AGRAWAL, J. - (1.) THIS appeal has been filed by appellant Bhanwar Singh from jail. It is directed against the judgment and order dated February 18, 1982 passed by the Sessions Judge, Pali in Sessions case No. 22/80. In the aforesaid Sessions case, the appellant was prosecuted in respect of offence under section 302 I. P. C. for having committed the murder of one Raghunath. The Sessions Judge, while acquitted the appellant to the offence under section 302 I. P. C. , convicted him under section 304 part II LP. C. and has sentenced him to undergo rigorous imprisonment for four years and pay a fine of Rs. 400/- and in default of payment of fine to undergo rigorous imprisonment for a further period of four months.
(2.) THE case of the prosecution is that on the date of occurrence, this is, February 23, 1980, Chimansingh, the father of the appellant called the deceased Reghunath and Daulat Singh P. W. 3, to his house and there all the three persons had liquor. THE appellant was also present there. Chiman Singh blamed the appellant for not doing any work and when the deceased asked the appellant to listen to the advice of his father, the appellant lost his temper and gave a fist blow on the chest of the deceased. THEreafter other persons intervened and nothing further happened. After some time the deceased alongwith Daulatsingh, left the house of Chiman Singh and after they had gone out of the house, the appellant came running armed with a lathi. On seeing the appellant the deceased ran and while he was so running, the accused inflicted a lathi blow on his back. As a result of the said blow the deceased fell down on his face and became unconscious. Daulatsingh went and informed the sons of the deceased Viz. Jasraj PW 2 and Parasmal PW4 who took the deceased to the Amrit Kaur hospital, Beawar where he was medically examined by Dr. P. N. Mathur PW 8 on February 24, 1980 at 11. 10 a. m. and vide injury report (Ex. p. 8) four injuries were found on the person of the deceased. After examining the said injuries Dr. Mathur sent the telephonic message to the police station, Beawar city on February 24, 1980 at 11. 20 a. . m. and also sent a slip (Ex. P. 4) to the S. H. O. police station Beawar city. THE deceased died at about 12. 15 p. m. on February 24, 1980. On receiving the aforesaid telephonic information, Shri Nandpuri PW 1 A. S. I, police outpost Chand gate, Beawar reached the hospital and after making enquiries prepared a report (Ex. P. 3) on the basis of which the F. I. R. was lodged at police station Sundra on February 26, 1980 at 6 p. m. On the basis of the aforesaid report a case under section 302 I. P. C. was registered against the appellant and the investigation was started. THE Post-mortem examination of the dead body of Raghunath was conducted by Dr. P. N. Mathur on February 28, 1980 at 1. 10 p. m. vide postmortem report (Ex. P. 9 ). According to the postmortem report there was a fracture of parietal (left) and at left frontal prominence and haemat-ome 2-1/3" x2" on the left tempo-occipital region. THE doctor also found that posteriorly the right lobe of the liver was lacerated nearly 1" x linear x 1/2" deep. According to the said completing the investigation the police submitted a charge sheet against the appellant and after committal to the court of Sessions, the appellant was charged with the offence under section 302 I. P. C. The prosecution, in support of its case examined nine witnesses out of whom Daulatsingh PW 3 and Chiman Singh PW5 were examined as the eye witnesses of the occurrence. Chimansingh PW5 did not support the case of the prosecution and he was declared hostile. The prosecution also relied upon the oral dying declaration said to be made by the deceased and to prove the said oral dying declaration, the prosecution, examined Parasmal PW 4 and Pooran Singh PW 6. The appellant in his examination under section 313 Cr. P. C. pleaded not guilty and submitted that he had falsely implicated due to enmity. The appellant also examined Devi Singh D. W. 1 The Sessions Judge did not accept the case of the prosecution with regard to the oral dying declaration and did not choose to place reliance on the testimony of Parasmal PW 4 and Pooransingh PW6 for the reason that no reference had been made to the aforesaid oral dying declaration of any stage prior to the examination of these witnesses in the court. The Sessions Judge was however, of the view that Daulatsingh PW3 is an independent witness and his testimony finds corroboration from the medical evidence is well as from the evidence of Chimansingh PW5. On the