Kanta Bhatnagar, J.
1. This appeal is directed against the judgment passed by the Sessions Judge, Dungarpur dated 16-7-1980 By that judgment appellant, Kamji was convicted Under Section 302 IPC and sentenced to imprisonment for life and a fine of Rs. 200/- in default of payment of fine to undergo one month's rigorous imprisonment.
2. On 10-11-1978 one Laxman of village Kochari lodged a report at police station Galiyakot to the effect that Punja Katara of village Badgama was married to his cousin Smt. Bhuri 15 years back and since then was residing at village Kochan. That, on the previous day i.e. on 11-9-1978, Smt. Bhuri informed Laxman informant about his brother-in-law Punja being given a beating by Kamji and having become unconscious. On this Laxman, Hoorji and Joyati went to Sarpanch Beharilal. He told them that on the previous day Kamji had belaboured Punja and on receiving the information he (Sarpanch), Dhanji and Rama had gone there at the site and found Punja lying injured bleeding from his head injury and on enquiry Punja informed about his being given a beating by Kamji. That, these persons thereafter lifted Punja from there and placed him on the cot at the house of Kamji. In the information Rama has been stated to be the eye-witness of the occurrence and it has been mentioned that at the time of lodging the information Punja was not fit to speak. After registering a case, SHO Daulat Singh PW 13 went to the site and proceeded with necessary investigation. Punja was sent to Galiyakot hospital, where Doctor Mohd. Samrujjoha (PW 12) examined his injuries and found three lacerated wounds, one bruise and ecehymosis of the whole upper eye-lid left side. According to the Doctor injuries No. 1 to 3 were grievous in nature and caused by blunt object. Injury Nos. 4 and 5 were simple, caused with blunt weapon. Ex. P. 17 is the injury report. Duration of the injury was with in 36 hours of the examination. When Punja was examined by the Doctor, he was unconscious and his condition was grave and police was intimated of that fact. In the afternoon of 11-11-78, Punja breathed his last. His post-mortem examination was conducted on 12-11-1978 by the same Doctor. The postmortem examination report is Ex. P. 18 containing all the five injuries which had been noted in the injury report. According to the Doctor, the death was the result of coma following injury of the brain as a result of assulted injuries on the left occipito parietal injury of the head. On 14-11-1978 appellant was arrested. In pursuance of the information furnished by him, a stick was recovered. The charge-sheet against the appellant was filed in the court of Munsif Magistrate, Sagwara. He was then committed to the court of Sessions Judge, Dungarpur to face his trial. The learned Sessions Judge charge-sheeted the appellant for the offence Under Section 302 IPC and on his denying the charge, proceeded with the trial 13 witness were examined by the prosecution to substantiate its case. The appellant in his statement Under Section 313 Cr. PC denied the allegation levelled against him and took the plea of alibi stating that on the relevant day he was in Gujarat with his sister. No defence witness was examined. The learned Sessions Judge placed reliance on the prosecution evidence and passed the judgment under appeal. The appellant has filed this appeal through the Superintendent Central jail, Udaipur. As he was unrepresented, Mr. B. Advani has been appointed Amicus Curiae to plead on his behalf.
3. At the very out-set, it may be observed that it is a case of its own type. The eye-witness Rama (PW 4) has supported the prosecution case in toto regarding the appellant Kamji causing lathies injuries to deceased Punja but he has been disowned by the prosecution and cross examined because of his improved version at the trial that the occurrence had taken place not at the time of distilling liquor but when he had and deceased Punja were busy in fishing at the pond. Rama is said to have called Jeewa passing from near by and informed him that Kamji had given a beating to Punja. It is pertinent to note that this witness Jeewa has also been declared hostile by the prosecution but despite that he has supported the part of the prosecution case that Rama told him about the incident in the way prosecution alleges PW 3 Khema, brother of appellant Kamji has also been declared hostile by the prosecution and so also Sarpanch Beharilal. These witnesses have been examined by the prosecution to substantiate the prosecution case regarding the dying declaration of Punja. The medical evidence does not show that Punja could have been in a position to tell anything after sustaining the injuries. Apart from it the witnesses have not supported the origin of dying declaration. We are, therefore, left with the statement of Rama only. Rama has supported the prosecution case in toto and the only criticism that can be levelled against him is that he has tried to improve upon the version regarding what he, Punja and Kamji were doing at the time of the incident. The learned trial judge has rightly concluded that Rama, in order to save his skin from the Excise authorities might have changed the version about the work they were doing.
4. The learned Amicus Curiae in view of these circumstances does not press the appeal on merits. He has rather argued that in view of the circumstance of the case, charge of murder is not made out. Referring to the statement of Rama, learned Amicus Curiae stressed that the origin of the quarrel could not have been what is stated at the trial rather it should have taken place at some quarrel between those persons on the question of distilling illicit liquor. From the careful examination of the testimony of all the witnesses, we also find force in this contention of the learned Amicus Curiae. It is pertinent to observe that the stick which has been recovered in puraunce of the information furnished by the appellant, being a thin stick, could not have been the weapon of offence. According to Doctor Samsu (PW 12), the injured had survived for three days after sustaining the injuries. There was no previous enmity between the assailant and the victim. In such circumstance when the origin of the quarrel is not known and the version of Rama regarding the work which he and Punja were doing at the time raises suspicion, we are inclined to agree with the learned Amicus Curiae that the appellant cannot be imputed with intention to commit the murder of Punja. The learned Public Prosecutor also could not advance any argument as to why this conclusion should not be arrived at. In this view of the matter, the case of the appellant falls within the ambit of Section 300 IPC. The weapon that has been used and the nature of the injuries do not suggest of any intention on the part of the assaillant to cause such bodily injury as may be likely to cause death. He at the most can be imputed with the knowledge that by such an act he may cause such injury to the victim which may be likely to cause his death, Appellant is, therefore, held liable for conviction Under Section 304, Part-II IPC.
5. In the circumstances of the case, we consider five years rigorous imprisonment to be the adequate punishment to be awarded to the appellant.
6. Consequently, the appeal is partly accepted. The convictions and sentence of appellant Kamji Under Section 302 IPC are set aside. He is instead of convicted Under Section 304, Part II IPC and sentenced to five years rigorous imprisonment. He is in jail since the day of his arrest i.e. 14-11-78. He has thus suffered the sentence awarded to him by this judgment. He shall be set forth with to liberty at once if not required in any other case.