JUDGMENT 1. - The matter comes up on the application submitted by the accused appellant for suspension of sentence. The said application for suspension of sentence has been filed by the accused appellant on 25.10.2008 which had been lying in defect and the defects were removed on 07.09.2011. Thereafter the application was listed in the court for orders. 2. Learned counsel submitted that the accused appellant has been in custody since 18.12.2003 soon after the incident when he was arrested by the police. This fact regarding arrest of the accused appellant on 18.12.2003 is evident from the Exhibit P-23, the arrest memo available on record. As such, in view of the fact that the accused remained in judicial custody and the police custody throughout this period and is confined to the Central Jail, Jaipur and has, as on date completed more than seven years and ten months of sentence is not disputed. 3. Learned counsel submitted that arguments in this case so far as the application of suspension of sentence and so far as the hearing of the appeal on merits is concerned, would be same and, as such, looking to the fact that nearly seven years and ten months have elapsed, since the accused appellant was taken into custody, the appeal itself may be heard as it involves only a short question. 4. Opportunity was given to the learned Public Prosecutor to examine the record and to prepare the case. Learned Public Prosecutor has also consented to the hearing of the appeal on merits. 5. In the light of the above, we have heard learned counsel for the accused appellant as well as learned Public Prosecutor for State and examined the record and decided in the facts and circumstances to hear the appeal at this stage. Learned counsel for the accused appellant has submitted that the appeal can be disposed of on a short question namely whether in the facts and circumstances of the case, the conviction of the accused appellant can be upheld for the offence under Section 302 I.P.C., if not what is the offence committed and what sentence should be awarded. 6. Learned counsel for the accused appellant has submitted that the appeal can be disposed of on a short question namely whether in the facts and circumstances of the case, the conviction of the accused appellant can be upheld for the offence under Section 302 I.P.C., if not what is the offence committed and what sentence should be awarded. 6. The brief facts giving rise to the appeal are that the Informant PW-11 Mala Ram gave an information on 17.12.2003 at Police Station Neem-ka-Thana which is Exhibit P-9 on record, according to which at about 5:30 in the evening, the younger brother of Mala Ram namely Danta Ram was returning home when near his own well, Danta Ram started cutting the branches of tree and the accused Leela Ram son of Bhura Ram and Mohan Lal son of Bhura Ram came and objected and started quarreling with Danta Ram. Danta Ram got down from the tree and they proceed towards their house where Leela Ram came armed with an axe; Mohan Lal and Bhura Ram came armed with lathis and stopped Danta Ram enroute. At that point of time, Leela Ram inflicted a blow with the axe on Danta Ram. Mohan and Chhitar also inflicted blows but Mala Ram avoided the same and ran from the spot. It has further been alleged that the mother of Mala Ram Smt. Dhapli Devi intervened, as a result of which she also received a lathi blow inflicted by Bhura Ram. It was further stated that Mala Ram raised a hue and cry and on so doing the accused persons ran away. Thereafter, the informant Mala Ram and his mother took Danta Ram for treatment to the hospital at Neem-ka-Thana. Danta Ram became unconscious and had been referred to Jaipur for treatment. It was alleged that the named accused persons came armed with the common object of attacking the brother of Mala Ram namely Danta Ram. 7. Upon the aforesiad report, F.I.R. No. 396/2003 (Exhibit P-20) for the offence under Sections 341, 323, 324 and 307 I.P.C. was registered. 8. After the investigation was started, site plan of the place of incident was prepared. Smt.Dhapli was also medically examined and her Injury Report (Exhibit P-2) was prepared. The police recovered blood stained soil from the spot. During the course of investigation, the accused Leela Ram and Mohan Lal were arrested. 