Gauhati High Court
Keshab Choudhury vs State Of Assam on 22 August, 1986
Equivalent citations: 1987CRILJ1742
Author: K.N. Saikia
Bench: K.N. Saikia, B.L. Hansaria
JUDGMENT K.N. Saikia, J.
1. As these two appeals are from the same judgment they are heard and disposed of analogously.
2. On an ejahar dated 21-9-1975 lodged by Kunjabala (P.W. 2) at the Tihu outpost of Parawa Police Station, stating that the accused-appellant, Keshab Choudhury, hereinafter referred to as 'the appellant', killed Karuna striking with a spade, police investigated and charge-sheeted the appellant who was charged under Section 302,I.P.C.
3. Dr. Umesh Chandra Barua, the then S.D.M. & H.O. at Nalbari performing autopsy on Karuna's cadaver on 21-9-75 found the following injuries:
(1) One lacerated wound on the scalp over the left temporal region - 3" X 1" X skull deep.
On dissection he found At the site of the above injury the temporal bone was fractured. Membrane was lacerated with haemorrhage. Brain was lacerated with haemorrhage in the temporal region.
4. At the trial, while the prosecution examined 7 witnesses, including the Doctor and the Investigating Officer, the defence examined two witnesses in support of the appellant's plea of alibi. P.Ws. 4 and 5 claim to be eye-witnesses. In his statement under Section 313, Cr. P.C. the appellant denied the allegation and pleaded alibi being present at his P.W.D, quarter at Barama and not at his village home. The informant Kunjabala (P.W. 2) and the scribe Gajen (P.W. 3) are not eye-witnesses to the occurrence. The narratives of the prosecution story is unfolded by P.Ws. 4 and 5. P.W. 5, Gurucharan Kalita, deposed that at the time of occurrence he was ploughing his own paddy field about 240/260 feet away from the place of occurrence. Karuna came by the road taking seedlings in a bullock cart, and keeping the cart on the road he was proceeding to his paddy field driving the pair of bullocks taking the plough and yoke on his shoulder; and when he reached the appellant's land, the latter struck him on the head from the back with the blunt side of a spade and immediately Karuna fell down on his face. One Kalicharan (since deceased) was near and P.W. 4 Kirti was also ploughing nearby. Running to the spot he (P.W. 5) found Karuna dead and the appellant was running towards the south with the spade in hand. Kalicharan and Kirti also came to the place of occurrence and hearing Kirti's cry many others came. Karuna's father, Dhaneswar also came and while Gurucharan was taking Dhaneswar back home he met the informant, Kunjabala (P.W. 2), aunt of the deceased, near the 'Gosaighar' and told Kunjabala that the appellant had killed Karuna and asked her to inform thana. In cross-examination Gurucharan said that he did not hear any altercation between Karuna and the appellant and only saw the latter assaulting the former. According to him the appellant struck Karuna several times but neither he nor Kalicharan raised any cry. Karuna was struck from back side and he fell down and his face sank in the mud. A part of the appellant's land was made muddy on the previous day. Gurucharan earlier took the appellant's land on adhi but was forcefully dispossessed therefrom. He did not know why the appellant killed Karuna. He denied the suggestion that he was fined by the appellant in any 'Mel'. He also took Kunjabala's land on adhi terms.
5. Being informed by Gurucharan, Kunjabala went to the place of occurrence and saw Karuna lying dead. Coming back home she went to her mother's place and met her brother, Gajen (P.W. 3) whom she asked to write the ejahar but the latter refused and aksed her to go to the thana. Accordingly, both went to the thana and Kunjabala reported the occurrence verbally and the Daroga stated to have recorded the same. Later the ejahar was written by Karuna to the dictation of Kunjabala and the same was lodged and was received at Barama P. S. through the in charge of Tihu Outpost and was treated as F.I.R. (Ext. 4).
6. P.W. 4, Kirti Ram Baraman, a co-villager of the appellant as well as of the deceased, was ploughing 10/15 nals' (120/180 ft) away and saw the appellant coming to his nearby field with a spade, He also saw Karuna coming through the road with seedlings on his cart, stopping the cart on the road and proceeding with his pair of bullocks towards his land situate across the appellant's land. The appellant would not allow his prepared land to be trodden by Karuna and his bullocks and asked Karuna as to which way he wanted to drive his bullocks. Karuna having shown across the appellant's land, the latter did not allow him and drove back the bullocks and as Karuna was about to take a turn the appellant struck Karuna on his head with the blunt side of his spade from the back side and Karuna fell down. P.W. 4 then came near the occurrence raising a cry. So also came Gurucharan (P.W. 5) and Kalicharan (since deceased). Then the appellant immediately left the place for home.
