K. S. LODHA, J. - (1.) APPELLANT Gajender Singh has been convicted under Section 304 Part-II I. P. C. and sentenced to 2-1/2 years' R. I. . , by the learned Sessions Judge, Banswara, by his judgment dated 8. 2. 79. He has, therefore, come up in appeal.
(2.) THE facts which are now not in dispute and as have been found by the learned Sessions Judge himself are that one Kanji accused was wanted in connection with an offence under section 307 I. P. C. and a warrant of arrest had been issued against him being Ex. D. 3 dated 4. 9. 76. In pursuance of this warrant the present appellant Gajender Singh, who was at that time posted as Head Constable at Police Station, Banswara, was sent to village Pipalwa to affect the arrest of Kanji. It appears that the accused Gajender Singh went to the house of Badariya father of Kanji and arrested Kanji at about 5. 30 p. m. on 4. 9. 76. Kanji tried to rescue the arrest but he was over-powered by Gajender Singh. In the meantime Badariya also tried to resist. Kanji and he caught hold of the accused Gajender Singh. On account of this Gajender Singh lost control over Kanji, who escaped and Badariya grappled with Gajender Singh. On account of this scuffle both the parties, namely, Badariya as well as Gajender Singh received injuries. The injuries on the person of Badariya were as under as would be clear from Ex. C. 2:- 1. Fracture Rt. Ulna Lower end Grievous Blunt 2. Fracture Rt. 4th Metacampal bone Grievous Blunt 3. Fracture c Swelling whole hand Left radius ulna lower end Grievous Blunt 4.Swelling 6 cmx4cm. Rt. leg below knee Simple Blunt 5. Fracture c Swelling whole left leg left Fibula Grievous Blunt 6. Abrasion 2 cm x 1 cm Left Marl-lary Pro-minance Simple Blunt 7.. Bruise 12 cmx 2 cm across Rt. buttock Simple Blunt 8. Bruise 6 cm x 2 cm. Back Rt. over 8",9", 10" ribs middle Simple Blunt and Gajender Singh received the following injuries as would be clear from injury report Ex. D. 6 which has duly been proved by D. W. 1 Dr. B. S. Rathore:- 1. Abrasion l/2cm x l/2cm Upper Junction third (Rt. leg front) c lower two third Simple Blunt 2. Abrasion 2 cm x 1/2 cm Rt. leg front 2 cms medially to 1. Simple Blunt 3. Linear Abrasion l-1/2 cms Rt. leg front middle Simple Blunt 4. Swelling Rt. little finger - ft 1st & 2nd Digits Simple Blunt 5. Bruise 4 cms x 2 cms Rt. back below lower angle of scapula Simple Blunt It appears that some body informed Shri Pramod Kumar, the then S. P. Banswara about the conflict between the police and the villagers of Pipalwa. Whereupon he reached the spot and found Gajender Singh accused and Badariya present at the spot. He found injuries on the person of Badariya. Therefore, he sent him to the Banswara Hospital. He, of course, states that he did not know whether Gajender Singh had also injuries on his person at that time. Badariya was admitted in the Banswara Hospital on 4. 9. 76 where his injuries were examined and injury report Ex. C. 2 was prepared. It appears that after Badariya was admitted his condition deteriorated and while he was still conscious he informed Dr. B. S. Rathore that he had been beaten by Gajender Singh, Head Constable and after saying so, he lost his consciousness and ultimately died at about 11 p. m. on 4. 9. 76. Thereupon, Dr. B. S. Rathore sent a report to the S. H. O. , Banswara informing him that Badariya who had been admitted to the hospital had died and that he had made a statement before him that he had been beaten by Gajender Singh in his own village. It appears that on the receipt of this report, the police registered a case under section 302 I. P. C. against accused Gajender Singh. A medical board was constituted for the post-mortem examination of the deceased Badariya. That board constituted of Dr. B. S. Rathore, Dr. G. P. Sharma and Dr. M. P. Agarwal. However, Dr. B. S. Rathore alone appears to have prepared the post-mortem report after due consultation with the other two members of the board. During the post-mortem examination the injuries as mentioned in Ex. C. 2 only were found. The internal organs were all found to be healthy. In the opinion of the board the cause of the death of Badariya was shock and haemorrhage due to mulple fractures. Other investigations were carried out and ultimately a challan was put up against the present appellant for offence under section 304 I. P. C. On being committed to the court of Sessions, a charge under section 304 I. P. C. was framed against the appellant accused to which he pleaded not guilty. After trial, the learned Sessions Judge found him guilty under section 304 part II I. P. C. and sentenced him as aforesaid. The ground put-forth by the learned Sessions Judge is that even if Badariya had rescued Kanji he could have been prosecuted under section 225 I. P. C. but there was no justification for the accused appellant Gajender Singh to cause his death. He has also found that by causing such injuries as have been mentioned above, the accused must be deemed to have knowledge that the injuries caused were likely to cause the death of Badariya and therefore, he could not claim any right of private defence and, therefore, the offence must fall under section 304 part II I. P. C. I have heard the learned counsel for the appellant and the learned P. P. and