V.P. Tyagi, J.
1. Appellant Gulab Singh along with five other persons was tried by the Additional Sessions Judge No. 2, Jodhpur, for the murder of Lai Singh, but the learned Judge acquitted all other accused persons except Gulab Singh who has been convicted under Section 302, Indian Penal Code and sentenced to imprisonment for life. It is against this judgment of the learned Additional Sessions Judge dated 5th March, 1973, that the present appeal has been preferred by the appellant.
2. The prosecution story, as revealed by the eye-witnesses Omprakash <(P.W. 1) and Sukh Sinah CP.W. 7) is as follows:
Lalsingh was one of the co-sharers of the well known as Narayan Sagar, but he had constructed his own reservoir for the purpose of watering his field. It is alleged that Lalsingh had constructed a Nali to water his field in the lands belonging to another oo-sharer, namely, Gobarji and Jethuji. This act of Lalsingh was resented by the aggrieved co-sharers and a case under Section 145 of the Criminal Procedure Code was initiated by them against Lalsingh. On the day of occurrence, that is, on 15th of October, 197:2, Lalsingh had planned to increase the capacity of his reservoir by making certain constructions on the existing reservoir and for that punpose he had collected material near the well. Lalsingh and his elder son Sukhsingh (P.W. 7) were working at the reservoir at about l-OO p.m. and it is at that time that six persons, including Gulab Singh, came to the field and asked Lalsingh to stop the construction. Lalsingh tried to persuade them to accept his plea that the Nali was constructed in his own land as will be evident from the map that he had obtained from the Revenue Department. Lalsingh sent for the map from his Dhani which was situated at a distance of 150 paces from the well. Sukhsingh went to the Dhani to bring that map. When he was bringing the map from his Dhani, his brother Omprakash (P.W, 1) also accompanied him to the well. At that time, it is stated that all the six persons were standing in a circle round Lalsingh, When Lalsingh started showing the map to the aggrieved co-sharer, Gulab Singh, who was armed with a lathi and who was standing behind Lalsingh, gave a lathi blow on his head, with the result that Lalsingh fell down and thereafter other members of the party belaboured Lalsingh with lathis, fists and kicks. Blood started coming out from the nose, ear and mouth of Lalsingh. Sukhsingh (P.W. 7) who was standing near Lalsingh immediately escaped from that place and after taking his bicycle from the Dhani rushed to the Police Station, Mahamandir to lodge the report of the incident. Prem-singh also got frightened and he also took shelter in a nearby place. Report (Ex. P-5) was lodged at the Police Station by Sukhsingh at 2-00 p.m. Raghavdas, Head Constable (P.W. 14), who was incharge of the Police Station, registered a case and immediately proceeded to the spot of occurrence, but there he discovered that injured Lalsingh had already been removed to Mahatma Gandhi Hospital, Jodhpur, where he was admitted by Dr, N. K. Mittal as an injured patient at 3-30 p.m. At 4-00 p.m. Lalsingh breathed his last. Raghavdas then went to the hospital but he found that by that time Lalsingh had expired. Raghavdas prepared the inquest report (Ex. P-3) and in that report he noted down the injuries which he had discovered on the body of Lalsingh with the help of the sweeper Mobanlal (P.W. 6). Dr. J. N. Vaishnava i(P.W. 13) performed the autopsy and he noted down the following injuries on the body of Lakingh j
1. Haematoma 15 cm x 12 cm on the back of right side of neck and right mas-toid region.
2. Abrasion on right knee 2 cm x 1/2 cm.
3. Bleeding from mouth and right ear was present.
3. On opening the skull he discovered a sub-dural haematoma on the right parietal and temporal regions with fracture of petrous part of right temporal bone. This injury was noted as a grievous one and in the opinion of the doctor ii was the direct result of external injury No, 1, In his opinion, death occurred due to coma as a result of the head injury which was ante-mortem and was sufficient to cause death in the ordinary course of nature. The doctor also stated that there was no possibility of the survival of the deceased after receiving the interi nal injury.
4. All the six persons belonging to the assailant party were challaned for offences under Section 302 read with Section 149 and Section 148, Indian Penal Code, but the learned Additional Sessions Judge, after they were sent for trial, altered the charge of Gulab Singh and a charge under Section 302 and Section 148 was framed against him.
