1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Govind Singh vs. State of Rajasthan D.B.Criminal Appeal No.604/2005 against the judgment dated 13.5.2004 passed by Additional Sessions Judge (Fast Track), Balotara Camp Barmer in Sessions Case No.128/2002 (30/2002). Date of Judgment :: 12th April, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. Suresh Kumbhat ] Mr. Sheetal Kumbhat] for the appellant. Mr. KR Bishnoi, PP, for the State. .... BY THE COURT : (PER HON'BLE MATHUR,J.) Learned Additional Sessions Judge (Fast Track) Balotara, Camp Barmer, by judgment dated 13.5.2004 convicted the accused appellant for an 2 offence punishable under section 302 Indian Penal Code and awarded sentence of life imprisonment with a fine of Rs.5000/- and in default of payment of fine, further to undergo six months imprisonment. Instant appeal is preferred to challenge the same. Briefly stated, facts of the case are that on 27.6.2002 PW-6 Prakash Singh submitted a written report (Ex.P/9) at Police Station Chauhatan mentioning therein that at the border of Sanwalore an agricultural field under joint tenancy of Kishore Singh, Dhan Singh and his family is situated and that is known as “Ravji Wala Khet”. On 27.6.2002 he and his younger brother Ramesh alongwith Raju Singh son of Mishri Singh Rajpurohit went to plow the land at “Ravji Wala Khet” by a tractor, under instructions of his father. When Raju Singh started plowing, accused Govind Singh came there and stated that he will not permit to do so. On this objection, Raju Singh returned to village and informed the entire incident to his father. At about 04:00 PM they alongwith their father again went to “Ravji Wala Khet” on tractor and started plowing. Raju Singh was plowing the land with tractor and Harlal Singh (father of the complainant) was involved in the work of removing weeds. Govind Singh at that time was present in his own field and from there he started abusing. He came to “Ravji Wala Khet” riding on a camel and then indulged in some talk with Harlal Singh. At that time he tied the camel on a 3 'khejri' tree and indulged in deliberations with Harlal Singh, during this course, Harlal Singh advised Govind Singh to go to his home, as matter relating to land could be settled by having talks between the brothers. At that time Govind Singh gave an axe blow to Harlal Singh near his left ear, consequently he fell down, two more axe blows were given by Govind Singh, consequently Harlal Singh died. The complainant alongwith Raju Singh then came to the village and informed entire incident to Kishan Singh, Kishore Singh, Derawar Singh etc. On basis of the information aforesaid a case was lodged for commission of offence under Section 302 IPC, investigation was made and a charge sheet was filed. The case being exclusively triable by the court of Sessions, the same was committed to it and a charge for commission of an offence under Section 302 IPC was framed. On denial of the same, the accused was tried. The prosecution supported its case with the aid of 15 witnesses, out of whom PW-6 Prakash Singh and PW-12 Raju Singh are the eye witnesses. The prosecution also produced 20 documents to prove the contents referred therein. The accused was examined as per provisions of Section 313 Cr.P.C. to explain the circumstances and the evidence available against him. The accused tried to explain the circumstances with a plea that Harlal Singh came to the field which was a 4 part of his father's land and he was farming thereon from last number of years. He stopped Raju Singh, Prakash Singh and Ramesh from plowing the land in the morning but at about 03:00 PM Harlal Singh, Ramesh, Om Prakash and Raju Singh again came with tractor. He again objected plowing of the land by them but Harlal Singh was adamant, and stated that he will plow the land irrespective of any consequence. Harlal Singh at that time gave certain stick blows to him from the stick of axe and during this quarrel accused snatched axe and then just to save himself gave an axe blow that hit on the neck of Harlal Singh. The accused also produced DW-1 Veer Singh as witness in defence. Learned trial course analysed and appreciated the entire evidence available on record and reached at the conclusion that death of Harlal Singh was homicidal one and that was due to axe blow given by accused Govind Singh. Learned trial court found the act of the accused a murder as defined under Section 300 IPC. Accordingly, sentenced him for life term with fine. In appeal, the only contention advanced by counsel for the appellant is that the act of the accused appellant was in self-defence and while doing so he exceeded little bit but in any event the offence committed by him does not travel beyond an offence punishable under Section 304 part-II IPC. 5 We have considered the argument advanced and also scrutinised the entire record. The homicidal death of deceased Harlal Singh is not at all in dispute in view of the medical evidence and that has also been accepted by accused while explaining the circumstances as per Section 313 Cr.P.C. The deceased, as per PW-14 Dr. Jitendra Singh received four injuries and he died due to coma caused by head injury and shock due to excessive bleeding from injury on neck. PW-6 Prakash Singh, an eye witness of the incident, is son of deceased and as per him Govind Singh came to “Ravji Wala Khet” and raised objection regarding plowing of that field by his father. As per this witness, accused Govind Singh was claiming his rights over that land. Deceased Harlal Singh then stated that, let he be permitted to plow the land and all other disputes will be settled by having talk among brothers. Govind Singh then gave an axe blow to Harlal Singh who fall down and then two more axe blows were given by Govind Singh. PW-12 Raju Singh stated that he was plowing the land by driving the tractor and at that time Prakash Singh came and said that Govind Singh has given axe blow to his father Harlal Singh. On 6 receiving this information he rushed to the spot where he found Harlal Singh with grievous injuries. He further stated that he came to the village with Prakash Singh and informed about the incident to Derawar Singh, Kishore Singh and Kishan Singh. PW-1 Kishore Singh, PW-3 Derawar Singh and PW-4 Kishan Singh also corroborated the factual position aforesaid. As per all these three witnesses, Raju Singh and Prakash Singh came to them and informed about the incident occurred at “Ravji Wala Khet”. On consideration of the evidence aforesaid, we are having no doubt that death of Harlal Singh occurred because of the injuries given by Govind Singh. The important aspect of the matter is that Kishan Singh, Derawar Singh and Kishore Singh all stated that Prakash Singh informed them that before giving axe blow, Govind Singh and Harlal Singh entered into hot discussions and were abusing each other. From reading of the statements of all the three persons named above and also from the statements of PW-12 Raju Singh, it appears that during hot discussions between the accused and deceased Harlal Singh a sudden quarrel was there and in heat of passion accused gave axe blow to Harlal Singh. There is no evidence available on record to establish premeditation on the part of the accused. 7 Hon'ble Supreme Court in Daya Nand v. State of Haryana, reported in AIR 2008 SC 1823, dealt with the entire issue relating to ingredients of offence of murder as defined under Section 300 IPC and reached at the conclusion that even if intention of accused was limited to infliction of a bodily injury sufficient to cause death in ordinary course of nature and did not extend the intention of causing death, the offence would not be murder. Clause (c) of Section 299 and clause (iv) of Section 300, both require knowledge of the probability of the act causing death. Clause (iv) of Section 300 would be applicable where the knowledge of offender is to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, the approximates to a practical certainty. Such knowledge on the part of the offender must be of highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury. In the instant case too, as already stated above, what it appears is that the axe blow was given by Govind Singh during the heat of moment and without having any premeditation or intention to kill Harlal Singh. As such, his act does not travel beyond an offence punishable under Section 304 part-II IPC. 8 Accordingly, this appeal succeeds in part. The conviction of accused appellant Govind Singh under Section 302 IPC is altered to Section 304 part-II IPC for which he is sentenced to rigorous imprisonment for eight years with a fine of Rs.5000/- and further to undergo simple imprisonment for a period of two months in default of payment of fine. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.