Ram Deo and Others vs State of U.P.

S. Rafat Alam and R.S. Tripathi, JJ.—This criminal appeal has been preferred against the judgment and conviction dated 8.9.1981 passed by vIth Additional District and Sessions Judge, Gorakhpur in, State v. Ram Deo and 7 others Sessions Trial No. 256 of 1980, Police Station Basgaon district Gorakhpur, holding Appellant Ram Suchit alias Suchit guilty for offences under Sections 302, 148, 324, 323 read with Section 149, I.P.C. and sentencing him to undergo life imprisonment and one year and six months R.I. each for above offences respectively and holding rest of the accused Appellants namely Mewa, Smt. Prabhawati, Smt. Murati, Smt. Kawalbasia and Smt. Sanjira, guilty for offences under Sections 147, 323 read with Sections 149, 324 read with 149, I.P.C. and directing them to furnish a personal bond and one surety each for keeping good behaviour for a period of two years.

As per prosecution story, there had been some dispute between the families of informant Lalji on one side and his real brothers Shyamlal and Ramdeo, Mewa on other side with regard to property. Before bringing the version contained in the first information report on the record, it would be worth noting that except Appellant Ram Suchit and Mewa, rest of the accused and informant Laljee and P.W. 2 Sitaram, deceased Jaglal and his wife P.W. 4 Smt. Phool Kumari are the members of the same family. As per uncontroverted statement of P.W. 1 Lalji accused Mewa, Ramdeo, deceased Jaglal, Shyam Lal, Sita Ram were real brothers. They were the sons of one Ramrati. It is also not disputed that accused Smt. Prabhawati and Smt. Murati are the daughters of above Shyamlal brother of informant Lalji. Smt. Sanjira is the wife of above Ram Deo accused whereas Smt. Manbasiya is the wife of accused Mewa. This relationship has not been challenged. Ram Suchit alias Suchit and Rampati accused are said to be the well wishers and supporters of rest of the accused persons. According to prosecution case, after above Ramrati''s real uncle''s wife. Smt. Janki died and her property was inherited by one Sarupiya who in her turn sold her that share of the joint property in favour of above Shyamlal. It is alleged that above Shyamlal intended to grab the entire property although only half share of the said property was sold to him. In this background of the matter when we take up the first information version, we find that above Shyamlal had filed civil suit for partition of his above property before the Court at Basganon and the Court had fixed a date which was the date of this incident itself. Thus, the parties had strained relations on account of above disputes. The prosecution story is that on 3.3.1980, at about 8.30 p.m. in village Harihar Bhaisa under police station Basgaon, district Gorakhpur, informant Lalji and his brother deceased Jaglal were sitting at their door when all the accused namely Ram Suchit alias Suchit armed with ballam, Ram Deo and Rampati accused armed with farsas, Mewa, Smt. Prabhawati, Smt. Murati, Smt. Kewalwas and Smt. Sanjira armed with lathis came there and attacked Jaglal causing injuries to him. It is alleged that Ram Suchit caused injuries by means of ballam on the abdomen and chest part of above Jaglal, who died on the spot itself. Lalji, Phool Kumari, Sitaram, Jilewa Devi, Katwari tried to intervene but they also suffered injuries caused by the accused persons. They and other witnesses namely Ram Surat, Triveni, Prahlad and other villagers witnesses this incident. On 4.3.1980 at about 5 a.m. a written report was lodged by Lalji at police station Basgaon. Police started investigation of the case on the basis of above report. All the injured were sent for medical examinations at the local hospital at Bansgaon. After completing formalities and preparation of inquest report, dead body of deceased Jaglal was sent for post mortem after completing investigation, S.O. S.P. Rai of Police station Basgaon submitted charge sheet against all the accused under Sections 147, 148, 149, 302, 324, 323, I.P.C.