5. The prosecution produced as many as 14 witnesses. The accused persons denied the charge but did not produce any evidence in support of their defence. The learned Judge, however, did not place reliance on the prosecution story as disclosed by the eye-witnesses about giving lathi and fist blows to the deceased by persons other than Gulab Singh, but believed the prosecution version as disclosed by Sukhsingh (P.W. 7) and Omprakash (P.W. 1) that the author of the head injury sustained by deceased Lalsingh was none but Gulab Singh and, therefore, he found him guilty of an of- fence under Section 302 of the Indian Penal Code.
6. Learned counsel appearing on behalf of Gulab Singh has urged that the evidence which has been rejected by the trial court in respect of other accused persons, who have been acquitted' by him, should not have been accepted against Gulab Singh also and. therefore, the conviction recorded by the trial court is ex facie erroneous, He also contended that even if the evidence of Sukhsingh (P.W. 7) and Omprakash (P.W, 1), which has been relied upon by the trial court Is accepted- by this Court, the offence does not go beyond Section 304 Part II, Indian Penal Code and since accused Gulab Singh is a student of 9th class aged only 18 years, he should be given the benefit of the provisions of the Probation of Offenders Act and instead of sending him to jail he should be released on probation.
7. Learned counsel appearing on behalf of the State as well as the complainant, on the other hand, urged that the doctor in this case has played a trick and did not note down all the injuries on the person of Lalsingh which ultimately persuaded the court to discard the evidence of the eye-witnesses against other accused persons, but if this Court comes to the conclusion that the doctor's testimony is not straightforward one, then this Court should not reject the testimony of eye-witnesses Omprakash (P.W. 1) and Sukhsingh (P.W. 7) and should uphold the conviction of Gulab Singh for his reckless act which resulted in the death of an innocent man.
8. The prosecution examined three persons as eye-witnesses, namely, Omprakash (P.W. 1), Mansingh (P.W. 4) and Sukhsingh (P.W. 7). All these three witnesses are the sons of deceased Lalsingh, The statement of Mansingh has not been believed by the court below because of the discrepancy found in his police statement under Section 161 of the Criminal Procedure Code and the statement recorded by the trial court. In his police statement, the witness had deposed that after hearing the cry of his father he came out of his house and at that time he found that the assailants had left the place of occurrence. In view of this categorical statement soon after the incident when he was examined under Section 161, Criminal Procedure Code, the trial court has rightly rejected his testimony as eyewitness to the occurrence.
9. The statements of Omprakash (P.W. 1) and that of Sukhsingh (P.W. 7) have been believed by the trial court to prove that a lathi blow was given on the head of deceased 'Lalsingh by Gulab Singh. It is true that both these witnesses have stated that after Lalsingh fell down he was given beating by the assailants with lathis, fists and kicks but the doctor when he examined the dead body for post-mortem examination did not note down any such injuries which could have been received by the deceased or by other members of the party. Raghavdas (P.W. 14) when prepared the inquest memo. (Ex. P-3) with the help of Mohanlal (P.W. 6), the sweeper of the hospital, did note down bruises on the shoulders, ribs and hips of the deceased but Dr. Vaish-nava fP.W. 13) did not notice these injuries when he performed the post-mortem examination. The statement of Dr. Vaish-nava does not support the depositions of Omprakash (P.W. 1) and Sukhsingh (P.W. 7) and also the statements of Raghavdas ,(F.W. 14) and Mohanlal (P.W. 6) that they had noticed bruises on different parts of the body of the deceased, but we need not go into this controversy here as the State has not filed any appeal against the order of acquittal of other accused persons who were tried along with Gulab Singh. Suffice it to mention that simply because the testimony of the two eyewitnesses Omprakash (P.W. 1) and Sukhsingh (P.W, 7) does not find corroboration from the medical evidence in respect of other injuries which are alleged to have been caused by other persons on the body of the deceased, we cannot outright reject the evidence of the two eye-witnesses whose testimony could not be shaken by a long cross-examination about the injury sustained by the deceased on his head. Both these witnesses are consistent throughout that the head injury was inflicted by Gulab Singh by inflicting a lathi blow on the mastoid region. The testimony of Sukhsingh finds corroboration from the first information report (Ex, P-5) which was lodged by him without any loss of time, Gulab Singh has pleaded innocence but his plea cannot be accepted in view of a categorical deposition made by the eye-witnesses Omprakash (P.W. 1) and Sukhsingh (P.W. 7) about the participation of Gulab Singh in the act of beating the deceased.
