JUDGMENT [ENTITY], J.
1. Appellant [ENTITY] is aggrieved by the judgment of the Sessions Court, whereby he has been convicted of offence under [SECTION] of the [ACT], and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 10,000 and in default of payment of fine, to undergo simple imprisonment for a further period of one year.
2. Prosecution version may be summed up thus. On 29.7.2000 a 'Yagya' (religious function) was organized by [ENTITY] (PW-2) at his house in village Sanihal, Tehsil Nurpur. The deceased [ENTITY] and his brother [ENTITY] and several other persons were invited to partake in the feast, which followed the 'Yagya'. Appellant and his brother [ENTITY] were also among the invitees. Around 9.30 p.m. some altercation took place between deceased [ENTITY] and the appellant. Two nephews of [ENTITY], named [ENTITY] (PW-4) and [ENTITY] (PW-8), on noticing the altercation, went to call [ENTITY] (PW-1), who was busy in the kitchen. [ENTITY] immediately came to the Court-yard where the altercation was going on. He saw the appellant giving a blow of '[ENTITY]' (scythe) on the occipital region (just above the neck) of the deceased [ENTITY]. When he aimed another blow of scythe, [ENTITY] (PW-1) and some other persons standing there caught hold of the appellant and [ENTITY] (PW-6) snatched the scythe from the appellant and threw it towards a 'Choe' (Nallah). The deceased was immediately rushed to the Community Health Centre, Indora, which is at a distance of about seventeen Kilometers from the place of occurrence. The doctor informed the police on telephone that a man with injury on the occipital region, allegedly received in a fight, had been brought to the hospital. ASI [ENTITY] (PW-12) rushed to the Community Health Centre after the telephonic message was received at the Police Station. By the time she reached the health centre, [ENTITY] was dead. [ENTITY] (PW-1), the brother of the deceased, who was present at the Community Health Centre, made a statement to ASI [ENTITY], who reduced the same into writing and forwarded it to the Police Station for the formal registration of a case. The police got the post-mortem of the dead-body conducted. The doctor noticed an incised wound 6 cm x 4 cm, which was brain deep. The doctor noticed that the bone underlying this external injury had been cut. Laceration of underlying brain tissue was also noticed. Margins of the cut bone were clean and regular. The injury was opined to be ante-mortem. Time lag between the infliction of the wound and the post-mortem examination was opined to be fifteen hours. The postmortem was conducted on 30.7.2000 at 2.00 p.m. Time lag between the injury and the death was opined to be "instantaneous to within six hours". Spot map was prepared. Marks of blood were noticed in the Verandah of [ENTITY]. Some blood stains were also noticed on the path adjacent to the Court-yard of [ENTITY] (PW-2).
3. On the completion of the investigation, report under [SECTION] of the [ACT], alongwith relevant documents, was submitted to the concerned Judicial Magistrate, who committed the case to the Sessions Court. The appellant was charged with the offence of murder, under [SECTION] of the [ACT] by the Sessions Court. On his pleading not guilty, he was put on trial.
4. Prosecution examined [ENTITY] (PW-1), brother of the deceased, [ENTITY] (PW-2) at whose house the feast followed by 'Yagya' was going on, [ENTITY] (PW-3) one of the nephews of the deceased, who went to call [ENTITY] (PW-1) on noticing the deceased and the appellant quarrelling, [ENTITY] (PW-6), who allegedly snatched the '[ENTITY]' from the appellant and threw it towards the 'Choe', [ENTITY] (PW-8) another nephew of the deceased, who also claims to have seen the appellant inflicting the injury on the occipital region of the deceased, ASI [ENTITY] (PW-12), SI [ENTITY] (PW-13), who investigated the case, Dr. [ENTITY] (PW-4), who conducted the post-mortem examination and Dr. [ENTITY] (PW-5), who provided first aid to the deceased when he (the deceased) was taken to the Community Health Centre, Indora.
5. Appellant took the plea of alibi. He claimed that he was at Chintpurni on the relevant day. He stated that his brother [ENTITY], whom he examined as DW-5, had attended the function at [ENTITY]'s house and there he happened to have a quarrel followed by a scuffle with the deceased and that in the meantime one [ENTITY], who had been very friendly with the deceased, reached there and on seeing that [ENTITY], deceased was scuffling with [ENTITY], he picked up a '[ENTITY]' and aimed a blow at [ENTITY], but the latter turned to one side and escaped and the blow landed on the occipital region of the deceased.
6. The trial Court accepted the ocular version given by [ENTITY] (PW-1), [ENTITY] (PW-2), [ENTITY] (PW-3), [ENTITY] (PW-6) and [ENTITY] (PW-8) and rejected the defence plea. Consequently it convicted and sentenced the appellant, as aforesaid.
