MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 23. 09. 1997 passed by the Additional Sessions Judge, Abu Road, convicting the appellant of offence under Sec. 302 I. P. C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/-; in default of payment to further undergo 2 months rigorous imprisonment.
(2.) BRIEFLY stated the prosecution case is that while in the intervening night of 10th & 11. 05. 1995 in village Bhamariya number of people had assembled for offering to the deity known as Bheruji and they were singing, abruptly appellant Bhura Ram appeared and gave a Kulhari blow on the back of Dharma, who died instantaneously. An information of the incident was received from P. W. 8 Fatta at about 11. 00 A. M. at Police Station, Rohida. The police after making an entry in the Rojnamcha vide Ex. P18 proceeded to the spot. Nona the father of deceased Dharma gave a written report of the incident on the basis of which F. I. R. Ex. P19 was registered. The police prepared the inquest and sent the dead body for post-mortem. After usual investigation, the police laid charge-sheet against the appellant for offence under Sec. 302 I. P. C. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 18 witnesses and produced certain documents. The appellant in his statement u/sec. 313 of the Criminal Procedure Code denied the correctness of the prosecution evidence appearing against him. He pleaded alibi. He stated that deceased Dharma was an eve teaser, therefore, some body having enmity with him might have killed him. He also stated that Nona, Sabuda, Hana, Hasna, Heena and Pata were indulged in the business of illicit liquor. This was being opposed by him. Therefore, they have falsely implicated him. We have heard Mr. G. M. Khanlearned counsel for the appellant and the learned Public Prosecutor. We have scanned the prosecution evidence exhaustively. The defence has not disputed that the deceased Dharma died of homicidal death. P. W. 15 Dr. Sharad Kumar Saxena stated that he conducted the autopsy of the dead body of Dharma and noticed the following injuries vide Post- Mortem Ex. P16:- (1) 4. 5" x 2" x 3" incised wound on back of Chest left side at the level of 7-8 thoracic vertibra with clotted blood. He stated that in his opinion the cause of death was shock due to massive haemorrhage due to deep incised would on back of chest (left) & injury causing damage of vital organ (lung ). He also stated that injury was sufficient in ordinary course of nature to cause death. The prosecution examined P. W. 2 Sabuda, P. W. 3 Heema, P. W. 4 Hana, PW. 5 Kasna, P. W. 6 Deeta, PW. 7 Bhawa, PW. 8 Fatta, PW. 9 Sodari, PW. 10 Sakari, PW. 11 Kesa and PW. 18 Keli as eye witnesses of the incident. Except PW. 4 Hana, PW. 5 Kasna and PW. 6 Deeta rest of the aforesaid persons being the relatives have preferred to oblige the accused appellant and they have not supported the prosecution case. As such they have been declared hostile. However, all the witnesses have stated that the people have assembled for the Bheru Ji Ki Parsadi. Pw. 4 Hana has stated that on the fateful night at about 12:00, he went to the house of Nona, where Nona, Dharma, Kasna, Bharma, Keli, Sakri, Sodari etc. were already sitting. There were 40-50 persons, who were worshiping the deity by singing. Some of the persons were cooking food. He was sitting just adjacent to Dharma. Kasna and Nona were also sitting nearby Dharma. At about 4:00 appellant Bhura arrived armed with a Kulhari. He inflicted Kulhari blow on the back of Dharma. He died instantaneously. The accused leaving the Kulhari on the sport ran away. He also stated that the appellant suspected Dharma having developed illicit relations with his wife. In the cross examination, he stated that as it was full Moon Light, there was no difficulty in identifying the appellant. He also stated that there was light because of stick fire. He denied the suggestion that in absence of the appellant, deceased had committed rape on his wife. Noting substantial has been elicited to discredit the testimony of this witness.
(3.) P. W. 5 Kasna has stated almost in the line of P. W. 4 Hana. He stated that he unsuccessfully chased the appellant. He also stated that there were number of people who chased Bhura, but he disappeared in the hillocks. PW. 6 Deeta has also stated almost on the same line. In the cross examination, he admitted that deceased and appellant are cousins. He also stated that there was sufficient light of Moon and fire to identify the appellant. He denied the suggestion that it was a dark night and he could not identify the real assailant and he was giving false statement at the instance of Nona. Nothing has been elicited to discredit the testimony of both these witnesses. The statements of these eye witnesses find corroboration from the medical evidence. Thus, the prosecution has succeeded in establishing that it was the appellant Bhura Ram, who committed the murder of deceased Dharma. As regards the nature of offence, it is submitted that only a single injury and that too on the non-vital part of the body is alleged to have been caused by the appellant and as such it cannot be said that he had intention to commit the murder. Thus, it is a case of culpable homicide not amounting to murder punishable under Sec. 304 Part II I. P. C. The learned counsel has placed reliance on various authorities of the Apex Court and this Court in order to support his contention. In Abdulkadar Mansurmiya Malek vs. State of Gujarat (1), the Apex Court converted the offence from Sec. 302 to 304 Part II I. P. C. having found that it was sudden fight and in heat of passion the accused inflicted a single knife injury in the stomach and as such it cannot be said that the intended to commit murder. However, he could be clothed wit the knowledge. ;