Mehar Singh, J.
1. The two appellants, Jagir Singh and Sajjan Singh, are real brothers. They were charged under Section 302, read with Section 34 of the Penal Code for the murder of Amar Singh and also under Section 324, read with Section 34, of the Penal Code for having caused simple hurt with sharp weapon to Kaur Singh (P. W. 3) and Gian Singh (P. W. 5) on the morning of July 28, 1963, at their village Kulhi Kalan. The learned Additional Sessions Judge of Ludhiana by his judgment and order of April 10, 1964, acquitted Jagir Singh appellant of the offence of murder, but convicting Sajjan Singh appellant for the same, sentenced him to imprisonment for life. He convicted both the appellants for the second offence, sentencing Sajjan Singh appellant to a 8ne of Rs. 100/- or in default to rigorous imprisonment for four months, and Jagir Singh appellant to one year's rigorous imprisonment with a fine of Rs. 100/- or in default to four months further rigorous imprisonment. The appellants appeal against their convictions and sentences. Jagir Singh appellant was released on bail alter the appeal had been filed and that was something like three months after the date of his conviction.
2. The shop of Kaur Singh (P. W. 3) and his deceased brother Amar Singh is separated by a lane from the house of the two appellants. It has been the case of Kaur Singh (P. W. 3) that Sajjan Singh appellant had purchased provisions from their shop of the value of something over Rs. 9/- some five years earlier to the date of the occurrence. He not having made the payment, was refused credit. This created bad blood between the parties. To support this, account-book P. 2 and 3, in which entries P. 2/A and 3/A. are said to relate to the account of Sajjan Singh appellant, has been produced, but the witness has admitted that the account-book has not been regularly kept, there are no regular or systematic entries in it, some pages are blank, and it is not even paged. The witness also admits that there is no evidence that there was any earlier quarrel between the parties on this account. This is merely an invention to provide a reason for the incident on the particular morning. The second reason given in this respect is that next to the house of the appellants is a plot of land that the appellants wanted to purchase, but it has been purchased by this witness and his brother and this has created strained relations between the parties. Even with regard to this there is no evidence that before the incident of this ease the parties ever had any altercation or quarrel because of the sale of the plot. These two reasons for the incident do not explain why the appellants attacked the deceased and the injured persons.
There is, however, a third reason which appears to be really the basis of the trouble. It is in the evidence of Gian Singh (P. W. 5) that some time before the occurrence of this case daughter of Sajjan Singh appellant had been abducted. This witness was suspected of having hand in that. There followed security proceedings between these parties in consequence of which this witness was bound down to keep the peace. So the appellants had grudge against Gian Singh (P. W. 5). As will presently appear from the narration of the facts. Gian Singh (P. W. 5) and Gurdev Singh (P. W. 6) arrived at the shop of the deceased early on the particular morning. It was the presence of Gian Singh (P. W.5) at the shop of the deceased that incensed the appellants and resulted in the occurrence of this case. In fact Kaur Singh (P. W. 3) refers to this also as a reason why the appellants attacked them. The two appellants admit that Sajjan Singh appellant had Gian Singh (P. W. 5) bound down for keeping the peace and Jagir Singh appellant explains that that was in connection with the abduction of his niece. So that this was the real reason why the appellants all of a sudden on that particular morning came out and opened the attack. There is no further evidence explaining how the incident started.
3. On the evening previous to the morning of the occurrence Gurdev Singh (P. W. 6) approached Gian Singh (P. W. 5) and asked him to accompany him to another village named Farjulapur because he wanted to settle the betrothal of his daughter. Gian Singh (P. W. 5) agreed to this. They had never gone together before, but there is nothing unusual in Gian Singh (P. W. 5) having acceded to the request of Gurdev Singh (P. W. 6). On the morning of July 28, 1963, at about 6.30 a. m., Gian Singh (P. W. 5) and Gurdev Singh (P. W. 6) arrived outside the shop of the deceased and Kaur Singh (P. W. 3). They had a cycle of which the tyre had deflated. They obtained an inflator from Kaur Singh (P. W. 3) and were in the fact (Sic) of inflating the tyre of the cycle when the two appellants emerged from their house across the lane. Jagir Singh appellant was armed with a Kirpan and was ahead followed by Sajjan Singh appellant who had a Barchhi or a spear with him. There is some attempt on the part of the witnesses to say that the appellants shouted a challenge, but the evidence is not consistent on this.
