Judgment 1. Appellant herein is convicted for offence punishable under punishable under section 323 of Indian Penal Code and is sentenced to rigorous imprisonment for 6 months and fine of Rs.1,000/-in Sessions Case No.195/1990 by 2nd Additional Sessions Judge, Satara vide Judgment and Order dated 28/02/1995. Hence, this appeal. 2. Such of the facts which are necessary for the decision of this appeal are as follows. 3. On 27/02/1990, at about 6.15 pm, Kisan Valandiya, maternal uncle of deceased Santosh was present in the house. He heard the cries of victim Santosh. When they came out of the house, they saw accused/present appellant had brought Santosh near the house by dragging him with his leg. Accused had given a blow on the abdomen of victim Santosh. Santosh became unconscious. Kisan had questioned the accused as to why he had assaulted Santosh and the accused had replied that Santosh had entered into his field and therefore he assaulted him. It is alleged that accused had taken kerosene lamp from the house of Balu Mithapura and had threatened father of Vinod, P.W. 3 that he would set the hut on fire. Accused had fled from the spot. Victim Santosh was taken to the doctor at Saigaon. However, victim Santosh had expired. 4. Kisan Valandiya had lodged a report on the same day at about 9.15 pm. On the basis of his report, crime No.28/1990 was registered against present appellant for offence punishable under section 302 and 506 of Indian Penal Code. Investigation was set in motion. Accused was also arrested on the same day. After completion of investigation, charge-sheet was filed on 08/10/1990. Case was committed to the Court of Sessions and was registered as Sessions Case No.195/1990. Prosecution examined 8 witnesses to bring home the guilt of the accused. 5. P.W. 1 Yeshwant Narayan Malusare is panch in the panchanama of the seized of the clothes of accused. It is elicited in the cross-examination that the clothes which were seized were not removed from the person of the accused in his presence. 6. P.W. 2 Shriram Shamrao Nanaware panch for spot panchanama. He has deposed before the Court that the spot of incident is situated to the south of S.T. stand. There were standing crops in that field. However, according to him, at the place of incident, there was no any standing crop. 6. P.W. 2 Shriram Shamrao Nanaware panch for spot panchanama. He has deposed before the Court that the spot of incident is situated to the south of S.T. stand. There were standing crops in that field. However, according to him, at the place of incident, there was no any standing crop. Feet marks were seen at the place of incident. There was mud. It appeared that the crop was damaged. Panchanama is at Exhibit 12. It is elicited in the cross-examination that there are about 7 to 8 small strips of agricultural lands between the S.T. stand and place of incident. Several vegetables seen in the said field. He could not state as to what crop was damaged at the place of incident. However, he further states that it appears that the crops were some vegetable. According to him, spot was shown by the police. He had attested the panchanama in the premises of S.T. stand and not at the spot of incident. According to him, there were thorny bushes on the eastern boundary on the said small fields. 7. P.W. 3 Vinod Baku Mithapura was residing behind the S.T. stand at Anewadi. He stayed in a tent. Santosh was his maternal cousin. Santosh was originally resident of Mahuli, Taluka : Satara. He has deposed before the Court that field of the accused is near to his house i.e. at about 25 feet from his house. On the day of incident, he along with his brother Manoj and Santosh had gone to the field of accused at about 6.15 pm casually. Accused came near them. He was suspecting that they would cause some damage to his crops. On seeing accused, they fled towards their house. At that time, accused caught hold of Santosh. He assaulted him with fist and kick blows on his abdomen. He had informed his mother and maternal uncle about the assault by the accused on Santosh. In the meanwhile, accused had dragged Santosh to his house. He again kicked Santosh on his abdomen by his right leg. Santosh fell down and became unconscious. There was froth oozing from his mouth. Upon inquiry by Kisan, Accused was annoyed, he entered into their house and threatened them that he would set their huts on fire. In the cross-examination, Vinod has admitted that on the day of incident, mother of Santosh had been to Satara. Santosh fell down and became unconscious. There was froth oozing from his mouth. Upon inquiry by Kisan, Accused was annoyed, he entered into their house and threatened them that he would set their huts on fire. In the cross-examination, Vinod has admitted that on the day of incident, mother of Santosh had been to Satara. By the time, she returned, Santosh was dead. P.W. 3 Vinod has admitted in the cross-examination that on earlier occasions, accused had complained to his parents and his maternal uncle that the children from the vicinity used to damage vegetables from his field. P.W. 3 has further admitted in the cross-examination that on the day of incident, they had in fact, gone to the field for killing birds and at that time, accused had come towards them and was shouting at them and asking