Govinda Menon, J.
1. On the confession of Ex. P-6 to the Sub-Magistrate, P. W. 10 and on the direct testimony of P. Ws. 1 to 5, there can be no doubt whatever that the appellant before us inflicted the injuries on the head of his father by means of the stones, M. Os. 1 and 2, the result of which was the cracking of the skull & the instantaneous death of the victim. Though before the Sessions Judge, the appellant stated that the confession was made because the police tutored him, we see no reason to hold that the retracting of the confession was for any true, valid or substantial reasons. Such I being the case, we are prepared to act on the confession.
2. Even if there had been no confession, there is the evidence of the five witnesses, P. Ws. 1 to 5 all of whom testify to the fact that upon the prostrate man the appellant threw the two stoneg which caused the fracture of the skull. The circumstances under which the stones were thrown, as deposed to by the witnesses, are somewhat slightly different from what the accused has stated-in his confession. In Ex. P-6 what he states that after drinking arrack for one rupee and pur chasing beedi for one anna on credit, he returned home that night at the meal time, when his father questioned him, 'Where had you been? For how many days will you be having free feeding like this, without doing any work?' To this the appellant did not give any reply but ate his food and came out. His father followed him armed with a stick saying 'What, you are going out without giving any reply?' Fearing that his father might assault him, the appellant took a stone and hurled it against him. It hit him on the head. Immediately he fell down. But, the evidence of the witnesses is to the effect that the. appellant caught hold of the tuft of the deceased with his right hand and with his left hand fistec the deceased while he lay prone on the abdomen. Then P. Ws. 1 and 2 rushed upon and while P .W. 1 caught hold of the left hand of the accused and remonstrated him, P. W. 2 extricated the tuft of the deceased from the right hand of the accused. After that, the accused pushed both of them down, released himself and picked up two stones lying there and threw them with force on the head of the deceased. On this aspect of this case thoughthere has been some kind of cross-examinationthere is nothing very important from which one cansay that the version given in the chief-examination is in any way untrue. P. W. 2 speaks in thesame strain. P. Ws. 3 and 4 speak to the entireincident and P. W. 5 also speaks to P. Ws. 1 and2 coming running in response to the cries and eachpulling away a hand of the accused, then the accused throwing off P. Ws. 1 and 2 and striking thedeceased on the head with the stones. Such beingthe case we have no doubt whatever that the version given in the evidence of the witnesses is thetrue one.
3. The appeal has been admitted to find out what offence the appellant has committed. Mr. P. Ramakrishna for the appellant relies upon the decisions in -- 'Muthu Goundar v. Emperor', 1931 Mad WN Cri 157 (A) and -- 'In re Yeduru Alluru Reddi', Cri App No. 492 of 1950 (Mad) (B) for the contention that, under the circumstances, the accused can be guilty only under Section 304, Clause 1, I. P. C., because he can avail himself of Exception 4 to Section 300. Having carefully gone through both those decisions, we reel that the contention of the learned counsel cannot be accepted. In -- '1931 Mad WN Cri 157 (A)' Jackson and Cornish JJ. have held that in the course of a sudden quarrel, if a man beats another with a crow bar and gives only one blow, the offence is one under Section 324, I. P. C. We do not say that the learned Judges have come to a wrong conclusion. On the facts of that case it may be that their conclusion is right. For one thing, in the present case, what has happened is, the deceased man was dragged out, he was made to lie down and when he was in that posture and trying to extricate himself, the accused threw stones on his head and caused the injuries. As regards the decision in -- 'Cri App No. 492 of 1950 (Mad) (B)' to which both of us were parties, the facts there are entirely different. An uncle and his nephew quarrelled about the baling of water, and the nephew took out a pulley and inflicted one blow on the head of the deceased. We held that, under those circumstances, exception 4 to Section 300 can be invoked. There was a sudden quarrel. There was heat of passion, and we held that the accused did not act in a cruel or unusual manner. If the accused had gone to some distance and brought out a weapon which was not available to the victim, then the case would be different. Here, what happened was the deceased had fallen down and he was being fisted by the accused, which act was prevented by P. Ws. 1 and 2, and it was only thereafter that the accused picked up the stones and hurled them on the head with such force that there was a fracture of the skull. The facts of this case are entirely different from the facts in -- 'Cri App No. 492 of 1950 (Mad) (B)' and such being the case, we do not think that the offence committed is anything but murder.
4. Mr. Ramakrishna then invited our attention to the fact that the learned Judge in the Court below in examining the accused under Section 342, Cri. P. C., did not put the necessary questions and ask him to explain the facts elicited in the evidence against him. No doubt, a reading of the questions and answers shows that the questioning has been rather meagre and unsatisfactory. But, in view of the decisions of the Supreme Court reported in -- 'Tara Singh v. State', : 2SCR729 (C); -- Bejoy Chand Patra v. State of West Bengal', : 1952CriLJ644 (D); -- 'Ajmer Singh v. State of Punjab', : 1953CriLJ521 (E), we do not think that a retrial is called for. In our opinion, there has been no miscarriage of justice.
The accused knew what the evidence against him was, he himself having confessed to crime and the confession having been retracted for no good or valid reasons. Besides, his answers would show that he has not been prejudiced in any way. Had the matter been different, we would probably have ordered a retrial. In the circumstances of this case, no injustice or harm has been caused.
5. The appeal, therefore, fails and is dismissed.