SANTOSH DUGGAL, J. - (1.) THIS petition under section 439 Cr.P.C. has been moved by Ziley Singh who had been arrested in a case registered under section 302 IPC resultant on the death of his wife, named Vidya. It is alleged that the deceased was found in her house lying on the floor by her brother Mast Ram who visited her at about 4 P. M. on 7th May, 1989 and she revealed to him that her husband had beaten her with lathi. She died shortly thereafter. On police being informed, she was taken to hospital by ASI Sis Ram of police post Kaparhers, police station Najafgarh and the entry at 6 35 p.m. on 7th May 1989 in Deen Dayal Upadhyay Hospital is as having teen brought dead. The post-mortem revealed 18 injuries on her person and the opinion of the doctor is that the cause of death was peripheral circulatory failure resulting from collective injuries inflicted on her. The case was registered on the basis of the statement given to the police by the aforesaid brother of the deceased Mast Ram on the very evening.
(2.) MR . Bawa appearing for the petitioner argued vehemently that it cannot be a case prima facie of offence under section 302 IPC even if it were to be presumed at this stage that it was the petitioner who had caused her injuries, for the reason that none of the injuries was on any vital organ and no injury had been opined to be sufficient to cause death. He extensively read from the postmortem report to stress his argument that the injuries were on various parts of the body but only in the nature of abrasions and bruises and that the very fact that no injury was caused on any vital organ would lead to the inference that the petitioner did not intend to cause death of his wife but only wanted to teach her a lesson because be felt that she was having illicit relations with his brother. He placed reliance on certain decided cases in which on the basis of the fact that injuries had not been caused on vital organs, the cases were hold in final analysis to be covered by section 304 IPC as against under section 302 IPC and in a case where the original offence was under Section 307 IPC, it was converted into one under Section 326 IPC and urged on the basis of these decisions that in this case also the petitioner cannot be considered to be guilty of offence punishable under section 302 IPC so as to deprive him of bail. 3. I have given very careful thought to the arguments addressed by Mr. Bawa I find from the judgments quoted by him that in one case, namely, AIR 1956 SC 654, Kapur Singh v. State of Pepsu, it was only at the stage of second appeal that it was held on assessment of complete facts and circumstances of the case that conviction ought to have been recorded under section 304, Part I of the Indian Penal Code and not under section 302 IPC. In the second case decided by Madhya Pradesh High Court reported as 1987(2) Crimes 265, it was only in view of the fact that the accused there had given only fist blows and kicks and was found on evidence in a drunken state, that the conviction was recorded under section 304 Part II, IPC. In the third case, namely, AIR 1972 SC 1764 (Jai Narain Mishra and others v. The State of Bihar), the offence was converted from section 307 IPC to the one under section 326 IPC giving the accused benefit of doubt where there were only four injuries, three of which were opined to be of simple nature and the fourth that could have endangered life.
(3.) ALL the aforesaid cases, as already noted, were after complete trial and the observations came at the stage of first or second appeal whereas in the present case the trial has not yet commenced and the evidence indicative of the intention and other relevant factors have yet to be examined and appreciated by the trial court.;