Dhool Singh v. State of Rajasthan — 1996 DIGILAW 492 (RAJ)

Honble SINGH, J. – Heard the learned counsel for the appellant and the learned Public Prosecutor and perused the record. (2). The appellant Dhool Singh has filed this appeal against the judgment dated 14.12.1990 passed by the learned Additional Sessions Judge No. 2 Udaipur by which judgment the accused was found guilty of the offences under Sec. 302 IPC and Sec. 4 with Sec. 25 of the Indian Arms Act and was sentenced to imprisonment for life as well as a fine of Rs. 200/- under Sec. 302 IPC and to undergo simple imprisonment for six months as well as to pay a fine of Rs. 200/- under Sec. 4 read with Sec. 25 of the Indian Arms Act and in default in payment of fine he was directed to undergo further imprisonment for 15 days. (3). The facts of the case briefly stated are as follows : (4). On 15.7.1989 Magan son of Devaji Garasia orally reported at the Police Station, Pahada that on the previous night at about 9 P.M. when he was sleeping at his house his son Ramesh raised an alarm "nkSM+ks ekjs, and on hearing his cries he went towards Dhool Singh son of Bade Singh Rajputs field. At that time Ramesh and Amar Singh son of Nansingh Garasia were standing in the field of the complainant and Amar Singh son of Shankersingh resident of Kaparwas was lying dead in the field. Ramesh and Amarsingh told Magan that some time ago Amar Singh son of Shankersingh was going from the house of Fateh Singh when in the way he was attacked by Dhoolsingh, who had a sword in his hand. Amar Singh thereafter raised a cry and on raising cry Ramesh and Amarsingh rushed to the spot and in their presence Dhoolsingh struck a sword blow on the neck of Amarsingh. As a result thereof Amarsingh fell on the ground. According to the first information report Ramesh and Amarsingh further told Magan that Dhoolsingh threatened to cut them into pieces if they dares to approach him and threatened Dhool Singh escaped with the sword. The dead body of Amarsingh son of Shankersingh was seen by Magan the first informant. He found a cut wound on the neck from which blood was coming out. The dead body of Amarsingh son of Shankersingh was seen by Magan the first informant. He found a cut wound on the neck from which blood was coming out. It was also stated in the first information report that there was a long standing enmity in relation to some field between Amarsingh and Dhoolsingh and on account of that enmity Amarsingh was killed and there being no means of co- ming to the police station at night the first information report was being made in the morning. On the basis of the first information report submitted by Magan the police registered a case under Sec. 302 IPC and after completing the investigation submitted a report under Sec. 173 Cr.P.C. alleging commission of offences punishable under Sec. 302 IPC and under Sec. 4 read with Sec. 25 of the Indian Arms Act. Learned Munsif and Judicial Magistrate, Kherwara before whom the report under Sec. 173 Cr.P.C. was submitted took cognizance of the offences and committed the case to the Court of Sessions Judge and later on the case was transferred to the Court of Additional Sessions Judge No. 2 Udaipur. (5). Learned Additional Sessions Judge No.2 Udaipur framed charges under Sec. 302 IPC and Sec. 4 read with Sec. 25 of the Indian Arms Act against the appellant. The appellant pleaded not guilty to the charges. (6). During the trial the prosecution examined as many as 11 witnesses namely PW1 Magan, PW2 Nansingh, PW3 Shankersingh, PW4 Ramesh, PW5 Sangram Singh, PW6 Mansingh, PW7 Laxmilal, PW8 Bhanwarlal, PW9 Amarsingh, PW10 Dr. Ramesh Ahari and PW11 Amarsingh Station House Officer. The appellant was examined under Sec. 313 Cr.P.C. and in his statement he alleged that the prosecu- tion evidence was false; that the deceased Amarsingh was his real nephew and there was no enmity between him and the deceased and that the prosecution witness Nansingh was not in good terms with him because there was a quarrel between him and Nansingh and to resolve that quarrel a Panchayat meeting was held in which a fine of Rs. 11/- was imposed. It was further stated by the appellant in his statement under Sec. 313 Cr.P.C. that on the date of incident he was not present in the village and that he had gone to Gujarat with his family and he has been falsely implicated of account on enmity and he was arrested in Gujarat. 