SARJOO PROSAD, C. J. - (1.) THIS appeal is directed against the decision of Shri B. K. D. Badgel, Additional Sessions Judge of Jalore, dated 12th October, 1960. The learned Judge, who tried the appellant Bhoor Singh, convicted him under sec. 304 Part II of the Indian Penal Code and sentenced him to undergo 3 years rigorous imprisonment. The appellant was tried for a charge under sec. 302 of the Indian Penal Code for causing the death of his brother Mod Singh.
(2.) THE material facts lie in a short compass. According to the prosecution the appellant Bhoor Singh and his brother Mod Singh, the deceased, were both cultivating their field on the evening of the date of occurrence, 20th November, 1959. It is alleged that a quarrel ensued between them regarding some food and in the course of the quarrel the appellant Bhoor Singh lost his temper and inflicted a Chowkni blow on the chest of Mod Singh, as a ¦ result of which Mod Singh died almost immediately on the spot. THE prosecution case is that the incident was witnessed by a boy Bhava, who was then cultivating a field in the locality some distance away. Bhava was called by the appellant Bhoor Singh who asked him to bring Deepa, the sister's son of the appellant and the deceased, who was also working in some field near about. THE appellant then asked Deepa to inform his mother about the incident and told him that he had killed his brother in the course of a quarrel for bread with a Chowkni. Deepa and Bhava then informed the mother of the accused and at her instance they also gave information to Thakur Kishore Singh, a respectable man of the village. Thakur Kishore Singh, accompanied with certain other persons then went to the spot, found Mod Singh lying dead and on enquiry the appellant is said to have confessed his guilt before those persons in killing his brother by a Chowkani blow on account of a quarrel regarding some bread. Kishore Singh got a written report prepared by one Bhom Raj, which was sent through one Poonama to the Police Station Modran, some ten miles off. On the basis of that report a case was instituted and the police after investigation submitted charge sheet against the petitioner. THE sub-Inspector, who investigated the case, went to the sire and prepared a site plan. He arrested the accused on the spot, who then happened to be sitting at the place, and also took possession of the Chowkani, the instrument with which the deceased is said to have been killed. He also prepared an inquest report and took possession of a Ganji, 1 half shirt, and 1 Angocha, which he found on the person of the deceased. THE dead body was in due course sent for post mortem examination, but it was held some two days after the occurrence, i. e. , on the 22nd of Nov. ,1 1959. THE Chokani, which was duly sealed, appeared to have contained some blood spots and was examined by the serologist, who found that two of the middle prongs contained human blood. THE defence of the appellant was that he was not responsible for killing the deceased. What happened according to the defence was that some Kundva was being prepared and the deceased, who was working on the Kundva fell on a Bavela, as a result of which he sustained injuries and died. The prosecution in this case depends on the evidence of Bhava, the only eye-witness and certain circumstantial factors, the extra judicial confession of the appellant in the presence of Deepa, his nephew, as also in the presence of Thakur Kishore Singh, who went to the spot on getting information of the occurrence : the Chowkani which was found on the spot and with which the blow is said to have been inflicted, was also found to contain human blood on two of the middle prongs. The medical evidence is that there were two injuries on the person of the deceased, both punctured wounds: (1) Punctured wound 1/2" x 1/3" x 1-1/2" downwards and medially in left intercostal space just lateral to sternal border; (2) Punctured wound 1/2" x 1/3" x 1" downwards and laterally first right intercostal space just lateral to sternal border. On internal examination it was found that the pleura was pierced at both the places of the wounds. The doctor was of opinion that both the external injuries were grievous and could be caused by any piercing weapon and the injuries were sufficient in the ordinary course of nature to cause death, though the first injury was more serious. It appears that the Ganji and the shirt which were recovered by the Sub-Inspector from the body of the deceased were also found by the serologist to be stained with human blood. The learned Sessions Judge, after a careful examination of the evidence before him, came to the conclusion that the guilt of the appellant had been satisfactorily established, both on the evidence of the eye-witness and the circumstancial factors brought on the record; but he thought that the act of the accused fell under Part II of sec. 304 of the Indian Penal Code and therefore, convicted him as aforesaid, giving him the lighter punishment, because the appellant is a young man of 16 years and had really no intention of killing his brother. The judgment, in my opinion could have been very much shorter without any detriment to the discussion of the vital points that arose for consideration in the case. It is then argued by the learned counsel that the medical evidence on the point destroys the prosecution case and it should be held on the evidence that the deceased couldn't have been killed by the Chowkani with which he ii said to have killed. According to the medical evidence, there were only two punctured wounds found on the body of the deceased and the depth of the injury in one case was as much as J". If that is so, the learned counsel contends, it is impossible to believe that there would be no other injuries on the person of the deceased when in fact the instrument had four prongs the other two prongs of the instrument also must or should have in the ordinary course penetrated the body of the deceased. It is true that the doctor has said that the injuries could not have been caused by this weapon, nevertheless he has also admitted that the two injuries could be caused by the two middle prongs of the Chowkani if the below was given from upwards to downwards. It all depends upon the force which is brought to bear on the particular prongs of the Chowkani. It must be remembered that the post mortem was performed two days after the occurrence and the deceased had also a Ganji and a shirt on his person. The penetration of the prongs of the Chowkani would depend upon the force exerted at any particular point or points of the instrument, the susceptibility of any particular part of the body at these points and the resistance which may have been offered by the clothes which the injured was wearing. Then again the post mortem examination was performed two days, after and it is possible that the contusions that there may be could not be detected by the doctor at that-time. It is also in evidence that the Chowkani was found lying there when the Police Inspector went to the spot and he took possession of the Chowkani which contained blood stains and which on examination by the serologist has been found to have human blood. The court below has very rightly rejected the defence story. In the first place the Kundva was not sufficiently high. In the second place the Bavala has not been produced nor was any Bavala shown to the Sub-Inspector when he went to the place, as having caused injury to the deceased. It is, therefore, impossible to place any reliance upon the defence version of the occurrence. The learned Judge in fact has lightly let off the appellant in assuming that the offence fell under the second part of sec. 304. Truly speaking it was a case of murder. It may be that the appellant had no intention of killing his brother but if he had the intention of causing such bodily injury as he knew was likely to cause death of the person or if the act is done with the intention of causing bodily injury and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, the culpable homicide would amount to murder within the meaning of sec. 300/- of the Code. It is well known that intention is what intention does. If with a four pronged instrument a blow is inflicted 011 a vital part of the body and the blow is such as to cause two deep injuries in the body and according to the doctor each one of those injuries was sufficient in the ordinary course of nature to cause the death of the man then surely the intention of causing such bodily injury as the offender knew was likely to cause death or was sufficient in the ordinary course of nature to cause death would be attributed to the accused. However, in this case no rule for enhancement had been issued. The offender is a young man and he appears to have committed the offence impulsively on the heat of the moment without realising what he was actually doing. It is not necessary to take any further action in the matter. I according dismiss the appeal and maintain the order of conviction and sentence passed by the learned Additional Sessions Judge. . ;