S. S. BYAS, J. - (1.) THIS appeal is directed against the judgment of the learned Sessions Judge, Bhilwara dated August 25, 1982 by which the appellant Mohan-Lai was convicted under Section 302 I. P. C. and was sentenced to imprisonment for life with a fine of Rs. 1,000/- and in default of payment of fine to further undergo 6 months rigorous imprisonment.
(2.) BRIEFLY stated, the prosecution case is that at about 5. 30 p. m. on 11. 11. 1981 P. W. 1 Dalipsingh, police constable appeared at Police Kotwali Bhilwara and presented a written report Ex. P. 1. It was stated therein that at about 5. 15 p. m. on that day while he was on his usual round in the town he reached in Gulmandi, he saw that out-side Savera Hotel, the accused and some other persons were manhandling a rickshaw puller Shankar Lal. The accused took out a knife from the pocket of his pent and inflicted blows with it to Shankar Lal. Shankar Lal fell down. Some other persons had taken Shankar Lal to the Hospital. The Police registered a case under Section 307 I. P. C. and proceeded with the investigation. While Shankar Lal was being taken to the Hospital, he passed away. The police added Section 302 I. P. C. During the investigation the accused was arrested and in consequence to the information furnished by him one knife was recovered. The Station House Officer arrived at the spot and prepared the site- plan. The post mortem examination of the victim's dead body was conducted by P. W. 5 Dr. D. R. Sharma the then Medical Jurist, Government Hospital, Bhilwara. The Doctor noticed the following injuries on the victim's dead body: - 1. Stab wound - 1" x Visceral deep, Small intestines coming out of wound left side of umbilicus. 2. Incised wound - 1-1/2 " x 1/2" x muscles deep over left Iliac region. 3. Incised wound - 1/2" x 1/5" x Skin deep, Posterior aspect of upper 1/2 of left upper arm. 4. Incised wound - 3/4" x 1/5" x Skin deep, lateral aspect of £ of left upper arm. " The doctor was of the opinion that the death of Shankar Lal had taken place on account of shock followed by internal haemorrhage. The post-mortem report Ex. P. 12 was prepared by him. After when the investigation was over, the police submitted a challan against the accused in the court of the Additional Munsif & Judicial Magistrate, Bhilwara who in his turn committed the case for trial. The learned Sessions Judge framed a charge under Section 302 I. P. C. , against the accused to which he pleaded not guilty. He denied the whole occurrence and claimed absolutely innocence. In support of its case, the prosecution examined 11 witnesses and filed some documents. In defence the accused adduced no evidence. On the conclusion of the trial, the learned Sessions Judge found the charge duly brought home to the accused The accused was consequently convicted and sentenced as mentioned at the very out set. Aggrieved against his conviction and sentence, the accused has come up in appeal. We have heard Mr. Niranjan Gaur, learned counsel for the appellant and the learned Public Prosecutor for the State. We have also gone through the case file. Mr. Gaur appearing for the accused appellant did not challenge the incident nor the finding of the court below that Shankar Lal was inflicted blows with a knife by the appellant. He has confined his contention only to the nature of the offence made out against the accused from the proved facts. It was argued that the deceased and the accused suddenly fell out in the market. There was no previous enmity between the two. Thus, there was no premeditation on the part of the accused to kill the deceased. It was argued that there being no intention on the part of the accused to kill the deceased, the offence under Section 302 I. P. C. is not made out. It was submitted that the offence made out against the accused does not travel beyond the II part of Section 304 I. P. C. It was, on the other hand, contended by the learned Public Prosecutor that the deceased was inflicted four injuries, though the two were on the arm. The repetition of the blows indicated that the accused had an intention to kill the deceased. We have taken the respective submissions into consideration. As per the evidence of Dr. D. R. Sharma four injuries were found on the victim's dead body. Two were on the arm, the third was on Iliac region and the fourth was on umbilicus. It was argued that the injury inflicted on the umbilicus region alone was dangerous and fatat. The direct evidence of P. W. 1 Delip Singh shows that the quarrel between the deceased and the accused had sprung up in the market. The deceased was a rickshaw puller. There was no previous enmity between the accused and the deceased. All that happened was sudden without any premeditation on the part of the accused. Thus, there was no intention on the part of the accused to kill the deceased. The offence under Section 302 I. P. C. cannot be therefore said to have been made out. In as much as the death had taken place, the matter must come atleast within the purview of Second part of Section 304 I. P. C. The accused did an act with the knowledge that it was likely to cause death, but without any intention to cause death. We are, therefore unable to maintain the conviction under Section 302 I. P. C. However the accused can be safely convicted under Part II of Section 304 I. P. C.
(3.) IN the result, the appeal of accused Mohan Lal is partly allowed. His conviction and sentence under Section 302 I. P. C. are set aside. INstead he is convicted under section 304 part II I. P. C. and is sentenced to 6 years rigorous imprisonment with a fine of Rs. 2,500/- and in default of payment of fine to further under go 2 years rigorous imprisonment. IN the case amount of fine is paid by the accused a sum of Rs. 2,000/- will be paid to the widow or dependents of the deceased Shankar Lal. The accused is allowed one month's time to deposit the amount of fine in the court of the learned Sessions Judge, Bhilwara failing which he will take action according to law. .;