Rama Alias Dhaktu Worak v. State .

1. The appellant — Rama alias Dhaktu Worak — appeals from a judgment of conviction upon a charge of murder under Section 302 of the I.P.C The sentence passed is one of imprisonment for life. The said charge is that on or about 12th May 1968, at about 6.00 p.m he intentionally or knowingly caused the death of Rama Mambo Worak, by assaulting him with a stick. The prosecution case may be briefly stated: Rama Mambo Worak, the deceased, was a shepherd by occupation. On 12th May, 1968, as usual, he had taken a flock of sheep for grazing. The sheep returned to their fold barring three. Smt. Nagui Worak, wile of the deceased, asked her son Nahu Worak to trace them. Nahu Worak left his house for that purpose and, when he was near a tree, he saw the appellant calling the deceased. The deceased and the appellant spoke to each other. Nahu Worak heard them speaking but could not say what they spoke. Nahu Worak next saw the deceased returning in the direction of his home. It was then that the appellant called the deceased once again. When the deceased went near him, the appellant emerging from his home, gave a number of blows with a stick (tonko) on his head and other parts of his body. Nahu Worak then ran home and apprised his mother Nagui Worak of the assault by the appellant. She, Nahu Worak and her eldest son Thaku Worak ran towards the place of the assault, where they found the deceased lying unconscious and bleeding near the courtyard of the house of the appellant. The appellant on seeing them ran towards Cudchorem village. The complainant Mortu Worak, brother of the deceased, was apprised of the assault by the appellant, by Naku Worak, second son of the deceased and Balu, nephew of the deceased, at about 9.00 p.m the same day. The complainant Mortu Worak at that time was in Cudchorem village in connection with a marriage. The complainant, along with Naku Worak and Balu Worak hastened to the scene of the assault. When they came there they saw the appellant, his mother, Nagui Worak, wife of the deceased, Laxman Gauncar, Babu Gauncar and some children. Nagui Worak was weeping. The deceased was found lying unconscious and he was bleeding. The complainant asked the appellant whether he had beaten the deceased. The appellant denied. According to him the deceased fell down near his house. The deceased later was carried home by Janu and Malu. The condition of the deceased became serious and therefore he was removed in a jeep first to Sanquelim hospital and later, to Asilo hospital at Mapuca on 13th May, 1968. The condition of the deceased being very serious he was not admitted in the Sanquelim Hospital. The deceased expired on 14th May, 1968. The complainant then lodged report with the police the same day at night time.

2. The appellant, when examined in the Court of Session, stated that the deceased fell down near his house when he found him unconscious and, at that time, no one was present. He called out for Naku Worak, son of the deceased, twice or thrice, but as there was no response, he went to Laksman Gaonkar and brought him. He denied assault on the deceased. He did not tell Laksman Gaonkar that the deceased abused and wanted to assault him. The complainant, according to him, was deposing against him because he had given a loan of Rs. 600/- to him which the complainant did not wish to return. He denied discovery on the stick (tonko) at his instance. He admitted that sometime back the deceased and he had quarrelled. He did not abscond. He added that the complaints gave him first blows when he denied, assault on the deceased.

