S.D. Bajaj, J.
1. Mst. Mukhtiar Kaur (PW3) wife of deceased Gurdial Singh lodged FIR No. 113, dated 30.9.1985 (Ext. PD) with Police Station Saddar Bhatinda accusing all the respondents of having caused death of her husband on 29.9.1985 at about sunset time in the area of village Kot Shamir. She is an injured eyewitness alongwith her father Amar Singh (PW4) of the occurrence in question. After completion of investigation of the case by the Police and on presentation of the challan in accordance with law, the case was committed to the Court of Sessions Judge Bhatinda vide commitment order dated 21.12.1985 of the Additional Chief Judicial Magistrate, Bhatinda. In due course, the case was assigned to Shri K.S. Kauldhar, Additional Sessions Judge, Bhatinda, who after conclusion of the trial proceedings in accordance with law, acquitted the accused of the charge under section 302 read with Section 34, IPC.
2. However, all the accused were found guilty and convicted under section 325/34, IPC having caused grievous hurt (injury No. 5) to the deceased with Sotis. They were all also convicted for an offence under section 323/34, IPC having caused simple injuries, on the person of the deceased. Major Singh accused alone having caused a simple injury to Mukhtiar Kaur (PW), has been convicted under section 323, IPC, also. The accused were found guilty vide judgment dated 12.6.1987 and vide order of even date, the trial Court while considering the amount of sentence to be awarded to the convicts, extended benefit of probation under section 4(1) of the Probation of Offenders Act. Each of them was further directed to pay compensation of Rs. 2, 000/ to the heirs of the deceased.
3. The convicts/accused have not challenged their conviction. However, the State feeling aggrieved of the order of acquittal of the charges under section 302/34, IPC has filed this appeal which is being disposed of vide this judgment. The only grouse of the State is against acquittal for an offence under section 302/34, IPC but extending of benefit of probation under section 4 (1) of the Probation of Offenders Act has not been challenged during the course of arguments in this appeal.
4. The prosecution evidence ocular as well as of medical nature need not be discussed in detail except to the extent, it is relevantly required for the decision of the case only on the point as to whether what offence is to be made out from the proved facts of the prosecution. In other words, whether the trial Court is right in convicting the accused only for offences under section 325/323/34, IPC, as detailed above.
5. After recording a finding of guilt, the trial Court has dealt with this aspect of the matter in paragraphs 20 and 21 of its judgment, which are reproduced below :
"Lastly, the learned counsel for the accused argued about the nature of the offence. As contended, from the evidence on record on offence can be found out under Section 302/34, Indian Penal Code and rather what the offence is made out is under section 325/34 Indian Penal Code. The contention of the learned counsel in this respect is not without force. Dr. B.L. Aroora (PW1) has stated in his crossexamination that had the deceased not sustained injury No. 5, he would not have died. The medical opinion reveals that spleen was ruptured and about 6 cms of tear was present. The statement of the doctor reveals that the rupture of the spleen could be due to injury No. 5. This opinion has been given by the doctor only while making statement on oath in the Court. It also appears in his statement that the spleen is protected by ribs and the ribs were intact in this case. According to Modi''s Text book on Medical Jurisprudence and Toxicology, rupture of normal spleen is very rare unless it is caused by considerable crushing and grinding force, such as, passing of a carriage or a motor car over the body, or by crush in railway accident or by a fall from a very great height. According to Modi, in such cases, it is usually associated with injuries to other solid organs and to the ribs overlying the spleen. Further according to him a normal spleen may some time be raptured by broken ends of a rib which may be fractured by a severe kick or by a blow from blunt weapon. Further according to him enlarged spleen becomes soft and brittle and it is liable to rupture from a fall or from violence of a very slight degree. As opined by the doctor in this case, the ribs were intact. As opined by the doctor in this case, the ribs were intact. There is no evidence if the spleen was enlarged, but keeping in view that there has been no fracture of ribs it can be stated that it was a case of enlarged spleen and that the accused were ignorant in this respect.