11/- was imposed. It was further stated by the appellant in his statement under Sec. 313 Cr.P.C. that on the date of incident he was not present in the village and that he had gone to Gujarat with his family and he has been falsely implicated of account on enmity and he was arrested in Gujarat. (7). Learned Additional Sessions Judge No. 2 Udaipur discussed the prosecution evidence at length and came to the conclusion that the offences under Section 302 IPC and Sec. 4 read with Sec. 25 of the Indian Arms Act were brought home to the appellant. Consequently, the appellant was convicted for both the offences and sentenced as stated above. (8). In this appeal learned counsel for the appellant has submitted that the learned lower court has not appreciated the defence version properly; that the pro- secution evidence is not reliable and it does not prove the alleged offences against the appellant beyond reasonable doubt and therefore the appellant deserves to be acquitted of the charges levelled against him. (9). In the alternative learned counsel for the appellant has submitted that in this case the offence under Sec. 302 IPC is not made out because there was only one single injury on the neck of the deceased and the Doctor who conducted the post-mortem examination has no where stated that the injury actually found on the body of the deceased was sufficient in the ordinary course of nature to cause death. It is further submitted by him that because the Doctor did not state that the injury found on the neck of the deceased was sufficient in the ordinary course of nature to cause death the appellant had no opportunity to cross-examine the Doctor as to the nature of the injury and if the Court would proceed to infer from the post-mortem report that the injury inflicted on the neck of the deceased is sufficient in the ordinary course of nature to cause death the appellant would not be in a position to cross-examine the Doctor who conducted the post-mortem examination. In sho- rt the second limb of the argument of the learned counsel for the appellant is that the offence under Sec. 302 IPC is not made out because none of the four clauses of Sec. 300 IPC are satisfied and at best the offence made out against the appellant is culpable homicide not amounting to murder which is punishable under Sec. 304 Part II IPC and in view of the circumstances of the case the appellant is entitled to reduction in sentence. (10). The evidence produced against the appellant consists of oral evidence as well as circumstantial evidence. Magan son of Devaji PW 1 is the person who has given the first information report at the police station. He has deposed that on the date of occurrence at about 9 PM he was at him house. His son Ramesh was out-side the house. He heard the cries of Ramesh who was calling "nkSM+ks nkSM+ks ekjs, and on hearing these cries he went towards his field from where Ramesh was raising the cries. On reaching the field he found Ramesh and Amarsingh son of Nansingh standing in the field and Amarsingh son of Shankersingh was lying in the field in injured condition. Magan PW1 has added that Ramesh and Amarsingh son of Nansingh told him that Dhool Singh (appellant) had struck a sword blow on Amarsingh son of Shankersingh and they further told him that they had reached the field after hearing the cries of Amarsingh son of Shankersingh. Magan PW1 has further added that when he paid attention to the body of Amarsingh son of Shank- ersingh who was lying in the field he found that he had a sword blow on left side of the neck from which blood was coming out and the earth below was also tainted with blood and Amarsingh son of Shankersingh died on the spot. Regarding light Magan P.W 1 deposed that it was moonlit night and he was in a position to see the faces of every one present at the field clearly. Regarding light Magan P.W 1 deposed that it was moonlit night and he was in a position to see the faces of every one present at the field clearly. Magan PW1 has proved the FIR Ex.P.1 and stated that this report was given by him at the police station and he put his signatures at the place marked A to B and the police report Ex.P. 2 scribed at the police station was also signed by him and after lodging the FIR the Police Officer alongwith the Doctor came to the spot and the site inspection memo Ex.P.3 was prepared by the police officer and he put his signatures on it. The Panchayatnama of the dead body of Amarsingh son of Shankersingh was also prepared by the police officer and the samples of blood stained earth as well as simple earth were taken by the police officer and they were sealed at the spot and a recovery memo Ex. P.5 was prepared by them. In his cross-examination Magan P.W.1 has explained the delay in going to the police station by stating that from Kakarwas the police station was at a distance of 20 kms and he did not go to the police station