basis of the evidence of Daulatsingh PW3 the Sessions Judge held that the appellant had inflicted a blow with a lathi on the back of the deceased while he was running and that as a result of the aforesaid blow the deceased fell down and sustained the other injuries. The Sessions Judge held that the appellant did not have the intention of causing injuries which were received by the deceased on the frontal prominence and it could not be said that the appellant had the intention to cause the death of deceased Raghunath or the injuries caused by the appellant were with that intention. The Sessions Judge held that from the facts and circumstances it could be inferred that the appellant had the knowledge that the injuries caused by him were likely to cause death and that the offence under section 304 Part II was established as against the appellant. The Sessions Judge therefore, convicted the appellant under section 304 Part II I. P. C. and awarded the sentence referred to above. Hence this appeal. Since the appeal had been filed from jail and the appellant expressed a desire to be represented by counsel Shri Suresh Kumbhat advocate was appointed as amicus curiae to represent the accused. Shri Kumbhat has rendered valuable assistance to the court and the court places on record its appreciation for the aforesaid assistance. The first contention urged by Shri Kumbhat was that the entire case of the prosecution as against the appellant rests in the testimony of Daulatsingh PW 3 and that the Sessions Judge has erred in placing reliance on the testimony of Daulatsingh. I am unable to accept the aforesaid contention. I have perused the statement of Daulatsingh and I find no infirmity in the said statement. Daulatsingh has stated that Chimansingh, the father of the appellant, had called him and deceased Raghunath to his house and both of them had gone to the house of Chimansingh on February 23, 1980 at 8 p. m. Chimansingh was the Ward panch and in those days the Food for work Programme was in operation and Daulatsingh as well as deceased Raghunath were working as mates in the said programme. Daulatsingh has further stated that he and Raghunath had liquor with Chimansingh and while they were drinking Chimansingh blamed the appellant for not doing any work and that the deceased advised the appellant to listen to his father and thereupon the appellant lost his temper and gave a fist blow on the chest of the deceased, whereupon Chimansingh caught hold of the appellant and gave him three or four blows and thereafter the appellant ran away. Daulatsingh has further stated that he and Raghunath deceased left the house of Chiman Singh and that deceased Raghunath was about 20 paces ahead of him and that after they had left the house of the Chimansingh the appellant came out of the 'bara' with a lathi and when the deceased saw the appellant coming towards him, he ran and the appellant ran after him and inflicted a lathi blow as a result of which Raghunath fell down on his face. Daulatsingh has also stated that after giving the said blow the appellant ran away Daulatsingh has also stated that thereafter he also ran away and came to the house of the deceased and found his sons Jasraj PW 2 and Parasmal PW 4 and told them that the deceased had been assaulted with a lathi and was lying outside the house of Neemsingh. Chimansingh PW 5 even though he has been declared hostile, supports the version of Daulatsingh to the extent that he had seen the deceased lying on the ground and Daulatsingh standing nearby and that at that time the deceased was not speaking anything. The evidence of Daulatsingh also finds corroboration from the evidence of Jasraj PW 2 and Parasmal PW 4. Jasraj PW 2 has stated that Chimansingh had come to call the deceased to his house and that the deceased had gone to the house of Chimansingh and that on February 23, 1980 at 11 p. m. Daulatsingh had come and informed him that Raghunath had been assaulted by the appellant. To the same effect is the evidence of Parasmal PW 4. Apart from the aforesaid evidence, the statement of Daulatsingh also finds corroboration from the medical evidence namely the medical injury report Ex P. 8 which shows that the four external injuries found on the person of the deceased were : (i) swelling 1-1/2" x 1" on the left side of frontal prominence; (ii) bruise l-1/2"x 1" left upper eye lid; (iii) swelling 2f" x 1-3/4" on the back at the level of D 10; and (iv) bruise 6" x 1-1/2" on the left side of the back in the middle D 10 Dr. P. N, Mathur has deposed that the said injuries could be caused by a lathi.
