D.L. Mehta, J.
1. Both these appeals are directed against the same judgment passed by the learned Additional Sessions Judge, Kota dated 1st October, 1982, in sessions case No 31/1082. by which the learned Additional Sessions Judge, convicted the accused appellant Kailash, for the offence Under Section 304, Part-11, IPC and sentenced to undergo 7 years, rigorous imprisonment and a fine of Rs. 1,000/-, in default of payment of fine the accused-appellant Kailash, will further suffer 6 months simple imprisonment. The learned Additional Sessions Judge, also convicted accused Kailash for the offence Under Section 331 read with Section 35, IPC and sentence him to under 6 months RI and a fine of Rs. 250/, in default of payment of fine accused Kailash will have to charge two month's simple imprisonment.
2. Learned Additional Sessions Judge, also convicted accused appellants namely Satyendra and Yogendra, for the offence Under Section 304, Part-II read with Section 34, IPC and sentenced them to undergo 3 year's rigorous imprisonment and a fine of Rs. 500/- cash. In default of payment of fine they will further undergo 3 month's simple imprisonment. The learned Additional Sessions Judge, also convicted the accused appellant Yogesh for the offence Under Section 334, IPC and sentenced him to undergo 6 months RI and a fine of Rs. 250/-and is default of payment of fine he will further undergo 3 month's simple imprisonment. The learned Additional District Judge 1, also convicted the accused-appellant Satyendra, for the offence Under Section 324/34, IPC aid sentenced trim to undergo 3 month's rigorous imprisonment and a fine of Rs. 250/- and in default of payment of fine be will farther undergo 2 months simple imprisonment. It was also directed by the learned Additional Sessions Judge, that all the sentence awarded to the accused appellants shall run concurrently.
3. Prosecution story unfolded during the trial is that on 18th October, 1980 First Information Report, was lodged at Police Station, Bheem Ganj Mandi Kota It was stated therein that in the intervening night of 17/18th October, 1980 all the accused persons came in the Jagaran and a quarrel took-place. It was also submitted that Prakash Chand intervened. It was also stated that Yogeridra was sitting in a shop at a distance of 50 steps and he called Prakash Chand at that time. Accused Kailash and Satyendra and Yogesh were standing near the shop. It was further stated that accused Yogesh and Satyendra, rebuked Prakash and also cought hold him and accused Kailash, inflicted a blow on the right thigh from the back side. It was also stated there in that Prakash Chand, sustained injury on the thumb and he also sustained some abrasions. A case udder Section 307/34, IPO was registered initially. How ever, it was converted in a case Under Section 302/34, IPC. During the investigation Prakash Chand succumbed to his injuries.
4. On behalf of the prosecution Anand Kumar P.W. 7, P.W. 11 Gyarst Lal P.W. 1 Rameshwar Prasad, and P.W. 6 Gurudayal Singh, have been produced as eye witnesses.
5. Mr. Mehrish, learned Counsel for the appellants submitted that the adverse inference should be drawn as Ghanshyam, whose names finds place in the First Information Report has not been produced. He has also submitted that P.W. 7 Anand Kumar, has been declared hostile and his evidence is of no I value. He has further submitted that P.W. 8 Rameshwar Prasad, is a child of 11 years of age and P.W. 6 Gurudayal, is a child of 20 years of age. He has pointed out number of contradictions and discripencies in the statements of these witnesses. Mr. Sanjay Mehrish, further submits that these eye witnesses are partisan witnesses chance witnesses and they are not trust worthy. Mr. Sanjay Mehrish, has also invited my attention to the statement of Dr V.K. Sharma P.W. 5. The doctor, has opined that the injuries were likely to cause death. He further states that the injuries which were sustained was not on the vital part of the body. He further stated that the injury which was sustained by deceased Prakash on the thumb of the hand might have been caused during the scuffle. He further states that the two injuries are minor bruises. He further (Mr. Mehrish), further submit that from the perusal, of the report of the Doctor, as well as from the nature of injuries one cannot think of the fact that the accused wanted to commit a crime which may fall within the purview of Section 304(2), IPC. He further submits that at most, if the evidence of the prosecution is relied upon the case of accused Kailash, may fail within the purview of Section 326, IPC and against the other accused, the common intention cannot be derived from the evidence on record.
