Punjab-Haryana High Court
Major Singh vs State Of Punjab on 26 May, 2011
Author: K.C. Puri
Bench: K.C. Puri
Crl. A. No. 876 SB of 2000 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. A. No. 876 SB of 2000 (O&M)
Date of decision : 26.5.2011
...
Major Singh
................Appellant
vs.
State of Punjab
.................Respondent
Coram: Hon'ble Mr. Justice K.C. Puri
Present: Sh. Navjinder Singh Dandiwal, Advocate
for the appellant.
Sh.Amandeep Singh Rai, Assistant Advocate General,
Punjab.
...
K.C. Puri, J.
This is an appeal directed by Major Singh - accused- appellant against the judgment and order dated 21.7.2000, passed by Additional Sessions Judge, Moga, vide which the accused-appellant has been convicted under Sections 304 (II) and 456 IPC and sentenced to undergo imprisonment and fine as detailed under:-
304 IPC - Sentenced to undergo RI for 4 years and to pay a fine of ` 500/- and in default of payment of fine to undergo further RI for 1 month.
456 IPC - Sentenced to undergo RI for 1 year and to pay a fine of ` 200/- and in default of payment of fine Crl. A. No. 876 SB of 2000 -2- to undergo further RI for 1 month.
Both the sentences were ordered to run concurrently. Case of the prosecution in brief is that Bohar Singh complainant made statement that he was working as a 'Siri' with Gian Singh s/o Gurdev Singh. On 1.10.1995 at 8.30 P.M. He alongwith his wife Binder Kaur and mother Surjit Kaur was present in his house, his father's brother Major Singh -accused came to his house. He was under the influence of liquor and started abusing and was saying that he will teach them a lesson for locking the hand pump. On hearing the noise, neighbourer Surjit Singh @ Seeta, Tulsa Singh Harijan came to his house and tried to pacify Major Singh in the outer street. After some time, Major Singh came back alongwith dang and again started abusing. The wife of complainant Binder Kaur also came in the street. Major Singh attacked him with the dang. Wife of the complainant came forward to separate them. The dang struck on her head. Major Singh gave another blow of dang near her right ear. She fell down. Accused gave another dang blow on her back side of waist. On alarm, Major Singh escaped from the spot alongwith dang. The incident was seen by the complainant and others in the light of bulb installed in the house of Surjit Singh. The motive of the occurrence was stated to be that children of Major Singh and that of complainant used to have a fight between them and the complainant had locked his hand pump for which reason, Major Singh had a grouse and had inflicted injuries on the person of Binder Kaur. Earlier she was being treated at home, but thereafter on 7.10.1995, her condition deteriorated. The complainant alongwith his father-in-law Darshan Singh admitted Crl. A. No. 876 SB of 2000 -3- Binder Kaur in Civil Hospital, Moga. Due to serious condition of Binder Kaur, she was referred to Medical College, Faridkot, where she died.
On the basis of the statement of complainant, DDR No.30 dated 7.10.1995 was recorded. However, after the death of Binder Kaur in the hospital, FIR under Section 304 IPC was registered. Accused was arrested and on disclosure statement made by him, dang was recovered from the roof of the kotha of electric motor of Atma Singh in the fields.
After going through the record, charge under Section 456 IPC for lurking house trespass and under Section 304 IPC for committing culpable homicide not amounting to murder, was framed against the accused, to which he pleaded not guilty and claimed trial.
Prosecution, in order to bring home guilt of the accused, examined PW-1 Bohar Singh complainant, PW-2 Surjit Kaur mother of Bohar Singh complainant, PW-3 HC Baljinder Singh, PW-4 Dr. V.J.S. Dhillon, PW-5 Dr. Prem Singh, PW-6 Jagmohan Singh Inspector, PW-7 Dr. Harjinder Pal Sandhu, PW-8 Baldev Singh ASI and closed the prosecution evidence.
After closure of the prosecution evidence, all the incriminating evidence was put to the accused to which he denied. He pleaded false implication and stated that Binder Kaur was ill and she died on that account. Accused was called upon to lead defence evidence, but he did not lead any evidence in defence.
Learned trial Court after appraisal of the evidence on the file, found the accused guilty under Section 304 (II) and 456 IPC, and Crl. A. No. 876 SB of 2000 -4- sentenced him to undergo imprisonment and fine as detailed above.
Feeling dissatisfied with the above said judgment, the appellant-accused has preferred the present appeal.
Learned counsel for the appellant has submitted that there is huge delay of 9 days in lodging the FIR, which remains unexplained. It is submitted that in fact no occurrence had taken place. Binder Kaur was suffering from Jaundice and she had died natural death on account of that disease.
