JUDGMENT
Sobhag Mal Jain, J.
1. This appeal by the accused is directed against the judgment dated 22nd July, 1985 of the Sessions Judge, Jalore, convicting and sentencing the accused appellant for the offence under Section 325, IPC to four years rigorous imprisonment and a fine of Rs. 400/-, in default of payment of fine to further rigorous imprisonment for four months.
2. The case relates to the incident which took place on January 12, 1985 at about 2-3 p.m. on the road from Odwara to Basad in which Smt. Bhuri received injuries resulting in her death. According to the prosecution, Smt. Bhuri was going from Odwara to Basad and when she reached near a Kair tree after covering some distance from Odwara, the accused met her on the way and caused injuries by and axe. As per the prosecution case the accused first gave a fist blow on her face and then assaulted her with the blunt side of the axe causing injuries on her lip and stomach. Smt. Bhuri raised an alarm which attracted the witnesses Girdhari Meghwal and Devi Singh. The accused then left the place and ran away. Smt. Bhuri was brought to the hospital, Jalore where she was examined by Dr. R.P. Purohit Medical Officer incharge who found the following injuries on her person:
(1) Right eye is red (sub-conjectival simple blunt
haemorrhage) in whole of the
eye;
(2) Echymotes over whole of the " "
lower lip on both sides bluish
red in colour 8 cm. x 1/2 cm.;
(3) Swelling (haematoma) on the After "
right hypochondric and right treatment
lumber region marked by is
painful; over
(4) C/o pain in the private part did
not pass urine last 16 hours
examined by Dr. (Mrs) O.P.
Sharma, Junior Spl. (G & E),
G H., Jalore. No evidence of
any injury.
3. According to the doctor the injuries were simple and caused by a blunt weapon. The First Information Report of the occurrence was lodged by Girdhari at Police Station, Jalore, on January 13, 1985 at 1 p.m. on which a case under Sections 341 and 323, IPC was registered, Smt. Bhuri died in the hospital on January 14, 1985 at 1 a.m. Her post mortem examination was conducted by Dr. Purohit at 10 a.m. on the same day. In the post-mortem examination report the following injuries have been noted:
(1) contusion of the right eye (sub-conjectival haemorrhage on the upper lip;
(2) contusion with haemotoma over lower lip more marked in the right side;
(3) abdomen distended more so in the right lumber and inguinal region, extending upto hypogastric and hypo chordrim.
According to the doctor, Smt. Bhuri died of shock resulting from the injuries on her internal organs, namely liver, kidney and intestines. After investigation the police filed a charge-sheet in the court of Judicial Magistrate, Jalore, who committed him to the court of sessions for trial for the offence under Section 302, IPC.
4. The Sessions Judge, Jalore, charged the accused under Section 302, IPC and recorded his plea. The accused pleaded not guilty and claimed to be tried. The prosecution examined as many as 8 witnesses in support of its case, including two eye witnesses, namely, Girdhari PW 4, who is also, the author of the First Information Report, and PW 6 Devi Singh. In his statement under Section 313, Cr. P.C. the accused denied having caused any injury by an axe. He however, admitted his presence at the spot. His version was that he was on his way when he met Smt. Bhuri who demanded the payment of her loan amounting to Rs. 20/-. The accused said that he would pay the same after 4 days. On this Smt. Bhuri abused him. He then gave a fist blow on her face. She fell down and he went away from there.
5. After trial, the Sessions Judge by his judgment dated the 22nd July, 1985 convicted the appellant for the offence under Section 325 IPC, and sentenced him to 4 years’ rigorious imprisonment and a fine of Rs. 500/-, in default of payment of fine, to 4 months’ further rigorous imprisonment, The learned Sessions Judge has held that the prosecution had succeeded in proving by the evidence of PW 4 Girdhari PW 6 Devi Singh supported by the dying declaration of Suit. Bhuri Ex. P 6 and the evidence of the doctor, that it was the accused who caused simple and grievous injuries to Smt. Bhuri on January 12, 1985 at about 2.30 p.m by the reverse side of the axe as a result of which she died on January 14, 1985. The Sessions Judge, however, came to the conclusion that in causing the injuries the intention of the accused was not to cause her death but to cause grievous injuries and therefore, the offence against the accused fell under Section 325, IPC.
6. Mr. Kumbhat learned Counsel for the appellant, has urged that the prosecution has failed to establish that any injury by an axe was caused to Smt. Bhuri by the accused and that the maximum case against the accused would be that under Section 323 IPC. The accused has already undergone a sentence of 1 year and 7 months and this should be treated sufficient Mr. Bhansali, learned Public Prosecutor, has on the other hand urged that the learned Sessions Judge was right in convicting the appellant for the offence under Section 325 IPC.
7. The statements of Girdhari and Devi Singh eye-witnesses to the occurrence have been read over to me. I have also gone through the dying declaration of Smt. Bhuri Ex. P 6. In my view the nature of the injuries found by the doctor noticed above, on the body of Smt. Bhuri do not make out a case under Section 325 IPC. The two injuries found on the face of Smt. Bhuri are contusions and Dr. Purohit has describe them as simple by blunt object. No external injury was found by the doctor on the stomach or abdomen of Smt. Bhuri. No such injury has been mentioned in the post mortem report. The injuries on the abdomen are internal injuries affecting the liver kidney and intestines. The evidence of the eye witnesses that the injuries of Smt. Bhuri were inflicted by an axe either by its sharp edged side or by the blunt side does not find support from the evidence of the doctor. It would not, therefore, be safe to hold that any grievous injury was caused to Smt. Bhuri by the blunt side of the axe. The doctor in his statement has not described any injury as grievous or dangerous. The prosecution has thus failed to establish that any grievous injury was caused by the accused to Smt. Bhuri. The causing of injuries by fist to Smt. Bhuri has been admitted by the accused and they are simple in nature. The conviction of the appellant, therefore, deserves to be altered from Section 325, 323, IPC.
8. Accordingly, the appeal filed by the accused appellant is partly allowed. His conviction for the offence under Section 325, IPC is altered to that under Section 323, IPC and the sentence awarded to him by the Sessions Judge is reduced to the one already undergone by him. The accused shall be released forth with, if not wanted in any other case.