them to go out of his field. Upon seeing the accused, P.W. 3 along with his brother and Santosh began to run away. Manoj was ahead of him and Santosh was behind him. They were running towards their hut. He has stated in the cross-examination also that Santosh was lying on his back when he was being dragged by the accused to the hut. That the accused was dragging him by holding both his legs. There were stones on the way. Santosh was not shouting or crying when he was being dragged. According to P.W. 3, when Santosh was brought near the hut, he did not get up. He has admitted that his parents and maternal uncle and his wife has not seen the accused dragging Santosh towards their hut. Many persons had gathered near their hut. Santosh had not talked to anybody at that time. 8. P.W. 4 Sudhakar Eknath Lawand was the Medical Officer who performed post mortem on the body of Santosh on 28/02/1990. Dead body was referred by Bhuinj Police Station. P.W. 4 had noticed that there were linear abrasions around umbilicus 1" X 1". There were contusions on left hypochondriac region 3" X 2". There was no fracture of palpation. Upon internal examination, it was noticed that there was 1600 C.C. of blood in haemoperitonium. There was digested food particle. The spleen was ruptured. Cause of death was haemorrhagic shock. Post mortem notes are at Exhibit 17. Doctor has specifically opined that rupture of spleen is sufficient in ordinary course of nature to cause death. Upon internal examination, it was noticed that there was 1600 C.C. of blood in haemoperitonium. There was digested food particle. The spleen was ruptured. Cause of death was haemorrhagic shock. Post mortem notes are at Exhibit 17. Doctor has specifically opined that rupture of spleen is sufficient in ordinary course of nature to cause death. According to doctor, injury No.2 is possible because of kick blow which is likely to cause rupture of spleen in left hypochondriac region. He has specifically stated that haemoperitorium means blood found in peritoneum i.e. possible due to rupture of spleen. Doctor has specifically opined that it is not a case of instantaneous death as rupture of spleen does not result in the instantaneous death. 9. P.W. 5 Manoj Baku Mithapura was a minor. He his a cousin of deceased Santosh. According to him, when they were in the field of accused, accused had come rushing towards them as he thought that they might cause loss by stealing some crop from his field. Accused had caught hold of Santosh as P.W. 6 Kesu Navdiya and others had fled away. He has also reiterated that the accused had dragged Santosh towards their house by pulling his legs. It is elicited in the cross-examination that after seeing the accused, all three had started running in different directions. Santosh ran towards North, whereas Vinod and P.W. 6 ran towards South direction. He has admitted that he had only informed his parents that the accused had caught hold of Santosh. He has specifically admitted as follows "There was deliberation at my house about the incident and for giving statement against the accused." 10. P.W. 6 Kesu Babu Navdiya was also residing at Anewadi. He has deposed before the Court that he has seen the accused dragging Santosh and that he had also seen the accused had given kick blows on the abdomen of Santosh by saying as to why he entered into his field. He had accompanied his parents and relatives to the doctor when Santosh taken to Saigaon. Doctor at Civil Hospital had advised them to take Santosh to Satara. The admission in the cross-examination that he had seen the accused dragging Santosh towards their hut has verified the evidence in the chief examination. 11. P.W. 7 Minabai Valandiya is aunt of Santosh. She has reiterated the story put forth by first informant and other eye witnesses. 12. Doctor at Civil Hospital had advised them to take Santosh to Satara. The admission in the cross-examination that he had seen the accused dragging Santosh towards their hut has verified the evidence in the chief examination. 11. P.W. 7 Minabai Valandiya is aunt of Santosh. She has reiterated the story put forth by first informant and other eye witnesses. 12. P.W. 8 Fakirappa Sahadev Patil is Investigating Officer who had scribed the F.I.R. and had also investigated the offence. It is elicited in the cross-examination that P.W. No.3 Vinod had not stated in his statement under section 161 of Code of Criminal Procedure, 1973 that he and his 2 companions were standing on the boundary of the field of the accused. He had also not stated that he informed the parents and maternal uncle about the assault of Santosh by the accused. Kesu had not stated before him that he had heard Vinod saying that Santosh was killed. 13. Upon perusal of the substantive evidence as well as the documents placed on record by the prosecution, it is apparent on the face of record that the deceased Santosh was dragged to his house by the present appellant. Learned counsel for the appellant submits that in fact, P.W. 3 Vinod and Vikram cannot be said eye witnesses to the incident of assault upon Santosh and therefore, although the prosecution has established that accused/appellant had dragged Santosh to his house. The fact that Santosh was dragged by the accused/appellant, an inference can be drawn that Santosh had sustained the injuries at the hands of present appellant. 