Learned counsel for the appellant has submitted that the medical evidence totally belied the death due to injuries. PW-5 Dr. Prem Singh, who is the star witness of prosecution, has stated that cause of death in his opinion was due to hapatic and neurogenic failure, which was sufficient to cause death in an ordinary course of nature. This witness has further stated that there was no external injury visible on the dead body. In the cross examination, this witness has categorically stated that death in this case was due to Jaundice. The injuries mentioned in the MLR are not sufficient to cause death in the ordinary course of nature. PW-4 Dr. V.J.S. Dhillon, Medical Officer, Civil Hospital, Moga, has stated that Jaundice was highly positive when he examined Binder Kaur on 7.10.1995 at 3.45 P.M. He has given detail of injuries:-
1. Alleged hit on skull. No visible external injury. X-ray and surgical opinion sought.
2. Healed abrasion on and behind right ear.
3. Alleged hit on the back.
This witness in the cross examination has categorically Crl. A. No. 876 SB of 2000 -5- stated that possibility of death due to Jaundice cannot be ruled out. This witness has further stated in the cross examination that probability of the injuries having been received 10-15 days prior to examination also cannot be ruled out. It is submitted that so far as injuries No. 1 and 3 are concerned, there is no external mark of injury. Injury No. 2 healed abrasion on and behind right ear could be a result of a fall. So, in the presence of categoric opinion of both the doctors, examined by the prosecution itself that death in this case is a result of Jaundice, the learned trial Court has committed a grave error in convicting the accused under Section 304 (II) IPC.
It is further contended that the trial Court in paragraph No. 16 of the judgment held that Jaundice cannot be a result of injuries but injuries may have effect of aggravating the symptoms. It is submitted that finding of the trial Court to the effect that since appellant had the knowledge of Typhoid and Jaundice and as such assault by the appellant could have caused death and on that account, offence under Section 304 (II) IPC is made out.
It is submitted that the categoric opinion of the doctor that Jaundice is the cause of death and alleged injuries in the MLR are not sufficient to cause death in the ordinary course of nature, clearly shows that the above said conclusion convicting accused under Section 304 (II) IPC, is based upon wrong facts.
Learned counsel for the appellant has further submitted that Hon'ble Apex Court in authority reported as Pirthi vs. State of Haryana 1994 Crl. L.J. 2187, has held that accused cannot be convicted under Section 304 Part II IPC, where the injury to the Crl. A. No. 876 SB of 2000 -6- testicles was not the direct cause of death. In that case, the accused was convicted under section 323 IPC.
It is further submitted that in authority reported as B.N. Kavatakar and another vs. State of Karnataka 1994 Supp (1) Supreme Court Cases 304, it has been held that where the death is consequential to septicaemia secondary to injuries caused five days ago and peritonitis, offence under Section 304/34 IPC is not made out and at the most could be under Section 326/34 IPC.
Even if whole of the allegations are taken as a gospel truth, in that case also the appellant has already undergone incarnation for a period of 9 months out of substantive sentence of 4 years.
Learned State counsel has supported the judgment of the trial Court.
I have given my thoughtful consideration to the rival submissions made by counsel for both the sides and have also gone through the record of the case.
The first and foremost question for decision of the present appeal is whether the ingredients of offence under Section 304 (II) IPC are made out on the facts of the present case. The medical evidence in this regard is being re-appreciated. PW-4 Dr. V.J.S. Dhillon was the person who examined deceased Binder Kaur on 7.10.1995 at 3.45 P.M. As per this witness, Jaundice was highly positive in respect of Binder Kaur. This witness has given detail of 3 injuries as mentioned above. Injuries No. 1 and 3 are alleged hit on the skull and back of Binder Kaur and there was no corresponding injury found by him. In respect of injury No.2, this doctor found Crl. A. No. 876 SB of 2000 -7- healed abrasion on and behind right ear. He has stated that said injury could be a result of fall. This witness has stated that he cannot say whether these injuries can cause death as there was no external mark of injuries. So, if the evidence of this witness is taken as a whole, this witness does not prove the fact that injuries are the cause of death in the present case. This witness has further stated that possibility of death due to Jaundice cannot be ruled out in this case.
