VINAY SINGH Vs. STATE OF M P

JUDGEMENT

(1.) ON behalf of the appellant-accused this appeal is preferred under Section 374 of Cr.PC being aggrieved by the judgment dated 29-6-1996 passed by Ilnd Additional Sessions Judge, Bhopal, in Sessions Trial No. 281/1995, convicting him under Sections 304, Part II and 323 of IPC for RI seven years with fine of RS.1000.00, in default of depositing the same, further six months' RI in the earlier count, while three months' RI in later.

(2.) THE facts giving rise to this appeal in short are that, on dated 21-5-1995 at about 7 o'clock in the morning at Village Undarai, the acquitted co- accused Fateh Singh was abusing with filthy languages to the deceased Prithavi Singh asking him why he is spreading the rumour about him that he married his daughter after obtaining the money. On which, deceased-Prithavi Singh told him that he has not spread such rumour. By the time, the appellant Vinay Singh lashed with stick came there and gave a blow of such stick on the head of Prithavi Singh. Thereafter, said Fateh Singh and his other son Parasram also gave him the blows of stick on the person of Prithavi Singh. During such incident victim Prithavi Singh was also subjected to threat of his life. Due to aforesaid blows of sticks Prithavi Singh sustained the injuries and fell down, on the coming Parwat Singh (P.W. 1), to rescue him then, he was also subjected to blows of sticks by the above mentioned persons and co-accused Sarju Bai. Soon after the incident, said Parwat Singh (P.W. 1), went to the Police Station, Gunaga, and lodged the First Information Report (Exh. P-1), on which the offence of Sections 323 and 307 read with Section 34 of IPC was registered against the appellant and the co-accused Fateh Singh, Parasram and Sarju Bai. After lodging the report, the victims were sent to the hospital where on medical examination their MLC reports were prepared. Looking to the nature of the head injuries of Prithavi Singh, for further treatment he was admitted in the hospital, but in spite long treatment of 13 days, he could not survive and succumbed to such head injury. On carrying out the autopsy of his corpus, alleged head injury was found to be cause of his death and as per further opinion of the doctor, the same could have been caused by hard and blunt object. On completion of the investigation, the appellant and the co-accused named above were charge-sheeted for the offence of Sections 307, 323, 302/34 of IPC.

(3.) SHRI Imtaiz Hussain, learned appearing Counsel of the appellant after taking me through the record of the Trial Court along with the impugned judgment without challenging the findings of the Trial Court holding guilty to the appellant for the aforesaid offence of Sections 304 Part II and 323 of IPC, has made his limited submissions on two counts. Firstly, he said that keeping in view 19 years age of the appellant on the date of the alleged incident, the benefit of Mandatory provision of Section 6 of the Probation of Offenders Act, 1958 (hereinafter in short 'the Act'), be extended to him. In such background, he said that the appellant did not possess any criminal antecedents except the present matter and the alleged incident was happened without any premeditation in a sudden quarrel. He also said that the findings of the Trial Court on which the prayer for extending the benefit of probation has been refused to the appellant in view of law laid down by the Apex Court in the matter of Chand and others Vs. The State of U. P., reported in AIR 1972 SC 955, and of this Court in the matter of Mangilal Vs. State of M.P., reported in 1989 Vol. II M.P. Weekly Notes, Note 9, is not sustainable. He further said that in case the Court does not found fit to extend such benefit of probation to the appellant then, by adopting the lenient view his awarded jail sentence be reduced upto the period for which he was already suffered in jail by enhancing some amount of fine under the discretion of the Court. According to him, after suffering the judicial custody during trial between 27-5-1995 till 16-10-1995, i.e., four months and 20 days, he was released on bail and he also suffered the awarded jail sentence from 29-6-1996, the date of impugned judgment till passing the order for suspension of his remaining jail sentence by this Court, vide order dated 14-10-1996, i.e., near about three and half months accordingly, he has suffered the jail of 8 months and 6 days out of the awarded jail sentence and prayed to allow the appeal accordingly.