- (1.) THIS matter comes up on the bail application of appellant Lobha, but, learned counsel for the appellant submits that the appeal itself may be disposed of at this stage since he is not challenging the prosecution story as such, but only contends that the offence under sec. 302, I. P. C. is not made out against the appellant. Learned Public Prosecutor has no objection to the appeal being heard at this stage. We, therefore, proceeded to hear the appeal.
(2.) THE prosecution story, briefly stated, is that there was some dispute regarding a field between deceased Ghisa and the present accused-appellant Lobha and his companions Hari Ram, Ratanlal, Hajari, Bheru, Lobha and Veni Ram. On 22. 6. 86, the accused persons are said to have gone to the field where Ghisa was already sowing 'jawar'. P. W. 2 Balu, P. W. 5 Pushpa, P. W. 6 Sohni and some other persons were also nearby in the field. THE accused persons, who were armed with 'lathi' and axe started giving blows to Ghisa. It is alleged that accused Lobha had aimed a blow on the neck of Ghisa, but because Ghisa fell down, the blow fell on his leg. THE other associates of Lobha gave beatings to some other witnesses, who were present at the spot. According to the doctor. Ghisa had received a cut wound 5" x 4" x 1" on the back side of his right knee. A-11 veins and muscles and tendon had been cut. The injury led to profused bleeding resulting into the death of Ghisa after sometime. On trial, learned Addl. Sessions Judge, Chittorgarh convicted accused Lobha under sec. 302, I. P. C. and his associates under sec. 148, 323 read with Sec. 149 I P. C. He also convicted Lobha under Sec. 148, 323 read with sec. 149, I. P. C. and sentenced Lobha to imprisonment for life and a fine of Rs. 50/- on the first count to one years' rigorous imprisonment and a fine of Rs. 250/- under sec 148 and six months' rigorous imprisonment and a fine of Rs. 250/- under sec. 323/149, I. P. C. So far as the other accused persons Hari Ram, Ratanlal, Hajari, Veniram and Bheru are concerned, he gave them benefit of probation by his judgment dated 15. 7. 88. Only Lobha has come up in appeal before lis and the question raised before us is only about the nature of offence. On a perusal of the evidence, it appears that there were three witnesses, who had seen the incident from the very brginning and some other witnesses came later when Ghisa had already received the injuries. Out of these three witnesses P. W. 2 Balu, who is brother of the deceased has of course stated that the blow was aimed at the neck of Ghisa. but because Ghisa fell down, the blow fell on his leg, but, the other two eye-witnesses P. W. 5 Pushpa and P. W. 6 Sohini, who are daughters of the deceased, have not corroborated him. They did not state that the blow was aimed at the neck or head of the deceased. They clearly stated that the blow was given on the leg itself. In view of the evidence of these two eye witnesses, the version given by Balu does not appear to be reliable and on the very face of it, it appears to be an exaggerated version because in the F. I. R. what had been stated was that when the blow was aimed at the neck, Balu jumped and in that process, he received the injuries on his leg, whereas now Balu has changed the version and states that Ghisa had fallen down and, therefore, blow came to fall on his leg. It is difficult to accept that when a blow is aimed on the head or neck it would fall on the leg in these circumstances, and therefore, the statements of P. W. 5 Pushpa and P. W. 6 Sohini appear to be more reliable and the only conclusion, therefore, can be that the blow was aimed only at the leg it fell on it. It is also pertinent to note that the initial intention of the accused persons appeared only to dispossess Ghisa, who was at that time present in the field and the accused persons claimed that field to be their. Therefore also, it cannot be envisaged that they really intended to kill Ghisa or to inflict any injury which would be sufficient in the ordinary course of nature to cause death. The learned Additional Sessions Judge has come to the conclusion that the injury was severe leading to profuse bleeding and ultimate death of the deceased and, therefore, he was of the opinion that the offence would fall under sec. 302, I. P. C. , but we are unable to endorse his view. The doctor does not state that the injury was sufficient in the ordinary course of nature to cause death and the learned Additional Sessions Judge has tried to stretch the statement of the doctor. The leg is not a vital part of the body and the injury of the dimensions referred to above would ordinarily not be fatal but unfortunately in this case on account of profuse bleeding and late medical aid Ghisa succummbed to the injuries. As already stated above, there could not be any intention on the part of the accused to cause death of Ghisa and when the injuries caused to Ghisa was not sufficient in the ordinary course of nature to cause death, the offence cannot fall under any of the clauses of s. 300. Only a single blow was inflicted on the leg. In these circumstances we are clearly of the opinion that the conviction of the appellant under s. 302, I. P. C. was not at all proper and the only offence of which the appellant can be held guilty is one under sec. 326, I. P. C. We accordingly, partly allow the appeal. The conviction of the appellant under sec. 302, I. P. C. and the sentence passed thereunder are set aside; instead he is convicted under s. 326, I. P. C and is sentenced to five years' rigorous imprisonment and a fine of Rs. 200/- in default of payment of fine to undergo further two months' rigorous imprisonment. So far as his convictions under Sec. 148. and 323 read with s. 149, I. P. C. are concerned, they have not been challenged before us and therefore, they are maintained. All the substantive sentences shall run concurrently. .;