Amit Kochar And Anr. vs State Of Delhi
2007 Latest Caselaw 214 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 0729

1. The present criminal Revision Petition has been preferred against the order on charge under Section 302/34 IPC passed by the learned Additional Sessions Judge on dated 15.07.2006, against the accused petitioner.

2. The brief facts necessary to decide this petition are that according to the prosecution, the first Petitioner, Amit Kochar had been carrying on business of ladies garments at No. 630, Mukherjee Nagar and his cousin Rajeev Kochar @ Monty, the second Petitioner runs a chicken shop from a near by place. The Co-accused Gyanender Pal and Devender alias Ram are employees of the first Petitioner. The deceased Raj Kumar was a tailor by profession and used to take orders from the Petitioner and return stitched dresses for which he was paid.

3. As a routine the deceased had taken an order from the first Petitioner; but apparently delayed returning it, which agitated the employer. The first Petitioner called his cousin and both of them along with the two co-accused beat up the deceased, and also kicked him. The deceased fell unconscious and, he had to be hospitalized. His Medico Legal Certificate was prepared and he was discharged the same night. In the MLC the deceased wrote that he did not want any police action and the next day the parties settled their differences. A written compromise deed was also given to the police.

4. The deceased was again hospitalized and it was investigated that the mesentery of his small intestine had torn; he was operated upon on 13.6.2005 and was in the hospital till 22.6.2005 on which date he expired. The statement of the deceased was recorded by the police on 15.6.2005 and a case under Section 342/325/34 IPC was registered. On 17.6.2005 the offence Under Section 325 IPC was converted to Section 308 IPC and thereafter on 22.6.2005 the offence was converted to Under Section 302 IPC on the same facts.

Page 0730

5. It is alleged, in the Petition that on 23.6.2005 at 11.15 AM an autopsy was conducted in HR Hospital and the findings were that death was caused due to Septicemia resulting from the surgical wounds and intra abdominal surgical intervention done to repair and treat the intestinal and mesenteric trauma caused by blunt force impact. All the injuries were ante mortem It is also alleged that after completion of the investigation charge sheet was filed and on consideration of the material the Petitioners were charged by the trial court under Section 302/34 IPC.

6. The extracts of the impugned order dated 15.7.2006 are as follows:

In view of the explanation 2 attached to Section 299 of IPC it may not be possible to contend that death of the deceased could have been averted by resorting to proper remedies and skillful treatment or that the death is not the direct result of the act of the accused or that the act of the accused has no nexus with the death of the deceased RajKumar Culpable Homicide is murder except in cases excepted by Section 300 of IPC. Allegations against the applicants /accused are extremely serious. The Hon'ble High Court in its order dated 14.12.2005 has also observed that the case of the owner of the shop Amit kochar and Rajiv @ Monti ie Applicants/accused would be on a footing different from the other two accused who have been granted bail in his case by the Hon'ble High Court .The application for bail moved by the applicant/accused Amit Kochar and Rajiv @ Monti is not liable to be accepted and the same is therefore, dismissed. On consideration of the entire material on record, I find that there is a prima facie case for framing of charge against all the four accused under Section 302/34 IPC Let charge accordingly be framed against them.

7. The trial court charged all the four accused under Section 302/34 IPC. The Petitioners allege that the deceased died due to septicemia, which resulted from an infection of the surgical wounds. The surgery was done to repair and treat the intestinal and mesenteric trauma, caused by the blunt force impact. The deceased had mentioned in his statement that he was assaulted by the Petitioners and had become unconscious; he regained his senses in the hospital. He was discharged on the same day. However, he returned back to the hospital when it was discovered that his intestine had ruptured, which was operated upon. The wound resulting from the operation did not heal; it in turn caused Septicemia, there was a litre of pus formed in his stomach.

8. It is not disputed that the deceased was injured; he was hospitalized. Yet, his injuries, which were internal, did not evidently heal; he had to report to the hospital again, when he was operated upon for the rupture in the intestine. The counsel contended that the injuries allegedly caused by the accused, were too remote to cause death, and that it occurred due to surgical wounds. He placed reliance upon the second explanation to Section 299 to say that the case was at best, one of culpable homicide, not amounting to murder, and not murder. It was contended that the injuries were not indicative of intention to kill. The counsel relied on the FIR and the MLC, and contended that the cause of death clearly was not the injuries sustained due to the alleged beatings given by the petitioners.

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9. In Niranjan Singh Punjabi v. Jitendra Bijjaya , the Supreme Court held that as per Sections 227 and 228, while framing charges, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court can, for the limited purpose, sift the evidence as it cannot be expected at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. Earlier, in State of Bihar v. Ramesh Singh , it was held:

Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defense of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.

Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.

If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defense evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.

10. The arguments advanced by the counsel for petitioners are attractive; the medical report relied on at the stage of framing charges undoubtedly indicates the cause of death as surgical wounds due to operation on the deceased. However, the report is inconclusive as to the nature of wounds, Page 0732 which led to rupture, requiring surgery. The FIR records that four persons beat the late Raj Kumar severely; he fell down unconscious. He had to be admitted to a hospital, where he regained his senses. Some sort of "compromise" allegedly took place the next day. Yet, Raj Kumar developed complications, which necessitated surgery; he could not unfortunately come out of it.

11. The line between the offence of murder, punishable under Section 302 and culpable homicide, punishable under Section 304 is often thin. The question in most such cases is whether, having regard to the nature of injuries, and the manner of its infliction, there was an intention to inflict it, and whether it was likely to cause death. (Ref Virsa Singh v. State of Punjab ; Jagrup Singh v. State of Haryana Kulwant Rai v. State of Punjab : Randhir Singh v. State of Punjab (1981) 4 SCC 494 : 1982 Cri LJ 195, (4) Gurmail Singh and Ors. v. State of Punjab Singh v. State of Punjab , and Hem Raj v. State 1990 (96) Cr LJ 2665 SC).

12. I am of the opinion that it would be premature to pre-judge whether the nature of injuries inflicted were such as would have caused death, or that the sole reason for death were the surgical wounds. Reliance only on the medical report, without examination of the kind of assault that took place, as per the testimony of witnesses of the prosecution, would necessarily be an incomplete exercise. The fact remains that the late Raj Kumar was beaten up badly by four accused; he fell down unconcious, and had to be hospitalized. Of course, if during the trial, it is evident that the lesser of the two offences is made out, the accused petitioner would be entitled to the benefit, subject to the provisions of Section 222, Criminal Procedure Code, and after grant of opportunity, as spelt out in the judgment of the three judge Bench (constituted for the purpose of deciding whether an accused in such cases has to be given separate opportunity to defend the charge in the lesser offence) in Shamnsaheb M. Multtani, Appellant v. State of Karnataka Respondent .

13. The petition is dismissed, subject to the above observations. In the circumstances, the parties shall bear their own costs.