1980 INSC 0208
                                                     Om Prakash

                                                           Vs

                                                  State of Haryana

                                        Criminal Appeal No. 131 of 1980

                                       (R. S. Pathak, V. R. Krishna Iyer JJ)

                                                      28.04.1980

                                                     JUDGMENT

KRISHNA IYER, J. ­

We are not called upon to go into the details, having regard to the general circumstances present in
this case. It is true that an occurrence took place, which ended fatally and the appellant was the
aggressor. The short question is whether the offence under Section 302 or under Section 304 Part II
is made out. Undoubtedly, there was a quarrel, whether it amounts to a fight within the meaning of
Section 302 or not. Incensed by the situation the appellant gave a blow with a stick. It fell on a
vulnerable part of the victim's body, resulting in his death. It is marginal case where the Sessions
Court held that the evidence was one under Section 304 IPC and awarded a sentence of five and a
half years' rigorous imprisonment. The High Court took a contrary view and convicted the appellant
under Section 302 IPC with the inevitable sentence of life imprisonment. We are inclined to take a
more lenient view on the facts and hold that the appellant was guilty under Section 304 Part II, IPC.
In the circumstances, we cannot overlook the fact that the blow was on a vital part and that a life has
been lost. Therefore, we sentence, the appellant to rigorous imprisonment for seven years. It is
represented by counsel for the appellant that the convict may be kept in the District Jail, Gurgaon so
that his wife and child may be able to meet him occasionally. We think that in such cases humane
considerations are important and family ties must be preserved instead of dehumanising attitudes
and distances being inflicted. We are sure the authorities will take this compassionate view and keep
him in the District Jail, Gurgaon.

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