Jagir Singh appellant delivered a Kirpan blow in the direction of the head of Kaur Singh (P. W. 3) but hit him only on the right ear. This brought Kaur Singh (P. W. 3) to the ground. Gian Singh (P. W. 5) then held Sajjan Singh appellant. Thereupon Jagir Singh appellant hit Gian Singh (P. W. 5) with the Kirpan on the left arm. The result was that Gian Singh (P. W. 5) released Sajjan Singh appellant. A Kirpan blow by Jagir Singh appellant was received by Gian Singh (P. W. 5) on his right arm. Kaur Singh (P. W. 3) getting up caught hold of the Kirpan of Jagir Singh appellant, who forced it out of his hand causing injuries to it. Maya Wanti (P. W. 4), wife of the deceased, was sweeping the shop. Gurdev Singh (P. W. 6) and she raised an alram. Amar Singh deceased was at the time getting ready to have a bath inside the house, part of their shop, and hearing the alarm he came out just wearing a Kachha. He caught the Kirpan of Jagir Singh appellant, but Sajjan Singh appellant gave a thrust with the spear in the right side of the deceased who dropped to the ground and died soon after. The appellants then retired to their house.
4. Kaur Singh (P. W. 3) proceeded on a cycle to the police station and reaching there at about 10-30 a. m. he lodged the first report in which all the details as set above are given in completeness. On the day after the occurrence, that is to say on July 29, 1963, appellant Sajjan Singh was arrested from his house by Sub-Inspector Baldev Singh (P. W. 11). Assistant Sub-Inspector Sukhjit Singh (P. W. 12) arrested Jagir Singh appellant on July 30, 1963. This appellant was interrogated on August 3,1963, when he is said to have made a statement under Section 27 of the Evidence Act that he was prepared to produce the Kirpan or sword from a field of his village. He then led the police party to a sugarcane field and produced Kirpan or sword P. 1. It was said to have been stained with blood and later, on analysis, human blood has been found on it. But the recovery itself is of an extremely doubtful nature. Gurbant Singh (P. W. 8) is a witness to the recovery. It is in his evidence that the place from where the Kirpan was found was only ten yards from the pathway and' Jagir Singh appellant is said to have uncovered about two or three inches of earth to locate it.
According to another witness to the recovery, Gurdev Singh (P. W. 7), the sugarcane field belonged to Nikka Singh and Dalip Singh. So that in somebody else's field, just a few yards from a pathway, this appellant buried the Kirpan but covered it only with two or three inches of earth. This seems to be improbable and the recovery of the Kirpan in spite of human blood having been found on it, cannot be accepted. Jagir Singh appellant in his statement under Section 342 of the Code of Criminal Procedure explains that the Kirpan was not recovered in the manner in which the witnesses have deposed but that it was recovered by the police from his house. He admits that it belongs to him and that human blood was on it.
5. The two appellants while denying the other reasons imputed to them for the incident have admitted the fact of abduction of the daughter of Sajjan Singh appellant and in that connection the security proceedings taken by this appellant against Gian Singh (P. W. 5). They give their own version of the occurrence. Jagir Singh appellant lives at Patiala and had corns to the village on the previous day. On the particular morning Sajjan Singh appellant was outside the house cleaning his teeth, when Gian Singh (P. W. 5) arrived there. This witness cat called and abused Sajjan Singh appellant, whereupon they came to grips and Gian Singh (P. W. 5) caught him by the neck, throttled him and then brought him to the ground. Sajjan Singh appellant raised an alarm in consequence of which Jagir Singh appellant came out with his Kirpan to rescue his brother, Sajjan Singh appellant. Kaur Singh (P. W. 3) and Amar Singh deceased also came out of their adjoining shop-cum-house and there ensued a scuffle between them and Jagir Singh appellant, in the course of which Amar Singh deceased in an attempt to take away the Kirpan from this appellant accidentally received a thrust with it.
There is no evidence in defence. But it was put to Dr. Jagjit Singh (P. W, 2), who performed the postmortem examination on the dead-body of Amar Singh deceased, whether deceased could receive the injury with the Kirpan in a scuffle in the manner described by the appellants and his answer has been in the affirmative. This, however, does not assist the defence because the witnesses have clearly denied any such scuffle and Amar Singh having received the injury during it. Apart from this there were other five injuries on the dead-body of Amar Singh deceased and out of those three were incised wounds. None of those injuries is explained by any of the appellants. One of the incised wounds was on the inner side of the right hand of Amar Singh deceased and this is consistent with the prosecution version that at one time the deceased had tried to take away the Kirpan and while handling it his hand was injured. So that in substance the medical testimony does not support the defence version.
