JUDGMENT
A.C. Goyal, J.
1. This appeal is preferred against the judgment dated 22-10-1999, passed by learned Additional Sessions Judge, Aklera, in Sessions Case No. 154/96, whereby the accused-appellant was convicted and sentenced with 7 years’ R.I. and fine of Rs. 500/- in default to further undergo one months’ simple imprisonment, under Section 304-A (wrongly quoted Section) and seven years’ R.I. and fine of Rs. 500/- in default one months’ simple imprisonment under Section 307, I.P.C. Both the sentences were ordered to run concurrently.
2. The prosecution case in brief is that Parchabayan (Ex. P. 6) of P.W. 5 Daulatram was recorded in S.R.G. Hospital, Jhalawar by P.W. 15 Om Prakash, Head Constable, Police Station, Jhalawar on 19-4-1996 at about 10 p.m. stating therein that on account of marriage of Kashi Ram s/o Ghasi Gujar, at about 11 p.m. on 18-4-1996, a folk dance was being performed. At that time accused Ghanshyam alias Ghamlya, came and all of a sudden inflicted a lathi blow on the head of his nephew Chain Singh who was sitting there. Chain Singh started bleeding and became unconscious. He was taken to hospital at Aklera in a bullock cart from where he was referred to hospital at Jhalawar. This incident was witnessed by Sheo Ram, Dhan Singh, Nathu and Mangi Lal. It was also averred that there was enmity between the parties on account of grazing of cattle.
3. Formal F.I.R. Ex. P. 14 was registered at Police Station, Jhalawar under Section 307, IPC. Investigation commenced. Injured Chain Singh died at about 10.50 a.m. on 20-4-1996, hence offence under Section 302, IPC was added. After completion of investigation charge-sheet under Sections 307 and 302, IPC came to be filed. In due course, this case came up for trial before the learned trial Judge who framed charges under Sections 307 and 302, IPC. The accused pleaded not guilty and claimed trial. The prosecution examined as many as twenty witnesses. Thereafter the accused was examined as provided under Section 313, Cr. P.C. He denied the prosecution evidence and stated that his father had already filed a case against Dhan Singh, Nathu, Daulat Ram and Mangilal and he was implicated on account of this enmity. However, the accused-appellant did not examine any witness in defence. The learned trial Court having heard final submissions, acquitted the accused-appellant for an offence under Section 302, IPC but convicted and sentenced him as stated hereinabove.
4. I have heard learned Counsel, learned Public Prosecutor and scanned the entire evidence. Firstly, the medical evidence is to be considered. P.W. 2 Dr. Hem Raj, examined injured Chain Singh at about 10.30 p.m. on 19-4-1996 in Govt. Hospital, Aklera, and prepared injury report Ex. P.2. He noted one lacerated wound 1 and 1/2″ x 1/4″ entering bony part on left temporal region, caused by blunt weapon which was found dangerous to life and duration of that injury was within 12 hours. He informed the Police Station, Aklera and referred the patient to S.R.G. Hospital, Jhalawar. At that time the patient was unconscious and was doing blood vomitings.
5. P.W. 3 Dr. R. C. Dube, Medical Jurist, Jhalawar, conducted the post-mortem on the body of Chain Singh at about 2.45 p.m. on 20-4-1996 and prepared the Post-Mortem Report Ex. P.3, according to which the injured died on the same day at about 10.50 a.m. He noted one stitched wound 1 and 1/2″ over left temporal bone of head with fracture of left temporal bone. The Scalp, Skull Bones (Vertex) were injured and membranes were congested. Clotted blood was present between skull and membrane. Brain was congested. There was effusion of blood with cranial cavity. Right side of heart was full of blood. Left side of heart was empty. In his opinion, mode of death was coma and cause of death was intra-cranial haemorrhage due to head injury.
6. On perusal of the medical evidence” given by P.W. 2 Dr. Hemraj and P.W. 3 Dr. Dube, deceased Chain Singh got one injury on left temporal region, which was dangerous to life and he died on account of this injury.
7. The next crucial point arises for consideration is as to whether the accused-appellant inflicted this injury and if so what offence is made out?
