Ranawat, J. - (1.) THIS is a jail appeal by Banta Singh against the judgment of the Additional Sessions Judge, Baran, dated the 19th August 1953, conviction the appellant under sec. 325, I. P. C. and sentencing him to two years rigorous imprisonment and a fine of Rs. 200/-, in default three months further rigorous imprisonment.
(2.) THE prosecution case in that on the 30th of December, 1951, some time in the afternoon, a boy named Topa was grazing his cattle in the filed of Banta Singh in village Banuni. THE accused happened to come there along with one other person and he haying seen the cattle grazing in lis filed objected to it and give three slaps and two kicks to Topa asking him not to graze cattle there in future. THE accused, thereafter, went away and one of the companions of Topa named Sujja went to his father Gendia in the village and informed him of the incident. Gendia come on the spot and carried away Topa whose condition at that time was not very satisfactory. A title latter Topa died and his dead body was taken to the hospital at Kishenganj for post-mortem examination which was performed the next day by Dr. Girdhar Gopal. THEre was no marks of external injury on the person of the deceased but on internal examination the Doctor found that the spleen of Topa had been ruptured which was responsible for causing his death. THE spleen was much enlarged. THE Doctor did not weigh the spleen but he took its measurements which were 6-1/2" x 4" x 2". THE dimensions of the spleen were 52 cubic inches. A normal spleen, according to the Doctor, is 4-1/2" x 2-1/2" x 1" which comes to about 11 cubic inches. THE spleen of Topa was, therefore, more than four times a normal spleen. The accused admitted having gone his field and having seen cattle grazing there and he also admitted having threatened Topa and having warned him to graze his cattle in his field. But he stated that Topa on being threatened tried to run away and in doing so he fell down. It is suggested that the spleen might have ruptured when the boy fell down, The learned Additional Session Judge after holding a trial that the evidence of Raina, Chhitar, Prabhu and Surjia who were the eye-witnesses, could not be ignored and it was, therefore, found that the accused had inflicted three slaps and to kicks to Topa which ultimately caused his death on account of his diseased spleen. The accused did not know that the deceased was suffering from enlarged spleen and he could have know that the injury which he caused to the boy was likely to cause his death. He was, therefore, convicted of an offence under sec. 325 I. P. C. only. In this appeal, it has been urged on behalf of the appellant that the injury, if any inflicted by the accused to Topa was of a very minor nature and the offence, is any, could not have exceeded on under sec. 323 I. P. C. It is evident (from the statement of Doctor that there were no external marks of any injury on the person of Topa and that his spleen was very much enlarged in as much as the size was more than four times of a normal spleen. The death was caused on account of the rupture of the spleen. It can safely be concluded from the medical evidence that the injury which was caused by the accused was not of a violent nature and it must have been only a case of ordinary minor beating. As there were no external makers of any injury, it is certain that the slaps and the kicks which were inflicted by the accused to Topa must have been inflicted with not much force. Under these circumstances, the question arises whether the offence should be taken to be one under sec. 325 I. P. C. or only under sec. 323 I. P. C. The learned counsel of the appellant has cited the following decisions to show that the offence did not go beyond one under sec. 323 I. P. C. State vs. Babar Ali (l), Empress of India vs. Fox (2) and Empress of India vs. Randher Singh (3 ). The learned Government Advocate has referred to the following cases to show that cases of rupture of spleen mights be regarded as endangering life falling within the definition of "grievous hurt" Empress of India vs. O' Brien (4), Empress of India vs. Idu Beg (5), Emperor vs. Lal Bakhsh (6) and Bhart Singh vs. Emperor (7 ). In State vs. Babar Ali, the facts were that the accused gave two blows with a bamboo stick on the chest of his wife causing her death. The spleen of the deceased was enlarged and the death was due to rupture of the spreen. It was held that this was a case of sec. 323 I. P. C. only and a sentence of six months' rigorous imprisonment was awarded. In Empress of India vs. Fox (2) the facts were that the deceased was a pankha cooly who was lazy and was not pulling the pankha