Madhya Pradesh High Court
Sheikh Ayub vs The State Of M.P on 17 October, 2012
HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT, JABALPUR
SINGLE BENCH
PRESENT: HON'BLE JUSTICE SHRI N. K. GUPTA
CRIMINAL APPEAL NO.451/1999
Sheikh Ayub and another
Vs.
State of Madhya Pradesh
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For the appellant : Shri Abhinav Dubey, Advocate.
For the respondent: Shri Ajay Tamrakar, Panel Lawyer
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JUDGMENT
(Delivered on the 17th day of October, 2012) The appellants have preferred this appeal against the judgment dated 12.2.1999 passed by the IInd Additional Sessions Judge, East Nimar Khandwa in ST. No.203/1998 whereby the appellants were convicted for offence punishable under Section 325 of I.P.C and sentenced for three years rigorous imprisonment with fine of Rs.250/ and in default of payment of fine six months rigorous imprisonment was also directed.
2. The prosecution's case, in short, is that on 27.9.1998 at about 9.00 a.m a quarrel took place between the deceased and the appellants. The appellants assaulted the deceased by fists. The deceased tried to move for some steps and thereafter, he fell 2 Criminal Appeal No.451 of 1999 down. The deceased was taken to the Police Station and thereafter to the hospital but, before he could reach the hospital he expired. A panchayatnama lash Ex.P/1 was prepared and thereafter, the dead body of the deceased was sent for post mortem. Dr. A N. Bajpai (PW5) did the post mortem upon the body of the deceased and gave his report Ex.P/7. He found no external injury visible on the body of the deceased but, on opening he found that the spleen of the deceased was ruptured from its base and huge blood was present in the concerned cavity. The deceased died due to rupture of the spleen. After due investigation a charge sheet was filed before the Chief Judicial Magistrate, Khandwa who committed the case to the Sessions Court and ultimately it was transferred to the IInd Additional Sessions Judge, Khandwa.
3. The appellants abjured their guilt. They took a specific plea that the deceased was the husband of their sister who was suffering from malaria since last 10-15 days. He was in habit to drink and then to assault his wife and therefore, he could have sustained that injury due to fall. However, no defence evidence was given by the appellants.
4. The learned Additional Sessions Judge after considering the evidence adduced by the prosecution acquitted the accused Jamila Bi from all the charges whereas the appellants were acquitted from the charge of offence punishable under Section 302 of I.P.C but, convicted for offence punishable under Section 3 Criminal Appeal No.451 of 1999 325 of I.P.C and sentenced as mentioned above.
5. I have heard the learned counsel for the parties.
6. Learned counsel for the appellants has submitted that it is very much clear that from the evidence that the appellants did not use any weapon in assaulting their brother-in-law. It was accepted by the various witnesses that the deceased fell on earth and therefore, they never intended to kill the deceased and hence, the trial Court has acquitted the appellants for offence punishable under Section 302 of I.P.C. The appellants were not intended to cause any grave injury to the victim. It is no where established that out of the appellants who assaulted the victim on his spleen. The assaults were not so forceful and therefore, no rib of the deceased was found broken and therefore, the spleen could not rupture by such assaults, unless it was enlarged. No offence under Section 325 of I.P.C shall be made out. At the most offence punishable under Section 323 of I.P.C may constitute. The appellants remained in the custody for more than three months during the trial and appeal. Under such circumstances, looking to their overt act, appellants may not be sent to the jail again.
7. On the other hand the learned Panel Lawyer has submitted that the conviction and sentence inflicted by the trial Court appears to be appropriate.
8. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case it is to be considered as to whether the appeal filed by 4 Criminal Appeal No.451 of 1999 the appellants can be accepted ? And whether the sentence imposed upon the appellants can be reduced ?
9. Akram (PW1) and Imran (PW2) were examined as eye witnesses. They have stated that the appellants assaulted the deceased by fists. It is clear that no M.L.C was done by any doctor and after the death of the deceased the post mortem could be done by Dr. A. N. Bajpai (PW5). However, Dr. Bajpai has stated that no external injury was visible to the deceased.
10. The witnesses were relatives of the deceased as well as the appellants. The appellants were also the relative of the deceased and therefore, it cannot be said that the witnesses have submitted falsely against the appellants. It was not possible for the witnesses to save the actual culprits and to tell against the appellants whereas the appellants were the relatives of those witnesses. It is true that no FIR could be lodged by any of the witnesses and only a merg intimation was recorded by the Police and investigation was initiated. Therefore, registration of the case was done by FIR Ex.P/9 which was registered after due inquest and therefore, the document Ex.P/9 cannot be considered as an FIR. However, the testimony of the eye witnesses is acceptable and it is proved beyond doubt that the appellants assaulted the deceased by fists.