at night because there were no means of transportation. In his cross-examination he admitted that the field where the dead body of Amarsingh son of Shankersingh was lying belonges to him and that the field was surrounded by a boundary wall and there was a crop of Makki in the field and towards the east there was a field of the appellant Dhoolsingh and towards the south also there was a field of Dhoolsingh and in the west too there was a field of Dhoolsingh. Regarding the distance between him and the place where the dead body was found Magan stated that this distance was about 250 steps. Regarding the relationship between the appellant Dhoolsingh and the deceased Amarsingh son of Shanker Singh, Magan P.W. 1 has stated that there was no quarrel between them. He denied the suggestion that Ramesh and Amarsingh son of Nansingh had killed Amarsingh son of Shankersingh and he added that at the time of occurrence Ramesh was at his house. He further admitted that when he reached the spot he did not find the appellant there. He denied the suggestion that Ramesh and Amarsingh son of Nansingh had killed Amarsingh son of Shankersingh and he added that at the time of occurrence Ramesh was at his house. He further admitted that when he reached the spot he did not find the appellant there. This witness Magan is not an eye-witness to the infliction of the blow on the neck of Amarsingh son of Shankersingh. According to him he reached the spot after the injury was caused to the deceased and when he reached the spot he did not find the appellant there and he was told by Ramesh and Amarsingh son of Nansingh that the deceased Amar Singh son of Shankersingh was assaulted by the appellant Dhoolsingh. (11). Nansingh P.W.2 is the second witness produced by the prosecution. He has deposed that on hearing the cries of his sons that Amarsingh was killed by Dhoolsingh he reached the spot. At that time Magan, Amarsingh son of Nansingh and Ramesh were present at the field and Amarsingh son of Shankersingh was lying in the field in an injured condition. There was a wound on left side of his neck and that was bleeding and on being asked Amarsingh son of Nansingh told that in their presence Dhoolsingh had inflicted a sword blow on the neck of Amarsingh son of Shanker Singh and he had threatened to assault them also. In his cross-examination Nansingh PW2 has denied that he had any quarrel or enmity with the appellant. (12). Shankersingh son of Fatehsingh P.W 3 is the third witness produced by the prosecution. He is the father of deceased Amarsingh. He has deposed that on the date of occurrence Amarsingh had gone to the house of Fatehsingh for giving information regarding illness of his brother Pratapsingh. According to this witness Ramesh and witness Amarsingh son of Nansingh came to his house at about 8 to 9 PM and told that Dhool Singh had inflicted a blow with sword on Amarsingh and on account of this blow Amarsingh had died. Shankersingh added that on hearing this news he went to the spot and found that his son Amarsingh was lying in the field of Magan and he had an injury on the left side of his neck and when he reached the spot Magan Singh, Nansingh and some of the villagers were present at the field. Shankersingh added that on hearing this news he went to the spot and found that his son Amarsingh was lying in the field of Magan and he had an injury on the left side of his neck and when he reached the spot Magan Singh, Nansingh and some of the villagers were present at the field. He has further added that there was a dispute between him and Dhoolsingh about the field. (13). Ramesh PW4 is one of the two eye-witnesses of the occurrence. He has stated that at about 9 PM on the date of occurrence he was at his house. At that time he heard the cries of Amarsingh son of Shanker Singh. The cries were to the effect that "nkSM+ks nkSM+ks /kwy flag ekjs, and on hearing them he ran towards the field of Magan from where the cries of Amarsingh son of Shankersingh were coming. On reaching the spot he saw Dhoolsingh as well as Amarsingh son of Shankersingh and when he was at a distance of about 10 steps from them he saw that Dhoolsingh inflicted a sword blow on the left side of the neck of Amarsingh. The wound bled and Amarsingh fell down on the ground. Soon after this Amarsingh son of Nansingh also reached the spot and Dhoolsingh threatened to cut them in case they dared to come near him. Ramesh PW4 added that he raised the alarm and thereafter his father and Nansingh the father of Amarsingh came to the spot and he as well as Amarsingh son of Nansingh told them that deceased Amarsingh was killed by Dhoolsingh. In his cross-examination