JUDGMENT 1. - This appeal is arising out of judgment dated 28th February 2007 passed by learned Additional Sessions Judge, Fast Track, Hanumangarh, whereby the accused appellant was convicted for the offences punishable under Sections 450, 302, 307 and 324 Indian Penal Code and sentenced as under:- S. No. Offence Under Section Sentence for the Period Fine imposed Default in I sentence in event of payment of fine 1 302 IPC Life term imprisonment Rs. 1,000/- 1 Months R.l. 2 307 IPC 5 Years R.1. Rs. 5,000/- 1 Months R.l. 3 450 IPC 5 Years R.1. Rs. 2,000/- 15days R.I. 1 4 324 IPC 1 Years R.1. Rs. 1,000/- 7 days R.l. It was ordered that all the sentences shall run concurrently. 2. Briefly stated the case of the prosecution is that on 25th October 2004 Ramesh Kumar, Sub Inspector of Police Station Sangariya PW 8, recorded the statement (Ex.P.1) of (PW 1) complainant and injured Jeevan Singh S/o Bhaag Singh in presence of (PW 3) Smt. Natthi to the effect that the house of Pala Singh S/o Mahendra Singh is situated behind his house and Pala Singh used to perform the gambling activities in his house and the boundary wall of his house is dismantled by wherefrom persons relating to Pala Singh to to the house of Pala Singh. In the night about 11:00 p.m. people were going to the house of Pala Singh through his (Jeevan Singh) house to perform gambling activity then his wife Gamma @ Gurnam Kaur made complaint to Pala Singh that people may not be permitted to come through her house, due to which, he (Pala Singh) became annoyed and brought a Gandasi from his house and inflicted Gandasi blow on the head of his wife with intention to cause her death which resulted in heavy bleeding from her head and due to it his wife became unconscious, when he intervened, Pala Singh inflicted Gandasi blow on his head resulting in bleeding from his head and one injury was inflicted on his left palm from which also blood was oozed and when he shouted "Mare mare his mother and Banwari Lal came on the spot. They intervened otherwise Pala Singh would have inflicted more injuries to them. Pala Singh inflicted injuries with intention to cause his death and also the death of his wife. They intervened otherwise Pala Singh would have inflicted more injuries to them. Pala Singh inflicted injuries with intention to cause his death and also the death of his wife. Thereafter, his mother got admitted him and his wife at Govt. Hospital Sangariya. 3. On these statements, a case was registered under Sections 458 and 307 IPC at Police Station Sangariya as FIR No. 608/2004 and investigation was commenced. During investigation, at 7:30 p.m. on 25.10.2004, injured Gamma @ Gurnam Kaur succumbed to injuries. Injury report of injured Jeevan Singh and Gamma @ Gurnam Kaur were obtained. Dead body of deceased Gamma @ Gurnam Kaur was sent for post mortem and post mortem report was obtained. Accused appellant was arrested on 11.11.2004 vide arrest memo Ex.P.27. In pursuance of information submitted by the appellant accused weapon of offence (blood stained Gandasi) was recovered on 12.11.2004 vide recovery memo Ex.P-6 which was sent for examination to FSL. Blood stained soil and control soil were seized and sealed from the place of incident, garments of injured and deceased were also seized and sealed and all were sent for serological examination to Forensic Science Laboratory, Jodhpur. Inquest report of dead body was also prepared and FSL Report was obtained. Statements of witnesses were recorded and after investigation challan under Sections 302, 307, 450, 326 and 324 was filed on 08.12.2004 before the learned Addl. Chief Judicial Magistrate, Sangariya. 4. Since offence under Sections 320 and 307 being exclusively triable by the Court of Sessions, the case was committed to the court of learned Addl. Sessions Judge, Sangariya (hereinafter referred as the trial court). The learned trial court after hearing the parties, framed charges against the accused appellant for offences punishable under Sections 302, 450, 324 and 307 IPC for which accused appellant denied and claimed for trial. 