SHIVLAL Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment dated 19.11.1992, passed by the Additional Sessions Judge, Multai, Betul in Session Trial No. 60/90, whereby each of the Appellants was convicted under Section 302 read with 34 of the IPC and was sentenced to life imprisonment and to pay fine of Rs. 500/ -, in default of payment of fine, to suffer R.I. for six months . The prosecution story, in short, may be narrated as under:

(2.) ON being charged with the offence punishable under Section 302 read with 34 of the IPC, the Appellants abjured the guilt and claimed to be tried. In their examinations, under Section 313 of the Code of Criminal Procedure, both of them pleaded false implication. However, no evidence was led in defence. The prosecution sought to prove the charge by examining as many as 10 witnesses including Jhamlabi (PW1) and Gulab Rao (PW3). On consideration of the entire evidence, the learned trial Judge, for the reasons recorded in the judgment under challenge, found the charge proved against both of the Appellants and sentenced them as already indicated hereinabove. The legality and propriety of the impugned conviction has been assailed on various grounds including the so -called inconsistency between the medical evidence and the ocular testimony of Jhamlabai (PW1). However, the main contention of the learned Counsel for the Appellants is that even if the prosecution case is accepted for the sake of arguments, the act of the Appellants would not travel beyond the purview of offence punishable under Section 323 or at the most 325 of the IPC. In support of his contention, learned Counsel for the Appellants has invited our attention to the following decisions:

(3.) HOWEVER , the learned Govt. Advocate contended that the act of the Appellants was well within the purview of culpable homicide not amounting to murder. To appreciate the rival contentions, it is necessary to first advert to the medical evidence available on record. Dr. Vikram Kumar Saxena (PW8) testified that, in the postmortem on the body of Rangsu, no external injury was detected yet, on internal examination, the following internal injuries were noticed: (i) Laceration 2 cm x 1 cm x 1 cm on anterior aspect of left lung and (ii) Laceration 2 cm x 1/2 cm x 1/2 cm on posterior lateral aspect of middle lose of left lung. He further stated that both chambers of heart were empty and Thoracic cavity was filled with Blood. In the opinion of the autopsy surgeon, Rangsu's death was the result of shock and haemorrhage caused by the injuries. These contents of his report (Ex. P -10) were not disputed in the cross -examination. According to him, even in absence of any external injury on the body of the deceased, rupture of lungs could be caused by external pressure. Thus, it was clearly established that the Rangsu met with a homicidal death.