Ram Lal vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred this appeal against the judgment dated 29.8.1997 passed by the learned First Additional Sessions Judge, Damoh in S.T. No. 177/1995, whereby the appellant was convicted for the offence punishable u/s 304 (Part-II) of IPC and sentenced for 5 years'' rigorous imprisonment with fine of Rs. 2,000/-. In default of payment of fine, rigorous imprisonment for 3 months'' was also directed. Prosecution''s case, in short, is that, on 22.7.1995, at about 9 a.m. in the morning, the deceased Komal Singh had cut some fencing of his field, situated at Hanumat Dongari, Village Amana (Police Station Nohata, District Damoh). Wife of the appellant Ramlal quarreled with the deceased Komal Singh, due to his overt-act. Thereafter, the appellant came to the spot and gave a stroke from the base of the stick, below his left ribs. The incident was seen by Nanhebhai (P.W.6) and Amar Singh (P.W.7). Komal Singh was taken to the Police Station Nohata, where he lodged an FIR, which was written in Rojnamacha, Ex.P/9. He was referred for his medico legal examination. Dr. Aathiya (P.W. 2) examined the deceased Komal Singh and gave his report, Ex.P/4-A. No injury was found to the deceased Komal Singh. Thereafter, Komal Singh was taken to a private practitioner Dr. H.C. Jain (P.W. 5) who saw the deceased Komal Singh at about 3.30 p.m. in the noon and thereafter, he referred him to the District Hospital, Damoh. The deceased Komal Singh was taken to Dr. Santosh Kumar Goyal (P.W. 4) a private practitioner. When Dr. Goyal came out of his house, he found that Komal Singh had expired. A merg intimation, Ex.P/7 was given to the police and a Panchayatnama lash was prepared and dead body of the deceased Komal Singh was sent for the post-mortem. Dr. Abhay Jain (P.W. 1) performed the post-mortem on the body of the deceased Komal Singh and gave his report, Ex.P/2. No external or internal injury was found on his body but, it was found that left kidney and spleen of the deceased were ruptured and the deceased died due to profused bleeding from those organs. After due investigation, a charge-sheet was filed before the JMFC, Damoh, who committed the case to the Sessions Court, Damoh and ultimately, it was transferred to the First Additional Sessions Judge, Damoh.

The appellant abjured his guilt. He did not take any specific plea in the case. However, he has stated that it was the deceased, who rushed towards the appellant with an axe, whereas the appellant held his axe and in scuffling, the deceased fell on the Earth. The appellant did not assault the deceased by any weapon. In support of his defence, medical report of the appellant, Ex.P/5-A was shown by Dr. Aathiya (P.W.2) in his cross-examination and it was proved.

The learned First Additional Sessions Judge, Damoh, after considering the evidence adduced by the parties, acquitted the appellant for the offence punishable u/s 302 of IPC but, convicted him for the offence punishable u/s 304 (Part-II) of IPC and sentenced him as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the appellant has submitted that the deceased himself had an axe at the time of the incident and no injury was caused by the appellant. Offence may come within the purview of section 323 of IPC only. However, it is further submitted that the appellant remained in the custody for 26 months and he has faced the trial and appeal for the last 17 years. Under such circumstances, he may not be sent to the jail again. Learned counsel for the appellant has placed his reliance on the judgments passed by Hon''ble the Apex Court in cases of Bagdi Ram Vs. State of Madhya Pradesh, and Shanabhai Dhulabhai Parmar Vs. State of Gujarat,

On the other hand, the learned Panel Lawyer has submitted that the conviction as well as the sentence directed by the trial Court appears to be appropriate.

After considering the submissions made by the learned counsel for the parties, it is to be considered as to whether the appeal filed by the appellant can be accepted? Whether the appellant can be convicted for the offence punishable u/s 323 of IPC? And whether the sentence imposed upon the appellant can be reduced?

