1. The appellant Bapulal was indicted before the learned Additional Sessions Judge Jhalawar in Sessions case No. 91/94 for having committed murder of his wife Gulab Bai. The learned trial judge vide judgment dated May 29 1995 found him guilty, convicted and sentenced him under Section 302, IPC to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer one year rigorous imprisonment.
2. Against this judgment of conviction and sentence that the present action for filing the appeal has been resorted to by the appellant.
3. In brief the prosecution case is that Gheesalal (PW 7) father of deceased Gulab Bai instituted oral report on May 26 1994 with the police station Bhalta District Jhalawar with the averments that on being informed by his sister-in-law around 7.00 p.m. that his son in law Bapulal (appellant) gave beating to his daughter with Sariya, he rushed to her house and found her lying dead. Bapulal who was standing by her side armed with Sariya (iron rod) made an attempt to beat him also. The Police Station Bhalta registered a case bearing No. 39/94 under Section 302, IPC vide Ex. P.5 and inestigation commenced. The accused appellant was arrested. Sariya was recovered at his instance vide Ex. P. 10. Statements of the witnesses under Section 161 were recorded. Site was inspected and on conclusion of the investigation chargesheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Jhalawar. Charge under Section 302, IPC was framed. The appellant denied the charge and claimed trial. The prosecution examined as many as 17 witnesses in support of its case. In the statement under Section 313 Cr.P.C., the appellant claimed innocence. No evidence in defence was however produced. On hearing the final subissions, the learned trial judge convicted and sentenced the appellant as indicated hereinabove.
4. Dr. Prem Chand Meena (P.W. 17) conducted the autopsy on the body of the deceased Gulab Bai. He found the following injuries on her person :
(i) Incised wound present on frontal region of the head 3x1x2 Inch.
(ii) Hole type wound present on occipital region (left side)1 1/2 x 1x3 Inch.
(iii) Bruise on left maxillary process of the face 2x1 Inch.
According to post mortem report death was caused due to head inury sustained by the deceased.
5. In his deposition Purilal (P.W. 1) brother-in-law of the appellant, stated that Bapulal inflicted Sariya blow on the head of his sister and on seeing him when Bapu attempted to assault on him he escaped. Dhapubai (P.W. 2) although stated that Bapulal inflicted Sariya blow on the head of Gulab Bai yet in her cross-examination she deposed that she reached at the spot after the death of Gulabhai. Kamla (P.W. 3), Shantibai (P.W. 4) and Radhi Kishan (P.W. 6) did not support the prosecution case and were declared hostile. Gheesalal (P.W. 7) informant also reached at the spot after the incident had occurred. Bhahadur Singh (P.W. 11) Investigating Officer investigated the case and recovered Sariya at the instance of the apellant vide Ex.P. 10.
6. Mr. K.A. Khan, learned Amicus Cu-riae appearing for the appellant canvassed that from the record it can be inferred that the appellant inflicted only one blow on the head of the deceased and the injury sustained on the occipital region was as a result of the incised wound caused on her frontal side of the head. Therefore the appellant who inflicted only one blow can be imputed only with knowledge that the blow inflicted by him was likely to cause death and the case does not travel beyond Section 304 Part I, IPC.
7. Per contra, Mr. Rajendra Yadav, learned Public Prosecutor supported the impugned judgment of conviction of the learned trial Judge and contended that the intention of the appellant to kill his wife can be gathered from the circumstances.
8. Having given our anxious consideration to the rival submissions and on a close scrutiny of record we find that only one injury on the head of the deceased by Sariya has been attributed to the appellant. From the autopsy report of the deceased it appears that she had sustained one incised wound on frontal region of the head and one hole type wound was also present on occipital region.
Dr. Prem Chand (P.W. 17) who conducted the autopsy on the body of the deceased did not say that injuries 1 and 2 sustained by the deceased where the result of one blow or more blows. In Modi's Medical Jurisprudence and Toxicology Edited by B. V. Subrahmanayam at page 407, it has been stated that 'An extensive fracture running parallel to the two points of contact (bursting fracture) will occur, if mechanical force is applied on one side of the head, when it is pressed on the other side against a hard susbstance, such as a wall, while the individual is standing, or against the hard ground or floor when he is in a lying posture. In such cases, the fracture may extend transversely to the base of the skull.'
9. It is well settled that for an offence to fall under the category of murder (i) there must be bodily injury and (ii) the accused must have intended that particular injury and (iii) that bodily injury must be sufficient in the ordinary course of nature to cause death. Where a case falls under either of the following classes, it is within the ambit of Section 304 Part I, IPC :
(1) when the case falls under one or the other clauses of Section 300, IPC but is covered by the exceptions to that section.
(2) where the injury caused is not the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but it is of lower degree of likelihood generally spoken of as an injury 'likely to cause death' and the case also does not fall under Clause (2) of Section 300.
Clause secondly appended to Section 300, IPC deals with acts done with the intention of causing such bodily injury as the offender knows to be likely cause to cause the death of the person to whom harm is caused. The mental attitude here is two fold. There is first the intention to cause bodily harm and next there is the subjective knowledge that death will be likely consequence of the intended injury.
But where the accused inflicted only one injury with a blunt object on the head of the deceased, at best it can be said that the injury which the accused inflicted on the vital part of the body of the deceased was likely to cause death and this much of intention can be imputed to the accused which brings the case of the accused within the mischief of Section 304, Part I, IPC.
10. In the case on hand, as already noticed, the appellant inflicted one sariya blow on the head of the deceased and he did not repeat the same. In view of this we can impute only this much intention to the appellant that injury inflicted by him on the vital part of the body of the deceased was likely to cause death and this act of the appellant comes within the mischief of Section 304, Part I, IPC.
11. Consequently, we allow the appeal of the appellant in part. We set aside the conviction and sentence of the appellant under Section 302, IPC instead we convict him under Section 304, Part I, IPC and sentence him to suffer rigorous imprisonment of 10 years and fine of Rs. 1000/- in default to further suffer one year rigorous imprisonment.