MADAN, J. - (1.) THIS criminal appeal is directed against judgment dated 21. 1. 1999 passed by Special Judge (Sati Nivaran) cum Additional Sessions Judge, Jaipur City whereby Maqsood alias Akku (accused appellant) has been convicted for offence U/s 304 Part II, IPC and sentenced to undergo seven years' RI with a fine of Rs. 1,000/- (in default thereof, to further undergo six months' RI ).
(2.) THE facts, briefly stated, giving rise to this appeal are that on a written report (Ex. P. 1) dated 21. 6. 1997 lodged by Atik (informant), an FIR was registered at P. S. Galta Gate, Jaipur City against accused appellant for offence U/s. 302, IPC. As per the prosecution story unfolded in the FIR, on the fateful day, i. e. 21. 6. 1997 at about 10. 30 A. M. Akku alias Maqsood (accused) had an altercation over a trivial matter with Babloo alias Habib, during which there were exchanges of hot words followed by physical altercation between them. THE informant tried to intervene by separating the deceased from the clutches of the accused, consequent upon which the accused whipped outsa knife from his pocket and assaulted Babloo alias Habib (deceased) and the knife blow was alleged to have been inflicted on his chest, as a result of which the injured (deceased) started profusedly bleedings. Upon hue and cry being raised, the accused fled away from the place of incident and whereupon, the injured was rushed in auto taxi to SMS Hospital and where he was admitted in Emergency Ward, but he died on 21. 6. 97 at 5 P. M. As per post mortem report dated 21. 6. 97 (Ex. P. 19) the cause of death was opined by the Medical Jurist as haemorrhage due to shock as a result of internal injuries to heart and lungs, which were sufficient to cause death in the ordinary course of nature by sharp pointed weapon. Injury No. 1 was opined by the Medical Jurist as sufficient to cause death. After usual investigation, the Investigating Agency filed the challan and then the case was committed to the Court of Sessions, where the accused was charged with offence punishable under Section 302, IPC, to which he denied and pleaded trial. During trial, as many as thirty witnesses were examined by the prosecution and 19 documents were exhibited. The accused was examined U/s. 313 Cr. P. C. but he did not produce any witness in his defence. After hearing the parties, the learned trial Court by a well reasoned order/judgment discussed the entire evidence on record very thoroughly and came to the conclusion on the basis of evidence of PW14 Haseena, PW15 Farida, & PW6 Muneer duly corroborated by other independent witnesses that the fatal knife blow to the chest of the deceased was struck by the appellant himself in the heat of moment upon a sudden quarrel on a trivial matter, which has caused death of the deceased. However, the culpable act of the accused appellant was held to be an offence falling within the four corners of section 304 Part II, IPC and, therefore, the accused appellant was acquitted of offence U/s 302 IPC but convicted for offence U/s 304 Part II, IPC and sentenced as indicated above. Hence this appeal. During the course of hearing, after arguing the matter to some length, Shri S. R. Surana learned counsel for the appellant fairly and frankly conceded that he does not press the appeal as regards the conviction on merits but he would like to confine his arguments only on the quantum of sentence, to which the learned Public Prosecutor has not opposed. Therefore, Shri Surana submitted that even according to the trial Court on the day of incident (21. 6. 1997) the appellant was young man of 18 years of age, besides the facts that he was limping from one of his feet, and he had already undergone incarceration for more than two years but the trial Court did not adopt a lenient view so as to let off the accused on the sentence already undergone or on the probation of good conduct. Shri Surana has relied upon the decisions in Guru Charan vs. State (1), Prabhulal vs. State (2), Madanlal vs. State (3), Kailash vs. State (4), Murarilal vs. State (5) and Gulab Chand Nath vs. State
(3.) I have heard the learned counsel for the accused appellant and the Public Prosecutor at length and examined their rival contentions so also relevant material from the summoned record as well as legal position on the subject. Prima facie I am of the view that since undisputedly (1) the appellant has already undergone incarceration for about two years and two months as against imposed sentence of seven years for offence punishable under Section 304 Part II, IPC, (2) he is not a previous convict or is having past bad antecedants of a criminal, (3) he was 18 years of age and below 21 years on the date of incident (21. 6. 97), (4) the incident had taken place in a heat of passion in a sudden quarrel on a trivial matter without any premeditation nor any motive has been attributed to the accused, and (5) he has suffered from heart ailment viz. permanent congenital heart disease-arterial septic defect (A. S. D.) as is borne out from discharge ticket dated 27. 10. 97 issued by Dr. V. P. Rishi Head of Medical Unit No. 1 of SMS Hospital, a lenient view deserves to be taken in favour of the appellant in the matter of quantum of sentence. Thus viewed from the extenuating circumstances aforesaid, viz. the occurrence flared up suddenly and the crime was committed in the heat of moment as a result of scuffle which ensued between the deceased and the accused on a very trivial matter of Match box and in that process the accused struck a knife blow on the chest of deceased and unfortunately that single blow proved fatal, it is obvious from what has been said above, the appellant did not have any motive muchless intention to kill the deceased, in my considered view, while maintaining his conviction U/s 304 Part II, IPC, it will meet the ends of justice to reduce his sentence to the period already undergone by him. I am fortified by the observations made by this Court in Gurucharan vs. State of Rajasthan As a result of the above discussion, having regard to the fact that the appellant has already undergone 2 years and 2 months RI out of his actual sentence of 7 years RI as imposed by the trial Court for offence under Section 304 Part II, IPC and also having regard to the facts and circumstances of the case as referred to above, the appeal is partly allowed. The conviction against the appellant under Section 304 Part II, IPC is maintained while on the point of sentence, I am of the view that accused appellant deserves to be released subject to the period already undergone by him. It is accordingly directed that accused appellant Maqsood alias Akku shall be released forthwith if not wanted in any other case. . ;