3. The prosecution evidence against the appellant is both direct and indirect, I shall first consider the direct evidence Nahu Worak (P.W 2), the youngest son of the deceased, witnessed the assault at a distance of about 37.8 metres. This distance was later measured by Sub-Inspector Kale, at the instance of Nahu Worak, in the presence of panch witness Vishvanath Vishnum Fogueri (P.W 7). Nahu Worak is the only eye-witness and his evidence is of considerable importance. Mr. Marathe learned counsel for the appellant, attacks this evidence on the ground that Nahu is a got up witness and that he did not see the assault. In this connection, he states that Nahu Worak's name is not disclosed in the first information report lodged by the complainant. He also states that Nahu Worak is a child witness and, therefore, it is not safe to rely on his evidence. He cites State of Bihar v. Kapil Singh, AIR 1969 SC 53 on evidentiary value of a child witness. The facts of this case are clearly distinguishable. A case is an authority for what it decides. In the first place, the child witness Manti, in that case, was about 11 years old when her aunt was murdered. She was kept at the Police Station where she was repeatedly questioned. There were a number of other circumstances which threw considerable doubt on her evidence. The corroborative evidence also appeared to their Lordships as ‘of a very doubtful character’. It is in the background of these facts that the Supreme Court observed that while “such a child witness can often be expected to give out a true version because of her innocence, there is always the danger in accepting the evidence of such a witness, that, under Influence she might have been coached to give out her version by persons who have influence on her.” Nahu Worak was about 14 years old when he saw the assault. He is therefore not a child witness within the meaning of Section 5 of the Indian Oaths Act, 1873. There is no evidence of compulsion on him, as in the case of Manti, a solitary eye-witness. Section 118 of the Indian Evidence Act 1872 indicates persons who are competent to testify. The learned Sessions Judge was satisfied that Nahu Worak was a competent witness to testify. Nahu Worak was administered oath by him because he could understand the obligation of an oath. It may not be entirely safe, as a matter of prudence, to convict the appellant on his testimony alone, although Section 134 of the said Act states that “no particular number of witnesses shall in any case be required for the proof of any fact.” The law is well settled that the evidence of a single witness, if believed, would be sufficient to prove a fact. This is because the evidence has to be weighed and not counted. The qualitative and not quantitative character of the evidence is what the Act stresses. The law is also well settled that the evidence of a witness need not be necessarily true in all respects. It may be partly true and partly untrue. It is for the Courts to separate truth from untruth. The maxim ‘falsus in uno falsus in omnibus’ has not received general acceptance by the Courts in our country and in other countries. According to Wigmore this maxim is unsound as a rule of law. Untruth on a major point would doubtless shake the credit of a witness but not necessarily on a minor point.

4. It is not in dispute that the houses of the appellant and the deceased are in the same locality. It is not surprising that some sheep did not return to the fold. The deceased was a shepherd and he took sheep out for grazing. It was sometime before sunset that the deceased was returning home preceded by sheep. This is the normal time for shepherds to return home. It is quite natural for Nagui Worak to ask her son Nahu Worak to look out for the missing sheep. Nahu Worak went out and, in his own words, what happened may be reproduced:—

“My mother sent me to look out for missing lambs. I went by the road to look out for those 3 lambs and when I reached a ‘Nano’ tree, a little away from It, I saw the accused ‘Dhakto’ calling my father ‘Kaka’ saying ‘Rama hanga Yeo’ (Rama come here). My father went near the accused, near the house of the accused and there he had a talk with the accused. I do not know what they talked to each other but I heard they talked something. Soon after, my father left the place and was returning home. The accused closed the front door of the house and came out by the back door with a ‘Tonko’ and called out my father ‘hanga yeo’ (come here) and when my father went near the accused, the latter gave a stroke of ‘Tonko’ on the head, on the middle of it. My father fell down, as a result of that stroke. Whilst falling down, my father raised his right hand towards the place of the head where he was hit. Then the accused gave two other strokes on the hand of the deceased. After my father had fallen, the accused again hit the ‘Tonko’ above the right ear, more or less. I saw all this standing near the said ‘Nano’ tree.”

5. This narration of events seems natural. In all, four lathi blows, according to Nahu. Worak were given to the deceased; one on head and second near about the head, and the remaining two on hands. I may concede straightway that Nahu Worak may not be very precise in seeing the number of stick blows and also the exact part of the body where they landed, but the fact remains that the deceased received multiple injuries, and that he died as a result of blow or blows on head. Let us turn to the medical evidence, and see whether it corroborates Nahu Worak on the factum of injuries.

