JUDGMENT
Jas Raj Chopra, J.
1. This appeal is directed against the judgment dated January 17, 1981 passed by the learned Addl. Sessions Judge, Sirohi, whereby the learned lower court has convicted the accused-appellant Sarjoo Das under Section 302 IPC and has sentenced him to imprisonment for life together with a fine of Rs. 100/- and in default, to further undergo one month rigorous imprisonment.
2. The facts giving rise to this appeal briefly stated are; that Sarjoo Das was married to one Kamla, daughter of deceased Bajrangdas. It is alleged that Kamla and her three sisters were married on the same day about four years before the occurrence. However, Kamla alone took her Gona and lived with her in laws for about two years but later, some allegations were made against her that she was carrying on with her father-in-law and, therefore, she came to her father’s house at village Nimbaj. After about 15-20 days of this, accused Sarjoodas came to take her back but she refused to accompany him whereupon, he tried to drag her, Her mother and others tried to intervene and raised a hue and cry, where upon, their neighbour Khoomaram etc. came and they prevailed over Sajoodas not to take away Mst. Kamla. Later, accused went to Ahemdabad where he was working. It may be worthwhile to mention here that Bajrandas was not present at that time in the house. It is alleged that Sarjoodas became enraged on account of this incident and he, therefore, planned to kill his father-in-law Bajrang Das. He then purchased one axe (Art. 10) from one Barkat Khan at Jalore on December 11, 1979 and then he proceeded to his father-in-laws house situated at Nimbaj on December 11, 1979 at about 8 p.m. His mother-in-law, grand-mother-in-law and his sister-in-laws were present in the house but his wife Mst. Kamla was not there. She has already gone to her maternal uncle’s house. As soon as he reached his in laws house, he asked about his father-in-law. PW 5 Mst. Sarjoo, his mother-in-law, told him that he has gone to the shop of Nawal Mal Jain. He then asked his mother-in-law to call him because he has some work with him. At that time, he was armed with an axe. PW 6 Mst. Pushpa (younger sister of Mst. Kamla), who has been married to the younger brother of accused Sarjoodas, went to the shop of Nawalmal Jain to call her father. Bajrangdas came to his house followed by Mst. Pushpa. As soon as he reached near the accused Sarjoodas, Sarjoodas inflicted a blow with an axe on his face which hit him on his mandible region. He immediately fell down. Mst. Pushpa, Mst. Dariya, Mst. Sarjoo and Mst. Sarjoo’s mother-in-law started crying which attracted the attention of PW 1 Raghunathsingh who came to purchase some Bidis from the shop of Nawalmal Jain. He immediately ran towards the house of Bajrangdas. He saw one man running from the house of Bajrangdas armed with an axe. When he reached inside the house of Bajrang Das, he was informed that Sarjoodas has killed Bajrangdas. He then called certain persons of the village and later reported the matter at Police Station, Andhra. The report was initially recorded in the Rapat Rojnamcha (Ex. 1A) and on the basis of that, a formal FIR (Ex. P. 2) was drawn. This report was made in the night at 0.15 a.m. on December 12, 1979. PW 1 Raghu Mathsingh went there to report the matter in the jeep of Shri Harisingh, who also accompanied him. They also informed PW 2 Laxmandas, who is brother of the deceased, about the incident. After the report was lodged, the police immediately came into action. The site was inspected by the police and the site inspection memo Ex. P. 3 was prepared. The description memo (Ex. P. 4) of the dead body of Bajrangdas was prepared. The blood stained soil and controlled soil etc. were taken into possession vide memo Ex. P. 5. A report under Section 174 Cr.PC was prepared and it has been marked Ex. P. 6. The accused Sarjoodas was arrested vide memo Ex. P. 22 and on his information and at his instance, a blood stained axe was recovered. The post mortem report of the deceased has been marked Ex. P 25. The axe (Art. 10) was put for identification and the identification memo has been marked Ex. P. 10. AH the recovered articles were sent for chemical and serological examination vide letters Ex. P. 15 and 17. The chemical and serological reports have been marked Ex. P. 26 and 27 respectively. The viscera of the stomach of the deceased Bajrangdas was also sent for chemical examination.
