RAJ KUMAR @ RAJU Vs. STATE

JUDGEMENT

(1.) THE appellant is aggrieved by the impugned judgment dated 3.02.1996 convicting the appellant under Section 302 of the IPC for murder of one Kirpal (deceased) and the order of even date sentencing him to life imprisonment and a fine of Rs. 2000/ -, in case of default of payment of fine, to further undergo simple imprisonment for a period of four months.

(2.) THE case of the prosecution as established by the testimony of the eye witness Satish Kumar (PW3) is that the said PW3 and the deceased went to the shop of kerosene dealer along with the PW2 Chander Pal, where one Nandu and Balli met them. After purchasing the oil, there was some altercation between Balli and the deceased, which resulted in the deceased slapping the Balli. On this occurrence, Nandu, (who is brother of the appellant) reprimanded the deceased, but the deceased told him to bring whoever he wanted in support of himself. Balli went away and brought the appellant along with him who enquired from the deceased as to why he had slapped Balli. The deceased responded by stating that he would do what he liked and challenged the appellant to fight at the lake side. Thereafter, the two parties went to the lake side where there was exchange of hot words between the appellant and the deceased, and the deceased also slapped Nandu, the brother of the appellant. On his brother being slapped, the appellant took out kirpan and stabbed deceased in his abdomen twice. The said PW3 rushed forward to save the deceased and claimed that the appellant also tried to stab him, but he hit with belt and the appellant ran away.

(3.) THE appellant is present in Court. Though prosecution has failed to prove the post mortem report by producing the Doctor concerned, learned Counsel for the appellant, on instructions, submits that the appellant accepts his participation in the incident and the infliction of the wound on the person of the deceased. He, however, submitted that there was no intention to kill. As per the story of the prosecution, the incident arose on account of sudden fight in which the appellant was provoked on account of the deceased slapping the brother of the appellant. It is thus pleaded that the present case is not fit for conviction under Section 302 of the IPC, but under Section 304 of the IPC, the Exception 4 to Section 300 of the IPC applying to the facts of this case.