6. Dr. Kashinath Sardesai (P.W 13), medical officer attached to the Panjim Hospital, found the following external injuries on the deceased during post mortem examination on 14th May, 1968: 1. Deformity on the right fronto-temporo-parietal region of the skull, with signs of contusion; 2. Signs of equimosis on the upper lid of the left eye; 3. Signs of contusion in the left fronto-temporo-region of the skull; 4. One contused wound, superficial dimension 4 cms., as its length, directed vertically and situated on the dorsal aspect of the right thumb; 5. Various abrasions, small, on the posterolateral aspect of the right thigh; 6. Abrasions, few and small on the scrotum; 7. One superficial wound, with irregular edges 4 × 3 cms., dimension, extending more in a transverse direction and situated on the anterior surface of the right knee; round about this wound, there are few small abrasions; 8. Small abrasions on the anterior surface of the left knee; 9. Small abrasions, in the right supraclavicular region; 10. Small abrasions, on the external border of the right forearm, in its middle part. The internal examination revealed:—

1. Very extensive infiltration of blood in the soft tissues of the skull in the region of right-fronto-temporo-parietal and left fronto-temporo; 2. There are some clots of blood; 3. There is a fracture of the skull, directed transversely from one temporal bone to other. This fracture is deeper in its right half. There are signs of depressed fracture (fractura com afundamento) in the right temporal bone. On Internal examination of the skull, there are signs of sub-dural haematoma in both the cerebral hemispheres. The cause of death, according to Dr. Kashinath Sardesai, was the fracture of the skull. The fracture found in the skull, according to him, might have been caused by a violent hit on the particular region of the skull, extending upto the line of fracture. The stick in court (M.O 5), he opined, could cause this fracture. Barring the fracture of the skull and injuries on knee, other injuries and abrasions, according to him, may have been caused by the rolling of the body on a hard surface or by M.O 5. Dr. Kashinath Sardesai further opined that as there were signs of haematoma on both frontotemporo regions (left and right) the fracture of the skull might have been caused by hit on both sides of the head and, it was very unlikely, that it would be due to a fall on a heap of stones in a drunken state from a bundh. This evidence generally corroborates the testimony of Nahu Worak on blows on head and hands. The injuries on hands and knee may have been caused while the deceased tried to ward off the stick blows. Injuries (1) and (3) on head are no doubt serious injuries but not the other injuries. The assault, more or less, was on the right side of the body of the deceased. The medical evidence negatives the theory of death on account of a fall in a drunken state on a hard surface. Common-sense militates against it. The other evidence renders it untrue, and verily, it has not been accepted by the learned Additional Sessions Judge for reasons mentioned by him in paragraphs 21 and 23 of his judgment. It is not necessary to repeat those reasons. It is in the evidence of prosecution witness Vithal Narain Thakur (P.W 11) that the deceased took one ‘pau’ of cashew liquor (equivalent in percentage to a quarter of beer bottle) on the day of the incident at about 4.00 p.m but, I agree with the learned Additional Sessions Judge, that this quantity of liquor “cannot be considered too much for a labourer to put him in an intoxicated condition and nothing is in evidence to show that, on that day, the deceased consumed more liquor.” The medical evidence is clear enough, apart from what Nahu Worak deposed, that the deceased died because of the assault with a stick (tonko). Nahu Worak immediately apprised his mother of the assault with a stick (tonko). Nahu Worak saw the appellant running away when he and his mother hastened to the place of the offence. Nahu Worak deposed to the presence of the mother of the appellant at the place of the offence. He saw her sprinkling water on the deceased. He also deposed to the presence of the appellant, Laksman Gaonkar and the complainant shortly after he and his mother Nagui Worak had arrived at the place of the offence.