7. The appellant, then Head Assistant at the P.W.D. Office at Barama, in his statement under Section 313, Cr. P.C. denied the charge and said that the witnesses were deposing falsely out of grudge and that day before occurrence and on the day of occurrence he was not at his home but at his official quarter at Barama. He examined Kamala Kanta Talukdar, then S.D.O., P.W.D. at Barama as D.W. 1 and Bijoy Kumar Rakshit, a Sectional Assistant of the same office, as D.W. 2, in support of his plea of alibi.
8. The trial Court having convicted the appellant under Section 304, Part I of the I.P.C. and sentenced him to rigorous imprisonment for five years and to pay a fine of Rs. 2,000/-, in default to rigorous imprisonment for six months, he now appeals in Criminal Appeal No. 43/79. The trial Court having not convicted the appellant under Section 302, I.P.C. the State also appeals in Govt. Criminal Appeal No. 39/79.
9. Assailing the conviction, Mr. P. C. Kataki, for the appellant, first submits that the ejahar (Ext. 4) was not the first information and it was hit by Section 162, Cr.P.C. and that the first information was withdrawn and the subsequent ejahar contained many details, which were not there in the first information. Mr. K. P. Sarma, the learned Public Prosecutor admits that a G. D, entry was made on report of Karuna Das and Haren Kalita at the Tihu Outpost at 8 A.M. and a written ejahar of Dhaneswar, Karuna's father, was received through Haricharan Gaonbura at 11.30 A.M. at Barama P.S. after the ejahar (Ext. 4) was lodged at the Tihu Outpost at 9.30 A.M. on 21-9-75 by Kunjabala, which was received by Barama P.S. at 3.15 P.M. and was treated as First Information Report.The G.D. entry and the ejahar lodged by Karuna's father, both of which named Keshab Choudhury as the offender, were not exhibited in the case, and cannot therefore be relied on. However, P.W. 7, Bhudhar Deka, O/c Barama P.S. stated that on 21-9-75 he received the written ejahar of Kunjabala (Ext. 4) forwarded to him for registration of a case by endorsement of Nagen Barua, in charge of Tihu Outpost and he registered a case under Section 302, I.P.C. and sent one Tara Singh Hazarika for preliminary step in the case. He visited the locality and prepared inquest on the cadaver of Karuna (Ext. 5) and seized some articles and sent the dead body for autopsy. After that Bhudhar himself went to the place of occurrence for investigation, examined some witnesses, namely Kirti, Kalicharan, Gurucharan and Gajen at about 6.30 P.M. and arrested the appellant with the permission of S.D.O., P.W.D., prepared a sketch map (Ext. 10), seized some clothes by Ext. 10 and sent Gurucharan and Kirti for their examination under Section 164, Cr.P.C. He submitted charge-sheet on completion of investigation. It cannot, therefore, be said that investigation started either on the basis of the G.D. entry or on the basis of the written ejahar submitted by Dhaneswar. Investigation started only after Ext. 4 was received at the Barama P.S. The arrest and recording of information report by the police is not a condition precedent to the setting in motion criminal investigation. The statute also does not provide that the first information report can be made only by an eye-witness. But for any information recorded in writing being hit by Section 162, Cr.P.C. it has to be shown that the recording was in course of investigation. Under Section 162(1) no statement made by a person to a police officer in the course of investigation under that Chapter shall, if reduced in writing, be signed by the person making it nor shall any such record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any, purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Section 162 does not refer to every the police, but only to statements in the course of an investigation under Chapter 12 into cognizable and non-cognizable offences. The ban under Section 162 does not apply to any statement to the police before starting investigation. All information received after the commencement of investigation is covered by Section 162. Statements prior to commencement of investigation will not be hit. Reliability of the later statement, of course, is a different matter. As there is no evidence of any investigation having started on the basis of the G.D. entry or the F.I.R. lodged by Dhaneswar, it cannot be said that Ext. 4 was hit by Section 162, Cr.P.C. The submission is, therefore, not tenable.
