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2013 DIGILAW 1467 (RAJ)

Fateh Singh @ Fatte Singh v. State of Rajasthan

2013-08-26

GOVIND MATHUR, V.K.MATHUR

body2013
JUDGMENT 1. - By the judgment impugned dated 3.7.2008 learned Additional Sessions Judge (Fast Track) No. 3, Udaipur, Camp Salumbar, convicted the accused appellant for an offence punishable under Section 302 Indian Penal Code and sentenced to undergo life term imprisonment with a fine of Rs. 5000/- and further to undergo three months simple imprisonment in the event of default in payment of fine. 2. Briefly stated, facts of the case as unfolded in the judgment impugned are that Shri Tej Singh son of Nathu Singh (PW-2) submitted a written report at police station Pahada District Udaipur with assertion that on 24.9.2007 at about 09:00 AM his mother Smt. Heer Kunwar (PW-3) and wife Smt. Balwant Kunwar (PW-1) were at home. At that time his younger brother Fateh Singh entered into some hot altercations with his wife Balwant Kunwar and tried to catch hold of her from hairs and throat. His father Shri Nathu Singh then intervened, to whom a washing baton blow was given by Fateh Singh, consequently he fell down. He was taken to local hospital where from he was referred to Ahmedabad Hospital. On 27.9.2007 Shri Nathu Singh died. 3. On basis of the information so given, a case was lodged and investigation commenced for an offence punishable under Section 302 Indian Penal Code. After completion of investigation a police report was filed and a charge for commission of an offence punishable under Section 302 Indian Penal Code was framed. On denial of the same by the accused, trial commenced as desired. 4. The prosecution supported its case with the aid of 16 witnesses, out of whom PW-1 Smt. Balwant Kunwar and PW-3 Smt. Heer Kunwar were cited as eye witnesses. PW-12 Dr. Prateek adduced medical evidence and PW-8 Shri Harendra Singh, being Investigating Officer, narrated all details relating to the steps taken during the course of investigation. The prosecution also supported its case by getting several documents exhibited. An opportunity was accorded to the accused appellant to explain the adverse circumstances available in the prosecution evidence and while availing that he pleaded his innocence. He termed the entire evidence false. 5. Learned trial court after examining the entire evidence available on record recorded conviction and awarded sentence. 6. An opportunity was accorded to the accused appellant to explain the adverse circumstances available in the prosecution evidence and while availing that he pleaded his innocence. He termed the entire evidence false. 5. Learned trial court after examining the entire evidence available on record recorded conviction and awarded sentence. 6. In appeal, the only argument advanced by learned counsel for the appellant is that even by accepting the prosecution case in totality the offence said to be committed by the appellant does not travel beyond an offence prescribed under Section 304 part-II Indian Penal Code. 7. Heard learned counsel for the appellant, learned Public Prosecutor and also examined the record. 8. As per the medical evidence available on record Shri Nathu Singh died due to the head injury resulting into a fracture and excessive bleeding, as such his death is homicidal one. 9. As per PW-1 Smt. Balwant Kunwar on the fateful day she, her mother-in-law Smt. Heer Kanwar, her father-in-law Shri Nathu Singh (deceased), younger brother-in-law Fateh Singh (accused) and younger sister-in-law were at home. At about 09:00 AM Balwant Kunwar, his mother-in-law Smt. Heer Kunwar and sister-in-law (wife of Fateh Singh) entered into some hot altercations. At that time accused Fateh Singh intervened and stated that he will consume blood of her husband. This witness in response stated that he have to first consume her blood. Accused Fateh Singh then gave a fist blow to this witness and tried to pull her from her hair. Shri Nathu Singh then came forward and intervened. Accused, being under annoyance, gave a washing baton (wooden) blow to Nathu Singh, consequently he fell down and became unconscious. He was then taken to Hospital at Ahmedabad, where he died on 27.9.2007. 10. PW-3 Smt. Heer Kunwar wife of deceased Nathu Singh and mother of accused Fateh Singh also narrated the same fats. As per this witness during the course of hot altercations when her husband intervened a washing baton blow was given by Fateh Singh. 11. In view of the statements of both the eye witnesses it is apparent that at the time of incident some hot altercations took place between Smt. Balwant Kunwar (PW-1), Smt. Heer Kunwar (PW-3) and wife of accused Fateh Singh. Fateh Singh also entered into these altercations and tried to pull Balwant Kunwar (PW-1) by catching hold of her hair. 11. In view of the statements of both the eye witnesses it is apparent that at the time of incident some hot altercations took place between Smt. Balwant Kunwar (PW-1), Smt. Heer Kunwar (PW-3) and wife of accused Fateh Singh. Fateh Singh also entered into these altercations and tried to pull Balwant Kunwar (PW-1) by catching hold of her hair. At this juncture Shri Nathu Singh intervened and suffered a washing baton blow by Fateh Singh. 12. All the facts indicate that culpable homicide was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and no undue advantage was taken by the accused. He also not acted in further cruel or unusual manner. Suffice to mention that deceased Nathu Singh was having only single head injury and that was the cause of his death. This factual background is sufficient to arrive at the conclusion that the offence committed by the accused is not a murder as defined under Section 300 Indian Penal Code punishable under Section 302 Indian Penal Code. The prosecution evidence also not discloses that the fatal injury inflicted on head which caused death of Nathu Singh was given with an intention to kill him. In such circumstances we find force in the argument advanced by counsel for the appellant that the offence committed by the appellant does not travel beyond an offence punishable under Section 304 part-II Indian Penal Code.In view of the discussions made above, the conviction of the accused appellant under Section 302 Indian Penal Code is bad. Accordingly, the appeal is allowed in part. The conviction recorded and sentence awarded by the trial court under the judgment impugned is set aside. The accused appellant is convicted for an offence punishable under Section 304 part-II Indian Penal Code and is sentenced to undergo rigorous imprisonment for a period of ten years with a fine of Rs. 5000/-. He shall be liable to undergo three months simple imprisonment in the event of default in payment of fine.Appeal partly allowed. *******