NANDA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By his judgment and order dated 31. 1. 1994, the learned AddI. Sessions Judge, Bhilwara, convicted the accused appellant for the offence under Section 304 part IIPC and sentenced him to a rigorous imprisonment for ten years and a fine of Rs. two thousand and in default of payment of fine to undergo RI for six months. Against the said conviction and sentence, this appeal has been preferred.

(2.) I have heard the arguments of both the sides. In this case, the prosecution has examined five eye witnesses viz; P.W. 1 Samrath Lal, PW. 2 Jagdish, P.W. 4 Ramesh, PW. 7 Girdhari and P.W. 8 Roopli. Out of these, PW. 1, PW. 4 and P.W. 7 have turned hostile and they have not supported the prosecution case. P.W. 2 has stated that he reached the site of the alleged occurrence when the deceased had fallen on the ground and in his presence, no beating took place. Evidently, P.W. 2 reached the site of alleged occurrence after it had taken place and, therefore, he is not an eye witness of the alleged occurrence.

(3.) Now remains the eye witness P.W. 8 Roopli, who is the wife of deceased. From the evidence of P.W. 8 Roopli, it is evident that some hot exchange of words took place between the accused appellant and the deceased whereupon the accused appellant gave two lathi blows, one on his head and other on his nine. Thus, from the evidence of P.W. 8 Roopli, it is evident that the accused inflicted only one injury on the head of the deceased and other injury was caused on his hand. This has been corroborated by the Medical evidence of P.W. 5 Dr. S.N. Vijayvargiya, who conducted the post mortem of the deceased. According to him, there were only two injuries on the body of the deceased, one on the head and another on the left hand. Thus, the evidence of P.W. 5 corroborates the testimony of P.W. 8 Roopli that the accused had inflicted only one injury on the head and another was caused on his hand. According to P.W. 5, the nature of head injury was such as was likely to cause death. In my opinion, the evidence of P.W. 8 and P.W. 5 goes to show that the intention of the accused appellant was not to cause death of the deceased but he caused the head injury with the knowledge that the said injury is likely to cause death. Therefore, in my opinion, the offence under section. 304 part II IPC is made out & present case against the accused appellant and not the offence under section 304 part I IPC and, accordingly, the conviction for the offence under Section 304 part I IPC is required to be converted into the conviction for the offence under Section 304 Part II IPC.