Nanhebhai (P.W.6) and Amar Singh (P.W.7) have stated that initially the deceased Komal Singh cut the fencing of his field and therefore, wife of the appellant Ramlal started abusing the deceased. Thereafter, the appellant came to the spot and gave a push of base of a stick, below the left chest of the victim. Dr. K.K. Aathiya (P.W.2) examined the deceased and he did not find any external injury to him. The skin of abdomen is a loose skin and therefore, if such type of impact is given by the base of the stick then, it is possible that internal organs may rupture without causing any visible injury on the skin. The development of complications due to the injuries caused to the victim Komal Singh are visible by the evidence given by Dr. H.C. Jain (P.W.5) and Dr. Santosh Kumar Goyal (P.W. 4). Initially when the victim was taken before the Dr. Aathiya his general condition was good and thereafter, it was deteriorated and therefore, Dr. H.C. Jain told the victim and his relatives to take the victim to the District Hospital, Damoh but, condition of the deceased was deteriorated very fast and therefore, he could not be taken to the District Hospital, Damoh but, he was taken to the private practitioner Dr. Goyal and when Dr. Goyal came out from his house, he found the deceased to be dead. In post-mortem report, Dr. Abhay Jain found that the left kidney and the spleen of the deceased were ruptured.

Medical evidence as established by these four doctors clearly indicates that by a stroke given by the appellant with the help of base of the stick, spleen and the left kidney of the deceased were ruptured and oozing of blood was increased thereafter and ultimately, the victim Komal Singh had died. Under such circumstances, the medical evidence duly corroborates the testimony of the witnesses Nanhebhai and Amar Singh.

Nanhebhai has lodged an FIR, Ex.P/6 at about 6.40 p.m. but, actually it is not an FIR in the eye of law. FIR was lodged by the deceased himself on Rojnamacha, Ex.P/9, which was duly proved by the police officer, who wrote that Rojnamacha. That Rojnamacha, Ex.P/9 is nothing but, a dying declaration given by the deceased about the reason of his death and therefore, that Rojnamacha, Ex.P/9 is admissible u/s 32 of the Evidence Act, which also corroborates the testimony of the witnesses Nanhebhai and Amar Singh.

The learned counsel for the appellant has submitted that the appellant was also injured in the incident. He sustained one injury on his neck. Dr. Aathiya proved that injury in his report, Ex.P/5-A. However, looking to the genesis of the crime, it appears that the appellant suddenly appeared at the spot and gave a stroke to the deceased by the base of a stick and therefore, it was the appellant who was the assailant in the case. He did not have any right of private defence at that time. If the deceased had cut the fencing, which was common to the field of the deceased and the appellant then, by such overt-act, no sudden or grave provocation was caused to the appellant and therefore, it is established that he assaulted the victim voluntarily. It is true that the appellant was not aware that due to his assault, the deceased could die and therefore, the learned Additional Sessions Judge has rightly convicted the appellant for the offence punishable u/s 304 (Part-II) of the IPC. Though there was no intention or object of the appellant to cause death of the deceased but, he has caused a fatal injury to the deceased in such a manner and therefore, he is rightly held guilty for the offence punishable u/s 304 (Part-II) of IPC.

So far as the sentence is concerned, it is true that the appellant was the first offender, who did not know that due to his assault, the deceased would die. He has faced the trial and appeal for the last 17 years and he remained in the custody for 26 months. Under such circumstances, where Hon''ble the Apex Court had reduced the sentence of the accused for the offence punishable u/s 304 (Part-I) of IPC in case of Bagdi Ram (supra) to 3 years rigorous imprisonment then, in the present case, the sentence of the appellant for the offence punishable u/s 304 (Part-II) of IPC can be reduced to the period of 26 months. Since the appellant has already undergone for a period of 26 months then, in the light of judgment passed by Hon''ble the Apex Court in case of Bagdi Ram (supra), it would be proper to reduce the sentence of the appellant for the period, which he has already undergone in the custody.

On the basis of the aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. The conviction directed by the trial Court for the offence punishable u/s 304 (Part-II) of IPC is hereby maintained but, the sentence is reduced to the period for which the appellant remained in the custody in the past. No change in the fine amount imposed by the trial Court. The appellant is directed to deposit the fine amount before the trial Court within two months from today, failing which the trial Court shall sent him to undergo the default sentence.

At present, the appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. A copy of the judgment be sent to the trial Court along with its record for information and compliance.