Madhya Pradesh High Court
Kalu vs The State Of M.P. on 26 February, 2018
1
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
SINGLE BENCH : HON'BLE SHRI JUSTICE S.C. SHARMA
Criminal Appeal No.907/1998
Kalu S/o Vesta Mankar
vs.
State of M.P. and others
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Mr Arjun Agrawal, learned counsel for the appellant.
Mr K.K. Tiwari, learned counsel for the respondent State.
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JUDGMENT
( Delivered on this 26th day of February, 2018 ) The present appeal is arising out of the judgment dated 04-07-1998 passed in Sessions Trial No. 81/1998 (State of M.P. Vs. Kalu), by which the learned II Additional Sessions Judge, Badwani has convicted the appellant u/s 304(2) of the IPC and has been sentenced to undergo seven years RI alongwith a fine amount of Rs. 1000/- and on account of non-payment of fine further six months additional rigorous imprisonment.
02. As per the prosecution case the appellant Kalu on 10-12-1997 at about 06:00 PM near Village Morekata, Police Station Badwani assaulted one Banga S/o Jamsingh. He gave him blows and also caused injuries by stone. First Information Report was lodged by one Gulabibai, who is the mother of the deceased on 10-12-1997 itself and she has stated that while she was sitting in front of her house Gordia's son in law(brother-in-law of Gulabibai) came towards her house and started abusing her son. Her son was given fists blow and thereafter he was assaulted with stone also. On the basis of the report lodged by Gulabibai a criminal case was registered for an offence u/s 302 and 294 as the son of Gulabibai later in night expired. The investigation was carried out and the witnesses u/s 161 of CrPC have stated about the involvement of the present appellant. They have stated that Banga was beaten up by the present appellant who gave him fists and kicks blow due to which he fell into a pit (Nallah) in front of his house and thereafter stone was thrown upon the deceased by the present appellant. A charge sheet was filed and charges were framed in the matter and after a detailed trial the appellant has been convicted for an offence u/s 304 Part II of the IPC.
203. The trial court has examined PW-1, Gulabibai, who is the mother of the deceased. She has supported the prosecution case. PW-2 Maniglal, has also supported the prosecution case. PW-3 Bhangda, has also supported the prosecution case. PW-4 Dr Mohan Gupta, who is a Surgeon has carried out the postmortem and he has stated about the injuries received by the deceased. The other witnesses have also supported the case of prosecution.
04. Learned counsel for the appellant Mr Arjun Agrawal has vehemently argued before this court that in the present case at the best conviction can be sustained u/s 323 of the IPC. There was no intention to case death nor the appellant having knowledge that his act is going to cause death. He has stated that the deceased was having enlarged spleen and because of the enlarged spleen which started bleeding, he expired. He has also stated that there are no material in the testimony of the witnesses examined by the Trial court to convict the appellant u/S. 302 and 304 of the IPC.
05. This court has carefully gone through the statement of the witnesses and the contradictions and the omissions pointed out by the learned counsel for the Appellant and the contradictions and the omissions in the testimony of the witnesses examined are as under :-
"(i)There are material contradictions and omissions in the testimony of the witnesses examined.' PW-1 Gulabi Bai:-
(i)In Para 1 of her court statement says that the incident took place at 4:00 PM while the same witness in the FIR lodged by her informs that the incident took place at 6:00 PM. Also she states in the FIR that as and when she raised an alarm at the time of incident Bhangda, Bhangya and Nasarya came to the spot and saved his son from the accused/appellant. On the contrary in Para 2 of her court statement she denies the presence of Nasarya on the spot of incident.
(ii)She in Para 2 of her statement says that after the incident deceased was brought to the house and was given water and was kept at home as they had no means to go to the hospital and at 4:00 AM Bhanga died.
(iii) Also in Para 5 of her court statement she denies that any quarrel took place between her son Bhanga (deceased) and Accused/appellant Kalu after falling into the pit/nala but in the FIR and police statement she says that her son was beaten by stones after falling into the pit/nala which shows material improvement and contradictory stand of the present witness.
