1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Fateh Singh Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.516/2008 against the judgment dt.30.6.07 passed by Addl.Sessions Judge,Bhadra,Distt.Hanumangarh, in Sessions Case No.27/2005. Date of Judgment: Nov.04, 2008 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.G.R.Punia, for the appellant. Mr.V.R.Mehta, Public Prosecutor. BY THE COURT : (PER HON'BLE THANVI J.) 1. This is an appeal against the judgment of the learned Additional Sessions Judge, Bhadra, District 2 Hanumangarh, dated 30.6.2007, whereby he convicted the accused appellant Fateh Singh for the offences under Sections 302 IPC & 323 IPC and sentenced him to undergo imprisonment for life & to pay a fine of Rs.5000/- & in default, to further undergo one year's R.I. for the offence u/s.302 IPC and six months' simple imprisonment and a fine of Rs.500/- & in default, to further undergo one month's S.I. for the offence u/s.323 IPC. Both the substantive sentences were ordered to run concurrently. 2. Facts leading to this appeal are that on 22.9.05, one Hardutt Ram son of Munshi Ram by caste Jat resident of Dabri, made a statement before the S.H.O., Police Station, Bhadra at Govt. Hospital that on 21.9.05, when he & his father Munshi Ram were taking `Hukka' at the `Chabutara', his younger brother Fateh Singh (accused) came in a drunken state with lathi and inflicted two lathi blows on the head of his father and when his daughter Anita came to intervene, he inflicted 3 lathi blow on her person also. The motive of the incident as per the statement given by the informant Hardutt Ram, who is brother of accused, was that accused Fateh Singh wanted to sell his land, to which his father was objecting. Upon this report, a case under sections 341 & 323 IPC IPC was registered and on 26.9.05, injured Munshi Ram died in the hospital. Thereafter, the police filed challan against the accused appellant for the offences u/ss.302, 323 and 341 IPC before the learned ACJM, Bhadra, who committed the case to the court of Sessions. Learned trial Judge framed charges against the accused u/ss.302 and 323 IPC to which he pleaded not guilty and claimed trial. The prosecution examined 11 witnesses. The statement of the accused was recorded u/s.313 CrPC. He led no defence. After hearing the arguments, the learned trial Judge convicted & sentenced the accused appellant as above. 4 3. It has been contended by the learned counsel for the appellant that he does not want to dispute the incident but his only submission is that this case falls under Section 304 part II IPC and not under Section 302 IPC, as according to him, the motive of the incident was that the accused wanted to sell his land, to which deceased Munshi Ram, who was father of accused, objected and as a result, the accused appellant inflicted lathi blows on the head. There was no intention of the accused to kill his father. 4. On the contrary, learned Public Prosecutor supported the judgment of the learned trial Court. 5. We have re-appreciated the evidence on record. The main witness of the incident is Hardutt, PW 2, who lodged the F.I.R., Ex.P.1 before the police by giving his statement. In the court statement also, he has supported the contents of the F.I.R. and from his statement, it appears that the motive was only about 5 selling of land by accused, to which his father objected. According to this witness, when his father was taking `Hukka' at the `Chabutara', his brother accused Fateh Singh came and told that he would sell his land and when his father objected, he inflicted lathi blows and after five days of the incident, his father died. During the course of the incident, his daughter Anita also sustained lathi blow given by accused for which he has been convicted for the offence under section 323 IPC. Anita, PW 1 has also supported this version. 6. From the evidence on record, it appears that the accused was having no intention to kill his father by inflicting lathi blows on the vital part of the body. It can safely be said that he was having knowledge that by this act, the death may likely to be caused. Therefore, this act of the accused falls under Clause III of Section 299, which defines “culpable homicide not amounting to murder”, punishable u/s.304 part II IPC vis-a-vis it can be termed as an act covered under Exception IV of 6 Section 300 IPC, which also provides punishment for culpable homicide not amounting to murder, if the act is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without offender having taken undue advantage or acted in a cruel or unusual manner. In the instant case, the fight took place on account of issue of selling of land by accused, to which his father objected, upon which the accused lost his patience and inflicted two lathi blows on his father's head. Therefore, in our view, the contention of the accused appellant that it is a case falling under Section 304 part II IPC is full of merit. 7. Consequently, this appeal is allowed in part. While maintaining the conviction & sentence recorded by the Additional Sessions Judge, Bhadra, Distt. Hanumangarh vide his judgment dt.30.6.07 against accused appellant Fateh Singh for the offence u/s.323 IPC with six months' S.I. alongwith a fine of Rs.500/- & in default, to further undergo one month's S.I., his conviction for 7 the offence u/s.302 IPC is altered to Section 304 part II IPC and he is sentenced to undergo four years' R.I. and a fine of Rs.5000/- and in default, to further undergo six months' R.I. Accused is in jail, he will serve out the remaining part of the sentence awarded. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS