JUDGMENT 1. - This appeal is directed against the Judgment dated 12.8.1991 passed by the learned Sessions Judge, Udaipur whereby the learned Sessions Judge has convicted the accused-appellant Hurta of the offence under section 302 IPC and sentenced him to rigorous imprisonment for life together with a fine of Rs. 500 /- and in default of payment of fine to further undergo simple imprisonment for three months. 2. The prosecution case lies in a very narrow compass. The deceased Bhagsingh was the brother of accused Hurta and Panna. There was a dispute between deceased Bhagsingh and his brothers Hurta and Panna in respect of an agricultural field Rat Talai.It is alleged that accused Panna went to the house of Bhagsingh in order to amicably settle the dispute. Respectable persons of the village viz., PW 3 Kanhaiyalal and PW 6 Bherusingh were also summoned at the house of Bhagsingh. During the course of negotiations, there was altercation between Bhagsingh and accused Panna and they grappled with each other and fell down. At that time, accused Hurta appeared there armed with a Kudali and inflicted many blows on the head and forehead of Bhagsingh. As a result of the above assault, Bhagsingh sustained fatal injuries on his head and died on the spot instantaneously. 3. PW 5 Manu Bai wife of Bhagsingh tried to intervene but Hurta dealt a Kudali blow on her right hand. PW 2 Tulsi was also present there. Seeing the above quarrel, PW 2 Tulsi went to Bhimsingh and informed him that there was a beating at the house of Bhagsingh. Bhimsingh immediately reached the house of Bhagsingh and saw that Bhagsingh was lying dead. There was profuse bleeding from his wounds. Manubai narrated the whole incident to him. 4. Thereafter, Bhimsingh went to the Police Station, Gogunda and lodged the FIR on 16.6.1990 at 11.30 a.m. On the basis of this report, the Police registered a case under section 302 r/w 34 IPC and started investigation. The Investigating Officer inspected the site and prepared the site plan and site inspection Memo. He also prepared the Inquest Memo Ex. P/10. The blood stains and controlled soil were also collected vide Memo Ex. P/11. The autopsy on the dead body of Bhagsingh was got conducted by PW 1 Dr. B.L. Shahu, who prepared the postmortem examination report Ex. P/1. He also prepared the Inquest Memo Ex. P/10. The blood stains and controlled soil were also collected vide Memo Ex. P/11. The autopsy on the dead body of Bhagsingh was got conducted by PW 1 Dr. B.L. Shahu, who prepared the postmortem examination report Ex. P/1. According to the Medical officer, there was a depressed fracture of the size of 11/2" x 11/2" of left frontal bone and the bone fractured in 4-5 pieces. The Doctor also opined that Bhagsingh died on account of head injuries sustained by him. There were three other injuries but they are not relevant as they were not found to be responsible for causing the death of Bhagsingh. 5. After usual investigation, the Police filed a challan against the accused-persons and the learned Magistrate committed both the accused viz., Hurta and Panna to the Court of Sessions for trial. The learned Sessions Judge framed the charge under section 302 IPC against accused Hurta and under section 302/34 IPC against accused Panna. Both the accused denied their indictment and claimed to be tried. 6. The prosecution produced 11 witnesses in support of its case. The statements of the accused-persons were also recorded. They did not produce any witness in their defence. In their statements under section 313 Cr.P.C. both the accused denied all the allegations levelled against them by the prosecution and claimed that they have been falsely implicated on account of enmity. 7. The learned Sessions Judge after appreciation of the prosecution evidence came to the conclusion that the prosecution could not prove the charge under section 302/34 IPC against accused panna because accused Panna and deceased grappled with each other at the time when Hurta was not present. Hurta arrived at the scene of the occurrence all of a sudden and dealt Kudali blows on the head and forehead of Bhagsingh. Thus, there was no preconcert between accused Hurta and Parma. He, therefore, acquitted accused Parma of the offence under section 302/34 IPC but convicted accused Hurta for the offence under section 302 IPC and sentenced him as aforesaid. 8. The learned Sessions Judge held that the death of Bhagsingh was homicidal in nature. In the instant case, PW 2 Tulsi and PW 5 Manubai have turned hostile. PW 2 Tulsi, PW 5 Manubai, PW 3 Kanhaiyalal and PW 6 Bherusingh were the eye-witnesses of the occurrence. 8. The learned Sessions Judge held that the death of Bhagsingh was homicidal in nature. In the instant case, PW 2 Tulsi and PW 5 Manubai have turned hostile. PW 2 Tulsi, PW 5 Manubai, PW 3 Kanhaiyalal and PW 6 Bherusingh were the eye-witnesses of the occurrence. PW 8 Bhimsingh has also not supported the prosecution case. He even denied that he lodged the FIR at Police Station, Gogunda. He alleged that the SHO obtained his signatures on a blank paper. The learned Sessions Judge disbelieved this version of the witness and held that the FIR was lodged by PW 8 Bhimsingh. According to the FIR Ex. P/7, the information regarding this incident was conveyed to Bhimsingh by PW 2 Tulsi. The learned Sessions Judge found the testimony of PW 3 Kanhaiyalal, PW 5 Manubai and PW 6 Bherusingh to be trustworthy and found that the offence under section 302 IPC has been proved against the accused Hurta beyond reasonable doubt. 9. We have heard M/s. N.P. Gupta and R. Chouhan, the learned counsel appearing for the accused-appellant and Mr. R.S. Rathore, the learned Public Prosecutor for the State and have very carefully gone through the record of the case. 10. The learned counsel appearing for the accused-appellant has challenged the conviction and sentence of the accused Hurta for the offence under section 302 IPC on the ground that there is no independent witness of the occurrence. PW 5 Manu Bai is the wife of deceased Bhagsingh and, therefore, she is an interested witness and, so her statement should not be relied upon until and unless it is corroborated by any independent witness. PW 5 Kanhaiyalal has turned hostile. PW 6 Bherusingh is the only witness but he has not been relied upon. 11. In the alternative, the learned counsel contended that accused- appellant Hurta is the real brother of deceased Bhagsingh and it was not his intention to cause the murder of Bhagsingh. There was a dispute with regard