JUDGMENT Kuldip Chand Sood, J.—This appeal arises out of the judgment of conviction passed by learned Sessions Judge, Chamba at Chamba dated April 17, 1999. 2. It appears, appellant Ravinder Kumar, hereinafter referred to as "the accused", was tried by the learned Sessions Judge for an offence punishable under Section 302 of the Indian Penal Code but was convicted for an offence punishable under Section 325 of the Code. 3. Ashok Kumar and Prithi Singh were two brothers. Chuhru Ram deceased was brother of the father of Ashok Kumar and Prithi Singh. Accused is son of Prithi Singh. Prithi Singh had expired. Chuhru Ram had no wife or children. He was living with Ashok Kumar, in village Talori, an uncle of the accused. He was about 75 years of age at the time of occurrence. The prosecution case is that on March 4, 1995, at about 10.45 in the night accused dragged Chuhru Ram from his room to the verandah of the house and gave him kicks and fist blows as a result of which the spleen of Chuhru Ram ruptured and he expired in the early hours of morning next day. On post mortem of the dead body of Chuhru Ram, no injury was found. In the opinion of Doctor conducting the post mortem, the death occurred due to rupture of the spleen. Learned Sessions Judge on the appraisal of evidence found that the spleen ruptured because of kicks and fist blows given by the accused to deceased Chuhru Ram. Learned Sessions Judge took a view that the offence committed does not fall under Section 302 of the Indian Penal Code but is punishable under Section 325 of the Indian Penal Code and accordingly convicted the accused under Section 325 of the Indian Penal Code. The accused was sentenced to suffer rigorous imprisonment for seven years and to pay a fine of rupees 1000. In case of default in the payment of fine, accused is to undergo further rigorous imprisonment for one year. 4. Dis-satisfied with his conviction and sentence accused has filed this appeal. 5. I have heafd Mr. Ashok Sharma, learned Counsel for the appellant and Mr. Ashok Chaudhary, learned Additional Advocate General for the respondent. I was also taken through the evidence. 4. Dis-satisfied with his conviction and sentence accused has filed this appeal. 5. I have heafd Mr. Ashok Sharma, learned Counsel for the appellant and Mr. Ashok Chaudhary, learned Additional Advocate General for the respondent. I was also taken through the evidence. The defence of the accused, as spelled out in his statement under Section 313 of the Code of Criminal Procedure is that deceased Chuhru Ram was his grand father. The property is joint between him and Ashok Kumar, his uncle, though they lived separately. It is because of the property that he has been implicated falsely. 6. The contention of Mr. Sharma is that rupture of spleen took place because of the fall, which the deceased had, and that the accused at the most is liable to be convicted for an offence under Section 323 of the Indian Penal Code and not under Section 325 of the Code. 7. Ahilaya Devi wife of Ashok Kumar, an eye witness, appearing as PW 1, stated that she, her father-in-law and her children took their evening meal at about 8.30 in the evening. Two of her children went to the house of one Dharam Singh to watch television. The other two children, who are younger, went to sleep. Her father-in-law also went to sleep in his room, which is located in the ground floor of the house. She thereafter called her neighbourer Naro for knitting a cot. In the meanwhile, accused, who lives in the adjoining house came to the compound of her house and started abusing her and dared her to come out. She and Naro came out of the room but in the meanwhile. Savitra, mother of the accused, came and took away the accused to her house. Naro also left her house. She went to sleep but after about ten minutes, accused again appeared in the compound and started hurling abuses. He kicked the door of the old house where her father-in-law was sleeping. Accused started demanding his share in the property. She told the accused that he should raise the demand when her husband returns back from his duties. Accused broke open the door of the room where deceased was sleeping by kicking the door. He caught hold of her father-in-law and then gave him kicks and fist blows, dragged him to the verandah and threw him on the ground. She told the accused that he should raise the demand when her husband returns back from his duties. Accused broke open the door of the room where deceased was sleeping by kicking the door. He caught hold of her father-in-law and then gave him kicks and fist blows, dragged him to the verandah and threw him on the ground. Blood oozed from the mouth of the deceased who became unconscious. Accused thereafter left for his house. In the meanwhile. Om Parkash (PW 3) reached the spot. She narrated the entire incident to Om Parkash. Om Parkash lifted the deceased and put him on a cot inside the room. Deceased did not regain consciousness and was dead by the morning. She alongwith her son Kuldip, Kishan Chand (PW 4) and Om Parkash (PW 3) went to Sundla and reported the incident to the President of the Panchayat Shri Yash Pal (PW 18). Yash Pal advised her to report the matter to the Police and she accordingly lodged a report with Police Station at Surangani. In cross-examination, she admitted that her father-in-law used to sleep in the middle room of the lower storey of the house where they also lived and it did not have any bolt from inside. 