PRABHU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Prabhu, original accused 4, is the appellant. He along with four others were tried for offences punishable under S. 148, 302 read with 149 and 323 read with 149 Indian Penal Code. The trial court convicted the appellant under Section 302 Indian Penal Code and sentenced him to imprisonment for life. The convicted accused preferred an appeal to the High court and the High court altered the conviction of the appellant to one under Section 304 Part II Indian Penal Code and sentenced him to undergo five years' R. I. It may not be necessary to refer to the convictions of other accused since they are not before us.

(2.) The prosecution case is that on 9/8/1977, the accused persons constructed their 'bad' on the north-eastern side of their house and they encroached upon some portion of the chowk and in respect of this there was some dispute between the prosecution party and the accused. There was exchange of hard words and the accused went to the house of the complainant and the deceased, and started beating Phulya, the deceased and other witnesses. The deceased received an injury on the head which was inflicted by the appellant and that proved fatal. The other injuries inflicted were not serious. A report was given and the case was registered. The injured witnesses were sent for medical examination and the dead body was sent for post-mortem. Public Witness 10 who conducted the post-mortem found four injuries and the first injury was an incised wound on the left parietal region and the other injuries being abrasions. The accused had also some injuries and they were also medically examined. The prosecution relied on the evidence of the eyewitnesses out of whom some were injured. Both the courts below have accepted their evidence. The Highappellant by inflicting the injury on the head was not aware that such injury was likely to cause death and in that view of the matter, the High court altered the conviction to one under Section 304 Part II Indian Penal Code. The leave was granted by this court limited to the question whether the appellant was entitled to the benefit of the provisions of Section 360 Criminal Procedure Code or the provisions of the Probation of Offenders Act since he was below 21 years.

(3.) Shri Sushil Kumar Jain, learned counsel for the appellant, submits that the doctor who examined the appellant mentioned the age as 18 years and, therefore, it was imperative that the courts below ought to have considered the question of giving the benefit of Section 360 Criminal Procedure Code. This question would not have arisen before the trial court because the trial court convicted the appellant under Section 302 Indian Penal Code and sentenced him to undergo imprisonment for life and we do not find any foundation being laid before the High court regarding the age. Now for the first time this question is raised. We cannot make any inquiry about the age at this stage. However, here we find that the appellant has inflicted an incised injury on the vital part of head with an axe. Therefore, we do not think that this is a fit case where Section 360 Criminal Procedure Code should be applied.