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Madhya Pradesh High Court · body

2010 DIGILAW 1061 (MP)

Yashwant v. State of M. P.

2010-10-20

N.K.GUPTA

body2010
JUDGMENT N.K. Gupta, J. 1. The Appellant has preferred this appeal against the judgment dated 21.3.1995 passed by First Additional Sessions Judge, Mandla in S.T. No. 77/1994 by which the Appellant was convicted for offence punishable under Section 304(1) of I.P.C. and was imposed with a sentence of rigorous imprisonment for five years. 2. Prosecution's case in short, is that, deceased Sonulal was the maternal grand father of the Appellant/accused. On 21.4.1994 at about 5 p.m. in the evening, the Appellant/ accused came to the house of the deceased and demanded for his claim. The deceased did not utter a single word in reply, then the Appellant/ accused started shouting. He threatened that either his claim be given to him else, he will kill the deceased. He assaulted the deceased on his ribs by 'Bans ki fadi' (a portion of bamboo stick, which was broken in two parts from vertical direction). Deceased raised alarm for help, then Shanker Lal, who was also a grand son of the deceased, saved the deceased. The Appellant also assaulted Shanker Lal on his back. He gave two slaps to Rajo Bai, sister of Shanker Lal. Then he also assaulted one Sukrati Bai, sister of the Appellant/accused. At that time, since Sitaram and his wife entered the scene of occurrence, the Appellant/accused left the house. Shanker Lal went to call the Kotwar, but when the Kotwar came to the house, deceased had already expired. Shankerlal, could not lodge an F.I.R. in the late night but he lodged the F.I.R. in Police Station Mawai, District Mandla in the next morning at about 7 a.m. Police referred the dead body of the deceased Sonulal for post-mortem. In the post-mortem report, Ex.P/6, Dr. K.C. Meshram (P.W.7) found that the body was badly decomposed. Skin from various parts of the body was found removed. Tenth and Eleventh left ribs were found broken. Spleen was also ruptured. There was blood collected in the left cavity of the abdomen. He opined that the deceased Sonu Lal died due to injuries caused to the spleen. After due investigation, police Mawai, district Mandla, had submitted a charge-sheet for offence punishable under Section 302 of I.P.C. before the Committal Court. 3. The Appellant abjured his guilt. Spleen was also ruptured. There was blood collected in the left cavity of the abdomen. He opined that the deceased Sonu Lal died due to injuries caused to the spleen. After due investigation, police Mawai, district Mandla, had submitted a charge-sheet for offence punishable under Section 302 of I.P.C. before the Committal Court. 3. The Appellant abjured his guilt. He did not take any specific defence in the case, he simply informed the trial Court that he was falsely implicated and therefore, he did not adduce any evidence in his favour. 4. Learned First Additional Sessions Judge, Mandla, after considering the evidence adduced by the prosecution, acquitted the Appellant from the charge of Section 302 of I.P.C. but convicted him for offence punishable under Section 304(1) of I.P.C. and inflicted the aforesaid sentence. 5. I have heard the Learned Counsel for both the parties in detail. 6. Learned Counsel for the Appellant has submitted that as per allegation, the Appellant assaulted the deceased once by a very light object 'Bans ki fadi' and the deceased died due to rupture of his spleen, whereas spleen could have ruptured due to the deceased falling down and therefore, offence if any made out against the Appellant, would only be an offence punishable under Section 325 of I.P.C. On considering the evidence adduced by the prosecution, Shanker Lal (P.W.1), Sukrati Bai (P.W.2) have stated that the Appellant assaulted the deceased Sonu Lal by 'Bans ki fadi' on his ribs, there is allegation of only one stroke by that weapon. Although these two witnesses were related to the deceased, they were also related to the accused/appellant. However, their testimony is duly corroborated by Rajo Bai (P.W.5), who is the real sister of the Appellant. She accepted that she saw the accused leaving the place of the incident. He slapped her twice, then she immediately approached the spot and found Sonulal to be dead. Although, she was declared hostile, she has corroborated the testimony of Shanker Lal and Sukrati Bai that after the assault, the accused ran away but, in the meantime, he gave two slaps to his real sister Rajo Bai and Sonu Lal was found dead just after the incident. No suggestion was given to Rajo Bai that someone else had assaulted the deceased. However, Rajo Bai accepted that she wanted to save the Appellant/accused being his sister. 7. No suggestion was given to Rajo Bai that someone else had assaulted the deceased. However, Rajo Bai accepted that she wanted to save the Appellant/accused being his sister. 7. Looking at the corroborative statements of Rajo Bai, evidence of Shanker Lal and Sukrati Bai seems to be trustworthy and it is proved beyond doubt that the Appellant/accused assaulted the deceased Sonu Lal by 'Bans ki fadi' once. 8. Dr. Meshram (P.W.7) did not say anything regarding any visible injury on the skin of the deceased but it is clear from the circumstances that the deceased died in the evening of 21.4.1994, whereas Shanker Lai lodged the F.I.R. on 22.4.1994 and dead body was produced before Dr. Meshram for post-mortem on 24.4.1994 i.e. three days after the death of the deceased. Dr. Meshram has stated in his report as well as in his evidence in the trial Court that skin from various parts of the body was missing as it had left its place and therefore, if the skin on ribs was not present then there was no opportunity for Dr. Meshram to examine the visible injury on that part. Therefore, there is no consequence to the fact