DURGA Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment of Sessions Judge, Tonk convicting the appellant for offence u/s 304 I, Penal Code and sentencing to 8 years R.I. and a fine of R. 200.00, in default of payment of fine to further undergo months S. I.

(2.) On the night of 2.10.85 at 7.30 P.M. Gopal since deceased was hit by a lathi on the back side of his neck which proved fatal. This blow was inflicted by accused Durga. The incident as per prosecution case started with demand of money against purchase of Banana by Chittarlal P. W. 3 from nephew of the accused. This demand annoyed the accused who brought a lathi and inflicted blow with this same, report was lodged by PW. 2 Sohanlal at P.S. Ghat, Distr. Tonk where a case u/s 302 Penal Code was registered and investigation commenced. Accused was charge sheeted and then committed to stand trial. Learned S.J. read over a charge for offence U/s 302 I.P.C. to which accused denied and claimed trial. At trial prosecution examined 9 witnesses and accused none. Trial court after hearing arguments convicted and sentenced the appellant as mentioned above. Aggrieved by which this appeal has been filed. Since the bail was not granted whole appeal has been heard and is being disposed off by this judgment.

(3.) On the admitted facts of the case the short question is as to what offence is made and what should be the sentence. The incident started with demand of purchase of banana sold by PW 3 Chittarlal to the boy who was son of the brother of the accused appellant. When the boy went home and told this the appellant got annoyed. He came to the place of occurrence inflicted a blow on back of the neck of deceased resulting in fracture of IVth vertebra. The witnesses have stated that accused caused 3 injuries by lathi but Dr. PW1 Dr. N.K. Jain stated that there was only one injury which could also be sustained by fall. Thus the statements of the witnesses are directly in contradiction to the statement of Dr. Vimal Kumar and I have no reason to disbelieve the same. Thus proceeding on the finding are injury on the person of the deceased it has to seen whether this injury could bring the case within ambit of Sec. 304 I, IPC. In my opinion causing of the in jury causally without premeditation or without having any motive on a place which is not a vital part would not bring the case within ambit of Sec. 304 I, IPC. No evidence is there on record to infer intention of the accused to cause this injury with the knowledge that it is likely to cause death. In fact the injury has been caused casually possibly to chastise the deceased and case is fully covered by decision in Vidya Singh Case, reported in AIR 1971 SC 1857 wherein their Lordships have held that courts while assessing the value to be attached to the evidence should rely more on human probabilities than on the accusation of the witnesses. In the present there is not an iota of evidence to infer that the case falls within cited 1st of IInd part of Sec 304 IPC. This is case simplicities of accused appellant. Voluntary causing grievous hurt on the person who unfortunately died and hence he is guilty of offence u/s 325 IPC-