7. It is true that Nahu Worak's name is not mentioned in the first information report (Exhibit 2) and this omission, according to Mr. Marathe, raises a doubt whether the assault was really seen by Nahu Worak. This omission has to be satisfactorily explained. The report is the basis of the case, although it is not the last word in the prosecution case. The fact that no eye-witness is mentioned by name therein, is a circumstance against the prosecution, particularly when the complainant in this case was aware or could reasonably be aware of his presence. According to the learned Additional Sessions Judge, the omission may be due to the complainant not being aware that Nahu Worak was the only person who had witnessed the incident. This reasoning does not appear to be convincing. The report was lodged by the complainant on 14th May, 1968 at about 11.45 p.m This was after the death of the deceased at about 2.00 p.m the same day. The assault took place on 12th May, 1968, in the evening. It may be difficult to persuade oneself that the complainant was not then aware that Nahu Worak had seen the assault. It is reasonable to assume that he was so aware but the possible explanation is that the narration of the incident of the assault by him was not complete. As will appear from the report, it is not a detailed one. It contains the broad particulars of the incident. It mentions that Naku Worak and Thaku Worak apprised the complainant of the assault on the deceased by the appellant with a stick. It also mentions that before the assault the appellant called the deceased when he was passing by his house. This was witnessed by Nahu Worak alone and not by any other person and this intrinsic evidence seems to show that Nahu Worak is an eye-witness. Naku Worak (P.W 10) saw Nahu Worak, Nagui Worak and others at the scene of the crime soon after the assault. Nahu Worak was examined next day, i.e, 15th May, 1968, by Sub-Inspector Kale (P.W 16). There was no delay in examining him. It is in the evidence of this witness that a supplementary detailed statement of the complainant was recorded by him on 16th May, 1968. This statement is hit by Section 162 of the Code of Criminal Procedure as it was recorded during the course of investigation and, therefore, cannot be used in evidence, except in the manner mentioned in that section. According to Mr. Tamba, learned Government Pleader, the omission of the name of Nahu Worak from the report is satisfactorily explained. I agree. Nahu Worak's evidence, read as a whole, is not shaken in cross-examination. There are no discrepancies on material points. He is not a got-up witness. It may be emphasized that persons giving their testimony of an occurrence are liable to disagree on minor points. Their power of observation, recall and expression may not be the same and some differences are possible. It is only the broad facts and not the little details that are to be considered in weighing evidence. Nahu Worak's version of the assault was accepted by the learned Additional Sessions Judge, except for the statement that he did not hear the appellant the deceased exchanging abuses. This evidence, according to him, is untrue. I shall consider this part of the evidence of Nahu Worak when I deal with the question whether the sentence for murder under Section 302, I.P.C is legally justified. In the matter of appreciation of evidence and credibility of witnesses the opinion of the trial Judge has necessarily to be given due weight.