(iv)Also in Para 6 of her court statement she says that her son was 3 thrown on the ground by the accused/appellant and tried to strangulate him but no such version has been stated in the police statement and FIR which shows material improvement and contradictory stands of the witness.
PW-2 Mangilal:-
(i)This witness in Para 1 states that the incident took place at around 5:00-6:00 PM contrary to the time told by PW-1 i.e. 4:00 PM. Further this witness states that he saw accused/appellant hitting deceased and states that when he reached the spit the accused/appellant ran.
(ii)He states that when he reached the spot deceased was unconscious and his wife brought water for him and he was then taken home. On the contrary PW-1 says that the deceased was brought home and thereafter he was given water.
(iii)Thereafter this witness in Para 4 states that PW-1 Gulabi Bai told him that accused/appellant has hit the deceased Bhanga with stones. This statement makes him a hearsay witness as he was informed on the fact of beating by PW-1.
(iv)Another important aspect is that he says that the police came on the spot and arrested Kalu while Exh. P/8 the arrest memo shows that Kalu was arrested from Dharamray his village and incident took place in Mortakka village.
PW-3 Bhangda:-
(i)This witness also states in Para 1 and 2 that the incident took place at 5:00 PM while the informant PW-1 states that the incident took place at 4:00 PM. He also states that he was returning home after labour from village Bhavti when he heard informant Gulabi shouting and when he reached the spit saw kalu hitting Bhanga with stones and Gulabi and Mangilal were already on the spot.
(ii) In Para 3 this witness sates that Gulabi Bai said that Kalu has beaten Bhanga which makes him a hearsay witness.
(iii) Further this witness in Para 4 states that distance of Bhavti and village Mortakka is 1 Kos = 3 Kms (approx) and he is relived from work at 5:00 PM and the incident also took at 5:00 PM which he says he saw, this makes his presence at the spot doubtful.
(iv) Also further he states in Para 5 that he was coming with a relative on bicycle whose name he does not know and he was heading his way when PW-1 Gulabi Bai told him that her son has been beaten by Kalu which makes him a hearsay witness and his statement that he saw the incident doubtful. Also in Para 6 there is impeccable evidence that he did not see Kalu hitting Bhanga with stones.
PW-4 Dr. Mohan Gupta:-
(i)In Para 5 there is impeccable evidence that all the injuries were simple in nature and the witness could not give as to whether the external injures were cause of internal injuries.
(ii)Further this witness states that all the external injuries 4 mentioned in the report were not sufficient to cause death."
06. It is true that there are contradictions and omissions in respect of the statement of witnesses, but they are not very material contradictions and omissions. So far as injuries are concerned, the deceased has received the following injuries :-
"1. Contusion with abrasion (R) Side Posterolateral chest 3"
x 1/3" brownish coloured;
2. Contusion on (R) hip four in number, collectively 1" x 1"
brownish;
3. Contusion (R) upper thigh laterally, multiple small collectively 3" x 1" brownish coloured;
4. Contusion with abrasion (L) Loin laterally 1" x 1"
brownish coloured small clots+
5. Multiple abrasion on (L) thigh posteriorly 2" x 1" clots+
6. Multiple abrasions 3 in number, small size on (L) infrascapular area of back, clots+
7. Multiple small abrasion both knee each 1" x 1" clots+"
07. The injuries received by the deceased are on account of fists and kicks blow and it is also true that he has received stone injuries also.
However, the cause of death as per statement as reflected in Postmortem report is on account of shock due to extensive internal hemorrhage because of spleen injury. It is certainly true that the evidence of witness reflects that the appellant has done the act with the knowledge it is likely to cause death, but without any intention to cause death. The fight took place all of a sudden. The deceased was assaulted by giving him fists and kicks blow. He fell down in pit (nallah) and stone was thrown on account of which he has received abrasion and later in the night expired.
08. In the considered opinion of this court, keeping in view the minor injuries received by the deceased, the appellant should have been convicted for an offence u/s 323 of IPC instead of 304 Part II of the IPC.
