P.D. Kudal, J.
1. This appeal is directed against the judgment of the learned Sessions Judge, Bundi dated 31-4-1980, whereby the accused-appellant was convicted under Section 302, IPC and sentenced to imprisonment for life and a fine of Rs. 250/-and in default of payment of fine to undergo further rigorous imprisonment for one month.
2. The learned Counsel for the accused-appellant has argued only one point. His contention is that looking to the facts and circumstances of the case the offence falls within the purview of Section 304, IPC and not under Section 302, IPC. His contention is that the incident took place at the spur of moment and, that there was no pre-meditation for committing this offence. It has been further contended on behalf of the accused-appellant that he is an old man of 72 years of age and that a lenient view may be taken. It was also contended on behalf of the accused-appellant that the injured did not get medical aid properly and that if the blood could be supplied to him at the proper time he might have been saved. It was also contended that the deceased died after 15 days of the incident. Attention of the Court was invited to the statement of Dr S.N. Bagaru PW/9 who has stated that infection had started in the wound in the skull. He has further stated that no medicine was applied in the first two days after the incident. He also stated that if the injury was not attended for a day or two it could have been fatal. He has also contended that some patients do survive after loss of some brain matter. Another Medical Officer, Dr. K.L. Chhangani, PW/15, has stated that the wound had become septic and the death might have occurred due to septicimia. He has also stated that as the wound remained unattended for two bays it became septic resulting in spreed of septicimia.
3. We have considered the submissions of the learned Counsel for the accused-appellant and the learned Public Prosecutor.
4. From the evidence on record it is apparent that there was no pre-meditation to commit this offence on the part of the accused-appellant. There is also no previous enmity between the accused and the deceased. The incident took place at the spur of the moment. The accused-appellant gave only one stroke with an axe on the left parietal bone of the deceased. The offence committed by the accused-appellant would be covered by exception IV to Section 300, IPC. Exception IV provides that culpable homicide is not murder if it is committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel without the offender's having taken undue advantage or acted in a cruel manner and the fight might have been with the person killed. In the facts and circumstances of the present case, we have no hesitation in holding that the act done by the accused-appellant was with the knowledge that it is likely to cause death but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
5. For the reasons stated above, we are of the opinion that the offence committed by the accused-appellant squarely falls within Section 304, II. IPC.
6. The result is that the appeal filed by the accused appellant is partly allowed. His conviction and sentence under Section 302, IPC is hereby set aside; and he is convicted under Section 304, IPC. Taking an overall view of the entire facts and circumstances of the case, the ends of justice would be met if the accused-appellant is sentenced to five years' rigorous imprisonment and a fine of Rs. 250/-and in default of payment of fine to undergo one month's rigorous imprisonment.