Pale Ram vs Nct Of Delhi
2002 Latest Caselaw 1930 Del

JUDGMENT

J.D. Kapoor, J.

1. The aforesaid three appeals shall stand disposed of by this common judgment as the appellants have been convicted for the offences punishable under Sections 147/148/304/324/323 read with Section 149 IPC by judgment dated 23.10.1999 and sentenced to undergo RI for a period of 10 years each for the main offence i.e. offence under Section 304 IPC with fine of Rs. 5000/- each in default to undergo three years RI each vide order dated 27.10.1999.

2. The appellants and the victims are close relatives. A trivial matter culminated into the death of the deceased Som Dutt. The house of the parties are adjacent to each other. Minor son of Sakuntala Devi crossed over to the roof of the house of appellant-Baleshwar while flying kite and in the process some dung-cakes were destroyed. This sparked off exchange of hot words and altercation between the parties. The matter was almost settled on that day itself. However, on the next day at about 8.15 P.M. the appellants along with co-accused persons duly armed with weapons and lathis attacked the injured and the deceased. Appellant Pale Ram was armed with knife while Suresh was armed with spear and others were armed with lathis and dandas. As many as three injuries were inflicted on the neck of deceased Som Dutt, one of which was given by appellant Pale Ram. Appellant Suresh also inflicted one injury with spear on the waist of Smt. Mam Kaur.

3. Deceased Som Dutt was taken to the hospital in injured condition. The Casualty Medical Officer found one incised wound on the left side of the neck 6 cm in length lying horizontally with profuse bleeding and it was three/four inches deep. Second incised wound was found on the left side of the face which too was bleeding and was 5 cm long and half inch deep. The third incised wound was found on the left forearm which was about 6 cm long and 1/4-1/3" deep. However, the Casual Medical Officer opined the nature of injuries as dangerous. The injured remained in hospital for about nine days almost unattended as there was strike of the doctors. Thereafter, he succumbed to injuries.

4. The post-mortem (Exhibit PW 7/A) conducted by PW-7 S.C. Mishra shows one incised wound measuring 5 cm x 1 cm into muscle deep on back and outer aspect of left forearm in the middle. Wound was spindle shaped with clean cut and well defined margin. Another stitched wound about 6 cm in length of left later aspect of leg about 8 cm was found below the left ear. He opined the cause of death due to shock and haemorrhage. All other victims received simple injuries.

5. Though Mr. K.B. Andley and Ms. Neelam Grover, learned counsel for the appellants initially attempted to project the testimony of the witnesses suffering from contradictions and falsehood but when Mr. Sunil K. Kapoor, learned APP took this court to the testimony of material witnesses, they left their attempt half way and only confined their arguments as to the nature of offences particularly the one committed by the appellant Pale Ram.

6. Ms. Grover contended with vehemence that even if one takes the medico legal certificate of the Casualty Medical Officer duly proved it makes out a case at the most under Section 326 IPC i.e. having caused a grievous hurt.

7. Admittedly the prosecution has failed to produce Casualty Medical Officer to affirm the nature of injuries opined by him as dangerous. In this eventuality, opinion of the Medical Officer who conducted post-mortem report assumes significance. According to the said doctor blood vessel in the neck of the left side were found to be cut and death was due to shock and haemorrhage as a result of ante-mortem injuries. The trial court acting upon the opinion of PW-7 returned the finding that the prosecution was unsuccessful in proving the charge of murder on the basis of medical report and the death of the deceased after 9 days and that too in unattended condition makes out an offence of culpable homicide not amounting to murder.

8. I do not perceive any reason to differ with the view taken by the learned trial court with regard to the offence punishable under Section 304 IPC as the opinion of the doctor who conducted post-mortem primarily shows that the appellant Pale Ram caused such bodily injury which was likely to cause death. It was immaterial whether deceased was attended by the doctors or not. What is material for the purpose for ascertaining the nature of offence is the end result. Rather nature of injury has not to be ascertained on the premise that had the deceased been attended and given proper treatment, he could have been saved and therefore injury resulting in death in such circumstances should be deemed as one which is not likely to cause death.

9. Though it is the bounden duty of the prosecution to prove the nature of injuries as opined by the doctor who had the first opportunity to examine the injured or deceased but where the presence of the doctor is difficult to procure either doctor having left the hospital or his present place of posting or work not being known then it is obligatory upon the prosecution as well as trial court to ascertain the nature of injuries by summoning another doctor who is expert in the field through the Medical Superintendent of the hospital or institution by invoking provisions of Section 45 of the Indian Evidence Act. According to this provision whenever the Court has to form an opinion upon a point of foreign law or of science or art, or as identity of handwriting (or finger impressions) the opinions upon that point of persons specially skilled in such foreign law, science or art, (or in questions as to identify of handwriting) (or finger impressions) are relevant facts. Such persons are called experts. To term an injury which has been opined as 'dangerous' or 'grievous' as simple injury merely because the Doctor who opined it could not be examined either due to non-availability would be travesty of justice.

10. If the prosecution fails to produce another doctor by way of expert opinion, the Court should on its own elicit the expert opinion so as to deliver justice which should not only be done but should seem to be done also. In such eventualities, the prosecution or the Court should invariably resort to provisions of Section 45 of the Indian Evidence Act.

11. The foregoing reasons are sufficient to maintain conviction of Pale Ram alone under Section 304 IPC and for the offences under Sections 147/148/324/323 read with Section 149 IPC for the remaining appellants as there is no evidence nor was there any common object to cause death of the deceased Som Dutt. The facts giving rise to the incident are the determined criteria for involving or holding co-accused for the offence under Section 304 IPC which was caused by the person who inflicted injury by sharp object. All others were having dandas and lathis. Had there been intention to cause death of injured person or deceased they could have armed themselves with more deadly weapons and cause such injury which was sufficient in ordinary course of nature to cause death. Thus, the sting of offence under Sections 147/148 or for that purpose offence under Section 149/34 IPC vis-a-vis offence under Section 304 IPC is wanting.

12. As regards sentence of appellant Pale Ram, it appears to be on little higher side. It appears that appellants only wanted to gave vent to their anger or avenge their insult and teach the complainant and the injured persons a lesson though they were all close relatives as instead of chiding their child they had picked up quarrel with them on the previous day. At the same time, the appellants over-reacted over the incident which was trivial in nature. The appellant Pale Ram has remained in judicial custody for about four years, six months and 21 days. In my view this sentence is sufficient for the offence he is convicted for and any further sentence would not only be disproportionate but also cause furtherance of enmity between them. The substantive sentence is reduced to the period already undergone in judicial custody.

13. As regards other appellants they remained in judicial custody for about 20 months or so. Their conviction is maintained only for the offences under Sections 147/304/324/324/323 read with Section 149 IPC. The sentences already undergone will be treated as substantive sentence. The sentence of fine vis-a-vis all the appellants will remain intact. It is stated that fine has been deposited.

Appeals are dismissed with the above modification in sentences.

Copy of this judgment be circulated to all the Judicial Officers.