09. Another important aspect of the case is that the appellant was in jail from 13-12-1997 to 24-08-1998, meaning thereby, for eight and a 5 half months. He has marked his presence before the Registry of this court right from 1998. Meaning thereby, for the last twenty years. In the considered opinion of this court the injuries as reflected in the Postmortem report were certainly not the injuries likely to cause death.
The death has taken place on account of rupture of enlarged spleen. It is true that the deceased's spleen was ruptured as a result of the injuries as inflicted upon the back of his body. There is no evidence that accused knew that deceased is having a problem of enlarged spleen and as per Postmortem report the deceased was having an enlarged spleen.
10. The Gauhati High Court in the case of State Vs. Babar Ali reported in 1952 Cri LJ 997 in paragraphs 4, 5, 6 and 7 has held as under :-
"4. Culpable homicide is defined in Section 299, I.P.C. which says:
"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
5. Mr. Sarma contends that as the act of Babar Ali consisted in inflicting 2 injuries with a bamboo stick on the back of the deceased's body, it cannot be said that the injuries, being mere abrasions, were caused with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death.
6. We think the contention is sound and must prevail. The medical officer who examined the dead body has not been asked whether the two injuries caused to the deceased were likely to cause death.
7. We ourselves do not think those the two injuries were likely to cause death. What caused the death of the deceased was the rupture of the enlarged spleen. It is settled law that where the injuries caused to a person are not such as are likely to cause death, it is not a case of culpable homicide. Babar Ali beat his wife without intending to cause her death or without intending to cause such bodily injury as was likely to cause her death. It is true that the deceased's spleen was ruptured as a result of the injuries inflicted upon the back of her body, but there is no evidence that the accused knew that his wife 6 had an enlarged spleen. If there were evidence that the accused knew that his wife had an enlarged spleen and notwithstanding that knowledge, he caused injuries to her body which he ought to have known might result in her death on account of the enlarged spleen, it would be a different matter. Mr. Medhi concedes that there is no evidence that the accused knew of the state of the spleen of his wife. In these circumstances, we do not think we can sustain the conviction under Section 304, I.P.C. The offence must be reduced to one of simple hurt an offence punishable under Section 323, I.P.C.The maximum sentence prescribed by Section 323, I.P.C.is one of 12 months. We think the ends of justice will be served if Babar Ali is sentenced to 6 months' R.I. under Section 323, I.P.C. Accordingly we set aside the conviction and sentence under Section 304, I.P.C.and substitute in its place a conviction under Section 323. I.P.C.and sentence Babar Ali to undergo R. I. for 6 (six) months. With this modification in the conviction and sentence, the appeal is dismissed. Mr. Sarma has not addressed us on the merits of the case."
11. In the similar circumstances the Gauhati High Court wherein also death took place on account of rupture of enlarge spleen has convicted the accused therein u/s 323 of IPC and he has been sentenced to undergo six month rigorous imprisonment. The Hon'ble Supreme Court in the case of Jani Gulab Shikh Vs. State of Maharashtra reported in 1970 SCC (Cri) 532 in -in paragraph-6 has held as under :-
"6. The question that arises is whether the accused is guilty under Section 304, part IT, Section 325 or Section 323, I. P. C, In our opinion the High Court erred in holding that Section 304, part II, applied, The High Court observed :
"We are of the opinion that the accused must be deemed to know that as a result of such forcible push death could have been the likely result. The accused must be deemed to know that the deceased was likely to fall on the cement concrete road and that the force which he was actually using was likely to result in fatal injuries to the deceased. Therefore, though the accused did not intend to cause the death of the deceased and did not intend to cause him injuries sufficient in the ordinary course of nature to cause his death and did not intend to cause him injuries which were likely to cause death, at any rate, he must be posted with the knowledge that death was likely to result in the circumstances in which the injuries were caused by him to the deceased."
12. In the aforesaid case there was even a fracture of skull and the 7 Hon'ble apex court has convicted the accused u/s 323 of IPC instead of section 304 (II), the Madras High Court in the case of Pichapillai Vs. State reported in 1996 SCC Online Madras 180 again in similar circumstances has convicted the accused appellant u/s 323 of IPC.
