K.S.LODHA,J. - (1.) ACCUSED Misra has been convicted under Section 304, Part -II, IPC and sentenced to 7 years' rigorous imprisonment with a fine of Rs. 200/ -, in default of payment of fine, further rigorous imprisonment of two months by the learned Sessions Judge, Jalore by his judgment dated 19th December, 1985. Aggrieved of this judgment, the appellant has filed this appeal through jail.
(2.) I have heard learned Amicus Curiae and the learned Public Prosecutor and have gone through the record. The facts of the case, briefly stated, are that on April 25, 1985 one Govind Ram was going to his shop from his house, when accused Misra armed with spade came near him and started giving blows with the spade Govind Ram fell down raising cries, but Misra did not stop and went on giving more blows. In the meantime, Hariram and Chamanlal, who were going to the house of Govind Ram reached the spot and saw the incident. They, however, could not interfere out of fear. After inflicting few blows and taking Govind Ram to be dead, Misra ran away from the spot. Then Hari Ram went to the house of Govind Ram and informed his son Jai Shankar about this incident. Jai Shanker then came to the spot and saw the condition of his father. Govind Ram was then taken to the hospital as his condition was serious. Dr. M.S. Rajpurohit, examined his injuries and informed the police, whereupon the ASI Bhanwar Singh reached the spot where Jai Shanker handed over the written report of this incident to him. A case under Sections 307 and 324 IPC was registered. The condition of the injured Govind Ram was detericrating and, therefore, he was sent to Jalore Hospital where he succumbed to his injuries. Dr. Rajendra Purohit (PW 7) performed the post -mortem examination. Accused Misra was arrested on April 26 1985 The 'dhoti' and the shirt which he was wearing at the time of his arrest were stained with blood and, therefore, they were taken in possession by the police and sealed on that very day. Misra gave information while in custody to the police about the spade, which was recorded by the Investigating Officer vide Ex. P. 12. In pursuance of this information the 'Phawara' was recovered from house of the accused vide Ex.P/17 on April 27, 1985. After completing the investigation, the police put up the challan for offence under Section 302, IPC against accused Misara. He was committed to the court of Sessions where he pleaded not guilty to the charge under Section 302, IPC and was tried. The prosecution examined 11 witnesses and produced number of documents. The accused was, then, examined. He denied the prosecution story, but did not produce any evidence in defence. After hearing the learned Public Prosecutor and the learned Counsel for the accused, the learned Sessions Judge found the accused guilty and sentenced him as aforesaid.
(3.) THE learned Sessions Judge has found that the fact that accused inflicted blows with a spade on the person of Govind Ram on April 25 1985 is amply established by direct evidence of PW 2 Hari Ram and PW 3 Chaman Lal, who had reached the spot while Misra was inflicting the blows on Govind Ram and it is fully corroborated by the evidence of Jai Shanker son of Govind Ram, to whom, Govind Ram had narrated the story when he reached the spot. As Govind Ram was in serious condition at that time and later on died, the dying declaration made by him orally before Govind Ram is, therefore, admissible and corroborates the direct evidence. He has further found that this fact further stands corroborated by the medical evidence given by Dr. M L. Rajpurohit, who examined Govind Ram when he was first brought to the hospital at Sanchore and had found the following injuries on his person: (1) Incise wound 3' X 3/4' X 1/2' horizontally placed over upper lip just below nose cutting upper lip in middle extending upto mandible; (2) Incised wound 2' X 3/4' X bone deep horizontally placed extending from outer aspect of right upper lip to zygomataustic grooves; (3) Incised wound 3' X 3/4' X bone -deep horizontally placed over right half of occipital region 3' from right ear; (4) Abrasion 3 -l/2' X 1' vertically placed on lateral aspect of right fore -arm below elbow; (5) Abrasion 1 1/2' X 3/4' vertically placed on lateral aspect of right arm 1 -1/2' above elbow. He has further stated that these injuries could have been caused by a spade. Dr. Rajendra Purohit, who performed the post -mortem examination on the dead body of Govind Ram also corroborates the evidence of Dr. M.L. Rajpurohit. He also states about these injuries and further that on opening the skull of Govind Ram he found blood collected on the right side as also in the duramater on both the sides of skull. He also found that lower part of the brain had depressed. According to him, Govind Ram died on account of shock on the head injury, which was sufficient in the ordinary course of nature to cause death. The story is further supported by the recovery of the axe, which was found to be stained with human blood on chemical and serological examination and also by the clothes which were taken in possession by the police at the time of the arrest of the accused, which were stained with blood. Thus according to the learned Sessions Judge, it was amply established that the injuries on the person of Govind Ram had been inflicted by the accused Misra. On the question of nature of the offence, the learned Sessions Judge was of the opinion that since only one blow with the spade had been caused on the head, which resulted into a linear fracture and the other injuries were caused on the other non -vital parts of the body, the accused cannot be held guilty under Section 302, IPC as it appeared that the injuries intended to be inflicted by him were not sufficient in the ordinary course of nature to cause death, although the doctor has opined that the injuries were sufficient to cause death in the ordinary course of nature. He, therefore, convicted him under Section 304, Part -II, IPC. ;