VINIT KUMAR MATHUR,J. - (1.) The accused appellant Kailash stands convicted and sentenced as below vide judgment dated 15.01.2015 passed by the learned Additional Sessions Judge No.1, Chittorgarh in Sessions Case No.15/2014: Offences Sentences Fine Fine Default sentences Under Section 302 IPC Life Imprisonment Rs.10,000/ One month's Rigorous Imprisonment Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C.
(2.) Succinctly stated the facts of the case are that the complainant submitted a written report (Ex.P/4) to the SHO, Police Station Chanderia at General Hospital, Chittorgarh on 19.12.2013 alleging inter alia that he used to work in the Transport Company of Chandrabhan Singh situated near the Leyland Showroom, Bhilwara Road, Putholi and nearby, his maternal cousin brother (Mama's son) Kanhaiya Lal was operating a Dal-Bati restaurant. On the previous evening i.e. on 18.12.2013, at about 09.30 pm, he had returned to the Transport Company after leaving the J.C.B. Driver at Putholi. He saw that the accused Kailash was beating Kanhaiya Lal with kicks and fists in his restaurant. Kailash was also having a stick in his hand which also, he was using to assault Kanhaiya Lal. The informant started shouting and went to intervene but, by the time, he could reach the scene of occurrence, Kailash had beaten Kanhaiya Lal and thrown him outside the restaurant. On hearing the hue and cry, Suresh, Chandrabhan and a few other persons came around from the Kalika Hotel and on seeing them, appellant Kailash ran behind the restaurant. He was pursued but could not be apprehended. When the informant came back to the restaurant, he found that Suresh and Chandrabhan had taken Kanhaiya Lal to the Hospital at Chittorgarh. He also went to the hospital and came to know that Kanhaiya Lal had passed away. It was alleged in the report that Kailash had beaten Kanhaiya Lal and had killed him. On the basis of this report, FIR No.319/2013 was registered at the Police Station Chanderiya for the offence under Section 302 IPC and investigation commenced. The accused appellant was arrested. As per the arrest memo, he was 20 years of age. The deadbody of Kanhaiya Lal was subjected to postmortem and the cause of death was opined to be rupture of spleen. After investigation, charge-sheet was filed against the accused appellant for the offence under Section 302 IPC. The case was Sessions triable and thus the same was committed to the Court of Sessions from where it was transferred to the Court of the Additional Sessions Judge No.1, Chittorgarh for trial. The trial court framed charge against the accused for the offence under Section 302 IPC. The accused appellant pleaded not guilty and claimed trial. The prosecution examined as many as 9 witnesses and got exhibited 15 documents in support of its case. The accused upon being examined under Section 313 Cr.P.C., denied the prosecution allegations and claimed that he was not present at the scene of the occurrence. The deceased fell down from the Activa Scooter and thereby his spleen was ruptured. The relatives of the deceased had falsely implicated him. One document was got exhibited in defence. Upon hearing the arguments advanced by the defence counsel and the learned Public Prosecutor and after appreciating the evidence available on record, the trial court proceeded to convict and sentence the accused appellant as above. Hence this appeal.
(3.) The sole contention of Shri Mukesh Patodia, learned counsel representing the appellant, was that as per the admitted and highest prosecution case, the accused assaulted the deceased by fists and kicks. No significant external injuries were noticed when the deadbody of Kanhaiya Lal was subjected to postmortem by Dr. Manish Kumar Verma (PW-8), who opined that cause of death of the deceased was internal injury on his abdomen resulting into rupture of spleen and excessive bleeding. He thus urged that even if the prosecution case is accepted on the face of the record, at best, offence, if any, would not travel beyond Section 325 IPC at the highest. He thus craved acceptance of the appeal and sought acquittal of the appellant. In the alternative, he submitted that while altering the conviction of the appellant from the charge under Section 302 IPC to one under Section 325 IPC, the appellant deserves to be given benefit of probation or else, the sentence awarded to him be reduced to the period already undergone by him which is more than five and half years.;