JUDGMENT 1. - There is a mohalln Isaion-ka-Kabristan near Railway Colony, Jodhpur. The house of Dhannaram P.W.3 Dana P W.l the injured and all the accused appellants are nearby On March 4, 1975 at about 10 or 11 p.m. Dana P.W.2 and Prabhu P W 4 were sitting in the house of Dhanna P.W.3. The distance in between the house of Dhanna P W.3 and the accused is only three steps All three above named were talking among themselves and at that time some quarrel took place in between the accused appellant and his wife Promo P W.6. A quarrel had also taken place in between the accused and his wife during the day and seeing that the accused appellant and his wife were again fighting Dina P.W.2 went to the house of the accused He told them not to fight in the night atleast. He separated them and asked Jagga not to fight with his wife Jagga said that he (Dana) should not meddle in his dome.tic affairs. Jagga accused picked up an axe which was lying nearby and gave a blow with that on the head of Dana P W.2. Seeing this Dhanna P.W.3 and Prabhu P.W 5 also reached there and they saw that the accused was running away from the place of incident and he had an axe in his hand. The occurrence took place in the open. Dana P.W.2 was taken to the hospital and a report Ex P.l was lodged in police station, Sardarpura, Jodhpur by Dhanna P.W 3. A case was registered and the investigation was set in motion. 2. The injuries of Dana P W.2 were examined by Dr. P. Dayal on March 4, 1975 and found the following injury:- "Incised wound 8cm x 07 cm x bone deep in the right parietal region." He advised X-ray examination of the skull. To him the injury appeared to be caused by a sharp object and also could have been caused by an axe (article 1). The X-ray examination was conducted in presence of D.P. Dayal and the films were numbered 1496 and 1497, dated March 7, 1975, which showed fracture of the right parietal and temporal bone of skull. A supplementary report was prepared by Dr.P. Dayal describing the injury as grievous. 3. The accused was arrested and the alleged weapon of offence (axe) was recovered from his possession on his information. A supplementary report was prepared by Dr.P. Dayal describing the injury as grievous. 3. The accused was arrested and the alleged weapon of offence (axe) was recovered from his possession on his information. A charge under section 307 IPC was read over to the accused by the learned Sessions Judge, Jodhpur on October 27, 1975. In the alternative a charge under section 326 I.P C. was also read over to the accused. The accused pleaded not guilty and claimed trial. 4. On behalf of the prosecution as many as 10 witnesses were examined. Thereafter the accused was examined under section 313 Cr.P.C. to explain the evidence against him. The accused stands on a bare plea of denial. He set up a case that his wife Prema was sleeping outside the house and he was sleeping inside the house, Dana P.W.2 came to hit house and wanted to outrage the modesty of his wife. Dinas wife came on the spot and tried to give an axe blow to Jagga but that blow hit Dana, who received the injury. The accused did not examine any witness in defence. The learned Sessions Judge, Jodhpur convicted the accuse appellant under section 307 I.P C and sentenced him to undergo three yea s rigorous imprisonment. The period of custody of the accused during investigation and trial from March 5, 1975 to March 7, 1975 was ordered to be set off against the sentence awarded to him by the learned Sessions Judge. 5. The first contention of the learned counsel for the accused appellant is that the witnesses produced on behalf of the prosecution cannot be relied upon and have been wrongly relied upon by the learned Sessions Judge. He submits that admittedly the occurrence took place at the house of the accused appellant and that too in the night about 10 or 11 p.m. There was no occasion for Dana P.W.2 to have gone to the house of the accused and the case of the defence that Dim had gone to the house of the accrued to outrage the modesty of the wife of the accused is true. The learned Sessions Judge placing reliance on the prosecution evidence and observing that he has not hesitation in coming to the conclusion that the occurrence took place in the m inner as alleged by the prosecution and not in the manner as alleged by the accused, convicted and sentenced the accused appellant. It is not disputed as borne out from the record, that the house of the accused is only at a distance of three steps away from the house of Dhanna P.W.3. It has come in the statement of P.W.2 Dana that he was sitting at the house of Dhanna P.W.3 along with Prabhu and they were talking He has stated that on hearing that the accused and his wife were fighting, he had gone the house of the accused. On this point he is corroborated by the evidence of Dhanna P W.3 and Prabhu P.W 4. P.W.3 Dhanna has stated that he was at his house and Dana P.W.2 and Prabhu P.W.4 were also sitting with him At about 10 or 11 p.m. they heard the voice of accused and his wife fighting. Hearing the Dana went to pacify