BABU SINGH Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the judgment dated 10/05/1988 passed by the learned Additional Dist. and Sessions Judge, No. 1, Hanumangarh (Camp Sangaria) in sessions case No. 63/87 whereby the appellant Babu Singh was con victed u/sec. 302 IPC and sentenced to imprison ment for life and to pay a fine of Rs. 250.00. In default of payment of fine he was awarded further one month imprisonment.

(2.) The facts of the case need not to be given in detail as the learned counsel appearing for the appel lant has restricted his argument on the question of offence committed by the appellant. The argument of the learned counsel is that taking into consider ation all the facts and circumstances of the case, the appellant can be held liable for the offence under Section 304-II, IPC and not under Section 302 IPC. To appreciate the above argument, the neces sary facts of the case may be given.

(3.) The incident had taken place on 5/03/1987. As per the prosecution case, at about 10 p.m. on 5-3-87 deceased Makhan Singh had gone to see 'RAMLEELA' which was going on in his village Morjand Sikhan. His nephew Kashmir Singh (P.W. 2) and his wife Smt. Jasveer Kaur had also gone with him. They apprehended something wrong from the appellant Babusingh as he was seen with a 'Gandhali' a sharp edged weapon and as such they left for their house. It is alleged that when the deceased Makhan Singh reached near the shop of Dr. Vijay Kumar, the appellant gave a blow from 'Gandhali' from the back side causing injury on his head. Makhan Singh fell down after getting the injury and thereafter three-four blows were further inflicted by the appel lant. On raising a cry by Kashmir Singh (P.W. 2), the appellant ran away in a nearby lane. Smt. Jasveer Kaur (P.W. 1), the wife of the deceased was also following. The injured Makhan Singh was shifted to Government Hospital and P.W. 2 Kashmir Singh lodged a report at Police Station Sangaria. The report is Ex. 1 which came to be lodged at 7 a.m. on 6/03/1987. Initially the case was registered u/sec. 107 IPC. The injured Makhan Singh was medically examined by the Doctor at 6.30 a.m. on 6/03/1987 and he found the following three injuries, vide Ex. P. 11 : However, the injured Makhan Singh succumbed to his injuries at 10.44 a.m. and the post-mortem was conducted by the same Doctor vide post-mortem report Ex. P-12. Inquest report Ex.P-2 was also prepared by the S.H.O. and Site Plan Ex. P-3 of the place of incident was also prepared. After comple tion of the investigation, a charge-sheet was filed against the appellant and ultimately he was pros ecuted in the Court of Additional Dist. and Sessions Judge No. 1, Hanumangarh (Camp Sangaria) and was convicted and sentenced as aforesaid. During the trial, the prosecution examined nine witnesses. P.W. 1 Smt. Jasveer Kaur is the wife of the deceased. P.W. 2 Kashmir Singh is the nephew, the eye-wit ness of the incident. P.W. 8 Dr. Nathmal Duggar examined the injuries of Makhan Singh, vide Ex.P 11 and after his death he performed post mortem of the dead body, vide Ex. P-12.