L.S. Mehta, J.
1. Succinctly put, the prosecution story is that Karim Shah and Rahim Shah Fakirs of village Udai-Kalan, Tehsil Gangapur City, collected some clay required for repairing their buildings- The lay was put on the lane, abutting the houses of-Munir Khan and the accused Karim Khan. This material blocked the passage. Munir Khan and Karim Khan remonstrated Karim Shah and Rahim Shah against what they did. Karim Shah and Hahim Shah paid no heed to the protest. This led to rupture of relation between the two parties, Munir Khan and Karim Khan on the one hand and Karim Shah and Rahim 'Shah on the other. In the morning of April 29, 1970, when Karim Shah was returning home from the village mosque, Munir Khan Tiurled abuses at him. Rahim Shah, P.W. 2, intervened. In the meantime the accused Karim Khan appeared on the scene. He flung a stone towards Rahim 'Shah, Rahim Shah, however, escaped its impact. Karim Khan then threw another stone, which hit the left hand .of Karim 'Shah. .He cast a third stone at Rahim Shah's wife. Soon after the deceased Sub han Shah arrived at the spot/. He enquired of Munir Khan as to why he was beating the destitutes of the 'Mohalla'. Karim Khan got enraged at it. He picked-up a stone and dashed it towards Subhan Shah's chest. The moment Subhan Shah received the stroke on his chest, he fell down and breathed his last within a short time. First information report of the occurrence was lodged by P.W. 4 Sardar with the police station, Gangapur City, that very day at 11 a. m. The police registered a case Under Section 302, IPC and set the investigation in motion. Karim Shah was examined by Dr. S. L. Agrawal, Medical Officer, Gangapur City. He found the following injury on his person:-
Swelling 1'x1' on the left hand dorsum near wrist, It was simple in nature and was caused by a blunt Oject.
Dr. Agrawal also conducted autopsy of the dead body of Subhan Shah, aged about 65 years. He did not find any external mark of injury on the person of the deceased. His heart was, however, found ruptured. In the opinion of the Doctor, Subha Shah died of the rupture of heart, resulting in heart-failure.
After investigation was conducted, the police put up a challan in the Court of the Munsiff-Magistrate, Gangapur City. The said Magistrate conducted preliminary inquiry in accordance with the provisions of Section 207-A,'Cr.PC and committed the accused to the Court of the Additional Sessions Judge, Gangapur City. The accused was indicted for crime under Section 304, IPC to which he pleaded not guilty. In support of its case the prosecution examined 6 witnesses. In his statement, recorded Under Section ,342,- Cr.PC the accused showed total ignorance of the . offence. He further stated that the prosecution witnesses indulged in deliberate falsehood. Munir Khan and the Fakirs exchanged hot words in connection with putting clay on the lane. He also reached the place. He did not see Subhan Shah there, nor was he beaten by him. Subhan Shah was an old man. He, the accused added, might have died of heart-failure. The accused did not adduce any evidence in his defence. The trial court, by its judgment, dated September 22, 1970, convicted the appellant Karim Khan of the offence Under Section 304, Part II, I. P, C, and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1000/-, in default of payment of which to further undergo one year's rigorous imprisonment.
2. Aggrieved by the above judgment, Karim Khan has taken the present appeal. The contention of learned Counsel for the appellant is that the trial court went wrong in the application of Section 304, (Part II), IPC to the present case. The learned Counsel for the State supported the judgment of the Court below.
3. The only question that arises for the disposal of this appeal is whether the accused Karim Khan is guilty Under Section 304, Part II, IPC, Section 325 or Section 323, IPC
4. Dr. S. L. Agrawal, Medical Officer, Gangapur City, states that Subhan Shah was an old man of 65 years of age. There was no external mark of injury on his person. The left oriole was ruptured with an opening of 1'x1/2' irregular on its upper surface. The Doctor expressed the view that the cause of death of Subhan Shah was the rupture of heart, resulting in heart-failure. The heart-failure could be caused by forceful collision of the stone. In the cross-examination the Doctor states that rupture of heart could be natural, accidental or homicidal and that no clinical data was available to distinguish whether the death of the victim was natural or otherwise. The Doctor/ further deposed that the heart is located below the skin, bones, muscles, and pericardium cavity. None of the outer fibrous and the inner serous layers was found injured. Had the stone been hit on the chest, the abovementioned parts of the body should. have been damaged.
The trial court observed:
So far as the intentional causing of the death is concerned, there is no charge against the accused about it and looking from the circumstances of the case whether the striking of the stone was done on. the spur of the moment, it negatives any premeditation or intention and I think it is proper that no charge was framed against the accused for such offence.... As regards the knowledge I think there are good grounds to infer that the accused had knowledge that if such injury is caused to the deceased it might have caused his death because it is well known to him that the deceased was suffering from heart disease as is revealed by his. statement before the court .... In view of this, I think the accused has committed the offence punishable Under Section 304, Part II, IPC
5. I am unable to agree with the trial court that the accused was posted with the knowledge that death was likely to result in the circumstance the stone was thrown at him. The Doctor is precisely of the opinion that he could not say with certainty whether heart rupture of Subhan Shah was natural, accidental or homicidal. None of the outer fibrous membranes or the skin, bones, muscles or pericardium cavity, covering the heart, sustained any injury. Had the stone been thrown at the heart, these layers, the Doctor opines, should have been injured. As has been observed in Taylor's Principles and Practice of Medical Jurisprudence, Twelfth Edition, Vol. 1, page 250
The only natural cause of rupture of . the heart is softening or thinning by infraction, hut violent emotional disturbance such as anger, fright, paroxysm of passion, sudden muscular' efforts, or violent physical exertions in constrained positions can precipitate such a rupture of unhealthy muscle.' In Lyon's Medical Jurisprudence, Tenth Edition, page 240, it is mentioned:Death may take place from shock, or from embarrassment of the action of the heart by blood accumulated in the pericardial sac.
Keeping in view the opinion of Doctor Agarwal, and the medical authorities cited above it is possible to conclude that the victim's rupture of the heart was not necessarily homicidal, In that context, it is difficult to impute knowledge to the accused that the death was likely to result by the stone which he is alleged to have flung. The injury alleged to have been caused by the accused was neither such as was likely to cause death, nor such as would endanger the life under ordinary conditions. There being no mark of injury, external or internal, it is difficult to conclude that the appellant intended or knew that he was likely to endanger the life of his victim. To put the matter in alternative words, it is not made out in the case that the death of the deceased resulted from the injury. The conviction Under Section 304,,Part II, IPC is, therefore, unsustainable. It is furtherl clear that the case would not properly faD1 under any of the 8 Clauses of' Section 320, IPC as no grievous injury was inflicted by the accused: vide Jani Guiab Shaikh v. State of Maharashtra, Criminal Appeal No. 13 of 1968, decided on 29-8-1969 (SC).. Therefore, the accused also cannot be convicted Under Section 325, IPC He, keeping in view the prosecution evidence, can only be convicted Under Section 323, I.P.C.
6. In the result, the appeal is partly allowed, the conviction entered and the sentence given by the trial court are altered1 and the accused is convicted under Section 323, IPC instead of Under Section 304, Part II, IPC and is sentenced to six: months' rigorous imprisonment. The District Magistrate, Bharatpur, is directed to take necessary steps for the arrest ; of the-accused and send him to jail to undergo the-sentence awarded to him. The amount of fine, if paid, shall be refunded to the accused.