Ramgulal vs State of M.P.

Navin Sinha, Acting C.J—The present Criminal Appeal arises from judgment dated 2-2-2000 of the Additional Sessions Judge, Khairagarh, Rajnandgaon, in Sessions Trial No. 123/1999. The appellant who is the husband of the deceased stands convicted under Section 302, IPC to rigorous imprisonment for life with fine of Rs. 300/-, and in the event of failure to pay fine he was required to undergo three months further rigorous imprisonment.

The prosecution case is based on FIR (Exh. P-1), lodged by Khajar Bai (P.W. 1) on 3-4-2000 at about 5.30 p.m. She stated that the appellant came and assaulted the deceased from behind with a lathi and when the witness intervened to stop him he told her to stay away lest he would assault her also. The deceased fell down on the ground due to the assault but the appellant continued with the assault.

The post-mortem of the deceased (Exh. P-7) was conducted by Dr. M.G. Tiwari (P.W. 6), who deposed that the deceased had suffered fracture on the right side of rib at the level of mid clavicular line of the 3rd, 4th rib and the 3rd rib of the left side at the same level. Death was caused due to severe lung injury. In his deposition, Dr. M.G. Tiwari (P.W. 6), stated that the rib on fracture had pierced the lungs.

Learned Counsel for the appellant submitted that the deceased was his estranged wife with whom he had separated years ago and re-married. He had given her a house to live also notwithstanding, which she was fighting for maintenance. On the day of the occurrence, both of them were returning from the Court with regard to the claim for maintenance being made by the deceased. The assault was made in a fit of anger. There was no intention to cause death. He was remained in custody for approximately more than seven years.

Learned Counsel for the State submitted that Khajar Bai (P.W. 1) is an independent eye-witness to the assault. The appellant in cross-examination has not been able to demolish the fact that P.W. 1 was an eye-witness. The motive existed because of the deceased claiming monetary enhancement of compensation in the Court. The intention of the appellant to do away with the deceased is apparent from the repeated assaults made by him and refusing to stop even after P.W. 1 asked him to do so. Rather, he persisted with the assault even after the deceased had fallen down. If the deceased would not survive, he would not have to pay any maintenance.

We have considered the submissions on behalf of the parties and perused the evidence on record also.

Even if we were to discount P.W. 2 and P.W. 5 as eye-witnesses because there is no reference to their presence either in the FIR or in the deposition of P.W. 1, yet what is important is the quality and not quantity of the evidence. That P.W. 1 was an eye-witness stands established and has not been disapproved in cross-examination except for a mere suggestion that the appellant had taken action against the sons of the witness in a village dispute earlier.

In his statement under Section 313, Cr.P.C., the appellant acknowledged having assaulted the deceased in a fit of anger. But, this acknowledgment by him cannot be sufficient for his conviction as the prosecution has first to establish a prima facie case when his statement under Section 313, Cr.P.C. can only be corroborative evidence in support of the same. In view of our conclusion that P.W. 1 was in fact, an eye witness, whose credibility cannot be doubted, the acknowledgment by the appellant under Section 313, Cr.P.C. that he had assaulted the deceased in a fit of anger because of her conduct in claiming higher compensation becomes a corroborative factor against him.

That leaves the only question with regard to whether the appellant had the intention and in fact caused the death of the deceased. We find substance in the submissions on behalf of the appellant that he was angry with his wife but did not intend to cause her death. He was agitated because of her claiming enhancement of maintenance despite the fact that he had given her house to stay in. The assault came after the Court proceedings the same day. The post-mortem report does not attribute death to any injury caused by the appellant. On the contrary, the evidence is that the assault resulted in breaking of certain ribs. Medical evidence has it that merely because the ribs may be fractured in an assault does not automatically lead to a conclusion of death caused by it. It was the fractured rib, which perforated the lung leading to death. We, therefore, cannot hold that the appellant caused the injury to the lung resulting in death. The injury to the lung was the indirect result of his assault and not the direct result. But, in the circumstances, it can safely be said that it amounts to an offence under Section 304 Part II, IPC as the appellant can be stated to have the knowledge that death was likely to ensue.

In Khuman Singh and Others Vs. State of Madhya Pradesh, (2004) 10 JT 315 : (2004) 10 SCALE 89 : (2005) 9 SCC 714 , the assault was made with lathi, resulting in fracture of the ribs, which in turn pierced the liver resulting in death. It was held:--

"10......It is, no doubt, true that they assaulted the deceased in such a manner that the deceased suffered several fractures, but the injury, which caused the death of the deceased was the one suffered by him on account of the rib bone puncturing the liver. We are convinced that this injury was not intended by the appellants, and the injury suffered by the deceased on his liver was at best accidental. We, therefore, hold that Section 300 ''thirdly'', IPC is not attracted, and it cannot be said that the appellants intended to cause any injury to the liver, which perhaps proved fatal. There is no evidence to suggest that any of the, other injuries suffered by him was sufficient to cause death in the ordinary course of nature."

Since the appellant has completed over seven years in custody, the relationship between the appellant and the deceased, that it was not a crime, which affected the society at large, that he did not intend to cause death, all of which convince us to alter his conviction from one into rigorous imprisonment for life to the period undergone along with fine. The conviction is altered to that extent. The appellant who is in custody, is directed to be released forthwith subject to conditions under Section 437-A, Cr.P.C. and if not wanted in any other case.