Full Judgment
1. This appeal has been filed against the judgment of the learned Sessions Judge, Banswara dated January 16, 1991 by which he has convicted the accused appellant under Section 302, I.P.C. and sentenced him to life imprisonment and to pay fine of Rs. 100/-and in default of payment of fine to further undergo seven days R.I.
2. Brief facts giving rise to the present appeal are summarised as follows: On 14-8-87 at about 2.00 p.m., the informant Laxman (P.W. 7), brother of deceased Mst. Loonji, lodged first information report (Ex. P/6) at the police station Anandpuri to the effect that during the night intervening 13th and 14th August, 1987, the informant, Laxman, her sister and her mother-in-law were sleeping on the cots outside the gate, his brother-in-law Shyamji (accused) came there at about 12 in the night in a drunken condition and he asked his wife Mst. Loonji for giving him food. She said that he left the house after taking his meals. On this, he started beating her. When Mst. Loonji started running he caught hold and dragged her in the 'Angan'. On her hue and cry, he (Laxman, P.W. 7) got-up from sleep and saw the accused throwing a stone on the head of Mst. Loonji. Other members of the house also got-up. Relatives also came there. Mother-in-law of Mst. Loonji informed Chatra that Mst. Loonji is lying dead in the 'Angan'. On this information, a case under Sections 302 and 323, I.P.C. was registered and usual investigation proceeded. During investigation, the police prepared site-plan, Panchnama and Inquest Report. Postmortem examination was held on 15-8-91 by a Medical Board consisting of three doctors. The accused was arrested on 16-8-91. He gave information Ex.P/13 for recovery of bloodstained stone with which he caused injury on the head of the deceased. In pursuance of the said information, a bloodstained stone piece was recovered. Bloodstained clothes of the deceased, bloodstained soil, controlled soil and bloodstained stone piece was duly sealed, they were sent for chemical examination to the Forensic Science Laboratory, Jaipur and on examination, these articles were found stained with humanblood. After completing investigation, challan was filed under Sections 302 and 323, I.P.C. against the accused in the Court of Munsif and Judicial Magistrate, Banswara who committed the case to the Court of Sessions Judge, Banswara for trial. Charge under Section 302, I.P.C. was framed against the accused He did not plead guilty and claimed for trial. The prosecution examined as many as 15 witnesses. The accused was examined under Section 313, Cr. P. C. and he admitted that he contacted a 'Nata' marriage with the deceased, she was living with him as his wife and she died. He denied the remaining prosecution story. He did not produce any evidence in his defence.
3. It is contended by the learned Counsel for the appellant that no case under Section 302, I.P.C. is made out against the accused-appellant and it is clear from the post-mortem report (Ex. P/19) that only three simple injuries were found on the person of the deceased Mst. Loonji. He further contended that the Board of doctors who conducted the post-mortem examination of the deceased has mentioned in the post-mortem report (Ex. P/19) that the exact cause of her death could not be made out as the dead-body was completely decomposed. He also contended that it is well proved from the prosecution evidence itself that the relations in between the accused and Mst. Loonji were cordial, and the accused-appellant had neither any intention to cause fatal injuries to his wife nor had knowledge that the injuries caused by him would result into her death. He further contended that except the informant Laxman (PW 7), all the prosecution witnesses have turned hostile and it is not mentioned in the FIR Ex. P-6 that the accused-appellant had inflicted a lathi blow on the head of the deceased Mst. Loonji. He lastly contended that according to the statement of Laxman PW 7, the accused-appellant caused two injuries on the head of the deceased, one by lathi blow and another by throwing a stone piece but on post-mortem examination, only one simple injury on the head of Mst. Loonji was found. He relied upon Smt. Sridevi v. State, 1974 Cri LJ126 (All), Public Prosecutor v. Nalam Suryanarayana Murthy, 1973 Cri LJ 1238 (Andh Pra) and Jani Gulab Shaikh v. State of Maharashtra, 1970 SCC (Cri) 532.
4. It is contended by the learned Public Prosecutor that it is proved from the evidence on record that the deceased died due to injuries caused by a lathi blow and stone thrown by the accused-appellant and the learned trial Court has rightly convicted him under Section 302, I.P.C.
5. The findings of the trial Court that the accused-appellant caused injuries to his wife Mst. Loonji (deceased) have not been challenged by the learned Counsel for the accused-appellant. This fact is well proved from the statement of Laxman PW 7. His testimony finds corroboration from other evidence on record. There is no good ground for rejecting his testimony. The only question involved in this appeal is about the offence committed by the accused. The relevant portion of the post-mortem report (Ex. P/19) runs as under : --
There is a wound over the scalp--2.5 x 0.5 x 1 Cms. deep on right parietal region towards occipital region, 14 cms above and posterior to the right ear.
-- A wound 2.5 x 0.5 x 0.5 cms. on right breast.
-- A wound on right lumbar region 4 x 3 muscle deep.
-- On opening the scalp -- no fracture of
skull bone present and no collection of blood is made out.
-- On opening the skull -- membrane intact, brain-matter-liquified.
OPINION: As dead-body is completely decomposed-time of death is 2 days, exact cause of death cannot be made out from above report.
It is evident from the above portion of the post-mortem report, prepared by a Board consisting of three doctors namely Dr. B.R. Vyas, Dr. L.C. Maida and Dr. K.C. Tailor, that the deceased did not receive any grievous injury and all the three injuries received by her were simple in nature. It is also stated in it that the Board has not been able to ascertain the exact cause of her death.
6. Laxman PW 7 has deposed that the accused Shyamji came in drunken state at about 12 in the night, he asked his wife Mst. Loonji (deceased) for giving him food, she said that he left the house after taking his meals, there is no food in the house, thereupon, he inflicted a lathi blow on her head, she fell down, immediately she got up and started running and then the accused threw stone on her. It is not mentioned in the FIR (Ex. P/6) that a lathi blow was inflicted by the accused on his wife Mst. Loonji. The post-mortem report (Ex. P/19) shows that only one simple injury was found on her head. If a lathi blow had been given on her head, injuries would have been found on her head. The said version of Laxman PW 7 that lathi blow was also given on her head is not correct. In his cross-examination, Dr. K.G. Tailor PW 15 stated that the said injury could have been received on the head due to fall while running. Laxman PW 7 has not disclosed in his statement that the accused had inflicted a lathi blow on her head and stone was thrown toward her with an intention to cause her death. Under these facts and circumstances, it cannot be said that the offence under Section 302, IPC is proved against the accused. As already observed above, no grievous injury was found on the dead-body of Mst. Loonji. As such offence under Section 325, IPC is also not proved. The reported cases relied upon by the learned Counsel for the appellant fully support him.
7. Accordingly, the appeal is partly allowed. The conviction and sentence of the accused-appellant under Section 302, I.P.C. are set aside. The accused-appellant is convicted under Section 323, I.P.C. and sentenced to undergo rigorous imprisonment for one year. He is in judicial custody since 16-8-87. As such he will be released forthwith, if not required in any other case.