Mannu vs State of U.P.

Bhagwan Din, J.—This criminal appeal has been directed against the order dated 29.1.1985 passed by the Sessions Judge, Ghazipur in Sessions Trial No. 76 of 1981, convicting the Appellants u/s 304, I.P.C. and sentencing him to undergo R.I. for a period of 7 years.

On 15.10.1980, Sheochand carrying a number of injuries on his person was admitted by Bhaglu in hospital at 1.10 a.m. Dr. K.K. Srivastava, P.W. 6 examined the injuries of the injured and prepared the injury report Ext. Ka-7. On the call given by Sri Brindavan Bihari Lal, ASDM, Ghazipur (as then he was) reached the hospital, recorded the dying declaration, Ext. Ka-18 in presence of doctor, who certified that the injured was in fit state of mind to give his statement.

It cannot be said that the police of the police station, Kotwali was not informed of the admission of the injured, Sheochand in the hospital and also of the fact that dying declaration had been recorded by the ASDM, Ghazipur. The police, however, did not come into motion until a formal report was lodged by Smt. Samrazia on 25.10.1980.

In the written report, Smt. Samarazia named Mannu (the Appellant) and Dhannu and Gurcharan (non Appellants) as the assailants of her husband Sheochand. A case vide Crime No. 658 of 1980 was registered at the police station at 6.35 a.m. Sheochand (injured) died on the same day at about 10.15 a.m. The case, therefore, was converted u/s 304, I.P.C. The Investigating Officer, Sri Ram Naresh investigated the case and submitted charge-sheet against the Appellants, Mannu and two others, namely. Dhannu and Gurcharan. The trial court tried the Appellant and two others on the charge u/s 304/34, I.P.C.

The trial court was of the view that the accused Dhannu and Gurcharan were innocent and they have not committed the alleged offence per se they have not been named by the deceased in his dying declaration, to have caused injuries. Hence, convicted the Appellant Mannu alone u/s 304, I.P.C. simpliciter and sentenced him as above.

The learned Counsel appearing for the Appellant submits that the injury No. 6 alone may be attributed to be the ultimate cause of death of deceased, Sheochand. Dr. K.K. Srivastava, P.W. 6 has stated in the Court that injury No. 6 was an incised wound in the size 4cm. � 2cm. � cavity deep on abdomen 5 cm. below the umbilicus, small intestine was protruding out. He kept this injury under observation and treated till 25.10.1980, the date of death of the injured.

Dr. Prakash Chand Tiwari, conducted the post mortem on the dead body of the deceased, Sheochand. He did not find any internal injury beneath injury No. 6. He found only abdominal wall cut under this injury. There is no other medical evidence to prove that the injury in its very nature and character was fatal and dangerous to life. Rather the medical opinion is that death of the deceased was due to Peritonitis as a result of the septicaemia occurred by the surgical infection.

An incised wound should not be held grievous or fatal in nature, merely for the reason that it is caused on the abdominal region. On this view the injury No. 6 is, therefore, held not grievous or fatal and dangerous to life. It may be categorised a simple injury in nature. Other injuries in the opinion of the doctor, who examined the deceased, were simple in nature, therefore, the Appellant may be held guilty of causing simple hurt by a sharp edged weapon. The Appellant, therefore, is not liable to be held guilty of the offence of causing culpable homicide not amounting to murder, punishable u/s 304, I.P.C. I, therefore, hold him guilty of causing simple hurt by a sharp edge weapon, punishable u/s 324, I.P.C.

The appeal is partly allowed, with the modification that the conviction of the Appellant u/s 304, I.P.C. is set aside and he is convicted u/s 324, I.P.C. The sentence awarded to him is also set aside and converted to R.I. for a period already undergone. The Appellant is on bail. Need not surrender. The bail bonds are cancelled, sureties are discharged.