Dina Nath vs State of Punjab

K.P.S. Sandhu, J. (Oral)

Dina Nath appellant stands convicted and sentenced to 5 years rigorous imprisonment and a fine of Rs. 500/, or in default of payment of fine to undergo further rigorous imprisonment for six months under section 304, PartII, Indian Penal Code, by the learned Sessions Judge, Gurdaspur, vide his judgment and order dated August, 4, 1981. Darshan Kumar, his coaccused who was tried with the appellant was, however, given the benefit of doubt by the learned trial Judge and acquitted of the charge.

The case of the prosecution, in brief, is that Subhash Chander P.W. and his father Pashori Lal (since deceased) were running their shops independently in two different bazars at Pathankot. The appellant and his coaccused Darshan Kumar were running a joint shop, dealing in hardware business. Their shop was situated opposite to the shop of Subhash Chander P.W. Subhas Chander also was a hardware merchant.

On 22nd January, 1981 at about 12 noon, Pashori Lal deceased came from his house and when he had just reached the shop of Subash Chander, his son, they noticed that the appellant and his coaccused were shouting and calling a customer to their shop. Pashori Lal (since deceased) objected to this behaviour at which the appellant and his coaccused caused some injuries to the deceased with cakepars. Dina Nath appellant, however, gave a kick with great force in the abdomen of Pashori Lal (since deceased). P.W. Brij Mohan whose shop is close by also witnessed the occurrence and he with the help of Subash Chander P.W. tried to save Pashori Lal (since deceased) from Me assailants. Both of them also received some injuries on the spot Pashori Lal, on receipt of a kick blow, fell on the ground and expired instantaneously. Subash Chander P.W. vent to the Police Station for making the report, while, Brij Mohan remained near the dead body. On the way, Subash Chander met the police party. Fe made his statement to them, on the basis of which a case against them was registered.

The autopsy on the dead body of Pashori Lal was performed by Dr. Som Dutt P.W. I on 21st January, 1981 at a about 4.30 P.M. who found a bruise and two abrasions on the head and forehead of the deceased. The spleen of the deceased A as found lacerated. In his opinion, the death was the result of shock and hemorrhage as a result of the rupture of the spleen. Death. in his opinion, occurred only a few minutes after the receipt of the injuries.

When examined under section 13, Code of Criminal Procedure, to afford an opportunity to the appellant to explain the circumstances appearing against him in the prosecution case, he took up the plea of denial simpliciter and pleaded false implication on account of business rivalry. In his defence, be examined D.W. Shri Randhir Singh Assistant Superintendent SubJail, Pathankot, who proved that during his stay in the jail, as an undertrial, P.W. Brij Mohan had interviewed him.

The prosecution in order to bring home the guilt to the appellant examined Dr. Som Dutt P.W. 1, whose evidence has been discussed earlier. P.W. 2 Subash Chander, is the son of the deceased, who lodged the F.I.R. with the Police P.W. 3 Brij Mohan is a neighbour of the deceased and an eyewitness of the occurrence. P.W. 4 is Suraj Parkash, Draftsman, who prepared the site plan. P.W. 5 is Inspector Joginder Singh, who recorded the statement of Subash Chander on 22nd January, 198). P.W. 6 is S. I. Sarup Chand who partly investigated the case and recovered the weapons of offence from the appellant and his coaccused

Mr. R. S. Cheema, learned counsel for the appellant, has not seriously contested the conviction of the appellant but has stated that in view of the medical evidence and the circumstances of the case, the case squarely falls within the mischief of section 325, Indian Penal Code, and not under section 304, PartII, Indian Penal Code. He has specially drawn my attention to the finding recorded by the learned trial Judge wherein be has held as under :

"... while giving the opinion the doctor has loosely used the word `rupture'' of the spleen. In fact in this case no specific rupture was observed. The death in this case occurred within minutes of the infliction of the injuries. It does not appeal to reason to hold in such like cases that the injury in question would result into the death of a victim in the ordinary course of nature. The doctor in this case had not incorporated in the postmortem report that the damage to the spleen was so great that in the ordinary circumstances it would have caused the death of the victim. This opinion of the doctor was obtained by the police on Ex. PG. vide which on 3rd February, 1981 certain clarifications were sought from the doctor and the doctor vide his endorsement Ex. P.G./I opined to the effect "in my opinion the injury to the spleen was sufficient to cause death in the ordinary course of nature". This belated opinion given by the doctor does not seem to be sound. In this connection, we may refer to the violence used by the accused in the abdominal region of the deceased. It was only a kick given by accused Dina Nath which is claimed to have caused the injury on the spleen. There is apparently no reason to disbelieve the prosecution version that Dina Nath gave a kick blow in the abdominal region of the deceased. As per the doctor the spleen was otherwise healthy and normal. In my opinion it is not a case of spleen rupture. it is only a case of injured spleen."

The learned counsel for the appellant has further taken me through Medical Jurisprudence and Toxicology by Modi wherein the rupture of the spleen has been dealt with. According to Modi" rupture of a normal spleen is very rare unless caused by considerable compressing force : such in 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. "The learned counsel has also cited. In re Marana Goundan, A.I.R. 1941 Madras 560, wherein, under similar circumstances, the death occurred due to shock and hemorrhage which was the result of two kick blows given to the deceased in the abdomen. The conviction in that case was converted from one under section 304, PartII, Indian Penal Code, to section 323, Indian Penal Code. In the present case, only one kick blow has been given by the appellant in abdomen of the deceased. who was about 6065 years old man. So, in this situation, it cannot be held that the appellant intended or has the requisite knowledge that such an injury would cause death. However, the offence when the injury has endangered life, would certainly fall within, the definition of a grievous injury and would constitute an offence under section 325, Indian Penal Code.

Resultantly. I acquit the appellant of the charge under section 304, PartII, Indian Penal Code, but convict him under section 325, Indian Penal Code, and sentence him to two years rigorous imprisonment and enhance the fine from Rs. 500/ to Rs. 1000/In default of payment of fine, the appellant would undergo further rigorous imprisonment for six Months. The fine, however, would be paid to the heirs of the deceased in case it is recovered.

With this modification, this appeal fails and is dismissed.