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2016 DIGILAW 790 (RAJ)

Balkaran Singh v. State of Rajasthan

2016-05-30

DEEPAK MAHESHWARI, GOPAL KRISHAN VYAS

body2016
JUDGMENT : G.K. Vyas, J. - In both these appeals filed under Section 374(2) of Cr.P.C., the judgment dated 20th of June, 2011 passed by Additional Sessions Judge No. 2, Sri. Ganganagar, in Session Case No. 20/2008 (68/2008), is under challenge, whereby both the appellants were convicted for the offence under Section 302 IPC and sentence for life imprisonment with a fine of Rs. 1,000/- with the default stipulation of three months' simple imprisonment had been passed against the appellants. 2. As per brief facts of the case, an information was received by the S.H.O., Police Station - Jawahar Nagar, Sri Ganganagar, through telephonic call from Raghuveer Singh ASI of the Police Station that accused appellant, Balkaran Singh @ Chhinda Singh committed murder of his wife, namely, Smt. Jasveer Kaur, by causing fatal injuries and trying to run away from his home but caught by the neighbours. Upon the aforesaid information, the S.H.O. Bhomaram (PW-15) gave instructions to Raghuveer Singh to reach on the spot and SHO Bhomaram along with other police persons reached at the place of occurrence and found that body of deceased Smt. Jasveer Kaur was lying on the cot and there were injuries upon her body. At the place of occurrence, minor son of deceased, Rajveer Kaur informed to Bhoma Ram SHO (PW-15) that today at 11.30 AM, my mother was sleeping in the shadow of Neem tree in the open place in front of house; at that time, my father, Balkaran Singh @ Chhinda Singh and maternal uncle (Mausa) Kewal Singh were sitting in the room. In the room Kewal Singh made slander to his father about his mother, Jasveer Kaur, and my mother asked Kewal Singh not to do so, but Kewal Sigh but (sic. and) my father, came out of the room and inflicted injuries from the opposite of the axe ('Kulhari') upon her head. My father inflicted two injuries and due to these injuries blood came out from the head. After inflicting injuries my father and Kewal Singh ran away from the place of occurrence. Due to the injuries, my mother died. 3. Upon aforesaid fact narrated by the son Raj of the deceased, the body and place of occurrence was inspected, in which it was found that there were injuries on the head of Jasveer Kaur, who was lying on the cot. 4. Due to the injuries, my mother died. 3. Upon aforesaid fact narrated by the son Raj of the deceased, the body and place of occurrence was inspected, in which it was found that there were injuries on the head of Jasveer Kaur, who was lying on the cot. 4. From the aforesaid incident, a written report was submitted by Jagram, HC No. 32, upon said report FIR No. 404/2008 (Ex.P/22) was registered against both the appellants for the offence under Sections 302/34 of IPC 5. In the investigation, inspection report (Ex.P/8), "Panchnama" (Ex.P/9)t site plan (Ex.P/7 and Ex.P/7A) were prepared on the spot, so also, blood stained soil was taken into possession from the place of occurrence vide Ex.P/10 and blood was collected from the place of occurrence vide Ex.P/11. The body of deceased Smt. Jasveer Kaur was sent for post-mortem to the Government hospital, Sri Ganganagar. The post-mortem was conducted and post-mortem report (Ex.P/26) dated 22.10.2008 was given by Medical Jurist of Government Hospital, Sri Ganganagar. 6. Accused appellant, Balkaran Singh @ Chhinda Singh was arrest vide Ex.P/27 at 10.15 AM on 20.10.2008 (sic.) and accused appellant, Kewal Singh was arrested vide Ex.P/15 on 01.10.2008 at 0.7.00 PM. 7. After arrest, the blood stained shirt of accused Kewal Singh was taken into possession vide Ex.P/16 and upon information furnished by the accused appellant Bal Karan Singh under Section 27 of the Evidence Act, the weapon of offence i.e. axe having wooden stick (Kulhari) was recovered vide Ex.P/17 at 11.00 AM from his house. The articles recovered during investigation were sent to FSL vide communication dated 08.10.2008 (Ex.P/30) for obtaining report from where after examination the FSL report (Ex.P/34) was received on 22.11.2008 by the investigating officer. As per FSL report human blood of AB group was found on the shirt of accused appellant and upon the axe, recovered vide Ex.P/17 as per information given by the accused appellant Balkaran Singh. 