If IPC is concerned. So far as section 448 IPC is concerned, no oftence is made out because as already stated earlier, the accused had gone to the house on being told that the deceased had mis behaved his daughter and not to quarrel but to tell him not to tease his daughter. Under section 442 IPC, whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building, used as a place for worship, or as a place for the custody of property, is said to commit house trespass. Criminal trespass is defined in section 441 IPC. Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any any such person or with intent to commit an offence is said to commit criminal trespass. When he went to the house of the deceased, the appellant had no intention to commit any offence. No offence under section 448 IPC is made out against the accused-appellant.
(3.) CONSEQUENTLY, the appeal is partly allowed. The conviction and sentence passed against the appellant under section 304 IPC are set aside. The conviction against the appellant under Section 304 Part II IPC is maintained but looking to the fact that there is no previous conviction against the appellant and to the fact that the offence is not punishable with death or life imprisonment and looking to the antecedents and character of the accused-appellant, instead of sentencing him at once, I extend him the benefit of the provisions of Section 4 of the Probation of Offenders Act. It is directed that the appellant shall continue to be at liberty on his furnishing a personal bond in the sum of Rs. 5,000/-with one surety in the like amount to the satisfaction of the trial court to appear and receive sentence as and when called upon for a period of one year and in the mean time to keep the peace and be of good behaviour. .;