5. In support of the prosecution case prosecution examined as many as nine witnesses and out of them, PW1 Jeevan Singh is complainant and injured and other eye-witnesses are Banwari and Smt. Natthi, PW 2 and PW 3 respectively. Prosecution also produced documents which were exhibited from Ex.P-1 to #x.P-29 and relied upon the contents of the same. 6. On 19.09.2006 accused appellant was examined as per provisions of Section 313 Cr.P.C. with a purpose to explain evidence available against him as adduced by the prosecution. Prosecution also produced documents which were exhibited from Ex.P-1 to #x.P-29 and relied upon the contents of the same. 6. On 19.09.2006 accused appellant was examined as per provisions of Section 313 Cr.P.C. with a purpose to explain evidence available against him as adduced by the prosecution. Accused appellant denied the allegations and stated that he was innocent and was falsely implicated in the case. Even after availing the opportunity, accused failed to produce any defence evidence. 7. On appreciation, evaluation, analysis and scrutinising of the evidence available on record, learned trial court reached at the conclusion that homicidal death of Gamma @ Gurnam Kaur is proved as she died due to injury caused on her vital organ like brain, hemorrhage and shock and injured Jeevan Singh also sustained injuries. The trial court held the accused appellant guilty for the offences punishable under Sections 302, 450, 307 and 324 of the IPC. Thus, accused appellant was convicted and sentenced in the terms indicated above. 8. The trial court based its findings mainly on the statements of injured and eye-witnesses and the recovery made from the accused. 9. In appeal the only argument advanced by the learned counsel for the appellant accused is that the offence which has been committed by the appellant is not murder punishable under Section 302 IPC but offence punishable under exceptions I & IV of Section 300 IPC punishable under Section 304 IPC. Learned counsel for the appellant accused stressed that the offence is culpable homicide not amounting to murder while narrating the entire incident as unfolded by the prosecution. It is urged that the incident took place on sudden provocation when the deceased obstructed the accused going through the house of accused. The way from the house of complainant was being used since last several months. It is further urged that there was no intention of the accused to kill Gamma @ Gurnam Kaur and whatever happened, that was due to sudden provocation. 10. Learned Public Prosecutor supported the impugned judgment and conviction and order of sentence. 11. We have considered the arguments advanced and also examined the record available. 12. PW-6 Dr. Jaswinder Gill, examined the injuries of injured Jeevan Singh and Gamma @ Gurnam Kaur and found following injuries on the body of the injured Jeevan Singh "1. 10. Learned Public Prosecutor supported the impugned judgment and conviction and order of sentence. 11. We have considered the arguments advanced and also examined the record available. 12. PW-6 Dr. Jaswinder Gill, examined the injuries of injured Jeevan Singh and Gamma @ Gurnam Kaur and found following injuries on the body of the injured Jeevan Singh "1. Incised wound 6 cm x 1½ cm x muscle deep on the palm of left hand. 2. Incised wound 3 cm x ½ cm x muscle deep on left parietal region. 3. Incised wound 2½ cm x #189; cm x muscle deep on right parietal region." 13. It was opined that all the three injuries were caused by sharpe edged weapon and X-ray was advised. The duration of injuries were shown as 6 hours. He proved injury report of Jeevan Singh as Ex. P-17. It was also stated that on 25th October 2004 he also examined the injuries of Gamma @ Gurnam Kaur W/o Jeevan Singh. Thus, he proved the injury report of Gamma @ Gurnam Kaur as Ex.P-18, according to which he found one incised wound 12 cm x ½ cm x bone deep in inter parietal region and X-ray was advised for that. As per X-ray report Ex. P-19 there was fracture on right parietal bone near mid line. As such injury of Gamma was treated as grievous. 14. Dr. Jaspal PW-7 conducted the autopsy on the dead body of the deceased Gamma @ Gurnam Kaur W/o Jeevan Singh. Thus, he proved the post mortem report Ex. P-25, according to which the cause of death was injury to vital organs like brain, caused hemorrhage, shock due to injury to the head. On head a long scalp hair present below the injury, haemotoma present under injury of muscles and tissues. Fracture of frontal and parietal bone right side was present and injury to membrane and brain tissue was present. Scalp hair cutted were noticed. In view of above evidence, the undisputed position emerges out is that death of Gammafe Gurnam Kaur was homicidal. 15. PW-8 Ramesh Kumar Asst. Sub-Inspector, Police Station Sangaria and PW-9 Prithvi Singh Station House Officer of Police Station Sangariya at the relevant time have narrated all the steps taken during the course of investigation. 