3. After usual investigation, the case against the accused Sarjoodas was challaned in the court of learned Munsif and Judical Magistrate, Sirohi from where it was committed for trial to the court of learned Additional Sessions Judge, Sirohi. The accused was charged with the offence under Section 302 IPC. He did not plead guilty to the charge and claimed to be tried whereupon, the prosecution examined as many as 17 witnesses in support of its case. The statement of the accused Sarjoodas was recorded under Section 313 Cr.PC. He examined two witnesses in his defence. After hearing the parties, the learned lower court came to the conclusion that the accused was annoyed with his father-in-law because his wife was not being sent with him and, therefore, he planned a murder of his father-in-law. He purchased one axe from Jalore and later, when he went to the house of his father-in-law on the date of the occurrence, he did not find his father-in-law there. He sent for his father-in-law through the agency of his mother-in-law and when his father-in-law came, he struck a blow on his face with the axe and that has resulted in his death. It has, therefore concluded that in this case, no substitution was possible. There was strong motive for the commission of the crime and the accused has actually committed this crime. As per the Doctor, the injury inflicted by the accused on the deceased was sufficient in the ordinary course of nature to cause his death and hence, it has held the accused-appellant Sarjoodas guilty of the offence under Section 302 IPC.
4. We have heard Mr. S.R. Singhi, learned Counsel for the accused appellant and Mr. L.S. Udawat, learned Public Prosecutor for the State. We have carefully gone through the record of the case.
5. Mr. S.R. Singhi, learned Counsel appearing for the accused-appellant has submitted that he does not challenge the incident. According to him, it has been proved beyond doubt that it was accused Sarjoodas who has inflicted an axe blow on the face of the deceased Bajrangdas but this blow was not repeated. The accused only intended to chastise and give a threshing to his fater-in-law to teach a lesson to him for not sending his wife with him. He never intended to cause his death. If at all, he intended to cause his death, he would have Inflicted number of injuries to him. It was submitted by Mr. Singhi that after infliction of the biow, as per the evidence on record, he made no attempt to give any second blow. Rather it has come in evidence that he stood there for some time and then ran away after the ladies raised hue and cry and the others started arriving at the spot. Thus, the accused had an opportunity to inflict more blows to Bajrang Das but he did not do so. Even the Doctor has stated that the probable eause of death was shock and haemorrhage due to injury on the left side of the face. Thus, the Doctor was not sure about the cause of death and hence, at best, the case of the accused is covered by the provision of Section 304, Part II, IPC. He has relied on number of authorities in this respect. We shall discuss them later.
6. Mr. Singhi has further stated that the accused has remained in custody from December 16, 1979 to date and, therefore, now he should be released from the custody.
7. Mr. L.S. Udawat, learned Public Prosecutor appearing for the State has submitted that it is case of planned murder. There was strong motive to kill his father-in-law and in order to achieve the object, he has purchased one axe from Jalore from PW 10 Barkat Khan and later, he went to his in-laws-honse to kill his father-in law. As father-in-law was not there, he was called and as soon as he came, he strucked an axe blow on his face and that blow, even if it was not repeated, was fatal and was sufficient in the ordinary course of nature to cause his death and, therefore, the learned lower court was perfectly justified in holding the accused guilty of the offence under Section 302 IPC. According to Mr. Udawat, the accused deserves no leniency.
8. We have given our most earnest consideration to the rival submissions made at the bar.
9. In this case, PW 3 Mst. Kamla has been produced to prove the motive. She has stated that she and her sister Pushpa were married to the accused and his younger brother Narsing Das respectively. However, it was only she who started living in her in-laws-house. Her mother-in-law was the step mother of her husband. She started accusing her of carrying with his father-in-law and, therefore, she brought this fact to the notice of her husband but he too, sided with her mother-in-law. She came back to her father’s house and later, the accused came there to forcibly take her away but the neigh-bourers intervened and he could not succeed in his attempt. Even at the time of the occurrence, she learnt from reliable sources that her husband has returned from Ahmedabad and, therefore, she left her father’s house so that she could not be forcibly taken away by her husband and went to the house of her maternal-uncle. She was not present when her husband came to her father’s house on the date of the incident.
