SHANKER Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been filed by the accused-appellant against the judgment and order dated 30-10-1987 passed by the learned Sessions Judge. Dungarpur in Sessions Case No. 41/87 by which he convicted the accused-appellant for the offence under Section 304. Part-II in place of S. 302. IPC and S. 323. IPC and sentenced him in the following manner : Name of Convicted Sentence accused u/S. awarded appellant Shankar 304 Part-II. To undergo 4 years IPC RI and to pay a fine of Rs. 500/-, in default ol payment of line, to further undergo 5 months' RI 323, IPC To undergo one month RI Both the sentences were ordered to run concurrently.

(2.) It arises in the following circumstances: On 29-5-1987, PW 1 Mansaram lodged an oral report in the Police Station. Sadar. Dungarpur before PW-9 Jeetmal, SHO of that Police Station stating inter alia that his elder brother Shankar (accused-appellant) was living separately along with his wife and since the accused-appellant was not doing any job, his parents were not happy with him and his parents used to ask the accused-appellant to do some job and because of that, he was also angry with them and the accused-appellant used to tell that if his parents (PW8 Velaram, father of the accused appellant and Varju Devi, mother of the accused-appellant (hereinafter referred to as the deceased)) compel him to do some job, he would kill them. It was further stated in the report by PW-1 Mansaram that on 23-5-1987 the accused-appellant went to the house of his parents and started abusing them and asked them to come out from the house and thereupon, deceased and PW-8 Velaram. father of the accused-appellant, came out from the house and upon this, the accused-appellant started throwing stones on them and one of the stones, which were being thrown by the accused-appellant, struck on the head of the deceased, as a result of which, blood came out profusely and her voice went off and PW-8 Velaram also received injuries. It was further stated in the report by PW-1 Mansaram that PW-2 Deva PW-5 Kamla, sister of the accused appellant and oilier witnesses intervened in the mailer and thereafter, deceased was taken to the Dungarpur hospital in A truck where she was got admitted. It was further stared in the report by PW- 1 Mansaram that sinee her mother was not in a position to speak and her head was broken, as a result of throwing stones by the accused-appellant, therefore, he was lodging the report. On this report, police registered the ease initially under Section 307, IPC and chalked out regular FIR Ex. P/1 and started investigation. Before the report was lodged by PW-1 Mansaram. deceased was got medically examined by PW-7 Dr. Balmukund and her injury report is Ex. P/9 and her X-ray report is Ex. P/10, which shows two fractures on her head. The injury report of PW-8 Velaram is Ex. P/11. It may be stated here that deceased died in the hospital on 31-5-1987 and thereafter, post-mortem of the dead body of the deceased was got conducted by PW-7 Dr. Balmukund and the post mortem report is Ex. P/12, where it was opined that the cause of her death was increased intracranial tension as a result of head injury. After usual investigation, police submitted challan for the offence under Section 302, IPC against the accused-appellant in the Court of Magistrate, from where the case was committed to the Court of Session. On 10-7-1987, the learned Sessions Judge, Dungarpur framed charges for the offence under Sections 302 and 323, IPC against the accused-appellant. The charges were read over and explained to the accused-appellant, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 9 witnesses and got exhibited some documents. There after, statement of the accused-appellant under Section 313, Cr.P.C. was recorded. In defence, one witness was produced by the accused-appellant. After conclusion of trial, the learned Sessions Judge, Dungarpur through his judgment and order dated 30-10-1987 convicted the accused-appellant for the offence under Section 304, Part 11. IPC in place of 302, IPC and 323, IPC and sentenced him in the manner as indicated above holding inter alia :

(3.) In this appeal, the learned counsel appearing for the accused-appellant has made the following submissions :