this witness has stated that he had seen the sword in the hands of the appellant and while inflicting the blow on the deceased the appellant had caught the sword with both the hands and at that time the deceased and the appellant were at a distance of 2-3 feet from each other and that the blow with the sword was inflicted on the left side of the neck. (14). Amarsingh son of Nansingh PW 9 is the second eye-witness of the occurrence. He has stated that on the date of occurrence at about 8 to 9 PM he was at his house. (14). Amarsingh son of Nansingh PW 9 is the second eye-witness of the occurrence. He has stated that on the date of occurrence at about 8 to 9 PM he was at his house. At that time he heard the cries of Amarsingh son of Shankersingh and on hearing his cries he as well as Ramesh rushed towards the spot and went to the field which is known as Bhatudu field and saw that the appellant Dhoolsingh inflic- ted a sword blow on the left side of the neck of the deceased Amarsingh son of Shankersingh. Regarding his own role in the matter of intervening the witness stated that he did not intervene for fear of harm because Dhoolsingh had threatened that he would cut him also with the sword. The witness added that he raised hue and cry and on hearing hue and cry Magan and Nansingh came to the spot. At that time the heart of the deceased Amarsingh son of Shankersingh was beating slowly. (15). Amarsingh son of Khumansingh PW 11 is the police officer who was posted as the Station House Officer at the police station Panada on 15.7.1989. He has deposed that on the basis of the FIR given by Magan he registered the case No. 87/89 under Sec. 302 IPC. According to him the oral information given by Magan was recorded on Ex.P.1 which was signed by him as well as Magan and on the basis of this report he prepared the FIR Ex.P.2 which bears his signatures at C to D and thereafter he went to the spot and in the presence of Motbir witnesses Heeralal and Baxiram he prepared the site plan Ex. P.3 the Panchayatnama of the dead body of Amarsingh Ex. P.4 and both these documents bear his signatures and from the pla- ce of occurrence the samples of blood stained earth as well as simple earth were taken and he prepared the recovery memo Ex. P. 5 and signed it and sealed both the samples in the presence of Motbirs and obtained their signatures. He has further added that he recovered the sword vide recovery memo Ex.P.6 and arrested the appellant vide arrest memo Ex. P. 5 and signed it and sealed both the samples in the presence of Motbirs and obtained their signatures. He has further added that he recovered the sword vide recovery memo Ex.P.6 and arrested the appellant vide arrest memo Ex. P.9 and the sword was recovered in consequence of the information given by the appellant under Sec. 27 of the Evidence Act and the information was recorded on Ex.P.10 which bears his signatures as well as the signatures of the appellant. Regarding post-mortem Amarsingh PW 11 has stated that he got the post-mortem examination of the dead body of Amarsingh son of Shankersingh conducted by a Doctor and the articles recovered by him were sent to the Forensic Science Laboratory, Jaipur with Ex.P.7 through the S.P. Office. (16). The post-mortem examination of the dead body of Amarsingh son of Shankersingh was conducted by Dr. Ramesh Chandra Ahari PW10 who found the following external injuries on the dead body of Amarsingh son of Shankersingh: 1. Incised wound 9.0 cm x 3.0 cm x 2.5 cm on transversally placed on left side of neck Thyroid Cartilage is cut. Transversally on left side sternoclinoid muscle External Jugalar Vein, Internal Jugalar Vein and common carotid Artery cut completely. Margin of wound is clear cut deep staining Gaping and swelling of surrounding tissue. Wound is Ante Mortem in nature. The cause of death according to this witness was heart failure on account of excessive haemorrhage and the death occurred 24 hourse before the conducting of the post-mortem examination. The witness proved the post-mortem report Ex. P. 8. In his cross examination he stated that he cannot tell as to how many hours before the post mortem the deceased had taken his meals but there was some food in his stomach. Regarding the weapon of offence he has stated that weapon of offence was not shown to him during his examination in the court. (17). Sangramsingh PW5 is a witness in whose presence Amarsingh PW 11 recovered the sword from inside the house of the appellant. He has deposed that in his presence the sword was produced by the appellant. It was taken in custody by the police officer and was sealed then and there. A recovery memo Ex. P. 