JUDGMENT 1. - Appellant Satya Narain was tried for the offence under Sections 302, 326 and 324 I.P.C. by the Sessions Judge, Jodhpur. By the Judgment dated May 17, 1976 the learned Judge held him guilty for the offences under sections 302 and 324 and sentenced him to imprisonment for life on the first court and six months R.I. on the second count. 2. Being aggrieved by his conviction and sentences Satya Narain has filed appeal in this Court through the Superintendent, Central Jail, Jodhpur. As he was unrepresented in the case, Mr. J.D. Arora, Advocate was appointed Amicus Curiae to plead on his behalf. 3. Briefly stated the facts of the case giving rise to the trial of the appellant and the present appeal are as under. The accused and deceased Kanhaiya were real brothers Kanhaiya was living joint with his father Kishan wile the appellant was living separate for a number of years. The appellant wanted partition of agricultural land from his father. Two daughters of Kishan Lal had yet to be married and therefore, the family members did not agree to Partition. On May 20, 1975 the appellant went to his father's house in the night and was sitting on the cot of his father in the 'pole'. At about 9.00 p m. Kanhaiya arrived and started taking his meal in the 'barseli'. The appellant went near Kanhaiya, caught hold of him by the tuft of his hair and dragged him in the 'pole', Kanhiya raised an alarm. Smt. Baya (P.W, 8), mother of the appellant and the deceased intervened. Smt. Baya received knife injuries on the temperial region at the hands of the appellant in her efforts to rescue Kanhaiya. The appellant stabbed Kanhaiya on his chest and also inflicted knife blows on other Parts of his body. Smt. Kanchan (P.W 5) and Smt. Kiran (P.W.9) sisters of the appellant were also there at the time. The appellant then ran away from there along with the knife.The people of the locality assembled at the site. Onkar Lal (P.W. 3) , Sohan Raj (P.W 10) and two or three more persons took Kanhaiya and his mother to the Primary Health Centre, Pipar city. At about 10.30 P.M. Dr.P.P. Gandhi (P.W.15) examined the injured Kanhaiya. At the instance of Dr. Onkar Lal (P.W. 3) , Sohan Raj (P.W 10) and two or three more persons took Kanhaiya and his mother to the Primary Health Centre, Pipar city. At about 10.30 P.M. Dr.P.P. Gandhi (P.W.15) examined the injured Kanhaiya. At the instance of Dr. Gandhi, Shyam Sunder (P.W. 4) telephonically informed the Station House Officer, Police Station, Pipar City that he was required at the hospital by the Doctor. Avtar Singh (P.W. 19), the Station House Officer of Police Station Pipar City reached the hospital and inquired of the Doctor as to whether the injured was in a fit state to give statement. The Doctor told him that the injured was capable of giving statement The Station House Officer recorded the statement of injured Kanhaiya in the presence of Dr Gandhi. The statement Ex. P. 14 so recorded by the Station House Officer was treated as first Information Report and sent to the Police Station for registering the case. Kanhaiya succumbed to the injuries sustained by him in the same night at 12.45 a.m. Dcctor P.P. Gandhi (P.W.15) conducted the autopsy over the dead body of Kanhaiya on April 21,1975 at 8.30 a.m.and noted following injuries on his person:- EXTERNAL INJURIES 1. An incised wound 1" x and 3/4 transversely placed on the left third inter costal space in the anterior axillary line. It is about 31/2" deep and running medially and slightly upwards under the pectoral muscles and appeared to be entering into the left pleural cavity. 2. Surgical emphysicema of the left side of the chest anteriorly. 3. There was an incised wound 1" x 3/4" in the left second intercostal space near the sternum. This is in continuation of external injury No. 1 described above, and it was entering the left plural cavity. 4. An incised wound 21/4" x 1" x 1" deep obliquely placed to the left tenth intercostal space on the lateral aspect of the chest, running from above downwards and forwards. A four inches long piece of omentum was seen coming out of this wound. 5. An incised wound 1" x 3/4 x 4" deep vertically placed on the lateral side of the upper third of the left thigh. The wound is about 4" deep and running under the muscles towards the left public toberele, i.e. medially and slightly upwards. 6. A four inches long piece of omentum was seen coming out of this wound. 5. An incised wound 1" x 3/4 x 4" deep vertically placed on the lateral side of the upper third of the left thigh. The wound is about 4" deep and running under the muscles towards the left public toberele, i.e. medially and slightly upwards. 