Kanta Bhatnagar, J.
1. Appellant Kistoor Puri was tried for the offence under Section 302 & 447 IPC by the Sessions Judge Jalore The learned Sessions Judge held the appellant guilty for the offence under Section 304, Part I and 447 IPC and by the judgment dated September 30, 1977 sentenced him to eight year R.I. and a fine of Rs. 1000/-, in default of payment of fine to undergo three months R.I. on the first count and three months R. I on the second count with an order that the substantive sentences for two offences shall run concurrently.
2. Being dissatisfied by his conviction and sentence, the appellant has preferred this appeal in this Court.
3. Briefly stated the facts of the case leading to the trial of the appellant are as under:
4. On may 8, 1978 in the after-noon at about 3.30 P.M., appellant went to the field of Jepa Ram know as 'Jepaji' and demanded 'Rijka'. Jepa Ram refused to give. At this appellant inflicted lathi blow on his head. Jepaji was taken to hospital Siyana. F.I.R of the occurrence was lodged on May id, 1977 by Chela Ram son of injured. Case under Section 325 IPC was registered and the investigation proceeded Charge sheet under Section 447, 323 and 325 IPC was filed in the Court of Chief Judicial Magistrate, Jalore After eighteen days of the occurrence on May 26,1977 Jepaji breathed his last in the hospital. Charge sheet under Section 302 IPC was filed against the appellant in the Court of Chief Judicial Migistrate, Jalore. The learned Magistrate committed the appellant to the Court of Sessions Judge, Jalore to stand his trial for the charges. The learned Sessions Judge, charge sheeted the appellant for the offence under Section 302 and 447 IPC and recorded his plea. On his denying the indictments trial proceeded. Prosecution examined eight witnesses in all. The appellant totally denied the allegations levelled against him in his statement under Section 313 of the Code of Criminal Procedure and stated that his father was the 'Pujari' of Khetlajika Mandir which the 'malis' of the village did not like and the Puja work was snatched from him and for that reason he (appellant) has been falsely implicated in the case. To substantiate his contention appellant examined his father Hira Puri and one more witness Mangal Singh. The learned Sessions Judge was of the opinion that the injury on the head of Jepaji caused by the appellant was likely to cause his death and had actually resulted in his death and as such the offence committed was not murder but culpable homicide cot amounting to murder. For that reason, the appellant was held guilty for the offence under Section 204, Part-I as well as Criminal Trespass under Section 477 IPC a ad sentenced as stated earlier.
5. It is in grievance to the judgment of conviction and sentence that the preset appeal has been filed.
6. I heard Mr. Bhagwati Prasad, learned Counsel for the appellant and Mr. L.S. Udawar, learned Public Prosecutor for the State.
7. The learned Counsel for the appellant did not dispute the incident but contended that the facts and circumstances of the case clearly indicate that the intention of the appellant was not to cause any such bodily injury to the deceased, Jepaji which might result in his death. It has been argued by the learned Counsel that there was no premeditation on the part of the appellant to commit the offence and the occurrence had taken place at the spur of the moment on a petty point i.e. deceased refusing to supply 'Rijka' to the appellant.
8. It has been strenuously contended by the learned Counsel for the appellant that the Doctor was not sure about any fracture of the skull of Jepaji when he was examined and it was only at the time of conducting the post mortem examination that fracture was detected. For that there are divergent opinions of Dr. Dudhraj Jain (PW 6) who initially examined the injured and conducted the post mortem examination and prepared the report Ex P/7, and the three doctors constituting the Board that conducted the second post mortem examination at the instance of the police in connection of which Dr. Bansilal Rai, Court witness No. 1 has been examined. Referring to the opinion of the Board, the learned Counsel for the appellant emphatically stressed that the cause of death was not the head injury alone rather it was on account of the combined effect of pyonephrosis, emphasis of both lungs, head injury and old age leading to syncope and therefore, it was at the most a case of the causing grevious injury voluntarily. To substantiate his contention, the learned Counsel placed reliance on a number of decisions which I would presently discuss.
