Mahender Kumar S/O Shri Veer Sain ... vs State
2002 Latest Caselaw 1291 Del

JUDGMENT

V.S. Aggarwal, J.

1. This is an appeal filed by Mahinder Kumar and another, hereinafter described as the appellants, directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Delhi dated 7th April, 2001 and 11th April, 2001 . The learned trial court held the appellants guilty of the offences punishable under Section 304 Part II and Section 324 Indian Penal Code. For the offence punishable under Section 304 Part II, appellant Mohinder was sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 5000/-. In default of payment of fine he was to undergo further rigorous imprisonment for two years. For the offence punishable under Section 324 Indian Penal Code he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/-. In default he was to undergo further rigorous imprisonment for three months. Both the sentences were to run concurrently. So far as Pratap, appellant, is concerned he was given the benefit of Probation of Offenders Act. Instead of being sentenced he was directed to be released on bail on furnishing a personal bond to a sum of Rs. 10,000/- with one surety of the like amount and to appear and receive sentence whenever called upon during the period of three years, if required. In the meantime, he was to keep peace and be of good behavior. He was also to pay a compensation of Rs. 15,000/- to the wife of the deceased.

2. The facts of the prosecution case are that Bal Kishan Suri is the deceased. Before his death he lived with his wife Urmila and son Sanjeev Kumar. They lived in house No. BB-79B, Shalimar Bagh, New Delhi. On 23rd October, 1987 Jagdish Chander, brother in law of Bal Kishan with his son Aashish had come to their house. They were bursting crackers in front of the house. Sanjeev Kumar had kept a 'hawai' in a bottle. The bottle had tilted and the cracker went along with the earth. At that time Mahinder and his brother Pratap Singh were coming, Mahinder threatened Sanjeev and Aashish and abused them. There was an altercation and Bal Kishan had also come to the spot. When Bal Kishan tried to save Sanjeev and Ashish, Mahinder, appellant had given a fist blow as a result of which Bal Kishan had fallen and his forehead was hurt. Many persons intervened and both the appellants left the spot.

3. Thereafter Sanjiv and his cousin started playing on the road. After about 10 minutes both the appellants came there. They tried to pick up quarrel with Sanjiv and Ashish and at that time also other residents intervened. Appellants want back. After about 20 minutes both the appellants came with four or five other persons when Sanjiv and Ashish were taking to each other. Both appellants started quarrelling with them. On hearing the noise Bal Kishan came out.

Mahinder pushed Bal Kishan and gave him a knife blow which landed on the left side of the waist of Bal Kishan. Sanjiv Kumar was also given a knife blow which hit on the left arm pit, left hand and left thigh. Ashish was also given a knife blow on the left cheek of the said person below the eye.

4. One Pushpa Sahni gave the information to police control room that quarrel was going on at the said place. The information was recorded in daily diary No. 33B, copy of which was given to Sub Inspector Ram Kishore who reached the spot where Bal Kishan and Ashish were lying in injured condition.

5. Both the injured were sent to the Hindu Rao Hospital after injury sheets ware prepared. Sub Inspector Ram Kishore did not find any eye witness.

He went back to the hospital and collected the medical certificates of Bal Kishan and Sanjeev. Sanjeev was declared fit to make the statement. His statement was recorded and a case was registered with respect to the offence punishable under Section 324 Indian Penal Code. Site plan was prepared. The appellants were arrested. Mahinder Kumar made a disclosure statement and in pursuance of that he led the police party to the main road and got recovered a knife from the stagnant water. On 20th November, 1987 information was received that Bal Kishan had died. Needless to state that he had left Hindu Rao Hospital and was admitted to Ganga Ram Hospital. Postmortem was conducted on the person of the deceased. After postmortem certain articles were seized and sent to the CFSL. Report under Section 173 Code of Criminal Procedure was submitted for the offence now punishable under Section 304/34 Indian Penal Code.

6. The learned trial court had framed charges against the appellants for offences punishable under Section 304/324/34 Indian Penal Code. The appellants had pleaded not guilty and claimed a trial. The prosecution had examined 19 witnesses. After the prosecution closed the evidence, the statements of the appellants had been recorded and thereafter the learned trial court held that prosecution had successfully proved its case. It was concluded further that in the facts of the case as against the appellant offence under Section 304 Part II of the Indian Penal Code with respect to the death of Bal Kishan was drawn. In paragraph 60 of the judgment the learned trial court held:-

60. In the facts and circumstances of the case discussed above now it has to be seen whether accused persons can be held guilty for offence punishable under Section 304 part I or part II.