to an agricultural field and at that time, Panna and Bhagsingh were talking for negotiations but unfortunately, both of them lost temper and started fighting. It was during that process that accused Hurta appeared on the scene of the occurrence and struck Kudali blows on the head and forehead of Bhagsingh. There was a dispute with regard to an agricultural field and at that time, Panna and Bhagsingh were talking for negotiations but unfortunately, both of them lost temper and started fighting. It was during that process that accused Hurta appeared on the scene of the occurrence and struck Kudali blows on the head and forehead of Bhagsingh. Normally Kudali being a agricultural implement is kept by every agriculturist and hence it cannot be said that accused Hurta appeared on the scene of the occurrence with some intention. There was only a single blow, though on a vital part, but it cannot be said that the accused intended to cause the injury which was sufficient in the ordinary course of nature to cause the death. He, therefore, submitted that the only offence under section 304 Pt. II, IPC made out against the accused- appellant. 12. The learned counsel further submitted that the accused has been in jail since 16.6.1990 and hence, he may be sentenced to the period already undergone. 13. On the other hand, the learned Public Prosecutor has opposed the contention raised by the learned counsel for the appellant. He submitted that the intention of the accused in such cases is reflected by the injuries caused by him. In the instant case the accused has used a very deadly weapon i.e. Kudali which is a very heavy weapon and even the part of the body selected by him for assault was also vital part of the body i.e. his head. The accused has also used force in inflicting the injuries inasmuch as on account of this assault, the bone was fractured in four or five pieces. The deceased died instantaneously as a result of the above head injuries. Hence, the learned Sessions Judge has correctly held the accused-appellant guilty of the offence under section 302 IPC. 14. We have considered the rival contention raised at the bar and have also perused the evidence on record. 15. It has not been disputed that the death of Bhagsingh was homicidal in nature. In the facts and circumstances of the case, the first question that crops up for determination is whether the accused Hurta caused the above injury to deceased Bhagsingh. It is correct that the occurrence was witnessed by four witnesses viz., PW 5 Manu Bai, PW 3 Kanhaiyalal, PW 6 Bherusingh and PW 2 Tusli. In the facts and circumstances of the case, the first question that crops up for determination is whether the accused Hurta caused the above injury to deceased Bhagsingh. It is correct that the occurrence was witnessed by four witnesses viz., PW 5 Manu Bai, PW 3 Kanhaiyalal, PW 6 Bherusingh and PW 2 Tusli. PW 2 Tusli has turned hostile to the prosecution. However, PW 3 Kanhaiyalal has substantially supported the prosecution case. He has categorically stated that while Panna and Bhagsingh were grappling with each other, accused-appellant Hurta appeared on the scene of the occurrence armed with a Kudali and he immediately dealt four Kudali blows on the person of Bhagsingh including one on his head. As a result of the above injury, Bhagsingh fell down and died on the spot. This witness was declared hostile only on the ground that he only stated that Hurta dealt only one blow to Bhagsingh. 16. PW 6 Bherusingh has fully supported the prosecution case. PW 5 Manubai has also fully corroborated the prosecution case and her presence on the place of the occurrence is beyond doubt. Hence the prosecution has proved its case beyond I reasonable doubt that it was accused Hurta who was the author of the injuries sustained by deceased Bhagsingh. Thus, it has been proved that the accused also dealt head injury to Bhagsingh which proved fatal and brought the end of the life of Bhagsingh instantaneously. 17. The next question that we are called upon to decide is whether offence under section 302 IPC is made out against the accused- appellant or not ? 18. For bringing the offence under section 300 Cl. (iii), the prosecution is required to prove the intention of the accused in inflicting bodily injuries which in the ordinary course of nature were sufficient to cause the death. The intention is the essential ingredient of the offence. For ascertaining the intention of the accused, the nature of injuries, the nature of weapon used by the assailant in inflicting injuries and number of blows administered to the victim are to be taken into consideration. 19. Whether the accused had an intention to kill is a question of fact and that has to be determined with reference to the facts and circumstances of each case. 19. Whether the accused had an intention to kill is a question of fact and that has to be determined with reference to the facts and circumstances of each case. The nature of the weapon used by the accused in inflicting injuries and the vital part of the body which was affected and the number and nature of the injuries would indicate the intention of the accused. In the instant case, the accused assaulted with a very heavy weapon i.e. Kudali, which may be called dangerous when used in violence. The part of the body selected was the most vital part of the body i.e. head. Even from the perusal of the injury sustained by the deceased on his head, it is clear that brute force was used for inflicting the above injury and that has resulted in the cut of the bone into four or five pieces. The above head injury was sufficient in the ordinary course of nature to cause the death. Hence the intention to kill can be attributed to the accused. There are no circumstances negativing the above presumption. Thus, the accused shall be deemed to have caused the above injury which was sufficient in the ordinary course of nature to cause the death. 20. In this view of the matter, we do not find any substance in the contention of the learned counsel for the appellant that only offence under Section 304 Pt. II IPC is made out against the accused-appellant. In our opinion, the learned Sessions Judge has rightly convicted and sentenced the accused-appellant for the offence under section 302 IPC. 21. In the result, we do not find any force in this appeal and it is hereby dismissed.Let the result of this appeal be communicated to the accused- appellant and the record of this case be sent back to the learned tower Court.Appeal dismissed. *******