8. The indirect evidence may next be considered in broad terms. Mr. Marathe argues that the complainant, Nahu Worak, and Nagui Worak are all related inter se and therefore they are interested witnesses and hence their evidence should be rejected. I am not aware of any provision or principle of law in support of this argument. The mere fact that they are related is no ground for discrediting their evidence. Each case has to be judged on its own merits. In the very nature of the things, barring these persons. In a village sparsely occupied, no one else may have been present at the time of the assault. As, stated earlier, the complainant lodged report on 14th May, 1968, at about 11.45 p.m The deceased died the same day at about 2 p.m When asked to explain the delay in not lodging the report soon after the assault on 12th May, 1968, at about 6.00 p.m or so, he stated that he was worried about the condition of the deceased and was busy looking after him and therefore he did not lodge report that day. We are dealing with villagers and out sophisticated people who are aware of the evidentiary value of lodging reports of crime soon after occurrences. This explanation is quite satisfactory. As will appear from the evidence of the complainant, he named the appellant as the assailant. He indicated the weapon used in the assault (tonko). He mentioned the fact that the appellant and the deceased used to quarrel and that they were not on good terms. This evidence is substantially corroborated by the report lodged. When the report is not by an eye-witness but is based on derivative information received, minor discrepancies between the statements as mentioned in the report and the evidence are to be ignored. Naku Worak (PW 3) supported Nahu Worak's version of the assault by the appellant on the deceased with a stick. She also saw the appellant running away from the scene of the crime. She stated taht she saw the mother of the deceased sprinkling water on the deceased and that afterwards besides the appellant, Laksman Gaonkar, the complainant Naku Worak and Taku Worak were at the scene of the crime. She was examined by the police 16th May, 1968. Laksman Gaonkar (P.W 4) was examined on 15th May, 1968. He is a Sarpanch. He is not related to the complainant. He deposed that the appellant came to his house and informed him that the deceased abused him and wanted to assault him. He did not then tell him that the deceased had fallen near his house because he was drunk. He also stated that the complainant wanted to beat the appellant at the scene of the crime but he intervened. It is in evidence that the complainant has a better physique than the appellant, and the attempt to beat the appellant is not unnatural in the circumstances of the case. The evidence of Vithal Gaonkar (P.W 5), Rajaram Tari (P.W 15) and Sub-Inspector Kale (P.W 16) relates to absconding of the appellant. There is no evidence that the appellant was absconding after the assault and before the report was lodged. The evidence is that he absconded thereafter. According to these witnesses the appellant was not in his house on 14th and 15th May, 1968. It was on 16th May, 1968, that he was arrested in the vicinity of his house. The evidence of defence witnesses, Vago Zore (D.W 3) and Laximan Varac (D.W 4) was led on behalf of the appellant to explain the absence of the appellant from his house during these two days. According to these witnesses, the appellant had gone to trace his lost buffalo. This evidence is not believed by the learned Additional Sessions Judge and for good reasons, but absence of the appellant from his house for a couple of days does not prove that the appellant absconded. There ought to be better evidence on this point. The fact of absconding is relevant as explaining the subsequent conduct under Section 8 of the Evidence Act. There is the evidence of Sub-Inspector Kale and panch witness Vishwanath Fogueri (P.W 7) on discovery of the stick (MO 5), This discovery took place on 20th May 1968, vide panchanama (Exh. P. 9). The appellant was accused of murder and he gave information to the Police, in consequence of which, M.O 5 was discovered. It was lying in the cow-shed of the appellant, situated at a distance of about 13 metres from his house. According to Mr. Marathe, this discovery is not a genuine one. Nahu Worak deposed that (M.O 5) was not used in the assault. It was really difficult for him to see that a stick other than M.O 5 was used in the assault. This line of argument, of learned Government Pleader is not unconvincing. The Police were not aware of the place where (M.O 5) had been thrown by the appellant after the assault. It is true that the appellant did not conceal it in a ditch or some such place but for the purposes of Section 27 of the Evidence Act this is not an indispensable requirement. This evidence is admissible and can be used against the appellant under Section 27. This section is based on the theory of confirmation by subsequent facts. Production of articles by an accused is relevant as evidence of subsequent conduct under Section 8 and statements accompanying such conduct are also admissible. They are evidence of res gestae. Nahu Worak's evidence is also supported by discovery of M.O 5. There is sufficient evidence, independently of this discovery, to bring home guilt to the appellant, assuming what Mr. Marathe says is correct. The evidence of Naku Worak (P.W 10) corroborates the evidence of the complainant that he was informed of the assault by him. The reason for the assault was that the appellant and the deceased were not on good terms. Proof of motive or ill will is not necessary to sustain conviction when there is clear evidence, as in this case, that the deceased was assaulted by the appellant with M.O 5. The motive is known to the appellant alone, and the prosecution, at best, could only suggest what moved the appellant in striking the deceased. Sub-Inspector Kale denied specifically that he converted a case of an accident into a case of murder. It is true that the appellant at the earliest stage set up a case of the deceased having fallen on account of excessive drink but this only shows that he is more of a have than a fool. The other evidence examined in support of the prosecution case relates to inquest, chemical analyser's report and other formal matters which need not be reviewed. The chemical analyser's report (Exh. P. 25) mentions that a part of the mud or earth gathered from the scene of the offence was mixed with blood and that khaki banyan worn by the deceased at the time of the assault is stained with blood. This banyan, according to the report, appears to have been washed. This report, however is not helpful. The complainant was not even examined on the point whether he was deposing against the appellant because of the alleged loan advanced to him. The direct and indirect evidence is not shaken in cross-examination. The assault on the deceased by the appellant with M.O 5 is proved. Mr. Marathe also contends that the prosecution should have examined the mother of the appellant who was admittedly present at the time of the trial. According to the learned Government Pleader, the prosecution was under no legal obligation to examine her. He submits that the evidence adduced by the prosecution was sufficient to prove the assault, and it was not really necessary that the prosecution should have examined all the witnesses. He also submits that the appellant could have examined her, if he so chose. The omission to examine her is not of much consequence.

