JUDGMENT D.K. Kapur, J.
1. The appellant before the Court, Jeewan Dass was charged with the offence of murdering Roshan Lal on 23rd January, 1977. The appellant has been convicted under S. 304 Part I, I.P.C. and has been sentenced to imprisonment for life per judgment of Shri N. L. Kakkar, Additional Sessions Judge, Delhi.
2. In support of the appeal, we have heard Mr. S. K. Aggarwal Advocate appearing as amices curiae and the learned Standing Counsel for the State. We have been taken through the records of the case. We have examined the evidence and the circumstances of the case.
3. The prosecution case is a simple one. On 23rd January, 1977, the accused and the deceased were walking near each other in a gali situated near the crossing of the Police Chouki and Qutab Road. This gali is situated in Chinot Basti, Lachhman Puri. It appears that the shoulder of the deceased struck the accused Jeewan Dass and at that time the maker of the First Information Report Shri Beer Karan was about 25 years behind. On the striking of the shoulder of Roshan Lal against Jeewan Dass, the latter abused Roshan Lal with the result that Roshan Lal gave the accused a slap. One Om Prakash intervened to separate them. Jeewan Dass said that he will see him and is stated to have entered a house from where he brought a knife. Jeewan Dass thrust this knife in to the thigh of Roshan Lal; blood gushed out from the wound and Roshan Lal tottered and fell down and dies. beer Karan and Om Prakash overpowered Jeewan Dass along with his knife. In the meantime, Sub-Inspector of Police reached the spot. It further appears that Shri B. K. Gupta, Sub-Inspector of Police was on Patrol duty not far away. On receiving the information he reached the spot where Beer Karan produced Jeewan Dass and the blood stained knife. It was Shri B. K. Gupta who recorded the statement of Beer Karan which has formed the subject of the First Information Report.
4. The eye witnesses to the occurrence were Beer karan, P.W. 1 and Om Prakash, P.W. 2. One of them is the person who made the F.I.R. and the other is also named therein. The police arrived almost immediately after the incident. There seems to be no reason to hold that the police case is not a true one. We have heard learned counsel in this respect and come to the conclusion that the incident did take place as described by the witnesses and the Additional Sessions Judge was not wrong in convicting the accused.
5. Indeed the learned counsel for the accused has really based his submission on the claim that the offence is not one that falls under S. 304, Part I but it is one that falls under S. 304 Part II, I.P.C. For this purpose, some judgments of the Supreme Court have been cited before us. It is particularly stressed that the wound in this case was inflicted in the thigh and it is by pure chance that it has cut an artery and led to the death of the deceased in this respect the evidence of Dr. L. T. Ramani Medical Officer, who conducted the post-mortem examination, has become important. He has disclosed that the knife wound in the left thigh cut both the artery and the vein though the wound was only two inches deep. It was stated that the wound was sufficient to cause death in the ordinary course of nature. We find that this is not a case in which it can be said that the accused had the intention to cause death or even the intention to cause such bodily injury as would cause death, but it was a case in which he can be stated to have knowledge that he was likely to cause death or to cause death. The distinction between S. 304 Part I and S. 304 Part II is a fine one. If the offence is culpable homicide not amounting to murder, it is under S. 304 Part I if there is intention to cause death or to cause such bodily injury as is likely to cause death. On the other hand, if there is only knowledge that it is likely to cause death but no intention to cause death then the offence as under S. 304 Part II, I.P.C. In this case, the intention to cause death cannot readily be inferred from the circumstances of the case. It appears, there was a quarrel between two young men who are described as boys in the F.I.R. One of them slapped the other, who went and got a knife and stabbed the person who had slapped him. Undoubtedly, it is a grave offence, but it cannot be said that the person who stabbed in the thigh had the intention to cause death. It does not appear he intended to stab in any vital part of the body, so it is a case which falls under S. 304 Part II, I.P.C.
6. We have been referred to Shankar v. State of Madhya Pradesh, . Bakhtawar v. State of Haryana, , Morcha v. State of Rajasthan, . State of Andhra Pradesh v. Rayavarapu Punnayya, Prabhu Prasad Sah v. State of Bihar. Chand v. State of U.P. and Laxaman Kalu Nikalle v. State of Maharashtra, by learned counsel who contended, on the one hand for the accused that the offence was one under S. 304 Part II, whereas learned counsel for the State urged that this was a case not only which fell under S. 304 Part I, but was even one which was murder. He said that the mere fact that the State has actually not appealed should not deter us from coming to the conclusion that the real offence was one of murder and not one of culpable homicide not amounting to murder. We would prefer to express no opinion on this question in view of the absence of an appeal by the State. The suddenness of the quarrel and other relevant circumstances would largely determine the nature of the offence. As it has been held to be a case in which the offence does not amount to murder, we have to hold that the offence falls under S. 304 Part II and not under S. 304 Part I. We would accept the appeal only to the extent of altering the conviction to one under S. 304 part II instead of under S. 304 Part I of the I.P.C. and would not consider the question of sentence.
7. It was urged for the appellant that the Probation of Offenders Act should be applied to this case particularly as the accused was under 21 years of age being only 18 years. Learned counsel has referred to Section 6 of the Probation of Offenders act, 1958 and stated that the Court should not sentence a person found guilty unless it is satisfied having regard to the circumstances of the case including the nature of the offence and the character of the offender that, it was not desirable to deal with him under Section 3 or Section 4 of the Act. As we have already noted, this is a case which might even have led to the conviction of the accused for murder. The question of satisfying ourselves whether Section 3 or Section 4 of the Act applies, does not in our view arise. The offence was an extremely serious one and this was not a fit case for application of Section 3 or Section 4 of the Probation of Offenders Act, 1958, in spite of the fact that strictly speaking the accused is a person who could be released on probation by application of Section 6 and Section 4. Learned counsel for the appellant has relied on the Supreme Court's judgment aforementioned, in Chand v. State of U.P.; in which some of the accused were released under the U.P. First Offenders' Probation Act, 1938 by the Supreme Court. It will be useful to mention that the present case seems to be distinguishable form that one on several grounds Firstly, the case was one of rioting house trespass and other offences. There were several accused but in addition there was one Ashfaw who was 12 years old, Nanhey was 15 years, Chand was 16 years old and Sukha who was 17 years old. These four children were released under the U.P. First Offenders' Probation Act. It was observed that even the High Court had held that there was no previous enmity between the parties and it was too much to say that these persons had intended to cause the death of any one.
8. That case was therefore one in which young accused had been sentenced by the application of Section 149 of the I.P.C. and it was a case in which the Court had to see whether the persons could be released on probation keeping in view the nature of their actual participation in offence. In the present case, no doubt, the appellant is under 21, but he is the sole person responsible for the death of Roshan Lal. It is not, therefore, a case in which it would be reasonable to apply the Probation of Offenders Act, 1958, nor do we think it necessary to call for any report. The seriousness of the offence is such that the question of probation does not arise.
9. In the result, we would reject the contention that the appellant-accused is entitled to probation, but alter the conviction as observed above to one under Section 304 Part II of the I.P.C. and we reduce the sentence to seven years' rigorous imprisonment instead of imprisonment for life.
10. Order accordingly.