1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: S.B. CRIMINAL APPEAL NO.343/2004 (Khinya Ram Vs. State of Rajasthan) S.B. CRIMINAL APPEAL AGAINST THE JUDGMENT DATED 10.2.2004 PASSED BY THE LEARNED ADDITIONAL SESSIONS JUDGE (FAST TRACK), PARBATSAR IN SESSIONS CASE NO.74/2003 (28/2003). DATE OF JUDGMENT : 21th May, 2008 P R E S E N T HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Suresh Kumbhat, Mr. Sheetal Kumbhat for the appellant. Mr. O.P. Rathi, Public Prosecutor. BY THE COURT : 1. This appeal is directed against the judgment 10.2.2004 passed by the learned Additional Sessions Judge (Fast Track) Parbatsar, whereby, he convicted accused appellant Khinya Ram for offence under Section 304 Part-I IPC and sentenced him to undergo ten years' rigorous imprisonment and to pay a fine of 2. Rs.5000/-, in default of payment of fine to further undergo two months' simple imprisonment. Accused appellant was also convicted for offence under Section 323 IPC and was sentenced to six months' simple imprisonment, for inflicting simple injuries on the person of Smt. Jhankari PW-7. 2. The brief facts leading to this appeal are that on 13.7.2003, Smt. Jhankari filed a report at police station Peelva, alleging therein that the deceased and her husband are having a joint agricultural kuan (field), whereby, Khinya Ram started quarrel on the issue of tiding cow at the joint land. When deceased objected to it, accused Khinya Ram took lathi and inflicted blow on his neck and back side, whereby, he died. 3. Upon this report, police registered a case for offence under Section 302 IPC and commenced investigation. In the post mortem report, it was revealed that the injury was on head. After investigation, the challan was filed against the accused appellant for offence under Sections 302 and 323 IPC. Accused appellant was charged accordingly, to which he pleaded not guilty. Prosecution examined seven witnesses. Statement of accused was recorded under Section 313 Cr.P.C. He produced three witness in defence. 3. 4. After hearing the arguments, the learned trial Judge convicted the accused appellant for offence under Sections 304 Part-I and 323 IPC and sentenced him as indicated above. 5. Learned counsel for the appellant has submitted that it is not a case of culpable homicide amounting to murder as there was no motive on the part of the appellant to intentionally kill his brother on account of small incident of cow tiding and injuries said to have been inflicted on the head, whereby, he died, about which there was no intentional act. According to the learned counsel, there was no repeated blows as told by the wife of the deceased Smt. Jhankari PW-7. He further submits that at the most, it can be a case of culpable homicide not amounting to murder punishable under Section 304 Part-II IPC, for which, the accused appellant has already remained in jail for about five years. 6. Per contra, the learned Public Prosecutor has supported the judgment of the learned trial court and submitted that it is a case of murder and the learned trial court has rightly convicted the accused appellant. 7. Having gone through the evidence on record, it is true that there is a material contradiction in the statement of Smt. 4. Jhankari, wife of the deceased with regard to inflicting injuries. In the FIR, she has stated that the injuries were inflicted on the neck and on the back side but in the statement as PW-7, she has stated that the accused appellant came inside the house after telling him about the cow tiding and then went in the house and came with lathi and inflicted blow on the neck, whereby, he felt down and, thereafter, accused appellant gave repeated blows. This statement of Smt. Jhankari is not supported by medical evidence of Dr. Pankaj Pandey PW-3, in which, he has clearly stated that there was no injury on the neck and on the back side of deceased Arjun Ram. According to the post mortem report, Ex.P-12, the only injury was on the head, where, there was a fracture of temporal bone. This injury was on left eye, leading towards the head and there were no other injuries on the head. Except Smt. Jhankari, the prosecution has not been able to prove that there are other eye witness of the case to arrive at the act of the accused in committing murder. The witnesses of the seen of crime are Harji Ram PW-5 and Manohar PW-6, but both these witnesses are hostile witnesses, therefore, without going in to the evidence of defence, if the evidence of the informant, who is the deceased's wife is looked into in the light of the evidence of the Doctor, it clearly indicates that it is not a case of culpable homicide amounting to murder but it is a case of culpable homicide not amounting to murder punishable under 5. Section 304 Part-II IPC because in this case, a single injury has been inflicted on the head with a lathi, for which only inference can be drawn that the accused was having knowledge that by this act death can be caused. 8. Consequently, the appeal is partly allowed. The conviction and sentence of accused-appellant Khinya Ram S/o Rupa Ram is altered from Section 304 Part-I IPC to Section 304 Part-II IPC. His conviction and sentence under Section 323 IPC is maintained and he is sentenced to the period already undergone. He is in jail, he shall be released forthwith if not required in any other case. (DEO NARAYAN THANVI), J. ms rathore