6. The incident is admitted on both sides. The fact that Amar Singh deceased received his injury, which proved fatal, in that incident is also admitted. Kaur Singh (P. W. 3) and Maya Wanti (P. W. 4) are respectively brother and widow of Amar Singh deceased, but Gian Singh (P. W. 5) and Gurdev Singh (P. W. 6) have not the least concern with them. The appellants' stand has been that although Gian Singh (P. W. 5) was present during the occurrence but he has deposed against them due to enmity as Sajjan Singh appellant had had him bound down for keeping the peace in security proceedings. They say that Gurdev Singh (P. W. 6) is a false witness. The presence of Kaur Singh (P. W. 3) and Gian Singh
(P. W. 5) during the occurrence is admitted even by the appellants. In the cross-examination of none of these witnesses is there anything which goes to throw the least possible doubt upon the veracity of their testimony. There is no evidence that provocation came from Gian Singh (P. W. 5) who cat called and abused Sajjan Singh appellant in the first place. The probability of the circumstance is that when this witness with Gurdev Singh (P. W. 6) happened to be at the shop of Amar Singh deceased and Kaur Singh (P. W. 3), as they were inflating the tyre of their cycle, the appellants could not stand their sight there and their being helped by the brothers, Kaur Singh (P. W. 3) and Amar Singh deceased. The reason obviously was the suspicion against Gian Singh (P. W. 5) in connection with the abduction of the daughter of Sajjan Singh appellant, in connection with which admittedly Gian Singh (P. W. 5) had been bound down to keep the peace. There is no substantial instance of enmity between Kaur Singh (P. W. 3), Maya Wanti (P. W. 4) and Amar Singh deceased, on the one side, and the appellants on the other. The appellants had a grudge against Gian Singh (P. W, 5). No such thing can be said in so far as Gurdev Singh (P. W. 8) is concerned. The witnesses were examined by the police on the very day of the occurrence. There is thus no substantial reason why the version of the four eye-witnesses be not believed. The version given by the appellants is improbable and it was held back until they made statements in the Court of Session.
7. The eye-witnesses are supported by the medical testimony. Dr. Satya Pal Sharma (P. W. 1) found four simple injuries on the person of Kaur Singh (P. W. 3). All were caused with a sharp-edged weapon. He found again four simple injuries on the person of Gian Singh (P. W. 5) and of those injuries two were incised wounds caused with a sharp weapon and the remaining two were caused with a blunt weapon. This very doctor found on the person of Jagir Singh appellant three superficial injuries caused with a blunt weapon and from the nature of the injuries he was of the opinion that the same might have been self-suffered. Curiously enough the police officer who arrested this appellant did not even notice these injuries, In any case, these injuries were probably received by this appellant during the occurrence, but it has not been the case of the appellants that any of the witnesses or the deceased caused the same. Now, in the case of Kaur Singh (P. W. 3) there is one incised wound on the pinna of the right ear. The witness had at one time caught the Kirpan of Jagir Singh appellant and this resulted in two incised wounds on the palm of his left hand. Those injuries are deposed to by the doctor. Similarly Amar Singh deceased had caught the Kirpan of Jagir Singh appellant, and he received an incised wound on the inner side of his right hand. In the case of Amar Singh deceased, on post mortem, Dr. Jagjit Singh (P. W. 2) found six injuries on the dead-body. The more serious injury was the first which was an incised penetrating wound 4 1/2' X 2 1/2' penetrating into the axillary cavity in the right axilla, cutting the muscles. Of the remaining five injuries three were incised wounds on the inner side of the right hand, the right wrist, and back of right ring finger, and the remaining two were abrasions on the right side of chest and on the back of left elbow. In consequence of the first injury, the sub-clavicle artery and veins were cut. The doctor is of the opinion that this injury alone was sufficient to cause death in the ordinary course of nature. He opines that death of the deceased was due to shock and haemorrhage as a result of the cutting of the sub-clavicle blood vessels in the right axilla by a sharp pointed and sharp edged weapon. In so far as the number and nature of injuries and the location of the same are concerned not only in the case of Amar Singh deceased but also in the cases of Kaur Singh (P. W. 3) and Gian Singh (P. W. 5), the medical testimony is consistent with the version of the eye-witnesses.