8. The investigating officer after recording statements of the prosecution witnesses under Section 161 Cr.P.C., upon completion of investigation filed charge sheet against the accused appellants in the court of Addl. Civil Judge and Addl. Chief Judicial Magistrate, Sri Ganganagar, from where the case was committed to the court of Sessions Judge, Sri Ganganagar for trial. 9. Learned Sessions Judge, Sri Ganganagar, transferred the case for trial to the court of Addl. Civil Judge and Addl. Chief Judicial Magistrate, Sri Ganganagar, from where the case was committed to the court of Sessions Judge, Sri Ganganagar for trial. 9. Learned Sessions Judge, Sri Ganganagar, transferred the case for trial to the court of Addl. Sessions Judge No. 2, Sri Ganganagar, where trial took place. The learned trial Judge framed charge against the accused appellant, Balkaran Singh @ Chhinda Singh for the offence under Section 302 IPC and framed charge against the appellant, Kewal Singh for the offence under Section 302/109 IPC. Both the accused appellants denied the charges framed against them and prayed for trial. 10. Learned trial Judge granted an opportunity to the parties to lead evidence. In support of prosecution case, the statements of 16 prosecution witnesses were recorded by the trial court, thereafter, the learned trial court proceeded to record statements of both the appellants under Section 313 Cr.P.C., in which both the appellants pleaded innocence and denied the allegations made by the witnesses. The accused appellant, Balkaran Singh @ Chhinda Singh specifically stated that at the time of incident I went out from the house in the morning on tractor to his agricultural field and behind him, some unknown persons murdered his wife. He further stated that upon receiving the information of murder came to his house and found that somebody has murdered his wife. Accused appellant, Kewal Singh stated that he has been falsely implicated in the case in fact the incident was reported to me by my wife, namely, Paramjeet Kaur. 11. No oral evidence is produced and examined by the appellants in their defense in spite of granting opportunity by the trial court. 12. Learned trial court after hearing arguments of both the sides finally delivered the judgment dated 20.06.2011 whereby the learned trial court convicted the appellant, Balkaran Singh @ Chhinda Singh for the offence under Section 302 of IPC and convicted the accused appellant, Kewal Singh for the offence under Section 302/109 of IPC and passed sentence for life imprisonment along with fine of Rs. 1,000/-. 13. In both these appeals filed separately by the appellants, they are challenging the validity of the judgment dated 20th June, 2011 passed by the trial court on various grounds. 14. 1,000/-. 13. In both these appeals filed separately by the appellants, they are challenging the validity of the judgment dated 20th June, 2011 passed by the trial court on various grounds. 14. Learned counsel for the appellants first of all submit that although number of eye witnesses were shown in the list of witnesses by the prosecution but all the so-called eye witnesses turned hostile and did not support the prosecution case, however, the learned trial court convicted the accused appellants upon circumstantial evidence, therefore, the finding of guilty arrived at by the trial court below convicting the appellants for the offences under Section 302 and 302/109 IPC respectively, deserves to be quashed because the prosecution has relied upon the testimony of eye witnesses at the time of filing of charge sheet, and none of the eye witnesses supported the prosecution story. The learned trial court exceeded its jurisdiction to give the finding of guilt against the appellants on the basis of circumstantial evidence while ignoring the fact that all the eye witnesses turned hostile, therefore, the judgment impugned is totally erroneous and based upon far from the truth. 15. Learned counsel for the appellants argued that even if the prosecution story is accepted as a whole, then also, it emerges from the evidence on record that incident took place on the spur of moment due to sudden bad conversation between deceased and Kewal Singh before her husband appellant Balkaran Singh. There is no evidence of intention or motive existing in this case which is a main ingredient of the offence under Section 302 IPC, thus, the conviction of the accused appellants for the offence under Section 302 and 302/109 IPC is not sustainable in law. The learned trial Judge delivered the judgment on presumption and wrong appreciation of evidence on record, therefore, the judgment may kindly be quashed. 