8. After the investigation was started, site plan of the place of incident was prepared. Smt.Dhapli was also medically examined and her Injury Report (Exhibit P-2) was prepared. The police recovered blood stained soil from the spot. During the course of investigation, the accused Leela Ram and Mohan Lal were arrested. The accused appellant Leela Ram gave the information under Section 27 of the Indian Evidence Act which is Exhibit P-25 about the Axe having been kept by him in his house. It was thereafter recovered by the police and sealed. The seizure memo of the Axe is Exhibit P-16. Thereafter the statements of Danta Ram's (injured-deceased) were recorded. His clothes smeared with blood were also recovered and sealed. The injury report of Danta Ram and the X-Ray report are Exhibits P-3, P-4 and P-5 respectively on the record. As per the evidence on record of the Doctor PW-7 Dr.R.C.Jain, Danta Ram was discharged from hospital after treatment on 20.01.2004 and thereafter Danta Ram died on 27.02.2004. The information regarding death of Danta Ram was conveyed by Shyopal by letter Exhibit P-9 to the S.H.O., Police Station, Neem-ka-Thana. The inquest report of the dead body was prepared and the dead body of Danta Ram was sent for post mortem. The post mortem report dated 27.02.2004 is Exhibit P-11 on record. As a result of the aforesaid, the original chargesheet against the accused appellant Leela Ram and Mohan Lal which was filed for the offence under Section 341, 323, 324 and 307 I.P.C. was altered to one under Section 341, 323, 323/34 and 302 I.P.C. after receipt of information about the death of Danta Ram. 9. The learned trial court after recording the evidence and completing the trial vide judgment dated 20.10.2004 held the accused appellant Leela Ram guilty for the offence under Section 302 I.P.C. but acquitted him of the offence under Section 341, 323 and 323/34 I.P.C. The accused Mohan Lal was acquitted of the offence under Section 302/34, 341, 323 and 323/34 I.P.C. Against the judgment of acquittal, so far as Mohan Lal is concerned, no appeal was filed by the State and only the accused appellant Leela Ram has preferred this appeal against his conviction and sentence under Section 302 I.P.C. 10. Learned counsel for the accused appellant submitted that in the instant case the prosecution evidence, if taken as a whole, does not permit the case to travel beyond Section 304 Part-II I.P.C. as it is a case of a single injury and originally the accused had been charged for the offence under Section 307 I.P.C. and only after the death of Danta Ram, the case was changed under Section 302 I.P.C. 11. It was submitted by the learned counsel for the appellant that in the present case, the incident took place on 17.12.2003 and the deceased Danta Ram despite the injury ran from the spot to save himself. Thereafter he was admitted to the hospital where he was treated for his injury and discharged. After his discharge, from hospital on 20.01.2004 injured Danta Ram came home and died after nearly more than thirty days of his discharge on 27.02.2004. It was submitted that the cause of death as per the Post Mortem Report (Exhibit P-11) has been given as follows:- "In my opinion the cause of death is septicemia due to multiple and extensive bed sore. All wounds are antemortem in nature." 12. On the basis of the above opinion give in the Post Mortem Report, it was submitted that the cause of death cannot be directly attributed to the injury alleged to have been inflicted by the accused appellant as septicemia has occurred due to the bed sore as a result of deceased having been confined to bed after his being discharged from the hospital after treatment for injury received by him and these consequences could not have been visualised or intended by the accused while inflicting the injury. 13. 13. Learned counsel for the accused appellant also took the court to the statement of PW-7 Dr.R.C.Jain wherein in cross examination Dr.R.C.Jain has stated as follows:- " izih0 11 esa of.kZr ?kko pksV yxus ds dkj.k ugha vk;s Fks cfYd e`rd ds 'kjhj esa vk;s gq;s ydos ds dkj.k gq;s FksA izih0 11 esa jk; eSaus e`rd ds 'ko dk ijh{k.k djus ds vk/kkj ij nh FkhA e`rd ds iwjs 'kjhj esa bUQsD'ku gks x;k FkkA eSaus izih0 12 ds tfj;s tks jk; iqfyl dks nh mlls igys eSaus e`rd dh iksLVekVZe fjiksVZ] mldh batjh fjiksVZ o mlds os bZykt ds dkxtkr dh QksVks tks izekf.kr Fkh] dk voyksdu djds nh FkhA lsIVhlhfe;k dks dqN gn rd bZykt ds tfj;s jksdk tk ldrk gS ysfdu ;fn T;knk gks tk;s rk :duk lEHko ugha gSA tks O;fDr ds xys ls uhps ls iwjk 'kjhj 'kqU;iu gks tk;s rks mlds izfr lko/kkuh cjrus ls Hkh mldks dksbZ ykHk ugha fey ldrkA dqN gn rd ;fn MkDVj dh jk; ds vuqlkj nokbZ nh tkos] ijgst j[kk tkos o ns[kHkky dh tkos rks lsIVhlhfe;k ds ejht dks dqN le; rd cpk;k tk ldrk gSA " 14. Based upon the above, it was submitted that even as per the opinion of the Doctor, the death was due to septicemia or as a result of continuously being bedridden and on account of the bed sore which had occurred due to which the infection has set in resulting in septicemia which as per the Doctor could have been cured after if proper treatment and precautions had been take. It was submitted that the aforesaid consequences as a result of the injuries having been inflicted by the accused appellant, could not have been envisaged by the accused appellant and as such, in the facts and circumstances of the case, the present case cannot said to be a case of murder but instead would be at best a case of causing grievous injury by sharp weapon. 