8. The approach of the learned trial Judge in accepting the evidence of the eye-witnesses, as supported by the medical testimony, is thus not open to exception. The learned Judge has not applied Section 34, of the Penal Code, in so far as the murder of Amar Singh deceased is concerned, because the arrival of this deceased was sudden and so was the act of Sajjan Singh appellant. He rightly acquitted Jagir Singh appellant of the offence of murder. In the circumstances of the case, however, Section 34, of the Penal Code, is not attracted even to the case of Sajjan Singh appellant in so far as the hurt caused to Kaur Singh (P. W. 3) and Gian Singh (P. W. 5) is concerned. The reason is that while Jagir Singh appellant caused injuries to these two witnesses, Sajjan Singh appellant did not use his spear at that time. True, he came out from the house armed with a spear along with his brother Jagir Singh appellant who was armed with a Kirpan. In spite of that he did not use his weapon until Amar Singh deceased appeared on the scene and there is nothing to show that the circumstances suggested that Amar Singh deceased will appear on the scene in the manner in which he did. So that in this respect even with regard to the injuries of Kaur Singh (P. W. 3) and Gian Singh (P. W. 5), if nothing else, Sajjan Singh appellant is entitled to the benefit of doubt in so far as the applicability of Section 34 of the Penal Code is con. cerned to this aspect of the case. Sajjan Singh appellant is, therefore, acquitted of the offence under Section 324, read with Section 34 of the Penal Code. There is no manner of doubt that Jagir Singh appellant caused simple injuries with a Kirpan to both Kaur Singh (P. W. 3) and Gian Singh (P. W. 5) and for that he has been rightly convicted under Section 324 of the Penal Code, though it would have been more proper for the learned trial Judge to have convicted him in this respect for this offence on two counts instead of one. However, If he had done that, he would in all probability have ordered the sentence to run concurrently, and that may have been the reason why he has convicted him on one count for this offence for simple hurt caused to both the witnesses. The conviction of Jagir Singh appellant for the offence under Section 324 of the Penal Code is maintained. It has already been said above that this appellant, before he was released on bail, had served out something like three months rigorous imprisonment out of the sentence of imprisonment awarded to him. The occurrence was not premeditated, it was sudden, and, what is more, the immediate cause has really not emerged. It may be that it was not merely the presence of Gian Singh (P. W. 5) but a little more that gave a start to the trouble.
In view of these circumstances the sentence of imprisonment of Jagir Singh appellant is reduced to that already undergone and the sentence of fine in his case is reduced from Rs. 100 to Rs. 50 or in default further rigorous imprisonment for one month. In the case of Sajjan Singh appellant, the amount of fine, if paid, shall be refunded to him, and in the case of Jagir Singh appellant, the balance of the amount of fine remitted, that is to say Rs. 50, if paid, shall be refunded to him.
9. There remains the question as to what offence has Sajjan Singh appellant committed? The Learned Counsel for the State presses that it is the offence of murder and he says that it falls under 'thirdly' of Section 300 of the Penal Code. The consideration on the other side is that having regard to the circumstances of the case and the nature of the medical testimony, the offence, in any case, is no more than one under part I of Section 304 of the Penal Code because it does not go beyond part II of Section 299 of the Penal Code.
10. It was in consequence of the first injury that the death of Amar Singh deceased occurred and although its description has already been given, for the appreciation of the present aspect of the case it may be restated. The injury is described as an incised penetrating wound 4 1/2'x2 1/2'penetrating into the axillary cavity in the right axilla, cutting the muscles. In his examination-in-chief no doubt Dr. Jagjit Singh (P. W. 2) says that this injury alone was sufficient to cause death in the ordinary course of nature, but in cross-examination he has not made a statement consistent with this opinion. He says that none of the injuries of the deceased, which obviously includes this injury as well, was on the vital part of the body. He did not find any communication between this injury and any vital organ of the body. Then he explains that the death of the deceased was caused because of loss of blood due to the cutting of the blood vessel in the case of this injury. And he goes on to say that all over the body including legs and arms, there are big blood vessels which, if cut bleed profusely. Even if a large blood vessel on a vital part like hand, leg or arm, is cut death is likely to occur. Axilla is a fleshy part. So the injury was on a non-vital part of the body, it was in a fleshy part and it happened to cut sub-clavicle artery and veins and in this manner it led to the death of Amar Singh deceased. The doctor is again clear that the cutting of a blood vessel on a non-vital part of the body is likely to cause death. So that his opinion is not definite and consistent that the injury was necessarily sufficient to cause death in the ordinary course of nature.