14. Learned counsel for the appellant further submits that there are no external injuries. According to the learned counsel, even if it is assumed that the deceased was manhandled by the appellant, the appellant had done so with the intention of protecting his crops/vegetables and therefore, he is entitled to the benefit under section 97 of Indian Penal Code. According to the counsel, he had caused the said injury only with an intention to protect his property and therefore he has covered by the clause secondly of section 97 of Indian Penal Code. 15. The Court cannot be oblivious of the fact that the deceased was a young lad. According to the counsel, he had caused the said injury only with an intention to protect his property and therefore he has covered by the clause secondly of section 97 of Indian Penal Code. 15. The Court cannot be oblivious of the fact that the deceased was a young lad. In any case, they were scared upon seeing the accused and had started to flee from the place of incident and therefore, there was no reason for the accused to assault them. Accused/appellant had not seen the young boys causing damage to the property or stealing vegetables. It appears that he had flung into action only under an impression that they would cause damage to his property. It is true that accused/appellant had no intention to cause death of Santosh, nor he had knowledge that beating him would result into his death or that dragging him on a stony surface would cause rupture of spleen and therefore, it cannot be said that the appellant had caused death of Santosh intentionally or voluntarily and therefore, he has rightly been acquitted of the charge under section 302 of Indian Penal Code. 16. In the present case, it cannot be inferred that the accused had lost his mental equilibrium upon apprehending that the young boys would cause damage to his crops. In any case, no latitude be given to him for causing the brutal attack upon an young lad. The recitals of the spot panchanama show that the victim Santosh was dragged on a stony surface. There is direct evidence to the effect that accused/appellant had given fist and kick blows on the stomach of the young lad and therefore, there was rupture of spleen. The brutality is in the act of appellant giving kick blows on the stomach after he had fallen unconscious at the door step of his own hut. It cannot be said that accused had no knowledge that giving forcible kicks and fist blows after dragging the victim on a stony surface may not result into death. It can be said that the bodily injury was such as was likely to cause death. Doctor Sudhakar Lawand, P.W. 4 has also opined that the injuries sustained by the deceased were sufficient in ordinary course of nature of cause of death. There is no sufficient cross-examination to disprove that the injuries were not sufficient to cause death. It can be said that the bodily injury was such as was likely to cause death. Doctor Sudhakar Lawand, P.W. 4 has also opined that the injuries sustained by the deceased were sufficient in ordinary course of nature of cause of death. There is no sufficient cross-examination to disprove that the injuries were not sufficient to cause death. However, by efflux of time and the fact that there is no appeal for the enhancement filed by the State and neither notice of the enhancement issued by the Court, this court is not inclined to interfere with the conviction under section 323 of Indian Penal Code. 17. It is true that the appellant had no intention to cause death of deceased Santosh, however, the brutality with which, he has reacted to mischief of a young lad, has resulted into his death. Therefore, by taking recourse to section 1(A) of The Fatal Accidents Act, 1855, which reads thus : "Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong - Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensured) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensured, shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime." "Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased." 18. This Court is inclined to grant compensation to the parents of the deceased. It is true that no amount of compensation would give a solace to the parents of the deceased from the grief that they have suffered on account of death of their son. This Court is inclined to direct the appellant to pay compensation to the family of the deceased towards the loss caused by his death by the actionable wrong committed by the appellant. This Court is inclined to direct the appellant to pay compensation to the family of the deceased towards the loss caused by his death by the actionable wrong committed by the appellant. Appellant is present in the Court and has agreed to pay compensation to the tune of Rs.15,000/- an addition to Rs.1,000/-. ORDER (i) Appeal is dismissed. (ii) Conviction of the appellant under section 323 is upheld. Appellant is sentenced to the period already undergone. Bail bonds stand cancelled. (iii) Appellant shall pay compensation of Rs.15,000/-within 12 weeks/3 months from the date of this order. (iv) Learned Sessions Court shall issue notice to the parents of the deceased in order to receive the compensation amount. Appeal stands dismissed and disposed of accordingly.