(3.) I am in agreement with the finding recorded by the Sessions Judge that Daulatsingh is a natural and an independent witness and his testimony is trust worthy Moreover, there is ample corroboration of the testimony of Daulatsingh by the evidence on record. I, therefore, uphold the finding recorded by the Sessions Judge, on the basis of the evidence of Daulatsingh, that appellant had given a lathi blow on the back of the deceased while he was running and that as a result of the said blow the deceased fell down on his face and became unconscious. The question which next arises for consideration is as to the offence which can be said to have been committed by the appellant. According to the medical injury report (Ex. P. 8) the deceased had four injuries referred to above. The post mortem report (Ex. P. 9) shows that there was haemotoma 2-1/2" x 2" on the left tempo-occipital region and there was fractrue of parietal (left) and at left frontal prominence. The post mortem report also shows that there was displacement of D 10 posteriorly and that the right lobe of the liver, posteriorly was lacerated nearly 1" x linear x 1/2" deep The post mortem report further shows that the death was due to haemorrhage and shock. Dr. P. N. Mathur PW 8 has stated that the injuries which were received in the head and the liver of the deceased were sufficient in the ordinary course of nature to cruse the death. According to Dr. Mathur, the injuries found on the person of the deceased could be caused by a lathi. During the course of cross examination Dr. Mathur has stated that the injuries on the head could also be sustained by a fall if the deceased has fallen with force on a hard substance of hard surface, Dr. Mathur has also stated that there was no injury on the diaphragm. In view of the evidence of Daulatsingh PW 3 that appellant had inflicted only one lathi blow and that was given on the back of the deceased, it cannot be said that the injuries sustained on the head by the deceased were caused by the lathi blow given by the appellant and the only inference that can be drawn from the evidence is that the injuries sustained by the deceased on his head were caused on account of the deceased having fallan on his face after receiving the lathi blow on his back. In so far as rupture of the liver is concerned, there is nothing in the evidence of Dr. Mathur to show that the said rupture in the liver was caused on account of the lathi inflicted on the back. While dealing with rupture of the liver, Modi in this treatise on Medical Jurisprudence has observed: - "liver-owing to its size, its fixed position and its friable consistence, the liver is frequently wounded by a stab in the abdomen, or is often ruptured by a blow, kick, crush in a vehicular accident, or fall, or even by a sudden contraction of the abdominal muscles, a case of rupture of the liver following an epileptic fit has been reported. Ruptures usually involve the right lobe, and occur in the anterior surface and the inferior border. They are ordinarily directed ante posteriorly or obliquely, rarely transversely, and are generally one or two in chest deep, but rarely pass through the entire substance of the organ. The liver is lacerated more easily if it is enlarged and fatty". (See : Modi's Medical Jurisprudence, 20th Edn. , Page 287 ). This shows that rapture of the liver can also be caused as a result of fall. In the circumstances the possibility cannot be excluded that the rupture of the liver had becaused as a result of the deceased having fallen on the hard ground after receiving the lathi blow on his back. The appellant can be convicted under section 304 part II IPC only if it is established that the appellant gave a lathi blow on the back of the deceased while he was running with the knowledge that the said act of the appellant was likely to cause the death of the deceased Raghunath. Can such a knowledge be attributed to the appellant ? In my opinion such a knowledge cannot be attributed to the appellant. It is true that a blow with a lathi can cause death but that depends on the nature of the blow. A blow given on the head is likely to result in fracture of the skull and can cause death but a blow given on the back may cause fracture in back which does not normally cause death In the present case according to the evidence of Daulatsingh, the appellant had given a blow with the lathi on the back of the deceased while he was running. From the nature off the blow which was inflated by the appellant it is not possible to impute the Knowledge to the appellant that the said act was likely to cause the death of deceased Raghunath. In my opinion, therefore, the act of the appellant does not fall within the ambit of the latter part of section 299 IPC and the conviction of the appellant under section 304 Part-II IPC cannot be sustained. ;