Shyam Sunder Byas, J.
1. The appeal is directed against the judgment of the learned Additional Sessions- Judge, Nagaur dated December 17, 1980, by which the appellant Gulam Hussain was convicted under Section 302, IPC and sentenced to imprisonment for life with a fine of Rs. 300/-, in default of the payment of fine to further undergo three months rigorous imprisonment.
2. Briefly put, the prosecution case is that at about 830 p.m. on August 17, 1979, PW 1 Safi Mohammed, PW 4 Abdul Rehman, PW 7 Mohammed Yakoob, PW 10 Noor Mohammed and the deceased Abdul Sakoor were sitting on the Chabutari of one Ismail Lohar situate near Loharpura Chowk, Nagaur and were talking about the crops. PW 2 Usman was also standing nearby and PW 3 Mohammed Ali was standing out side his hotel situate nearby. While they were talking, Naina (co-accused convicted under Section 323, IPC) came there and asked Safi Mohammed (PW 1) as to why he had poured down the milk carried by his son Yusuf (co-accused, but acquitted) in a drum. PW 1 Safi Mohammed expressed his ignorance. At that very time, Naina's sons Gulam Hussain (appellant) and Yusuf came there. Accused Naina had a stick with him. He started striking blows to Mohammed Usman(PW 2) and Mohammed Yakoob (PW 10) with the stick. The deceased Abdul Sakoor, who was standing nearby, tried to intervene. Thereupon accused Gulam Hussain struck a blow on the right thigh of Abdul Sakoor (mentioned also as Sakoor) with a knife. Accused Gulam Hussain thereafter plunged the knife in the chest of Abdul Sakoor. Abdul Sakoor fell down. The three miscreants Naina, Yusuf & Gulam Hussain ran away from the spot.Abdul Sakoor was immediately taken to the hospital. He, however, did not survive and passed away at about 9.30 p.m. on the same day. PW 7 Mohammed Yakoob went to police station, Kotwali, Nagaur and presented written report Ex. P. 6 of the occurrence at about 2.40 p.m. on the same day. The police registered a case and proceeded with investigation. The Investigating Officer Mod Singh (PW 15) immediately reached the hospital and posted some constables there near the dead body of the deceased Abdul Sakoor. He also posted some constables at the place of occurrence. Since it was night, the site could not be inspected at that time. The Station House Officer inspected the site in the next morning and prepared site plan. He also prepared the inquest report of the victim's dead body. The post mortem examination of the victim's dead body was conducted at about 8.40 a.m. on August 18. 1979 by the Medical Jurist Dr. Bheem Singh (PW 9). He noticed the following ante-mortem injuries on the victim's dead body:
(1) Penetrating wound 2.5 cm. x 1 cm. x 1.5 cm. on lower part of left border of steraum undermined margius;
(2) Penetrating wound 2.5 cm. x 1.6 cm. x 10 cm. on the posterior aspect of right thigh in the middle undermined margins.
(1) There was a cutting-penetrating wound in the left 5th intercostal space 5 cm. x 1 cm. in size, starting from left border of steraum, going outside cutting all the structures of chest wall. There was no injury to ribs or cartileges.
3. In the opinion of Dr. Bheem Singh, the death of the victim had resulted from internal haemorrhege caused by penetrating wound on heart which was the result of penetrating (stab) wound of chest wall. The postmortem examination report prepared by him is Ex. P. 10. The injuries of PW 2 Mohammed Usman and PW 7 Mohammed Yakoob were also examined by Dr. Bheem Singh. Three simple injuries were found on the person of Mohammed Usman and two injuries were found on the person of Mohammed Yakoob. These injuries were opined to have been caused by some blunt object like Lathi. The injury reports are Ex. P. 11 and Ex. P. 12. In consequence of the disclosure statement made by the appellant on the same day, Jambhiya (knife) Article 1 was recovered. The blood stained clothes of the deceased-victim Abdul Sakoor and the blood stained shirt of accused Gulam Hussain were also seized and sealed. On the completion of investigation, the police submitted a challan against Naina, Yusuf and Gulam Hussain in the Court of the Chief Judicial Magistrate, Nagaur, who, in his turn, committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge framed charges under Sections 302 and 326, IPC against accused Gulam Hussain, under Sections 302/34 and 324/34, IPC against accused Yusuf and under Sections 302/34, 324/24 and 323 IPC against accused Naina. The accused pleaded not guilty and claimed to be tried. The case came for trial before the learned Additional Sessions Judge, Nagaur. In support of its case, the prosecution examined 15 witnesses and filed some documents. In defence, two witnesses were examined. On the conclusion of trial, the learned Additional Sessions Judge found no incriminating evidence against accused Yusuf for any offence. He was consequently acquitted of the offence he was charged with. The learned Additional Sessions Judge also found no case is made out against accused Naina under Sections 302/34 and 324/34, IPC. The charge under Section 223, IPC was, however, held proved against him. Accused Gulam Hussain was found guilty under Section 302 IPC. Consequently, accused Gulam Hussain was convicted and sentenced as mentioned above. Accused Naina was convicted under Section 323, IPC, but was let-off on probation of good conduct. Aggrieved against his conviction and sentence, accused Gulam Hussain has come up in appeal.
