Milap Chandra Jain, J.
1. This appeal has been submitted by the accused-appellant through the jail against the judgment of the learned Sessions Judge, Bhilwara, convicting him under Sections 302 and 326, I.P.C. and sentencing him imprisonment for life and three years respectively and payment of fine of Rs. 100/-under each count. The facts of the case giving rise to this appeal may be summarised thus.
2. Houses of the accused Bharat Singh Rajput and the deceased Devilal and his son Ashutosh (injured) are situated in Sanjay Nagar Colony, Bhilwara. On March 16, 1988 at about 10 P.M., the accused was standing in front of the house of the deceased Devilal and was abusing him. On the intervention of the informant Ladulal P.W.2, he (accused) returned to his house saying that the deceased had challenged a Rajput and he would be done away. He came back from his house with a sword and came inside the house of deceased Devilal. There he attacked deceased Devilal and his son Ashutosh with his sword and inflicted several injuries with it on them. On their hue and cry, several persons of the locality were attracted there and he ran away. The injured Devilal and Ashutosh were brought to the hospital. Ladulal P.W.2 lodged report Ex. P/1 in the police station the same night at 11.30 P.M. On its basis, FIR Ex. P/2 was registered and investigation was commenced. After usual investigation, a challan was filed against the accused Bharat Singh under Sections 302, 307, 326, 324, and 452, I.P.C. in the court of the Munsif cum Judicial Magistrate, Bhilwara who committed him to the court of sessions, Bhilwara. The prosecution examined 19 witnesses and tendered and proved 33 documents. The accused disclosed in his statement recorded under Section 313, Cr PC that he was not arrested but he was called in the police station and he went there. He either denied the prosecution story or said that it is false. The accused did not produce any witness in his defence. He tendered and proved 8 documents only in his defence.
3. Learned Counsel for the appellant contended that offence punishable under Section 302, I.P.C. is not proved from the evidence on record but offence punishable under Section 304 Part II I.P.C. is only proved from the statements of the eye witnesses, namely, Mst. Uma Devi P.W. 1, Ladulal P.W.2 and Ashutosh P.W.9. He relied upon Dungar v. State of Rajasthan 1984 RLW 163, Atma Singh v. State of Rajasthan 1989 Cr LR (Raj) 520, Badrilal v. State of Rajasthan 1981 Cr LR (Raj) 565, Jhalam Singh v. State of Rajasthan 1977 Cr LR (Raj) 438, State of Rujasthan v. Narain 1986 Cr LR (Raj) 197 and Sucha Singh v. State of Rajasthan 1989 Cr LR (Raj)658.
4. The learned Public Prosecutor duly supported the judgement tinder appeal. He relied upon Nav Ratan Mal v. State of Rajasthan 1985 WLN (UC) 625, Harji Ram v. State of Rajasthan 1985 WLN (UC) 460, Gokul Parashram Patil v. The State of Maharashtra 1981 Cr LR (SC) 491 : 1981 Cri LJ 1033.
5. Eye-witnesses, namely, Smt. Uma Devi P.W.1 (widow of the deceased) informant Ladulal P.W.2 and injured Ashutosh P.W.9 (son of the deceased) have categorically stated on oath that the accused Bharat Singh caused injuries to the deceased Devilal and Ashutosh with his sword. Their statements find corroboration from the immediately lodged FIR Ex. P/1, site plant Ex. P/4, site inspection memo Ex. P/3 and the memo Ex. P/ 5 through which amputed left hand of the deceased Devilal and amputed fingers of injured Ashotosh were taken into possession by the police from the place of occurrence. Dying declaration of the deceased Devilal Ex. P/22 was recorded at 11.50 P.M. by Dr. M. L. Dangi P.W.20. The injury report Ex. P/8 of the deceased Devilal and the injury report Ex. P/19 of the injured Ashutosh also corroborate their statements. The accused was arrested within 21 hours of the occurrence i.e. at 2.30 P.M. on March 17, 1988 through arrest memo Ex. P/25. He was examined the same day and simple injuries were also found on his person vide injury report Ex. D/8. In the scuffle, he received these injuries. On his information Ex. P/ 26, sword Art. 1 was recovered through the recovery memo Ex. P/9 and on his information Ex. P/ 27 his blood-stained Baniyan and Chaddi were recovered through recovery memo Ex. P/1 1 and human blood was found on them. It is thus well proved from the overwhelming evidence on record that the accused Bharat Singh was the author of the injuries which were found on the bodies of deceased Devilal and injured Ashutosh.
