KARIM KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) SUCCINCTLY put, the prosecution story is that Karim Shah and Rahim Shah Fakirs of village Udai-Kalan, Tehsil Gangapur City, collected some clay required for repairing their buildings-The lay was put on the lane, abutting the houses of-Munir Khan and the accused Karim Khan. This material blocked the passage. Munir Khan and Karim Khan remonstrated Karim Shah and Rahim Shah against what they did. Karim Shah and Hahim Shah paid no heed to the protest. This led to rupture of relation between the two parties, Munir Khan and Karim Khan on the one hand and Karim Shah and Rahim 'shah on the other. In the morning of April 29, 1970, when Karim Shah was returning home from the village mosque, Munir Khan Tiurled abuses at him. Rahim Shah, P. W. 2, intervened. In the meantime the accused Karim Khan appeared on the scene. He flung a stone towards Rahim "shah, Rahim Shah, however, escaped its impact. Karim Khan then threw another stone, which hit the left hand. of Karim "shah. . He cast a third stone at Rahim Shah's wife. Soon after the deceased Sub han Shah arrived at the spot/. He enquired of Munir Khan as to why he was beating the destitutes of the 'mohalla'. Karim Khan got enraged at it. He picked-up a stone and dashed it towards Subhan Shah's chest. The moment Subhan Shah received the stroke on his chest, he fell down and breathed his last within a short time. First information report of the occurrence was lodged by P. W. 4 Sardar with the police station, Gangapur City, that very day at 11 a. m. The police registered a case Under Section 302, IPC and set the investigation in motion. Karim Shah was examined by Dr. S. L. Agrawal, Medical Officer, Gangapur City. He found the following injury on his person: Swelling 1"x1" on the left hand dorsum near wrist, It was simple in nature and was caused by a blunt Oject. Dr. Agrawal also conducted autopsy of the dead body of Subhan Shah, aged about 65 years. He did not find any external mark of injury on the person of the deceased. His heart was, however, found ruptured. In the opinion of the Doctor, Subha Shah died of the rupture of heart, resulting in heart-failure. After investigation was conducted, the police put up a challan in the Court of the Munsiff-Magistrate, Gangapur City. The said Magistrate conducted preliminary inquiry in accordance with the provisions of Section 207-A,'cr. PC and committed the accused to the Court of the Additional Sessions Judge, Gangapur City. The accused was indicted for crime under Section 304, IPC to which he pleaded not guilty. In support of its case the prosecution examined 6 witnesses. In his statement, recorded Under Section ,342,- Cr. PC the accused showed total ignorance of the. offence. He further stated that the prosecution witnesses indulged in deliberate falsehood. Munir Khan and the Fakirs exchanged hot words in connection with putting clay on the lane. He also reached the place. He did not see Subhan Shah there, nor was he beaten by him. Subhan Shah was an old man. He, the accused added, might have died of heart-failure. The accused did not adduce any evidence in his defence. The trial court, by its judgment, dated September 22, 1970, convicted the appellant Karim Khan of the offence Under Section. 304, Part II, I. P, C, and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1000/-, in default of payment of which to further undergo one year's rigorous imprisonment.

(2.) AGGRIEVED by the above judgment, Karim Khan has taken the present appeal. The contention of learned Counsel for the appellant is that the trial court went wrong in the application of Section 304, (Part II), IPC to the present case. The learned Counsel for the State supported the judgment of the Court below.

(3.) THE only question that arises for the disposal of this appeal is whether the accused Karim Khan is guilty Under Section 304, Part II, IPC, Section 325 or Section 323, IPC