Lakshmi Narain, J.C.
1. The convict Sarapada Jamatia in Sessions Case No. 5 of 1953 has appealed from Jail against his conviction and sentence of 10 years R. I. passed by the Sessions Judge, Tripura, on 8-5-53 under Section 304, Part II, Penal Code.
2. The prosecution case is that on 10-6-52 at 10/11 A. M. the deceased Syed Ahamed an inhabitant of Brahmacharra was sitting at the Dhenki Ghar of Ananta Sadhu, when the accused appellant Sarapada Jamatia came and asked him 'O, Shala, I have struck you on the way in order to make you go home, but you have not done sa But you have come here and are sitting here. Go, go' saying so the accused struck Syed Ahamed with a lathi. Syed Ahamed ran to his house. He fell down in the court-yard saying that his heart and head are bursting. On query from his wife he told her that he had been struck at the home of Sadhu by Pagla. She noticed a swelling on the head of the Syed Ahamed. He did not regain consciousness after that and died during the early hours of the night. As the Police Station, Khowai is a little far off, report was made there by Nur Mahamed on 12-6-52 at 2 P. M., who took the dead body of Syed Ahamed also along with him. After inquest the O/C sent the body for postmortem examination which was performed the same day at about 4/5 P. M. Only one bruise 2' X 1' was found on the parietal region of the head caused by a blunt weapon. No other external injury was found on the body. On opening the brain, the doctor found congestion of the membranes of the brain, due to rupture of fine arteries.
3. The accused in the case was not found of unsound mind by the doctor who kept him under observation in jail for a considerable time. After due investigation charge sheet against the appellant was put in by the Police under Section 302, Penal Code on 27-6-52. The accused was committed to the Sessions Judge's Court for trial by Sri S. C. Kar, Magistrate 1st Class, Khowai on 6-3-1953.
4. The accused has pleaded not guilty to the charge and has produced no evidence. Although there is no direct evidence that the accused gave the blow on the deceased's head when the latter was sitting at the Dhenki Ghar of Ananta Sadhu, there is sufficient and strong circumstantial evidence for coming to a reasonable conclusion that he did so. This is consisted in the statements of Ananta Sadhu P. W. 6, his daughter Guru Kanya P.W. 7 and his daughter-in-law Sachirani P. W. 8 and so also the statements of Nur Mahamed P.W. 11 & the deceased's wife Tajimennasa P. W. 2, along with the extra-judicial confession made by the accused to Ananta Sadhu just after the occurrence, the dying declaration of the deceased to his wife and the accused's own statement in the committing Court which is to be read as evidence in the case. That the deceased Syed Ahamed has died on account of the injury on the head given by a blunt weapon is proved by the Doctor's evidence who performed the post-mortem examination on the dead body. He is P. W. 3. I concur with finding of the learned Sessions Judge on the point that it is proved that the accused gave the lathi blow on the head of the deceased as a consequence of which he died later on.
5. The only point of determination in this appeal is whether the offence falls under Section 304, Part II or Section 325, Penal Code - and what should be the punishment under the circumstances of the case.
6. It is in prosecution evidence that the accused is called 'Pagla' (Lunatic) by the villagers. P. W. 2 Tajimennasa wife of the deceased though of 12/13 years of age is a witness who should be taken as sufficiently intelligent to give a correct statement. She has stated, as given in the judgment of the trial Court, that 'he roves about like a lunatic and behaves as a lunatic'. All the other witnesses belonging to that village have stated that the accused is known as a 'Pagla' though actually he may not be so. A conclusion can easily toe drawn from the above evidence that the accused has certainly some derangement in his brain - although not to the extent that he can be called of unsound mind and therefore deserving of the benefit of 3. 84, Penal Code.
7. Now the second part of Section 304, Penal Code applies where there is no guilty intention, taut there is guilty knowledge. There is no evidence on the record showing any intention or knowledge of likelihood of causing death on the part of the accused. As observed in - 'Govt. of Bombay v. Abdul Wahab AIR 1946 Bom 38 (FB) at p. 41 (A):
the line between culpable homicide not amounting to murder and grievous hurt is very thin. In one case the injuries must be such as are likely to cause death and in the other they may endanger life.
8. Only one injury was found on the body of the deceased which was a simple bruise 2' x 1' on the head. The injury as examined externally was a simple one. There was no fracture at the seat of the injury. On opening the brain it was found that there was congestion of the membranes due to rupture of the fine arteries which in the doctor's opinion was due to irritation of the brain cells and the circulation of the brain became rapid. The injury could not be regarded as a serious one, but the unfortunate death of the victim has made it so. Though the result of the blow was unexpectedly unfortunate, it cannot be said that the accused could have any knowledge of the likelihood of causing death by such a blow. An act which is not likely to cause death amounts to grievous hurt even though death is caused.
9. The weapon of offence is said to be an ordinary lathi picked up from a boy. The act also was a sudden one and not premeditated.
10. In the present case, the nature of the weapon used which is an ordinary lathi picked up from a boy, the number of injuries which is only one and that too a simple bruise found externally without any fracture underneath and the mental condition of the accused though not of unsound mind, go a great deal to determine whether the accused had any knowledge of the likelihood of causing death, and I have no hesitation in holding that he could not have any such knowledge. The offence, therefore, does not fall under the purview of part II of Section 304, Penal Code...Under the circumstances it is not safe to hold that the accused appellant intended to do more than causing grievous hurt.
11. In view of this finding the conviction and sentence of the appellant under Section 304 part II, Penal Code is set aside. He is, however, convicted under Section 325, Penal Code to undergo R. I. for one year, considering that the appellant has already been in jail since his arrest 011 15-8-52 till the end of the Sessions trial on 8-5-53 which comes to a period of about 2 years. This appeal is accepted to the above extent.