The prosecution's case, in short, is that on 27.9.1998 at about 9.00 a.m a quarrel took place between the deceased and the appellants.The appellants assaulted the deceased by fists.The deceased tried to move for some steps and thereafter, he fell 2 Criminal Appeal No.451 of 1999 down.The deceased was taken to the Police Station and thereafter to the hospital but, before he could reach the hospital he expired.A panchayatnama lash Ex.P/1 was prepared and thereafter, the dead body of the deceased was sent for post mortem.(Delivered on the 17th day of October, 2012) The appellants have preferred this appeal against the judgment dated 12.2.1999 passed by the IInd Additional Sessions Judge, East Nimar Khandwa in ST.No.203/1998 whereby the appellants were convicted for offence punishable under Section 325 of I.P.C and sentenced for three years rigorous imprisonment with fine of Rs.250/ and in default of payment of fine six months rigorous imprisonment was also directed.Dr. A N. Bajpai (PW5) did the post mortem upon the body of the deceased and gave his report Ex.He found no external injury visible on the body of the deceased but, on opening he found that the spleen of the deceased was ruptured from its base and huge blood was present in the concerned cavity.The deceased died due to rupture of the spleen.After due investigation a charge sheet was filed before the Chief Judicial Magistrate, Khandwa who committed the case to the Sessions Court and ultimately it was transferred to the IInd Additional Sessions Judge, Khandwa.The appellants abjured their guilt.They took a specific plea that the deceased was the husband of their sister who was suffering from malaria since last 10-15 days.He was in habit to drink and then to assault his wife and therefore, he could have sustained that injury due to fall.However, no defence evidence was given by the appellants.The learned Additional Sessions Judge after considering the evidence adduced by the prosecution acquitted the accused Jamila Bi from all the charges whereas the appellants were acquitted from the charge of offence punishable under Section 302 of I.P.C but, convicted for offence punishable under Section 3 Criminal Appeal No.451 of 1999 325 of I.P.C and sentenced as mentioned above.I have heard the learned counsel for the parties.Learned counsel for the appellants has submitted that it is very much clear that from the evidence that the appellants did not use any weapon in assaulting their brother-in-law.9. Akram (PW1) and Imran (PW2) were examined as eye witnesses.They have stated that the appellants assaulted the deceased by fists.It is clear that no M.L.C was done by any doctor and after the death of the deceased the post mortem could be done by Dr. A. N. Bajpai (PW5).However, Dr. Bajpai has stated that no external injury was visible to the deceased.The witnesses were relatives of the deceased as well as the appellants.The appellants were also the relative of the deceased and therefore, it cannot be said that the witnesses have submitted falsely against the appellants.It was not possible for the witnesses to save the actual culprits and to tell against the appellants whereas the appellants were the relatives of those witnesses.It is true that no FIR could be lodged by any of the witnesses and only a merg intimation was recorded by the Police and investigation was initiated.Therefore, registration of the case was done by FIR Ex.P/9 which was registered after due inquest and therefore, the document Ex.P/9 cannot be considered as an FIR.But the eye witnesses did not prove that such blow was given by the appellants.Under such circumstances, if a fist was given in the abdomen then spleen could be ruptured if it was enlarged.The learned Sessions Judge found that the appellants were not intended to kill the deceased.Neither they assaulted in such a manner so that the deceased could die in natural course of 6 Criminal Appeal No.451 of 1999 his life and therefore, since due to their assault a fatal injury was caused which was covered as a grievous injury under section 320(8) of the I.P.C and therefore, the appellants were convicted for offence punishable under Section 325 of I.P.C. However, the appellants did not know that the spleen of the deceased was enlarged and therefore, it is not established that they intended to cause a grave injury to the victim.Secondly for offence punishable under section 325 of I.P.C it is to be established that who was the culprit who had an intention to cause a grievous injury to the victim and he should be convicted for offence punishable under Section 325 of I.P.C and thereafter, common intention of another accused is to be considered.In the present case it is no where established by the eye witnesses that out of the appellants who assaulted the victim on his spleen.No intention against any of the appellants was established that they aimed to assault the victim on his spleen Under such circumstances, their intention was not present for causing grievous injury to the deceased and therefore, their common intention for offence punishable under Section 325 of I.P.C cannot be presumed.If the common intention of each of the appellants was not present for causing a grave injury to the deceased then none of the appellants can be convicted for offence punishable under Section 325 of I.P.C with the help of Section 34 of I.P.C. It is not proved against anyone of the appellants that they assaulted the deceased on his spleen and it is also not 7 Criminal Appeal No.451 of 1999 proved that they had any common intention to cause grievous injury to the deceased because the deceased was the brother-in- law of the appellants.It is unfortunate that due to that assault the spleen of the deceased was ruptured and he died.The appellants remained in the custody for more than three months and therefore looking to their overt act and also the fact that they have faced the trial and appeal for last 14 years, it is a fit case in which they should not be sent to the jail again.However, some fine may be imposed upon them.Criminal Appeal No.451 of 1999On the basis of the aforesaid discussion the appeal filed by the appellants appears to be acceptable partly.Consequently, the appeal filed by the appellants is hereby partly allowed.The conviction as well as the sentence directed by the trial Court for offence punishable under Section 325 of I.P.C is hereby set aside.They are acquitted from that offence.However, they are convicted for offence punishable under Section 323 of I.P.C and sentenced with the rigorous imprisonment for the period which they have already under gone in the custody.Also fine of Rs.1000/- is imposed upon each of the appellants for the offence punishable under Section 323 of I.P.C The appellants are directed to deposit the remaining fine amount before the trial Court within two months from today.In default of payment of fine each oft them shall undergo for three months rigorous imprisonment.The appellants are on bail.Copy of the judgment be sent to the trial Court along with its record for information and compliance.(N.K.GUPTA) JUDGE 17.10.2012 bina 9 Criminal Appeal No.451 of 1999

Cited provisions: Section 325 in The Indian Penal Code; Section 323 in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 34 in The Indian Penal Code; Section 320 in The Indian Penal Code