Himachal Pradesh High Court
State Of Himachal Pradesh vs Rakesh Kumar on 21 May, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.148 of 2011 Reserved on 06.05.2024 .
Date of Decision: 21st May, 2024 State of Himachal Pradesh ....Appellant Versus Rakesh Kumar Coram r to Hon'ble Mr Justice Vivek Singh Thakur, Judge.
....Respondent Hon'ble Mr Justice Rakesh Kainthla, Judge.
Yes
Whether approved for reporting?1
For the Appellant/ : Mr. Pawan Kumar Nadda,
State Additional Advocate General.
For the Respondent : Mr. Vivek Sharma, Advocate.
Rakesh Kainthla,Judge
The present appeal is directed against the
judgment dated 16.12.2010, passed by the learned Sessions Judge Hamirpur, District Hamirpur, H.P.,(learned Trial Court), vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of an offence ____________ Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 2 punishable under Section 302 of Indian Penal Code (IPC).
(Parties shall hereinafter be referred to in the same manner as .
they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 302 of IPC. It was asserted that the deceased-Sandesh Kumar was the brother of the accused. He, accused, his brothers and parents were residing in the same house in different rooms. On 17.07.2010, the deceased, his parents, his wife and children were present in the house. At about 8:00 p.m. accused-
Rakesh Kumar started generating smoke in the courtyard. His father Birbal Ram (PW-3) had breathing problems.
Deceased-Sandesh went to the courtyard and asked the accused not to generate the smoke. The accused got infuriated and attacked the deceased. The accused pushed the deceased to the ground and sat on his stomach. The accused ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 3 tried to strangulate the deceased. Informant Anita Kumari (PW-1) and Birbal Ram (PW-3) went to the courtyard and .
rescued the deceased from the accused. The deceased went inside the room and fell. He died on the spot. The accused ran away from the spot. The matter was reported to the police. An entry (Ext.PW-7/A) was recorded in the Police Station. Inspector Baldev Singh (PW-11) went to the spot to r to verify the correctness of the information. He recorded the statement of informant Anita Kumari (Ext.PW-1/A)and sent it to the Police Station, where F.I.R.(Ext. PW-10/A) was recorded. He took the photographs of the spot (Ext. PW-
11/A-1 to Ex. PW-11/A-9). He prepared the site plan (Ext.PW-
11/B). He filled the inquest papers (Ext.PW-1/D and Ext.PW-
1/E) and filed an application (Ext.PW-4/A), for conducting the post-mortem examination of the body of the deceased.
Dr Rakesh Dhiman (PW-4), conducted the post-mortem examination and found that the deceased had suffered ante-
mortem injuries. Both coronaries showed atherosclerosis changes. The left coronary was 60% blocked and the right ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 4 coronary was 95% blocked at their commencement. He preserved the viscera and handed it over to the Police Officer .
accompanying the dead body. He issued his report (Ext.PW-
4/B) but reserved the final opinion till the receipt of the report of the Chemical Examiner.
3. Inspector/SHO Baldev Singh (PW-11), collected the burnt ash(Ext.P1) from the spot, sealed it in a parcel and seized it vide memo (Ext.PW-1/B). He also picked up one button (Ext.P-2) and seized it vide memo (Ext.PW-1/C),. Seal impressions (Ext.PW-11/C and Ext.PW-11/D) were obtained on separate pieces of cloth.
4. ASI Karan Singh (PW-12) conducted further investigation. He arrested the accused on 20.07.2010. The accused made disclosure statements (Ext.PW-5/A and Ext.PW-5/B) that he could show the place where the smoke was generated and the deceased was pushed. The accused showed the place. ASI Karan Singh (PW-12), prepared the site plan (Ext.PW-12/A). He also seized the clothes of the deceased (Ext.P-5 and Ext.P-6), vide memo (Ext.PW-5/C).
::: Downloaded on - 23/05/2024 20:30:50 :::CIS 5The clothes were identified by Anita Kumari (PW-1) and her signatures were also obtained on the memo. The result of the .
analysis (Ext.PW-4/C) was issued stating that the viscera did not contain any alcohol/poison.
5. Dr.Rakesh Dhiman (PW-4) issued his final opinion that the deceased had died due to acute coronary insufficiency leading to a heart attack. The possibility of a heart attack during the scuffle could not be ruled out. The statements of remaining witnesses were recorded as per their version and after completion of the investigation, the challan was prepared was presented before the Court of learned Judicial Magistrate, Barsar, District Hamirpur, H.P., who committed it for trial to the Court of learned Sessions Judge, Hamirpur, H.P.
