V.P. Bhatnagar, J.
1. Appellant, Ram Singh has filed this appeal against the judgment dated 29-10-1985 of the learned Additional Sessions Judge, Mandi whereby he convicted him for the offence under Section 302 of Indian Penal Code and sentenced him to undergo life imprisonment. He was also ordered to pay a fine of Rs. 2000/-. In default of payment of fine, the appellant was to undergo further rigorous imprisonment for a period of one year.
2. The appeal was heard in the first instance by a learned Division Bench of this Court comprising of R.S. Thakur and Bhawani Singh, JJ. Both the Judges handed down their judgments on March 24, 1989. Bhawani Singh, J. was of the opinion that an offence under Section 304, Part-II of the Indian Penal Code had been proved against the appellant. He, therefore, altered the conviction from that Under Section 302 Indian Penal Code to Section 304 Part II and proceeded to sentence the appellant to rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 1000/- and in default of the payment of fine to undergo further imprisonment for six months. R.S. Thakur, J., however differed to the extent that he upheld the impugned judgment and thus the conviction of the appellant for the offence of murder Under Section 302, IPC. He maintained the sentence awarded by the learned Court below and dismissed the appeal. In view of the difference of opinion noticed above, the appeal has been placed before me and parties heard on merits.
3. The parties to the occurrence are neighbours. There had been a dispute between them since long relating to the use of a path through the court-yard of appellant Ram Singh's house. A year before the occurrence Ram Singh is stated to have blocked the path but opened it due to intervention of the local panchayat and the police. The occurrence took place on 9-1-1985 but 3-4 days prior to it Ram Singh again blocked the said path by raising a Jangla. The police again intervened and Ram Singh undertook to remove it but actually did not do it. On 9-1-1985, in the after-noon, the complainant party retaliated. They blocked another path which was being used by Ram Singh from his house to their side by putting thorny bushes on it. Ram Singh removed these bushes but the complainant party comprising of Brahmi Devi W/o Sadhu Ram, Brahmi Devi W/o Tej Bhan and Mansha Devi went to the place again to create the obstruction and block the path, till the time Ram Singh actually removed the Jangla erected by him on their path. At that time, appellant Ram Singh came there with a Drat in his hand and hit Brahmi Devi W/o Sadhu Ram on her head. She fell down and others ran away to their houses. Sadhu Ram immediately came to the place of occurrence but the appellant by that time had left the place. Sadhu Ram brought the injured to the verandah of his house where she breathed her last.
4. The prosecution story as narranted above has been accepted by both the learned Judges who, as stated above, have only disagreed on the solitary point whether commission of an offence under Section 302 Indian Penal Code or under Section 304, Part-II Indian Penal Code stands made out. As far as the incident is concerned, the prosecution story to that effect has not been challenged by either side before me as well.
5. In the present case, it is not disputed that appellant Ram Singh inflicted only one blow though on a vital part viz., head of Brahmi Devi who died within minutes of the infliction of the blow.
6. The difference of offence under Section 302, IPC and that Under Section 304, Part II is one of degree. If the act by which the death is caused is done with the intention of causing death or if it is done with intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused culpable homicide amounts to murder. Further, Section 300 (thirdly) stipulates that if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause the death, the offence would also amount to murder Under Section 302, TPC. On the other hand, if the act by which the death is caused is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death, the offence is that of culpable homicide, not amounting to murder punishable Under Section 304, Part-II Indian Penal Code.
7. There is catena of case law in the matter which has been very ably brought out by the learned Judges comprising the Division Bench and no fault can be found with the manner the ratio of those cases has been noticed. What has led to the difference of opinion is applying the law to the facts of the present case.
8. I have given the matter my serious consideration. The parties were neighbours and the dispute was of a minor nature. Ram Singh got infuriated when he saw the throny bushes being placed as obstruction once again on the path by some women folks of the complainant party as an act of retaliation. He must have gone to stop them from doing so and in that process gave a single blow on the head of Brahmi Devi which caused her death. In these circumstances, knowledge can certainly pinned down on him that the Drat blow was likely to cause death but it is difficult to hold that he had any intention to cause death or to cause such bodily injury as is likely to cause death. I am also not satisfied that he intended to cause such bodily injury as is sufficient in the ordinary course of nature to cause death. I am also of the view that medico legal opinion in such a marginal case cannot be made the basis for arriving at a conclusion where the degree of intention has to be judged keeping in view the razor thin difference between culpable homicide amounting to murder and one not amounting to murder I am further of the view that if from two plausible views on the facts of a particular case can be taken, it would be safer to adopt one which favours the accused.
9. In view of the above discussion, 1 find myself inclined to support the conclusion arrived at by brother Bhawani Singh, J. that the offence committed by the appellant falls under Section 304, Part-11 and not under Section 302, IPC Code. I am also in agreement with him about the quantum of punishment viz., rigorous imprisonment for a period of 5 years and a fine of Rs. 1000/- and in default of the payment of fine, further imprisonment for six months. The appellant, of course, would be entitled to the benefit of Section 428 of the Code of Criminal Procedure. Orders are made accordingly.