7. Appellant's Counsel has made two-fold submission. First he has urged that the evidence on record does not prove the prosecution version, because the alleged eye-witnesses are partisan and interested and also their depositions are full of contradictions and discrepancies rendering their version highly doubtful. His second submission is that even if the ocular version is believed, this is not a case of murder punishable under [SECTION] of the [ACT], but a case of culpable homicide not amounting to murder punishable under [SECTION] of the [ACT].
8. Elaborating his first submission, the learned Counsel for the appellant urged:
(a) evidence on record shows that PW-1 [ENTITY] was not even present on the spot, what to speak of his having witnessed the occurrence;
(b) there was no motive for the alleged crime;
(c) evidence as to the nature of weapon of offence is doubtful as some witnesses say it was a '[ENTITY]i' and the others say it was a '[ENTITY]';
(d) evidence of recovery of weapon of offence also does not inspire confidence;
(e) incident allegedly took place in the Court-yard, but the blood was found in the Verandah as also on the path in front of the house of [ENTITY];
(f) evidence of PW-6 [ENTITY], who allegedly snatched the '[ENTITY]' from the appellant, is self-contradictory;
(g) evidence on record proves the defence version.
9. In support of submission (a) above, the learned Counsel for the appellant drew the attention of the Court to the testimony of PW-5 Dr. [ENTITY], who attended the deceased and provided him first aid when he was taken to the Community Health Centre, Indora. This witness stated in the cross-examination that the deceased had been brought to the hospital by his brother-in-law [ENTITY] and one [ENTITY]. The learned Counsel argued that though PW-1 [ENTITY] claims to have taken the deceased to the hospital, his statement to this effect is falsified by the testimony of PW-5 Dr. [ENTITY]. Dr. [ENTITY] named the above said two persons, who carried the deceased to the Community Health Centre, on the basis of a mention to this effect in the medicolegal certificate Ext. PW-5/B.
10. Of course in Ext. PW-5/B only two persons are named, but it is also not mentioned in the said certificate that the deceased was accompanied by only two persons named therein and no others. PW-1 [ENTITY] very categorically stated that after [ENTITY] fell on the ground due to the wound inflicted on his occipital region, he and other persons carried him to the hospital at Indora. His testimony is supported by the testimony of PW-12 ASI [ENTITY], who has stated that on reaching the Community Health Centre, Indora, she recorded the statement of [ENTITY] PW-1 at 11.20 p.m. and forwarded the same to the Police Station for the registration of the case. The testimony of PW-1 [ENTITY] that he and other persons carried the deceased to the hospital at Indora and the testimony of PW-12 ASI [ENTITY] that she recorded the statement of [ENTITY] at Indora Hospital at 11.20 p.m., on the very day of occurrence, have not been challenged. In view of the aforesaid categorical statements of PW-1 [ENTITY] and PW-12 [ENTITY] on this point, the contention that [ENTITY] was not there on the spot, cannot be accepted.
11. As regards submission (b) it is true that there is no evidence of motive for the commission of the crime, but this fact is of little significance, particularly when there is over-whelming direct evidence in the form of the testimony of PW-1 [ENTITY], PW-2 [ENTITY], PW-3 [ENTITY], PW-6 [ENTITY] and PW-8 [ENTITY] that it was the appellant who gave the fatal blow on the back side of the head just above the neck of [ENTITY]. PW-1 stated that he was busy in the kitchen when his nephews [ENTITY] and [ENTITY] came and informed him that the appellant was quarrelling and scuffling with deceased [ENTITY] and that immediately thereafter he rushed out and saw that the appellant gave a blow of '[ENTITY]' on the head of [ENTITY]. PW-2 [ENTITY], at whose house the incident took place, testified that when the invitees were being served and enjoying meals, appellant [ENTITY] picked up a '[ENTITY]' from his house and dealt a blow on the head of [ENTITY] and that when he tried to deal another blow, [ENTITY] snatched the '[ENTITY]' from him and threw it downward. PW-3 [ENTITY] stated that the appellant gave a blow of [ENTITY] on the head of [ENTITY] and he and [ENTITY] informed [ENTITY] (PW-1), who came to the spot and that when the appellant attempted another blow on the head of [ENTITY], [ENTITY] snatched the [ENTITY] from him and threw it downward. PW-8 [ENTITY] stated that the appellant gave a blow of '[ENTITY]' on the head of [ENTITY] and that when he was about to give one more blow, he was over-powered by [ENTITY] (PW-1) and [ENTITY] (PW-2) and [ENTITY] then snatched the [ENTITY] from his hand and threw it downward. [ENTITY] PW-6 also stated that he snatched the [ENTITY] from the hand of the appellant, when [ENTITY] and [ENTITY] had caught hold of him (the appellant).