Before the trial Judge, the accused persons pleaded not guilty and they claimed to have been falsely implicated on account of enmity. In their statements u/s 313, Cr. P.C. accused Ramdeo and Smt. Prabhawati took the defence that the wheat crop sown by Smt. Prabhawati over her land which was purchased by her from Sarupia was standing when she received an information that the said crop was, being illegally harvested by Jaglal and others, she reached there and asked them not to harvest her crop. On this, Jaglal and his men beat her. Smt. Prabhawati stated in her defence that by using hansiya (an implement for harvesting the crops) she tried to defend herself. Same is the defence of accused Ram Deo. Ram Suchit accused in his turn, took the defence that he reached on the spot seeing marpeet over the field with a view to intervene, but he was also beaten by Jaglal and his men. The defence of all other accused is that it was informant''s side who initiated Marpeet, and that they (accused) defended themselves. According to the defence version incident took place in the wheat crop field of Smt. Prabhawati.

Charges under Sections 148, 302, 324/149 and 323/149, I.P.C. was framed against Ram Suchit alias Suchit by trial Judge whereas against accused Rampati and Ramdeo charges under Sections 148, 302/149, 324/149 and 323/149, I.P.C. were framed against rest of the accused. Charges u/s 147, 302/149, 324/149 and 323/149, I.P.C. was framed by the trial Judge.

In support of its case, prosecution examined P.W. 1 Lalji informant-injured, who claimed to be an eye-witnesses of this incident, P.W. 2, is Sita Ram and other injured eye-witnesses, of this incident, P.W. 3 is Ramsurat an eye-witness. P.W. 4 is Smt. Phoolkumari widow of deceased Jaglal-injured eye-witness, P.W. 5 is Basdeo Singh, Head constable who is scribe of chick, first information report and entries of G.D. of the case, P.W. 6 is Dr. P. N. Rai, Medical Officer, Primary Health Centre, Basgaon who medically examined Lalji, Smt. Jileba, Smt. Phoolkumari and Smt. Katwari for their injuries, P.W. 7 is Dr. Ghanshyam Srivastava who completed autopsy of deceased Jaglal and prepared a report of the same, P.W. 8 is constable Istiyak Ahmad who carried sealed dead body for post mortem. P.W. 9 is Sant Lal who has proved hand writing of S.I. Rakesh Rai on the site plan and case diary.

The Court itself examined S.I. S. P. Rai who investigated the case partly and submitted a charge sheet, as a Court witness. The defence examined Harshdeo Rai, Record Keeper of the office of Superintendent of Police and D.W. 2 Dr. S. M. Shukla who medically examined accused Ram Suchit, Ramdeo and Smt. Prabhawati.

The trial Judge after considering the entire evidence available on record, passed the impugned judgment of conviction and feeling aggrieved against this judgment and conviction, present appeal has been filed by the Appellants.

We have heard the learned Counsel for the Appellants and learned A.G.A. at length and have given our thoughtful consideration to the evidence available on record. The point raised from the side of the defence by Sri P. N. Mishra, learned senior counsel appearing on behalf of the Appellants is firstly ; that the trial Judge has committed error in not accepting defence version of right of self defence although it was supported with medical examination reports of the injured accused persons. Secondly, his submission in the alternative is that from the evidence available on the record at the most, only an offence u/s 304, I.P.C., Part II can be taken to have been made out against the Appellant accused Ram Suchit as there is single blow found on the person of deceased Jaglal and there is not evidence to make out the case of intentional murder.

The learned A.G.A. has opposed these arguments and has supported the conviction arguing inter alia, that from the evidence available on record, a case u/s 302, I.P.C. is made out against Appellant Ram Suchit and that the conviction by the trial Judge is justified.

At the very out set, it is worth noting that the alleged incident of marpeet is not denied by defence in the instant case. Considering the defence version of self-defence, the most important question which requires to be decided is as to which party can be taken to be aggressor in this incident. Also it is to be determined by the Court as to whether the version of prosecution for the incident having taken place at the door of informant Laljee or the defence version that the incident took place in the wheat crop field of Smt. Prabhawati accused is correct. In the light of all above, now we proceed to discuss the points raised in this appeal.

Let us take up the 1st point raised from the side of the Appellant in the light of evidence available on record. First of all, it is worth consideration that in the entire cross examination of the eye-witnesses P.W. 1 Lalji, P.W. 2, Sita Ram P.W. 3, Ram Surat and P.W. 4 Phool Kumari there is neither any question nor any suggestion to show that the informant Lalji and his men had been claiming the land over which the wheat crop in question of Smt. Prabhawati accused was said to be standing. There is not a single suggestion to any of these witnesses in their depositions from the side of defence to indicate that there had been any dispute between the parties over above wheat crop. Therefore, in the circumstances of the case, it is not acceptable that the informant and his men would have dared to go to the field to harvest the crop standing thereon during day hours unless they had any such claim.