11. Dr. Bajpai did not find any visible injury to the deceased and therefore, it is clear that the appellant did not assault the victim in a forceful manner. The skin above the ribs cannot be 5 Criminal Appeal No.451 of 1999 said to be loose and therefore, if a forceful assault was given by the appellants then ribs must have broken. Skin of the abdomen appears to be loose and therefore, if assaults are given in the abdomen then it is possible that a visible injury may not cause to the victim but, an internal organ may be ruptured. If spleen is not enlarged then it would not be visible outside of the ribs and therefore, if any direct assault is given to the victim then unless rib is broken spleen cannot be damaged. The spleen can be damaged if a blow is given from down to upward direction so that it may hit the spleen directly. But the eye witnesses did not prove that such blow was given by the appellants. Under such circumstances, if a fist was given in the abdomen then spleen could be ruptured if it was enlarged. Dr. Bajpai has categorically stated that the spleen was not suffering from any disease. However, he has accepted in his cross examination that he did not dissect the spleen. When lower portion of the spleen was found ruptured and spleen was not found in its original shape then Dr. Bajpai could not give his opinion that the spleen was not enlarged unless he would have dissected the spleen. Under such circumstances, it cannot be said definitely that the spleen was ruptured by direct assault because there was no injury caused to any rib.
12. The learned Sessions Judge found that the appellants were not intended to kill the deceased. Neither they assaulted in such a manner so that the deceased could die in natural course of 6 Criminal Appeal No.451 of 1999 his life and therefore, since due to their assault a fatal injury was caused which was covered as a grievous injury under section 320(8) of the I.P.C and therefore, the appellants were convicted for offence punishable under Section 325 of I.P.C. However, the appellants did not know that the spleen of the deceased was enlarged and therefore, it is not established that they intended to cause a grave injury to the victim.
13. Secondly for offence punishable under section 325 of I.P.C it is to be established that who was the culprit who had an intention to cause a grievous injury to the victim and he should be convicted for offence punishable under Section 325 of I.P.C and thereafter, common intention of another accused is to be considered. In the present case it is no where established by the eye witnesses that out of the appellants who assaulted the victim on his spleen. No intention against any of the appellants was established that they aimed to assault the victim on his spleen Under such circumstances, their intention was not present for causing grievous injury to the deceased and therefore, their common intention for offence punishable under Section 325 of I.P.C cannot be presumed. If the common intention of each of the appellants was not present for causing a grave injury to the deceased then none of the appellants can be convicted for offence punishable under Section 325 of I.P.C with the help of Section 34 of I.P.C. It is not proved against anyone of the appellants that they assaulted the deceased on his spleen and it is also not 7 Criminal Appeal No.451 of 1999 proved that they had any common intention to cause grievous injury to the deceased because the deceased was the brother-in- law of the appellants. Under such circumstances, the appellants could not be convicted for offence punishable under Section 325 of I.P.C either directly or with the help of Section 34 of I.P.C and therefore, their overt act shall fall within the purview of Section 323 of I.P.C because both of them assaulted the victim by fists causing him pain.
14. So far as the sentence is concerned learned Additional Sessions Judge convicted the appellants for offence punishable under Section 325 of I.P.C but, at the time of passing the order of sentence he considered the death of the deceased. Such type of consideration is erroneous. If any culprit is to be convicted for a particular offence then sentence should be directed for that offence only. At present it is proved against the appellants that they assaulted the deceased by fists. They did not assault in such a forceful manner so that any visible injury could be caused. Under such circumstances, their overt act is not so grave. It is unfortunate that due to that assault the spleen of the deceased was ruptured and he died. The appellants remained in the custody for more than three months and therefore looking to their overt act and also the fact that they have faced the trial and appeal for last 14 years, it is a fit case in which they should not be sent to the jail again. However, some fine may be imposed upon them.
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Criminal Appeal No.451 of 1999
15. On the basis of the aforesaid discussion the appeal filed by the appellants appears to be acceptable partly. Consequently, the appeal filed by the appellants is hereby partly allowed. The conviction as well as the sentence directed by the trial Court for offence punishable under Section 325 of I.P.C is hereby set aside. They are acquitted from that offence. However, they are convicted for offence punishable under Section 323 of I.P.C and sentenced with the rigorous imprisonment for the period which they have already under gone in the custody. Also fine of Rs.1000/- is imposed upon each of the appellants for the offence punishable under Section 323 of I.P.C The appellants are directed to deposit the remaining fine amount before the trial Court within two months from today. In default of payment of fine each oft them shall undergo for three months rigorous imprisonment.
16. The appellants are on bail. Their presence is no more required in this case and therefore it is directed that their bail bonds shall stand discharged.
17. Copy of the judgment be sent to the trial Court along with its record for information and compliance.
(N.K.GUPTA) JUDGE 17.10.2012 bina 9 Criminal Appeal No.451 of 1999