L.S.MEHTA, J. - (1.) THE prosecution story, in brief, is that P W. 1 Mst. Indra Barber, after the death of her husband Mool Chand, contracted another marriage with deceased Phool Chand Balai, of Marwar Junction Mst. Indra had a daughter by her former husband. She went to Jalore to negotiate with accused Jasiya in connection with the marriage of her daughter. Jasiya lived in front of the female Hospital, Jalore. When Mst. Indra did not return home for a couple of days, Phool Chand Balai also went to Jalore. On June 12, 1969, at about '11 p.m. he reached Jasiya's shop, where he saw his wife Mst. Indra and Jasiya sitting on a 'Chabutri'. At that time the road light was on. Phool Chand told Indra as to why she had not returned home earlier. Jasiya intervened and spoke to Phool Chand that Indra's daughter's marriage had not so far been finalised and unless that was done. Indra should not leave Jalore. Phool Chand did not agree to it. This infuriated Jasiya, and he grappled with Phool Chand. He brought an iron pipe rode from his shop and inflicted a blow on Indra's head and another blow on Phool Chand's skull. Phool Chand full down. One more blow was given to India. He also inflicted another pipe blow on Phool Chand's back Soon after PW 3 Shanti Lal and P.W. 1 Prabhu Mali came over there. The latter had a hand -driven cart with him. He took Phool Chand to Jalore Hospital in his cart. On receipt of telephonic message P W. 7 Mohan Lal, Incharge Police Station, Jalore, sent P.W. 8 Asgar Ali, Head Constable, to the spot. Asgar Ali prepared relevant papers. P W. 6 Dr. Mangal Sharma, Medical Jurist, General Hospital Jalore, examined Phool Chand. He found one lacerated wound l 'X1/3'x skull deep in the middle half, periosteum deep on the back of the head 1' above the occipital protuberance. Duration of the injury was less than 12 hours. Its nature was simple and was caused by a blunt object. The injury report is marked Ex. P. II. The Doctor also examined Mst. Indra and found one lacerated wound -'XI/8' x bone deep lying ante posterior on the middle of the head and another lacerated wound l'XI/8' x periosteum deep lying ante -posteriorly on the head in between the parietal eminence. The injuries were simple in nature and were caused by a blunt weapon. The injury report is marked Ex. P. 12. According to the Doctor the injuries of both the victims could have been caused by an iron rod. On June 13, 1969, Phool Chand died in the hospital. Thereafter the police altered the offence to Section 302, I.P.C. against Jasiya. Postmortem examination of Phool Chand wat conducted by Dr. Mangal Sharma. The Doctor found one lacerated wound 1'x1/3'x skull deep on the back of the head 1 above the occipital protuberance and lying horizontally. In his opinion Phool Chand died of hyperpyrexia. The police, after necessary investigation, submitted a challan to the court of Munsiff Magistrate, Jalore. Learned Munsif -Magistrate conducted preliminary inquiry in accordance with the provisions of Section 207 -A Cr. PC and committed the accused Jasiya to the court of Additional Sessions Judge. Jalore. The accused was indicted under Section 302, I.P C by the trial court. He pleaded not guilty to the charge. Prosecution examined 9 witnesses Exs P 20 to P. 22, the statements of the medical Officers, namely, Dr. S.C. Mathur, Dr. G.S. Gehlot and Dr. Ajit Singh, recorded by the committing court. were also taken in evidence in accordance with the provisions of Section 509, Cr. P.C. The accused in statement under. Section 342, Cr. PC stated that both Mst. Indra and Phool Chand quarrelled between themselves. Phool Chand give a pipe blow on the head of Mst. Indra. When he intervened, he was kicked by Phool Chand and was beaten by him He wanted to inflict a pipe blow on his person. He took the pipe rod from him and hit Phool Chand. Thereafter both Indra and Phool Chand left the place. In his defence he examined one witness Hari Ram. the trial court, by its judgment, dated March 31, 1971, convicted accused Jasiya of the offence under Section 304, (Part II), I.P C and sentenced him to three year's rigorous imprisonment. He was also convicted under Section 323, I P C. for causing simple hurt to Mst. Indra and sentenced to three months' rigorous imprisonment. Both the sentences were directed to run concurrently. Hence this -appeal.
(2.) THE contention of learned Counsel for the appellant is two -fold. His first grievance is that there is no reliable evidence on the record to show that it was accused Jasiya who caused the head injury on the person of Phool Chand. His second complaint is that even if it is held that Jasiya was the author of the head injury of deceased Phool Chand, it cannot be concluded that Phool Chand died of it as it was simple in nature. As for the first contention, it may be stated that the prosecution has examined 3 eye -witnesses. Prabhu P.W 1, Shanti Lal F W. 3. and Mst. Indra, PW 5 In this examination -in chief Prabhu, P.W. 1, (aged 62 years) substantially supports the prosecution story. He says that the accused Jasiya gave one blow with an iron rod on the head of Mst. Indra and another blow with the same weapon on the had of her husband. In the cross examination he says that when the blow were struck he was standing at a distance of 10 or 12 'Pawandas'. The witness again says in the case -examination. I cannot see clearly from a distance of 10 to 12 'Pawandas'. The evidence of Prabhu in this context cannot be said to be dependable When his vision was admittedly so weak, he could not have seen the actual incident during the late hours of the night.
(3.) SHANTI Lal, P.W 3, has said in the examination -in -chief: I did not see anybody striking blows. The evidence of Shanti Lal who has turned hostile to the prosecution, is also, therefore, of no consequence.;