them. A similar statement has been made by Prabhu P.W.4. It does not appear on the record that either Dhanna P.W.3 or Prabhu P W. 4 have any grudge against the accused appellant. Therefore, it can be said on the maternal on record that Dana P.W.2 was attracted to the house of the accused on the day of occurrence at 10 or 11 p m. on hearing the quarrel which was taking place between the accused-appellant and his wife. The defence set up by the accused that he was inside his house and his wife was sleeping outside and the accused had come to outrage her modesty has been disbelieved by the learned Sessions Judge and rightly so. Prema P.W.6 was examined under section 161 Cr.P.C. She was also examined as a prosecution witness but went against her police statement and as such the learned Judge permitted the prosecutor to put the questions in the nature of cross examination to Prema. Therefore the statement of Prema P.W.6 the wife of the accused and as such interested in him cannot be relied upon about the version of the incident. Therefore the statement of Prema P.W.6 the wife of the accused and as such interested in him cannot be relied upon about the version of the incident. That apart, as per the statement of Prema P.W 6 wife of Dana was armed with an axe and aimed a blow to her (Premas) husband but the blow bit Dana. The accused in his statement under section 313 Cr P.C. has set up a completely different case so far as the infliction of injury to Dana P.W 2 is concerned. According to the accused Danas wife wanted to give a blow by an axe to his (accused) wife namely Prema, but the blow bit Dina. It can only be said that Dana had not gone there with the intention of outraging the modesty of Prema but had only gone to the house of the accused on hearing the quarrel between the accused and bis wife to pacify and to separate them. 6. It has come in the evidence that any talks which take place at the hour of the accused can easily be heard by those sitting at the house of Dhanna P.W.3. As already stated earlier, the distance between the house of Dhanna P.W.3 and the accused is only three steps. Bath Dhanna P.W.3 and Prabhu P.W.4 have said that they heard what transpired in between the accused and Dana P W.2. Dhanna P.W.3 states that Dana asked the accused not to quarrel in the night and accused told him not to meddle in his affairs. He heard the alarm of the wife of accused Maar diya, Maar diya. Prabhu P.W.4 has also made a similar statement. Therefore, all the witnesses corroborate the statement of Dana that when he reached the house of the accused and asked the accused not to quarrel, the accused told him not to meddle in his affairs. This also shows that the case set up by the accused is not correct and the case of the prosecution is correct. 7. Now the question is as to whether it is the accused who caused injury to Dana P.W. 2. Dana P.W. 2 states that when he was sitting in the angan of the accused, the accused picked up an axe and gave a blow with it at his head. 7. Now the question is as to whether it is the accused who caused injury to Dana P.W. 2. Dana P.W. 2 states that when he was sitting in the angan of the accused, the accused picked up an axe and gave a blow with it at his head. No sooner the blow had been inflicted by the accused, Prabhu and Dhanna came there The accused ran away Heera, Laxman and Bhikha also arrived later on and they took him to the hospital. He has stated that there was sufficient light in which he identified the accused-appellant. Corroboration of the statement is there by the statements of Dhanna P.W. 3 and Prabhu PW. 4 to some extent. Learned Sessions Judge after going through the evidence of Dhanna PW. 3 and Prabhu PW. 4 has concluded that both of them arrived at the house of accused at that time the accused was giving away armed with an axe. They have also stated that Dana was lying with an injury on his head, therefore, the fact that the accused was going away with an axe immediately after the occurrence and Dana was lying injured goes to show that it was the accused who gave a blow to him by the axe. A report of the incident was lodged on March 4, 1975 at 10 a.m i.e. about 2# hours of the occurrence. The distance of the police station is only two kilometers. Therefore, the first version of the prosecution story is contained in the FIR which was lodged by P.W. 3 Dhanna also corroborates. Dana PW. 2 8. It was contended by the learned counsel that the wife of Dana PW. 2 was present at the time of the occurrence. She is a material witness of the offence and has net been examined, and, therefore, an adverse inference should be raised against the prosecution. In support of his contention reliance has been placed in State v. Tek @ Tekchand, 1977 WLN, 473 and Bhanwari v. State, 1978 WLN, 577. 