6. The question for consideration in this appeal is whether offence. under Section 302, I.P.C. is well proved or 304 Part II, I.P.C. is proved. Ladulal P.W.2 has specifically mentioned in his report Ex. P/1 that on his intervention the accused Bharat Singh went to his house telling that he had been challenged by Devilal and he would do him away, he came therefrom with a naked sword in his hand and entered into the house of the deceased Devilal. He has also said so in his statement on oath. It is well proved from the statements of the three eye-witnesses, namely, Mst. Uma Devi P.W. 1 (Widow of Devilal), informant Ladulal P.W.2 and injured Ashutosh P.W.9 (son of Devilal) that the accused Bharat Singh inflicted repeated blows with his sword with great force upon the deceased Devilal and injured son Ashutosh P.W.9 and as a result thereof the left hand of the deceased was got complete cut and fingers of Ashutosh P.W.9 were also got cut. The manner in which the accused-appellant brought the naked sword from his house, entered into the house of the deceased and inflicted blows from his sword leave no doubt that the accused appellant intended to cause the injuries which were noted on the body of the deceased. The site inspection memo Ex. P/3 and site plan Ex. P/4 show that blood was found inside the house of deceased Devilal Over great area Dr. M. L. Sharma P.W. 14 examined the injured Devilal at 10.45 P.M. on March 16, 1988 and at 8.50 P.M. on March 17, 1988 he Conducted the post-mortem examination on his dead body. He has categorically stated that the injury No. 1 of the deceased Devilal was sufficient in the ordinary course of nature to cause his death. Illustration (c) given in Section 300, I.P.C. runs as under :--
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death.
It has been observed in Harji Ram v. State of Rajasthan 1985 WLN (UC) 460 (DB) at page 469 paras 24 and 25, as follows :--
24. In the case of State of Andhra Pradesh v. Royavarapu-Punnayya their Lordships were pleased to lay down broad guide lines for the courts to draw the distinction between Clause (b) of Section 299 and Clause (3) of Section 300, IPC and were pleased to observe that it is one of the degree of probability of death resulting from the intended bodily injury. That it is the degree of probability of death which determines whether a culpable homicide is of gravest, medium or lowest degree. It was further held that the word 'likely' in Clause (b) Section 289 conveys the sense of 'probable' as distinguished from a mere possibility. The words "bodily injury' sufficient in the ordinary course of nature to cause death mean that death will be the 'most probable' result of the injury, having regard to the ordinary course of nature. Their Lordships made it clear that the guide lines laid down in the decision were only broad guidelines and not case iron imperatives.
25. The nature of injuries, chances of survival or the probability of death are the circumstances, Courts are to keep in mind while determining whether the crime amounts to murder or culpable homicide not amounting to murder. Cases may fall under Clause III of Section 300, IPC despite assailant confining the beating to the legs and arms and none of the injury being individually sufficient in the ordinary course of nature to cause death. Injuries in many a case indicate the intention of the assailant. Similarly, the weapon used and the force applied in using that weapon are also important factors to be taken into consideration.
All these facts and circumstances leave no manner of doubt that the offence punishable under Section 302, I.P.C. is well proved against the accused-appellant.
7. The facts and circumstances of the cases relied upon by the learned Counsel for the accused-appellant are quite different and distinguishable. In Dungar v. State of Rajasthan 1984 RLW 163, one injury was only inflicted by the accused and the injured died after nine days. In Atma Singh v. State of Rajasthan 1989 Cr LR (Raj) 520, the accused had no intention to cause injuries sufficient in the ordinary course of nature to cause death and he did not repeat the blows. In Badri Lal v. State of Rajasthan 1981 Cr LR(Raj) 565, there was no previous enmity, occurrence took place at the spur of the moment and one axe-blow was given on the left parietal bone by the accused. In Jhalam Singh v. State of Rajasthan 1977 Cr LR (Raj) 438, the accused while exercising the right of private defence caused injuries with a sword resulting into death and the Court held that the accused exceeded her right of private defence. In State of Rajasthan v. Narain 1986 Cr LR (Raj) 197, there was no motive, eight injuries were inflicted and only one proved fatal. In Sucha Singh v. State of Rajasthan 1989 Cr LR (Raj) 658, there was no previous enmity, there was no motive and only one blow was given on the head. In Gokul Parashram Putilv v. The State of Maharashtra 1981 Cr LR (SC) 491 : 1981 Cri LJ 1033 one blow with a knife was given on a non-vital part of the body of deceased.
8. Harji Ram v. State of Rajasthan 1985 WLN (UC) 460 (DB), cited by the learned Public Prosecutor, has been dealt with in para 6 above. The other cases relied upon by the learned Public Prosecutor do not help him. No case starts at page 22 of 1987 Cr LR (SC) (sic). Noor Khan v. Laxmi Narain 1976 Cr LR (Raj) 646, does not relate to a case under Section 302 or 304, I.P.C. Navratan Mal v. State of Rajasthan 1985 WLN (UC) 625, is a case of sprinkling kerosene oil and setting fire to the body of the wife.
9. Accordingly, the appeal is dismissed. The conviction and sentences of the accused-appellant Bharat Singh awarded by the learned Sessions Judge, Bhilwara are maintained.