S.S. Byas, J.
1. This appeal by accused Bhagwana is directed against the judgment of the learned Sessions judge,m Balotra dated june 16, 1981 convicting the appellant under Section 302, IPC and sentencing him to imprisonment for life with fine of Rs. 800/-, in default of the payment of fine to futher undergo six months' rigorous imprisonment further undergo imprisonment.
2. Briefly stated, the prosecution case which is short and simple, is that the deceased Manaram was the elder brotherof PW 4 Kanarm. The appellant is a resident of their village Khanda district Barmer. Kanaram and the deceased went to their field with a bullock-cart in the morning of October 20, 1980 to bring Bajra. When, they reached their filed at about 8.00 they found the appellant Bhagwana cutting the twigs of a Khejri tree standing in their field. They asked the appellant not to do so and rebuked him. This led to a wrangling between the appellant and Manaram. Manaram gave a beating to the appellant. The appellant became annoyed. He held out the threat that he would not leave Manaram alive. Thereafter he went away. At about 12 00 hours in the noon, Kanaram and the dieted left their field to go to their house taking the bullock cart with them, When they reached near the field of one Jethaji, they met the appellant and his brother Poonma (co-accused but acquitted by the trial court) Poonma had a Lathi while the appellant had an axe. The appellant struck a blow on the head of Manaram with his axe. Poonma also struck some blow, to Manaram with his Lathi. Manaram fell down Kanaram tried to intervene and he too was landed blows by Poonma. PW 6 Jaisingh, who was a few steps behind, meanwhile reached there the spit. He and Kanaram lifted Miairaro and placed him in the cart Manai am did not survive and passed away instantaneously then and there. Jaisingh remained with his dead body while Kaiaram went to inform his father Sawaram (PW 5). Sawaram arrived on the spot and found his so, Manaram dead He went to Police Station, Samdari and oresented I written report Ex P.6 of the occurrences at about 5.00 PM. The police registered a case and proceeded with investigation. The Station' House Officer Prem Singh (PW 11) reached the spot, prepared the inquest report of the dead body of Minaram and inspected the site. The autopsy of the victim's dead body was conducted at least P..00 AVI on October 20, 1480 by PW 3 Dr. Jodh Raj, the then Medical Officer Incharge, Primary Health I Centre, Samdari. He noticed the following injuries on the victim's dead body:
(1) Bruise 2-1/2x1.5 cm reddish over the right side of chest 3cm above the sub-costal margin.
(2) Bruise 2 x 1-5 cm over the left sub-costal reddish.
(3) A swelling 2 x 1.5 cm behind the right car
(4) Incised wound 5 x 0.5 cm x 2 cm depth (post end), over the vortex in the antore posterior direction.
(1) Skull - fracture of right parietal bone, some pieces separated & shifted inside the skull
(2) Meninges and Brain - Lacerated wound correspoding to the fracture of 5 x 2.5 x 0.5 cm size.
3. In the opinion of Dr. Jodhraj, Manaram died on account of grievous head injury caused by sharp weapon leading to coma and symcope due to haemorrhage. The post mortem examination report issued by him is Ex. P.4. The appellant was arrested and in consequence of the information furnished by him on October 24, 1980 whilst under police custody, an axe as recovered. Oh chemical examination made by the Serologist, human blood was detected on it. On the completion of investigation, the police presented a challan against the appellant and Poonma in the court of Munsiff and Judicial Magistrate, Stwana, who in his turn comitted the case, for trial to the court of Sessions. The learned Sessions Judge framed a charge under Section 302, IPC. against the appellant and. under Section 302/34, IPC, against Poonma. Both the accused pleaded not guilty and faced the. They denied the whole prosecution case and claimed absolute innocence In support of its case, the prosecution examined eleyn witnesses and filed some documents. In defence, the accused examined one witness. On the conclusion of trial, the learned Sessions Judge found no incriminating material against accused Poonma. He was consequently acquitted. The charge waist appellant Bhagwana was held duly proved. He was therefore, convicted and sentenced as mentioned at the very out set. Aggrieved against his conviction, accused Bhagwana has come-up in appeal.
4. We have heard Mr. S.R. Singhi, learned Counsel appealing for the appellant and Mr. Niyazuddin Khan, the learned Public Prosecute of We have also gone through the case file carefully.
5. Mr. Singhi did not challenge the finding of the Court below that Manaram was done to death by the appellant. He also did not challenge I the finding that it was accused Bhagwana who had landed a blow of his axe on the head of deceased Manaram His only submission is in respect of the nature of offence made out. According to him, no off nce under Section 302, IPC is made out against the appellant. It was argued that there was no bad bleed between the deceased and the appellant. The appellant was below 20 years of age at the time of the commission of the offence, There was no premeditation on his part. The entire incident look place on a trivial happening No repetition of blows was there. 1 The appellant inflicted only one injury. The accused had, thus, no intention to cause the death of the deceased. It was argued that utmost the offence falls within the second part of Section 304, I.P.C.
6. It was, on the other hand, vehemently contended by the learned Public Prosecutor that the appellant landed the blow with an axe on the head of Manaram. This injury proved fatal. As such the offence is covered f by Clause 3rdly of Section 300, I.P.C. We have taken the respective sub-missions into consideration.
7. There is no dispute that the incident took place on a trivial matter. The appellant was cutting the twigs of the Khejri tree standing at tie field of the deceased. The deceased asked the appellant not to do so and gave him some beating. This annoyed the accused. The accused was a young man nearly 20 years in age at the time of the incident. He could not swallow the beating given to him by the deceased. He struck only one blow with his axe to the deceased and that, unfortunately, proved h fatal. There was no repetition of blows on the part of the appellant. These circumstances strongly suggest that there was no intention on the part of the appellant to kill the deceased. The testimony of Dr. Jodhraj PW 3) is also not very much helpful to the prosecution. Though he stated that the death of the victim took place due to head injury, he did not state that this J injury Was sufficient is the ordinary course of nature to cause the death. The prosecution did not elicit his opinion on this material point. The head injury of the deceased caused his death is one thing and whether this injury was sufficient in the ordinary course of nature to cause death is altogether another thing. If a particular injury has caused death, it does not necessarily follow that such an injury was sufficient in the ordinary course of nature to cause the death. Simply because the death was the result of a p particular injury, it cannot be inferred that the particular injury was sufficient in the ordinary course of nature to cause the death. We are, therefore unable to accept the contention of the learned Public Prosecutor that the case is covered by Clause 3rdly of Section 300, IPC. Since the death has been caused s the matter must still come atkast with the meaning of Culpable Homicide not, amounting to murder. The appellant did an act at least with the knowledge that by his act he was likely to cause the death of the victim He can be at least imputed with knowledge that the injury he was going to inflict was, likely to cause the death. The matter, therefore, falls within III part of Section 299, and the offence made out is punishable under the Second Part of Section 304, IPC as culpable homicide not amounting to murder.
8. In the result, we partly accept the appeal of accused Bhagwina. His conviction and sentence under Section 302, IPC are set aside and instead he is convicted under the Second Part of Section 304 IPC and is sentenced to five years' rigorous imprisonment and a fine of Rs. 500/- (Rs. five hundred). In 'default of the payment of fine, to further undergo three months' rigorous imprisonment. The appeal shall stand accordingly disposed of.