6. An incised wound one and half inch x 3/4" vertically placed on the lateral corner of upper third of the left forearm. The wound was about 3 inches deep and is running downwards under the muscles. 7. An incised wound 11/4" and 3/4" x 3/4" vertically placed on the left central scapular region. 8. An incised wound 1" x half an inch x half and inch vertically placed in the right central scapular region. 4. In the opinion of the Doctor, the cause of death was internal haemorrhage due to rupture of pulmonary trunk due to a stab in the chest with a sharp weapon. In the night of the occurrence itself Doctor Gandhi (P.W. 15) examined Smt. Baya (P.W. 8) at 11.00 P.M. and found following injuries on her person:- 1. An incised wound 21/2 x 1/2" x 11/4" deep running under the skin sucutaneous tissues. The wound is placed slightly obliquely from about downwards and towards the ear on the upper half of the left side of the face. There was mode, rate bleeding from the wound. It was grievous in nature and appeared to have been caused by a sharp weapon. 2. An incised wound ⅓" x ⅛" into skin deep obliquely placed from about downwards and laterally on the left central masseter region.It was simply in nature and appeared to have been inflicted by sharp weapon. The injury report is Ex. P. 13. 5. Avtar Singh (P.W. 19) the Station House Officer of the Police Station Pipar City went to the site and conducted the necessary investigation. 6. On April 23, 1975 the Station Howe Officer received information about the appellant being arrested by G.R.P., Jodhpur. The Station House Officer came to Jodhpur and took the appellant in his custody. The arrest memo prepared by the S.H.O. G R P is Ex. P. 15. In pursuance of the information Ex. P. 19, furnished by the appellant one underwear and one dhoti (Ex. P. 5) were recovered from the shop of Mohd. Sadique on April 27, 1975. The Station House Officer came to Jodhpur and took the appellant in his custody. The arrest memo prepared by the S.H.O. G R P is Ex. P. 15. In pursuance of the information Ex. P. 19, furnished by the appellant one underwear and one dhoti (Ex. P. 5) were recovered from the shop of Mohd. Sadique on April 27, 1975. The clothes bad blood stains and were sealed. On April 27, 1975, the appellant furnished information for getting recovered the knife thrown by him in a well. In pursuance of that information, the accused took the Investigating Officer to a dry well. Harisingh (P.W. 14) was asked to go inside that dry well. He brough the knife Article-6 from there which was taken in possession vide memo Ex. P. 10. The blood stained clothes of the deceased received from the hospital were scaled by the S.H.O. The articles recovered during the course of investigation were sent for chemical analysis. The report of the Chemical Analyser is Ex. P. 21 and that of the Serologist is Ex. P. 22. 7. Upon completion of necessary investigation, charge-sheet against the appellant was filed in the Court of Munsif and Judicial Magistrate, Bilara. The learned Magistrate committed the appellant to the Court of Sessions Judge, Jodhpur to stand his trial. The learned Judge, charge-sheeted the appellant for the aforesaid offences and recorded his Ilea. He denied the indictments and claimed to be tried. The prosecution examined 20 witnesses in all to substantiate its case. The appellant in his statement under section 313 of the Code of Criminal Procedure totally denied the allegation levelled against him. He stated that at about 8.00 P.M. he had gone to his father's house and set on the cot lying in the courtyard where his father was lying. That, after abut 10 minutes there was a talk between him and his father regarding his sisters' marriage. His father demanded money and he assured that he would manage somehow and give him the money. Kanhaiya came out from inside the house and inquired of him as to why he had cone there. His father told him as to what he was losing if he had come there. Kanhaiya went inside and brought a knife. Their mother ran after Kanhaiya and intervened. He (appellant) got up out of fear Kanhaiya wielded the knife towards him. Kanhaiya came out from inside the house and inquired of him as to why he had cone there. His father told him as to what he was losing if he had come there. Kanhaiya went inside and brought a knife. Their mother ran after Kanhaiya and intervened. He (appellant) got up out of fear Kanhaiya wielded the knife towards him. He took the shelter of his mother and the latter sustained injuries at the pariettal bone. Meanwhile the knife fell from the hand of Kanhaiya and he (appellant) picked