There is evidence on record that the fight initially started over a trivial matter. Then accused persons left the spot, cam again and picked up quarrel with the injureds. The matter was settled and accused persons again left and came again. At that time accused Mahender was armed with the house hold knife. The length of the blade of the knife was 3" only, whereas the handle was of the length of 4". Then accused Mahender Kumar attacked the deceased with the knife and caused injury below costal margin. The injury was of the size of 2" x 1/6". In these circumstances can it be said that accused persons had the necessary intention to kill Bal Kishan so as to convict them under Section 304 Part I. In my opinion the answer to this question is in the negative. The maximum which can be held is that the accused persons had the knowledge that death was a likely result, but intention to cause death was missing. At the time of giving blows to Bal Kishan accused persons had not expressed any intention to kill Bal Kishan. Even the main quarrel did not take place with Bal Kishan. Therefore, in my opinion in all probabilities accused persons had no intention to kill Bal Kishan but certainly they had the knowledge that their act was likely to cause death. Therefore, I am of the opinion that accused persons can be convicted for offence punishable under Section 304 Part II I.P.C. only apart from Section 324 I.P.C. for causing simple hurt to Ashish and Sanjeev with shart edged weapon.

After the same the order of sentence referred to above already followed.

7. The only submission made by the learned counsel for the appellant was that in the facts of the present case offence under Section 304 Part II could not be drawn because there was no intention to cause the death of Bal Kishan on the part of the appellants nor such a knowledge can be so attributed to the appellants.

8. To appreciate the said controversy reference can well be made to the material evidence on the record particularly of the eye witnesses and thereafter one can look into the nature of the evidence forthcoming from the statements of the concerned doctors. Sanjeev Kurnar appeared as PW-14. He is the son of the deceased. He stated that on 23rd October, 1987 he along with his cousin brother Ashish were bursting crackers. He had put a rocket (hawai ) in the bottle and lit it. The bottle had tilted and it went towards the side from where appellants were coming. They abused Sanjeev and his cousin brother. Thereafter both the appellants started quarrelling with them.

His deceased father had come and intervened.

Mahinder, appellant had pushed his father who was hurt on his forehead. Other persons from the neighborhood came and separated them. They had continued to burst crackers. Both the appellants again came there but many persons separated and further quarrel could not take place. After about 10/11 minutes both the appellants came. They were accompanied by 3/4 persons. Their father had come to save them.

Mahinder gave a knife blow to his father on his abdomen while Pratap caught hold of me and gave knife blow on the left side of his chest, left arm and left thigh. Ashish was also injured on the left side of his cheek. In identical terms were the statement made by Ashish, PW-15.

9. Dr. P K Suneja, PW-16 exmined Sanjeev Suri. He deposed that patient was conscious. There was an incised wound of 1" x 1" (depth not known) over the right middle of thigh. There was a incised wound of 1/2" x 1/4" (depth not known) at the left side of upper chest at the level of interior axillary line and 3" below left shoulder joint. There was another incised wound in 1-1/2" x 1-1/4" (depth not known) over left forearm posteriorly below left elbow joint.

He could not state without the record if the injury was only skin deep. On the person of the both Sanjeev as well as the deceased. Dr. Raj Kumar, PW-17 had conducted the post mortem on the person of the deceased. He found the following injuries:-

"1. One operational laparotomy mid line stitched incisionen fresh scars length 9" extending from xiphisternun to 2-1/2" below on umbilicus. Wound margins shows heeling at places in upper part and few stitches are still intact on the lower part of the incision.

2. Another heeled stich operational scar running transversely from the umbilicus to the left side at right angle to injury No. 1 running up to an area just above left posterior superior iliac spine.

3. One ? operational discharged wound over right lumber area measuring 1/2" x 1/3".

4. One infacted incised-looking wound obligly placed with its posterior end upwards on the left rinal angle just below left postal margin. Upper part of the wound is partly heeled. Yellowish puss discharge is present from it. Size of the wound was 5 C.Ms. x 1/4 C.Ms. x depth ?

10. In the opinion of the said doctor injury number 4 was antemortem and sufficient to cause the death in the ordinary course of nature. During cross-examination he admitted that there was a querry in application for postmortem, if the doctor treating the patient was negligent or not. The witness answered that it was not possible to give a reply to the querry. He further admitted that septicimea can be caused by infection of the wound. He admitted that it is possible that septicimea might have developed because would was not properly cleaned. He denied that death was caused by septicimea and not by the injury.

11. It is this material evidence which necessarily has to be considered to formulate a view as to whether in the facts of the case offence under Section 304 Part II Indian Penal Code could be drawn or not. The attention of the court was drawn towards the decision of the Apex Court in the case of Dev Raj v. State of Punjab . In the said case also there was exchange of abuses followed by the actual incident. The deceased was injured. He died one and a half month after the incident. In between he was operated. He died as a result of haemorrhage. The Supreme Court held that the said person must be held guilty of the offence punishable under Section 326 Indian Penal Code.