10. PW 5 Sarjoo who is widow of Bajrang Das and PW 6 Pushpa who is daughter of Bajrang Das and who has been sent to call her father Bajrang Das and PW 7 Dariya who is younger sister of Pushpa have been produced by the prosecution as alleged eye witnesses of the occurrence. All the three witnesses have made a consistent statement that at the time of the occurrence, the accused arrived at their house at about 3 p.m. One lantern was burning at that time in the Osari. The accused was armed with an axe. As soon as he came there, he asked about Bajrangdas and when Mst. Sarjoo told him that he has gone to the shop of Nawalmal, he told them that he has some work with him and so, he should be called. All these witnesses have further stated that Mst. Sarjoo than asked Mst. Pushpa to go and call her father. Mst. Puspha has stated that she then went to the shop of Nawalmal and told her father that the accused has come and he was calling him. Her father then immediately started for his house. She followed him. It is then alleged by all these eye witnesses, that as soon as Bajrangdas came near the Chhapar, the accused struck an axe blow on his face, by which, he fell down. After the infliction of the axe blow, the accused stood there for some time. The ladies of the house i.e. these three witnesses and the mother of Bajrangdas started crying where upon, PW 1 Raghunathsingh ran towards their house and the accused ran away with his axe. PW 1 Raghunathsingh has seen the accused running from the house of Bajrangdas. He has stated at the trial that he identified the accused but in the FIR and in his police statement, he has only stated that he saw one man wearing one white Dhoti and shirt who had one Angochha tied on his head running from the bouse of Bajrangdas. He did not name the man either in the FIR or in the Police statement. He did not get it recorded in the FIR that he recognised that man as Sarjoodas. Thus, it may be held that he did not identify the running man but he saw his clothes and further saw the he was armed with an axe when he was running from the Guwari of Bajrangdas. The accused was also seen ruuning with an axe by PW 4 Khumaram. The statements of all these witnesses including the eye witnesses when considered together clearly establish the fact that it was accused Sarjoo Das alone who has inflicted an axe blow to Bajrangdas. The blood stained axe has been recovered from this accused on his information and at his instance. This axe was found stained with human blood as per Serological report Ex. P. 27. We are, therefore, of the opinion that the learned lower court was perfectly justified in coming to the conclusion that it was accused Sarjoodas who has inflicted an axe blow to deceased Bajrangdas,
11. We next take up the medical testimony. PW 17 Dr. Ramesh Chandra Gupta has stated that he found one incised wound of the size of 4 1/2″ x 1 3/4″ x 3 1/2″ over the left side of the face, oblique from above down ward. It extended from 1″ below the lower part of left ear, upto 1 1/2″ below the middle of the lower lip cutting the mandible bone, muscles, blood vessels, traches and oesophagus. Margins of the wound were regular. Clotted blood was present over the margins of the wound. According to the Doctor, the probable cause of death was shock and haemorrhage due to ‘ injury over left side of the face. According to him. this injury was sufficient in the ordinary course of nature to cause his death. He has further stated that the deceased must have died within 5 minutes of the receiving of this injury. He has proved the post-mortem report Ex. P. 14. He has further asserted that this injury could be caused by an axe like Article 10. When he was asked why he wrote that probable cause of death was shock and haemorrhage, he has stated that he collected visceras and. therefore, he wrote that the probable cause of death was shock and hoemorrhage. Although, he was very definite about the cause of death but he has used the word probable only because he collected visceras otherwise as per him, the accused must have died within 5 minutes of the receiving of the injury and as per him, this injury was sufficient in the ordinary course of nature to cause death, This clearly shows that the injury was very fatal because according to the Doctor it must have resulted in death within 5 minutes of its infliction. Be that as it may, Sarjoodas has inflicted only one axe blow on the face of the deceased Bajrangdas. He had an opportunity to repeat the blows but he did not do so.