9. In order to appreciate the arguments and arrive at a conclusion whether the conviction of the appellant for the offence under Section 304, Part I is justiciable or the case falls under Section 325 IPC or any other section of the Code, it would be necessary to discuss in detail the circumstances of the case and the medical evidence on record.
10. At the very outset it may be observed that the incident is said to have taken place on the demand of 'Rijka' by the appellant and refusal by the deceased. Attention of Chela Ram, son of deceased who was at a little distance from the place of occurrence was attracted only when the blow was inflicted. He stated about the hot altercation between the assailant and the victim but from his statement the exact origin of the quarrel is not known. Re it as it may, from the evidence it is proved, and also not disputed by the learned Counsel that the refusal by Jepaji to give 'Rijka' was the cause of the quarrel leading to the incident.
11. Dr. Dood Rai Jain (PW 6), Incharge Medical Officer, Siyana Hospital had examined the injured on May 8, 1977 the date of occurrence at 5.00 PM. He at the time noted following injusies on his person:
(1) Lacerated wound 2' x 1/2. Bone Jeep on the left parietal region
(2) Abrasion two 2' x 1/3' on the left shoulder joint
(3) Lacerated, wound 4' x 1/4' x skin deep on the posterior aspect of the Left forearm.
(4) Contusion - swelling 1-1/2' x 1/2' on the posterior medial side of the left forearm.
12. According to the Doctor all the injuries were caused by blunt object. Injuries No. 2, 3 and 4 were not of gave nature. There is force in the argument of the learned Counsel for the appellant that none ,of these injuries can be said to be responsible for the fracture of metacorpal bone of Jepaji detected on X-ray and as such the same could act be connected with the commission of the crime. According to the prosecution it is the lacerated wound on the left parietal region which was responsible for the death of Jepaji and therefore, effect of that injury would require elaborate discussion.
13. Dr. Jain has conducted the postmortem examination of the dead body of Jepaji pn May 26, 1977. The report prepared by him is Ex. P/7. Dr. Jain noted one. depressed fracture of the left, parietal bone beneath the healed wound. In his opinion Jepaji had died as a. result of shock due to extensive intracranial hoemorrhage. Regarding the condition of Jepaji at the time he was braught to the hospital Dr Jain states that he was semi-conscious and was not replying the questions put to him. At this juncture it would be relevant to note that Doctor advised X-ray of the head, injury and Jepaji was taken from one hospital to another. On May 9, is 1977 he was referred to Jalore but on the same day he was brought back to Siyana, hospital and the Doctor was informed that the X-ray machine was not in working order and therefore X-ray could not be taken. The injured was then went to Sirohi for X-ray. The X ray report was not sent direct to the Doctor but it was received by the Doctor after a long time through S.H.Q. Bagra. It was on seeing the X-ray report Ex. P/6 that Doctor Jain could make out that injuries No. 1 & 4 were grevious. Regarding. injury No. 4 it may be noted that at was on postero medial side of the left forearm whereas the fracture according to the X-ray report was on the 5th metacorpal bone.
