Mahender vs The State (N.C.T. Of Delhi)
2013 Latest Caselaw 4736 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : 25th JULY, 2013
                                  DECIDED ON : 11th OCTOBER, 2013

+                                    CRL.A. 749/2011

       MAHENDER                                            ..... Appellant
                            Through :     Mr.A.J. Bhambhani, Advocate with
                                          Ms. Nisha Bhambhani, Advocate.
                            versus
       THE STATE (N.C.T. OF DELHI)                         ..... Respondent
                            Through :     Mr. M.N. Dudeja, APP.

AND
+                                    CRL.A. 1000/2011
       RADHEY SHYAM                                        ..... Appellant
                            Through :     Mr.A.J.Bhambhani, Advocate with
                                          Ms.Nisha Bhambhani, Advocate.
                            versus
       THE STATE (N.C.T. OF DELHI)                         ..... Respondent
                            Through :     Mr. M.N. Dudeja, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Mahender (A-1), Radhey Shyam (A-2) and Dinesh were

convicted for committing offences punishable under Section 341/304 part-

II IPC. By an order dated 28.09.2010, they were sentenced to undergo RI

for ten years with fine ` 15,000/- each. A-1 and A-2 being aggrieved have

challenged correctness of the judgment.

2. The incident out of which these appeals arise took place on

17.09.2004 at about 09.00 A.M. at village Ranhola. The genesis of the

incident was petty dispute among A-1 to A-3 on the one hand and Ajay,

on the other hand whereby they wrongfully restrained Ajay and assaulted

him with fists and kicks. Police machinery was set in motion on

24.09.2004 when Ajay was admitted at Sanjay Gandhi Memorial Hospital

(in short SGM Hospital); Daily Diary (DD) No. 65B (Ex.PX) was

registered at PS Nangloi and First Information Report was lodged on

25.09.2004, under Section 341/323/34 IPC after recording Mohan Lal‟s

statement (Ex.PW-1/A). DD No. 38A (Ex.PW-10/C) was recorded after

getting intimation of Ajay‟s death in the hospital on 30.09.2004. During

the course of investigation, Mahender, Radhey Shyam and Dinesh were

arrested. Statements of the witnesses conversant with the facts were

recorded. After completion of investigation, a charge-sheet was submitted

in the Court in which they were duly charged and brought to Trial. The

prosecution examined eleven witnesses to establish the case. In their 313

statements, accused persons denied their complicity with the offence in

question.

3. Indisputably, a scuffle took place on 17.09.2004 in Kismat‟s

factory in which Ajay was thrashed and beaten but neither he was taken

for medical examination nor any report was lodged with the police. He

was admitted in SGM hospital by Mohan Lal, his brother on 24.09.2004 at

10.15 P.M. Since the victim was unfit to make statement, the FIR was

lodged on Mohan Lal‟s statement under Sections 341/323 IPC. Whether

the victim regained consciousness or was oriented and physically fit to

record statement before he died on 30.09.2004 is uncertain and unclear.

The MLC (Ex.PW-3/A) records that at the time of medical examination,

he was conscious and oriented. Apparently, at no stage, the victim made a

statement to the police implicating the appellants for causing injuries to

him. PW- Mohan Lal, who was aware of the scuffle on 17.09.2004 from

the inception and was in constant touch with the victim facilitating

treatment at Dr.Rajesh‟s clinic did not lodge any report with the police

any time soon after the incident. Undoubtedly, prior to 24.09.2004, he was

under medical treatment at "Vaid Ortho and Gynae Clinic, 22, Najaf Garh

Road, Nangloi, Delhi" and PW-8 (Dr.Rajesh Gupta) had prescribed

medicines at the first instance for two days and thereafter, for a week.