6. The learned Sessions Judge, Hamirpur, charged the accused with the commission of an offence punishable under Section 302 of IPC. The accused pleaded not guilty and claimed to be tried.
::: Downloaded on - 23/05/2024 20:30:50 :::CIS 67. The prosecution examined 12 witnesses to prove its case. Anita Kumari (PW-1), Master Akshay Kumar (PW-2) .
and Birbal Ram (PW-3) are the eyewitnesses. Dr. Rakesh Dhiman (PW-4), conducted the post-mortem of the deceased. Mahinder Kumar (PW-5) is the witness to the disclosure statements. Mehar Chand (PW-6) informed the police about the incident and witnessed various recoveries entries in the daily diary.
made by the police. Constable Raj Kumar (PW-7) proved the HHC Som Raj (PW-8) carried the viscera to RFSL Gutkar. Tilak Raj (PW-9) was working as MHC with whom the case property was deposited. SI Nek Ram (PW-10) signed the F.I.R. Inspector/SHO Baldev Singh (PW-11) and ASI Karan Singh (PW-12) conducted the investigations of the case.
8. The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. He stated that he was innocent and was falsely implicated in the case.
::: Downloaded on - 23/05/2024 20:30:50 :::CIS 79. The learned Trial Court held that the post-
mortem report showed that no injury caused by throttling .
was found on the throat of the accused. Hence, the prosecution case that the accused throttled the deceased causing his death was not proved. A mere scuffle is not sufficient to convict the accused for the commission of an offence punishable under Section 302 of IPC. The deceased r to had died due to a heart attack. Statement of Medical officer that a heart attack could occur, if a person sits on the chest of another person and presses his neck was not medically sound. Hence, the accused was acquitted.
10. Feeling aggrieved and dissatisfied with the judgment passed by the learned Trial Court, the present appeal has been filed asserting that the learned Trial Court erred in rejecting the prosecution case. The prosecution witnesses had deposed consistently. The learned Trial Court erred in holding that pressing of the neck would cause blockage of the trachea and some injuries on the throat. The Medical Officer had categorically stated the possibility of ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 8 causing the heart attack by pressing the neck while sitting on the chest of the accused. This evidence was discarded without .
any cogent reason. Hence, it was prayed that the present appeal be accepted and the judgment passed by the learned Trial Court be set aside.
11. We have heard Mr. Pawan Kumar Nadda, learned Additional Advocate General for the appellant-State and Mr. Vivek Sharma, learned counsel for the respondent/accused.
12. Mr. Pawan Kumar Nadda, learned Additional Advocate General submitted that the learned Trial Court erred in acquitting the accused. The informant, her son and the father of the deceased had consistently deposed about the incident. There was no reason to depose falsely against the accused. The Medical Officer had categorically stated that a person would suffer a heart attack by pressing his neck while sitting on his chest. The prosecution had established its case beyond reasonable doubt and the learned Trial Court erred in acquitting the accused. Hence, he prayed that the appeal be ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 9 allowed and the judgment passed by the learned Trial Court be set aside.
.
13. Mr. Vivek Sharma, learned counsel for the accused/respondent supported the judgment passed by the learned Trial Court and submitted that even if the prosecution case is accepted in its entirety, no offence of murder is made out. He has relied upon the judgment of this Court passed in Cr.MP(M) No. 2965 of 2023 titled Jitender Kumar vs State of H.P.,decided on 09.02.2024 in support of his submission. Hence, he prayed that the present appeal be dismissed.
14. We have considered the rival submissions at the bar and have gone through the records carefully.
15. The informant Anita Kumari (PW-1) stated that on 17.07.2010 at about 7:45 p.m. she, her husband (since deceased), children and parents-in-law were present in the house. Her father-in-law was sitting on the veranda and her mother-in-law was cooking meals in the kitchen. The accused came into the courtyard with the leaves of a pine tree ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 10 and set them on fire. Her father-in-law is asthmatic and he started having problem due to the smoke. Her husband asked .
the accused as to why the accused was generating the smoke.
