A.K.SINGH, J. - (1.) Heard the learned counsel for the appellant and the learned Public Prosecutor for the State.
(2.) This appeal has been filed against the judgment delivered by the learned Additional Sessions Judge, Nagaur (camp at Didwana), on 11th Dec. 1981 in Sessions Case No. 47/81, State v. Dunga Ram, whereby the accused appellant was convicted under Section 302 of the Indian Penal Code and sentenced to under-go imprisonment for life and to pay a fine of Rs. 100. The facts relevant for the disposal of this appeal may be summarised as below :- On 21st June, 1981 Krishna Ram Meghwal submitted the First Information Report Ex. P-3 before the Station House Officer of the Police Station, Jaswantgarh and stated therein that on 20th June, 1981 at about 9.00 p.m. Dunga Ram Ganpat Ram, Uda Ram, Gopi Ram and Gulab Ram went to the house of Pusa Ram with lathis and axes in their hands and at the house of Pusa Ram the accused abused Pusa Ram and the first informant and inflicted injuries on them. On hearing the hue and cry Aasum Ram, Gordhan Ram and others came to the spot and intervened. At that time the assailants threatened the first informant that they would kill him. After the above incident the first informant went to Didwada with a view to lodge the First Information Report at the Police Station. In his absence his uncle, Pusa Ram went out of his house at about 6.00 a.m. to reply the call of nature. When he passed in front of the house of the accused, the accused who were armed with lathis and axes and were waiting for him ran after Pusa Ram with a view to kill him and at that time Dunga Ram who was armed with lathi inflicted a lathi blow on the head of Pusa Ram. The blow landed on the left side of his head. On hearing the alarm raised by Pusa Ram, Jaggu Ram Meghwal and Sawai Ram Jat rushed to the spot and reminded the accused that Pusa Ram might die. Meanwhile Pusa Ram fell on the ground and then the accused said " ". Pusa Ram in an injured condition was taken to Didwana Hospital by Mangi Lal and Jaggu Ram. His condition was serious and he was unconscious. First Information Report Ex. P-3 shows that medical examination of the injuries of Pusa Ram was conducted before lodging the First Information Report and the medical examination report was submitted with the First Information Report. On the basis of the report submitted by Krishna Ram Meghwal the Police registered the case under Sections 341, 323 and 307 of the Indian Penal Code. Pusa Ram was admitted as an indoor patient in Government hospital, Didwana and when he was undergoing treatment, he died on 24th June, 1981 on account of the injury received by him. The Police therefore, investigated the case under Section 302 of the Indian Penal Code and after investigation the challan was submitted in the Court of Special Judicial Magistrate, Nagaur, alleging the commission of offence punishable under Sections 341 and 302 of the Indian Penal Code by the appellant. After taking cognizance the learned Judicial Magistrate committed the case to the Court of learned Additional Sessions Judge, Nagaur. The charge under Section 302 was framed against the appellant. He pleaded not guilty to the charge. During trial the prosecution examined as many as 12 witnesses to support the prosecution case, the appellant was examined under Section 313 of the Criminal Procedure Code. In his statement the appellant expressed ignorance about the alleged occurrence and denied all the circumstances appearing against him. Ganpat DW-l, Nanu Ram DW-2 and Karna Ram DW-3 were examined in defence. After hearing both the parties the learned Additional Sessions Judge, Nagaur convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to under-go imprisonment for life and to pay a fine of Rs. 100.
(3.) The learned counsel for the appellant has submitted that in this case the appellant is entitled to be acquitted of the offence punishable under Section 302 of the Indian Penal Code because, even if the prosecution story is totally believed, the act of the accused does not amount to culpable homicide amounting to murder and the appellant can be held guilty only under Section 323 of the Indian Penal Code. To support the above contention the learned counsel for the appellant has submitted that accordingly to prosecution story only one blow was inflicted on the head of Pusa Ram by the appellant with a lathi and when Pusa Ram was medically examined by the Medical Jurist only one simple injury caused by blunt weapon was found on his head as evidenced by Medico Legal Report Ex. P-10. The injury has been described in Ex. P10 :- Lacerated wound left side of parietal region with swelling extending upto eye lid (left) 31/2" x 1/2"skin deep Simple Blunt In column No. 7 of Ex. P-10 the Medical Jurist advised examination of the injury. Shri Om Prakash PW-10 is the Medical Jurist in his statement he has deposed that on X-Ray examination the injury found on the head of Pusa Ram was not found to be grevious. Relying upon the above circumstance the learned counsel for the appellant has submitted that the injury inflicted by the appellant on the head of deceased Pusa Ram was a simple injury caused with a blunt weapon viz. a lathi and the liability of the appellant for this injury is confined to Section 323 of the Indian Penal Code and does not go beyond that Section. Regarding the conviction under Section 302 of the Indian Penal Code the learned counsel for the appellant has submitted that in this case there is nothing to prove that the appellant intended to cause death or intended to cause an injury which he knew was likely to cause death, or he intended to cause an injury which was sufficient in the ordinary course of nature to cause the death or the appellant committed an act which was so dangerous to human life that in all probability it must have caused death and therefore, the act of the appellant does not fall Within the definition of culpable homicide amounting to murder as given in Section 300 of the Indian Penal Code. It is further submitted by the learned counsel for the appellant that even an offence punishable under Section 304 of the Indian Penal Code is not made out because the simple injury, which the appellant had inflicted on the head of the deceased, was not likely to cause death and in the circumstances of the case, the appellant cannot be said to have any knowledge that by his act of inflicting injury on the head of the deceased, he might cause his death. In other words, the submission of the learned counsel for the appellant is that assuming the prosecution story to be totally reliable the offence under Sections 302 or 304 of the Indian Penal Code is not made out and, therefore, the accused is entitled to be acquitted of the charge under Section 302 of the Indian Penal Code.;