9. It is not borne out from the record that Devli wife of Dana PW. 2 was present at the time when the blow was given by the accused to him. PW. 2 Dana or any other witness does not state about the presence of Devli at the time of the incident. According to the statement of Dhanna PW. 9. It is not borne out from the record that Devli wife of Dana PW. 2 was present at the time when the blow was given by the accused to him. PW. 2 Dana or any other witness does not state about the presence of Devli at the time of the incident. According to the statement of Dhanna PW. 3 he was attracted on hearing the alarm of the wife of Dana to the effect maar diya, maar diya. It can, therefore, not be said that Devli was an eye witness of the occurrence and, therefore, the case of the prosecution is not at all affected by not examining her and as such no adverse inference can be drawn against the prosecution. It, can, therefore, be said that the occurrence took place as alleged by the prosecution and it is the accused who gave a blow by an axe to Dana PW. 2 on his head. 10. The learned Sessions Judge, before whom an argument was advanced that only an offence under section 326 IPC is made out has observed that it is not very material as to whether an offence under section 307 or 326 IPC is made out. This question according to him is only academic both the offence carry almost the same punishment But the ingredients of the offence under section 325 and 307 IPC are different and, therefore, the question is not only academic but substantial and may be that both the offence carry almost the same sentence. The contention of the learned advocate is that only a single blow by an axe was given on the head of Dana and the blow was not repeated. In the facts and circumstances of the case when Dana came to intervene in the quarrel between accused and his wife, accused picked up an axe and gave a single blow on the head, it cannot be said that the accused intended to cause the death of Dana PW. 2. It is not the case in which on the evidence it can be said that the accused did not aim a blow on the head, a vital part and accidentally the blow landed on the head. Ar.y act done by an accused with such intention or knowledge and in such circumstances that if he by that act causes death, he would be guilty of murder. Ar.y act done by an accused with such intention or knowledge and in such circumstances that if he by that act causes death, he would be guilty of murder. No direct evidence about the intention of the accused can ever be forthcoming, it is a matter of inference depending upon various factors namely, the weapon used, the part of body on which the injury is caused and nature and circumstances of the case. There was no previous enmity between accused and Dana PW 2. The occurrence took place when Dana intervened in the quarrel of the accused and his wife, accused picked up an axe and aimed ; ingle blow which resulted in a grievous injury to Dana PW. 2 it has not come in the statement of the doctor that but for any intervening circumstance, death of Dana would have been caused. Dr. P. Dayal, P.W 9 has not only stated that in his opinion the injury was sufficient to cause death in the ordinary course of nature but he has not stated the degree of probability of death, whether as a result of the injury death was a must but for treatment or it was likely that death might have taken place. Though he did not agree with the suggestion of the learned counsel that there was fifty percent possibility of survival, but he did not say that there was no possibility of survival but for the treatment. In the facts and circumstances of the case I am of the opinion that an offence under section 326 IPC and not under section 307 IPC. is made out. 11. Therefore, I alter the conviction of the accused appellant under section 307 IPC to one under section 326 IPC. The question is as to what punishment should awarded to the accused appellant for an offence under section 326 IPC. The accused is an old man and according to the learned counsel lie is suffering from epilepsy. Though there is no medical report to support his contention At any rate the statement of the accused u/s 313 Cr. P.C. recorded by the learned Sessions Judge on May 27, 1976 the accused gave his age as 70 years but the estimate of the learned Judge was 65 years. Though there is no medical report to support his contention At any rate the statement of the accused u/s 313 Cr. P.C. recorded by the learned Sessions Judge on May 27, 1976 the accused gave his age as 70 years but the estimate of the learned Judge was 65 years. At any rate since the passing of the judgment of the learned Sessions Judge, five years have elapsed and the accused is an old man of 70 years of age, I am of the opinion that three years imprisonment under section 326 IPC. is excessive. Looking to the age of the accused, I am of the opinion that a sentence of one year and 6 months under section 326 IPC shall meet the ends of justice. 12. In the result I hereby convict the accused under sec. 326 IPC undergo 11/2 years rigorous imprisonment. The period already undergone by the accused shall be set off. He is on bail and shall surrender to his bail bonds forthwith, failing which the trial court shall take steps so that he shall undergo the sentence awarded or the remaining part thereof.Appeal Partly allowed. *******