G. K. SHARMA, J. - (1.) THIS appeal is directed against the judgment dt. 28. 05. 1982, by which, the appellant has been found guilty of the offence u/s. 304- II I. P. C. and sentenced to three years' R. I. and a fine of Rs. 300/- in default of payment of fine to further undergo three months' S. I.
(2.) A written report was submitted on 20-9-1981 by Kajod alleging that Ramratan Meena was grazing his sheep on the Hasolai Nadi. His sheep entered into the field of Dhanna Jat who obstructed to it and made a protest to Ram Ratan. While taking out the sheep from the field, Dhanna inflicted a lathi blow on the back side of the legs, gave a push and slap as a result of which Ram Ratan fell down. He was brought to the village by Ram Chandra. He got his stomach dis-order and could not pass stool or urine. When the condition became serious a report was lodged at the Police Station Mendawas. On this report the S. H. O. directed Head Constable Bhanwar Lal to reach at the spot and also directed to admit the injured at the hospital and after receiving report from the hospital the case will be registered. Then the Head Constable Bhanwar Lal reached at the spot and recorded the statement Ex. P 10 of Ram Ratan. Ram Ratan was sent to the hospital and at 3. 15 p. m. an information was received at the Police Control Room that Ram Ratan had died in the hospital. Then the Police registered the case u/s. 302 I. P. C. After completing the usual investigation the Police submitted challan against the accused. The trial Court framed charge against the accused u/s. 302 I. P. C. who pleaded not guilty and claimed trial. After recording the evidence and hearing both the parties the learned trial Court found that no case is made out u/s. 302 I. P. C. and he acquitted the accused from that charge. However, the trial Court found him guilty of the offence u/s. 304-II IPC and sentenced him as mentioned above. The learned counsel for the appellant argued that he does not dispute about this fact that Dhanna accused inflicted lathi blow on the back of the legs of Ram Ratan. This fact is also not disputed that Dhanna gave a slap and a blow on the stomach Hence, so far as the infliction of blow is concerned, the fact is not disputed. The argument is that the learned trial Court itself found that the case u/s. 302 IPC is not made out but a case u/s. 304-II I. P. C. is only made oat, but in view of the statement of doctor V. D. Sharma the case could not travel beyond Sec. 323 I. P. C. A case u/s, 304-II I. P. C. is also not made out. If a person commits culpable homicide not amounting to murder shall be punished with imprisonment u/s. 304-II I. P. C. if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. This ingredient of the offence is missing in the present case. From the evidence on record it cannot be inferred that Dhanna inflicted the blow with the knowledge that it is likely to cause death or to cause such bodily injury as is likely to cause death. The blow on the legs are not the result of the death. The cause of death is the rupture of the colan. Another blow was of a lathi on the stomach and whether this blow is sufficient to cause the rupture of colan. If this fact is established by the evidence then certainly case u/s. 304-II IPC can be made out. In this respect the statement of Dr. V. D. Sharma is the sole statement and a material evidence which would prove what offence has been committed in the present case. Dr. V. D. Sharma (PW 4) conducted the postmortem on the body of Ram Ratan and in his opinion the cause of death was gangering of the large intestines leading to electrolyte imbalance, dehydration, toxaemia, shock and death. So the doctor had mentioned the cause in the postmortem report. Whether this is the result of the blow inflicted by Dhanna accused in this regard the doctor has been cross-examined at length He has stated that the external injury was not sufficient in the ordinary course of nature to cause death. According to him when there is a cut in the blood supply the gangering develops in the body. The external injury may have led to haemotama in the mesentry which may have obstructed the supply of blood to larger intestines, where the gangering developed. In the present case the haemotama could be the result of external injury The rupture was on the dexcending colan. The doctor has stated that there was no rupture of the mesentry. Colan is the large intestine. The rupture of the left colan was not on the point of bruise. There was no repture of the skin externally. There was no rupture of the muscles beneath the skin. There was no rupture of peritoneum. Large intestine may burst if there is intestinal obstruction. This is correct to suggest the possibility that if there is an old man, who has not passed the urine and stool due to obstruction for three days and if he is given purgative then the colan may burst. The doctor has further stated that this external injury did not cause the rupture of the colan. He has also stated that in the present case the rupture of the left colan was not the direct result of the external injury though he has stated that it was the indirect result. In the re-cross examination the doctor has stated that intestinal obstructions is itself a desease and there was no intestinal obstruction in this case. The colan was sent to Chemical examiner to find out whether it was having any ailments or any diseases but no report was received from the Chemical Examiner. So the important result was not before the doctor or the court and whatever statement given by the doctor shows that the left colan was rupture and which was not the direct result of the external injury i. e. the lathi blow which was given by Dhanna on the stomach. It is on the record that before taking Ram Ratan to hospital he was treated by two-three persons at the village. Amongst them two were lay-men and one was Vaidhya. They gave some medicines to him also because he reported them about pain in the stomach. What medicine was given to him by those persons is not known and those persons have not been examined. The Vaidhya should have been examined who could say what was the pain in the stomach. It might be possible that on account of not passing urine or stool for the last 2-3 days he might be getting this pain. It might be possible that on account of blow he might be having this pain though external injury was not the direct result of the rupture of colan. But all these facts are to be proved by the prosecution. Ram Ratan being an old man might be having intestinal trouble. So what I feel that the prosecution could not establish this fact that the rupture of colan was due to injury which was caused by Dhanna. Therefore, from the statement of the doctor the conclusion arrived is that Ram Ratan died not on account of the blow given by Dhanna but he died on account of repture of left colan which according to the doctor not the direct result of the external injury. Therefore, case u/s. 304 II I. P. C. is also not made out. From the admission of the accused-appellant that he inflicted lathi blow on the leg of Dhanna, one blow on the stomach and also a slap on the face, a case u/s. 323 I. P. C. is clearly made out which is held accordingly.
(3.) THE accused at the time of this incident was about 45 years of age. This incident has taken place in the year 1981. THE appellant had already been in jail for about 8 months and for an offence u/s. 323 IPC this punishment is sufficient. As a result, the appeal is partly accepted. The accused is not found guilty of the offence u/s. 304-II IPC and he is acquitted from this charge. He is found guilty of the offence u/s. 323 IPC and is sentenced to the sentence already undergone by him. The appellant is on bail. His bail bonds are cancelled and he need not surrender. .;