JUDGMENT
Shyam Sunder Byas, J.
1. Accused Barishal Singh has come up in appeal to challenge his conviction He was convicted under Section 302, IPC and sentenced to imprisonment for life along with a fine of Rs. 300/-, in default of the payment of fine to further undergo six months rigorous imprisonment by the learned Sessions Judge, Balotra, vide his judgment dated October 31, 1981.
2. The prosecution case, which is short and simple, may briefly be stated as under. PW 4 Kishore singh is the real brother of the deceased-victim Phoosa. The appellant is the son of their another brother Chainsukh. The three brothers have a field in Mauja Aklpura P.S. Gudda Malani district Barmer. They were cultivating it in separate portions though it was recorded as joint in their names in the revenue records, Phoosa wanted to sell his portion to one Bhanwara. This was resented to by the appellant. The said negotiation annoyed and irked him. At about 11.30 a m on April 10, 1981, Phoosa was going to his Dhani with a pot of water on his head. His Dhani is situate in his portion of the joint field. The accused went behind him with a lathi and knife. He struck a blow with his lathi on the feet of Phoosa, Phoosa fell down. Thereafter the accused struck blows on the back of his head with the lathi. He also inflicted injuries with his knife to Phoosa. Phoosa did not survive and passed away instantaneously on the spot. Before inflicting the blows to the victim, the accused shouted as to why he (Phoosa) was selling his share in the field and that he would kill him, PW 3 Dansingh who happened to pass that side, on seeing the incident raised the cries. Hearing his cries Kishoresingh (PW 4) also rushed to the spot. The accused left the place and took to heels. PW 3 Dansingh immediately went to Police Station, Gudda Malani and verbally lodged report Ex. P 2 of the occurrence at about 2.30 p m. on the same day. The police registered the case and proceeded with investigation. The Station House Officer Laxmansingh arrived on the spot, inspected the site and prepared the site plan. He also prepared the inquest report of the victim’s dead body. The autopsy on the victim’s dead body was conducted on April 11, 1981 by PW 8 Dr. Patel the then Medical Officer Incharge Government Dispensary, Gudda, Malani. He noticed the following ante mortem injuries on the victim’s dead body:
(1) Punctured wound 1″ back to right pinna near mastoid region 1″ x 1″ x 2″ grievous-sharp, jugalar vein and artery cut;
(2) Incised wound on tip of right hip to laterally 2-1/2 x 1″ x 1″ x 4″ simple sharp;
(3) Bruises two in number at left temporal region just above pinna both are 1-1/2″ x 1″ in size and depression grievous blunt.
The doctor was of the opinion that the cause of the death of the victim was head injury and haemorrhage. The post mortem examination report prepared by him is Ex. P 9.
3. The accused was arrested on April 11, 1981. At the time of this arrest, he was wearing Dhoti (Article 6) which was found stained with blood. It was seized and sealed. In consequence of the disclosure statement made by the accused on April 11, 1981, one knife and one lathi were recovered. On chemical examination the Dhoti of the accused and the lathi & knife were found stained with human blood. On the completion of the investigation, the police submitted a challan against the accused in the Court of Judicial Magistrate, Barmer, who, in his turn, committed the case for trial to the Court of Sessions The learned Sessions Judge framed a charge under Section 302 IPC against the accused, to which he pleaded not guilty and claimed to be tried. In support of its case the prosecution examined nine witnesses and filed some documents. The defence taken by the accused was that he has been falsely implicated. He denied his presence on the spot of the occurrence and pleaded that he was in village Barasan on the day of the alleged incident. On the conclusion of the trial the learned Sessions Judge held the charge duly proved against the appellant and found no merit or substance in the defence put forward by him. The accused was consequently convicted and sentenced as mentioned at the very out-set.
4. We have heard the learned amicus curiae and the learned Public Prosecutor. We have also gone through the case file carefully.
5. In assailing the conviction of the appellant, the first contention raised by the learned amicus curiae is that PW 3 Dansingh and PW 4 Kishorsingh have been falsely introduced as ocular witnesses of the incident It was argued that there was no occasion for PW 3 Dansingh to be present on the spot. He was merely a chance witness, PW 4 Kishoresingh was the real brother of the deceased victim. His conduct shows that he had not seen the incident. He did not proceed to the Police Station to lodge the report. It was, on the other hand submitted by the learned Public Prosecutor that PW Dansingh is an independent person who was not averse to the accused. He had explained as to how he happened to pass in the field of the incident, PW 4 Kishorsingh no doubt is the real brother of the deceased-victim, but he is also the real uncle of the accused. As such it cannot be expected from him that he would falsely implicate the accused and connect him with the murder of his brother. We have taken the respective submissions into consideration.
6. Needless to add that the fate of the case looms largely on the testimony of PW 3 Dan Singh PW 4 Kishore Singh. They have claimed to have seen the incident. In case they are found truthful witnesses there is no escape for the accused.