 

12.   The   position in the   present case is   no
different.   Bal Kishan    died  after  28    days    of the
incident.   Doctor who  conducted  the    postmortem    was
feeling    shy    of stating  if  he  died    because bf the
negligence of the    doctor.   This    fact has to    be
considered    because firstly Bal   Kishan had   been
admitted in  Hindu  Rao  Hospital   and  thereafter   he was
shifted to Ganga Ram Hospital. It is not   in
controversy that death had  been  caused    because of
certain infections. In  addition  to  that  the  size of
the  injury  in  the  MLC  and  size  of  injury   No. 4  in  the
postmortem report did not reconcile.   As already
referred to above  depth  of  the  injury  had not been
given  by  the  doctor  who  had  examined  the  patient. All
these factors clearly  show  that  the  death  could not
have been  direct  result  of  the  said   injury. In that
view    of the  matter   it  could  not  be  stated that the
accused had  the  intention  or  could  be  attributed  only
to cause  the  death  of  Bal  Kishan. At  best therefore
the appellants could only be  held guilty of the
offences punishable  under  Section  325/34  Indian  Penal
Code.
 

13.   The same conclusion  would  also  be arrived    at
from the material evidence    on the record. The
evidence of the  same  has  already  been  given and it
transpired   that   earlier   there  were   two  quarrels  but  on
the    third  occasion  both  the  appellants  had  come  armed
with  knives. The one  knife  recovered  only  had a  blade
of 3".    It  is  true  that  part  of  the  body where    the
injury  is  caused  is  material. But  depth  of  the  injury
as    already referred  to  above  is  not  given. In that
case it  cannot  be  termed  that  injuries  were  of  such  a
nature    which    could  be  described  to  be  sufficient    to
cause  death  in  the  ordinary  course  of  its  nature  or   it
could    be  stated  that   knowledge  could  be  attributed  to
the    appellants  that  such  an  injury  could  be  the  cause
of death.   As    mentioned above  the nature   of    the
injuries have    been  given  but  the  depth  of the said
injury is   not  given. Reference  with  advantage  can  be

made to the decision in the case of Dina alias Dinabandhu Banchhor v. State 1996 Criminal Law Journal 2398. In paragraph 8 while discussing the somewhat a similar situation, it was held:- "8. Eight kinds of hurt are designated as 'grievous', as set out in Section 320 I.P.C.

Clause 8 thereof, speaks of two things (4) any hurt which endangers life, and (2) any hurt which causes the sufferer to be during the space of twenty days; (a) in severe bodily pain, or (b) unable to follow his ordinary pursuits. The line between culpable homicide not amounting to murder and grievous hurt is a very thin line. In the former the injuries must be such as are likely to cause death, in the latter, the Injuries must be such as endanger life. An injury can be said to endanger life if it is in itself such that it may put the life of the injured in danger. Where there is no intention to cause death or no knowledge that death is likely to be caused from the harm inflicted, and death is caused, the accused would be guilty of grievous hurt if the injury was of a serious nature, but not of culpable homicide."

14 . Similarly in the case of Md. Isak Md. and Ors. v. State of Maharashtra 1979 Criminal Law Journal1092 when there was no intention to cause death it was held that it was only intention to cause grievous hurt and conviction was converted from Section 302 Indian Penal Code to Section 325/34 Indian Penal Code.

Similar view was expressed in the case of Parusuraman alias Velladurai and Ors. v. State of Tamil Nadu 1992 CRI. L.J. 3939. Here in the facts of the case as disclosed above it is clear that there was no intention to cause death or such a knowledge could be attributed to the appellants. Intention was to cause grievous hurt.

15. Keeping in view the aforesaid therefore it is patent that in the facts of the present case it cannot be termed that the appellant could be held guilty of the offence punishable under Section 304 Part II instead they are held guilty of the offence punishable under Section 325/34 and 324/34 Indian Penal Code.

16. As regards sentence so far as Partap is concerned, it does not call for any modification because he has already been given the benefit of Probation of Offenders Act. So far as Mahinder is concerned, it appears that keeping in view that incident has taken place more than 14/15 years, the interest of justice shall be fully met if similar sentence is awarded to him as in the case of Pratap. Accordingly instead of sentencing him for both the offences he is directed to be released on bail on his furnishing a personal bond to a sum of Rs. 10,000/-with one surety of like amount to the satisfaction of the trial court. It is directed that he would appear and receive sentence during the above said period if required. He is directed to keep peace arid good behavior. He is also directed to pay compensation of Rs.15,000/- to the widow of Bal Kishan. The fine of Rs. 5,000/- shall be adjusted "in the compensation that is awarded.