J.R.CHOPRA, J. - (1.) ON joint request of the learned counsel for the parties, the bail application for suspension of sentence and appeal have been heard together on merit.
(2.) THE accused-appellant Kala was held guilty for the offence under Sec. 302, IPC and was sentenced to life imprisonment and a fine of Rs. 50/-, in default of payment of fine to further undergo two months' R. I. Briefly stated the facts, are that on 13. 9. 86, at about 8 p. m. Arjun s/o Bhera lodged a First Information Report at the police station, Panarwa, stating, inter alia, that on the same day at about 8 am. a minor incident of scuffle took place between Savi. d/o Gujra and Mogi d/o Kala. Mogi came to her house and told about this incident to her father Kala, whereupon, Kala became furious and disappointed. He went to the house of Dola with arrow and how with intention to kill him. At that time, Dola was sleeping on a cot. He stuck the arrow on the chest of Dola, whereby, he died. He took out the pierced arrow from the chest and thereafter he fell down on the ground. Mr. B. S. Rathore, learned counsel for the appellant submitted that he does not want to press the application for suspension of sentence, in case, the appeal is finally heard and decided on merits. He also submitted that the incident took place in hot haste as well as ail of sudden. The accused inflicted only one injury on the person of Dola, which was caused by sharp-pointed weapon. In this respect, he drew our attention to the testimony of PW. 1 Dr. PP. Modi. On medical examination, he found one piercing wound on the body of the deceased measuring 1x1x12 Cms. deep in between 4th and 5th ribs. There was an injury found on the right side of the lung and the blood has collected in the plural cavity. The doctor has stated that on account of decom-potion, it cannot be said whether this injury was caused by a sharp-edged weapon or a blunt weapon. In the opinion of the doctor, the injured died due to injury on the chest and shock. During the post-mortem examination, the doctor noticed that the injury found on the person of the deceased was of simple nature. He has also opined that the life of the injured could be saved by giving timely medical aid. But in the present case, no proper medical aid was made available to the injured, on account of which, he died. Dr. S. S. Bhandawat, learned Public Prosecutor for the State submitted that the accused has been rightly convicted for the offence under Sec, 302, I. P. C. for causing injury on the vital parts of the body. However, it is a case of single injury, which has been caused in the ordinary course of nature to cause death therefore, the offence comes within the arena of Sec. 302, IPC. We have considered the rival submissions at the bar. We are convinced that the occurrence took place on a trivial matter. There was no enmity between the deceased and the accused. It is admittedly a case of single injury and no further blow has been repeated, therefore, the offence in our opinion, fails under Sec. 304 Part II, IPC, because according to the doctor, the injured's life could be saved, if timely medical aid was made available to him.
(3.) IN Gulam Hussain v. State of Rajasthan (1), the blow was caused on the chest of the victim and that was sufficient in the ordinary course of nature to cause death. The occurrence took place all of a sudden and the blow was not repeated. The Division Bench of this Court has set aside the conviction of the accused under Sec. 302, IPC, and instead he was convicted under Sec. 304 Part-II, IPC. Learned counsel for the appellant drew our attention to the decision of the Division Bench of this Court in Gopal Lal v. State of Rajasthan In that case, the accused inflicted only one blow on the back of the deceased by sharp-edged weapon. The doctor has not opined that the injury was sufficient in the ordinary course of nature to cause death. The Division Bench of this Court has set aside the conviction and sentence for the offence under Sec. 302, IPC but convicted him under Sec. 304, Part-I, I. P. C. Reliance has also been placed by the learned counsel for the appellant on the decision of the Division Bench of the Supreme Court in Hem Raj vs. The State In that case, the occurrence had happened most unexpectedly in a sudden quarrel and without premeditation during the course of which the appellant caused a solitory injury and hence it could not be imputed against him that he inflicted the injury with intention to cause death of the deceased or caused the injury with intention to cause death of the injured but he could be credited with the knowledge that the injury that he inflicted not such as was likely to cause death of the injured. Their Lordships held that the offence committed by the appellant is the one punishable under Sec. 304, Part-II, IPC but not under Sec. 302, IPC. ;