8. The prosecution examined P.W. 1 Sheo Ram, P.W. 5 Daulat Ram, P.W. 6 Dhan Singh, P.W. 9 Mangi Lal and P.W. 10 Nathu as eyewitnesses. All these witnesses were named in Parchabayan Ex.-P.6. P.W. 1 Sheo Ram stated before the trial Court that on account of marriage of his uncle, folk dance was going on and about 50 persons were present there. The deceased Chain Singh was also sitting there near school but he did not see as to who inflicted injury upon Chain Singh. He also did not see the accused-appellant there and the accused-appellant did not inflict any injury upon Chain Singh. Thus he was declared hostile. In cross-examination, he stated that some stones from the wall fell upon the head of Chain Singh. It was also stated by him that Daulat Ram came there later on. P.W. 5 Daulat Ram, uncle of the deceased was the informant. He stated that about 50 persons were seeing the folk dance in front of the school and at that time the accused inflicted a lathi blow upon the person of Chain Singh and ran away. The injured was taken to the hospital, where he died. P.W. 5 Daulat Ram admitted his thumb impression on Parchabayan Ex. P.6. In cross-examination he admitted that he subsequently came to know that the accused-appellant Ghamlya inflicted lathi blow and he saw the accused running away from the place of occurrence. P.W. 6 Dhan Singh stated that at about 10-11 p.m. in the night, folk dance was going on and a number of persons assembled there and at that time the accused-Ghamlya inflicted a lathi blow upon the head of Chain Singh, who was sitting near school and he was taken to hospital at Jhalawar, where he died. In cross-examination, this witness stated that the deceased was his cousin brother. Daulat Ram and Mangi Lal were not present at that time and they came subsequently. He denied that any stone fell upon Chain Singh. P.W. 9 Mangi Lal stated that he was also present there and the accused-appellant inflicted a lathi blow upon the forehead of Chain Singh, who was sitting near school. In cross-examination he admitted that he is in relation of Chain Singh and he reached the place of occurrence subsequently. He also admitted this fact that father of the accused had filed a case against Dhan Singh, Nathu, Daulat Ram, Sheo Ram and others. He pleaded ignorance to the fact that Chain Singh got injury on account of falling of stone. P.W. 10 Nathu, real brother of deceased Chain Singh deposed that it was the accused-Ghamlya, who inflicted a lathi blow upon the head of his brother Chain Singh and thereafter Chain Singh fell down and accused escaped. Chain Singh was taken to Aklera and then to Jhalawar. At that time Chain Singh was unconscious and he expired at Jhalawar. In cross-examination, this witness stated that Chain Singh was sitting near school wall. He also admitted this fact that stones from wall fell down and he did not see actual blow being inflicted as he was busy in seeing the folk dance.
9. Learned Counsel for the appellant contended that there was delay in lodging the F.I.R. which was not explained and it creates doubt in the prosecution case. But this contention has no force in the facts and circumstances of the present case as this incident took place at about 11 p.m. in the night and looking to the nature of the injury, the injured Chain Singh was taken immediately to the hospital at Aklera, where P.W. 2 Dr. Hem Raj examined him the next day at about 10.30 a.m. and thereafter he referred the patient to Jhalawar Hospital at about 11.30 a.m. from where Chain Singh was taken to Jhalawar, where he died on 20-4-1996. According to the statement of P.W. 15 Om Prakash, Head Constable, he came to the hospital and recorded Parchabayan of P.W. 5 Daulat Ram and thereafter case was registered. Thus it is evident that the informant and other members of the family of the injured Chain Singh were busy in the treatment of Chain Singh, hence delay in lodging the F.I.R. does not appear to be fatal in this case at all.