it up. Kanhaiya caught hold of his hand but he did not recollect whether the point of the knife was towards Kanhaiya. Kanhaiya gave him two fist blows and fell him down and sat over him. During that period, he might have sustained knife injury in his chest. Kanhaiya thereafter caught hold of his hands and turned the point of the knife blade towards him. They grappled for about 10-15 minutes, and he also sustained injuries at 10-15 places but the police did not get him medically examined. He could not know on what parts Kanhaiya had sustained injuries, as it was dark. He raised a cry and the knife slipped out of his grip. Ten or fifteen neighbour reached there and rescued him He thereafter, ran away from there- No defence witness was examined. The learned Judge placed reliance on the prosecution witnesses and held the appellant guilty for the murder of Kanhaiya and the injuries sustained by Smt. Baya and sentenced him as stated earlier. 8. We heard Mr. J.D. Arora, learned Amicus Curiae for the appellant and Mr. M.C Bhati, learned Public Prosecutor for the State of Rajasthan and carefully examined the record of the case. 9. The learned Amicus Curiae has assailed the findings of the learned trial Judge on the ground that despite the defence version being probable. the learned trial Judge has based conviction on the testimony of interested witnesses i.e. the parents and sisters of the deceased. It has also been stressed that even if the prosecution case about the strained relations between the appellant and other family members is taken to be true, still it could not have been a cause for the appellant for committing the murder of his real brother. It has also been stressed that even if the prosecution case about the strained relations between the appellant and other family members is taken to be true, still it could not have been a cause for the appellant for committing the murder of his real brother. The learned Amicus Curiae also referred to certain inconsistencies in the statements of the eye-witnesses and submitted that, all this shows that they were all bent upon to fasten the guilt on the neck of the appellant. 10. The learned Public Prosecutor justifying the finding of guilt submitted that the defence version does not appear to be probable and having been falsified by the prosecution witnesses, there arises no question of giving any benefit to thy assailant. 11. At the very outset it may be observed that the prosecution case rests on the testimony of the family members of the appellant and the deceased. In the natural course of events family members are expected to be at the site when some occurrence inside the house takes place. The parents and the sisters cannot be categorised as persons interested in the deceased because they were equally related to appellant, It might be that because of the antecedents of the behaviour of the accused i.e. his having left the house and demanding partition, the members of the family might have a soft corner for the deceased who was joint with the family. But that alone cannot be a ground of their being interested in the deceased and inimical to the appellant. 12. The prosecution has led direct as well as circumstantial evidence in the case. 13. The direct evidence is of Kishan Lal (P.W 7) and Smt.Baya (P.W.8), the parents of the appellant and the deceased & Smt Kanchan(P.W.5) and Smt. Kiran (P W 9) their sisters. So far as Smt Kanchan (P.W,5) is concerned she has supported the prosecution case about the appellant going to the house, sitting there and wielding the knife towards the deceased, but she has denied to have seen the actual plunging of the knife in the chest of the deceased by the appellant.The other three witnesses have proved the prosecution case in all material particulars. According to them, it was the deceased who had gone to the 'Barsali' and caught hold of the tuft of the hair of the deceased and dragged him up to the pole and stabbed in the chest and caused other injuries on his persons Smt. Baya (P.W.8), happens to be the mother of the appellant and the deceased. Whatever may be the conduct of a person, the mother never loses love for him & therefore, it cannot be said that she, in order to take revenge of the death of her younger son, has falsely implicated the elder one, She has sustained injuries in the incident. The appellant also does not deny Smt. Baya sustaining injuries in the incident but according to him it was at the hands of Kanhaiyalal, Version of Smt. Baya stands fully corroborated by Kishan Lal (P.W.7) and Kiran (P.W 9). There is no suggestion to the prosecution witnesses that it was