Judgment

KHANNA, J.- Gudar Dusadh appellant was tried along with 23 others in the Court of Additional Sessions Judge Saran. Eighteen of the accused were acquitted by the trial court. The appellant was convicted under Sections 302 and 147 Indian Penal Code and was sentenced to undergo imprisonment for life on the former count. No separate sentence was awarded to the appellant for the offence under Section 147 Indian Penal Code. The remaining five accused were convicted under Section 323 read with Section 142 Indian Penal Code as well as for other minor offences with which we are not concerned. On appeal the Patna High Court maintained the conviction and sentence of the appellant, while some modification was made as regards the sentence awarded to the other five convicted accused. The appellant thereupon came up in appeal to this Court by special leave. The leave was, however, confined only to the question whether the offence committed by the appellant was murder or culpable homicide not amounting to murder.

2. The case relates to an occurrence which took place in village Khahla in district Saran at about 11 a.m. on August 14, 1965. Ramlal Bhagat, who was aged about 65 years, died as a result of the assault during the course of the occurrence while his son Ramashish Prasad (PW 10) received injuries. The case of the prosecution is that a day before the occurrence Prasadi Dusadh and Ganesh Dusadh killed a goat belonging to Baharan Bhagat (PW 8). On the advice of Ramlal Bhagat deceased, Baharan Bhagat lodged a report with the Police at 3 p.m. on that day. On the morning of August 14, 1965 Ramlal and his son Ramashish went to their paddy field. While they were returning from the field at about 11 a.m. they were assaulted by the six convicted persons who had been hiding on the route. The appellant gave a lathi blow on the head of Ramlal as a result of which the latter fell down and died at the spot. One of the companions of the appellant then shouted that the assault was made because of Ramlal being responsible for the commencement of criminal proceedings by Baharan. Some injuries were also caused to Ramashish. The accused then set fire to one of their huts with a view to prepare some kind of defence. After that the accused fled away.

3. S.H.O., Sarju Prasad Singh of police station Barauli on receipt of information that a large number of persons belonging to the party of the accused had collected to attack the other party in spite of the promulgation of an order under Section 144 of the Code of Criminal Procedure, came to the place of occurrence but before that Ramlal had already been killed. Sarju Prasad Singh recorded the statement of Ramashish and on the basis of that statement, a formal information report was prepared at the police station. Post-mortem examination on the body of Ramlal deceased was performed by Dr. R. S. Singh on August 15, 1965.

4. At the trial the plea of the appellant was that he had been falsely involved in the case at the instance of the Mukhia of the village who was inimical to the appellant.

5. The two courts below accepted the prosecution case that it was the appellant who had given a lathi blow on the head of Ramlal deceased as a result of which the latter died. It was held that the case against the appellant fell under clause "3rdly" of section 300 of Indian Penal Code. As such, the appellant was convicted under section 302 Indian Penal code.

6. The only question with which we are concerned in appeal is whether the offence committed by the appellant is murder or whether it is culpable homicide not amounting to murder. In this respect we find that according to Dr. R. S. Singh who performed the post-mortem examination on the dead body of the deceased, the doctor found a lacerated wound 2" x 1/2" bone deep on the left side of the head of the deceased. The injury was ante-mortem and had been caused by a weapon like lathi. On dissection the doctor found 3" long fracture of the left parietal bone about 2 1/2" from