Sunil Kumar Garg, J. - (1.) This is an appeal filed on behalf of the accused-appellant against the judgment and order dated 11.4.2000 passed by the learned Additional Sessions Judge, Bali, District Pali in Sessions Case No. 44/1997, by which he convicted the accused-appellant for the offence under section 304 Part I and sentenced to 10 years rigorous imprisonment and a fine of Rs. 2,000/-, in default of payment of fine, to further undergo six months' Simple Imprisonment.
(2.) It arises in the following circumstances : PW 1 Bhuda Ram lodged a written report Ex.P/1 on 1.9.1997 at about 9.15 p.m. before PW 12 Chhogaram alleging inter alia that in the morning of 1.9.1997, his cousin Peeraram S/o Gigaji, age 20 years (hereinafter referred to as deceased) was standing in the river bed with his cattle and alongwith him, PW 2 Rataram and PW 4 Bhagga Ram were also standing near him. At about 10.00 a.m., accused-appellant, who has sown the field of Thanji Purohit near the canal, came there and started quarrelling with the deceased over the damage caused by the cattle of deceased to his crops and, thereafter, opened his one shoe from his leg and beat deceased with that shoe on his head. The deceased was saved by PW 4 Rataram and PW 4 Bhagga Ram and, thereafter, deceased went to Bera Firkowala and slept there. Thereafter, PW 1 Bhuda Ram, informant went there and asked the deceased and he narrated the above incident to him and further told that he is having a pain in his head. Upto 5.00 p.m. in the evening, there was no improvement in the condition of the deceased and then, he was put in the cart and at that time, PW 5 Danaram, PW 6 Bheem Singh, PW 2 Rataram and Prabhuram were also there and they took him to hospital, where Dr. Jitendra Kumar, PW 10 declared him dead. In the report, it is further stated by PW 1 Bhuda Ram that deceased died because of the injury caused on his head by accused-appellant with shoe. On that report, police registered a case and deceased was got examined medically by PW10 Dr. Jitendra Kumar and after usual investigation, a challan Was submitted against the accused-appellant. The learned Additional Sessions Judge then framed charge under section 302 IPC against the accused-appellant on 21.5.1998. The accused pleaded not guilty and claimed trial. Note :That thereafter against the order dated 12.10.1997 passed by the learned Magistrate taking cognizance against the accused-appellant for the offence under section 302 IPC, S.B. Cr.Misc. Petition No. 746/98 was filed by the accused-appellant in this Court, which was decided by this Court vide order dated 6.11.1998 and this Court ordered that charge under section 304 Part I IPC may be framed against the accused-appellant instead of 302 IPC. Thus, amended charge under section 304 Part-I IPC was framed against the accused-appellant. On 5.2.1999 by the learned Addl. Sessions Judge. In support of its case, the prosecution examined as many as 12 witnesses and many documents were got exhibited. Thereafter, statement of accused under section 313 Cr.P.C. was recorded. Accused did not lead any defence evidence. After completion of trial, the learned Additional Sessions Judge vide his judgment and order dated 11.4.2000 convicted the accused-appellant for the offence under section 304 Part I IPC and sentenced as stated above. Against the said judgment and order dated 11.4.2000 passed by the learned Additional Sessions Judge, Bali, the accused-appellant has preferred this appeal.
(3.) In this appeal, it has been argued on behalf of the accused-appellant : 1. That since the deceased has no external visible injury on his skull, therefore, alleged injury could not have been caused by the blow of shoe and, thus, the conviction of the accused-appellant under section 304 Part-I IPC cannot be sustained. 2. That even otherwise accepting the prosecution case, offence cannot travel beyond Section 323 IPC.;