Mahluram vs State of Chhattisgarh

R.S. Sharma, J.—This appeal is directed against judgment dated 24-1-2004 passed by Sessions Judge, Jashpur in Sessions Trial No. 49/2003. By the impugned judgment, accused/appellant Mahluram has been convicted u/s 304 Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 3� years and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo rigorous imprisonment for 15 days. Case of the prosecution, in brief, is as under:

On 5-7-2003, at about 6:25 p.m., Rajendra Ram (PW-1) lodged a report in Police Station Bagicha for death of Chhunnu Ram. On receiving the information, C. S. Sharma (PW-8) recorded Merg Intimation (Ex. P-2) and First Information Report (Ex. P-1) that on 5-7-2003, at about 2 p.m., appellant Mahluram, son of deceased Chhunnu Ram and Dilobai, wife of the deceased assaulted the deceased. Dilobai assaulted with an umbrella and appellant Mahluram assaulted with a Lathi. Rupneshwar alias Dhadhram (PW-3) intervened, but both the assailants did not stop and kept on assaulting the deceased. The deceased died on the spot. The deceased had sustained injuries on the head, back, chest and hand. When Rajendra Ram (PW-1), his wife Sukhmai and his elder father Choko reached the place where the dead body of the deceased was lying, they saw that the deceased had sustained injuries on the head, back, chest and hand and the appellant and Dilobai were sitting there.

The Investigating Officer reached the place of occurrence and gave notice to Panchas (Ex. P-5) and prepared inquest (Ex. P-6) on the dead body of the deceased. The dead body was sent for post-mortem examination to Government Hospital Bagicha vide Ex. P-10. Dr. T. K. Sahu (PW-5) conducted the postmortem examination and gave his report (Ex. P-11), in which, he found that bruise was present at left hypochondrial region, lacerated wound at the inter-digital space between thumb and index finger about 6 cms to 2 cms to muscle deep was present. The area of the bruise was about 6 cms. x 6 cms. The spleen was ruptured. Cause of death was haemorrhagic shock as a result of excessive bleeding and the death was homicidal in nature.

In further investigation, site-map (Ex. P-3) was prepared. Plain soil and blood stained soil were seized from the place of occurrence vide Ex. P-7, A Lathi was seized from the appellant vide Ex. P-8. An umbrella was seized from Dilobai vide Ex. P-9. Seized articles were sent for examination to Forensic Science Laboratory, Raipur vide Ex. P-21.

After completion of the investigation, charge-sheet was filed against the appellant and co-accused Dilobai in the Court of Judicial Magistrate First Class, Jashpur, who, in turn, committed the case to the Court of Session at Raigarh, from where the case was received on transfer by the Sessions Judge, Jashpur, who conducted the trial and convicted and sentenced the appellant as mentioned above. Co-accused Dilobai was convicted u/s 323 IPC and sentenced for the custodial period only.

Shri A. K. Prasad, learned counsel for the appellant argued that learned Sessions Judge convicted co-accused Dilobai u/s 323 IPC. The case of the appellant is also similar to that of the co-accused. According to the prosecution, the appellant assaulted on the back of the deceased with a Lathi, but no injury was found there. The bruise was present on the hypochondrial region. Co-accused Dilobai assaulted on the abdomen of the deceased with an umbrella. She was convicted u/s 323 IPC, therefore, the appellant is also liable for conviction u/s 323 IPC. Learned counsel placed reliance on Mithia vs. State of M.P., 2000 (1) MPWN Note 42 and Pirthi Vs. State of Haryana,

On the contrary, Smt. Madhunisha Singh, learned Panel Lawyer for the State/respondent, opposed the above arguments and supported the impugned judgment passed by the learned Sessions Judge.

I have heard learned counsel for the parties and have also perused record of the sessions case with utmost circumspection.

Ropadram alias Ropan (PW-2) deposed that co-accused Dilobai and deceased Chhunnu Ram were quarrelling and beating each other. At that time, the appellant came there and assaulted on the back of the deceased with a Lathi. Rupneshwar alias Dhadhram (PW-3) deposed that Dilobai assaulted the deceased with the umbrella and the appellant assaulted the deceased with the Lathi. The deceased sustained injuries on the hand and back.

Autopsy Surgeon Dr. T. K. Sahu (PW-5) deposed that it is true that he had not found any injury on the head of the deceased. It is also true that no bony fracture was found in the body of the deceased. Dr. T. K. Sahu (PW-5) found bruise on hypochondrial region. According to the prosecution witnesses, co-accused Dilobai assaulted on the abdomen of the deceased with the umbrella. Dr. T. K. Sahu (PW-5) found that the spleen of the deceased was ruptured and there was no injury on the back side of the deceased.

In Raffail Vs. State of M.P. (Now State of Chhattisgarh), , a Division Bench of this Court observed thus:

In Ram Chandra (supra), the appellants were having no weapons. They caused marpit with the deceased by kicks and feets and the death of the deceased was caused on account of rupture of spleen. Taking all the facts and circumstances of the case into consideration, the High Court held that 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 the particular injury which they caused. Therefore, under the above circumstances the offence could fall u/s 323/34 IPC and not u/s 302/34 IPC.

In Pirthi vs. State of Haryana (supra), the Hon''ble Supreme Court held thus:

Having regard to the medical opinion, admittedly the injury to the testicles was not the direct cause of death. No treatment was given for two days it is only on 4-4-1986 that the deceased was admitted in the hospital. But, unfortunately, in the meanwhile gangrene developed. Under the circumstances the offence only amounts to one punishable u/s 323 I.P.C. In the result, the conviction of the appellant u/s 304 Part II I.P.C. and the sentence of four years'' R.I. awarded thereunder are set aside. Instead he is convicted u/s 323 I.P.C.

Aghanu (PW-4) deposed that it is true that at the time of incident the deceased was in drunken state and had fallen in a Nala.

It appears that at the time of incident the deceased was heavily drunk, a quarrel had taken place between Dilobai and the deceased and the appellant had assaulted the deceased out of anger. Learned Sessions Judge convicted Dilobai u/s 323 IPC. The case of the appellant is similar to that of Dilobai. Looking to the medical opinion and the evidence of eye-witnesses, offence of the appellant only amounts to one punishable u/s 323 IPC.

Therefore, I am of the considered view that an offence u/s 304 Part II IPC would not be made out and the appellant would be liable for punishment u/s 323 IPC. Accordingly, conviction and sentence awarded to the appellant u/s 304 Part II IPC are set aside. Instead thereof, the appellant is convicted u/s 323 IPC. The appellant has suffered jail sentence for about 8 months and 3 days. The jail sentence awarded to the appellant is restricted to the period already served by him. The sentence of fine imposed by the trial Court is affirmed.