10. Mr. Kataki next submits that there are discrepancies between the evidence of Kunjabala and Gajen. We do not find any material discrepancy. Kunjabala said that she was informed by Gurucharan about the appellant having killed Karuna. Gajen also deposed that Kunjabala narrated the occurrence to him and also told that Gurucharan came and informed her of the occurrence. While Kunjabala deposed that after being informed by Gurucharan near the Gosainghar she went alone to the place of occurrence and was not aware if anybody went with her, she did not tell Gajen about her going to the place of occurrence. Gajen also says that Kunjabala told him that she had seen the occurrence but did not state that she heard about the occurrence from others. There is no such discrepancy as regards Kunjabala and Gajen going to the thana, about Gajen's first refusing to write the ejahar but subsequently having written it to the dictation of Kunjabala. We do not think that these discrepancies in any way affected the substratum of the prosecution story. P.W. 7 also has not pointed out any discrepant statement to have been made by these two witnesses.
11. Mr. Kataki has criticised the conduct of Kunjabala in that she took more active part in going to the thana, reporting the matter, and lodging the ejahar than the male members of the family. However, there is evidence to show that her husband Anandi was not at home and Karuna's father Dhaneswar was ill. The fact that Karuna was her nephew has not been denied. Under the circumstances, therefore, we do not consider her conduct to be in any way suspicious so as to affect the prosecution case.
12. Mr. Kataki next points out what he called conflict between oral evidence and medical evidence in that while P. Ws. 4 and 5 spoke about several blows, the medical evidence shows only one; and that while the witnesses said that Karuna was hit from his back-side, the Doctor clearly opined that the injury could not have been caused from the back-side. Further while the witnesses said that Karuna fell face downwards and was buried in the mud up to the ear, the post mortem report does not show any mud being found.
13. It is true that P.W. 5 said that when Karuna reached the appellant's field, the latter struck him on the head from back with the blunt side of a spade and immediately Karuna fell down on his face. In cross-examination he said that the appellant struck many times while he was lying. P.W. 4 also said that after Karuna had fallen down on his face, the accused struck him many times but he did not know where the strikes fell and he could not notice if the strikes fell on the ground. We have seen that both P.Ws. 4 and 5 saw the occurrence from the distance of more than 100 feet. A blow aimed at may not always land on the victim. There may be a little exaggeration on the part of witnesses. From this discrepancy we are not inclined to disbelieve the witnesses altogether in so far as the blow landed on Karuna resulting in his death. The blows aimed may not also be meant to hit the victim but only to terrify him. The presence of the two witnesses at their own paddy field during the morning ploughing hours appears to be natural. No enmity, which would be enough for disbelieving the witnesses, has been pointed out. In Chanan Singh v. State of Haryana where the High Court did not at all take into consideration the discrepancy between medical evidence and the oral evidence, the former showing that there was only one gunshot and witnesses saying that they heard reports of firing twice at close range, the Supreme Court set aside the conviction and accepted the appeal. Similarly, in Ram Narain v. State of Punjab , where the direct evidence was not supported by the expert evidence and the evidence was wanting in most material part of the prosecution case, it was held that it would be difficult to convict an accused on the basis of such evidence. If the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. The High Court, it was observed, did not appear to have considered this aspect but readily accepted the prosecution case without noticing that the evidence of the eye-witnesses in the Court was a belated attempt to improve their testimony and bring the same in line with the Doctor's evidence with a view to support an incorrect case. However, in Solanki Chimanbhai Ukabhai v. State of Gujarat their Lordships observed :
Ordinarily the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testmony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.
In the same line is the decision in Punjab Singh v. State of Haryana where the contention raised was that the medical evidence was inconsistent with the direct testimony, which was rejected for two reasons : (i) that if direct evidence is satisfactory and reliable the same cannot be rejected on hypothetical medical evidence; and (ii) that if medical evidence is properly read, it only shows two alternative possibilities but not any inconsistency. In Purshottam v. State of Madhya Pradesh it was held that where there is contradiction between medical testimony and alleged eye-witnesses regarding fatal injury of deceased, the medical testimony to be preferred. The question in that case was as to whether one clean cut injury could have been caused by more than one blows.