14. Jepaji had died on the intervening night of May 25, 1977 & May 26 1977 Dr. Jain has stated it was only on opening the skull that he could know that there was depressed fracture of the left parietal bone and that blood bad accumulated in the brain membranes. Dr. Jain further stated that on opening the lungs be found them smashed and there was emphesematous. The primary cause of the death according to Doctor Iain was fracture of the skull and haemorrhage. He has stated that injury No. 1 if not treated was sufficient to cause death HI the ordinary course of nature Dr. Jain has admitted that frontal and parietal regions were not affected by the head injury nor was there any lineal fracture. According to him there were chances of vomiting but as Jepaji was not vomiting and there was nothing about in the Bed Head Ticket Ex. D/4. Dr. Jain has stated that he had not seen blister on the lung but there was general emphysematous. He has however stated that it is not necessary that a person may, meet death on the bursting of the blister but he would feel restless and could not even sit, and may dies in a few hours. The Doctor admitted that a little before his death Jepaji had come walking from his cot and the hospital peon had in formed the Doctor that Jepaji was feeling nosiatic and thereafter he fell down and expired. The Doctor has stated that empheseraatous may be caused by infection of old cough, but it cannot be said to be a serious disease. He denied the suggestion that there was nephritis in the kidney of Jepaji The Doctor has stated that there was extra dural haemorrhage on the skull of Jepaji and such a haemorrhage can be caused even without injury to a person of advanced age and that Jepaji was an old man The Doctor admitted that while conducting the postmortem examination he did not find any part of the brain damaged. Dr. Jain admitted, the blood-pressure and the rate of pulse of Jepaji remained normal throughout and that if his condition would have been serious or critical, he would not have sent him to Jalore for X-ray. That, the condition of Jepaji was not so serious that he could not be taken to Jalore or Sirohi According to Doctor Jain, after May 11, 1977 Jepaji was in a fit condition to go get up and walk. The Doctor stated that in case of head injury, the patient h not permitted to move for three or four days and this direction is also required when tae condition of the patient is good. That, on May 9, 1977 where Jepaji was sent to Jalore he was not unconscious and was replying the question put to him.
15. From the statement of the Doctor, it cant be deducted that the condition of Jepaji was not serious or critical when he was taken to the hospital nor did if deteriorate till the date of his death. Doctor Jam has However considered the head injury to be the main cause of death, Had not, there been postmortem examination by the Board of three Doctors,, the opinion of Doctor Jain would be the only material before the Court and it could have been given weight but when the opinion expressed by the Board is taken in view, there is some difficulty in taking the opinion of Doctor Jain as final.
16. Before discussing the evidence of Doctor B.L. Rai' (C.W. 1), the Member of the Board, the opinion of Doctor R.K. Nagorl (PW. 8) will also have to be seen. As stated earlier, it was only after the postmortem examination that Doctor Jain could tell with certainty that there Was depressed fracture. Dr. R.K. Nagori (PW. 8) Medical Jurist in Sirohi' Hospital get the X-ray taken and opined that there was suspected fracture of the frontal region of the skull. Dr. Nagori felt confused about the exact location of the fracture and gave a. version different froth the one stated it the X-ray report. However, that would riot carry us further because from the postmortem examination specific opinion about the fracture of the parietal region could be formed.
17. The pertinent question would be whether this fracture was, the cause or the only cause of death of Jepaji. To put in other words whether in the absence of other diseases, this head injury would in the circumstances have proved fatal for Jepaji.
18. Dr. B.L Rai was Medical Jurist at Ganganagar Hospital at the relevant time, and was examined as Court witness No, 1. A Medical Board consisting Or. B.M. Bohra, Dr. Ajit Singh and Dr. B.L. Rai was constituted to reconduct the postmortem examination of the dead body of Jepaji. The post mortem examination was conducted by the Board on May 26, 1977 at 4.15 PM. The report prepared by the Board is Ex P/1.
19. Upon removing the postmortem stitches, fracture from left temporal parietal region extending up to 5 cm. in right parietal bone was noted. Right kidney was found healthy. However, the left kidney was peninephsic i.e. there was pus. Tissues were very hard and pus flew out from inside the kidney. Ouring removal. Both the lungs were pale having emphesemator bullac. There was black deposit in the laungs. In the opinion of the Board, Jepaji had died due to the combined effect of pyonephrosis, emphesemia of both the lungs, head injury and old age leading to syncope.