10. This argument that because the testimony of these two witnesses has not been accepted by the court below in respect of other accused persons, therefore, it should not be believed against Gulab Singh also, is not acceptable by us because we feel that these two eye-witnesses have not in any manner exaggerated their statements in respect of the part played by Gulab Singh. In this connection, we may refer to Bhagwan Tana Patil v. State of Maharashtra : 1974CriLJ145 where the learned Judges have held:
The mere fact that the evidence of the prosecution witnesses is not firm and safe enough to be relied upon with regard to the part assigned to the acquitted accused in the occurrence, is no ground to reject it mechanically against the other accused also. The maxim 'falsus in uno falsus in omnibus' is not to be blindly invoked in appraising evidence adduced in our courts where witnesses seldom tell the whole truth, but often resort to exaggerations, embellishments and lpadd-ing-up' to support a story however true in the main. It is the function of the court to disengage the truth from falsehood and to accept what it finds to be true, and reject the rest. It is only where truth and falsehood are inextricably mixed up, polluting beyond refinement, the entire fabric of the narration given by a witness that the Court might be justified in rejecting his evidence in toto.
11. Without expressing our opinion regarding the weight of the evidence of the two eye-witnesses Omprakash (P.W. 1) and Sukhsingh (P.W. 7) about the part played by other accused persons, we can say, after having gone through their statements carefully that they have not resorted to exaggerations, embellishments and 'padding-up'. Whatever they have deposed before the Court about the part played by Gulab Singh is a true and a straightforward account of the incident and, therefore, we are not left in doubt that Gulab Singh was the author of the head injury sustained by deceased Lalsingh.
12. The next question that has been strenuously urged by Mr. Bhimraj is that the act of Gulab Singh cannot fall within the ambit of Section 300 (Thirdly) of the Indian Penal Code as held by the court below. According to learned counsel for the appellant, the case of his client falls under Section 325 or utmost it can be covered by the provisions of Section 304 Part II, Indian Penal Code. In this connection, Mr. Bhimraj has referred to the statement of Dr. J. N. Vaishnava (P.W. 13) where he has stated: 'Mere fracture of temporal bone may not be fatal but a fracture of temporal bone coupled with haematoma of this extent as in this case is usually fatal. I cannot say that this was necessarily fatal.'
13. The contention of Mr. Bhimraj is that an injury which may be usually fatal ought not necessarily be fatal, and it cannot be pressed into service to attract the provisions of Section 300, Indian Penal Code and, therefore, the conviction under Section 302, Indian Penal Code cannot in any manner be sustained by this Court.
14. Mr. Manila, appearing on behalf of the complainant, on the cthor hand, argued that the doctor after the post-mortem examination recorded his opinion in the post-mortem report that in his opinion the death occurred due to coma which was sufficient to cause death in the ordinary course of nature. If, according to learned counsel, the accused had intentionally inflicted an injury which was sufficient in the ordinary course of nature to cause death, then the intention of the accused brings his case within clause thirdly of Section 300 of the Indian Penal Code.
15. There is no doubt that the accused died of the injury sustained by him at the hands of Gulab Singh and that the death had occurred within three hours of the incident. The doctor has expressed his opinion that the injury was sufficient in the ordinary course of nature to causa death. Whether this opinion of the doctor can bring the case of the accused within the purview of Section 302, Indian Penal Code is a question that has been very strenuously urged before us.
16. While dealing with the distinctions in clauses second and third of Section 300 of the Indian Penal Code, the learned Judges of the Supreme Court in Rajwant Singh v. State of Kerala AIR 1966 SC 1-874 : (1966 Cri LJ 1509) observed as follows:
The second clause deals with acts done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm is caused. The mental attitude here is two-fold. There is first the intention to cause bodily harm and next there is the subjective knowledge that death will be the likely consequence of the intended injury. English Common Law made no clear distinction between intention and recklessness but in our law the foresight of the death must be present. The mental attitude is thus made of two elements- (a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death....
The third clause discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In this clause the result of the intentionally caused injury must be viewed objectively. If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequences or not. As was laid down in Virsa Singh v. State of Punjab : AIR1998SC465 for the application of this clause it must be first established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional.