6 was prepared which he signed. (18). Mansingh PW 6 is the police Constable who was Malkhana Incharge on 16.7.1989. He has deposed that in his presence the sword was produced by the appellant. It was taken in custody by the police officer and was sealed then and there. A recovery memo Ex. P. 6 was prepared which he signed. (18). Mansingh PW 6 is the police Constable who was Malkhana Incharge on 16.7.1989. According to him the sword in a sealed condition was deposited in the Malkhana and it was handed over to Laxmilal for taking the same to the Forensic Science Laboratory, Jaipur. (19). Laxmilal PW 7 Police Constable has stated that he took the articles to the Forensic Science Laboratory, Jaipur and so long the articles remained in his custody they were not tampered with and were deposited by him in the Forensic Science Laboratory, Jaipur in a sealed condition. (20). Bhanwar Lal, PW 8 is the Constable who was posted at the S.P. Office. He has deposed that four sealed packets were brought to S.P. Office by Constable Laxmilal and they were returned to Laxmilal on the same day in a sealed condition and the forwarding letter Ex.P. 7 was issued by the S.P. Office for taking the packets to the Forensic Science Laboratory, Jaipur. (21). Thus, the evidence against the appellant consists of oral evidence of Amarsingh son of Nansingh PW 9 and Ramesh PW 4 both of whom have deposed that in their presence the appellant inflicted a sword blow on the left side of the neck of deceased Amarsingh son of Shankersingh and as a result of that blow Amar- singh son of Shankersingh fell on the ground his wound bled and he ultimately died on the spot. (22). We have carefully gone through the record and find no reason to disbelieve the evidence of these two eye-witnesses whose version appears to be quite natural and trust worthy. Their evidence clearly shows that they heard the cri- es of Amarsingh son of Shankersingh before he was attacked by the appellant and on hearing his cries they rushed to the spot and at a distance of about 10 steps they saw the appellant inflicting a sword blow on the neck of the deceased appellant and on receiving that blow the deceased fell on the ground and ultimately died at the spot. Their statements are corroborated by the fact that soon after the occurre- nce Magan P.W. 1 who was the first informant and Nansingh PW 2 reached the spot but by that time the appellant had gone away. Both these witnesses have deposed that they found Amarsingh son of Shankersingh lying in injured condition and that Amarsingh died at the spot. The statement of P.W.3 Shankersingh shows that he was informed about the occurrence soon after the occurrence and when he came to the spot he found his son Amarsingh lying in injured condition in the field and Amarsingh died at the spot. It may be pointed out that Shankersingh P.W. 3 is the father of the deceased and the circumstance that he was informed about the incident by Ramesh and Amarsingh son of Nansingh without any delay shows that the version given out by Ramesh as well as Amarsingh son of Nansingh is free from suspicion and is trust worthy. We, therefore, do not find any reason to discard the oral evidence of Ramesh P.W. 4 and Amarsingh son of Nansingh P.W.9. (23). The prosecution evidence further shows that the spot where the dead body of Amarsingh son of Shankersingh was found was inside the field of Magan and the earth on which the deceased in injured condition fell down was tainted with blood. Therefore, so far as the place of occurrence is concerned the prosecution story appears to be quite trust worthy. (24). The statement of Ramesh P.W. 4 and Amarsingh P.W.9 is corroborated by the statements of Magan P.W.1, Nansingh P.W. 2 and Shankersingh P.W.3 and in turn the statement of P.W.1 Magan is corroborated by the FIR Ex. P.1 which was lodged at the police station and has been proved by Amarsingh P.W.11. (25). The circumstantial evidence against the appellant consists of the recovery of the sword in pursuance of the information given by the appellant under Sec. 27 of the Evidence Act. Amarsingh P.W.11 has stated that he arrested the appellant and during custody the appellant gave the information about the sword which he recorded as Ex.P.10 and in pursuance of the information given by the appellant the sword was recovered from the house of the appellant Dhoolsingh. Ex.P. 10 shows that the information was voluntarily given and this information was signed by the appellant. Ex. P.6 is the recovery memo of the sword. Ex.P. 10 shows that the information was voluntarily given and this information was signed by the appellant. Ex. P.6 is the recovery memo of