20. Dr. B.L. Rai proved the postmortem examination report Ex. P.1 containing the opinion of the Board and stated that Jepaji was suffering from pyonephrasis disease for a long time for atleast a year or more. Similarly emphesemia of the lungs was for a long time. Mr. Rai wasunable to give any opinion on the point as to whether in the absence of pyonephrosis and emphesemia disease, because it depends upon the stage those diseases had reached and that could not be ascertained after the death of Jepaji. The Doctor could not also say as to how long Jepaji could have survived, in case he would not have have sustained the head injury. The Doctor futher stated that it is not necessary that a person may die of the head injury of the type sustained by japaji and there is possibility of a person surviving on sustaining such injury jepaji and that would depend upon the impact of the hand injury. The doctor opined that the two diseases jepaji could have accelerated because of the head injury anddeath could have occurred because of th ecumultive effect of those the two injuries and the head injury. He however, made it cleare that his opinion depended on to her things reaming the same. The Doctor could not state whether the diseases of Jepaji were aggravated because of the head injury or not. Dr. B.L. Rai stated that visaras of Jepaji were preserved for Pathological test because that could have facilitated the opinion regarding the cause of death of Jepaji. Whether the visaras were sent for pathological test and of so with what result is not known. Dr. Rai stated that in the opinion of the Board fracture was of the parietal bone only and not of the temporal bone. That the brain fracture of Jepaji was in the outer table of the parietal bone. No brain heamorrhage was visible. According to the doctor the case of Jepaji was not that of intracranial pressure i.e. of increased pressure. The Doctor did not find any depressed fracture and stated that the brain of Jepaji was taken out and no extra durial or sub-durial haemorrhage was noted. That, there was no mark of injury on the heart. On seeingt theX-ray plate Ex. p/20/3, Dr. Rai stated that it not being clear, no fracture on the skull was visible. That, the age of the cranial fracture cannot be detected by the postmortem examination. Dr. Rai made it clear that if person after sustaining the head injury, as Jepaji had sustained, may walk on the nest day and is taken to Jalore and Sirohi for X-ray purpose next day, such a person would not expire only because of that head injury. The doctor further opinion that the diseases of the lungs and the bed for a long because of the head injury. The Doctor stated that though the head injury of Jepaji was on the outer part it would become unconscious or not. Dr. Raj stated that if Jepaji had not become unconscious after sustaining the injury and did not vomit, then there was no impact of the head injury and if it was so, it might not have aggravated the other diseases. In case Jepaji remained unconscious in the night after sustaining the head injury and became normal on the next day, there was destruction of the tissues of Jepaji's kidney. That, there is acute infection because of pyonephreses, a person may die. The Doctor could not say whether it was so in the case of Jepaji or not because only pathological test could have determined it. Dr. Rai stated a that if Jepaji recovered within twelve hours of his sustaining the injury, the head injury could not have been fatal to him. That, there is no material in the Bed Head Ticker to denote the effect of the head injury on Jepaji's diseases. That, in the post mortem examination report the head injury has been shown to be one of the cause of the death and according to the bed head tricket effect of that injury was only up to 12 hours the doctor further stated that at the time of the postmortem examination it could not be made out as up to what extent the fracuure had cured. That, as jepaji's head injury has been shown to be one of he cause of his death, it was possible that no laceration was possible at the time of the post mortem examination. The doctor further made it clear that in the opinion of the Board there was possibility of he head injury bening one of the cause of the death and it was for that reason that reason that the brain was kept reserved and sent for the pathological test. It is important to note that there is no report to that effect on the record. The doctor admitted that no report was only on the basis of the possibility that the Board had given the opinion.
21. From the above stated version of Dr. Rai a member of the Board conducting the post mortem examination it cannot be said with certainty that Jepaji died of the head injury. The perusal of the record makes it clear that he had been taken from the one hospital to another for X-ray. Proper treatment could not be given at the earliest. Despite that, he had recovered and became normal. It was after four days that he expired while admitted in the hospital. Thus there is force in the contention of the learned Counsel for the appellant that possibility of Jepaji getting cured of thread injury and dying of the diseases of the kidney andlungs cannot be ruled out.