14. In the instant case the discrepancy 4, wepointed out is as to the number of spade blows dealt by the appellant on the person of Karuna. The doctor did not say that the injury could not be caused by spade. On the other hand the doctor said that the injury in question could be caused by the blunt side of the spade. The fact that there was fracture of the temporal bone at the site of the injury leads to the same conclusion. The Doctor's statement that the injury could not have been caused from the back-side is a hypothetical evidence. It overlooks the fact that Karuna was taking a turn when the blow landed on his temporal region. The direction of the injury has not been stated. The temporal region of one's head can be struck both from the front as well as from the back. Under these circumstances we are not inclined to disbelieve the testimony of eye-witnesses that Karuna was hit from the back. As to number of blows no question was asked to the doctor. Considering the fact that the occurrence took place in a rural and agricultural setting and accounts given by the eye-witnesses appealing to be natural and probable we are not inclined to doubt that the appellant struck Karuna as narrated by the eye-witnesses. As regards the statements as to several blows believing P.W. 4, we are of the view that the blows attempted may not have landed on Karuna's person.
15. Mr. Kataki next submits that the evidence of the defence witnesses was not appreciated in the same way as that of the prosecution witnesses. We have carefully considered the evidence of D.Ws. 1 and 2. The appellant had a bicycle. He was arrested on 21-9-75 from the quarter of D.W. 1, Kamala Kanta Talukdar, S.D.O., P.W.D. who stated that the appellant came to his home taking files that morning. On 20-9-75, which was a Saturday, the appellant worked with him till 6/7 P.M. but he did not know what the appellant did thereafter. According to him when the appellant tame to him in the morning on 21-9-75 the witness did not find him in any abnormal mood. From the attendance register maintained at their office it appeared to the witness that on 20-9-75 the appellant worked in office till 4 P.M. There was no record of any overtime work. While in examination-in-chief D.W. 1 said that at about 6 A.M. on the date of his arrest, that is, 21-9-75 the appellant came to the witness's quarter. He did not maintain any note to that effect and also as to what file was brought by him for his signature. According to the witness, the appellant's village was 7/8 miles away from Barama P.W.D. office. There was bus communication between Barama and Tihu. He did not know whether the appellant had a bicycle. The witness categorically stated that he did not know where the appellant stayed after 6/7 P.M. on 20-9-75. D.W. 2, Bijoy Kumar Rakshit, Sectional Assistant, P.W.D., Barama also had a quarter very close to that of the appellant. He met the appellant at 5 P.M. on 20-9-75 on the road in front of the office when the latter was coming out from the office. The witness Worked with the appellant at the latter's quarter on office files till about 9 P.M. whereafter the appellant was stated to have been cooking food and the witness left. He saw the appellant going to S.D.O. (D.W. 1) following morning at about 6 A.M. In cross-examination this witness clearly stated that at times the appellant used to go home and that his family did not live at Barama. Sometimes, if there was no work, the appellant used to leave for home on Saturday. In cross-examination P.W. 2 categorically stated that he did not know where the appellant left for after 9 P.M. on 20-9-75 and he did not know wherefrom the appellant came at 6 A.M. the following morning. He also said that sometimes the appellant used to do office coming from home on his bicycle. One could also get buses every half an hour. He said that he told the S.D.O. on 21-9-75 that he and the appellant worked up to 9 P.M. previous evening. From the above evidence of the two D.Ws. the presence of the appellant at the place and time of occurrence and his attending office on the same day is not impossible in view of the appellant's possessing a bicycle and bus communication every an hour between Tihu and Barama. Mr. Sarma refers to a G.D. entry to the effect that the appellant appeared at the thana at 8 A.M. This entry, however, was not exhibited and hence cannot be relied on. The appellant's coming to the official quarter of D.W. 1 at 6 A.M. on 21-9-75 is not credible in the absence of any note maintained by D.W. 1 to that effect. When he did not remember who else came at the same time, he cannot be believed when he said that he only remembered about appellant's coming at 6 A.M. In Dudh Nath Pandey v. State of U.P. it had been ruled that the defence witnesses are entitled to equal treatment with those of the prosecution; that Courts ought to overcome their traditional, instinctive disbelief in defence witnesses; and that often they tell lies but so do the prosecution witnesses. It has also been held that the plea of "alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. The defence witnesses in the instant case has not shown the physical impossibility of the appellant's presence at the place and time of occurrence. The plea of alibi has, therefore, been rightly disbelieved by the trial Court in face of clear and categorical evidence of the eye-witnesses in this case. As was held in Dharam Das v. State of U.P. unless the exaggeration and falsehood in the prosecution evidence are on points destructive of the substance of the prosecution story, it is the Court's duty to sift the evidence separating truth from falsehood, and come to its conclusion about the guilt or innocence of the accused. Exaggeration or falsehood on point which do not touch the core of the prosecution story are not to be given undue importance, provided there is trustworthy evidence supporting the real substance and core of the prosecution case. On the basis of the evidence on record we have no doubt that it was the appellant who caused the injury on Karuna's head and thereby causing his death.