In this very connection, the statement u/s 313, Cr. P.C. of Smt. Prabhawati accused before the trial Judge is that "Mere pati ne Sarupiya ka khet liya, jisme maine gaihun boya, usko Lalji, Jaglal katne lage, hamne ja ke mana kiya to unhone hame mara, ham chillaye aur hamne hasiya chalakar apana bachav kiya, mere shor par Ram Deo Suchit bachane aye to unheyn bhi mara gaya." On the same point in his statement u/s 313, Cr. P.C. Ramdeo accused Appellant has stated that "Shyamlal ne Sarupiya wale khet me gaihun boya, Jaglal, Lalji use mar rahe the wa Jaglal ki aurat ne mana kiya to Jaglal adi marney lage, tab ham bhi pahunch kar chudane lage, tab hamne mara aur hame bachaney lage."

The statement u/s 313, Cr. P.C. of accused Appellant Ram Suchit is that Ramdeo wa Shyamlal ki aurat ko Jaglal wa Lalji mar rahe they, mai bachaney gaya to mujhe bi Jaglal ne bhale se mar diya.

In view of above statements, when we scrutinise the above statement of Smt. Prabhawati, we find that if at all her defence version is having any limb of truth after all why she would have gone with hansiya after coming to know that her crop was being harvested by informant and his men. In this very connection, when we consider the injuries of Jaglal found by P.W. 7 Dr. Ghanshyam, his injury No. 1. punctured wound inside of the abdomen upper part 1-1/2" ? 1/2" abdominal cavity below the right nipple. Margins clear-cut. Direction from front to backward. The statement of above P.W. 7 Dr. Ghanshyam is that above injury No. 1 could be caused by ''bhala''. It is not acceptable that above injury No. 1 could be caused by any weapon like hansiya. What he has stated in this regard in his cross-examination is that above injury No. 1 could be caused by such hansiya, which had its edges on its both sides and only if it is also pointed out its end of the curb. He has also specifically stated that such hansiya would work as bhala. It is matter of our common experience that hansiya is neither double edged weapon nor, it is a pointed weapon. There is neither any suggestion nor any other material to indicate that the hansiya which was with Smt. Prabhawati was the kind as stated by doctor. Thus, the defence taken by Smt. Prabhawati for using hansiya in her self defence is patently false. On above defence version we have paper exhibit Kha-4 produced by D.W. 1, Harshdeo Rai, Record keeper, before the trial Judge at the instance of defence, wherein Smt. Prabhawati who is applicant of that application has mentioned that the informant and his men "Fasal kate wa dhote rahe."

In this application also there is no mention of using hansiya in self defence by Smt. Prabhawati. Not only this, this application shows that when Smt. Prabhawati and Ramdeo, her father-in-law, reached on the field, the accused were not only harvesting the crop but they were also carrying the load of harvested crop. This application is, thus, in contradiction with the aforesaid statements recorded u/s 313, Cr. P.C. wherein only harvesting by informant and his men has been stated. In the cross-examination of the witnesses we find that from the side of the accused persons at some place it has been suggested that the loads of wheat crop brought by the informant and his men from the field after harvesting the same and on that account after hot exchanges this incident took place. If this defence is taken into consideration, the story of defence for Marpit having taken place in the wheat crop field itself becomes totally unacceptable. As already observed, after all why and how Smt. Prabhawati along with other accused with their arms would have reached there with hansiya after receiving information about illegal harvesting of her crop.

In our view, application exhibit Kha-4 appears to have moved after due consultation with a view to create defence. In the light of these materials when we examine the case of the accused-persons, we find that the defence version is that some of them also suffered injuries when they tried to intervene or while defending themselves. Injured accused persons Ram Suchit, Smt. Prabhawati, Ramdeo are said to have been medically examined by Dr. S. M. Shukla on 4.3.1980 itself privately by Dr. Shukla in Gorakhpur city itself. Dr. S. M. Shukla has been examined as D.W. 2. According to above D.W. 2 on 4.3.1980 at 10.30 a.m. he examined Ram Suchit accused and found the following injuries on his person:

(1) Penetrating wound 1 cm. ? 1/2 cm. ? 1 cm. pointing down wards on the outer and upper part of the front of the right side of the chest 9 cms. below the achromion process, margins clean-cut bleeding present on pressure.

