Punjab-Haryana High Court
Ashwani Kumar vs State Of Haryana & Ors on 4 May, 2016
Author: Ramendra Jain
Bench: T.P.S. Mann, Ramendra Jain
CRM-14118-2016 in/and
CRM-A-2022-MA-2015 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRM-14118-2016 in/and
CRM-A-2022-MA-2015
Date of decision: 04.05.2016
Ashwani Kumar
..... Applicant
Versus
State of Haryana and others
..... Respondents
CORAM: HON'BLE MR. JUSTICE T.P.S. MANN
HON'BLE MR. JUSTICE RAMENDRA JAIN
1. Whether Reporters of the local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
PRESENT: Mr. Ravikant Pawar, Advocate
for the applicant.
RAMENDRA JAIN, J.
CRM-14118-2016 Heard.
Sufficient cause has been shown for recalling the order dated 04.04.2016, dismissing the application filed under Section 378 (4) Cr.P.C. for want of prosecution. The application is, therefore, allowed. Consequently, the application seeking leave to file the accompanying appeal is ordered to be restored at its original number. CRM-A-2022-MA-2015 Respondents No. 2 and 3 namely, Chuhar Singh and 1 of 6 ::: Downloaded on - 10-06-2016 21:20:05 ::: CRM-14118-2016 in/and CRM-A-2022-MA-2015 -2- Pardeep @ Gogi (hereinafter referred to as 'the private respondents') were booked and tried under Sections 302/506 read with Section 34 of the Indian Penal Code (IPC) on the allegations that around 11.30 A.M. on 01.08.2006, they attacked Manphool Dutt (since deceased) in his plot with lathies and inflicted him multiple injuries. Hue and cry by Manphool Dutt attracted his grandson Ashwani Kumar (applicant herein) and one Shiv Parkash, who rescued him from the private respondents.
2. On the basis of above statement made by Manphool Dutt, formal FIR was registered under Sections 323, 325, 452, 506 read with Section 34 IPC. Investigation was commenced. However, during investigation, complainant-Manphool Dutt passed away on 14.08.2006. Still the investigating agency did not add Section 302 IPC, rather filed the final report under Section 173(2) Cr.P.C. under the aforesaid offences only. As a result thereof, applicant-Ashwani Kumar grandson of complainant-Manphool Dutt was forced to file a private complaint for commission of offence under Sections 302, 323, 324, 452, 506 read with Section 34 IPC before the learned Magistrate. After recording preliminary evidence, the private respondents were summoned. Since the FIR recorded by the police and the private complaint related to the same occurrence, therefore, both were committed to the Court of Session as the offence under Section 302 IPC was exclusively triable there.
3. Both the cases were clubbed together vide order dated 19.08.2013, passed by the learned trial Court. Private respondents were charge-sheeted under Sections 302, 506 read with Section 34 IPC.
4. On appraisal of evidence brought on record by the 2 of 6 ::: Downloaded on - 10-06-2016 21:20:06 ::: CRM-14118-2016 in/and CRM-A-2022-MA-2015 -3- prosecution and hearing learned counsel for both the sides, the learned trial Court did not find itself fully convinced with the prosecution story and thus, acquitted the private respondents under Section 302 IPC, while convicting them under Sections 323, 325, 506 read with Section 34 IPC vide impugned judgment dated 30.09.2015. The learned trial Court sentenced the the private respondents as under:-
1. Under Section 323 read with Section 34 IPC To undergo rigorous imprisonment for a period of six months and to pay a fine of ` 1,000/- each. In default of payment of fine to further undergo simple imprisonment for a period of three months each.
2. Under Section 325 read with Section 34 IPC To undergo rigorous imprisonment for a period of three years and to pay a fine of ` 5,000/- each. In default of payment of fine to further undergo simple imprisonment for a period of six months each.
3. Under Section 506 read with Section 34 IPC To undergo rigorous imprisonment for a period of one year and to pay a fine of ` 1,000/- each. In default of payment of fine to further undergo simple imprisonment for a period of three months each.
