JAISINGH Vs. STATE OF M P

JUDGEMENT

(1.) The incident took place on 13.11.1985 - The deceased died on 29.11.1985, i.e., after a lapse of sixteen days. The allegation is that he was assaulted by the appellant and three others with lathis. The matter was immediately reported in the police station and the deceased Kanhaji was sent for medical examination. Dr. A.K. Bhosle (P.W. 14) examined him and found two contusions on his leg region under one of which there was fracture. The patient was complaining of pain all over the body but the doctor did not notice any external injury, excepting the aforesaid two contusions. The case was then registered u/s. 325 read with 34 IPC and investigation followed. After Kanhaji died it was converted into one u/s.302 read with 34 IPC. The post-mortem examination showed that there was contusion on the left lung, spleen and left Kedney which led to the death of Kanhaji. The appellants were tried u/s. 302 read with 34 IPC in S.T. No. 40/86 of Rajnandgaon Sessions Division, but were held guilty and convicted instead u/s. 304, Part II read with 34 IPC and sentenced to five years RI. Since simple injuries were also caused to Beniram, Gyanabai, Jogilal, Kashubai and Supanbai for which there was a charge u/s. 323 read with 34 IPC, the appellants were held guilty on that charge as well and sentenced to one years RI. which was directed to run concurrently with the aforesaid sentence of five years R.I. All the accused persons have filed separate appeals, i.e., this Cr. A. No. 1365/86, Cr. A. 1366/86, Cr. A. No. 1367/86 and Cr. A No. 1368/86, which arc being disposed of by this common judgment.

(2.) Appellants learned counsel argued that granting the truth of prosecution witnesses Kanhaji died on account of injuries to his left lung, spleen and left kidney. Admittedly, immediately after the incident he was examined by Dr. A.K. Bhosle (P.W. 14) who did not find any injury on the chest or abdominal region even though the patient was complaining of pain all over the body. In such a situation since the allegation is that the appellants assaulted Kanhaji with lath is, it has to be held for want of external injuries of chest and abdominal region that the damage to the vital organs aforesaid had no connection with the assault attributed to the appellants. The external injuries on chest and abdomen noticed by the autopsy surgeon after more than sixteen days of the incident in view of the evidence of Dr. Bhosle cannot be attributed to the appellants. The prosecution evidence goes to show that the deceased was given heat momentation and in all probability the external injuries on chest and abdominal region found by the autopsy surgeon were caused in that course. In this view of the matter, since the two injuries on the leg region stand duly proved from ocular as also medical evidence and one of them had fracture underneath, the offence which could be held proved against the appellants would be u/s. 325 read with 34 and not u/s. 304, Part II read with 34 IPC. It is difficult to accept the reply of Deputy Advocate General that oral evidence clearly shows that Kanhaji was thrashed all over the body and, therefore, the internal injury and external injuries found by the autopsy surgeon on the upper part of the body should also be held to have caused by the appellants. Accepting the arguments of the learned counsel for the appellant, conviction u/s. 304; Part II read with 34 IPC is liable to be turned into one u/s. 325 read with section 34 IPC.

(3.) In result, the appeals are partly allowed. Appellants conviction u/s. 304, Part II read with 34 IPC is reduced to one u/s. 325 read with 34 IPC. The other conviction u/s. 323 read with 34 IPC is upheld. Under section 325 read with 34 IPC the sentence already undergone by the appellants which is one year eight months is held to be sufficient. The appellants are on bail. Their bail bounds are cancelled. Appeal allowed accordingly.