9. The next question for consideration is whether on the facts established the conviction of the appellant is rightly recorded under Section 302 I.P.C The learned Additional Sessions Judge was of the view that the prosecution had not proved that he intended to cause the death of the deceased. He then went on to add that the manner in which the aggression took place, with the stick blows on the head of the deceased, left no doubt in his mind that the appellant knowingly caused the death of the deceased. In the premises, he convicted him under Section 302 I.P.C, without indicating what particular clause of Section 300 applies. Let us first review the medical evidence. According to Dr. Sardesai, injuries (1) and (3) on head were due to two blows. Dr. Jorge Renato Fernandes (PW 13) examined the deceased on 13th May, 1968 at 4.25 p.m when he was admitted in the Asilo hospital. This was before post-mortem examination on 15th May, 1968. Dr. Jorge Renato Fernandes noticed one head injury besides other minor injuries such as abrasions etc. also noticed by Dr. Sardesai. The deceased, according to Dr. Jorge Renato Fernandes, showed clinical signs of “craneal traumatism” and X-ray revealed a linear fracture of fronto-parieto-temporal region. This injury is head injury no. (1), also noticed by Dr. Sardesai. It is true, as deposed by Dr. Jorge Renato Fernandes, that he did not examine the deceased minutely but if there were really two head injuries, X-ray should have revealed them. In any case, doubt in this behalf, is to be resolved in favour of the appellant. The evidence of medical men is of an advisory character given on the data placed before them. Their evidence is primarily an evidence of opinion and not of fact. According to Dr. Sardesai, injuries nos. (1) and (3) cumulatively and not individually Were sufficient in the ordinary course of nature to cause death. He then corrected himself and testified that injury No. (1) or injury no. (3) was individually sufficient in the ordinary course of nature to cause death. It may be stated that Dr. Sardesai was not examined in the Sessions Court, on this aspect of the matter. He was examined in this Court, and the evidence on sufficiency seems to be somewhat halting and uncertain. Assuming for the sake of argument that injury no. (1) individually was sufficient in the ordinary course of nature to cause death (injury no. (3) seems to be part of injury no. (1)), even then, clause (3) of Section 300 I.P.C will not apply unless the prosecution can prove that the appellant intended to cause this particular injury resulting in the death of the deceased. I agree with the learned Additional Sessions Judge that the appellant did not intend to cause the death of the deceased and, therefore clause (1) of this section is inapplicable. The appellant did not desire the death of the deceased when he hit him with the stick on his head and other parts of his body. He could not have foreseen as substantially certain his death. It may be added that intention also includes foresight of certainty. A consequence is deemed to be intended though it is not desired when it is foreseen as substantially certain. The appellant is an agriculturist by occupation and, ordinarily, he should have been in possession of a hatchet and other sharp cutting implements at the time of the assault. He could have used any one of those weapons in assaulting the deceased if the intention were to kill him outright. Clauses (2) and (4) are also inapplicable. They apply to a different situation. The appellant would be guilty of culpable homicide amounting to murder under Section 302 I.P.C if clause (3) applies but not otherwise. Murder under this section is an aggravated form of culpable homicide under Section 299. I also agree with the learned Additional Sessions Judge that there was possibly an exchange of abuses between the deceased and the appellant before the deceased was assaulted by the appellant. Nahu Worak deposed that the appellant and the deceased spoke to each other. He heard them “talking something”. He, however, denied in cross-examination that there was an exchange of abuses between the deceased and the appellant or that there was any provocation from the deceased. The appellant stated to Laksman Gaonkar shortly after the assault that the deceased abused him and that he wanted to assault him. I would prefer this statement of the appellant on abuses to the denial of Nahu Worak. Nahu Worak evidently does not wish to