10. Learned Counsel for the appellant next argued that oral testimony of the eyewitnesses is not reliable and there was enmity between the complainant party and the appellant and on account of that enmity, the appellant was falsely implicated and this possibility cannot be ruled out that Chain Singh got this injury on account of fall of stone from school wall. Learned Public Prosecutor contended that no such suggestion was given to doctors that such injury may be caused by fall of stone and secondly there is no reason to disbelieve the oral testimony supported by medical evidence. I have considered the rival submissions and evidence. As stated hereinabove, five witnesses were examined as eye-witnesses of this occurrence. Out of them P.W. 1 Sheo Ram did not depose against the appellant and he was declared hostile. His statement in cross-examination cannot be relied upon that Chain Singh got head injury on account of fall of stone as he states that he heard hue and cry like that. Thus he himself did not see that any stone fell upon Chain Singh. Learned defence counsel rightly contended that P.W. 5 Daulat Ram does not appear to be an eye-witness as he himself admitted in cross-examination that he came to know subsequently that it was the accused-Ghamlya, who inflicted lathi blow. But he specifically stated that he saw the accused running from the place of occurrence. P.W. 6 Dhan Singh categorically stated that he saw that Chain Singh was sitting near school and at that time accused-Ghamlya gave a lathi blow upon the forehead of Chain Singh and nothing adverse came out in cross-examination. His oral testimony cannot be disbelieved because he is said to be the cousin brother of the deceased-Chain Singh. As far as the oral testimony of P.W. 9 Mangi Lal is concerned, his presence also seems to be doubtful at the place of occurrence as P.W. 6 Dhan Singh clearly stated in cross-examination that Mangi Lal was not present at the time of incident and Mangilal and Daulat Ram came there later on. P.W. 10 Nathu also corroborated the statement of P.W. 6 Dhan Singh although he admitted in cross-examination that some stones from the wall fell down but even no such suggestion was given to him that any stone fell upon the head of his brother Chain Singh. Therefore, there is no cogent reason not to rely upon the oral testimony of P.W. 6 Dhan Singh and P.W. 10 Nathu that it was the appellant who inflicted a lathi blow upon the forehead of the deceased-Chain Singh and further the oral testimony finds complete corroboration from the medical evidence as discussed hereinabove.
11. Learned Counsel for the appellant next contended that the offence made out falls within Part II of Section 304, IPC and the learned trial Judge has wrongly convicted and sentenced the appellant under Section 304-A, IPC. Learned Public Prosecutor did not object to the above submission and rightly so. According to the prosecution case the appellant came and all of a sudden inflicted one lathi blow upon left temporal region of Chain Singh and ran away from the place of occurrence. This injury being dangerous to life, proved fatal and the injured expired after two days in the hospital. Thus, it is proved that the appellant inflicted this lathi blow with the knowledge that it is likely to cause death and this injury was inflicted without any intention to cause death or to cause such bodily injury as was likely to cause death. It appears that the conviction recorded by the trial Court under Section 304-A, IPC was due to inadvertence and thus the offence proved was under Section 304, Part II, IPC. This contention is also acceptable that there was no need to record conviction and pass separate sentence under Section 307, IPC.
12. On the point of sentence, it was contended that appellant inflicted only one lathi blow and that too all of a sudden. The appellant has already served sentence of about four years and one month, therefore, it would be appropriate to sentence him with the period already undergone. Reliance is placed upon Vinod Kumar v. State of U.P., (2000) 7 JT (SC) 495, wherein two accused was held guilty for offence under Section 304, Part II, IPC. Trial Court sentenced them five years’ rigorous imprisonment. In appeal, High Court reduced the sentence to a few months already undergone and in appeal for enhancement of their sentence, Hon’ble the Apex Court on the facts and circumstances of that case, sentenced them to one year rigorous imprisonment and fine. Another judg-merit relied upon in Hariman v. State of Rajasthan, (2000) 2 RCC 1056, wherein the appellant was sentenced to seven years’ rigorous imprisonment and fine for an offence under Section 304, Part II, IPC. This Court in appeal reduced the sentence from seven years to five years and fine. Keeping in view the entire facts of the instant case, the sentence of five years and fine imposed by the trial Court would meet the ends of justice.
13. Consequently, the appeal is partly allowed. The conviction of the appellant under Section 304, Part II, I.P.C. is maintained. The sentence is reduced to a period of five years’ R.I. and the amount of fine imposed by the trial Court.