S.C.AGARWAL, J. - (1.) THIS appeal is directed against the judgment dated October 27, 1977 passed by the Sessions Judge, Bhilwara, in Sessions Case No. 107 of 1976. In the Sessions Case aforesaid, appellant Sakir Mohammed alias Sakir Hussain and one Fakir Mohammed were prosecuted. The appellant was charged with the offence Under Section 302, IPC and accused Fakir Mohammed was charged with the offence Under Section 302 read with Section 114, IPC. The learned Sessions Judge acquitted Fakir Mohammed of the charge levelled against him. So far as the appellant is concerned, the Sessions Judge convicted him of the offence Under Section 304 Part II of the Indian Penal Code and sentenced him to rigorous imprisonment for two years and to pay a fine of Rs. 500/ - and in default of payment of fine to further suffer rigorous imprisonment for a period of six months.
(2.) THE case of the prosecution is that on September 6, 1976 Rafiq Mohammed deceased was sitting on a cart near the 'Paal' of a 'Bandh. An altercation took place between accused persons and deceased Rafiq Mohammed and appellant Sakir Mohammed threw a stone at Rafiq Momammed which hit him on the temple. Accused Fakir Mohammed was having a stick with him and he assaulted the deceased with the same. After Rafiq Mohammed was hit by the stone, he fell down and became unconscious. He regained consciousness after about 20 minutes and returned to his house. The injuries of Rafiq Mohammed were examined by Dr. Chiranjilal PW 4 Medical Officer Jahajpur on September 10, 1976 at 4 30 p.m. vide injury report Ex. P 2. According to the said report, there were two injuries on the parson of the deceased one was bruise 5 cm x. 1.6. cm regular margin on the left side of the face over the zygoma and the other was a bruise with swelling 4 cm x 3 cm, irregular in shape on the left cheek. Since Dr. Chiranjilal did not consider the said injuries to be serious and the general condition of the deceased was quite good, the deceased returned home. Subsequently, he became unconscious and was taken again to Dr. Chiranjilal at about 6 30 p.m. on September 10,1970. Since the condition of the deceased was serious, Dr. Chiranji Lal referred the case, to Sawai Man Singh, Hospital, Jaipur and while the deceased was being taken to Jaipur, died in the way. The first information with regard to the offence was lodged by Najir Mohammed PW 1, the father the deceased, at police station Jahajpur on September 10,1976 at 8 00 p m. Since the deceased was alive when the first information report was lodged, a case Under Section 307 was registered and the investigation was commenced. After the death of Rafiq Momammed, the case was altered to 302/34 of the Indian Penal Code. The autopsy on the dead body of deceased Rafiq Mohammed was conducted by Dr. Chiranji Lal vide post -mortem report Ex. P 3. In the post -mortem report, it was recorded that effusion of blood was present in the substance of the left temporalis muscle, there was committed fracture of the left temporal bone and the fracture line was irregular and was approximately 6 cms. in length, massive extra -dural collection of blood was present on left side of the head over the temporo -parietal region and the membrance were intact and the brain surface was congested. In the said post -mortem report, it was further recorded that the cause of death was gradual deepening coma due to compression of the brain tissue by haematoma underneath the temporo -parietal bones on the left side of the skull and that the hematoma was due to rupture of the middle meningeal artery on left side caused by fracture of the temporal bone The investigation was conducted by Chain Singh, SHO, Police Station Jahajpur (PW 5) who prepased the Panchnama Ex. P. 5 memo of site inspection Ex. P6, and site -plan Ex. P7. The appellant was arrested on September 11,1976 at 3.30 p.m. by memo of arrest Ex. P. 8 and Fakir Mohammed was also arrested on September 11,1976 at 3.30 p.m by memo of arrest Ex. P 9. After completing the investigations, the police filed charge -sheet against the accused persons in the court of Munsif and Judicial Magistrate, Jahajpur who committed the accused for trial to the court of Sessions and thereupon, charges under Sections 302 and 302/114 IPC were framed against the accused appellant and accused Fakir Mohammed. The accused persons pleaded not guilty and claimed to be tried. The prosecution in support of its case, examined five witnesses. Nazir Mohammed PW 1 is the father of the deceased who had lodged the first information report Gafoor Khan PW 2 and Badar Khan PW 3 have been examined as eye -witness of the occurrence; Dr. Chiranji Lal PW 4 is the Medical Officer who had examined the injuries of the deceased and had also conducted the post -mortem examination of the deceased and had proved the injury report Ex P 2 and the post mortem report Ex. P. 3; and Shri Chain Singh PW 5 is the investigation officer. The appellant in his statement recorded Under Section 313 Cr P.C. denied the prosecution case and stated that the witnesses were deposing against him because his field and the field of Gafoor Khan were adjacent to each other and the cattle of Gafoor Khan had entered his fields to which he objected and, therefore, Gafoor Khan was against him. The accused persons also examined Dr. Raghu Raj Singh Choudhary DW 1 to show that injury No. 1 found on the person of the deceased could not have been caused by stone and further that the haematoma on the temporal region could not be caused by the said injury.
(3.) THE Sessions Judge held that from the evidence of Gafoor Khan PW 2 and Badar Khan PW 3, it was established that the appellant threw a stone on the deceased as a result of which the decessed had sustained two injuries on his person and he died as a result of the injuries. The Sessions Judge further held that the testimony of Gafoor Khan PW 2 and Badarkhan PW 3 was corroborated by medical evidence of Dr. Chiranji Lal PW 4 who stated that both the injuries found on the person of the deceased could be caused by throwing a stone and one stone could have caused both the injuries. The Sessions Judge did not place reliance on the testimony of Dr. Raghu Raj Singh Choudihary DW 1 on the grounds that Dr. Choudhary had neither examined the injuries of the deceased nor had examined the dead body of the deceased and whatever he stated, was on the basis of the injury report Ex P 2 and the postmortem report Ex. P 3 prepared by Dr. Chiranjilal and further that Dr. Chiranjilal was not cross -examined on these matters. According to the Sessions Judge, a stone could have a regular edge and injury No. 1, which was regular in shape, could have been caused from the regular side of a stone. The Sessions Judge further held that alongwith zygoma and temporal bone are situated at different places but they are quite close to each other and, therefore, it could not be said that injury No. 1 could not have resulted in the internal injury of brain. The Sessions Judge was, however, of the view that in so far as accused Fakir Mohammed was concerned, it could not be established that he had instigated the appellant to throw the stone on the deceased or that he had inflicted a blow with the Mick on (he person of the deceased and all that was established was that he had abused the deceased. The Sessions Judge, therefore, acquitted Fakir Mohammed of the charge Under Section 302/114 of the Indian Penal Code. As regards the appellant, the Sessions Judge was of the view that the dispute had arisen on account of a quarrel over grazing of cattle and that it could not be said that the appellant had an intention to cause the death of the deceased or had an intention of inflicting such an injury as is likely to cause the death. According to the Sessions Judge, the appellant could only be held guilty for the offence punishable Under Section 304 Part II of the Indian Penal Code and, therefore, he convicted the appellant of the offence Under Section 304 Part II, IPC. Being dissatisfied with the aforesaid conviction and sentence imposed upon him by the Sessions Judge, the appellant has filed this appeal.;