Her husband went to the toilet. When he returned from the toilet, the accused caught hold of him and threw him into the courtyard. The accused sat on the stomach of the deceased and pressed his neck. Everybody rushed to the spot to help r to the deceased but he died. She stated in cross-examination that the accused was residing separately. However, all the brothers were cultivating the land jointly. There was no quarrel between the accused and the deceased. The accused had generated the smoke on the previous day but no objection was raised. She denied that smoke was generated to ward off the mosquitoes. The deceased remained admitted in Zonal Hospital Hamirpur, H.P. for 10 days but she was not aware that the Medical Officer had told the deceased that he had a heart disease. She volunteered to say that the deceased was admitted to the hospital for 10 days due to fever. No medication was provided after his discharge.
::: Downloaded on - 23/05/2024 20:30:50 :::CIS 1116. Master Akshay (PW-2) is the son of the deceased.
He stated that he and his younger brother Abhinav were .
present in the house along with his parents. His grandparents were sitting on the veranda. The accused generated the smoke in the courtyard with the help of pine leaves. The deceased came out and asked the accused as to why he (the accused) was doing so. The father of the accused r to and the deceased had breathing problem. The accused picked up the deceased and threw him on the ground. The accused set on the stomach of the deceased and pressed his throat.
Everybody tried to rescue the deceased but he died. He stated in his cross-examination that the accused and the deceased had no enmity with each other and they used to go together.
He denied that the deceased was suffering from heart disease.
17. Birbal Ram (PW-3), made a similar statement. He stated that he is suffering from asthma. He was sitting on the veranda of his house. The accused came in the Courtyard and generated the smoke with the pine leaves. The accused threw the deceased in the courtyard, sat on his stomach and pressed ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 12 his neck. Everybody went to rescue the deceased. The accused ran away from the spot. The deceased died. He stated .
in his cross-examination, that he was not aware whether the doctor had advised the deceased to quit driving because of the heart ailment. He volunteered to say that the deceased used to have chest pain, for which he was taking medicine occasionally. The deceased never suffered from a heart attack before the incident.
18.
r to The cross-examination of these witnesses shows that the relations between the accused and the deceased were cordial. They used to cultivate the land jointly. Nothing was suggested to the witnesses to show that they have any reason to depose against the accused. Birbal Ram (PW-3) is the father of the accused. He has no reason to testify against his son. The testimonies of these witnesses corroborate each other on material particulars. The statement of informant Anita Kumari (PW-1) is duly corroborated by her previous statement (Ext.PW-1/A), which was recorded on the date of ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 13 the incident at 10:05 p.m. Thus, the testimonies of these witnesses are accepted as correct.
.
19. The learned Trial Court had not specifically discarded the testimonies of these witnesses rather it proceeded on the basis that the evidence on record was not sufficient to prove the homicide. The learned Trial Court rejected the statement of Dr. Rakesh Dhiman (PW-4) by holding that his opinion did not appear to be medically sound. We are afraid, that the learned Trial Court held so without any material.
20. Dr. Rakesh Dhiman (PW-4) specifically stated in his examination-in-chief that the possibility of a heart attack during the scuffle could not be ruled out. A heart attack is also possible if a person sits on the chest of another and presses his neck. He stated in his cross-examination that throttling will cause abrasions around the neck. If a person sits on the chest of another, the possibility of a fracture of ribs cannot be ruled out. He volunteered to say ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 14 that the same would depend upon the health status of the person.
.
21. There is nothing in the examination-in-chief or cross-examination of the Medical Officer to show that his opinion is not based upon the prevalent medical opinion. He was not cross-examined by referring to the textbooks of medical jurisprudence/forensics to show that his opinion is not supported by any evidence. The learned Trial Court had also not referred to any medical textbook to hold that the opinion of the Medical Officer was contrary to the prevalent medical opinion; thus, the learned Trial Court erred in discarding the opinion of the Medical Officer without any cogent reasons.
22. The Medical Officer found a contusion on the left side of the face, a laceration on the left pinna, an abraded contusion on the right cheek and three contusions on the right side of the neck. The contusions on the neck corroborated the testimonies of witnesses that the accused had pressed the neck of the deceased. Hence, it is held that ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 15 the prosecution has succeeded in establishing that the accused sat on the stomach of the deceased and pressed his .
neck, after which the deceased suffered a massive heart attack.
23. Informant Anita Kumari (PW-1) and her son Master Akshay Kumar (PW-2) consistently denied that the deceased was suffering from heart disease and this fact was known to the family members. Birbal Ram (PW-3) stated that the deceased used to suffer from chest pain and sometimes he used to take medicine but he showed his ignorance that the doctor had advised the deceased to quit driving because of a heart ailment. When the wife of the deceased who was with him in the hospital was not aware of his heart disease, it cannot be inferred that the accused had any knowledge regarding the heart disease. No person has testified about the knowledge of the accused; hence, it is held that the prosecution evidence does not prove the knowledge of the accused regarding the heart condition of the deceased.