the deceased who had the knife with him and it was in his attempt to save himself that the appellant snached the knife and in that process injuries might have been caused to the deceased. The suggestion father, is that both of them had grappled. All the witnesses had denied that suggest ion. So far as the inconsistencies in the statements are concerned, they are on very minor points such as whether it was Smt. Kanchan who had served the food to the deceased or Smt Baya 14. Regarding the motive, Kishan Lal (P.W. 7) has of course not stated at the trial that there was a demand of partition by the appellant and has that way contradicted from his statement before the police. But even at the trial he has deposed that he had told the accused that after the marriage of the daughters he will look to the partition of the property. Be it as it may, it is evident that the appellant was living separate and was not having cordial relations with the family. 15. The defence version does not stand supported even by the circumstances of the case. The appellant has stated that he bad sustained 10-15 injuries at the hands of Kanhaiyalal and the police did not get him medically examined. The appellant was arrested on April 23, 1975. 15. The defence version does not stand supported even by the circumstances of the case. The appellant has stated that he bad sustained 10-15 injuries at the hands of Kanhaiyalal and the police did not get him medically examined. The appellant was arrested on April 23, 1975. For three days he had occasion to get himself examined in me he had sustained any injury at the time of the incident. No suggestion has been made to the Investigating Officer that the appellant had injuries at the time of the arrest, or that any request for medical examination was made by the appellant which was not considered. If the incident had taken place in the way the appellant states, then where was the reason for him to run away from the place on the family members raising an alarm and the neighbours reaching there. 16. The dying declaration of Kanhaiya Ex. P.11 has also been rightly given weight by the learned trial Judge. The criticism against the dying declaration by the learned Amicus Curiae is that it was recorded by the police and that too at the time when the injured could not be in a fit state to give statement. 17. It was about 10.30 P.M. that Kanhaiyalal was taken to the Primary Healte Centre, Pipar City. The doctor examining him at the time asked Shyam Sunder(P.W. 4) a neighbour, who had also reached the hospital on having known about the incident, to inform the police. Shyam Sunder telephonically informed the police. The S H.O. Avtar Singh (P.W. 19) rushed to the hospital and verified from the Doctor as to whether the injured was in a fit state to give the statement. As deposed by Avtar Singh, S.H O., he had himself satisfied about the condition being fit and thereafter recorded the statement. Doctor Gandhi (P.W. 15) has corroborated the statement of the S H.O. and stated that the injured was in a fit state to depose. The Doctor had given the details about the condition of the injured and denied the suggestion that after receiving such injuries, the injured was unable to give the statement. Though there is no separate certificate by the Doctor about the condition of the deceased, still the signatures of the Doctor at the bottom of the statement are there along with endorsement that the statement was recorded in his presence. Though there is no separate certificate by the Doctor about the condition of the deceased, still the signatures of the Doctor at the bottom of the statement are there along with endorsement that the statement was recorded in his presence. In this view of the matter, there is nothing to suspect the genuiness of the dying declaration. 18. Sohan Raj (P.W. 10) is the witness of the oral dying declaration by Kanhaiyalal. According to him when he and four or five others were taking Kanbaiya on the cot to the hospital, he was talking and had told that Satya Narain had stabbed him with the knife. The oral and the written dying declarations are also corroborated by the statements of the eye witnesses. The learned trial Judge has thus rightly held the appellant responsible for the injuries sustained by Kanhaiya. 19. The learned Amicus Curiae next argued that even if the prosecution case about the appellant being the author of the injuries of Kanhaiya is believed, still the case under section 302 I.P.C. is not made out. The reasons advanced by him are that, the quarrel might have taken place at the spur of the moment on a petty point and the intention of the appellant could not be to commit the murder of his brother. 