All the substantive sentences were ordered to run concurrently.
5. Being aggrieved, the applicant has filed the present application under Section 378(4) Cr.P.C. seeking leave to file the accompanying appeal.
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6. Learned counsel for the applicant contended that the impugned judgment is based on surmises and conjectures. The trial Court has wrongly concluded that the cause of death of Manphool Dutt was not related to the injuries allegedly caused by the private respondents though, it was established beyond doubt that the deceased had developed infection on account of the injuries sustained by him.
7. After giving our thoughtful consideration to the submissions made by learned counsel for the applicant, we find no merit in the instant application for the reasons to follow.
(i) The private respondents have been convicted under Sections 323, 325, 506 read with Section 34 IPC. So far as commission of crime under Section 302 IPC by them in concerned, the prosecution did not lead any cogent and convincing evidence. After admission of Manphool Dutt in Government Medical and Hospital, Chandigarh, he was treated for the fractures suffered by him. PW-5 Dr. Sunita Kumari had conducted the medico-legal examination of deceased-Manphool Dutt vide MLR Ex. P-20 and skigram Ex. P-21. Thereafter, she sent ruqa Ex. P-8 to the police. The deceased was also referred for X-ray examination.
(ii) Undisputedly, Manphool Dutt deceased was discharged from the hospital on 04.08.2006 and he died on 14.08.2006 i.e. after 10 days. Thus, there was heavy burden upon the prosecution to prove that the 4 of 6 ::: Downloaded on - 10-06-2016 21:20:06 ::: CRM-14118-2016 in/and CRM-A-2022-MA-2015 -5- death of Manphool Dutt on 14.08.2006 was in consequence of the injuries suffered by him in the incident dated 01.08.2006.
(iii) PW-12 Dr. Harmeet Singh, proved the treatment summary Ex. P-35 of Manphool Dutt as well as his treatment record Ex. P-36. PW-1-Dr. Manjeet Singh, has proved the post-mortem report Ex. P-2. The cause of death of Manphool Dutt was deferred till the report received from the Department of Pathology, PGIMS, Rohtak. PW-10 Dr. Rajnish Kalra testified that "representative micro sections from various portions of heart show no significant pathological change. Both the coronary arteries show mild atherosclerotic changes. The left and right lung show multiple pleural plaques with underlying lung tissue showing fungal infection, emphysematous change, congestion and edema".
PW-10 in his cross-examination has clarified that "the lung of the deceased was received intact without any injury mark. That the pleural plaques may be due to old disease. The lung was showing fungal infection. This type of fungal infection may arise, because of inhalation of the organism in a debilitated person. This type of infections may result from the organism in the environment". Thus, if the above 5 of 6 ::: Downloaded on - 10-06-2016 21:20:06 ::: CRM-14118-2016 in/and CRM-A-2022-MA-2015 -6- medical evidence is looked upon coupled with the history of treatment of the deceased, it is proved that Manphool Dutt died due to infection in his lungs and also because of irregular multiple fibrous thickening on pleural surface after 10 days of his discharge from the hospital. Manphool Dutt in his statement Ex. P-10 as well as PW-4 and PW-6 namely, Ashwani Kumar- applicant and Shiv Parkash respectively, the alleged eye-witnesses, did not state anywhere that private respondents had attacked deceased-Manphool Dutt with an intention to cause his death. In view of the facts and circumstances, the private respondents cannot be held responsible for causing the death of deceased-Manphool Dutt.
8. All the arguments raised by learned counsel for the applicant before us have already been dealt with by the learned trial Court in detail in a legal manner and thus, after going through the impugned judgment, we found no illegality or perversity in the same.
9. The instant application, being completely devoid of any merit is dismissed. Leave to appeal is declined.
( T.P.S. MANN ) ( RAMENDRA JAIN )
JUDGE JUDGE
May 04, 2016
rishu
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