J. R. CHOPRA, J. - (1.) THIS appeal is directed against the Judgment dated January 17, 1981 passed by the learned Addl. Sessions Judge, Sirohi, whereby the learned lower court has convicted the accused-appellant Sarjoo Das under s. 302 I. P. C. and has sentenced him to imprisonment for life together with a fine of Rs. 100/-and in default, to further undergo one month's rigorous imprisonment.
(2.) THE facts giving rise to this appeal briefly stated are, that Sarjoodas was married to one Kamla daughter of deceased Bajrangdas. It is alleged that Kamla and her three sisters were married on the same day before about four years of the occurrence. However, Kamla alone took her Gona and lived with her in-laws for about two years but later, some allegations were made against her that she was carrying on with her father-in-law and, therefore, she came to her father's house at village Nimbaj. After about 15-20 days of this, accused Sarjoodas came to take her back but she refused to accompany him whereupon, he tried to drag her. Her mother and others tried to intervene and raised a hue and cry, whereupon, their neighbour Khoomaram etc. came and they prevailed over Sarjoodas not to take away Mst. Kamla. Later, accused went to Ahmedabad where he was working. It may be worthwhile to mention here that Bajrangdas was not present at that time in the house. It is alleged that Sarjoodas became enraged on account of this incident and he, therefore, planned to kill his father-in-law Bajrangdas. He then purchased one axe (Art. 10) from one Barkat Khan at Jalore on December 11, 1979 and then he proceeded to his father-in-laws house situated at Nimbaj on December 11, 1979 at about 8 P. M. His mother-in - law, grand - mother- in -law and his sisters-in-laws were present in the house but his wife Mst. Kamla was not there. She has already been gone to her maternal uncle's house. As soon as he reached his inlaws house, he asked about his father - in - law. P. W. 5 Mst. Sarjoo, his mother in law, told him that he has gone to the shop of Nawal Mal Jain. He then asked his mother - in - law to call him because he has some work with him. At that time, he was armed with an axe. P. W. 6 Mst. Pushpa (younger sister of Mst. Kamla, who has been married to the younger brother of accused Sarjoodas, went to the shop of Nawal Mal Jain to call her father. Bajrangdas came to his house followed by Mst. Pushpa. As soon as he reached near the accused Sarjoodas, Sarjoodas inflicted a blow with an axe on his face which hit him on his mandible region. He immediately fell down. Mst. Pushpa, Mst. Dariya, Mst. Sarjoo and Mst, Sarjoo's mother-in-law started crying which attracted the attention of P. W. 1 Raghunathsingh who came to purchase some Bidis from the shop of Nawal Mal Jain. He immediately ran towards the house of Bajrangdas. He saw one man running from the house of Bajrangdas armed with an axe. When he reached inside the house of Bajrangdas, he was informed that Sarjoodas has killed Bajrangdas. He then called certain persons of the village and later reported the matter at Police Station, Anadara. THE report was initially recorded in the Rapat Rojnamcha (Ex. 1 A) and on the basis of that a formal F. I. R. (Ex. P. 2) was drawn This report was made in the night at O. 15 A. M. on December 12, 1979. P. W. 1 Raghunath Singh went there to report the matter in the Zeep of Shri Hari Singh, who also accompanied him. THEy also informed P. W. 2 Laxmandas, who is brother of the deceased, about the incident. After the report was lodged, the police immediately came into action. THE site was inspected by the Police and the site inspection memo Ex. P. 3 was prepared. THE description memo (Ex P4.) of the dead body of Bajrangdas was prepared. THE blood stained soil and controlled soil etc. were taken into possession vide memo Ex. P 5. A report under s. 174 Cr. P. C. was prepared and it has been marked Ex. P6. THE accused Sarjoodas was arrested vide memo Ex. P22 and on his information and at his instance, a blood stained axe was recovered. THE postmortem report of the deceased has been marked Ex. P 25. THE axe (Art. 10) was put for identification and the identification memo has been marked Ex P. 10. All the recovered articles were sent for chemical and serological examinations vide letters Ex. P. 15 and 17. THE chemical and serological reports have been marked Ex. P 26 and 27 respectively. THE viscera of the stomach of the deceased Bajrangdas was also sent for chemical examination. After usual investigation, the case against the accused Sarjoodas was challaned in the court of learned Munsif & Judicial Magistrate, Sirohi from where it was committed for trial to the court of learned Additional Sessions Judge, Sirohi. The accused was charged with the offence under s. 302 