find fault with the deceased, who was his father. This is understandable, though not excusable. In any case, suppression of truth on this minor point, does not discredit his otherwise true evidence. The appellant was arrested on 16th May and at that time he had no injuries, it was after an exchange of abuses or some sort of verbal provocation that the appellant went inside his home, brought out the stick (M.O 5) and then emerging from his house, called the deceased and assualted him near the court-yard of his house, causing injuries on head and other parts. The fact that the deceased was lying near the court-yard of the house is admitted by the appellant. The deceased was then on his way home. He was in motion. The attack was sudden in the heat of passion and on the spur of the moment. It occurred on a chance meeting. It is not the prosecution case that this attack was pre-planned. The stick (M.O 5) is 1.20 m. long and 15 cm. thick. It is made out of a tree called ‘cudo’ tree. It is not iron-shod but is-fairly heavy. According to Dr. Sardesai, it could cause the fatal head injury no. 1. When the appellant hit the deceased with, the stick (M.O 5), did he intend to cause this fatal injury or some other kind of injury? Did the fatal blow land in the region of the head by an accident or was it deliberately aimed? This is a subjective investigation concerned with the mental state of the appellant at the time of the assault. The enquiry, in this connection, has to be “broad-based and simple and based on commonsense the kind of enquiry that “twelve good men and true” could readily appreciate and understand.” (‘Virsa Singh v. State Of Punjab, AIR 1958 SC 465 at p. 467). The totality of the circumstances seem to justify an inference that the stick (M.O 5) was not deliberately aimed at the head of the deceased, in other words it may be unintentional. The injuries on other parts of the body of the deceased are minor in their nature. Abrasions, medically, are superficial injuries. They are blunt impact injuries. It cannot be assumed that when head injuries are caused by a lathi, or stick, the offenders always intend to cause those injuries and no other injuries. A head is undoubtedly a vital part of body but there are cases and cases of lathi or stick blows. The subjective test is not satisfied in this case, and, therefore, this clause also is inapplicable. It may be added that the appellant did not plead any special exception in Section 300 I.P.C, nor there is basis for any such exception. The nature of the assault and its manner; what preceded immediately before and after; the kind of weapon used in the assault; and the fatal head injury due to one blow, are considerations which, in my opinion, would seem to bring the case within the purview of Section 304 Part II and not Section 302. Knowledge envisaged under Section 304 Part II is an awareness of the consequences of a criminal act. The appellant is presumed to intend the natural and inevitable consequences of the assault on the deceased. The death, in this case, was probable result of this assault. When the appellant used M.O 5 he should have known that it was likely ter land on the head of the deceased and result in his death. The appellant is about 35 years old. The age of the deceased, was about 40 years. The deceased was a cousin of the appellant. As sometimes happens, there is no love lost between cousins. The appellant attacked him when he was unarmed. It may be that there was some other strong motive for attacking the deceased but this is known to the appellant alone. All that can be stated on the basis of the evidence is that the deceased and the appellant were not on good terms before the assault. It is not possible to maintain the conviction of the appellant under Section 302 Indian Penal Code. The argument of learned Government Pleader that the appellant intended to cause the death of the deceased does not seem to be convincing. It is possible that when the learned Additional Sessions Judge went on to conclude that the appellant knowingly caused the death of the deceased he had section 304 Part II in mind. In the view taken of this case, the conviction of the appellant is altered from Section 302 to Section 304, Part II. The sentence of imprisonment for life under Section 302 is accordingly set aside. The appellant, instead, is convicted and sentenced to undergo R.I for 7 years under Section 304, Part II, I.P.C Order accordingly.

BNP/D.V.C

10. Order accordingly.