that Dr. Meshram did not find any visible injury on that portion of the body, where two ribs were found broken. Though Dr. Meshram has admitted that injuries of the deceased could be caused by falling with some force. But this was a hypothetical question asked to Dr. Meshram, there is no evidence adduced in the matter that the deceased fell with force, on an object which had any core. Therefore, looking at the evidence of the eye witnesses and the information given by Dr. Meshram, it is clear that due to the strike delivered by the Appellant to the deceased by Bans ki fadi, deceased got two ribs broken and the spleen ruptured due to which he died. 9. Therefore, looking at the evidence of the eye witnesses and the information given by Dr. Meshram, it is clear that due to the strike delivered by the Appellant to the deceased by Bans ki fadi, deceased got two ribs broken and the spleen ruptured due to which he died. 9. Learned Additional Sessions Judge found that the accused had not intended to cause death of the deceased and therefore, the Appellant/accused was not convicted for offence under Section 302 of I.P.C. and he was only convicted for offence under Section 304 Part 1 of the I.P.C. Learned Counsel for the Appellant has submitted that offence comes to the purview of Section 325 of I.P.C. only and in his support, he has relied on a judgment rendered by Hon'ble the Apex Court in the case of Jagtar Singh v. State of Haryana AIR (2002) 3462, in which it is held as under: The intention to cause death or cause such bodily injury as was likely to cause death in the normal or ordinary course cannot be readily imputed to the accused. Taken individually or even jointly together, if at all the common intention could have been merely to commit an assault and inflict some injuries but not to cause such injuries as would or is likely to cause or result in death. Therefore, Al and A3 could not be condemned to have committed the murder, though that seems to have been the unintended ultimate result. On the facts proved, the accused could only be safely convicted under Section 325 I.P.C. and not under Section 302 I.P.C. 10. In the light of the view taken by the Hon'ble Apex Court, if the facts and circumstances of the present case are considered, then it would be clear that the weapon used by the Appellant was a half portion of bamboo stick, which was broken in the vertical direction. Therefore, it was not so heavy an object by which a powerful assault could be done. He gave only one blow to the deceased, though two ribs were broken in result. He gave one such blow on the back of the witness Shankerlal also, but Shankerlal did not receive any visible injury. Thus, it seems that since the deceased was 72 years old, his bones must have turned brittle and by a light assault he got his two ribs broken. He gave one such blow on the back of the witness Shankerlal also, but Shankerlal did not receive any visible injury. Thus, it seems that since the deceased was 72 years old, his bones must have turned brittle and by a light assault he got his two ribs broken. The Appellant was the grand son of the deceased, who did not have any enmity with the deceased. He was simply asking for his claim in the property and he was in such a agony that he gave one blow of that fadi to Shankerlal, then he gave two slaps to the witness Sukrati Bai and also some slaps to his real sister Rajo Bai. Therefore, it is clear that he did not intend to cause such a bodily injury, which could be fatal in normal course of life. His intention was not to cause such bodily injury as was likely to cause death in normal or ordinary course. He could not imagine even, that by his assault the spleen of the deceased could rupture and death of the deceased would occur. Therefore, his intention could have been merely to commit assault and to inflict injuries to the deceased. But not to cause such injuries as would or is likely to cause or result in death. 11. Looking at the entire evidence and circumstances of the case, relationship of the Appellant and the deceased and to the fact that he assaulted only once with a light weight bamboo stick, which was broken in half in a vertical direction, the Appellant cannot be convicted for offence punishable under Section 302 or Section 304 of I.P.C., in the light of dictum laid in Jagtar Singh's case (Supra), the Appellant was to be convicted for offence punishable under Section 325 of I.P.C. only. 12. Learned Counsel for the Appellant has submitted that the Appellant has undergone more than one year's period in custody and therefore, looking at the offence committed by him, he may not be sent to jail further. The incident took place in the year 1994 and therefore, it would not be proper to send the Appellant to jail again. Looking at the circumstances of the event, date of incident and overt act of the Appellant, twelve to fifteen months' jail sentence seems to be sufficient for offence punishable under Section 325 of I.P.C. to break two ribs of an old man. Looking at the circumstances of the event, date of incident and overt act of the Appellant, twelve to fifteen months' jail sentence seems to be sufficient for offence punishable under Section 325 of I.P.C. to break two ribs of an old man. 13. On the basis of the aforesaid discussion, appeal of the Appellant may be partly accepted. Therefore, appeal preferred by the Appellant is hereby partly allowed. His conviction and sentence for offence punishable under Section 304 Part 1 of I.P.C. is hereby set aside but he is convicted for offence punishable under Section 325 of I.P.C. under the same charge. He is inflicted with a punishment of jail sentence for that period, which he has already undergone in the custody. 14. At present, the Appellant is in custody, therefore, an appropriate warrant be issued forthwith to release him from jail.