12. There is no major contradiction in the testimony of these witnesses. Of course deposition of PW-3 [ENTITY] gives the impression that PW-1 [ENTITY] was called when the blow of '[ENTITY]' had already been dealt on the head of [ENTITY], but an over all reading of his statement shows that [ENTITY] was already there on the spot as according to him, he was serving meals to the invitees and he foiled appellant's attempt to give another blow on the head of [ENTITY], with the help of other persons, while [ENTITY] (PW-6) snatched the '[ENTITY]' from the appellant.
13. Now when there are eye-witnesses and they are corroborated by each other in all material particulars and the statements of some of them, particularly PW-6 [ENTITY], regarding the presence of the appellant on the spot, are not challenged in the cross-examination, the absence of motive for the commission of the crime becomes absolutely insignificant.
14. Dwelling on submission (c), learned Counsel for the appellant, by referring to the statements of the prosecution witnesses, pointed out that some witnesses testified that the weapon was a '[ENTITY]' and some others testified that it was a '[ENTITY]i'. Of course '[ENTITY]' and '[ENTITY]i' are two different implements used by the agriculturists. '[ENTITY]' is larger in size while '[ENTITY]i' is smaller. However, both the implements are similarly shaped and difference in size is also not much. The incident had taken place during night time when sun-light was not available and in the electric light the witnesses might not have been able to see the weapon as clearly as it could have been seen during day light. In any case, variation in the testimony of the witnesses about the kind of the weapon becomes irrelevant when there is overwhelming direct evidence, which inspires confidence and is further strengthened by the proven falsity of the defence plea, which is being dealt with hereafter.
15. With regard to submission (d) it was urged that as per prosecution evidence the weapon of offence, i.e. [ENTITY] Ext. P-l, was produced by [ENTITY] (PW-2) from his house though according to prosecution's own version and evidence of the eye-witnesses, '[ENTITY]' had been snatched from the appellant by [ENTITY] (PW-6) and thrown downward into a 'Choe'. It has come in the evidence that the weapon of offence, i.e. [ENTITY], had been picked up from the house of [ENTITY] (PW-2) by the appellant. That means the [ENTITY] belonged to this witness. If it is so, in all probabilities [ENTITY] (PW-2) being the owner of the '[ENTITY]', was supposed to have retrieved it from the 'Choe'. And when the police demanded it, he produced the same to them.
16. Coming to submission (e), it is true that the incident has been testified by all the witnesses to have taken place in the Courtyard of PW-2 [ENTITY]. It is also true that no blood marks were there in the Courtyard when the police visited the spot a few hours later, i.e. at 1.30 a.m. but the mere absence of the bloodstains or marks in the Courtyard cannot be a ground for disbelieving the version of the eye-witnesses. There are good reasons for the absence of bloodstains or marks in the Courtyard. Firstly it has come in the evidence that it had been raining that night. May be that bloodstains were washed away. Further the site plan Ext. PW-13/A, duly proved by PW-13 S.I. [ENTITY], shows that the incident had taken place just on the edge of the Verandah. Now, when a '[ENTITY]' blow had been given on the head of the deceased just outside the Verandah in the presence of so many persons, there is every likelihood that the deceased fell in the Verandah, when the blow was given. Also, it is quite likely that when the blow was given in the presence of so many persons just on the edge of the Verandah, the deceased was immediately carried to the Verandah by those who were present on the spot. That is why the marks of blood were spotted in the Verandah and not in the Courtyard.
17. It was argued that if the rain was the reason for the disappearance of the blood stains from the Courtyard, how could such stains have been found on the path adjoining the house of PW-2 [ENTITY]. May be that the portion of the path where the blood stains were found is covered by some projection of the adjoining house or even by some shady tree. It was also urged that when the incident is alleged to have taken place in the Courtyard, how the blood stains were found on the adjoining path. It is likely that when the deceased was being taken to the hospital some blood from his bleeding wound fell on the path.
18. While dealing with submission (f), it was then urged by the learned Counsel that the statement of PW-6 [ENTITY] with regard to the allegation of snatching of [ENTITY] from the appellant was self-contradictory, because in the cross-examination he denied the suggestion that the '[ENTITY]' was snatched from the appellant by him, PW-1 [ENTITY] and PW-2 [ENTITY]. As a matter of fact the witness stated in the examination-in-chief that it was he alone who had snatched the [ENTITY] from the appellant. Other witnesses also stated that the '[ENTITY]' was snatched by PW-6 [ENTITY] from the appellant, when the appellant was overpowered by [ENTITY] (PW-1) and [ENTITY] (PW-2). Thus there is no contradiction in the testimony of PW-6 [ENTITY].
