YOGENDRA KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment and order passed by the Sessions Judge, Jhalawar in Session Case No. 225/1990 dated 11.2.1993, by which he has been pleased to uphold the charge against the accused-appellant under Sec. 302, Penal Code and, consequently convicted and sentenced him to life imprisonment and also imposed a fine of Rs. 1,000.00 and in default of payment of fine to undergo rigorous imprisonment for a further period of six months.

(2.) The question as to whether the prosecution has been able to prove the charge against the accused-appellant under Sec. 302 Penal Code lies in an ambit which is rather narrow as the case rests solely on the dying declaration given by the deceased on 12.6.1990 at 5.15 PM. It may he stated at the outset that the argument which has been advanced by teamed (counsel. Ed.) for the accused-appellant is essentially on the ground that the case falls under Sec. 304 Pt. II, Penal Code and not under Sec. 302, Penal Code simpliciter and, on this ground it has been submitted that the sentence of the petitioner should be reduced looking to his tender age at the time of occurrence which is said to be 17 years. In support of his submissions, two decisions have been relied upon reported in AIR 1988 SC 2110 Gulsan & Ors. Vs. State of Punjab , 1981 SC 1638 Pooran Singh Vs. State of U.P , wherein the sentence of the appellant had been reduced to the period already undergone taking into consideration the circumstances of the case including the fact about the age of the appellant on the date of the incident.

(3.) Before we examine the case of the appellant from this angle, it would be essential to discuss the merits or the prosecution case as only in the light of the circumstances of the case it can be really considered as to whether the appellant should be given the benefit of reduction in sentence as urged by his counsel.