16. With regard to recovery of axe and clothes it is submitted that none of the independent witness supported the prosecution case because they turned hostile, therefore, the findings given by the learned court below based upon circumstantial evidence of recovery of weapon and blood stained clothes cannot be accepted, therefore, the finding of conviction against appellants on the basis of circumstantial evidence is not only erroneous but also perverse, therefore, deserves to be quashed. 17. 17. Lastly, it is argued that if this Court comes to the conclusion that prosecution has proved the incident on the basis of circumstantial evidence, then also, no offence under Section 302 IPC is made out because as per prosecution case, the occurrence took place on the spur of moment due to slander conversation in between the parties. In view of above submissions, it is prayed that the conviction of appellant, Balkaran Singh @ Chhinda Singh can be altered from the offence under Section 302 to Section 304 Part II and conviction of appellant, Kewal Singh, can be altered from offence under Section 302/109 IPC to Section 323 IPC as there is no allegation against him for inflicting fatal injuries to the deceased and as per prosecution case, offence took place all of sudden on a very trivial issue. 18. In support of his arguments, learned counsel for the appellants invited our attentions towards the following judgments : 1. Judgment delivered by Hon'ble Supreme Court in Criminal Appeal No. 175/2015 - Balu v. State of Maharashtra decided on 02.02.2015. 2. Judgment delivered by Hon'ble Supreme Court in Criminal Appeal No. 631/2009 - Sarnam and Ors. v. State of Madhya Pradesh, decided on 13.05.2014. 3. Judgment of this Court in D.B. Criminal Jail Appeal No. 384/2006 - Khemla v. State of Rajasthan, decided on 21.01.2016. 4. Kalaram v. State of Rajasthan, reported in 2015(1) CJ (Cri.) Raj. 180. 5. Judgment of this Court in D.B. Criminal Appeal No. 38/2006 - Poona v. State of Rajasthan, decided on 17.08.2015. 19. The learned counsel for the appellants submitted that in the light of above judgments, the impugned judgment may be quashed and the appeals may kindly be allowed. 20. Per contra, learned Public Prosecutor vehemently opposed the submissions made by the learned counsel for the appellants and submitted that although the eye witnesses turned hostile, but this Court cannot lose sight of the fact that the prosecution has proved its case on the basis of circumstantial evidence. The investigating officer (PW.15 - Bhomaram) reached on the spot soon after receiving the information and recorded the statements of witnesses and found that the body of deceased, Jasveer Kaur, was lying on a cot and injuries were round upon body from which the blood was oozing out. The doctor PW.14, namely, Dr. The investigating officer (PW.15 - Bhomaram) reached on the spot soon after receiving the information and recorded the statements of witnesses and found that the body of deceased, Jasveer Kaur, was lying on a cot and injuries were round upon body from which the blood was oozing out. The doctor PW.14, namely, Dr. Surendra Mohan Batra has supported the prosecution case and gave opinion that the injuries caused to the deceased were sufficient to cause death. Although the witnesses of recovery viz. Ashok Kumar (PW.7) and Shyamlal (PW.11) before whom the axe was recovered vide (Ex. P/17) turned hostile and did not support the recovery of axe but there is no question to disbelieve the statement of PW-15 Bhoma Ram SHO, Police Station - Jawahar Nagar, who has specifically and categorically supported the recovery. Further, it is submitted that in the FSL report, the human blood was found upon the axe and the clothes of the accused and, therefore, all these circumstances loudly speak that the prosecution has proved its case beyond reasonable doubt even on the basis of circumstantial evidence, therefore, both the appeals deserve to be dismissed. 21. It is also submitted that arguments of learned counsel for the appellant that occurrence took place at the spur of moment, therefore, the offence cannot travel beyond Sections 304 Part II and 323 IPC respectively for the appellants, is not acceptable in view of the fact that the injuries caused by the weapon axe is corroborated by the doctor, therefore intention can be gathered from the nature of injuries caused to the deceased, as such, even if the evidence of motive and intention is not on record, conviction can be based upon circumstantial evidence, which is very much available on record. Therefore, both the appeals may be dismissed. 