19. So far as submission (g) is concerned, appellant's own evidence proves that the defence version as suggested to PW-1 [ENTITY] and stated by appellant in reply to question No. 20 in his statement, under [SECTION] of the [ACT], is false. The defence version as suggested to PW-1 and stated by appellant in his statement, under [SECTION] of the [ACT] is that on the fateful evening [ENTITY] (DW-5), the elder brother of the appellant, and deceased [ENTITY] exchanged hot words and thereafter started scuffling and in the meanwhile one [ENTITY], who was a friend of deceased [ENTITY], reached there and deceased [ENTITY] asked said [ENTITY] to give beating to DW-5 [ENTITY] upon which [ENTITY] attempted [ENTITY] blow at [ENTITY], but the latter managed to escape the blow and it landed on the upper side of the neck of deceased [ENTITY]. But what DW-5 [ENTITY] himself has stated is different. He has stated that around 8-20 or 9.00 p.m. on the relevant day [ENTITY] met him outside the house of [ENTITY] and started quarrelling and scuffling with him and in the meanwhile deceased [ENTITY] also reached there and he caught hold of him and [ENTITY] then gave him fist blows on the mouth resulting in breaking of his tooth and then he attempted a '[ENTITY]' blow on him, which he escaped, but it landed on the head of [ENTITY]. The testimony of this witness is in total contradiction with the defence version. Moreover, there is unchallenged testimony of PW-6 [ENTITY] that he had snatched the '[ENTITY]' from the appellant and thrown it downward into the 'Choe' (Nallah), when the appellant had been overpowered by [ENTITY] (PW-1) and [ENTITY] (PW-2). No suggestion was thrown to this witness that the appellant was not there on the spot. This unchallenged testimony of PW-6 falsifies the appellant's plea that he was not on the spot but at Chintpurni on the relevant night.
20. From the above discussion it is crystal clear that the fatal blow on the occipital region of the deceased was given by the appellant with a '[ENTITY]'.
21. Touching the second submission, viz. the case is covered not under [SECTION] of the [ACT], the learned Counsel for the appellant stated that only one blow had been given and that this fact suggests that the appellant did not have the intention to kill the deceased or even to cause an injury sufficient in the ordinary course of nature to cause death. In support of his contention, he placed reliance upon the following judicial precedents:
(i) [PRECEDENT] ;
(ii) [PRECEDENT];
(iii) [PRECEDENT] ;
(iv) [PRECEDENT] ; and
(v) [PRECEDENT].
22. We have gone through these precedents. None of them is applicable to the facts of the present case.
23. In [PRECEDENT]'s case (supra) a single 'Dao' blow had been dealt on the occipital region of the deceased, which resulted in 3" x 1/ 2" bone deep injury. The victim died five days after the receipt of the injury. Head injury itself was not the cause of the death but there was one more injury which had not been attributed to the appellant but to another co-accused. [SECTION] was held to be not attracted as there was no evidence of premeditation. Because the 'Dao' blow alone was not opined to be the cause of death, it was for this reason that the conviction of the appellant was changed from [SECTION] of the [ACT].
24. In [PRECEDENT] (supra) the facts were totally different. The case was covered by [SECTION] of the [ACT] and it was because of this that conviction was altered from [SECTION] of the [ACT].
25. In [PRECEDENT]'s case (supra) the deceased had been subjected to beating by the police people when he was in their custody. The deceased was having ailment of lungs. It was the combined effect of the beating and the ailment of lungs which proved fatal. Therefore, the conviction under [SECTION] of the [ACT] was upheld.
26. [PRECEDENT]'s case (supra) was covered by [SECTION] of the [ACT] and so the conviction under [SECTION] was changed to one under [SECTION] of the [ACT].
27. In [PRECEDENT]'s case (supra) a blow of a sharp edged weapon was given on the neck. There were also some other injuries. The accused was not proved to have caused those other injuries nor was there any evidence indicating as to who had caused those injuries. The medical evidence was silent about the nature of the injury caused by the appellant by means of sharp edged weapon. It was under these circumstances that the case was held to be covered by [SECTION] and not by [SECTION] of the [ACT].
28. In the instant case injury has been caused on the occipital region of the deceased by means of a '[ENTITY]' with such a force that the blow after cutting through the skull bone hurt the brain resulting in death of the deceased within a couple of hours. A man who gives a blow by means of a heavy sharp edged weapon like '[ENTITY]', which is also used in this part of the country by the butchers for beheading goats and sheep, can legitimately be presumed to intend the killing of the victim or at-least to cause such bodily injury as is sufficient in the ordinary course of nature to cause death. The intention of the appellant to kill the deceased can further be gathered from the fact that he attempted another blow of '[ENTITY]' at the deceased, though it is different matter that his attempt was foiled by PW-1 [ENTITY] and PW-2 [ENTITY] by overpowering him.
29. In view of the above discussion, the second/alternative submission made by the learned Counsel for the appellant is also rejected.
30. As an upshot of the above discussion and findings, appeal is dismissed.