with care. The accused got enraged and hit one or two kicks to him in order to make him work properly. The spleen of the deceased was double the normal size and he died on account of rupture of the spleen. It was held that the accused was not aware of the condition of the spleen of the decease and the offence did not exceed that under sec. 323 I. P. C. In Empress of India vs. Randhir Singh (3) the accused threw a brick at the deceased from five paces hitting him on his chest. No extraordinary mark of any injury war caused on the person of the deceased and it was not caused with much force. The deceased was suffering from enlarged spleen and he died on account of the rupture of the spleen. It was held that this was a case of an offence under sec. 323 I. P. C. only in which a sentence of three month's rigorous imprisonment was sufficient to meet the ends of justice. These cases support the contention of the learned counsel of the appellant. Now turning to the ruling cited on behalf of the prosecution side, it may be noted that all those cases are distinguishable. In Empress of India vs. O'brien (4)the cause of death was rapture of the spleen no doubt but the spleen was not enlarged or diseased. The accused kicked and hit the deceased with a stick with much force. The spleen was ruptured at four places. It was held that this was a case of an offence under sec. 325 I. P. C. and it did not extend to sec. 304. Similarly, Empress of India vs. Idu Beg (5) is also a case where the spleen of the deceased was not found to be diseased or enlarged. The accused struck a blow with very great force to the deceased who vomited blood and died instantaneously on account of rupture of the spleen which was normal. It was held that this was a case of an offence under sec. 325 only. In Emperor vs. Lal Bakhsh (6) in addition to the rupture of the spleen and the kidney the right parietal bone of the deceased was also fractured and the case is distinguishable on this account. In that case conviction was under sec. 325 I. P. C. Bharatsingh vs. Emperor (7) is a case of enlarged heart. The deceased was taking cattle to the cattle pond when the accused objected and they gave him a sound beating causing several injuries on his arms and legs, which resulted in the death of the deceased after about 10 or 12 days. The cause of death was asphyxia and heart failure due to congestion of jungs caused by beating. The accused were convicted of an offence under sec. 325 I. P. C. The nature of the injuries probably was serious and that is why they were taken to be such as to endanger human life. There is, however, no discussion in the judgment as to why the injuries were considered to be dangerous. Probably from the nature of the injures, the point had not been pressed for bringing the case under sec. 323 I. P. C. and no discussion was, therefore;, thought necessary on this point. In order that an offence may fall under sec. 325 I. P. C. it is necessary to prove that the injury or injuries which were caused by the accused were such as would fall within one of the categories specified in see. 320 I. P. C. The injury in the present case is alleged to be one of the nature described in the 8th category of sec. 320 I. P. C. which runs as follows : - "any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits". The accused in the present case was not aware that the deceased was suffering from enlarged spleen. He gave a minor beating with his hand and foot, which in the ordinary course would not have ruptured the spleen had it been normal. Because the spleen was four times the size of a normal spleen, it ruptured even when slight force was used by the accused in beating the deceased. It can-not, therefore, be held that the accused intended or knew that the injury which was going to be caused was in any way dangerous to life or was such as would cause the sufferer to be during the space of twenty days in severe bodily pain or to make him unable to follow his ordinary pursuits. Consequently, it cannot be held that the injury which the accused inflicted to the accused in the present case was in any way dangerous to life. The offence, therefore, does not go beyond sec. 323 I. P. C. The accused has remained in jail for about six months which should be considered to be sufficient punishment to him for the offence under sec. 323 I. P. C.
(3.) THIS appeal is allowed and the conviction is altered from sec. 325 to one under sec. 323 I. P. C. and the imprisonment already undergone is considered sufficient to meet the ends of justice. He shall be released forthwith, if not required in any other case. The sentence of fine is also reduced from Rs, 200/-to Rs. 50/- only. .;