22. After hearing the learned Counsel for the parties, we have perused the entire evidence available on record in the light of arguments advanced by the parties. 23. There is no dispute that all the eye witness PW-1 Jaspal Kaur (daughter of the deceased), PW-2 Rajveer (son of deceased), PW-3 Meva Devi, PW-4 Deepak Kumar, PW-5 Lakha Singh, PW-6 Nihalchand, PW-7 Ashok Kumar and PW-11 Shyam Lal turned hostile and did not support the prosecution case. 23. There is no dispute that all the eye witness PW-1 Jaspal Kaur (daughter of the deceased), PW-2 Rajveer (son of deceased), PW-3 Meva Devi, PW-4 Deepak Kumar, PW-5 Lakha Singh, PW-6 Nihalchand, PW-7 Ashok Kumar and PW-11 Shyam Lal turned hostile and did not support the prosecution case. It is also not in dispute that trial court held accused-appellant guilty on the basis of circumstantial evidence because all the eye witnesses turned hostile and did not support the prosecution case. The learned trial Court relied upon the testimony of investigating officer of the case Bhomaram (PW-15) the then SHO of Police Station Jawaharnagar and statement of PW-14, Dr. Surendra Mohan Batra and Mahaveer Prasad (PW-13) ASI of PS Jawahar Nagar, who was accompanying the investigating officer when he reached on spot during the investigation. The trial Court also relied upon the FSL report Ex.P/34 in which it is reported by the Forensic Laboratory that human blood of 'AB' group was found upon the axe recovered as per information given by accused-appellant Balkaran Singh, so also upon the clothes of both the accused. 24. As per settled principal of law, the trial Court can rely upon the circumstantial evidence even if the eye witnesses turned hostile and did not support the prosecution case, but at the same time, this Court cannot lose sight of the fact that Raghuveer Singh, who gave first information to the SHO Bhomaram (PW-15) did not appear in the witness box as witness in the court to prove the fact of information, but on the basis of such lapse, it cannot be said that circumstantial evidence cannot be relied upon by the trial Court so as to find truth of the case. In our view the conviction can be passed upon circumstantial evidence even if the eye witnesses turned hostile. In our view the conviction can be passed upon circumstantial evidence even if the eye witnesses turned hostile. Obviously, in this case, the conviction of both the accused-appellants is based upon circumstantial evidence under Section 302 and 302/109 IPC, therefore, while accepting the fact of incident, we deem it appropriate to consider the arguments of learned counsel for the appellants that the finding of learned trial Judge so as to convict the accused appellants for the offence under Section 302 IPC is not sustainable in law because occurrence took place all of sudden in spur of moment therefore, even if whole prosecution case is accepted then also the conviction cannot travel beyond offence under Section 304 Part I IPC against the accused-appellant Balkaran Singh @ Chhinda Singh and for offence under Section 323 IPC against the accused-appellant Kewal Singh. As per prosecution case, the son of deceased Rajveer Singh (PW-2) gave following information to the investigating officer SHO Bhomaram (PW-15). The relevant part of the statement, reads as under : " cPps ls iwNk rks mlus ;s yk'k viuh ekWa tlohj dkSj dh gksuk crk;k vkSj crk;k fd 11 cts djhc eSa] esjk ikik ckydj.kflag vkSj ekSlk dsoyflag dejs esa cSBs Fks esjh ekWa ckgj [kkV ij ysVh Fkh rks esjs ekSlk us esjs ikik ls dgk fd rsjh vkSjr ekM+h gSA bl ij esjh eEeh us ckgj ls ,slk ugha dgus ds fy, dgk rc esjk ekSlk o ikik ckgj dqYgkM+h ysdj vk;sA esjs ekSlk dsoyflag us dqYgkM+h ds MaMs dh esjh eEeh ds pksV ekjhA fQj esjs ikik us dqYgkM+h ysdj ewaB dh rjQ ls esjh eEeh ds flj esa nks pksV ekjh vkSj ,d pksV Nkrh ij ekjh esjh eEeh ds flj ls [kwu cgus yxk vkSj og ej xbZA esjk ekSlk o ikik nksuksa Hkkx x;sA " 25. Upon perusal of aforesaid fact, it is apparently clear that occurrence took place suddenly on the spur of moment. There is no evidence on record to prove any motive or intention. It emerges from the evidence on record that there was no intention to cause death, assault took place all of sudden on a very trivial issue. During argument the learned counsel for the appellants submitted that appellants are not disputing the genesis of occurrence, meaning thereby, as a matter of fact the occurrence occurred all of sudden due to trivial issue. 