K.S. Sidhu, J.
1. This is a petition of appeal presented by the convict, namely, Bhagwana through the Superintendent of Jail, Jaipur, from a judgment & order, dated November 13, 1976, passed by the learned Sessions Judge, Jhunjhunu, whereby the appellant was convicted and sentenced as under:
(i) five years rigorous imprisonment and a fine of Rs. 1000/- or in default further rigorous imprisonment for six months under Section 304 Part II IPC relating to the death of Malaram.
(ii) two months rigorous imprisonment under Section 323 IPG relating to the hurt caused to PW Matu Ram.
The two sentences were ordered to run concurrently.
2. The case of the prosecution resulting in the convictions and sentences as aforesaid was that on July 26, 1976, at about 2 p.m. in village of Dhani Othooni Police Station Jhunjhunu, the children of Bhagwana accused on one side and his brother PW Matu Ram on the other quarreled amongst themselves. The quarrel escalated to the extent of involvement of their women foil in it. It is alleged that accused Bhagwana's wife began to hurl abuses at Maturam's family. Malaram deceased, father of accused Bhagwana and PW Maturem, went to the house of accused Bhagwana in an attempt to intercede and pacify Bhagwana and his wife. Bhagwana, it appears, was not in a mood to listen to him. The attempt of Malaram deceased to pacify Bhagwana and his family resulted in a scuffle between him and Bhagwana. TW Matu Ram, Kishan and Keshoram intervened and took Malaram away from the house of Bhagwana. The party including Malaram deceased had gore a short distance from the house of Bhagwana accused when Bhagwana again attacked his father from behind. Bhagwana who had picked up a 'Moosal' in the meatier from his house struck the weapon on the head of his father. The weapon was struck with such a force that it broke into two parts Bhagwana also attacked his brother Maturam and caused several injuries to him. Mala Ram was immediately removed to the hospital in the town of Jhunjhunu which is at distance of 9 miles from the village. A.S.I, Govind Sahai, PW 8 on being informed, reached the hospital and found that Malaram was in extremis and therefore not able to make any statement. He, therefore, recorded the statement of PW Keshoram, an eye witness, who happened to be present in the hospital that time. This statement was recorded at 8 p.m. and sent to the police station for a formal FIR being registered on its basis.
3. After investigation the police submitted a report against Bhagwana for his trial under Section 302 and 323 IPC. Bhagwana Ram was committed to the court of Sessions in due course.
4. The learned Sessions Judge tried Bhagwana Ram on a charge of murder and causing hurt punishable under Sections 302 and 323 IPC respectively. The accused denied the charges framed against him and claimed to be tried.
5. During the trial, the prosecution examined among others, P.W. Matu Ram, Keshoram, Agraram, Kishan, Dr. H.K. Gupta & A.S.I. Govind Sahai.
6. On a consideration of the evidence produced before him, the learned Sessions Judge came to the conclusion that Bhagwana had inflicted the 'Moosal' blow on the head of his father Malaram without an intention to cause his death or causing such bodily injury as was likely to cause death. He, therefore, found him guilty under Section 304 Part II IPC in respect of death of Malaram and convicted him there under and sentenced him to five years rigorous imprisonment and a fine of Rs. 1000/- or in default further rigorous imprisonment for six months. He also found the accused guilty of causing hurt to PW Maturam, convicted him under Section 323 IPC and sentenced him to rigorous imprisonment for two months. As already stated the two sentences were ordered to run concurrently.
7. Bhagwana, as already stored, has submitted a petition of appeal through the jail authorities. Since he was unrepresented, Shri Ranvir Singh Advocate was appointed Amicus Curiae to prosecute this appeal on his behalf. It may also be mentioned here that there is no cross-appeal from the side of the State for enhancement of the sentence.