22. In view of this type of this type of evidence and the circumstances of the case, Mr. Bhagwati Prasad emphaticalll argued tjhat the caase against the appellant does not travel beyond Section 325 IPC. In this concern, reference has been made by the learned Counsel to the case of State v. Jong Singh 1969 RLW 301. In that case the grevious injury on the head was sustained by the victim at the hands of he assailants by Jepaji. Deceased improved in hospital and was discharged. He later on died of the injury coupled with dysentery. The accused was held guilty for the offence under Section 325 IPC.
23. Another case referred on the point is State of Raiasthan v. Sheoji and Ors. 1980 Cr. LR (Raj) 70. In the case the accused persons had inflicted blows on the head of the deceased causing fractures on both the sides of the skull. The incident had taken place on account of the accused persons taking the goats to the village cattle pond. The accused persons were found guilty for the offence under Section 325. IPC.
24. The facts and circumstances of the case on hand as discussed above clearly indicate that there was no previous enmity between the appellant and Jepaji, The quarrel according to the prosecution had taken place on a trivial point i.e. the appellant demanding 'Rijka' and the deceased refusing to given the same. Chetla Ram, who was at a little distances could not throw any light upon as to what had actually happened at the start of the quarrel. All that be could say was that therefore not altercation between the assailant and the victim. There is only one grievous injury as is evident from the post mortem examination report. The Doctor could not say with certainty that the fracture could have caused the death. Dr. B.L. Rai, Member of the Board has given a detailed description of the injury and the opinion of the Board in the regard. He has stated that the opinion was based on the possibility. Upon considering his statement as a whole, it can be, inferred that the head injury could not positively be said to be the cause of death The reason as stated earlier is obvious. It was after a good recovery that Jepaji had died. His suffering from the serious diseases of lungs and kidney might be the real cause of his death, In such circumstances, all that can be said is that the appellant at the spur of the moment lost his balance of mind and as such his intention could not be more than causing grevious injury which may be likely to cause death. Hence, his conviction for the offence under Section 304 IPC cannot be sustained. As the appellant had gone to the field of Jepaji and committed the offence, he has been rightly held guilty for the offence under Section 447 IPC. The appellant therfore, should be convicted for the offence under Section 325 IPC instead of Section 304 Part-land his conviction for the offence under Section 447 IPC is to be maintained.
25. The next point emerging for determination is as to what would be adequate punishment to be awarded to the appellant. The circumstances of the case reveal that there was no pre-meditation or previous enmity leading the crime. The appellant was 23 years of age when the offence was committed. He had remained in jail for a period of about nine months. In my opinion it would not be just and proper to send the appellant behind the bars after a lapse of so many years when he might have established bis life. The ends of justice would meet if he is sentenced to the period he had already remained in custody to far along with the sentence of fine.
26. Consequently, the appeal is partly allowed. His conviction and sentence passed for the offence under Section 304 Part-f are set-aside. He is instead convicted for the offences under Section 325 IPC He is sentenced to imprisonment for the period he had remained in custody so far for the offence under Section 325 IPC. He is also sentenced to & fine of Rs 1000/- in default of payment to undergo three months R.I for the aforesaid offence under Section 447 IPC and three months RX awarded by the trial Court for the it offence are maintained with an order that the substantive sentence on the two counts shall run concurrently. As the appellant has already undergone the substantive sentence awarded by this judgment for the two offences he bad been held guilty, he need not be sent to jail if he deposits the amount of fine imposed for the offence under Section 325 IPC. Two months period is allowed to the appellant to deposit the amount of fine. his failure to pay the fine, the Sessions Judge, Jalore shall effect the arrest of the appellant and sent him to jail to suffer the sentence awarded in default of payment of fine.