15. Learned counsel further submitted that the very fact that incident allegedly took place on 17.12.2003 and the death took place on 27.02.2004 i.e. after nearly two months of the incident and over a month of having been discharged from the hospital and had the condition of the deceased been such that he had not recovered the question of his being discharge from the hospital would not have arisen. It was only in the event that he had been treated for the injury that he had been discharged by the Doctors. The condition at the time of his discharge has not been proved by the prosecution to show that he was incapable of being treated and, therefore, he was discharged form the hospital. In the absence of any such evidence led by the prosecution, it should be inferred that the deceased was discharged from the hospital on account of the deceased having been fully treated for the injury received by him. The prosecution, therefore, has not ruled out the possibility that the condition of the deceased deteriorated after his discharge and having gone home post discharge from the hospital where he was not taken care of. Learned counsel for the accused appellant, therefore, submitted that in the facts and circumstances of the case, the conviction of the accused appellant cannot be sustained under Section 302 I.P.C. and at best relying upon the judgment in the case of Ramaswamy v. State of Tamil Nadu reported in 1994 (3) SCC 680 it was submitted that it was a case where at best the conviction of the accused appellant can be made under Section 304 Part-II I.P.C. 16. Learned Public Prosecutor, on the other hand, so far as the facts mentioned by learned counsel for the accused appellant are concerned, has not disputed the same. However, learned Public Prosecutor supported the judgment and contended that the nature of injury was such that the deceased had received a fracture of the neck and that had resulted in his being paralyzed and in that view of the matter the injury that had been inflicted, causing fracture of Vertebra C-8 and T-1 it was sufficient to infer that intention of the accused appellant was to cause death of Danta Ram. 17. We have considered the rival submissions. 18. In the present case, it is proved from the prosecution evidence that the deceased received only one blow which was inflicted by the accused and the accused appellant did not cause any further injuries to the deceased. This clearly rules out the intention to commit the murder of Danta Ram. The possibility of the condition of the deceased having been aggravated later on has not been ruled out. It is also borne out from the record that the deceased had been admitted to the S.M.S.Hospital, Jaipur. This clearly rules out the intention to commit the murder of Danta Ram. The possibility of the condition of the deceased having been aggravated later on has not been ruled out. It is also borne out from the record that the deceased had been admitted to the S.M.S.Hospital, Jaipur. However, the prosecution has not examined any witness to show in what condition the deceased had been prior to his being admitted to the S.M.S.Hospital post being referred from the hospital at Neem-ka-Thana in District Sikar. There is evidence of PW-3 Dr.S.C.Sharma, the Doctor at Neem-ka-Thana who had examined the deceased Danta Ram at Neem-ka-Thana and prepared his Injury Report (Exhibit P-3) and referred him for treatment at the S.M.S.Hospital, Jaipur. As per his statement, he had found the fracture of the bone C-7 and T-1 in the X-Ray Report (Exhibit P-6). At that time, he had not given any opinion regarding the injury. He has given his opinion after it was sought from him on 25.01.2004. His statement reads as follows:- " blds ckn 25-1-2004 dks eSaus et:c nkarkjke dk ,e0,l0,e0 vLirky dk bZykt dk fjdkMZ ns[kk vkSj ;g ik;k fd ejht ds pksV yxus ls gkFk ikao lqUu gks x, vkSj ejht dh pksV dh izd`fr xaHkhj Fkh] gkykafd tks lqUUiu Fkk] mldks fu;af=r fd;k tk ldrk gS vkSj mlds lh0 7 o Vh0 1 dk vfLFk Hkax FkkA " He has further stated as follows:- " izn'kZ ih0 7 ij bZ ls ,Q eSaus fnukad 6-2-2004 dks jk; nh fd ;g pksV thou ds fy, ?kVd ugha Fkh --- mDr pksV dk MkDVj dh jk; ds vuqlkj fu;ekuqlkj bZykt djokus o ns[kHkky djus ls bZykt gksuk lEHko gSA " 19. The above evidence which has been led is that the deceased was discharged from the