the sword. It proves that the accused himself produced the sword from inside his house and submitted the sword to the police officer and it was taken in custody and was sealed. According to the recovery memo Ex.P. 6 it contained some blood on its edge but since no report of the Forensic Science Laboratory to prove the blood has been produced there-fore it cannot be said that the blood was actually present on the sword produced by the appellant. The Motbir witnesses in whose presence the sword was recovered have corroborated the statement of Amarsingh P.W.11 and therefore it must be held that the prosecution has proved that the accused produced the sword from inside his house. However it may be stated that this circumstance by itself is not sufficient to prove any offence against the appellant but it may be used as a piece of evidence. (26). Learned counsel for the appellant has submitted that in this case the deceased Amarsingh son of Shankersingh did not receive any injury on his palm and fingers or any other part of the body and this circumstance makes the prosecution story unreliable because the deceased had seen the appellant moving to- wards him with a naked sword and when he had cried to seek help from the villagers it would have been natural on the part of the deceased to make actual effort to save himself from the sword blow and had he done so he would have suffered some injuries on his palm or fingers. (27). The argument of the learned counsel for the appellant appears to be att- ractive but on a careful consideration it does not carry any weight. When a man is attacked he tries to save not only his life but also every part or organ of the body which is threatened by attack. A man who is being attacked with a naked sword may not find it profitable to raise his hands for fear of receiving injuries on his hands and he may make some other kind of efforts like crying for help. A man who is being attacked with a naked sword may not find it profitable to raise his hands for fear of receiving injuries on his hands and he may make some other kind of efforts like crying for help. Therefor e if the deceased did not make any effort to resist the sword blow by raising his hands it cannot be said to be unnatural particularly when the deceased received only one blow on his neck. (28). The next submission of the learned counsel for the appellant is that in this case there was no motive for the commission of this crime by the appellant. It may be pointed out in the case of this kind it is not necessary for the prosecution to prove the motive which prompted the appellant to cause death of the deceased. The law in this behalf is well established. It is this : If there is sufficient evidence to prove the commission of the offence the question of motive is not important. We therefore do not find any force in the submission that for want of proof of motive to cause death the prosecution story should be discarded. (29). The third submission of the learned counsel for the appellant is that no effort was made by Ramesh P.W. 4, Amarsingh PW 9, Magan PW 1, Nansingh PW 2 and Shankersingh PW 3 to apprehend the appellant soon after the occurrence and therefore it should be inferred that the appellant was not the person who inflicted the sword blow on the body of the deceased and a story has been fabricated against him. (30). We have given our due consideration to this contention. It is true that in the case of cognizable offence like murder a private person can arrest the offender and produce him before the police officer but it is not obligatory upon him to do so. Sec. 39 Cr.P.C. undoubtedly imposes a duty on every citizen to report about the commission of the offences enumerated in that section to the police officer or to the Magistrate but no statutory duty is imposed on the citizens to apprehend the offender. The omission to apprehend the appellant therefore does not cast any shadow of doubt on the testimony of the prosecution witnesses Nos. 1 to 4 and P.W.9. (31). The omission to apprehend the appellant therefore does not cast any shadow of doubt on the testimony of the prosecution witnesses Nos. 1 to 4 and P.W.9. (31). The next submission of the learned counsel for the appellant is that in fact the appellant was in Gujarat on the date of the occurrence. He was arrested in Gujarat and he was not present in the village on the date of occurrence. The answer to this argument is that according to the prosecution evidence soon after the occurrence the accused went away from the village and his family also went away after some time. There is no evidence to suggest that on the date and time of occurrence the