16. Scalp hair cutted were noticed. In view of above evidence, the undisputed position emerges out is that death of Gammafe Gurnam Kaur was homicidal. 15. PW-8 Ramesh Kumar Asst. Sub-Inspector, Police Station Sangaria and PW-9 Prithvi Singh Station House Officer of Police Station Sangariya at the relevant time have narrated all the steps taken during the course of investigation. 16. PW-1 complainant and injured Jeevan Singh is the husband of deceased Gamma @ Gurnam Kaur and PW-2 Banwari, PW-3 Natthi mother-in-law are the eye-witness of the entire incident. 17. As per statement of PW-1 Jeevan Singh the wall between his house and the house of accused was dis-mantled which was being used by people as passage for the house of accused jtfhere activities of playing gambling were going on. 18. Pala Singh was stopped by his wife Gamma @ Gurnam Kaur for using passage through his house. On it, Pala Singh inflicted Gandasi blow on her head at 11.00 PM due to which she became unconscious and heavy bleeding started from her head. Thereafter he inflicted three Gandasi blows on him. Out of them two were inflicted on his head and one on his hand. On his crying, his mother and Banwari Lal reached there who shifted Gamma to the Govt. Hospital, Sangariya. Thereafter his wife was referred to Hanumangarh, where she succumbed to injuries. 19. Whatever stated by PW-1 Jeevan Singh is corroborated in totality by other eye witnesses who are PW-2 Banwari and PW-3 Natthi. At the instance of accused blood stained Gandasi was recovered. 20. Looking to the entire evidence referred above, we are of the view that no wrong is committed by the learned trial court while reaching at the conclusion that deceased Gamma @ Gurnam Kaur was assaulted by the accused with a sharp edged Gandasi, consequent thereto she died and inflicted Gandasi blows to complainant injured PW-1 Jeevan Singh. The question that requires consideration is that whether the offence proved is a murder or a culpable homicide not amounting to murder? 21. On total examination of evidence available in the instant matter, the position emerges out is that accused Pala Singh used to go through the house of the deceased towards his house who was stopped by the deceased. The question that requires consideration is that whether the offence proved is a murder or a culpable homicide not amounting to murder? 21. On total examination of evidence available in the instant matter, the position emerges out is that accused Pala Singh used to go through the house of the deceased towards his house who was stopped by the deceased. On this some hot talks took place between them due to which accused brought Gandasi from his house and gave a blow from it to Gamma @ Gurnam Kaur and her husband Jeevan Singh who intervened. 22. It is also pertinent to note that availability of Gandasi in the house of the accused was not something strange but it is usually used by the farmer to perform the agriculture work as he was involved in agriculture work. 23. From the evidence available on record we are satisfied that the accused was not at all intending to kill deceased Gamma @ Gurnam Kaur. As a matter of fact whatever happened, that was an outcome of the heat of the moment and sudden provocation. As such, the act of offence committed by the accused person is not a murder as defined under Section, 300 IPC. The offence so committed does not travel beyond the purview of Section 304 Part-I IPC. So far as conviction under Sections 307, 324 & 450 IPC is concerned we find that no interference is required to that extent. Further no arguments were advanced regarding the same. 24. Accordingly the appeal succeeded in part. The conviction of the accused-appellant under Section 302 is altered to Section 304 Part-I IPC for which accused-appellant Pala Singh is sentenced to rigorous imprisonment for 10 years with a fine of Rs. 50,000/- and in default of payment of fine, further to undergo simple imprisonment for a period of one year. After depositing the fine amount, the same shall be paid to PW1 complainant Jeevan Singh as compensation. 25. The conviction and sentence in relation to offences under Sections 307, 324 & 450 IPC are maintained. It is further ordered that all the sentences shall run concurrently and the period during which he remained in custody during investigation and trial, shall be set-off from the main sentence as per the provisions of Section 428 of the Code of Criminal Procedure.Appeal Partly Allowed. *******