Ajay again visited Dr.Rajesh Gupta‟s clinic and complained of hiccup and

vomiting. Dr.Rajesh advised admission if hiccup persisted vide

prescription card Ex.PW-8/A. The victim got regular treatment as out-

door patient from Dr.Rajesh Gupta and at no stage implicated the

appellants for the injuries inflicted to him. In prescription card (Ex.PW-

8/A), no injuries were noticed on the body, name of disease was not

depicted. PW-8 (Dr.Rajesh Gupta) did not consider it a medico-legal case

to intimate the police. PW-3 (Dr.Manoj) proved MLC (Ex.PW-3/A)

prepared on the first appearance at SGM Hospital on 24.09.2004 by Dr.

Anju Garg in which she observed only one injury i.e. "Right eye sub

conjuctival large facial defuse swelling ictrus present". PW-2

(Dr.B.K.Jha), autopsy surgeon in report Ex.PW-2/A found one external

injury i.e. "Build abrasion on right frontal region just above eye brow 1cm

X 1cm". The cause of death was opined as shock consequent to

„cirrohosis of liver as a result of physical assault‟. In the cross-

examination, he admitted that deceased was suffering from cirrohosis of

liver, (a natural disease process) and jaundice. The Investigating Officer

did not ascertain during investigation if the victim was getting any regular

treatment for the said diseases. Mohan Lal, deceased‟s brother did not

divulge as to since when Ajay was suffering from the diseases and what

treatment was being taken by him, and if so, from where. He did not

produce any medical papers by which the victim had taken treatment. PW-

8 (Dr.Rajesh Gupta) was not aware of the victim suffering from cirrohosis

and did not prescribe any medicine for its cure. The medical evidence is

lacking to inform the stage of cirrohosis i.e. compensated or de-

compensated. In compensated cirrohosis, body functions fairly well

despite scarring of the liver. De-compensated cirrohosis means that severe

scarring of the liver has damaged and disrupted essential body functions.

Patients with de-compensated cirrohosis may develop serious and life

threatening symptoms and complications. Liver is an important organ of

the body, it weighs about 3 ponds. Stage 4 is the final of all cirrohosis

stages and the most dreaded one. Patients in the final stage have a chance

of survival only if they opt for a liver transplant. Jaundice is one of the

signs / symptoms of liver failure and mostly occurs in 4th stage. In the

instant case, the victim was suffering from cirrohosis of liver and

jaundice. Its weight was about 700 grams. Apparently, the beatings given

on 17.09.2004 were not the direct cause of death of the victim. PW-1

(Mohan Lal), deceased‟s brother admitted in the cross-examination that

when he went to the factory, Ajay was conscious; and was taken to PW-8

(Dr.Rajesh Gupta)‟s clinic; got treatment for about a week without

admission as in-door patient and on 24.09.2004, he was admitted in

Sanjay Gandhi Memorial Hospital, Mangolpuri. The patient was advised

X-ray skull, AP and lateral view, X-ray chest PA view, Liver Function

Test and referred for surgical medical opinion. Those reports were not

collected and placed on record. PW-3 (Dr.Manoj) was unable to give any

opinion regarding injuries in the absence of X-ray reports and blood

reports. The appellants had no animosity with the victim prior to the

occurrence. A sudden quarrel took place on 17.09.2004 when the victim

objected to carrying of the bamboos/ ballies from one factory to the other

on the instructions of Contractor - Suresh who was not implicated in the

case. In the said scuffle A-1, A-2 and Dinesh assaulted Ajay and gave

beatings resulting injuries on the body. The assailants were not armed

with any deadly weapon and no repeated blows were inflicted on vital

organ of the deceased. It appears that due to the intervention of the owner

of the factory i.e. Kismat, the dispute was settled and the victim and his

brother - Mohan Lal did not opt to report the incident to the police. The

evidence available on record does not point out to any such injury which

was so grievous as to constitute „knowledge‟ in the mind of the accused

persons that by infliction of such injuries they were likely to cause the

death of the deceased. True, death was the resultant, but this resultant

could not be attributed to the knowledge of the accused persons because

of the obvious fact that the alleged injuries found on the person of the

deceased were not such so as to constitute knowledge on the part of the

accused persons. In an offence punishable under Section 304 Part-II IPC,

„knowledge‟ is an important element which is missing in the instant case,

and hence, it remains simplicitor an offence of „voluntarily causing hurt‟

as defined under Section 321 IPC and punishable under Section 323 IPC.

