SHYAM SUNDER BYAS,J. - (1.) THE appeal is directed against the judgment of the learned Sessions Judge, Jalore dated October, 4 1978 convicting the appellant under Section 304, Part II, IPC and sentencing him to four years rigorous imprisonment and a fine of Rs. 1000/ -, in default of the payment of fine to further undergo six month's like imprisonment.
(2.) BRIEFLY stated, the prosecution case is that the deceased Thana (aged about 32 years) was the real elder brother of the appellant. PW 1 Amra and PW 4 Smt. Mirga are their parents while PW 3 Kumari Moti and PW 4 Rooga are their sister and brother. They were all living in separate Jhumpas situate in a Gawari as shown in site plan Ex.P 16. The accused had sold his cattle to the deceased and in that connection the deceased owed a sum of Rs. 100/ - to the accused. At about 8.00 a.m. on April 30, 1978, the deceased and the accused along with some other persons were sitting out -side the Jhumpa of the deceased. The appellant demanded the payment of Rs. 100/ - from the deceased. The deceased expressed his inability to make the payment at that time. This annoyed the accused. He struck a blow of Lathi on the head of Thana. Thana fell down. There was profuse bleeding from his head injury. He was taken in a jeep to the Government Hospital, Sanchore for treatment. The doctor on duty examined him and declared him dead. PW 1 Amra went to police station, Sanchore and verbally lodged the report Ex.P 12 of the occurrence. The police registered a case and proceeded with investigation. The Station House Officer Durgsingh (PW 13) reached the hospital and prepared the inquest of the victim's dead body. He also seized and sealed his blood -stained clothes. The post -mortem examination of his dead body was conducted by PW 11 Dr. M.D. Dosi on the same day. The doctor noticed the following injuries on the victim's dead body: External - (1) Lacerated wound 2 -1/4' x 1/4' x bone deep on left parietal bone in its upper part, about 2 -1/2' above the ear. A big swelling was felt underneath the wound. Internal - Communitted fracture of left parietal and temporal bones, extending upto base of skull i.e. middle cranical fossa. A big haematoma was found on the outside and inside the wound and fracture. In the opinion of Dr. Dosi, the cause of death of the victim was coma due to cirbral compression as a result of intra -cranial haemorrhage. The post -mortem report prepared by the doctor is Ex.P 12. The accused was arrested on that very day and in consequence of the information furnished by him, one Lathi was recovered. After the investigation was over, the police presented a challan against the accused in the Court of the Munsif cum Judicial Magistrate, Sanchore, who, in his turn, committed the case for trial to the Court of Sessions. The Sessions Judge framed a charge under Section 302, IPC against the appellant, to which he pleaded not guilty and claimed absolute innocence. In support of its case, the prosecution examined 13 witnesses and filed some documents. In defence, no evidence was adduced by the accused. On the conclusion of the trial, the learned Sessions Judge held that the accused had inflicted a blow on the head of the deceased victim with a Lathi The offence made out was, however, not taken to be that under Section 302 but under Section 304, Part II, IPC. The accused was consequently convicted and sentenced as mentioned at the very out -set.
(3.) I have heard Mr. N.N. Mathur learned Counsel for the appellant and Mr. M.C. Bhati learned Public Prosecutor. I have also gone through the case file carefully.;