The circumstances of the case establish that daring the incident Amar Singh deceased arrived unexpectedly and it was when he caught the Kirpan of Jagir Singh appellant that Sajjan Singh appellant have a spear thrust to him. It was more of a sudden not probably in defence of Jagir Singh appellant whose weapon had been caught hold of by Amar Singh deceased and Sajjan Singh appellant may well have anticipated that on the weapon being taken away Jagir Singh appellant may be attacked. It is this apprehension which led him suddenly to give the blow. In these circumstances, when the same are considered with the medical opinion, it is somewhat difficult to come to a definite conclusion of fact that this injury was sufficient in the ordinary course of nature to cause death. It is more consistent with the circumstances of the case, and the medical opinion is, that it was likely to cause death. Now, in the matter of the nature of offence also an accused is entitled to the benefit of doubt On the facts of this case, in ray opinion, the conclusion cannot be that this injury was sufficient to cause death in the ordinary course of nature and the only safe conclusion is that it was likely to cause death. In any case, in a matter of doubt between these two conclusions, the lesser and 'the one favorable to the accused has to prevail.
The Learned Counsel for the State in this respect refers to Virsa Singh v. State of Punjab AIR 1958 S C 463 and in that case their Lordships have held that to bring a case under 'thirdly' of Section 300 of the Penal Code, these facts oust be proved, first it must be eastablished, quite objectively, that a bodily injury is present secondly the nature of the injury must be proved and third, it must be proved that there was an intention to inflict that particular bodily injury that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Their Lordships point cut in regard to the first two facts that the investigation has to be objective. once those three elements have been proved, then their Lordships have further held that a fourth element must be proved that the injury of the type described as above, made up of three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Their Lordships observe that open these four elements are established the offence is murder under Section 300 'thirdly' of the Penal Code, and it does not matter that there was no intention to cause death or that there was no intention even to cause any injury of a kind that is sufficient to cause death in the ordinary course of nature really there is no distinction between the two), or even that there Is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death.
In the present case no doubt Sajjan Singh appellant intended to cause the first injury on the body of Amar Singh deceased. The doctor has found the injury to have proved fatal and he has not been consistent in his opinion that it was necessarily sufficient in the ordinary course of nature to cause death, for another part of his opinion, to which reference has already been made, shows that it was a type of injury that was likely to cause death. So, in so far as the fourth element is concerned, it I have pointed out already, in the circumstances of this case and on the medical opinion a conclusion cannot be arrived at that the first injury on the dead.body of Amar Singh deceased was sufficient to cause death in the ordinary course of nature. In any case, as I have pointed out even in this matter this appellant is entitled to the benefit of doubt, and the conclusion has to be, in the circumstances of the case, that this particular injury by Sajjan Singh appellant to Amar Singh deceased was an injury likely to cause death.
It is settled that second part of Section 299 corresponds to 'secondly' and 'thirdly' of Section 800 of the Penal Code. If the injury caused is no more than an injury likely to cause death, it remains an injury that only falls under second part of Section 299, but if, in addition, it is either proved that the offender had the knowledge that the injury was likely to cause death, then the case becomes more serious and comes under 'secondly' of Section 300, or the Injury is proved to be sufficient in the ordinary course of nature to cause death, even then the offence is more serious and falls under 'thirdly' of Section 300 of the Penal Code. It is only when any one of these additional conclusions is available that the case goes beyond second part of Section 299 and under either 'secondly' or 'thirdly' of Section 300, and then an offence of murder. If it does not come under 'secondly' or 'thirdly' of Section 300, but falls only under second part of Section 299, then the offence is culpable homicide not amounting to murder coming under part I of Section 304 of the Penal Code. In the present case, in my opinion, the injury which resulted in the death of Amar Singh deceased does not fall within the scope of 'thirdly' of Section 300, as has been explained, and it is an injury which comes under second part of Section 299 of the Penal Code only. In this view, the offence committed by Sajjan Singh appellant is one under part I of Section 304 of the Penal Code. So the conviction of this appellant for having caused the death of Amar Singh deceased is altered to one under Part I of Section 304 of the Penal Code and for that offence ha is sentenced to rigorous imprison- meat for ten years.
11. With these modifications the appeal of the appellants is dismissed.