have gone through the record. As already stated above, the facts stated above are not in dispute. The question is whether in these circumstances the accused appellant can be held guilty under section 304 Part II I. P. C. or any other offence. P. W. 9 Pramod Kumar, S. P. clearly admits that the accused Gajender Singh had been deputed for apprehending some accused who had already absconded. Ex. D. 3 goes to show that a warrant of arrest had already been issued against Kanji for an offence under section 307 I. P. C. and it is not in dispute that Gajender Singh had gone to arrest Kanji. The eye-witnesses, P. W: 4 Devi Lal, P. W. 5 Rangji, P. W. 6 Jeewan Lal and P. W. 7 Jeewana have all stated that Gajender Singh had come to the village Pipalwa and there he had beaten Badariya with lathi. They do not specifically deny the fact that before Badariya was thus beaten by Gajender Singh, Badariya's son Kanji had been apprehended by the accused which fact amply stands corroborated by the fact that a warrant Ex. D. 3 had already been issued against Kanji and the accused himself in the F. I. R. Ex. D. 5 filed by him had mentioned that he had already arrested Kanji but on account of the intervention of Badariya, he got released and absconded and during that scuffle Gajender Singh himself had received injuries. Therefore, it can safely be concluded that these injuries had been inflicted by Gajender Singh on the person of Badariya during the course of discharging his duty in arresting Kanji. When Badariya resisted the arrest of Kanji and tried to rescue him, Badariya was certainly guilty under section 225 I. P. C, which is a cognizable offence and, therefore, Gajender Singh had further right to arrest him and during the course of this rescue and arrest he could use all means necessary to effect the arrest under section 46 Cr. P. C. I am not oblivious of the fact that sub-section (3) of section 46 Cr. P. C. mentions that this section does not give a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life but that question would arise when we come to the nature of the offence committed by Gajender Singh. At this stage it is sufficient to state that Gajender Singh was within his rights to cause injuries to Badariya when he tried to rescue Kanji and Gajender Singh had also the right of private defence of his person since it appears that in the course of rescue injuries had been caused to Gajender Singh. It may be stated here that out of the injuries of. Badariya, one is abrasion 2 cms x 1 cm. Other two are bruises; one being 12 cms x 2 cms and the other 6 cms x 2 cms and the four fractures that of Ulna. Radius, Fibula and 4th/metacorpal bone are such which do not show any external injury, Injury report Ex C. 2 does not speak of any bleeding injuries nor does the post-mortem report Ex. P. 2 show any external or internal haemorrhage and, therefore, the opinion of the board or for the matter of that Dr. B. S. Rathore, who had prepared the post-mortem report, that the cause of death was shock and haemorrhage cannot be easily understood. One can understand that these injuries may have caused shock but haemorrhage is not indicated either from the injury report Ex C. 2 or from the post-mortem report Ex. P. 2. Not only this, Dr. B S. Rathore further admits in his cross-examination that all those fractures were simple fractures. He further admits that no blood transfusion was given to Badarjya nor it was necessary. He also admits that all these injuries had been caused by a blunt object. He of course, states that an external cut has resulted into bleeding of about four to six ounces. However, this cut is not mentioned either in the injury report or in the post-mortem report and it may be that this cut may have been affected later on after he had been admitted in the hospital. In any case, Dr. B. S. Rathore further unequivocally admits that this bleeding could not have resulted into death. The cause of death further gets shrouded in mystry when Dr. Rathore who was again examined as C. W. 1 admits that the medical board's opinion was recorded on a separate paper and then on that basis Ex. P. 2 post-mortem report was prepared. That paper was then destroyed. It cannot be easily understood why that paper was destroyed and way the report was signed only by Dr. Rathore and not by the other two doctor. Hence it cannot be concluded without doubt that Badariya died on account of these injuries. Therefore, I am unable to agree with the post-mortem report that the cause of death could be shock and haemorrhage. The injuries as stated above, therefore, could not be directly responsible for the death of Badariya and, therefore, he could not have been held guilty under section 304 Part II I. P. C.
(3.) AS stated above, he was within his right to inflict these injuries either under the powers vested in him under section 46 Cr. P. C. or in the right of his private defence of person. He cannot be said to have exceeded that right and in these circumstances he cannot be held guilty of any other offence. The result, therefore, is that this appeal is accepted, the conviction and sentence passed against the appellant is set aside and he is acquitted of the charge under section 304 I. P. C. He is on bail and need not surrender. .;