accused was not present at the spot. We therefore do not find any force in this submission also. (32). As a consequence of the above discussion, it must be held that the oral evidence in the form of statements of Ramesh P.W. 4 and Amar Singh PW 9 supported by the evidence of Magan PW 1, Nansingh PW 2 and Shankersingh PW 3 and corroborated by the F.I.R. Ex. P. 1 which has been proved by Amarsingh PW 11 and the recovery of blood stained earth from the place of occurrence and the recovery of the sword at the instance of the appellant from his house and the injury actually found on the dead body of Amarsingh son of Shankersingh prove beyond reasonable doubt that it was the appellant who actually inflicted the injury which resulted in the death of Amarsingh son of Shankersingh. (33). The next limb of the argument advanced by the learned counsel for the appellant is that in this case the offence under Sec. 302 IPC is not made out and at best an offence under Sec. 304 Part II IPC is made out. (33). The next limb of the argument advanced by the learned counsel for the appellant is that in this case the offence under Sec. 302 IPC is not made out and at best an offence under Sec. 304 Part II IPC is made out. He has submitted that there is nothing to suggest that the appellant intended to cause death of the deceased within the meaning of Sec. 300 firstly, nor there is anything to suggest that the injury which he was inflicting on the deceased known to the appellant to be likely to cause death within the meaning of Sec. 300 secondly and so far as Sec. 300 thirdly is concerned it is submitted by the learned counsel for the appellant that the Doctor who conducted the post-mortem examination has no where stated that the injury actually found on the neck of the deceased was sufficient in the ordinary course of nature to cause death. (34). We have paid our anxious consideration to the above mentioned submission. It is true that the prosecution has not proved any such circumstance as may conclusively lead to the inference that the appellant intended to cause death of the deceased. There was no such previous enmity as could have created an in- tention to cause death nor the manner of causing injury suggests that the appellant intended to cause death of the deceased. Had he intended to cause death there was nothing to prevent him from inflicting one or more blows on the deceased when he had fallen on the ground to make sure that he was dead. The fact that the accused inflicted only one injury suggests that his intention was not to cause death but it was merely to cause an injury with a sharp edged weapon. We therefore find force in the submission of the learned counsel that Sec. 300 firstly of the Indian Penal Code does not apply to this case. The incident took place at about 9 PM with- out any previous calculation. Only one blow was inflicted and there is nothing to show that the appellant intended to cause such an injury that he knew to be likely to cause death or had knowledge that the blow he was giving was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. Only one blow was inflicted and there is nothing to show that the appellant intended to cause such an injury that he knew to be likely to cause death or had knowledge that the blow he was giving was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. Therefore we find force in the submission that Sec. 300 secondly was not attracted. In this case the Doctor has not stated that the injury actually found on the neck of the deceased was sufficient in the ordinary course of nature to cause death and in the absence of medical evidence it would be unsafe to hold that the injury actually found on the neck of the deceased was sufficient in the ordinary course of nature to cause death. We therefore find force in the contention that the offence under Sec. 302 IPC is not made out. On the other hand the act of the appellant squarely falls within the ambit of Sec. 304 Part II IPC. The second limb of the argument of the learned counsel for the appellant therefore succeeds. The appellant is entitled to be acquitted of the offence under Sec. 302 IPC but he is liable to be convicted under Sec. 304 Part II IPC and we order accordingly. (35). The conviction and sentence under Sec. 4 read with Sec. 25 of the Indian Arms Act deserves to be upheld. (36). So far as the sentence is concerned having regard to the facts and circumstances of the case it would meet the ends of justice if the appellant is sentenced to imprisonment already suffered by him and to pay a fine of Rs. 500/- and to undergo one months imprisonment in default and we modify the sentence accordingly.