7. PW 3 Dan Singh deposed that on the day of the incident he was going from his village Barasan to Gudda for making some purchases. While he happened to pass through the field of the incident, he noticed the deceased Phoosa going to his Dhani with a pitcher of water on his head. He also noticed the accused going behind Phoosa with a lathi in his hand. The accused struck a blow of his lathi on the feet of Phoosa. Phoosa fell down. The witness further stated that he raised cries, and asked the accused not to inflict any injury to Phoosa. He rushed towards the victim, but before he could reach there, the accused struck blows on the head of Phoosa with his lathi He also inflicted an injury with his knife to Phoosa. Hearing the cries, PW 4 Kishore Singh arrived there The accused was shouting aloud as to why Phoosa was selling his share in the field and that he would kill him. PW 4 Kishore Singh deposed that hearing the cries, he rushed to the spot where Phoosa was lying down. He saw the accused inflicting an injury on the waist of Phoosa with his knife. Dansingh (PW 3) was also present there. The accused took to heels. He went to Phoosa and found him dead. There was profuse bleeding from the wounds of Phoosa and his clothes got drenched with it. Both these witnesses were cross-examined at length, but nothing could be elicited which may make their presence on the spot suspicious. No reasons were subscribed in the trial Court nor before us as to why PW 3 Dansingh falsely implicated the accused on a grave charge of murder. Nothing was suggested to him in cross-examinations that he was averse to the accused or had a soft corner for the deceased victim. Dansingh (PW 3) is an independent witness and we see no risk in treating him to be a witness of truth. It was he who promptly went to the Police Station and lodge i the FIR. The FIR was lodged within three hours of the incident. The distance between the place of incident and the Police Station is ten kilometers. The conduct of PW 3 Dansingh is natural and aids to his credibility. PW 4 Kishore Singh is, no doubt, the real brother of the deceased-victim. But he is also the real uncle of the accused. Had he not seen the incident, we are unable to conceive that he would have falsely implicated the accused. His Dhani is situate nearby the place of the incident and his presence on the spot was. therefore, quite natural. The learned Sessions Judge, after a carefully scrutiny of their testimony, found that they were witnesses of truth. Having scrutinized their evidence, we are unable to take a view different from that taken by the trial Court. The testimony of both these eyes witnesses leave no room for doubt that it was the accused and accused alone who had perpetrated the crime and killed his uncle Phoosa The first contention thus, fails.
8. It was next contended that the offence made out does not fall with in the admit of Section 302 IPC. The deceased was the real uncle of the accused and the accused never intended to cause his death. The intention to kill is not there. It was further argued that according to Dr. Patel, the head injury of the victim was sufficient to cause his death. The doctor did not state that the head injury of the victim was sufficient to cause death in the ordinary course of nature The offence therefore, made out is that under Section 304 IPC. Reliance in support of the contention was placed in Kachwa v. State of Rajasthan 1985 Cr. LR (Raj.) 121, Sabalsingh & other v. State of Rajasthan 1985 Cr. LR (Raj.) 455, Gopal Lal v. State of Rajasthan 1985 Cr. LR 156, Suraj Mal v. State of Rajasthan 1985 Cr. LR (Raj.) 107 Dana Ram v. State of Rajasthan, 1986 RLW 240 and Sarjudas v. State of Rajasthan 1986 RLW 268. We have gone through these decisions and are of the opinion that none is applicable to the facts of the case in our hand.
9. Here in the instant case, there are overwhelming circumstances to show that the accused intended to cause the death of Phoosa. The intention of causing death may be manifested by words or deed of the accused. Both the eye witnesses have stated that the accused was shouting aloud as to why the victim was selling his share in the field and that he would kill him. It is there on the record that the deceased Phoosa wanted to sell his share in joint field to Bhanwara, it was resented to by the accused. The intention to sell his share had irked the accused. The accused had, thus, a strong motive which intention ignited him to finish the victim. Intention may be inferred from the motive & the strong motive exhibits the intention of the accused. Moreover, in deciding the question of intention the mature of the weapon used, the part of the body on which the blow is landed, the force of the blow and the number of blows are the important factors to be taken into consideration. Here in the instant case the victim was a helpless person. He was going on foot with a pot of water on his head. He was thus, unable to put any resistance to the accused. The accused came from behind and struck the first blow on the victim’s feet so as to fell him down. When the victim fell down the accused struck blows on his head with a Lathi. It is not a case where a single blows was landed. Here is a case where the blows were repeated more than once. When Lathi blows are repeated more than once on the vital and vulnerable part as head the intention of the assailant to cause the death is apparent. The infliction of the blows to the victim was, thus premeditated and calculated He had, resolved to cause the death of the victim The case, therefore, fails within the ambit of Clause Firstly of Section 300, IPC. Apart from that, Dr. Patel had categorically stated that the head injury was sufficient to cause death. In cross-examination he reiterated that the head injury was so severe that the survival of the victim despite the best medical treatment was not possible. The head injury was, thus, sufficient in the ordinary course of nature to cause death. The case is therefore, also governed by Clause 3rdly of Section 300, IPC The offence made out would, therefore, be punishable under Section 302, IPC.
10. In the decisions relied upon by the learned amicus curiae, either the intention to cause death was not there or the injuries were not found sufficient in the ordinary course of nature to cause death. In these decisions, no repetition of blows was there. Here in the instant case, the position is just the reverse, as discussed above.
11. No other contention was raised For the reasons discussed above, we find that the accused was rightly convicted and sentenced under Section 302 IPC. No interference is called for.
12. The appeal of the accused is consequently dismissed.