JUDGMENT
K.S. Lodha, J.
1. The only contention raised before us by the learned Counsel for the appellant is that even accepting the material on record, the accused could not have been convicted Under Section 302 IPC but he could have been held guilty only Under Section 304 Part-I IPC. He does not contest the fact that it was the accused who had given blows with a pair of scissors on the person of the deceased Dalchand. How ever, his; contention is that in the manner and in the circumstances in which these blows were inflicted by the accused, the accused could not be imputed the intention of causing the death of Dalchand or causing such injuries to Dalchand as were sufficient in the ordinary course of nature to cause death.
2. The finding of the learned Sessions Judge in para No. 23 of his judgment dated 5-10-83 is that the deceased Dalchand happened to pass in front of the shop of the accused Bheru Lal, while Bheru Lal was giving hair dressing to one Jagdish, the accused abruptly left hair dressing and gave blows with the scissors on the person of Dalchand. He has, how ever, added that the blows were given on the vital part of the body, namely, part of the neck and chest. He was also of the opinion that the incident did not take place at the shop of Dalchand but had taken place a little away from the shop of Jagdish and after receiving the injuries, the deceased Dalchand went towards the shop of Jagdish and fell down near it. As already stated above, it is not in dispute that this incident had taken place on 7-2-82 at about midday and the report about this incident had been lodged by one Ramesh Kumar PW 1 a Police Station, Bhadesar at about 4.30 p.m.
3. The dead body of Dalchand was examined by Dr. R.D. Bhatt and he bad found the following injuries on his person:
(1) Incised wound 3-1/2″ x 1″ x 2″ deep on Right axilla on Anterior axillary wall dividing all the muscles subcutaneous tissue and blood vessels.” The Humerus head is exposed angular Anti-mortem;
(2) Incised wound 2″ x 1″ x 1/2″ Right Arm front side middle part transverse Anti mortem;
(3) Bruises-position, size, nature;
(4) Penetrating wound with smooth margin 1″ x 0.2″ x 2″ just behind medial end of clavicle left Arm.
(5) Incised wound 1-1/2″ x 0.2″ x 0.5″ left pectoral region 2″ above left nipple oblique Antemortem.
The doctor was of the opinion that injury No. 3 had also penetrated pleura. How ever, according to him, it was injury No. 1, which was responsible for the death. He, of course, states that this injury was sufficient to cause his death but has not stated that the injury was sufficient in the ordinary course of nature to cause death.
4. The learned Sessions Judge while considering the question of the nature of the offence, has observed that the accused had caused repeated injuries on the person of the deceased Dalchand abruptly leaving the hair dressing of Jagdish. He further observed that in all four blows were given & out of that injury No. 3 was on vital part of the body causing damage to the lungs. He also pointed out that there had been no exchange of words between the deceased and the accused and, therefore, according to him, the case was one of intentionally causing death.
5. Having heard the learned Counsel for the appellant and the learned P.P. and having perused the record, we are unable to persuade ourselves to agree with the finding of the learned Sessions Judge with regard to the nature of the offence. In this connection, we may point out that the weapon used for causing injuries was a pair of scissor, which is not ordinarily used for causing murder. Then it appears that the incident had taken place all of a sudden without any pre-meditation or prior preparation. According to the witnesses, whose evidence has been accepted by the learned Sessions Judge himself the incident took place while the accused was giving hair dressing to Jagdish in his shop and the deceased happened to pass in front of that shop and at that stage, accused left the hair dressing and went and caused injuries to the deceased. The scissors must have been already in his hands when he was giving hair dressing to Jagdish. It further appears from the evidence of PW 2 that apart from the pair of scissors, the accused also had a razor with him. If he really intended to cause death of Dalchand, he would certainly have used the razor to cut the throat of Dalchand but instead of that, he only used the scissors, As a matter of fact, the prosecution has with-held the genesis of the case and have not disclosed how the incident had started. The best witness in this respect would have been Jagdish but he has not been produced. On the other hand, from the narration in the post-mortem report the story given by the police to the doctor while the dead body was examined, it appears that it was a case of a fight between the two, namely, the accused and the deceased but the eye witnesses are silent in this respect. In these circumstances, this could not be a case of intention of causing death.
6. As already stated above, Dr. Bhatt has stated that injury No. 1 was responsible and sufficient for causing death of Dalchand but he has not stated that this injury was sufficient in the ordinary course of nature to cause death. On the other hand, he has stated in the cross examination in the end that if within 10 to 15 minutes of the receipt of the injuries, proper medical aid would have been given to Dalchand, he may have survived. It will not be out of place to mention that injury No. 1 is not on any vital part of the body. According to the doctor, this injury was on anterior axillary wall dividing all the muscles subcutaneous tissue and blood vessels. The humerus head was exposed. It would thus appear that the deceased met his death on account of excessive bleeding because the injuries could not treated immediately but in the circumstances, it cannot be said that the accused had inflicted the injuries with the intention of inflicted such injuries as was sufficient in the ordinary course of nature to cause death
7. Since the accused had given repeated blows with the pair of scissors on the person of the deceased and injury No. 1 had divided all the muscles subcutaneous tissue and blood vessels leading to excessive bleeding, the accused can only be attributed the intention of causing such injury as was likely to cause death, and, therefore, the case must fall under Part-1 of Section 304 IPC.
8. We, accordingly, partly allow this appeal, set aside the conviction of the appellant Under Section 302, IPC and the sentence awarded thereunder. Instead we convict him Under Section 304, Part-I, IPC and sentence him to seven years’ rigorous imprisonment with a fine of Rs. 300/-, in default of payment of fine; we further sentence him to two months’ rigorous imprisonment.