8. After hearing both sides, I am of opinion that the charge under Section 302 IPC framed against the petitioner appellant had been fully brought home to him on the strength of evidence of, among others, PWs Maturam, Keshoram, Agraram, Kishan, and Dr H.K. Gupta. It is not disputed this Malaram died as a result of the head injury inflicted to him by petitioner appellant with a 'Moosal' PWs Maturam, Keshoram Agruram & Kishan, the eye witnesses of the occurrence, have stated with one voice that the petitioner appellant attacked Malaram deceased with a 'Moosal' in their presence and that he inflicted the fatal blow on the head of the deceased with tint very weapon. It will be seen from their statements that they had earlier interceded and saved Malaram from being belaboured by the petitioner in the latter's house After rescuing Malaram from his aggression in his house, these witnesses, along with Malaram, were on their way back when he picked up a 'Moosal' from his house, followed them and struck the fatal blow on the head of Malaram deceased. In the circumstances, it cannot be seriously questioned that Bhagwana definitely intended to inflict a blow to his father which he did inflict with the heavy weapon, which he had picked up from his own house after his father and others had just left there. The conclusion is therefore inescapable that Bhagwana caused the death of his father Malaram by intentionally causing such bodily injury to him which was sufficient in the ordinary course of nature to cause death. There is clear evidence on the print that the injury was sufficient in the ordinary course of the nature to cause death. Dr. H.K. Gupta has testified that the cause of death of Malaram was hemorrhage due to the head injury & the said injury was sufficient in the ordinary course of nature to cause death.
9. The weapon of offence i.e. 'Moosal' Ex. A. 1, was recovered during the course of investigation in consequence of the information supplied by accused Bhagwana This weapon was produced in court during the trail. The learned trial Judge before whom this 'Moosal' was produced has himself described it in his judgment as a very heavy weapon. It is then a matter of common knowledge that 'Moosal' is certainly a heavy weapon and that if a blow is struck on the head with such a weapon chances of survival of the victim are minimal.
10. There is a clear distinction between culpable homicide not amounting to murder and murder as defined respectively in Section 299 and Section 300 of the Indian Penal Code. If the intention of the offender is not to cause death but merely to cause such bodily injury to the victim as is likely to cause death and he does cause such injury resulting in the death of the victim, the offence committed by him amounts to no more than culpable homicide not amounting to murder punishable under Section 304 IPC. If on the other hand, the intention of the offender is to cause such bodily injury to the victim as is sufficient in the ordinary course of nature to cause death and he does inflict such injury resulting in the death of the victim, the offence committed would be undoubtedly murder punishable under Section 302 IPC. The real problem in such a complex situation lies in the discovery of the intention of offender, namely, whether he intended merely to cause such injury as was likely to cause death or 9uch injury as was bound, in all probability, to result in death. It is thus a distinction depending upon the degree of probability. If death is merely the likely result, the offence would be culpable homicide not amounting to murder. If on the other hand, death is the most probable result, the offence is murder. In most cases, the weapon of offence used would determine whether death was likely or most probable result.
11. Having understood this aspect of the discretion between Section 299 and Section 300 IPC and applying the same to the facts of this case it would be at once clear that Bhagwana is guilty of murder punishable under Section 302 IPC rather than culpable homicide not amounting to murder as held by the trial court. It will be seen that after the 'Marpeet' between the appellant and his deceased father in the appellant's house had been stopped by the intervention of the witnesses and the deceased and the witnesses had gone cut of the appellant's house on their way to their respective houses, the appellant decided to have a rather go at his father and with that intention picked up the heavy 'Moosal' from his house and followed the deceased giving a heavy new with the 'Moosal' on his head. As regards intention, the law Jerks to the ritual result of a man's act and ret to the state of his mind. It may be that Bhagvana did not intend to cause the death of his father. The fact however ten airs that he intentionally inflicted a heavy blow on the head of the deceased with such a dangerous weapon as 'Moosal'. This leads to the conclusion and the only conclusion that he intended to cat se bodily injury to the deceased as was sufficient in the ordinary course of nature to cause death. Death in these circumstances was the most probable result of the act which he interred to commit. I must therefore hold him to be guilty of murder rather than culpable homicide not amounting to murder.
12. It is however not open to this Court to convert the conviction of the appellant from culpable homicide not amounting to murder punishable under Section 304 Part II IPC as ordered by the trial court to murder punishable under Section 302 IPC as found by this Court. This is because the State has not filed any appeal from the older of acquittal of the appellant of the charge under Section 302 IPC. The only course left open for me therefore is to leave the matter as it is.
13. For all these reasons, I do not find any merit in this appeal from conviction of the appellant under Section 304 Part II IPC arising out of the death of his father Malaram and under Section 323 IPC arising out of the hurt caused to his brother Maturam. Since, in my opinion, the appellant deserves to be convicted under Section 302 IPC, I am not prepared to entertain his counsel's request for reduction of the sentence as awarded to him by the trial court under Section 304 Part II IPC.
14. The appeal therefore fails and is dismissed.