(2) Lacerated wound 1/2 cm. ? 1/2 cm. ? muscle deep on the front of the elbow joint margins irregular clot present.

According to D.W. 2 above injuries were simple. Injury No. 1. is caused by some sharp pointed weapon and injury No. 2 by blunt weapon. Duration one day.

He examined Ramdeo on 4.3.1980 at about 10.55 a.m. and found following injuries on his person:

(1) Lacerated wound 4 cms. ? 1/4 cm. ? scalp deep on the right side of the head 6 cm. above the right ear margins irregular clot present.

(2) Selling 4 cms. ? 2-1/2 cms. on the left side of the head 4 cms. above the left ear. Tenderness present.

(3) Abraded contusion 2 cms. ? 1 cm. on the outer and upper of the left thigh. No scab--colour red.

(4) Abrasion 1/4 cm. ? 1/4 cm. on the outer part of left knee joint. No scab.

(5) Abrasion 2 cms. ? 2 cms. on the medial and lower third part of left leg. No scab.

(6) Swelling 16 cms. ? all around the upper part of the right forearm redish in the centre. Tenderness present.

All the injuries, according to him, were simple and caused by blunt weapon except injury Nos. 4 and 5 which were caused by friction. Duration one day.

He also examined and found following injuries on the person of Smt. Prabhawati on the same day on 11.10 a.m.:

(1) Abrasion 4 cms. ? 1/4 cm. on the right side of the neck upper part. No scab.

(2) Abrasion 1/5 cm. ? 1/5 cm. on the left side of the nose. No scab.

Complaints of pain all over the body but no visible injury.

According to him, all the injuries were simple and caused by friction. Duration one day.

It is interesting to note that above D.W. 2 Dr. S. M. Shukla at the very beginning of his examination-in-chief has stated that he was working and was posted as Medical Officer in District Hospital Gorakhpur, on 4.3.1980. This statement has been given by this Doctor with view to mislead the Court that as Medical Officer of the District Hospital, he had examined the injuries of above accused persons. It is also important to note it here that if at all this doctor examined these medico legal cases privately after all why he has done so without any reference having been made by the local police. Not only this, this Doctor has not assigned any reason as to why these injured persons did not prefer to go to local Primary Health Centre for medial examination rather they went to him to get themselves for medical examination at Gorakhpur covering long distance. These injured accused persons have also not given any explanation on this point. There is absolutely no material to show that on 4.3.1980 above doctor D.W. 2 was on leave to enable him to examine these injured persons during duty hours privately. If at all these injured were examined in the district hospital why the entries in medico legal register were not made. This D.W. 2 has gone to the extent of saying before the trial Judge that he had treated above injured persons as Out Door Patients of the district hospital but when he was given time and was asked to bring Out Door Patients'' register of the hospital relating to this treatment he evaded by saying that he could not get that register although the trial court granted him time for this. In his cross-examination before the trial Judge he has specifically sated that all these injuries could be of 3.3.1980 caused at 8 or 9 p.m. Thus, the timing of the injuries given by above D.W. 2 does not come in consonance with the timing of the incident given in the defence version for the incident having taken place at 5.00 p.m. in the wheat crop field. This D.W. 2 further stated that the injuries of Smt. Prabhawati Appellant accused were in self approach and could be self-inflicted. He has also stated that the injuries of Smt. Prabhawati could be manufactured. He has also tried to advance an explanation by saying that in private medico legal examination so many persons come for medical aid without informing the police but in this case, he did not make any effort to know as to whether the injured had informed the police or not. He has been specifically asked to explain as to why the injured did not go to Basgaon Primary Health Centre but he could not explain any thing. The defence has not dared to lead any oral evidence in support of their version of self defence.