::: Downloaded on - 23/05/2024 20:30:50 :::CIS 1624. The Medical Officer found atherosclerosis changes and blockage of the left and right coronary to the extent of .
60% and 95% respectively. He also found the enlargement of the heart. Atherosclerosis changes, enlargement of the heart and blockage of arteries show that the deceased had suffered a heart attack due to the combined effect of the act of the accused and his medical condition. In the absence of the r to knowledge of the medical condition of the deceased, the accused cannot be held liable for the commission of the murder. Illustration (b) of Clause (iv) of Section 300 of IPC, provides that if the offender knows that the victim is labouring under such disease that a blow is likely to cause his death, strikes him to cause bodily injury and the victim dies in consequence of the blow, the offender is guilty of murder although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if the offender not knowing that the victim is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 17 person in a sound state of health and the victim dies, the offender is not guilty of murder. Thus, the accused can be .
held liable for the murder only if he knew that the deceased was suffering from a disease and the blow was likely to cause his death. In Emperor Vs. Saberali Sarkar, AIR 1920 Calcutta 401, the accused gave beatings to a person by kicks and blows to teach him a lesson which resulted in his death caused by r to the rupture of an enlarged spleen. It was held that the accused cannot be convicted of murder in the absence of any evidence that he knew about the enlarged spleen of the deceased and he could be convicted of an offence punishable under Section 323.
25. In Ramakrishna Panicker vs. State of Kerala (17.12.1958 - KERHC): MANU/KE/0128/1959 the deceased died due to rupture of enlarged spleen. There was no evidence that the accused was aware of this condition. It was held that he could not be held liable for the commission of an offence punishable under Section 302 of IPC but Section 323 of IPC. It was observed:
::: Downloaded on - 23/05/2024 20:30:50 :::CIS 18"8. Earlier in this judgment we have stated that according to the medical evidence in the case rupture or damage to the spleen would not have occurred but for the fact that that organ was diseased. There is no .
evidence that accused 1 was aware of that diseased condition. A fist in the abdominal region would not ordinarily cause any damage to a normal spleen. That is the effect of the medical evidence in the case.
Accused 1 would not have intended to give Devassia anything more than a beating or a thrashing to teach him a lesson, as it were, for his impudence in using foul language against a police officer, while they happened to meet on the public road.
It is in the circumstances of the case difficult to attribute to accused 1 any intention to cause death or any intention to cause such bodily injury as would in the ordinary course of nature cause death. Nor could accused 1 be taken to have even intended or knew it to be likely that the hurt which he was causing would be grievous hurt even though on account of the diseased condition of the spleen it got ruptured. Explanation to Section 322, Penal Code shows that a person cannot be said to have voluntarily caused grievous hurt except when he both causes grievous hurt and intends or knows himself likely to cause grievous hurt.
In other words, a person can be convicted of grievous hurt only when the result and intention correspond --
see Gour's Penal Law of India (VI Edition. Vol. II p. 1472.) From the circumstances of the case, nothing more than a simple hurt could reasonably be thought likely to ensue from the fists given to Devassia and as such even though the spleen got ruptured, accused 1 could not be convicted for any offence more serious than for causing simple hurt. Law is well settled that when the injury is not serious and there was no ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 19 intention to cause death or grievous hurt, nor had the accused knowledge that it was likely to cause grievous hurt or death, a man is guilty of causing hurt and not death, even though death is caused.
.
At p. 701 of Ratanlal's Law of Crimes (19th Edition) the commentaries refer to a line of cases where death ensued as a result of hurt caused to diseased spleen or other diseased organs and convictions were entered for causing simple hurt. The commentary under the heading 'Hurt' may usefully be quoted here:
"Where the accused, having received great provocation from his wife, pushed her with both arms so as to throw her with violence to the ground, and after she was down slapped her with his open hand, and the woman died on account of rupture of her spleen which was diseased, it was held that the accused was guilty of causing hurt. Similarly, when a wife died from a chance kick in the spleen inflicted by her husband on provocation given by her, the husband not knowing that the spleen was diseased, he was held guilty of causing hurt: The accused, dissatisfied and irritated by the lazy and inefficient manner in which a punkah cooly was managing a punkah, went up to him and struck him one or more blows.The cooly was suffering from a diseased spleen and died from the injuries he had received. It was held that the accused was guilty of causing hurt. When the accused threw a piece of a brick at the diseased which struck him in the region of the spleen and ruptured it, the spleen being diseased, it was held that he was guilty of causing hurt. The accused was charged with having caused the death of one N by kicking him over the region of the spleen, being enraged ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 20 at the latter having allowed his goats to stray into his fields.The medical evidence showed that the spleen of the deceased was enormously large, and slight injuries over the region of the spleen .
would be sufficient to cause its rupture which generally ended fatally. It was held that in the absence of satisfactory evidence to prove knowledge of the state of health of the deceased on the part of the accused, the conviction should be for hurt only."
