TEJ MAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 30.10.1986 passed by the learned Sessions Judge, Sawai Madhopur by which the accused -appellant was convicted for offence under Sec. 304 -II IPC and was sentenced to undergo rigorous imprisonment for two years and fine of Rs. 200/ - with the stipulation that in the event non -payment of fine he shall have to further undergo rigorous imprisonment for two months. I have heard Shri Rajveer Singh, learned counsel for the petitioner and Shri D.D. Sharma, learned Public Prosecutor for the State.

(2.) Shri Rajveer Singh, learned counsel for the appellant has argued that the offence under Sec. 304 -II IPC has not been proved against the accused -appellant beyond reasonable doubt. Out of the six eye -witnesses cited by the prosecution, four witnesses namely; P.W. 4 Laxminarayan, P.W. 5 Gopilal, P.W. 6 Golia and P.W. 7 Harphool, have not supported the prosecution story and they were declared hostile. Conviction of the accused -appellant on the testimony of P.W. 1 Radheyshyam, who is the son of the deceased and P.W. 2 Kamla, who is wife of the deceased, cannot be recorded because these two witnesses are interested witnesses and their testimony indicates that they tried to exaggerate. Evidence of these witnesses, is not corroborated by the medical evidence inasmuch as the prosecution has failed to prove motive of the crime. The genesis of the crime is not clear. The first information report, Ex. P/1 was not admissible as it hit by Sec. 162 Cr.P.C. because investigation had already been commenced prior to lodging of first information report on the information of Medical Officer of the Government Hospital, Chouth -ka -Barwara who had informed about the incident at 4.15 pm.

(3.) Learned counsel further argued that while convicting the accused -appellant for offence under Sec. 304 -II IPC, the learned trial Court sentenced him to undergo rigorous imprisonment for two years, the incident had taken place at the spur of the moment, the dispute in fact originated between Radheyshyam, the son of the deceased and the accused. While the accused were running after him, suddenly they met with Prahlad on the way and there was thus no pre -meditation of causing injury to Prahlad. Only one injury was caused. He was not on bail during the pendency of trial and remained in jail till he was enlarged on bail during the pendency of the present appeal by this Court on 25.11.1986. Thus from the date of incident on 20.2.1986 till he was enlarged on bail on 25.11.1986, the accused -appellant has already remained in jail for 9 months and 10 days. He has thus substantially served the sentence of the awarded term of two years. It was, therefore, prayed that in the event of conviction being maintained, the sentence awarded to the accused -appellant may be considered to be reduced to the period already undergone by him. Learned counsel in support of his arguments relied on the judgment of Supreme Court in the case of Chand Lal Ors. Vs. State of Rajasthan : AIR 1992 SC 597 and this Court in Sitaram Vs. State of Rajasthan : WLC (Raj.) 1995 (1) 758 and Kishan Lal @ Bandu Vs. State of Rajasthan, Criminal Law Reporter (Raj.) 2004 (2) 1006.