hospital i.e. S.M.S.Medical College, Jaipur on 20.01.2004 after treatment of one month. Though PW-20 has stated that a patient having been admitted to the hospital is discharged only after having been treated or at the own request of the patient. However, he is not in a position to state as to whether the deceased Danta Ram was discharged at his own request or having been treated. It is also not the case that the patient had developed septicemia in any of the bed sore while the patient was in the hospital at Jaipur. However, he is not in a position to state as to whether the deceased Danta Ram was discharged at his own request or having been treated. It is also not the case that the patient had developed septicemia in any of the bed sore while the patient was in the hospital at Jaipur. From the evidence of the prosecution more particularly PW-3 Dr.S.C.Sharma who examined the deceased after being discharged from the S.M.S.Hospital on 20.01.2004 as per his statement on 25.01.2004 and subsequently on 06.02.2004. There was no mention that the patient deceased Danta Ram was suffering from septicemia. On the contrary, the statement of PW-3 is very categorical that the numbness which was there could be controlled and with regular treatment, the deceased could have been cured, as has been quoted above from the statement of PW-3 Dr. S.C. Sharma. 20. It cannot, therefore, be held with certainty based upon the prosecution evidence in the form of PW-3 Dr. S.C. Sharma, the Doctor who examined Danta Ram on 17.12.2003 and post discharge on 25.01.2004 that Danta Ram was paralyzed in the lower portion of the body on 17.12.2003 on receiving the injury as there is also the evidence that on 25.01.2004, as has been quoted above, that after examining the deceased on 25.01.2004 he found numbness in the lower portion of the body which could be treated. But he does not state that on 17.12.2003 or prior to his referring deceased to S.M.S.Jaipur he found any numbness in the body. The septicemia has been ascribed to the bed sores which were the cause of death as per the Post Mortem Report (Exhibit P-11). However, for the accused appellant to have the intention and knowledge regarding the nature of injury to be caused and the fact of the said injury would result in septicemia due to bed sores resulting in the death of the deceased could not have been intended. It is proved from the prosecution evidence that the accused appellant inflicted only one injury in the instant case as in Ramaswamy's case (supra) and complications with regard to the infection resulting into septicemia has occurred only post discharge from the hospital at Jaipur, as is evident from the testimony of PW-3 Dr.S.C.Sharma who examined the deceased on 25.01.2004 post discharge from S.M.S.Hospital, Jaipur. Even the cause of death as given in the Post Mortem Report is not a direct result of the injury suffered by the deceased said to have been inflicted by the accused appellant. Though, indirectly it may be said that as a result of the injury the deceased was confined to bed resulting in the bed sore to be developed and these bed sores led to septicemia resulting in the death of Danta Ram. That is a remote consequence of the injury as PW-3 Dr.S.C.Sharma states that the deceased could have been cured if treated. 21. In these circumstances, we find it difficult to hold that the accused appellant intended to cause the death of deceased. As such, we are in agreement that the submission of learned counsel for the appellant that in the facts and circumstances of this case the conviction of the accused appellant for the offence under Section 302 I.P.C. cannot be sustained. 22. In the light of the above, we would accordingly acquit the accused appellant for the offence under Section 302 I.P.C. and instead convict him for the offence under Section 304 Part-II I.P.C. and release him on the sentence already undergone which in this case is seven years and ten months. 23. This appeal is accordingly partly allowed. The accused is in jail. He is directed to be released forthwith, if not required in any other case. At the time of his release, the accused appellant would be directed to submit the bail bonds, as required under Section 437-A Cr.P.C. for the purposes of his production in the event of any appeal being filed against the present judgment, in the sum of Rs. 20,000/- with two sureties of Rs. 10,000/- each before the learned Sessions Judge, Sikar and shall remain in force for a period of six months, as required by Section 437-A Cr.P.C. 24. The appeal is partly allowed. The application No.1027/2011 for suspension of sentence has become infructuous and the same is accordingly disposed of.Appeal partly allowed. *******