26. During argument the learned counsel for the appellants submitted that appellants are not disputing the genesis of occurrence, meaning thereby, as a matter of fact the occurrence occurred all of sudden due to trivial issue. 26. Upon identical facts of the case the Hon'ble Supreme Court in case of Sarnam and Ors. v. State of Madhya Pradesh passed in Cr. Appeal 631/2009 decided on 13.5.2014 converted the conviction from offence under Section 302 IPC to 304 Part II IPC and reduced the sentence of life imprisonment to 7 years. The following adjudication was made by the Hon'ble Supreme Court in Sarnam's case which reads as under : "Learned counsel for the appellants has only submitted that as there was no intention to cause death, and the altercation and the assault took place all of a sudden on a very trivial issue, the conviction should be converted to under section 304 Part-II IPC. Learned counsel for the State supported the judgment of the learned trial Judge which has been affirmed by the High Court. To appreciate the aforesaid limited submission, we have carefully perused the judgments of the learned trial Judge as well as of the High Court. We have scrutinized the evidence on record. The genesis o occurrence is not in dispute. As is manifest, the altercation and til assault occurrence all of a sudden due to a trivial incident. Th evidence on record would show that lathi blows were given and the deceased sustained injuries and died due to hemorrhage. The blow as it appears, were given with force. That is why the vital parts were affected. The purpose, as it seems to us, was to beat up the accused but certainly not with the intention to kill him. Nothing has been brought on record that there had been any prior enmity between them. The deceased had protested to high handedness of the accused Sarnam and reacted by stating that it was not his father's hand-pump, the incident gave rise to the altercation and to the ultimate assault. Nothing has been brought on record that there had been any prior enmity between them. The deceased had protested to high handedness of the accused Sarnam and reacted by stating that it was not his father's hand-pump, the incident gave rise to the altercation and to the ultimate assault. Under these circumstances, we are disposed to think that the hitting of the deceased by the accused was not done with the intention to cause death or to cause such bodily injury, as is likely to cause death, but it was within the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury, as is likely to cause death. Therefore, we are inclined to convert the conviction from one under Section 302 IPC to one under Section 304 Part-II IPC and sentence each of the accused person to seven years of rigorous imprisonment. As the accused appellants, namely Bhopal Singh and Ramendra have already undergone more then ten years and have already been released on bail, they be discharged of their bail bonds, and Sarnam, who is in custody, if he has undergone the period of sentence, i.e seven years, be released forthwith if his detention is not required in connection with any other case. The appeal is allowed to the extent indicated above." 27. In case of Balu v. State of Maharashtra reported in AIR 2015 SC 949 the Hon'ble Supreme Court after considering a number of judgments gave following verdicts which reads as under : "18. Applying the aforesaid principle of law to the facts of the case in hand and keeping the same in consideration when we examine the evidence of the prosecution, we find that this is a case where the appellants should have been convicted for the offence punishable under Section 304 Part-I instead of Section 302 IPC. 19. It is for the reason that firstly, neither there was any motive and nor any intention on the part of any of the appellants to eliminate Savitribai. Secondly, there was no enmity of any kind with Savitribai in person with any of the appellants. Thirdly, the appellants had gone there to take possession of the cattle shed and not with an intention to kill any member of the family of Madhavrao Renge. Secondly, there was no enmity of any kind with Savitribai in person with any of the appellants. Thirdly, the appellants had gone there to take possession of the cattle shed and not with an intention to kill any member of the family of Madhavrao Renge. Fourthly, if at all, if there was some kind of animosity or jealousy then it was towards A-1 whose panel had won the election. Savitribai had nothing to do with election because she never