6. Learned Public Prosecutor appearing on behalf of the State, has supported the judgment of the court below. He has argued that though it is a case of quarrel amongst the students. How ever, looking to the facts and circumstance of the case, no leniency should be shown to them.
7. Mr. Mehrish, learned Counsel for the appellants further argued that conviction may be maintained but looking to the age of the accused the benefit of Probation of Offenders Act, should be extended in favour of the accused appellants as they are below 21 years of age. He has also invited my attention the statements recorded Under Section 313, Cr. PC. Age of accused Satyendra, has been shown as 18 years, age of accused Yogesh, has been shown as 19 years and the age of accused Kailash, has also been shown as 19 years The statements were recorded on 13-1 -1982 i.e. after more than one year of the occurrence. From the perusal of the statements and the estimated age of the court, I am of the view that all the accused persons were below 21 years of age at the time of occurence. All the accused persons have also submitted their school certificate and from the perusal of the school certificates submitted by the accused persons, we find that all the accused were below 21 years of age and were in the range of 18 to 19 years of age at the time of commission of crime. On behalf of the accused appellant Kailash, Character Certificate, issued by the assistant Head Master, Jawahar Lal Mehra, Government Higher Secondary School, Bheem Ganj, Kota, has also been produced and in which it is mentioned that the student bears a good moral character.
8. I have heard the rival contentions made by the learned Counsel for the parties and perused the record of the case. I have also gone through the statements of the witnesses. I am of the view, that the court-below was justified in holding that the accused appellant Kailash, inflicted the knife blow on the backside of the thigh. This is only the grievous injury and the other injuries are bruises one of the injury is on the thumb and which is also simple in natute. From the perusal of the statements, of the eye witnesses and the statement of the Doctor, I am of the view, that all the 3 accused persons participated in the commission of crime and the court-below has rightly held that the Kailash is the author of the injuries which were sustained by the deceased on the back side of the right thing. It will not be out of place here to mention that all the accused were below 21 years of age and at the time of commission of crime all the accused were students. Since 1982, they are on bail and their sentences have been suspended and I am dealing with this case in the year 1990 In all probability, it seems that they might have settled-down in their life. It is neither desirable nor proper to send them back to jail after a lapse of more than 8 years on account of pendency of appeal. A part from that all the accused persons have remained in jail during the pendency of trial and appeal for a period of exceeding 18 months.
9. As far as accused-appellant Kailash, is concerned from the warrant I find that he has remained in jail from 31-1-1981 to 4-2-1981. During the trial and thereafter he remained in jail from 4-2-1981 to 1-10-1982, during the pendency of appeal. Thus, accused Kailash remained in jail for one years and 9 months during the entire period. At that time he was child of 19 years of age and there was no intention to cause death to the deceased. He has caused only one injury. Taking conspicuous picture of the case of accused Kailash, I am of the view that the benefit of Section 4 of the Probation of Offenders Act, should be extended in his favour.
10. The other accused appellants namely Yogesh and Satyendra have been convicted for the offence Under Section 304 Part II read with Section 34, IPC and they stand on better footing in comparsion to accused Kailash. Both these accused were also students and their age were at the time of occurence was 18 years and 19 years. In the facts and circumstance of the case. I do not consider it proper to send them back to jail.
11. In the result, the conviction awarded to the accused appellants is maintained on all count. However, the benefit of Section 4 of the Probation of Offenders Act, is extended in their favour and the sentences awarded to them is set-aside. All the accused persons are on bail and their sentence have been suspended. It is, therefore directed that they will be released on bail on entaring into a personal bond in the sum of Rs. 10,000/- together with two sureties in the sum of Rs. 5,000/- each to appear and receive sentence as and when called upon during the period of 3 years and in the meantime, to keep peace and be of good behaviour.
12. Looking to the age factor. I also consider it proper that the benefit of Section 12 of the Probation of Offenders Act, should also be extended in their favour and here by direct that the appellants shall not suffer the disqualification if any touching to the conviction of the offence under the Law in the matter of service. The appellants shall submit their bonds within period of 3 months from today, falling the court shall issue the warrants for for their arrest to undergo remaining part of the sentences.
13. Both these appeals are disposed of accordingly.