In the ruling of Hare Krishna Singh and Ors. v. State of Bihar 1988 ACR 314 (SC): AIR 1988 SC 683 Hon. Apex Court relying upon the ruling of Jagdish Vs. State of Rajasthan, has observed:

It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the Court as to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution two conditions must be satisfied:

(1) that the injury on the person of the accused must be very serious and severe and not superficial ;

(2) that it must be shown that these injuries must have been caused at the time of the occurrence in question.

In this very ruling at page 868 Hon. Supreme Court has observed as under:

The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.

In the light of above observations we find that prosecution is not obliged to explain the injuries found on the person of accused in all circumstances, apart from suspicious circumstances under which these defence injuries have been established by the Appellants, defence evidence is of no help in the instant case.

In the light of above materials, when the injuries suffered by the accused persons do not come in conformity with the defence version of incident having taken place at 5 p.m. on 3.3.1980 in the wheat crop field, as suggested by the defence the entire defence version becomes unacceptable. Therefore, the defence cannot get the benefit of injuries of accused which have been shown by D.W. 2 to be of 3.3.1980 at 8-9 p.m. It is not the defence version that on the spot of this incident, i.e., at the door of informant P.W. 1 accused persons suffered injuries. In the defence version there is not a single word to show that any of the accused had any such weapon which could ultimately cause injury No. 1 found on the person of deceased Jaglal. The result of these discussions is that the defence version is without any iota of truth and accordingly the trial Judge after considering the entire evidence has rightly concluded that the story of self defence is false story set up by the accused persons. Thus, from all above discussions, it has to be concluded that when the alleged marpeet is not denied, the entire defence version of self-defence and incident having taken place in the crop field having been found false, as stated on oath by P.W. 1 Lal Jee, i.e., P.W. 2 Sitaram and P.W. 4 Phoolkumari before the trial Judge, the accused have been rightly held to be the aggressors. The trial Judge has rightly considered the oral and medical evidence holding the Appellants guilty because the depositions of P.W. 1 Lal Jee, P.W. 2 Sitaram and P.W. 4 Phoolkumari are supported by their injuries proved by doctor P.W. 6 Dr. P. N. Rai. There is nothing on the record to doubt the presence of above witnesses on the spot.

Learned Counsel for the Appellants accused has vehemently argued before this Court that so far as accused Ram Suchit is concerned, he had neither any motive nor any reason to commit the murder of deceased Jaglal. According to him, Ram Suchit is neither related to any of the accused nor he had any concern with the property over which there was dispute between the parties. His contention is that Ram Suchit had gone to the spot to intervene but he had also been beaten there. Drawing the attention of this Court towards Section 300, I.P.C. he has argued that there is only one injury found to be fatal for the cause of death of deceased Jaglal, but neither there is any evidence of the doctor that this injury was sufficient to cause death in ordinary course of nature nor that it was caused intentionally to commit murder, therefore, according to him, at the most in view of the facts and circumstances, the case against Ram Suchit falls u/s 304, I.P.C., Part II and not u/s 302, I.P.C. In the light of above submission when we scrutinize the evidence available on record, we find that P.W. 1 Lalji informant in his examination-in-chief itself has stated that "Suchit wa Rampati Muljim Ramdeo ke madadgar hai". P.W. 2 Sita Ram has stated "Mujhe Suchit ne ballam se mar diya". The trial Judge in para 32 of its judgment has discussed this aspect of the case and has concluded that the prosecution has established sufficient motive for the commission of this incident. In view of these materials, considering the statement of P.W. 7 Dr. Ghanshyam, who has stated that the death of deceased Jaglal was possible on account of above injury No. 1 which is as under:

Punctured wound right side of the abdomen upper part I-1/2" ? 1/2" abdominal cavity 4" below the right nipple. Marines clean-cut. Direction from front to backward. There remains no doubt that this injury was sufficient to cause death in ordinary course of nature.