PW-5 Dr. Prem singh, who conducted the post mortem on the dead body of Binder Kaur has stated that no external mark of injury was present. On exploration of skull haemorrhagic spots were present in the brain. On 18.1.1996, on receipt of result of viscera examination from Pathological Department, said department could not reach to any conclusion. On the basis of entries in the bed head ticket of the deceased from Medical College Faridkot, the cause of death in his opinion was due to hapatic and neurogenic failure which was sufficient to cause death in an ordinary course of nature. In the cross examination, this witness has stated in clear terms that death in this case was due to Jaundice. He has further made categoric opinion that injuries mentioned in MLR are not sufficient to cause death in ordinary course of nature. There is no other medical evidence on the file. Even in the presence of categoric opinion of both the doctors, produced by the prosecution that death in the present case is due to Jaundice and cannot be caused due to injuries, the trial Court has convicted the appellant under Section 304 IPC. The observation made by the trial Court is that no doubt Jaundice cannot be caused by injuries, but it can certainly have the effect of aggravating the Crl. A. No. 876 SB of 2000 -8- symptoms. It was further observed by the trial Court that since in the statement under Section 313 Cr.P.C. accused admitted the fact that Binder Kaur was suffering from Jaundice/Typhoid and as such he was having the knowledge of the illness of Binder Kaur and by his act of inflicting Dang blow, the appellant has the knowledge that it was likely to cause death or bodily injury which can cause death.
In paragraph No. 15 of the judgment, the trial Court after marshaling the facts of the Modi's Jurisprudence, as well as, Medical Textbook by Davidsons, reached to the conclusion that internal injury on the head could not cause Jaundice. The trial Court has itself observed in the said paragraph that various diseases of liver and biliary system containing the mechanisms producing Jaundice, various causes of Jaundice and different forms of Jaundice have been dealt with. There are different types of Jaundice i.e. Haemolytic Jaundice, Hepatocellular Jaundice, Cholestatic Jaundice and Congenital Non-Haemolytic Hyperbilirubinaemia and these types of Jaundice could not be caused due to head injury. The trial Court lost sight of the fact that prosecution has to prove its case beyond reasonable doubt. The prosecution is required to prove that act of accused in causing injuries resulted in the death of the victim. From the reading of statement of PW-4 Dr. V.J.S. Dhillon and PW-5 Dr. Prem Singh, it is crystal clear that death in this case is due to Jaundice and injuries found in the MLR are not the cause of death.
The Hon'ble Apex Court in Pirthi's case (Supra) has held that where there is a quarrel between the accused and deceased and accused kicked the deceased on his testicles, no medical treatment Crl. A. No. 876 SB of 2000 -9- was given to the deceased for two days, the medical opinion that death was due to Toximia because of gangrene which could be result of injury to testicles, in that case there is not direct cause of death and accused cannot be convicted under Section 304 (II) IPC and the accused was sentenced under Section 323 IPC. So, from the reading of the facts of that case, it is clear that although the death in that case was caused by the injuries, but there was no direct cause of death, his death was due to Toximia and gangrene. The facts of the present case are better than that case as there is no external mark of injury as per the doctors and death in the present case is due to Jaundice and not due to injuries.
In B.N. Kavatakar's case (Supra), the injuries were caused by lethal weapons, death was consequential to septicemia secondary to injuries caused 5 days ago and it was held that offence under Section 302/34 IPC is not made out and offence under Section 326/34 is made out.
So, in these circumstances, the finding of the trial Court convicting the accused under Section 304 (II) IPC is not sustainable in the eyes of law and the same stands set aside. The accused stands acquitted under Section 304 (II) IPC.
So far as the delay in lodging the FIR is concerned, that cannot be said to be fatal. The accused is the near relative of the complainant. The trial Court has observed that motive is proved. The accused has not proved any motive for false implication. So, it seems that there was some dispute between the parties and occurrence has taken place. The injury on the ear was visibly found in the MLR. Crl. A. No. 876 SB of 2000 -10- Although, no external injury was found on the person of Binder Kaur in respect of injury on the head and back side. There is no opinion of the doctor that any of the injury is grievous. So, in these circumstances, the accused stands convicted under Section 323 IPC and conviction under Section 456 IPC stands maintained.
As per the conviction slip, the appellant has undergone incarnation for a period of 9 months. This Court in judgment dated 22.11.2010 titled as Malkiat Singh and others vs. State of Punjab in Crl. A. No. 485 SB of 2001, has held that the ends of justice would be met in case the sentence under Section 323 IPC is reduced to the period already undergone.
So, keeping in view the fact that occurrence relates to the year 1995 and appellant has already undergone protracted trial for more than 15 years and has undergone incarnation for a period of 9 months, the ends of justice would be met in case his sentence under Sections 323 and 456 IPC is reduced to the period already undergone. I order accordingly. However, the sentence of fine under Section 456 IPC stands maintained.
The appeal stands disposed of.
A copy of the judgment be sent to the trial Court for compliance.
( K.C. Puri )
May 26, 2011 Judge
chugh