I. P. C. He did not plead guilty to the charge and claimed to be tried whereupon, the prosecution examined as many as 17 witnesses in support of its case. The statement of the accused Sarjoodas was recorded under s. 313 Cr. P. C. He examined two witnesses in his defence. After hearing the parties, the learned lower court came to the conclusion that the accused was annoyed with his father-in-law because his wife was not being sent with him and, therefore, he planned a murder of his father-in-law. He purchased one axe from Jalore and later, when he went to the house of his father-in-law on the date of the occurrence, he did not find his father-in-law there. He sent for his father-in law through the agency of his mother-in-law and when his father-in-law came, he struck a blow on his face with the axe and that has resulted in his death. It has, therefore, concluded that in this case, no substitution was possible. There was strong motive for the commission of the crime and the accused has actually committed this crime. As per the Doctor, the injury inflicted by the accused on the deceased was sufficient in the ordinary course of nature to cause his death and hence, it has held the accused-appellant Sarjoodas guilty of the offence under s. 302 I. P. C. We have heard Mr. S. R. Singhi, learned counsel for the accused-appellant and Mr. L. S. Udawat, learned Public Prosecutor for the State. We have carefully gone through the record of the case. Mr. S. R. Singh, learned counsel appearing for the accused-appellant has submitted that he does not challenge the incident. According to him, it has been proved beyond doubt that it was accused Sarjoodas who has inflicted an axe blow on the face of the deceased Bajrangdas but this blow was not repeated. The accused only intended to chastise and give a thrashing to his father-in-law to teach a lesson to him for not sending his wife with him. He never intended to cause his death. If at all, he intended to cause his death, he would have inflicted number of injuries to him. It was submitted by Mr. Singhi that after infliction of the blow as per the evidence on record, he made no attempt to give any second blow. Rather it has come in evidence that he stood there for sometime and then ran away after the ladies raised hue and cry and the others started arriving at the spot. Thus, the accused had an opportunity to inflict more blows to Bajrangdas but he did not do so. Even the Doctor has stated that the probable cause of death was shock and haemorrhage due to injury on the left side of the face. Thus, the Doctor was not sure about the cause of death and hence, at best the case of the accused is covered by the provision of Sec. 304 Part II, IPC. He has relied on number of authorities in this respect. We shall discuss them later. Mr. Singhi has further stated that the accused has remained in custody from December 16, 1979 to date and therefore, now he should be released from the custody.
(3.) MR L. S. Udawat, learned Public Prosecutor appearing for the State has submitted that it is case of planned murder. There was strong motive to kill his father-in-law and in order to achieve the object, he has purchased one axe from Jalore from P. W. 10 Barkat Khan and later, he went to his inlaws house to kill his father-in-law. As father-in-law was not there, he was called and as soon as he came, he struck an axe blow on his face and that blow even if it was not repeated was fatal and was sufficient in the ordinary course of nature to cause his death and, therefore, the learned lower court was perfectly justified in holding the accused guilty of the offence under S. 302 I. P. C. According to MR. Udawat, the accused deserves no leniency. We have given our most earnest consideration to the rival submissions made at the bar. In this case, P. W. 3 Mst. Kamla has been produced to prove the motive. She has stated that she and her sister Pushpa were married to the accused and his younger brother Narsingdas respectively. However, it was only she who started living in her in-laws house. Her mother-in-law was the step mother of her husband. She started accusing her of carrying with his father-in-law and therefore, she brought this fact to the notice of her husband but he too sided' with her mother-in-law. She came back to her father's house and later the accu-sed came there to forcibly take her away but the neighboured intervened and he could not succeed in his attempt. Even at the time of the occurrence, she learnt from reliable sources that her husband has returned from Ahmedabad and therefore she left her father's house so that she could not be forcibly taken away by her husband and went to the house of her maternal-uncle She was not present when her husband came to her father's house on the date of the ;