K. S. SIDHU, J. - (1.) THIS is a petition of appeal presented by the convict, namely, Bhagwana through the Superintendent of Jail, Jaipur, from a judgment and order, dated November 13, 1976, passed by the learned Sessions Judge, Jhunjhunu, whereby the appellant was convicted and sentenced as under: (i) five years rigorous imprisonment and a fine of Rs. 1,000/- or in default further rigorous imprisonment for six months under sec. 304 Part II I. P. C, relating to the death of Malaram. (ii) two months rigorous imprisonment under sec. 323 I. P. C. relating to the hurt caused to P. W. Matu Ram. The two sentences were ordered to run concurrently.
(2.) THE case of the prosecution resulting in the convictions and sentences as aforesaid was that on July 26, 1976, at about 2 pm. in village of Dhani Othooni Police Station Jhunjhunu, the children of Bhagwana accused on one side and his brother PW. Matu Ram on the other quarrelled amongst themselves. THE quarrel escalated to the extent of involvement of their womenfolk in it. It is alleged that accused Bhagwana's wife began to hurl abuses at Maturam's family. Malaram deceased, father of accused Bhagwana and P. W. Maturam, went to the house of accused Bhagwana in an attempt to intercede and pacify Bhagwana and his wife. Bhagwana, it appears, was not in a mood to listen to him. THE attempt of Malaram deceased to pacify Bhagwana and his family resulted in a scuffle between him and Bhagwana. P. W Matu Ram, Kishan and Keshoram intervene and took Malaram away from the bouse of Bhagwana. THE part including Malaram deceased had gone a short distance from the house of Bhagwana accused when Bhagwana again attacked his father from behind. Bhagwana who had picked up a 'moosal' in the meantime from his house struck the weapon on the head of his father. THE weapon was struck with such a force that it broke into two parts. Bhagwana also attacked his brother Maturam and caused several injuries to him. Malaram was immediately removed to the hospital in the town of Jhunjhunu which is at distance of 9 miles from the village. A. S. I. Govind Sahai, P. W. 8 on being informed, reached the hospital and found that Malaram was in extremis and therefore not able to make any statement. He, therefore, recorded the statement of P. W. Keshoram, an eye witness, who happened to be present in the hospital at that time. This statement was recorded at 8 pm. and sent to the police station for a formal F. I. R. being registered on its basis. After investigation the police submitted a report against Bhagwana for his trial under sec. 302 and 323 I. P. C. Bhagwana Ram was committed to the court of Sessions in due course. The learned Sessions Judge tried Bhagwana Ram on a charge of murder and causing hurt punishable under secs. 302 and 323 I. P. C. respectively. The accused denied the charges framed against him and claimed to be tried. During the trial, the prosecution examined, among others, PW Matu Ram, Keshoram, Agra Ram, Kishna, Dr. H. K. Gupta and A. S. I. Govind Sahai. On a consideration of the evidence produced before him, the learned Sessions Judge came to the conclusion that Bhagwana had inflicted the 'moosal' blow on the head of his father Malaram without an intention to cause his death or causing such bodily injury as was likely to cause death. Ha, therefore, found him guilty under sec 304. Part II LP G. in respact of death of Malaram and convicted him thereunder and sentenced him to five years rigorous imprison-ment and a fine of Rs 1,000/ or in default further rigorous imprisonment for six months. He also found the accused guilty of causing hurt to PW Maturam, convicted him under sec. 323 I. P. C. and sentenced him to rigorous imprisonment for two months. As already stated, the two sentences were ordered to run concurrently.
(3.) BHAGWANA, as already stated, has submitted a petition of appeal through the Jail authorities. Since he was unrepresented, Shri Ranvir Singh Advocate was appointed Amicus Curiae to prosecute this appeal on his behalf. It may also be mentioned here that there is no cross-appeal from the side of the State for enhancement of the sentence. After bearing both sides, I am of opinion that the charge under sec 302 I. P. C. framed against the petitioner appellant had been fully brought home to him on the strength of evidence of, among others, PWs Maturam, Keshoram, Agru Ram, Kishan, and Dr. H. K. Gupta. It is not disputed that Malaram died as a result of the head injury infliced to him by the petitioner appellant with a 'moosal'. P. Ws. Maturam, Keshoram, Agru Ram and Kishan, the eye witnesses of the occurrence, have stated with one voice that the petitioner appellant attacked Malaram deceased with a 'moosal' in their presence and that he inflicted the fatal blow on the head of the deceased with that very weapon. It will be seen from their statements that they had earlier interceded and saved Malaram from being belaboured by the petitioner in the latter's house. After rescuing Malaram from his aggression in his house, these witnesses, along with Mala Ram, were on their way back when he picked up a 'moosal' from his house followed them and struck the fatal blow on the head of Mala Ram deceased. In the circumstances, it cannot be seriously questioned that Bhagwana definitely intended to inflict a blow to his father which he did inflict with the heavy weapon, which he had picked up from his own house after his father and others had just left there. The conclusion is therefore inescapable that Bhagwana caused the death of his father Malaram by intentionally causing such bodily injury to him which was sufficient in the ordinary course of nature to cause death. There is clear evidence on the point that the injury was sufficient in the ordinary course of nature to cause death. Dr. H. K. Gupta has testified that the cause of death of Malaram was haemorrhage due to the head injury and the said injury was sufficient in the ordinary course of nature to cause death. The weapon of offence i. e. 'moosal' Ex. A-l was recovered during the course of investigation in consequence of the information supplied by accused Bhagwana. This weapon was produced in court during the trial The learned trial Judge before whom this 'moosal' was produced has himself described it in his judgment as a very heavy weapon. It is then a matter of common knowledge that 'moosal' is certainly a heavy weapon and that if a blow is sturck on the head with such a weapon chances of survival of the victim are minimal. ;