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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 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.

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.

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 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.

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.