SHYAMDAS SHIVHARE Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE appellant has preferred this appeal against the judgment dated 7.5.1997 passed by the Additional Sessions Judge, Umariya in ST. No.194 of 1994 whereby the appellant was convicted for offences punishable under Sections 323, 338 of I.P.C and sentenced for one years rigorous imprisonment and two years rigorous imprisonment respectively. Both the sentences to run concurrently.

(2.) THE prosecution's case, in short, is that the appellant Shyamdas is the real brother of witness Mahadeo (PW10). THEy had their shops adjacent on the main road of the Township Pali (Police Station Pali, District Sahdhol). On 3.7.1994, at about 9.30 a.m in the morning, deceased Keshavdas s/o Mahadeo had kept a box in front of his shop. THE appellant objected that if box is kept in front of the shops then it would create an obstruction to his customers and therefore, he directed the deceased to keep the box inside the shop. On this issue a quarrel took place between the appellant and the deceased. A scuffling took place between them. THE appellant assaulted the deceased by kicks and fists and thereafter with a stick. THE deceased sustained some injuries in the mouth especially his one tooth was injured. He had some pain in his stomach etc. and he could not say about his complaint of pain. THE deceased was taken to the Police Station, Pali by his father where the complainant Mahadeo (PW10) lodged an FIR FIR Ex.P/8 which was written in the Rojnamcha because no cognizable offence was visible at that time. THE deceased was sent to the hospital for his medico legal examination and treatment. Dr. S. K. Namdeo (PW3) had examined the deceased Keshavdas and he found three injuries on him. Firstly, one tooth in the upper row was loose and blood was present at its base. Secondly, an abrasion was found on his left elbow and he was complaining about some pain in the chest and back. On investigation a contusion was found on left side of his back. Dr. Namdeo (PW3) informed that injury no.1 was grievous and he referred him for X-Ray examination. On the next day morning at about 2.45 a.m the deceased Keshav Prasad expired. A merg intimation was given by Dr. Chaturvedi to the Police Station Pali and therefore, a merg was registered by the document Ex.P/3. Panchayatnama lash Ex.P/6 was prepared and body of the deceased was referred for post mortem. Dr. A. P. Pathak (PW13) did the post mortem on the body of the deceased Keshavdas and gave his report Ex.P/7. He found that there was no external injury visible to the deceased but, there was slight swelling on his neck. On exploring the portion it was found that there was bleeding in lower 2/3rd part of the neck just after the bones and 5 th and 6th cervical were displaced from their places and an injury was caused to the spinal cord due to which the deceased expired. After due investigation a charge sheet was filed before the Additional Chief Judicial Magistrate, Umariya who, committed the case to the Sessions Court Umariya and ultimately it was transferred to the Additional Sessions Judge, Umariya.

(3.) ON the other hand the learned Public Prosecutor has submitted that the deceased died due to assault done by the appellant. However, since no counter appeal was filed nothing can be done in the matter for conviction of offence punishable under Section 302 of I.P.C but, sentence directed by the trial Court appears to be appropriate and it may be confirmed.