17. It is not the case of the prosecution that clause secondly of Section 300 of the Indian Penal Code is attracted to the circumstances of this case. According to the prosecution, the act of Gulab Singh squarely falls within the four corners of clause thirdly as the accused intentionally inflicted the injury on the vital part of the body and with a force which ultimately resulted in the death of the deceased and therefore it cannot be said that Gulab Singh intended to inflict any other injury except the one which caused the death of Lalsingh, It was also argued that the circumstances of this case speak for themselves that the appellant intentionally caused this very injury which was neither accidental nor unintentional.
18. In view of the argument advanced by learned counsel for the State, we have to see if Gulab Singh intentionally caused an injury which he knew that it was sufficient in the ordinary course of circumstances to cause the death of Lalsingh. The. intention of an accused in such cases can be gathered from the surrounding circumstances which led the accused to act in a particular manner. This question has been very elaborately discussed by the learned judges of the Allahabad High Court in Faqira v. State : AIR1955All321 and they have summarised their inference thus:
The doctrine that man intends the natural consequences of his act cannot be carried too far, for otherwise, it would eliminate from the law the distinction between intentional and negligent or accidental wrong doing. The true rule is that where the injury caused is not the result of accident or of negligence, a strong presumption arises that the injury caused was intended to be caused, though this presumption may be rebutted by other circumstances, e.g., the motive of the accused, the nature of the instrument of attack, the time and place of attack, the position and condition of the deceased, the number of injuries, the force used, etc.
19. In order to bring the case within the ambit of Section 300, clause thirdly, it is necessary to establish that the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. The words used in Section 304, which deals with the punishment for culpable homicide not amounting to murder are that the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death.
20. Section 304, Indian Penal Code, therefore, applies to such cases where the injury caused is not of a higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death'. It is, therefore;, necessary to bring an act within the four corners of clause thirdly of Section 300, Indian Penal Code that it must be established that the injury actually inflicted in the ordinary course of nature would cause death and that the offender should intend to cause injury of this nature. If the injury is caused through sheer negligence or accidentally which in the ordinary course of nature could cause death, then that ingredient that the offender intended to cause such an injury which in the ordinary course of nature could cause death would be found missing. This ingredient should definitely be established by the prosecution that the intention of the accused was to cause such bodily injury which was sufficient in the ordinary course of nature to cause death. If that intention is lacking, then the case would fall within the ambit of Section 304, Part I, Indian Penal Code where the injury is likely to cause death,'
21. Intention always connotes a conscious state of mind of a wrong-doer. When the mental faculties of a culprit are roused into activity and summoned into action for the deliberate purpose of being directed towards a particular and specified end, then he is said to have acted intentionally. It is from this viewpoint that we have to see whether in the circumstances of the instant case it can be said with certainty that the accused while landing lathi blow on the head of the deceased really intended to cause such bodily injury which could cause death in the ordinary course of nature. It is established that the accused inflicted only one injury with a lathi in his hand. The lathi which was recovered at the instance of the accused has, however, not been proved to be that of the accused which was used by him to cause an injury on the head of the deceased. Therefore, it is difficult to say as to what type of lathi was used by the accused to inflict the injury on the head of the deceased. It is not the case of the prosecution that the accused was directly involved in the controversy about the construction of a Nali in the field of Jethuji, one of the co-sharers of the well Narayan Sagar. The accused was the friend of Roopram son of Jethuji and, therefore, the interest of the accused was limited only to this extent that he could help Roopram in getting this controversy resolved. There was, therefore, no direct enmity between the deceased and the accused. In such circumstances, it is difficult for us to infer that the accused intended to cause such a bodily injury on the person of the deceased which could in the ordinary course of nature cause death. We can at best say that the injury which the accused inflicted on the vital part of the body of the deceased was likely to cause death and this much of intention can be imputed to the accused. This discussion, in our opinion, brings the case of the accused within the mischief of Section 304, Part I of the Indian Penal Code.
22. We, therefore, partly allow the appeal of the accused appellant, set aside his conviction and sentence of life imprisonment under Section 302 and instead convict him for an offence under Section 304, Part I, Indian Penal Code and award him a sentence of five years' rigorous imprisonment. This lenient view has been taken by us in the matter of awarding sentence to the appellant because of the consideration of his age.