Jai Prakash vs State
2010 Latest Caselaw 37 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Decision: 7th January, 2010

+                    CRL.APPEAL NO.302/2002

       JAI PRAKASH                             ......Appellant
             Through:      Mr.Rajesh Mahajan, Advocate

                                Versus

       STATE                                   ......Respondent

Through: Mr.M.N.Dudeja, Advocate

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

PRADEEP NANDRAJOG, J.(Oral)

1. At around 10:00 PM on 2.4.2000 Smt.Nirmala, the

wife of the appellant was stabbed outside the house of Smt.Ram

Pyari PW-3 and on said information being received by the police

control room, was removed to the hospital in a PCR van by HC

Ramesh Chand PW-19 who claims that on the way Ram Pyari

told him that she was stabbed by her husband. SI Ran Singh

PW-16 who had proceeded for investigation when said

information was received at the local police station recorded the

statement Ex.PW-16/A of Nirmala as per which she was stabbed

by the appellant i.e. her husband. The statement Ex.PW-16/A

has resulted in the FIR being registered.

2. Dr.Shobhita Batra PW-11 had treated Nirmala at DDU

Hospital casualty, where she was brought by HC Ramesh Chand

and he prepared her MLC Ex.PW-11/A recording that the

deceased had multiple injuries.

3. Nirmala died at around 9:00 PM on 15.4.2000 and

the FIR which was registered for the offence punishable under

Section 307 IPC was converted to one under Section 302 IPC.

4. The dead body of Nirmala was sent to the mortuary

where Dr.M.M.Narnaware conducted the post-mortem on

17.4.2000 and prepared the report Ex.PW-4/A noting the injuries

on the body of the deceased. He opined that death was due to

peritonitis following the injuries. The injuries noted in the post-

mortem report Ex.PW-4/A are as under:-

"1. Old stitched wound on left thigh - 2 stitches - 12.5 cms below iliac crest.

2. Old stitched wounds 10 cm lateral to injury No.3- 1 stitch.

3. Old stitched wound on upper lateral aspect of left leg. 7 cms below knee - 2 stitches.

4. Old stitched wound left lower back - 18 cms below post axillary fold - 1 stitch

5. Old stitched wound on web between left thumb and index finger - 1 stitch.

6. Scar mark of recently healed injury 3 cut medial to injury No.4 (pink coloured).

7. Old stitched wound left shoulder - 2 stitches.

8. Old stitched wound on left side of neck 5.5. cm above clavicle - 2 stitches.

9. Multiple recently healed scar marks on left side of neck left cheek left side of nose (pink coloured)."

5. At the trial Smt.Ram Pyari PW-3 outside whose house

Nirmala was stabbed has deposed that Nirmala told her that her

husband had stabbed her. HC Ramesh Chand PW-19 has

deposed that when he removed Nirmala to the hospital, on the

way she told him that her husband had stabbed him. SI Ran

Singh PW-16 has deposed that he recorded the statement

Ex.PW-16/A of Nirmala. Dr.M.M.Narnaware proved the post-

mortem report Ex.PW-4/A and on being cross-examined stated

that peritonitis means inflammation of the peritoneal cavity and

that if proper medication was given or correct surgical

intervention was given, the deceased could have been saved.

He further stated during cross-examination that since the

injuries had healed he could give no opinion whether they were

sufficient in the ordinary course of nature to cause death.

Dr.Shobhita Batra PW-11 proved the MLC Ex.PW-11/A.

6. Sh.Rajesh Mahajan, learned counsel for the appellant

very fairly concedes that the testimony of Smt.Ram Pyari PW-3

and the testimony of HC Ramesh Chand PW-19 are without any

blemish and thus it stands established that the deceased made

the dying declarations firstly to Ram Pyari and then to Ramesh

Chand. Counsel further concedes that the testimony of SI Ran

Singh establishes that the statement Ex.PW-16/A is the third

dying declaration made by the deceased to SI Ran Singh and

thus it stands established that the appellant who is the husband

of Nirmala had assaulted her.

7. The only submission urged by learned counsel is that

the injuries caused by the appellant have not been opined to be

sufficient in the ordinary course of nature to cause the death of

Nirmala and thus the offence committed by the appellant is

punishable under Section 304 Part I IPC.