The injuries found on the body of the deceased were neither sufficient in

the ordinary course of nature to result in death nor were they likely to

cause death. The death did not take place as a result of the injuries

received by him but took place due to the shock consequent to cirrohosis

of liver and jaundice after about ten days of the incident. The appellants

can therefore, only be held guilty of hurt under Section 323 IPC and not

under Section 304 Part-II IPC.

4. In „State of Karnatka vs. Shivalingaieh‟, 1988 Crl.L.J. 394,

conviction was ultimately maintained by the Supreme Court under Section

325 IPC on the ground that the act of the accused in squeezing the

testicles of a person would be an offence of voluntarily causing grievous

hurt under Section 325 IPC. In the said case, there was a categorical

statement of the doctor that the act was dangerous to human life and had

led to cardiac arrest of the deceased which was instantaneous. In „Bal

Krishan Sita Ram Pandit vs. State‟, 1987 Crl.L.J. 479, the cause of death

given by the autopsy surgeon was heart failure due to coronary artery

disease. He further opined that shock could also cause death if the person

was having a weak heart or he was an emotional type of person. The

deceased having a diseased heart and the danda blows might have

produced a shock aggravating the heart attack. This Court held that the

death was not necessarily caused on account of a danda blow and it could

be a simple cause of heart attack on account of Mehtab Rai Jain having

become emotional.

5. In the light of above discussion, conviction under Section

304 Part-II IPC is altered to Section 323/34 IPC. All the convicts were

sentenced to undergo RI for ten years with fine ` 15,000/- each. A-1‟s

nominal roll dated 10.07.2012 reveals that he has undergone two years,

three months and twenty nine days incarceration as on 13.07.2012

excluding remission for eight months and seven days. A-2‟s nominal roll

dated 14.11.2011 reveals that he has remained in custody for one year,

four months and four days as on 16.11.2011 and earned remission for four

months and twenty seven days. Apparently, they have served the sentence

more than prescribed under Section 323/341 IPC and require to be

released forthwith (if not required to be detained in any other case) and no

further substantive sentence can be awarded to them. Though the

appellants were not liable for culpable homicide/ murder, they were

nevertheless instrumental in accelerating victim‟s death. But for this

unfortunate incident, God knows, for how many days / months, the victim

could have survived. Each day was precious for him and his family. In

„Ankush Shivaji Gaikwal vs. State of Maharashtra‟, 2013 (6) SCC 770,

the Supreme Court emphasized that victim is not to be forgotten in

criminal justice system and Section 357 Cr.P.C. should be read as

imposing mandatory duty on the Court to apply its mind to the question of

awarding compensation in every case. Accordingly, A-1 and A-2 are

directed to deposit ` 40,000/- each as compensation before the Trial Court

within fifteen days. The Trial Court shall issue notice to the widow to

receive the compensation and if she is not available, the compensation

amount should be disbursed to the deceased‟s children / legal heirs in

equal proportions.

6. Dinesh did not opt to prefer appeal. Nominal roll dated

07.02.2013 received from Jail Superintendent reveals that he has

undergone eight years, four months and four days as on 06.02.2013. The

imprisonment awarded to him is almost complete. Intimation be sent to

the Jail Superintendent to release Dinesh in FIR No. 868/2004 registered

at PS Nangloi under Sections 341/323/34 IPC immediately if not required

to be detained in any other case.

7. The appeals stand disposed of in the above terms. Trial Court

record be sent back forthwith. Copy of the order be sent to the Jail

Superintendent for compliance.

(S.P.GARG) JUDGE OCTOBER 11, 2013/ tr