12. Mr. Singhi, however, argued that if the accused has really intended to cause the death of the deceased, he might have inflicted a number of blows. It is true that the accused had opportunity to inflict number of blows but he did not do so. He inflicted one blow on the vital organ i.e. face of the deceased and so, it should be taken as proved that he at least intended to cause an injury which was likely to cause his death. If it would have been his intention to cause his death, he would certainly have repeated the blows. In this case, he has not repeated the blows and therefore, it cannot be held that he intended to cause the death of Shri Bajrangdas but the accused actually appears to have intended to cause an injury which was likely to cause the death of Bajrangdas. It was because of this that he came armed with a deadly weapon like an axe and he availed such a vital organ i.e. face of Bajrangdas as soon as he came near him and, therefore, the act of the accused, in our opinion is fully covered by the provisions of Section 304 Part I, IPC.
13. Mr. Singhi drew our attention to a decision of their lordships of the Supreme Court in Hari Ram v. State of Haryana 1983 Cr.LR (SC) 122, wherein a Jelli was thrusted into the chest of the deceased. It was held that the offence made out against the accused was under Section 304 Part II, IPC. In that case, their lordships held that on the evidence it does not appear that there was any intention to kill the deceased, The Jelli was seized all of a sudden and was thrust in the chest of the deceased. Thus, the attack was unpremeditated and there was no intention to kill the deceased. In this case, the attempt was premeditated. The axe was bought from PW 10 Barkat Khan and the accused availed the vital organ of the body of the deceased Bajrangdas by inflicting an axe blow and so, Hari Ram’s case is distinguishable on facts.
14. Mr. Singhi further drew our attention to a decision of their lordships of the Supreme Court in Jagrup Singh v. State of Haryana 1981 SCC (Cr.) 768 wherein the fight took place in the heat of the moment and the Ghandala was used from the blunt side. This decision differs on facts with the present case where the attack was intentional and the axe was used from its sharp side and, therefore, Jagrupsingh’s case does not apply to the facts of the case.
15. In Shankar Kallu v. State of M.P. 1979 SCC (Cr.) 632, the fight took place suddenly without any pre-meditation. Here in the case in hand, the attack was intentional and premeditated and not sudden and so, this ruling too is distinguishable on facts. Some other rulings have also been cited but we need not refer them in detail because their facts are almost in pari-materia with the facts of the cases discussed in detail above.
16. This is a case of intentional attack where the vital organ like face was availed. The only circumstance which is similar to the other cases is that the blow was not repeated. However, when a person avails a vital organ of his victim’s body with such a deadly weapon like axe and commits the crime after proper premeditation, it can safely be held that the accused intended to cause that blow and when the blow is intentional and vital organ of the body is availed for causing that fatal blow which the accused knew that it is likely to cause the death, the accused should be held guilty of the offence under Section 304 Part I, IPC rather than under Section 304 Part II, IPC. In the facts and circumstances of this case, we agree with the learned Counsel for the accused-oppellant that the accused did not intend to cause the murder of his father-in-law because he has not repeated the blow and so, his conviction under Section 302 IPC recorded by the learned lower court cannot be sustained. He can safely be held guilty of the offence under Section 304 Part I, IPC.
17. In the result this appeal is partly accepted. The conviction and sentene of accused-appellant Sarjoodas under Section 302, IPC is set aside. However, he is held guilty of the offence under Section 304 Part I, IPC and is sentenced to rigorous imprisonment for eight years together with a fine of Rs. 100/- and in default of the payment of fine, he shall further undergo one month rigorous imprisonment. The result of this appeal should be notified to the jail authorities so that the accused may undergo the modified sentence imposed against him for the offence under Section 304 Part I IPC.