8. A perusal of the injuries as per the post-mortem

report of the deceased shows that injury No.6 is a scar mark

near injury No.3 and injury No.4. It is apparent that injury No.6

is an old injury and not related to the assault. Injury No.1, 2,

and 3 are on the left thigh and the left leg. Injury No.4 is on the

lower back. Injury No.5 appears to be a defence injury being on

the web of the left thumb and the index finger. Injury No.7 is on

the left shoulder and injury No.8 is on the left side of the neck.

Injury No.9 appears to be the result of a firm grip by the hand

on the neck of the deceased. Thus, only 7 injuries have been

inflicted with a sharp edged weapon. 3 out of 7 are on the left

thigh and the left leg, 1 is on the lower back, 1 injury is a

defence injury. 2 injuries i.e. injury No.7 and 8 are directed

towards the neck and the shoulder.

9. On being cross-examined the doctor who conducted

the post-mortem clearly stated that he could give no opinion

regarding the seriousness of the injuries and also stated that

with proper medical or surgical intervention the deceased could

have been saved. We note that SI Ran Singh PW-16 stated

during cross examination that he made no attempt to get the

statement of Nirmala attested by any doctor because the doctor

was expecting that Nirmala would survive. He stated that

Nirmala died all of a sudden.

10. As noted in the decision reported as 1998 SCC (Cri)

898 State of Rajasthan Vs. Kalu peritonitis can set in due to

surgical complications.

11. Medical Jurisprudence guides us that peritonitis

means the peritoneum being affected due to puss formation. It

is in this context that the testimony of the doctor who

conducted the post-mortem during cross-examination assumes

importance.

12. The deceased died after 13 days. The MLC shows

that the wounds she received were varying in depth of 0.5 cm to

1.5 cm i.e. they were not very deep. The weapon of offence got

recovered by the appellant after his arrest is a kitchen knife

with a blade of 4 inches and thickness of 1 cm. The MLC and

the post-mortem report show an indiscriminate assault not

directed towards any specific part of the body. The assault took

place in the dark.

13. It has always vexed Courts when intention has to be

inferred from wanton acts. In the decision reported as AIR 2003

SC 209 Shanmugham @ Kulandaivelu Vs. State of Tamilnadu 6

stab wounds as under:-

"1. A 4 cms stitch wound on the right side chest.

2. 4 cms below the 1st wound in the back side of the wound there was a 6 cm length stitch wound.

3. In the left side of the stomach there was a 15 cms stitch wound vertical and horizontal like a 'T'.

4. A 1 cm length stitch wound between the right thigh and the genitals.

5. There is a tear wound in a size of 4 x 1 x 4 cm on the left ear.

6. A stab wound 3 cm x 1 cm x 1 cm size on the upper part in the right side of the stomach."

were held to be indicative of an intention to cause mere injuries

and not death more so when the assault took place it was dark.

Since the injuries in said case were not opined to be sufficient in

the ordinary course of nature to cause death, it was held that

the acts of Shanmugham would constitute the offence

punishable under Section 304 Part I IPC and not offence

punishable under Section 302 IPC. The result was that the

appeal was partially allowed and Shanmugham was sentenced

to undergo RI for 10 years.

14. In the decision reported as 2007 (6) SCALE Sunder

Lal Vs. State of Rajasthan, the acts of indiscriminately injuring

the deceased i.e. a wanton assault, in the absence of any

evidence that the resultant injuries were sufficient in the

ordinary course of nature to cause death, were held to be an

offence punishable under Section 304 Part I IPC.

15. In the decision reported as 2008 (10) SCALE 315

Kandaswamy Vs. State of TN the acts of indiscriminately cutting

the deceased, in the absence of any evidence that the injuries

caused were sufficient in the ordinary course of nature to cause

death, were held to be an act punishable under Section 304 Part

I IPC.

16. In all the aforesaid 3 decisions sentence imposed

was to undergo RI for 10 years.

17. We partially allow the appeal and set aside the

conviction of the appellant for the offence punishable under

Section 302 IPC. We hold the appellant guilty for having

committed an offence punishable under Section 304 Part I IPC

and sentence him to undergo rigorous imprisonment for 10

years. We further direct that the appellant shall be entitled to

the benefit of Section 428 Cr.P.C.

18. Since the appellant is in jail we direct that a copy of

this order be sent to the Superintendent Central Jail Tihar for

necessary action and to be made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE JANUARY 7, 2010/mm