8. It is significant to note that in her report lodged with the Police (Exhibit-PA), she did not say a word that accused gave kicks and fist blows to the deceased. This was an improvement made in her statement in the Court. It may also be noticed that Dr. Raman Puri (PW 8) who condvicted the post mortem of the dead body of Chuhru Ram did not notice any injury on any part of the body of the deceased except a single abrasion in the left forearm and a lacerated wound on the tip of the tongue with a clotted blood though Ahilya Devi claimed that kicks and fist blows were given to the deceased for 15 to 20 minutes by the accused. According to her Om Parkash Hans Raj, Gian Chand and Dharam Chand immediately reached the spot on hearing her cries and accused at that time was present in the compound of her house. Om Parkash appearing as PW 3 does not support Ahilya Devi on this aspect. According to her Om Parkash Hans Raj, Gian Chand and Dharam Chand immediately reached the spot on hearing her cries and accused at that time was present in the compound of her house. Om Parkash appearing as PW 3 does not support Ahilya Devi on this aspect. It is the evidence of Om Parkash that when he was near his house, he heard some commotion^ from the house of Ahilya Devi. He went to her house and found her crying and at that time, none except Ahilya Devi was present. On enquiry Ahilya Devi informed him that Chuhru Ram was beaten by the accused. It is also significant to note that he did not say that Ahilya Devi told her that he was given kicks and fist blows by the accused. He admits that first aid was not given to Chuhru because the Dispensary in the village at that time was closed. Kishan Kumar (PW 4) states that he heard commotions from the house of Ahilya Devi, went there and found Chuhru Ram lying unconscious on his bed inside his house and there was blood spread in the house. He was informed by Ahilya Devi that accused had given blows with bricks to Chuhru Ram. Evidence of Kishan Kumar also contradicts Ahilya Devi. It is not the case of the prosecution or evidence of Ahilya Devi that any brick blow was given to the deceased by the accused. Even in cross-examination by the learned Public Prosecutor, he maintained that Ahilya Devi had informed him that Chuhru Ram was inflicted brick blows in the verandah of the house. 9. As noticed earlier, Ahilya Devi did not disclosed to the Police in the FIR "Exhibit PA" that accused had given kicks and fist blows on the abdomen of the deceased. In the FIR (Exhibit PA), Ahilya Devi informed the Police that the deceased was dragged from his room to verandah of his house and was pushed whereby the deceased fell on the verandah. 10. The evidence of Ahilya Devi to the effect that deceased was given kicks and fist blows for 15 to 20 minutes is not satisfactory and worthy of reliance more so when no injury was found, by the Doctor conducting the post mortem, on the abdomen or upper part of the stomach or chest of the deceased. 10. The evidence of Ahilya Devi to the effect that deceased was given kicks and fist blows for 15 to 20 minutes is not satisfactory and worthy of reliance more so when no injury was found, by the Doctor conducting the post mortem, on the abdomen or upper part of the stomach or chest of the deceased. If the deceased was given kicks and fist blows, he would definitely have received some injuries on waist, abdomen or other lower parts of the body. Therefore, the findings of learned Sessions Judge that spleen ruptured because of the kicks and fist blows given by the accused is open to doubt. However, it is proved that the deceased was dragged from his room and was pushed causing his fall. 11. Modi in his Medical Jurisprudence and Toxicology (Twenty-second Edition) records :— "On account of its situation, rupture of a normal spleen is very rare unless caused by considerable crushing and grinding force, such as the passing of a carriage or motor car over the body, or by a crush in a railway accident, or by a fall from a very great height, in such cases it is usually associated with injuries to other solid organs and to the ribs overlying the spleen. A normal spleen may sometimes be tuptured by the broken ends of a rib, which may be fractured by a severe kick or by a blow from a blunt weapon. A spleen subject to traction forces may be torn from its pedicle." 