contested the election. Fifthly, despite the appellants armed with weapons, none of them inflicted any injury or gave blow to Savitribai but single blow was inflicted only on Madhavrao, who fortunately survived. Sixthly, Savitribai died due to sustaining of burn injuries, which she suffered because the appellants ablazed the cattle shed by pouring kerosene on it. In other words, if the appellants had not ablazed the cattle shed then the incident of death of Savitribai would not have occurred. Eighthly, it was a fight on a spur of moment between the two male groups on the issue of taking possession of cattle shed with no intention to Kill any one and lastly, in the absence of any overt act so attributed to any of the appellants towards Savitribai for inflicting any injury to her, the appellants could not have been convicted for an offence of committing murder of Savitribai so as to attract the rigour of Section 302 IPC and instead they should have been convicted for an offence of culpable homicide not amounting to murder under Section 304 Part I IPC. 20. In the light of foregoing discussion, we allow the appeals in part The appellants are accordingly convicted for an offence punishable under Section 304 Part-1 IPC instead of Section 302 IPC and each of the appellants is hereby awarded 7 years RI. 21. So far as the conviction and sentence awarded by the courts below under various other sections, as specified above are concerned, they are upheld calling for no interference. All the sentences shall run concurrently." 28. 21. So far as the conviction and sentence awarded by the courts below under various other sections, as specified above are concerned, they are upheld calling for no interference. All the sentences shall run concurrently." 28. In D.B. Criminal Jail Appeal No. 384/2006 : Khemla v. State of Rajasthan, decided on 21.1.2016, this Court had occasion to decide similar controversy in which after following the judgments of Hon'ble Supreme Court in case of State of H.P. v. Ram Pal reported in 2006(2) SCC (Cri.) page 165 and Arjun v. State of Maharashtra reported in 2012 Cr.L.R.(SC) 506 and Dayanand v. State of Haryana reported in 2008 Cri.L.J. 2975 held that occurrence took place on sudden provocation then the conviction can be altered from offence under Section 302 IPC to Section 304 Part I IPC. The following adjudication was made by this Court in aforesaid case of Khemla, which reads as under : "After perusing the aforesaid judgments in the light of the evidence of present case, we are of the opinion that even if the entire evidence is accepted in to then also, it emerges from the statements of eye witnesses that complainant (eye-witness, accused appellant and deceased Virma are close relatives, they were sitting together for protection of their crop in their agricultural field and all of sudden quarrel took place in which injuries were inflicted by the accused appellant to the deceased by knife. Meaning thereby, it is a case in which there was no pre-meditation and the act was committed in heal of passion. Therefore, we deem it appropriate to accept the prayer of the accused appellant to convert the conviction from offence under Section 302 IPC to Section 304 Part I IPC while maintaining the conviction under Section 4/25 of the Arms Act. Consequently, on the basis of above discussions, the instant jail appeal is hereby partly allowed. The impugned judgment dated 10.4.2006 passed by the learned Addl. Sessions Judge (Fast track) No. 1, Udaipur in Sessions Case No. 171/2005 is hereby modified and the conviction and sentence of the accused appellant under Section 302 IPC is set aside and he is held guilty for offence under Section 304 Part I IPC and punished with the sentence of 10 years RI with fine of Rs. 5,000/- while maintaining the conviction and sentence for the offences under Sections 4/25 of the Arms Act. 29. 