16. The next question is what offence the appellant committed? Under Exception 4 to Section 300, I.P.C. "Culpable homicide is not murder if it is committed without premeditation, in a sudden fight, in the heat of passion, upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner". It is immaterial in such cases which party offers the provocation or commits the first assault The applicability of this Exception depends on facts. Whether the appellant took undue advantage of the deceased is also a question of fact.
17. Whether a particular injury is of the fatal or non-fatal type is a question of fact in each case. Whether the accused took undue advantage of the deceased is also a question of fact. Where the injury is sufficient in the ordinary course of nature to cause death and the accused took undue advantage of the deceased, the number of injuries or even the mere location thereof may not be material. In Narayanan v. State of Travancore Cochin where the fight was between the accused and Anr. and the deceased had no hand in it and did not even try to separate the assailants, but merely asked the other man to stop fighting and said that he would settle their dispute, the accused thereon gave such a blow with a pen-knife on the chest of the deceased, the stomach and the omentum had herniated together and the omentum protruded through the hole which the injury had made and the pleura and the diaphragm were both cut and the injury had extended right up to the abdominal cavity, it was held that the injury was sufficient to cause death in the ordinary course of nature and it was impossible to say that there was no undue advantage when the accused stabbed the unarmed person who made no threatening gesture and merely asked the accused's opponent to stop fighting. It was further held that Exception 4 to Section 300 did not apply and the appellant was rightly convicted Under Section 302, I.P.C.
18. In Chahat Khan v. State of Haryana it was held that when a person causes an injury on a vital part of the body, the intention to kill can be attributed to him and the Supreme Court refused to interfere with the clear conclusion of the High Court that the injury on the head, , which resulted in the death, had been caused by the accused, there being no infirmity in the conclusion of the High Court. In Jagrup Singh v. State of Haryana where the accused struck the deceased with the blunt side of a gandhala in the heat of the moment, without premeditation and in a sudden fight, the case was held to have been covered by Exception 4 to Section 300 and he was convicted under Section 304, Part II instead, of under Section 302 and was sentenced to rigorous imprisonment for seven years.
19. In Randhir Singh v. State of Punjab where the accused was a young college going boy and 'there was some altercation between his father and deceased, and the accused caused only one injury by giving a blow with a Kassi on the deceased, which weapon was not carried by the accused in advance, and there was no premeditation, it was held that the accused must be attributed the knowledge that he was likely to cause an injury which was likely to cause death Under those circumstances he was held to have committed an offence under Section 304, Part II and the sentence was reduced to rigorous imprisonment for five years. Similarly, in Kulwant Rai v. State of Punjab where a short quarrel was followed by assault and the accused gave the assailant one blow with a dagger that landed in epigastrium area and the victim succumbed to the injury, there was' nib prior enmity, and there, was no intention on the part of the accused to cause injury in question he was convicted under Section 304, Part I and sentenced to rigorous imprisonment for five years.
20. In Hari Ram v. State of Haryana Jagtar Singh v. State of Punjab and Tholan v. State of Tamil Nadu under similar circumstances the accused were similarly convicted. In Tholan (supra) the accused started remonstrations using filthy language against certain organisers of a chit fund who had no connection with the deceased, in front of the house of the deceased and the deceased came out of his house and asked the accused to go away, the accused on spur of moment gave only one blow with knife to the deceased and pushed him to some distance, it was held, in the circumstances of that case, that though requisite intention to commit murder could not be attributed to the accused, he wielded a weapon like a knife and, therefore, he could be attributed with knowledge that he was likely to cause an injury which was likely to cause death and that in such a situation though he could not be convicted under Section 302, he would be guilty of committing an offence under Section 304, Part II and was sentenced to rigorous imprisonment for five years.
21. In Jaspal Singh v. State of Punjab their Lordships have held that the nature of the offence does not depend merely on the location of the injury caused by the accused. The intention of the person causing the injury has to be gathered from a careful examination of all the facts and circumstances of each given case. Where the circumstances show that the accused had intended to cause injury on the vital parts of the deceased, the accused can be said to have been clearly guilty of the offence under Section 302,1.P.C. Where, however, the nature and use of the weapon are such that the accused did not intend to cause an injury sufficient in the ordinary course of nature to cause death, the case may be brought under Exception 4 of Section 300.