Undoubtedly, above injury of deceased Jaglal was found on the vital organ of the deceased Jaglal. The accused persons formed unlawful assembly having common object to commit this incident and in pursuant to such object of this assembly they reached on the spot, i.e., near the residence of informant Lalji and caused injuries to the deceased and other witnesses. Story of incident having taken place in the wheat crop field having been found false the statement of the Investigating Officer who prepared the site plan and having taken blood stained earthen soil from the spot undoubtedly goes to support the prosecution story for the commission of this incident on the spot for which the prosecution has brought cogent oral and other evidence to prove. It is surprising to note it here that after holding all other Appellants than Ram Suchit guilty of the offences under Sections 147, 323/149, 324/149 the trial Judge by making simple observation that there is nothing on record to suggest that any of the accused other than Ram Suchit had the knowledge that Jaglal would be done to death, thought it proper to observe that there was no material to establish that the murder of Juglal was committed in prosecution of the common object of the unlawful assembly. In our view if at all unlawful assembly was formed by all the accused persons for the commission of this incident and they having been held guilty by the trial Judge for this, the above observations are not worth approval.

In the present case, there was pre-meditation of all the accused persons who after having formed unlawful assembly reached on the spot on account of enmity due to litigation and dispute over the property, and in pursuant to that Ram Suchit caused fatal blow to deceased whereas other accused persons also actively participated on the incident with arms and caused injuries, therefore, the trial Judge should have considered the matter of conviction of all other accused persons for offence under Sections 302/149, I.P.C. but we find that there is no appeal from the side of the State, our hands in this regard are tight and for this reason no order is possible in that regard.

The learned Counsel for the Appellant has cited the ruling of Nichittar Singh v. State of Uttar Pradesh 1982 SCC 326 ; Chilamkur Nigireddy and Ors. v. State of Andhra Pradesh 1978 ACR 20 (SC): (14) 1977 ACC 281 and Jawahar Lal and Anr. v. State of Punjab 1983 SCC 805, to argue that injuries of the present case make out a case u/s 304, I.P.C. only and not u/s 302, I.P.C. When we go to facts and medical evidence of above reported cases, we find that in the case of Nichittar Singh v. State of U. P. and others, (supra), there was no medical opinion to hold that the injuries found on the deceased collectively or individually, were sufficient to cause death in ordinary course of nature. Similarly in the case of, Chilamkur Nigireddy and Ors. v. State of Andhra Pradesh (supra) there was no definite opinion of the doctor about the nature of injury to hold that it was fatal. Also in the case of Jawahar Lal and Anr. v. State of Punjab (supra), the occurrence had taken place sequel to a trivial dispute with deceased''s friend and there was no previous enmity with the deceased. Therefore, all these rulings are not attracted in the instant case.

In the case of Virsa Singh Vs. The State of Punjab, , while considering the requirement in proof of Section 300, I.P.C. Clause 3 Apex Court has observed as under:

The prosecution must prove the following facts before it can bring a case u/s 300 "thirdly": First, it must establish, quite objectively, that a bodily injury is present ; Secondly, the nature of the injury must be proved. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and of course, the burden is on the prosecution throughout), the offence is murder u/s 300 "thirdly". It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective interference, the injury is sufficient in the ordinary course of nature to cause death.

Thus, where no evidence or explanation is given about why the accused thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestine came out of the wound and that digested food oozed out from cuts in three places, it would be perverse to conclude that he did not intend to inflict the injury that he did.

The question whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.

It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all.

Against above observations, till this day no other view has been taken. In the light of above ruling when we go through the evidence available on record of this case, we find that there is no doubt about the presence of bodily injury on the vital part of deceased. The nature of this injury has been proved by P.W. 8 Dr. Ghan Shyam and from the evidence available in form of deposition, it is clear that this injury No. 1 of the deceased Jaglal was not accidental or unintentional and as per statement of P.W. 8, the death of deceased Jaglal has resulted on account of above injury No. 1. Therefore, it was sufficient to cause death in ordinary course of nature. Thus, applying a test laid down in the above ruling, we can hold that the injury No. 1 found on the person of deceased was sufficient to cause death of deceased in ordinary course of nature. Accordingly, this case falls within the purview of Section 302, I.P.C.

The result of these discussions is that, in our view in the instant case, the prosecution has successfully established charges framed against the Appellants and there is no force in this appeal. Accordingly, it is dismissed. The judgment and conviction passed by the trial Judge is hereby confirmed. The Appellants are on bail. Their bail bonds are cancelled and they shall be taken into custody to undergo the punishment awarded by the trial Judge or to comply with it in the light of judgment of conviction under this appeal.