Judgment:
R.B. Dixit, J.
1. Feeling aggrieved by judgment and order of conviction dated 23-3-2001 passed in Sessions Trial No. 207/95 of Additional Judge to Sessions Judge, Bhind at Gohad thereby convicting appellant under Section 304 Part I, IPC and sentenced him to 7 years rigorous imprisonment with fine of Rs. 1,000/-, appellant has come up in appeal seeking redress praying for setting aside the aforesaid sentence and conviction against him.
2. The brief facts leading to the prosecution of the appellant lie in a narrow compass:
On 6-7-95 at about 5 p.m. when deceased Babu and injured Pralhad were gossiping with Matadin in front of their hut, appellant armed with lohangi alongwith other acquitted persons, who were also armed with lathi arrived there. There was wardy quarrel between Matadin and Gopal and then appellant and Tularam started abusing. Betal assaulted Matadin with a lohangi on his head when deceased Babu and Pralhad intervened appellant Kashiram assaulted deceased with a lathi on his head. When deceased fell on the ground Tularam also assaulted him on the right hand with his lathi. Pralhad was also assaulted by Gopal with lathi.
3. Matadin (P.W. 5) lodged First Information Report (P-5) at Police Station, Guhisar. Deceased was brought in Primary Health Centre, Gohad in unconscious stage where after examination of his injuries he was referred to J.A. Groups of Hospital, Gwalior, where next day he succumbed to his injuries. I In his medical examination injury No. 1 was a lacerated wound on left parietal region of skull while injury No. 2 was also lacerated wound from occipital to parietal region of the skull. Two other injuries were simple abrasions caused on right hand and both the knees. A fracture was present anterior to right parietal emminence. The cause of death was head injuries.
4. Pralhad had suffered two lacerated wounds on right and left parietal region. Similarly, Matadin had also sustained two lacerated wounds on parietal region of the skull. From accused side Betal had sustained one lacerated wound on parietal region apart from two contusions on right elbow, while Gopal sustained lacerated wound on left scapula and right scapular region of the back.
5. The learned Trial Court after recording evidence of both the parties came to the conclusion that it was a case of free fight and it was not possible ascertain as to which party was first aggressor. In the circumstances acquitted other co-accused persons except appellant and found appellant guilty of offence under Section 304, Part I, IPC and sentenced him accordingly.
6. The learned counsel of the appellant has submitted that since the Trial Court had disbelieved all the eye-witnesses and came to the conclusion that in this free fight between both the parties members of both the parties had received injuries and where it is not ascertainable as to which of the party was aggressor the appellant is entitled to benefit of reasonable doubt as extended to other co-accused persons. However learned panel lawyer appearing for the State has supported the finding of the Trial Court.
7. It is not disputed that deceased had sustained two injuries on the head and only one out of the two injuries is attributed to the appellant. The other injury was said to have been caused by co-accused Tularam. However, from First Information Report it is borne out that appellant was first to assault the deceased and effect of it was that deceased fell unconscious on the ground, thereafter he was assaulted by co-accused Tularam. In the circumstances it has been established that the first blow of the appellant had proved fatal to the life of the deceased. In the circumstances appellant can not claim parity with co-accused Tularam in so far as causing the fatal injury to the deceased which ultimately resulted in his death.
8. However, the fact remains that in case of free fight between both the parties where members of both the parties had sustained injuries and where it is not established that accused was first to assault and further where no second blow was attributed to the appellant, the necessary ingredients constituting an offence under Section 304, Part I, IPC is missing on the part of the appellant. Only knowledge on his part to cause death can be attributed to him, which amounts to an offence under Section 304, Part II, IPC. The learned Trial Court in the circumstances erred in holding the appellant guilty under Part I of Section 304, IPC.
9. In a Division Bench decision of this case in case of Narayan Das and Anr. v. State of M.P., reported in 1992 JLJ 685, it was observed that where inflicting of two blows not mentioned by witness in police statement the story of two blows being inflicted in Court statement can not be believed. It was further observed that 'knowledge' is awareness of certain facts, in which human mind remains supine or inactive. On the other hand, 'intention' is a state in which mental faculties are summoned into action or aroused into activity forthe purpose of achieving a conceived end. Intention may be said to be shaping of one's conduct so as to bring about a certain event. Intention need not necessarily involve pre-meditation. So also it is not necessary that in order that any injury may be intentional, the accused should have intended an injury of a particular degree of seriousness. The question is not whether the accused intended to inflict a serious injury or a trivial one, but whether he intended to inflict that injury. It was further observed that in case of suddenly verbal altercation took place and one blow landed on the head of victim, the offence falls under Section 304, Part II of IPC.
10. In so far as sentence is concerned, in aforesaid D.B. decision in case of Narayan Das (supra) where similar blow was attributed to the appellant, the sentence of 15 months was found sufficient under Section 304, Part II, IPC. While in the present case the appellant has already undergone imprisonment for more than 16 months, which in facts and circumstances of the present case seems to be a sufficient punishment to meet the ends of justice.
11. For the reasons stated hereinabove, this appeal is partly allowed and the conviction and sentence of the appellant is modified from Section 304, Part I to Section 304, Part II, IPC and sentenced to the period of imprisonment already undergone by him together with fine of Rs. 1,000/- as imposed by the Trial Court. It is stated that the fine has already been deposited.
12. Criminal Appeal partly allowed.