22. Judging by the stare decisis we have no hesitation in holding that the appellant's offence alls within Exception 4 to Section 300, I.P.C. and is punishable under Section 304, Part II and he cannot be convicted under Section 302, I.P.C. This is so because we find that there was no premeditation or malice prepense, the quarrel was sudden, the appellant struck the spade blunt side blow at the heat of passionin a sudden fight and did not take undue advantage and did not act in a cruel or unusual manner. The spade was ready in his1 hand as an agricultural implement and not as a weapon of offence. It is clear that he hit only once with the blunt side at Karuna's head and that too not with full force or impact wherefor it caused only internal fracture of the temporal bone and not even depressed fracture. He did not hit even twice, though Karuna fell. The appellant having already prepared his land for transplantation it was natural that he would not allow it to be trodden and Karuna instead of circumventing tried to cross it with his pair of bullocks. Of course, if Karuna did not transplant his field, he would have to starve. However, the appellant wielded a dangerous weapon and dealt a blow at vital part of the body and could be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. It is, of course, immaterial who gave the first provocation. In Jaspal Singh v. State of Punjab it has been held that the nature of the offence does not depend merely on the location of the injury caused by the accused; and the intention of the person causing the injury has to be gathered from a careful examination of all the facts and circumstances of the case. We take into consideration the social milieu whereunder the offence was committed. The inquest report does show that Karuna's body was lying on its knee with the face sunk in the mud The occurrence took place nearly eleven years ago and the appellant has so long been suffering the pangs of being prosecuted. We accordingly set aside the conviction under Section 304, Part I and instead convict him under Section 304, Part II, I.P.C.
23. We have given serious thought to the question of sentence. Section 304, Part II visualises sentence of imprisonment of either description up to 10 years or fine or both. In Hareswar Barua v. State of Assam (1986) 1 Gauhati LR 60, it was observed by this Court that there cannot be any rule of thumb in selecting a proper sentence, which will depend upon facts and circumstances of each case including the personal factors relating to the accused. From the record of the case, it is not known what the accused had stated when he was asked on the question of sentence as required by Section 235(2), Cr. P.C. this Court had occasion to state earlier that the questions put to the accused should be recorded along with his answers in the same way as is done while examining the accused under Section 313, Cr. P.C. This would enable the higher Courts to know whether relevant questions in this regard were put or not, so also, the answers of the accused to the questions asked. This was apparently not done. The questions put to the accused and answers, if any, being not known, we are in the dark about the personal factors relating to the accused except that he was Head Clerk in the P.W.D. Office. The occurrence took place more than a decade ago which itself is punishment in the cause. We, however, do not consider it to be a fit case for release on probation of good conduct under the facts and circumstances of the case as we want to avoid giving the impression to the villagers that well-to-do persons like the accused at hand may take a life without undergoing any real punishment.
24. At this stage it shall be appropriate to refer to Mohinder Pal v. The State of Punjab where the sentence on the factory owner was reduced to the period of imprisonment already undergone (which was of about 13 months) for the altered conviction under Section 304, Part II after pointing out that the occurrence had taken place more than a decade ago because of which the appellant had to pass long or deal both mentally and financially, the sentence of fine amounting to Rs. 10,000 A was not altered by the Apex Court. In Yogendra Morarji v. State of Gujarat the High Court, after setting aside the order of acquittal, had convicted the appellant under Section 304, Part II with a sentence of seven years' rigorous imprisonment On appeal, the Supreme Court, while affirming the conviction under Section 304, Part II, reduced the sentence to 6 months' R.I. with fine of Rs. 10,000/-. Keeping in view the above, we feel that a sentence of rigorous imprisonment for one year and a fine of Rs. 2,000/-(Rupees two thousand), in default to rigorous imprisonment for 6 months', shall meet the ends of justice and crime prevention; and so we award the same. Fine, if realised, shall be paid to the family of the deceased. The appellant is on bail. He shall surrender to his bail bond to serve out the remaining part of his sentence after set-off under Section 428, Cr. P.C.
25. In the result Criminal Appeal No. 43 of 1979 is partly allowed and Govt. Criminal Appeal No. 39 of 1979 is dismissed.
Hansaria, J.
26. I agree.