The cases depended upon by the learned author are:
Queen v. RunchanunTantee 5 Suth WR (Cri) 97; Queen v. BysagooNosbyo 1867 8 Suth WR (Cri) 29; Empress of India v. Fox ILR AH 522; Empress of India v. Randhir Singh ILR All 597; Aiman 1 All LJ 162. To this list may be added 'the decisions in Emperor v. Sabarali0 AIR 1920 Cal 401: 21 Cri LJ 666; Bhajan Das v. Emperor AIR 1924 Lah 218; and In re Marana Goundan MANU/TN/0326/1940: AIR 1941 Mad 560. Ratanlal's commentary at pp. 812 and 813 under the caption 'Spleen Cases' may also usefully be referred to in this context. Gour deals with this topic at p. 1463 of Vol. II of the Penal Law of India (VI Edition).
9. We have not however overlooked cases or commentaries dealing with instances of persons causing hurt to a diseased spleen or heart or brains and death ensuing in consequence of being convicted for causing grievous hurt or even under Section 304(2).
Ratanlal's commentaries at pp. 700 'to 701 under the caption 'Death due to Diseased Spleen or Heart' (1) 'Grievous Hurt' refer to several such instances. The commentaries at p. 818 under the heading 'Diseased Spleen or Heart' may also be referred to for such cases. An examination of the facts of those cases would however show that those are cases where the court was able to infer that the offender intended to cause ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 21 grievous hurt and such hurt also resulted from the action of the offender.
Some of those are also cases where weapons such as sticks or lathis were used or where -there have been .
fractures of ribs or other bones but which fractures did not cause or lead to death. With a view to find out whether the case on hand would fall under that category of cases we have examined the decisions cited in the commentaries and we have no hesitation to hold that the line of cases cannot be taken to govern the present case. The decisions we have in mind and some of which are referred to in the commentaries at the page mentioned are Queen v. Megha Meeach 2 Suth WR Cri 39; Empress of India v. O'Brien ILR All 766; Empress of India v. Jdu Beg ILR All 776; Mahabir v. Emperor 19 All LJ 295; Bharat Singh v. Emperor AIR 1932 Oudh 279; Munni Lal v. Emperor MANU/UP/0047/1943 and Basant Singh v. State MANU/PH/0062/1953.
10. Conformably to the principles enunciated earlier and following the lead of the first batch of cases referred to in this judgment we alter the conviction of accused 1 from that under Section 304(2) to one under Section 323. The sentence has necessarily to be altered, but regard being had to the fact that accused 1 was misusing his position as a police officer to assault a helpless person whom he had taken into custody, we think it proper to sentence him to the maximum sentence prescribed for the-offence under Section 323, namely, rigorous imprisonment for 1 year. We award him that sentence. His appeal succeeds to the extent of mitigating the offence and reducing the sentence as above.
::: Downloaded on - 23/05/2024 20:30:50 :::CIS 2226. In Putti Lal v. State, 1968 SCC OnLine All 323: 1969 Cri LJ 531 the deceased was suffering from an enlarged heart. The .
accused pushed him due to which he (the deceased) fell and died. There was no evidence that the accused knew about the medical condition of the deceased. It was held that the accused could be held liable for the commission of an offence punishable under Section 325 of IPC. It was observed:
"13. As regards the second submission, it has some force. The doctor (S.N. Gupta), who conducted the post-mortem examination, in his evidence clearly said that the heart of the deceased was enlarged and flabby. The death had resulted froma rupture of the heart. The injuries found on the person of the deceased could be caused by a single fall. He further stated that the rupture of the heart of the deceased on account of his old age, was possible even by an ordinary injury. He added that this, however, could not have occurred in the case of a normal healthy man. It was also clear from the medical evidence that the ribs of Asharfi had been broken. There was nothing on the record to show that the appellant had any knowledge that the deceased had a badly enlarged heart, on account of which he died.