21. The author of injury No. 5 is not known, Moreover, the evidence on record on record does not show that the accused shared the common intention to cause death. They had open the attack to teach a lesson and not to cause death. Possibly, no constructive knowledge can be imputed to the accused that the said injury would result in the death of Gurdial Singh. Moreover, the injuries have been caused with nonlethal weapons and as already stated above, there is nothing to show as to who gave the fatal blow. In the circumstances the accused possibly cannot be convicted under section 302, Indian Penal Code. Instead they are liable for the commission of offence under section 325/34, Indian Penal Code. In this respect support can be drawn from Basant Singh v. State, AIR 1953 Punjab 173; Ram Lal v. Delhi Administration 1973 Supreme Court Cases (Crl) 366, Ninaji Raoji Baudha and another v. State of Maharashtra, 1976 Criminal Law Journal 1154; Bakhtawar Singh v. The State of Punjab, 1980 C.C. Cases (Punjab and Haryana) 144; Mukhtiar Singh and others v. The State of Punjab, 1981 C.C. Cases (Punjab and Haryana) 120 and Gordhan and others v. State of Rajasthan, 1987(1) Crimes 587."
6. To appreciate the medical evidence on the record and to ascertain the nature of injuries, we have come through the statement the statement of B.L. Arora (PW1) Dr. Arora (PW) performed autopsy on the dead body of the deceased on 30.9.1985 at 12.15 P.M. and found seven injuries in all caused with Sotis Exit. P1 to P3. shown to him in the Court Injury No. 1 is a lacerated wound, injury No. 2 is an abrasion and injuries No. 3 to 7 are contusions. Ext. PA is the postmortem report with Ext. PA/1 carbon copy of the pictorial diagram. All the injuries were shown of simple nature having been caused with blunt weapon but during the trial, while appearing as prosecution witness, for the first time, he opined injury No. 5 to be of grievous nature as rupture of the spleen could be the result of injury No.5 as mentioned in the postmortem report. He has categorically admitted that this opinion of rupture of spleen due to injury No. 5 has been given for the first time in the Court. This opinion of this witness was thoroughly challenged in the crossexamination. He admitted that spleen is protected by the ribs and in this case the ribs were intact. When confronted with the observations of Dr. Modi in his Text book on Medical Jurisprudence and Toxicology 10th Edition 3rd Impression at page 290, he agreed that a normal spleen in sometime ruptured by the broken end of a rib which may be fractured by a severe kick or by blow from a blunt weapon. He also admitted that an enlarged spleen due to chronic malaria or some other disease may be ruptured by use of a little force.
7. This opinion of the doctor when tested with the facts and circumstances of this case, abundantly make it clear that the accused did not cause neither intended nor caused injuries except of simple nature. The Sotis Exits. P1 to P3 are just small sticks and not lathes which may be termed as lethal weapons. They are small in size and of light weight. One of them is branch of a tree. Of course, during the trial, defence tried to show that these injuries could not be caused with some of the Sotis but we shall not go into this aspect of the present case as conviction has not been challenged by the accused. The fact remains that the accused used ordinary sticks. The alleged Lakara raised was that the deceased would be taught a lesson for supporting one Darbara Singh contesting election against Smt. Bimal Khalsa. It is admitted case of the prosecution that the accused met the deceased per chance and he was given injuries without any preconcert. The matter does not rest here. As normally spleen is ruptured by the broken ends of the ribs and the ribs may be fractured by a severe kick or blow from a blunt weapon, as opined by Dr. B.L. Arora (PW1), it appears that the deceased was not carrying a healthy spleen. Injury No. 5 which is a contusion had been found to be of simple nature and author of this injury is not known. If this simple injury has ruptured the spleen as opined by Dr. Arora (PW1) for the first time during the trial, it can be legitimately inferred that the deceased was carrying a diseased spleen, PW1 has further admitted that an enlarged spleen which occurs due to chronic malaria or even due to some other disease may get ruptured by use of a little force. Though there is no evidence on record that the deceased was carrying an enlarged spleen yet as per the nature of injuries and medical opinion of the doctor, it can safely be presumed for extending the benefit of doubt to the accused that the deceased was carrying a diseased spleen. In view of the discussion made above, we have no option except to agree with the view taken by the trial Court on point of appreciation of evidence on record. Hence the order of acquittal passed in favour of the accused for an offence under section 302/34, IPC is legal and justifiable as the trial Court has not committed any error. The trial Court has not misappreciated or overlooked the material evidence of medical nature, therefore the wellreasoned conclusions cannot be differed with in this appeal. The accused were rightly convicted for the offence under section 325/34 of the Indian Penal Code. The appeal filed by the State being devoid of merit is ordered to be dismissed.
