HON'BLE MATHUR, J. - (1.) BY the judgment impugned dated 24.2.2009 learned Additional Sessions Judge (Fast Track) No.1, Hanumangarh convicted the accused appellant for the offence punishable under Section 302 Indian Penal Code and sentenced to undergo imprisonment for life term with a fine of Rs.2000/-, further to undergo two months additional imprisonment in event of default in payment of fine.
(2.) IN brief, facts of the case are that on 30.9.2006 at 03:15 PM Shri Mumtaz Ali, Head Constable, Police Station Tibbi, recorded a parcha bayan (Ex.P/1) wherein Shri Mangilal son of Amilal (PW-1) stated that on 27.9.2006 at about 09:00 PM on hearing some noise from the house of Sahab Ram (accused), he and his father Shri Amilal (deceased) rushed to Sahab Ram's house. At Sahab Ram's house Sahab Ram and Brijlal were fighting, thus, Amilal raised a "lalkara" to maintain peace, but Sahab Ram immediately brought a "kapa" and inflicted a head injury to Shri Amilal. Amilal then was brought to hospital. On basis of parcha bayan aforesaid, a first information report was registered and investigation was initiated for the offence punishable under Section 307 Indian Penal Code. During the course of investigation Amilal died on 7.10.2006 at PBM Hospital, Bikaner, thus, investigation for the offence punishable under Section 302 Indian Penal Code too was conducted. The police report as per Section 173 Cr.P.C. was filed before the court of Judicial Magistrate First Class, Tibbi and the case was committed to the court of Sessions. On denial of the charges, trial commenced. The prosecution supported its case by producing 17 witnesses. During the course of investigation the "kapa", clothes of accused and clothes of deceased were also recovered and a serological examination was made by the Forensic Science Laboratory. The report of the Forensic Science Laboratory too was produced before the trial court. An opportunity was given to the accused to explain his conduct with regard to the adverse evidence adduced by the prosecution. The accused denied all the allegations and submitted that whatever evidence available against him i.e. false. The trial court after considering whatever material available on record convicted the accused for the offence punishable under Section 302 Indian Penal Code and passed an order of sentence accordingly. While challenging the conviction and sentence, submission of counsel for the accused appellant is that no evidence is available on record to establish commission of any offence by the accused appellant i.e. punishable under Section 302 Indian Penal Code. Learned Public Prosecutor in general supported the findings given by the learned trial court. Heard counsel for the parties. The trial court mainly relied upon the statements of the eye witnesses and also the recovery made at the instance of the accused with additional fact about availability of human blood on "kapa". PW-1 Mangilal is son of deceased Amilal and he was present at the spot of incident. This witness in quite unambiguous terms stated that on 27.9.2006 accused Sahab Ram was fighting with Brijlal and on giving a call to maintain peace, accused brought a "kapa" and gave a head injury to his father that ultimately resulted into his death.
(3.) AN another eye witness PW-4 Vikram also unambiguously supported the prosecution story. PW-5 Maniram also stated that a "kapa" blow was given by Sahab Ram on the head of deceased Amilal. As per PW-16 Dr. O.P.Saini, who conducted autopsy on the person of Amilal, the cause of death was the head injury as per the details given in the postmortem report Ex.P/21. The report of the Regional Forensic Science Laboratory, Jodhpur is available on record as Ex.P/20 and according to that the articles Kamiz, Pajama, Pent, Shirt and the "kapa" were stained with "O" group of blood. Suffice it to mention here that the articles Kamiz and Pajama are of deceased, Pent and Shirt are of the accused and "kapa" is the weapon said to be used by the accused appellant. In view of the statements of the eye witnesses, the recoveries made at the instance of accused and availability of blood stains on all the articles referred above, the involvement of accused in the incident in question is established beyond any shadow of doubt. As such the finding given by the trial court with regard to involvement of the accused in the incident does not suffer from any wrong. The only question requires consideration is that whether the act of the accused is punishable under Section 302 Indian Penal Code or that comes within the purview of Section 304 Indian Penal Code. The entire seriatum of the incident shows that some dispute was there between Sahab Ram and Brijlal and they were fighting. Deceased came to the spot from neighbourhood and gave a call to stop quarrel. During the heat of moment accused gave a head injury from "kapa" to deceased Amilal. Pertinent to note here that "kapa" is an agricultural equipment and is not an usual sharp edged weapon. The circumstances clearly shows that the accused may be having knowledge that injury inflicted by him may cause death but certainly he had no intention to cause death. In these circumstances the conviction made by the trial court under Section 302 Indian Penal Code is erroneous. The accused should have been convicted for the offence punishable under Section 304 part-I Indian Penal Code. Accordingly, this appeal is allowed in part. The conviction of the accused appellant for the offence punishable under Section 302 Indian Penal Code is set aside and is substituted by conviction under Section 304 part-I Indian Penal Code. The sentence of the life term imprisonment of the accused with fine too is set aside and is substituted by the rigorous imprisonment for a term of 71/2 years with a fine of Rs.10,000/-. In event of default in payment of fine the accused shall be liable to further undergo one month's rigorous imprisonment.;