13. A similar view has been taken by High Court of Uttarakhand in the case of Ram Chandra Vs. State of Uttranchal reported in Laws (UTN) 2006 4 6 and the High Court in paragraphs 22 to 30 of the aforesaid judgment has held as under :-
"22- As far as the medical evidence is concerned, we have already stated above that the doctor in fact did not find any visible injury on the person of the deceased. Further in the internal examination of the deceased Kaluwa, the doctor found that the spleen of Kaluwa was ruptured and his death was caused on account of the same.
23- It is, therefore, quite clear that the appellants assaulted Kaluwa at the place of the occurrence. Hence it is established that the appellants had assaulted Kaluwa with kicks and fists and on account of the same he fell on the earth and became unconscious and on account of spleen rupture he succumbed to injuries when he was taken to hospital.
24- It is now to be seen whether the appellants in fact are guilty for having committed the offence under Section 302/34 I.P.C. or not.
25- The evidence on record clearly show that the accused/appellants did not have any weapon in their hands. They caused marpit with deceased Kaluwa by kicks and fists and it is the reason that the doctor did not find any visible injury on the body of the deceased. The death of the deceased was caused on account of spleen rupture.
26- 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 high place and in such cases it is usually associated with the injuries to other solid organs and to the ribs overlying the spleen. A normal spleen may some times got ruptured by the broken ends of ribs which may be fractured by a severe kick or by a blow from a blunt weapon. The situation of a normal spleen in the body is so secure that normally it is not ruptured unless there crushing of the body or there is a fall from a very high place. The Investigating Officer at the time of preparing 8 "photo lash" as well as the doctor also at the time of conducting the autopsy on the body of the deceased, did not find any visible injury on the body. Therefore, it can be safely held that had the deceased been given a severe beating either by kicks or fists, he must have in normal course, sustained some visible injuries like contusion. The fact that the deceased had no visible injuries on his body, shows that he was not subjected to any severe beating and under these circumstances had the spleen of the deceased being normal and not enlarged, would have not been ruptured.
27- Therefore, taking the facts and circumstances of the case into consideration, we are of the opinion that the fist blow in this case, no doubt, resulted in subdural haematoma which led to the death of the victim, but it could not be said that the appellants could be attributed with the knowledge that by such act they were likely to cause death of the deceased. Nor could it be said that the appellants intended to cause that particular injury which they caused. Hence under these circumstances the offence could fall U/S 323/34 Penal Code and not U/S 302/34 I.P.C.
28- Accordingly, we are of the opinion that this appeal is liable to be partly allowed and the judgment and order under appeal is to be set aside.
29- We, therefore, allow the appeal in part and set aside the conviction and sentence of the appellants U/S 302/34 I.P.C. and instead convict them for an offence punishable U/S 323/34 I.P.C. We also direct that each of the appellants will have to undergo maximum sentence provided for the offence, namely, rigorous imprisonment for one year. 30- The appellants are on bail. They shall be taken into custody forthwith, so as to serve out the sentence awarded against them. Let the record be sent back to court concerned for compliance."
14. In the present case there was no enimity between the accused and the deceased nor the accused had an intention to cause any damage or injuries to the deceased . There was no intention to cause death nor the accused was having knowledge the the act of giving kicks blow to the deceased will result in his death and also keeping in view the opinion of the Doctor this court is of the considered opinion that the conviction u/s 304 Part II deserves to be set-aside and accordingly it is set aside. In place of Section 304 Part II of IPC the appellant is convicted u/s 323 of IPC and is sentenced to undergo rigorous imprisonment of one year. However, the sentence of one year shall be 9 reduced to the period already undergone.
15. With the aforesaid, the Criminal Appeal stands allowed. The appellant be released from custody and the bail bond stands discharged.
Certified copy as per rules.
(S. C. SHARMA) JUDGE Rashmi Digitally signed by Rashmi Prasahant Date: 2018.04.12 11:23:18 +05'30'