20. It has been vehemently argued by the learned Amicus Curiae that courts are to see the intention of the assailant and should give a finding that the intention was to cause the particular injury at the particular part of the body. Mr. Arora submitted that in the present case if in the grappling, knife injury was caused at the chest, intention to cause that particular injury cannot be inferred, and therefore, the case does not fall within the ambit of murder. 21. To substantiate his case, Mr. Arora referred to the certain authorities, which we would just discuss. 22. In the case of Harjinder Singh v. Delhi Administration, AIR 1968 SC 67 : AIR 1968 SC 867 , the deceased had run to the rescue of his brother who was being giving a beating by the accused, because of some quarrel regarding the water tape infront of a tin factory. There were conflicting version, about what had exactly happened when the injury was caused to the deceased. One injury was stab wound 1" x 1/4" x? There were conflicting version, about what had exactly happened when the injury was caused to the deceased. One injury was stab wound 1" x 1/4" x? on left thigh upper and below the inguinal ligament. The other was an abrasion 1 "x linear on back of left forearms middle. It was the first injury which proved fatal Sartorius muscle was out underneath along with femoral artery and vein. At the time of sustaining the injuries the victim was in a crouching position. In such circumstances, it was not considered that the intention should have been to cause that particular injury. In view of the findings that the appellant, striking the deceased with the knife must have known that the deceased then being in a bent position, the blow would land in the abdomen or near it vulnerable part of the human body, and that such a blow was likely to result in his death, it was held that the offence fell under sections 304 Part-I. 23. Another case referred to by the learned Arnim Curiae is Gokul Parashram Patil v. The State of Maharashtra, 1981 Criminal Law Reporter (SC) 491 . In that case a solitary blow was given by the appellant to the victim on the left clavicle a non-vital part and it was held that it would be too much to say that the assailant knew that the superior venecava would be out as a result of that wound. The offence therefore, was held to be culpable homicide not amounting to murder and not murder. 24. In the case of Bharat v. State of Rajasthan, 1979 Criminal Law Reporter (Raj. Suppl.) 11. , Where was no premeditation. It was in heat of passion and not altercation between the assailant and victim regarding the demand of money that the accused had thrust the knife into the stomach of the accused. In view of those circumstances, the care was not held to fall under the definition of murder. 25. In the case of Hari Narain v. The State (4) only one blow was given on the head and the subsequent blows were on the other parts of the body. For that reason the case was considered to be under section 304 Part II I.P.C. instead of under section 302 C.P.C. 26. 25. In the case of Hari Narain v. The State (4) only one blow was given on the head and the subsequent blows were on the other parts of the body. For that reason the case was considered to be under section 304 Part II I.P.C. instead of under section 302 C.P.C. 26. In view of the facts and circumstances of the case the authorities referred to above do not help the appellant. In the present case the intention to cause murder is writ large The circumstances clearly indicate that the appellant had the mind to commit the murder of Kanhaiya and was waiting at his house till his arrival. It was when Kanhaiya was taking his food, that the appellant went near him, dragged him and caused injuries to him. He did not stop even at the intervention of his mother Smt. Baya. He had caused injuries nos. 1, 2 and 1 on the vital part of the body. He did not felt satisfied and caused five more injuries with knife on the various parts of the body of Kanhaiya. These facts are sufficient to prove the intention of the appellant to commit the murder of his brother. Similarly, there was no reason for him to cause injuries to his mother who had simply intervened. Thus the offence under section 324 I.P.O. regarding the injuries of Smt. Baya has also been rightly held to be established against the appellant. 27. In such circumstances, we find no ground to interefere with the findings of the learned trial Judge based on sound reasonings. 28. Consequently, the appeal filed by Satya Narain is dismissed.Appeal dismissed. *******