12. Modi further records that if the spleen is enlarged because of disease, it becomes softened and therefore liable to rupture from a fall from slight decree, it records : "An enlarged spleen becomes softened and brittle. Hence it is liable to rupture from a fall or from violence of a very slight degree. In such cases, the abdominal wall may not show any external mark or injury." (Emphasis given) Modi further records : "An enlarged spleen may sometimes rupture spontaneously from the contraction of the abdominal muscles during the act of sneezing, coughing, vomiting or straining, particularly if the spleen is abnormally mobile. Rare cases have also been reported in which it is claimed that a perfectly healthy normal spleen has ruptured spontaneously. It is difficult to believe that a normal spleen can rupture suddenly without apparent cause. Rare cases have also been reported in which it is claimed that a perfectly healthy normal spleen has ruptured spontaneously. It is difficult to believe that a normal spleen can rupture suddenly without apparent cause. It is, however, possible that occasionally, in certain individuals and at certain phases, a healthy normal spleen may rupture from minimal trauma. If the capsule is intact in such a case, the symptoms may be delayed for hours or days, and when eventually the patient collapses he has forgotten the original and causative injury so that spleen appears to have ruptured spontaneously". 13. In Forensic Medicine and Toxicology, Dr. K.S. Narayan Reddy noticed that rupture is usually associated with injuries to other organs and rib fractures. 14. In the present case, there was no fracture of the ribs. The inevitable conclusion is that the spleen was enlarged due to disease and therefore, ruptured by fall when deceased was pushed on the ground by the accused. Narain Reddy records: "A relatively mild trauma or even the contraction of the abdominal muscle may -predispose the spleen to rupture when it is diseased and enlarged". (Emphasis given) 15. Bailey and Love in their Book "Short Practice of Surgery (22nd Edn.) records that occasionally, a fall without direct trauma to the trunk can rupture the spleen, especially if it is diseased or enlarged, e.g., infectious. 16. It is true that Dr. Raman Puri (PW 8) opined that spleenic rupture was possible by fist and kicks blows but this part of the evidence, in view of the expert medical views, noticed above is unacceptable particularly when no fracture of ribs was found and there was no injury or abrasion on the abdomen. In cross-examination, Dr. Puri categorically admitted that there was no mark of injury on the left side of the trunk of the body, i.e., chest portion and abdominal portion. He also admitted that he did not measure the size of the swelling of the spleen. 17. Thus, the preponderance of the evidence and the probability factor indicates that the spleen of Churhu Ram was enlarged and diseased. The spleen ruptured by the force used which caused the fall of the deceased on the ground. Learned Sessions Judge himself noticed that accused did not have any intention to cause death of Chuhru Ram and perhaps Chuhru Ram expired for want of timely medical aid. 18. The spleen ruptured by the force used which caused the fall of the deceased on the ground. Learned Sessions Judge himself noticed that accused did not have any intention to cause death of Chuhru Ram and perhaps Chuhru Ram expired for want of timely medical aid. 18. In the present case, no intention is attributable to the accused to cause death or grievous hurt nor the accused had knowledge that by pushing the deceased to ground, he was likely to cause grievous hurt or death. The death ensued primarily because of the trauma caused, by fall. It is not possible to draw an inference that accused had intended to give deceased more than a beating. In such circumstances, conviction under Section 325 of the Indian Penal Code is not sustainable. He is liable to be convicted only for an offence punishable under Section 323 of the Indian Penal Code. 19. In Bhajan Das and others v. Emperor, 1924 Lahore 218, the death was caused as a result of some injuries inflicted by the accused to the deceased and the accused had no knowledge that the deceaseds spleen was diseased. It was held that in such circumstances, accused can only be convicted for causing simple hurt. 20. In result, the appeal is allowed. The conviction and sentence imposed on accused under Section 325 of the Indian Penal Code is set-aside. Instead, he is convicted for an offence punishable under Section 323 of the Penal Code and sentenced to suffer imprisonment for one year and to pay a fine of rupees 500. In case of default in the payment of fine, he shall undergo further imprisonment for two months. The period spent by the accused in custody whether as under-trial prisoner or after conviction, shall be set off against the sentence imposed. The accused-appellant shall surrender to his bail bonds to undergo the sentence imposed within two weeks from today failing which the learned trial Court shall take appropriate steps in accordance with law. Appeal allowed.