Ramcharan vs State of M.P.

C.K. Prasad, J.—Sole appellant, being aggrieved by his conviction for offence u/s 304 Part-II of the Indian Penal Code and sentence of rigorous imprisonment for five years, passed by the Sessions Judge, Betul in Sessions Trial No. 53/89 by judgment dated 29-8-89, has preferred this appeal.

Prosecution story, according to the first information report lodged by P.W.1 Beni in the Police Station, Shahpur on 13-2-89 at 8 P.M., in short is, that while the appellant and the deceased Gore were returning from the market and reached near the Railway line, appellant protested to the derogatory remarks made by the deceased and abused him. P.W. 1 Beni and Moti counselled them and thereafter they proceeded further and when reached near the house of Balwant, appellant assaulted Gore by Lakdi on his back but informant Beni snatched away the said Lakdi from him. Sometime after the aforesaid incident, according to the prosecution, appellant caught hold of Gore, threw him on the ground, mounted on his chest and pressed his neck. Sustaining the injuries Gore became unconscious and appellant fled away from the place of occurrence. Prosecution story further is that the informant Beni and Moti picked up Gore and brought him to the house of Balwant where Gore stated to his nephew P.W. 1 Beni, that he will go to his house the following day. On the following day, according to the first information report P.W. 1 Beni went to the house of Balwant and took the injured Gore to the house. In the report, P.W. 1 Beni had stated that his uncle Gore had stated that he had pain in his neck and on the following day Gore died. According to him the cause of death of Gore was injury on his neck. After receipt of the aforesaid report, Asst. Sub-Inspector of Police S.N. Singh (P.W. 12) came to the place of incident, prepared the inquest report and sent the dead body for post- mortem examination. P.W.11 Dr. K.S. Ahirwar conducted the post-mortem examination and found following 17 injuries on the body of the deceased :--

(1) Abrasion on right side of face maxillary area, size 1.5 cm x 1 cm. Reddish-black colour superficial.

(2) Multiple abrasion on right side of back 5 in number, size 0.5 cm x 0.15 cm due to nail and some other rough surfaced object. All are superficial.

(3) Pin point laceration on back side of neck (just on right side).

(4) Finger and thumb mark of right hand (finger mark on left side and thumb mark on right side and only finger marks of left hand on right side of neck).

(5) Multiple bruises on back side, size 2.5 cm x 3 cm to 2.5 cm x 5.5 cm superficial with reddish colour.

(6) Five nail marks on right side of neck, size 1 cm x 0.1 cm to 0.1 cm x 0.1 cm, oblique and blackish colour.

(7) Laceration on chin, size 1 cm x 0 .1 cm.

(8) Abrasion on chest just left side, size 1 cm x 0.2 cm. Superficial.

(9) Bruise with echymosis on right eye upper eye-lid, blackish, size 5 cm x 1 cm.

(10) Abrasion on forehead above left eye, size 0.5 cm x 0.5 cm.

(11) Abrasion and nail marks on right wrist, size 1 cm x 0.3 cm to 0.1 cm x 0.1 cm oblique wrist, middle finger, index finger.

(12) Abrasion on left upper arm on index finger, size 0.2 cm, dorsal side.

(13) Multiple abrasions 4 in number, medial side of knee joint, size 0.2 cm x 0.1 cm to 1 cm x 0.2 cm, blockish. Also on right ankle joint, size 0.2 cm, blackish.

(14) Abrasion on left lower limb, medial side of ankle joint, size 0.5 cm x 0.1 cm, blackish.

(15) Abrasion on left thigh of middle 1/8, size 0-5 cm x 0.3 cm, blackish.

(16) Bruise on left side of back of renal area, size5.5cm x 1.5 cm to 3 cm x 1.5 cm. Reddish colour.

(17) Depressed fracture of skull bone right temporal, frontal and occipital bone part, size 16cm x 3.5 cm with comminuted fracture of occipital and temporal, frontal bones, right side due to hard and blunt object, like lathi blows etc.

According to Dr. K.S. Ahirwar cause of death of Gore was coma, due to compression of the brain.

Police after usual investigation submitted charge-sheet against the appellant and he was ultimately committed to the Court of Sessions to face the trial. Appellant denied to have committed any offence and his plea was that he has been falsely implicated in the case. Prosecution in support of its case had altogether examined 13 witnesses. No defence witness has been examined.

The Trial Court on consideration of the evidence led before it held that the death of Gore was homicidal in nature and although the appellant did not intend causing his death but he had assaulted the deceased with the knowledge that it is likely to cause death and accordingly held the appellant guilty of the offence u/s 304 Part-II of the Indian Penal Code and sentenced as above.

I have heard Shri S.L. Kochar for the appellant and Shri S.K, Gangrade, Panel Lawyer for the State.

Shri Kochar draws my attention to the finding of the Trial Court and contends that the appellant had been held guilty of offence u/s 304 Part-II of the Indian Penal Code on the finding that he had caused injury on the head of the deceased. P.W.11 Dr. K.S. Ahirwar had found 17 injuries on the body of the deceased and one of those injuries is on the head and in his opinion, Gore died of Coma due to compression of brain. Mr. Kochar submits that there is no evidence on record to suggest, that this injury was caused by the appellant. In absence thereof, Mr. Kochar submits that appellant cannot be held guilty of offence u/s 304 Part-II of the Indian Penal Code but, at best, the allegation proved, makes out an offence u/s 323 of the Indian Penal Code.

Mr. Gangrade, however, submits that Gore sustained injury on his head during the course of scuffle with the appellant and it has to be presumed that the said injury was caused by him.

Having appreciated the rival submission, I find substance in the submission of Shri Kochar. P.W. 1 Beni, who claims to be the eye witness to the occurrence, had not stated that it was the appellant who caused any injury to Gore on his hand. In fact, according to him, Gore died of the injury on his neck. P.W. 8 S.K David, who according to the prosecution had treated Gore, for the first time has clearly stated in his evidence that no injury was found on the body of Gore, but it had one scratch mark on his neck. It is relevant here to state that according to the first information report the incident had taken place on 11-2-89 whereas report of the same was given on 13-2-89. Had Gore sustained the head injury, which had ultimately led to his death, nothing prevented P.W. 1 Beni to give the report of the incident immediately.

From what has been found above, it is difficult to hold that appellant was the author of the head injury. That being the position, I am of the opinion that he cannot be held guilty of offence u/s 304 Part-II of the Indian Penal Code.

P.W. 1 Beni had clearly stated in his evidence that the appellant assaulted the deceased by Lakdi and same caused injury on his back. He has further stated that appellant threw Gore on the ground, mounted on his chest and pressed his neck. P.W. 7 Mst. Sunita had supported the aforesaid version. I do not have any reason, nor has been pointed out by Shri Kochar, to discredit the evidence of this witness on that count.

P.W.11 Dr. Ahirwar has found injuries on the back of Gorelal as also injuries on his neck. In that view of the matter, I am of the opinion that it was the appellant who had caused simply injury to Gorelal and accordingly he is guilty of offence u/s 323 of the Indian Penal Code. It is common ground that the appellant had already remained in jail during the trial for about 7 months. I am of the opinion that this will meet the ends of justice.

In the result, appeal is partly allowed. Conviction of the appellant for offence u/s 304 Part-II of the Indian Penai Code is set aside. Instead, he is held guilty of offence u/s 323 of the Indian Penal Code and sentenced for the period already undergone.