14. On behalf of the appellant, reliance has been placed on the case reported in (1880) ILR 2 All 766, Empress of India v. O'Brien. Their Lordships observed:
"There is no reason to doubt that the act was not done with the intention of causing death, or of causing such bodily injury as the accused knew was ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 23 likely to cause the death of the old man, nor was the act done with the intention of causing bodily injury to the man, nor was the bodily injury intended to be inflicted sufficient in the ordinary course of nature .
to cause death, nor did the accused, when striking the man, knew that his act so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. The offence, therefore, of culpable homicide was not committed. But I think that there I can be no doubt that the accused committed the offence of voluntarily causing grievous hurt. He struck the deceased on the ribs with a stick and inflicted a hurt which not only endangered his life but caused his death and which he must have known was likely to break a rib if it did no worse injury......"
15. A similar view was expressed in another case reported in (1881) ILR 3 All 776, Empress of India v. Idu Beg.
16. In the instant case, it was clear that the appellant had no intention or knowledge to cause the death of Asharfi. But he caught him by his neck, bodily lifted and threw him on the ground. He was an old man and his ribs were fractured. It could not be doubted that he was thrown from some distance and with sufficient force. So, it could be reasonably presumed that the appellant possessed the requisite knowledge that by his act grievous hurt could be caused to the victim. He is only guilty of the charge under Section 325, Penal Code, 1860. His conviction under Section 304, Part II, I.P.C., is clearly erroneous and must be set aside. As regards the sentence, in my opinion, three years' rigorous imprisonment would amply meet the ends of justice."
::: Downloaded on - 23/05/2024 20:30:50 :::CIS 2427. In Sri Prakash Vs. State, 1990 CrLJ 486 (All.)accused gave beating to a child having an enlarged spleen, which .
resulted in his death. There was no evidence to prove that the accused knew about the enlarged spleen of the deceased. The accused was held guilty under Section 323 of IPC.
28. In Mahender vs. The State (N.C.T. of Delhi) (11.10.2013 - DELHC): MANU/DE/3652/2013 the deceased suffered from cirrhosis of the liver and jaundice. He was not taking any treatment for the same. The accused gave beatings to him leading to his death. It was held that he could not be held liable for the commission of an offence punishable under Section 304 (2) of IPC but Section 323 of IPC in the absence of any knowledge of the condition of the accused. It was observed:
"2.. The evidence available on record does not point out any such injury that was so grievous as to constitute 'knowledge' in the mind of the accused persons that by the 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 to ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 25 constitute knowledge on the part of the accused persons. In an offence punishable under Section 304 Part-II IPC, 'knowledge' is an important element that is missing in the instant case, and hence, it remains .
simpliciter 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 cirrhosis of the 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.
3. In 'State of Karnataka vs. Shivalingaieh', MANU/SC/0293/1987: 1988 Crl.L.J. 394, the 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 by the doctor that the act was dangerous to human life and had led to the cardiac arrest of the deceased which was instantaneous. In 'Bal Krishan Sita Ram Pandit vs. State', MANU/DE/0214/1986:
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 has a weak heart or is an emotional type of person. The deceased has 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 ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 26 attack on account of Mehtab Rai Jain having become emotional.
29. A similar view was taken by this court in Jitender .
Kumar (supra).
30. In the present case also the accused and the deceased were on good terms with each other. They did not have any enmity as deposed by informant Anita Kumari (PW-
1) and his son master Akshay Kumar (PW-2).The incident took place all of a sudden when the deceased objected to the generation of the smoke by the accused. The accused had only pushed the deceased, sat on his stomach and pressed his neck. The deceased only suffered contusions and abrasions, which are simple injuries. Hence, the accused can only be held liable for the commission of an offence punishable under Section 323 of IPC.
31. Consequently, the judgment passed by the learned Trial Court is not sustainable and the same deserves to be set aside. The appeal is allowed and the accused is convicted for the commission of an offence punishable under Section 323 ::: Downloaded on - 23/05/2024 20:30:50 :::CIS 27 of IPC. Keeping in view the relationship between the accused and the deceased and the circumstances in which the offence .
was committed, the accused is sentenced to undergo imprisonment for a period for which he remained in judicial custody during the trial. The record of the learned trial court be returned forthwith.
(Vivek Singh Thakur)
r (Judge)
(Rakesh Kainthla)
Judge
21st May, 2024
(ravinder)
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