4. We have heard M/s J.R. Chaudhary and Doongar Singh learned counsel appearing for the appellant and Mr. G.M. Chandari, the learned Public Prosecutor for the State. We have also gone through the case file carefully.
5. Before proceeding further, it may be mentioned that the prosecution has examined seven eye witnesses of the occurrence, viz., PW 1 Safi Mohammed, PW 2 Mohammed Usman, PW 3 Mohammed Ali, PW 4 Abdul Rehman, PW 5 Shaukat, PW 7 Mohammed Yakoob and PW, 10 Noor Mohammed. Each of them has seen the occurrence from its commencement to the end. The learned counsel appearing for the appellant have not challenged what those witnesses had testified against the appellant. The learned counsel have also not challenged the cause of death of deceased-victim Abdul Sakoor, stated by PW 9 Dr. Bheemsingh. We, therefore, need not discuss the evidence of these witnesses. Suffice it to say that the death of Abdul Sakoor was homicidal and that it was caused by the appellant Gulam Hussain.
6. Learned counsel for the appellant confined their contention only to the nature of offence made out in the case. It was strenuously contended by them that there was no bad blood between the deceased and the appellant Gulam Hussain. There was no premeditation. It is not a case where the death was caused in pursuance to some preconceived design or plan. All that took place was at the spur of moment and by a thoughtless mind. No motive has been alleged against the appellant for causing the death of Abdul Sakoor. The guilty intention required to make out a case of murder is, thus, completely missing. It was further argued that no doubt, according to Dr. Bheem Singh, injury No. 8, which was on the chest of the victim was opined to be sufficient in the ordinary course of nature to cause the death. But again, the intention to cause this particular injury is missing. It was submitted that in view of these facts and circumstances of the case, the offence made out is not covered by any of the four Clauses of Section 300 IPC. The only offence which can be said to have been made out is that under Section 304, Part II, IPC. Reliance in support of the contention was placed on Gurmail Singh and Ors. v. State of Punjab 1982 SCC(Cr.) 680.
7. It was, on the other hand, contended by the learned Public Prosecutor that the appellant had come with a knife and struck blows with it to the deceased-victim. The intention of the accused must be gathered by the act he had done. The knife is a dangerous weapon. The blow was caused on the chest of the victim. The injury on the chest was sufficient in the ordinary course of nature to cause death. The accused was thus rightly convicted for the offence under Section 302 IPC. We have taken the respective submissions into consideration,
8. The clinching question before us is 'whether the ofence under Section 302, IPC is made out against the appellant in view of the facts and* circumstances of the case? According to all the seven eye witnesses, the appellant struck blows to the deceased-victim when the latter (deceased-victim) tried to intervence. The assault was not first of all opened on the deceased-victim. There was no bad-blood between the appellant and the deceased-victim. The quarrel had started only on a trivial matter that the milk carried by accused Yusuf was poured down from the drum by PW 1 Safi Mohammed. PW 1 Safi Mohammed had nothing to do with the deceased-victim. If the quarrel had taken place, it was between Safi Mohammed and accused Naina (who has not been found guilty under Section 302/34, IPC by the trial Court. In these circumstances, the intention on the part of the appellant to commit murder of Abdul Sakoor is completely missing. No motive has been furnished by the prosecution which prompted the. accused to cause the death of the deceased-victim. Since intention is missing, Clauses 1 and II of Section 300 IPC have no applicability. Both these clauses deal with the 'intention' of causing death, Clause 2ndly of Section 300, IPC can not be brought into play because the intention of causing such bodily injury as the offender knows to be likely to cause death is missing.
9. We have carefully examined the confention of the learned Public Prosecution that the case is covered by Clause 3rdly of Section 300 IPC because the chest injury of the victim, according to the doctor, was sufficient in the ordinary course of nature to cause death. We are unable to subscribe the view placed before us by the learned Public Prosecutor. To attract Clause 3rdly, intention to cause the particular bodily injury must be there. In the instant case, what took place was at the spur of moment. Since there was no bad-blood between the deceased and the appellant, we are unable to hold that the appellant did the act with the intention of causing that particular injury. In Gurmail Singh's case (supra), the accused had wielded a weapon like Barchi. The injury was landed on the chest and Barchhi was penetrated deep into the chest cavity. There was no animonity between the deceased and the accused. The deceased Tej Singh in that case had attempted to intervene to save some persons. There was nothing to indicate in the evidence that accused Gurmail Singh ever intended to cause any injury to; Tej Singh. Their Lordships, in view of those facts, and circumstances, observed that the act committed by the accused in causing the death amounted to an offence under Section 304, Part II, and not under Section 302, IPC. Here in the instant case, in view of the facts and circumstances of the case narrated above by us, it cannot be positively held that the appellant intended to commit the murder of Abdul Sakoor. We, therefore, hold that the accused was wrongly convicted under Section 302, IPC. He should have been convicted under Section 304, Part II, IPC.
10. In the result, the appeal of accused Gulam Hussain is partly allowed. His conviction and sentence under Section 302, IPC are, set aside and instead he is convicted under Section 304, Part II, IPC and in sentenced to rigorous imprisonment for eight years and a fine of Rs. 300/- & in default of the payment of fine to further undergo three months like imprisonment.
11. The appeal shall accordingly stand disposed of.