1. The accused appellant Jeetmal s/o Manchharam has been convicted Under Section 307, Penal Code, and sentenced to eight years rigorous imprisonment and fine of RSection 100 by the Sessions Judge Dewas Junior Branch. He has, therefore, preferred this appeal.
2. The short facts of the case are as follows: The accused Jeetmal and Sidnath are real brothers. They live in the village KLiaria near Sarangpur. Fifteen years ago Sidhanath went to reside with his uncle. Sidhanath returned to the village Kharia and filed a civil suit in the Court of the Munsiff Sarangpur for partition of the joint family property against his brother Jeetmal. A preliminary decree for partition was passed by the Munsiff in favour of Sidhanath a month prior to the incident. It appears that on 5th october 1948 a final decree was passed for partition of the joint family property. Half share in the house in the village Kharia was handed to Sidhanath. On 8th October 1948 at about 4 A. m. when Mamlekhan, a police constable, was on duty at Sarangpur Police Station, he heard the crie3 from the river side. Mamlekhan woke up Police Constables Pannalal, Sardarsingb, Sasuddin and Bamsingh and asked them to go anil see what the matter was. They proceeded to the spot of the occurrence which was 1 furlong away from the Police Station along with the Sarangpur Road which about Bombay-Agra Road. They found Sidbanath Mali was lying under the pipal three. Police constables asked Sidhanath as to what had happened. The latter asked him to make light. After the light was made Sidhanath examined the axe, stick and Cbadra which was lying on the spot and said that these articles belong to his brother Jeetmal. He had snatched these articles from Jeetmal during the course of 'scuffle and he said further that he had bitten the thumb of his brother. Sidhanath then went home to tie his bullooka. In the mean time one Bondar, head constable was called at the house of Sidhanath and Sidhanath accompanied Pannalal and went to the house of Sub-Inspector. There the Police Constable Pannalal in the presence of Sidhanath lodged the first information report. Ext. p/a and it is taken down in writing. This was at about 5.30 A. M. i. e., an hour and half after the occurrence. Sidhanat was taken to the Sarangpur Dispensary and there he was examined by P.W. 4 Dr. Keshavrao Dighe. There were four injuries on the person of Sidhanatb according to the medical certificate Ex. p/8.
1. Cut wound 3' long, -1/2' wide and 1/2' deep. On the throat and transverse.
2. Cut wound 1/2' long 1/8' wide 1/8' deep on head, right parietal portion.
3. Cut would l' long, 1/8' wide, 1/8' deep on head, left parietal portion.
4. Abrasion mark l' long I' wide skin deep, on right clavicle portion.
All these injuries were simple.
3. The Police constable Bondar arrested, accused Jeetmal on 8th October 1948 at about 5 p. m. They took the accused to the Police Station. He was sent for medical examination, and on the person of Jeetmal there was one contused would 1/2' long skin deep, on the left thumb and in the medical certificate p/9 it is remarked that the teeth marks were present on the left thumb. On the same day i. e., on 8th October 1918 the accused Jeetmal made a confessional statement at about 2.30 P. M. before the Magistrate, Mr. Bhargava. Exhibit p/10 is the confessional statement. On 11th October 1948 the Sub.Inspector seized a piece of rope which was bound to the neck of Sidhanath and it was cut. This was seized from the house of Sidhanath.
4. It is alleged that at the time of the occurrence P.W. 7 Bheru saw a person running towards Kharia village P.W. Bheru could not identify the person but when he asked the per-son running away as to who he was, the man replied that he wag Jeetmal. P.W. 7 Bheru also identifies Jeetmal from the tone of his voice. On these facts the accused was convicted and sentenced Under Section 307, Penal Code, as indicated above.
5. The main question for consideration in this appeal is whether the assailant of Sidhanath was the accused Jeetmal. The question is about the identify of the assailant The next' question is whether on the facts proved the act of the accused Jeetmal amounted to an offence Under Section 307, Penal Code.
6. As regards the identification of the assailant of Sidhanath from the evidence on record there is not the slightest doubt in my mind that the person who struck Sidhanath was no other than the accused Jeetmal. Sidhanath identified Jeetmal from the articles left on the the spot viz. the axe, the stick and the chadra. Sidhanath had said that he had seen his brother using these articles and that is why he could identify them. Another strong circumstance pointing to the accused, as being person who struck Sidhanath, is the injury on the left thumb of the accused Jeetmal. Medical evidences is that that teeth marks were present on the left thumb. Sidbanath had stated immediately after the occurrence that in the course of scuffle he has bitten the thumb of accused Jeetmal and this injury wa3 found on the left thumb of Jeetmal.
7. In the confessional statement of accused Jeetmal Ex. p/10, there is a ring of truth about it. Jeetmal has clearly stated that he had attacked his brother Sidhanath with the axe from behind. He had also confessed that in the course of scuffle Sidhanath had bitten his thumb. On reading the statement as a whole I find that it is voluntarily made. It is a simple narration containing whole truth nothing but truth. I am also inclined to rely on the state. ment of P.W. 7 Bheru who deposes that he saw one man running towards the village Kharia just about the time of the occurrence and on questioning the man as to who he was, he replied that his name was Jeetmal. P, W, 7 Bheru at once recognised Jeetmal from the tone of his voice. Hence on consideration of all the circumstances I am clearly of opinion that there is absolutely no doubt as to the identity of the accused Jeetmal and that he struck his brother,
8. The other question is whether the act of the accused Jeetmal amounted to an offence Under Section 307, Penal Code. In this case simple injuries were caused and I am of opinion that they do not cover any offence Under Section 307. An act contemplated by Section 307, Penal Code, is an act which by itself must be ordinarily capable of. causing death in the natural and ordinary course of events, To sustain a conviction Under Section 307, Penal Code, it is necessary that there must be an act done under such circumstances as death might be caused if the act took effect. The act must be capable of causing death in the natural and ordinary course of things; and if the act complained of is not of that description, the assailant cannot be convicted of an attempt to commit murder Under Section 307, Penal Code. Here from the nature of injuries, discussed by me above, it appears to me that it was not the intention of the accused nor he had knowledge that it was likely to cause death, For the purpose of Section 307, what is material is the intention or knowledge, not the consequence of the actual act done for the purpose of carrying out the intention, For these reasons, I hold that the accused is not guilty under B. 307 Penal Code but is guilty Under Section 324.
9. I would, therefore, allow the appeal and set aside the conviction and sentence under B, 307. The accused is convicted Under Section 324, Penal Code and is sentenced to one year's rigorous imprisonment.
10. I agree.