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12. After having held that alleged incident is proved, the next question which is required to be considered is as to whether the deceased died of a homicidal death or died because of rupture of spleen which was enlarged and diseased spleen.

13. In this connection, adverting to the evidence of Dr. Ravindra Shrikrishna Bhise, P.W.4, Ex.25, who has performed the autopsy in a panel of two doctors, has inter alia in his examination in chief testified that weight of the spleen of the deceased was 900 grams measuring 20 cm x 15 cm x 5 cm. According to him, cause of death of the deceased was shock following intraabdominal haemorrhage due to injuries sustained and according to him injury caused to spleen of the deceased in the ordinary course of nature was sufficient to cause death. He has also admitted that the said injury was possible by a blow with a hard and blunt substance or if the spleen came into contact with hard and blunt substance. In cross-examination he has admitted that weight of a healthy spleen varies from 250 grams to 300 grams and pursuant to suffering from malaria, tumor or cancer, the weight of the spleen can be more. It is also testified by him that measurement of healthy spleen is 12.5 cm x 7.5 cm x 2 cm. He has also admitted that while performing autopsy he has not inquired why the weight of spleen of the deceased was more as he did not find it necessary. He has also not inquired whether the deceased was suffering from chronic malaria. He has issued autopsy report at Ex.26 wherein in column 21 it is mentioned that the weight of the spleen is 900 grams, enlarged upto 11 cms below costal margin surrounded by bloodclots, uniformly, grossly, enlarged ruptured spleen; measuring about 20 x 15 x 5 cms in size. Irregularly linear tear present on the gastric surface of the spleen, size 4 x 3 x 2 cms.

14. In view of the aforesaid evidence of Dr. Ravindra S. Bhise at Ex.25 and autopsy report produced by him at Ex.26 there is no manner of doubt that the deceased was having an enlarged and diseased spleen weighing at least three times more and size was almost double and if this is so we have to decide which offence is proved against the accused, i.e., murder, culpable homicide not amounting to murder, grievous hurt or hurt.

15. As per Modi's Medical Jurisprudence and Toxicology, the normal spleen in an adult measures 12 x 8 x 4 cms. In some cases, the spleen decomposes earlier than the stomach and the intestines, especially if it is swollen and hypepraemic from an acute infectious disease or enlarged from chronic malaria. However, it may resist putrefaction longer, if it happens to be firm and comparatively bloodless. Owing to putrefaction, the spleen becomes soft, pulpy, greenish-steel in colour, and it may be reduced to a diffluent mass within two to three days in summer. On account of its situation, 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 great height; in such cases it is usually associated with injuries to other solid organs and to the ribs overlying the spleen. A normal spleen may sometimes be ruptured by the broken ends of a rib, which may be fractured by a severe kick or by a blow from a blunt weapon. A spleen subjected to traction forces may be torn from its pedicle. An enlarged spleen becomes softened and brittle. Hence it is liable to rupture from a fall or from violence of a very slight degree. In such cases, the abdominal wall may not show any external mark of injury.

16. As per Dr. Jhala & Raju's Medical Jurisprudence, normally the spleen is very high up in the abdomen and well protected by the ribs. Thus, unless enlarged to double its size, it is not directly exposed to external injury. Penetrating injuries can certainly involve the organ. When enlarged, it is clearly vulnerable even to direct blows like kicks. Furthermore, such an enlarged organ is friable in structure and hence likely to bleed profusely. Such profuse bleeding may prove fatal and that too rapidly so. On the other hand when the spleen is of normal size and texture and found to be lacerated, the overlying side and abdominal wall must show signs of blunt injury viz., contusion. A kick on an enlarged spleen resulting in fatal haemorrhage amounts to a milder offence even of simple hurt depending on circumstantial evidence.

20. A similar question arose before a Division Bench of Allahabad High Court in the case of Sri Prakash v. The State, 1990 Cr.LJ 486. In that case, the beating given by the accused to a child has resulted into the death of the child. However, there was no visible injuries found on the dead-body. Beating given to the child, therefore, could not be severe. On medical evidence, spleen of the child was found to be ruptured and, therefore, enlarged spleen could only be the reason of death. The accused was not knowing of the enlarged spleen of the deceased. On the fact situation, the Division Bench held that the accused could not be held guilty under Section 304 of IPC and further held that conviction will be proper under Section 323 and not under Section 325 of IPC.