JAI SINGH SEKHON, J. - (1.) SATWARG Singh -appellant was tried on the charge for offence of the murder of his brother Harmel Singh punishable under Section 302, Indian Penal Code, by the learned Sessions Judge, Hoshiarpur. He was acquitted of the said charge, but found guilty of the offence of culpable homicide not amounting to murder punishable under Second Part of Section 304, Indian Penal Code. He was awarded seven years rigorous imprisonment and fine of Rs. 5,000/ - or in default of payment thereof to further suffer one year's rigorous imprisonment. Feeling aggrieved against his conviction and sentence, the appellant has come up in appeal.
(2.) IN brief, the facts of the prosecution case are that Harmel Singh (deceased) and Satwarg Singh accused are real brothers. Their grandfather Rattan Singh had given them some land located at two tube -wells for cultivation purposes in a family settlement. On November 11,1985, at about 4 or 5 P.M. Harmel singh (deceased) and his grant -father Rattan Singh were present on their tubewell while Harjinder Kaur (P.W.6) widow and Satnam Kaur (P.W.7) daughter of the deceased were plucking Saag from the nearby Sarson field. Satwarg Singh accused came there and started quarrelling with the deceased over the turn of water of the tubewell. On hearing the verbal altercation, these two ladies also rushed to the spot. The accused, after challenging that he would finish the daily bickering once for all, picked up Kulhari. (Exhibit P - l) from inside the Kotha of the tubewell. Harmel Singh (deceased) tried to escape, but the accused dealt a Kulhari blow on his left leg, which resulted in his fall. The eye -witnesses raised an alarm on which the accused along with Kulhari (Exhibit P -l) managed to escape. Harmel Singh injured as being removed in a tractor -trolley by these witnesses to Civil Hospital, Garh Shankar but he succumbed to the injury on reaching near the hospital. Sub Inspector Balbir Singh, along with other, police officials, was found present near the gate of the hospital. Harjinder Kaur (P.W. 6, lodged report, Exhibit P.M.) with the Sub Inspector which was concluded at 8.30 P.M. and on its basis a case under Section 304, Indian Penal Code was registered at Police Station Garh Shankar at 8.40 P.M. Its special report was conveyed to the Ilaqa Magistrate at 10 P.M. on the same evening. Sub Inspector Balbir Singh, after despatching the report (Exhibit P.M.) to the Police Station, started investigation of the case and held inquest on the dead body of Harmel Singh. The dead - body was sent to the Civil Hospital for autopsy.
(3.) THE autopsy on the dead - body of Harmel Singh was conducted by Dr. A.K. Dhindsa (P.W. l) at 9.30 A.M. on November 12, 1985. This doctor found three abrasions on the dead body out of which one was located on the top of the right shoulder and the third on the left side of the back in the thoracic region. He also found an incised wound measuring 11cms x;