5,000/- while maintaining the conviction and sentence for the offences under Sections 4/25 of the Arms Act. 29. In case of Kalaram v. State of Rajasthan reported in 2015 (1) CJ (Cri) (Raj.) page 180, the Division Bench of this Court gave following verdict and altered the offence from Section 302 IPC to Section 304 IPC Part I IPC. The Paras nos. 17 and 18 of the said judgment are as follows :- "17. The most important witness is Ms. Rekha, daughter of deceased Smt. Desu and accused appellant Kalaram. Ms. Rekha, a minor girl of 13 years, stated that in early morning of the fateful day her father went out to meet natural call. On return he washed his hands and then gave an axe blow on the right temporal region of her mother. Her mother before the incident prepared tea and that was to be consumed by the deceased and this witness. In cross-examination this witness stated that the dispute occurred between her mother and father due to preparing of tea. As per this witness accused immediately on entering into house instructed Smt. Desu to prepare tea and thereafter due to some dispute he under provocation gave a single axe blow to Smt. Desu. This witness reiterated that the quarrel occurred due to the issue of preparing tea. The statement made by this girl clearly indicates that the accused inflicted bodily injury to deceased Smt. Desu on being provoked by the circumstances due to some quarrel in relation to making morning tea. The bodily injury was given by an axe at a vital part of the body, thus, no doubt exists that the accused must have been knowledge that bodily injury given by him may cause death. However, the intention of causing murder as required under Section 300 Indian Penal Code is conspicuously absent in present set of facts. The crime committed by the accused appellant, thus, is not a murder but an offence described under Section 304 Part-I Indian Penal Code. 18. The result of the discussions made and finding arrived at as above is that conviction of accused appellant Kalaram for the offence punishable under Section 302 Indian Penal Code is not justified. The appeal, thus, deserves acceptance in part. Accordingly, the same is partly allowed. The conviction of the accused recorded for an offence punishable under Section 302 Indian Penal Code is set aside. The appeal, thus, deserves acceptance in part. Accordingly, the same is partly allowed. The conviction of the accused recorded for an offence punishable under Section 302 Indian Penal Code is set aside. The sentence awarded too is set aside. The accused appellant, however, is convicted for an offence punishable under Section 304 Part-I Indian Penal Code and he is sentenced to undergo rigorous imprisonment for a period of ten years with a fine of Rs. 10,000/-. In the event of default in payment of fine the accused appellant is required to undergo three months simple imprisonment." 30. We have considered the aforesaid judgments in the light of evidence on record. In this case, all the eye witnesses turned hostile and did not support the prosecution case, but trial Court relied upon the circumstantial evidence and statement of investigating officer PW-15 Bhomaram and PW-14 Dr. Surendra Mohan Batra and held appellant guilty, but upon assessment of entire evidence it is obvious that prosecution has failed to prove any allegation for inflicting any fatal injury by the accused Kewal Singh, for the reason the allegation for inflicting injury which is lacerated wound was simple in nature, therefore, the conviction of the accused appellant Kewal Singh under Section 302/109 IPC deserves to be quashed and the same can be altered to offence under Section 323 IPC. 31. On the basis of allegation reported by the son of deceased Rajveer (PW-2) to the SHO Bhomaram (PW-15), we are of the opinion that occurrence took place due to sudden provocation on trivial issue and there is no evidence of motive and intention on record, therefore, we deem it appropriate to alter the conviction of accused-appellant Balkaran Singh from offence under Section 302 IPC to offence under Section 304 Part I. 32. Consequently both these appeals are partly allowed. The conviction and sentence passed against the accused-appellant Balkaran Singh by the learned Addl. Sessions Judge No. 2 Sri Ganganagar vide judgment dated 20.6.2011 passed in Sessions Case No. 20/2008 (68/2008) for offence under Section 302 IPC is hereby quashed and the same is hereby altered to offence under Section 304 Part I IPC and he is hereby punished with imprisonment of 10 years with fine of Rs. 5,000/- and in default of payment of fine to further undergo 6 months simple imprisonment. 33. 5,000/- and in default of payment of fine to further undergo 6 months simple imprisonment. 33. The punishment of accused Kewal Singh for offence under Section 302/109 is hereby quashed, but accused appellant Kewal Singh is held guilty for offence under Section 323 IPC. The accused-appellant Kewal Singh remained in custody from 1.10.2008 to 21.1.2009 and thereafter from 20.6.2011 to 15.12.2011, therefore, he is punished with sentence already undergone by him. The bail bonds of accused appellant Kewal Singh are hereby discharged.