Madhya Pradesh High Court
Anil Gupta vs The State Of Madhya Pradesh Thr on 27 February, 2017
Author: S.K.Awasthi
Bench: S.K.Awasthi
-( 1 )- CRR No. 1094/2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Revision No 1094/2016
Anil Gupta
Versus
State of MP & another
----------------------------------------------------------------
Shri Sunil Kumar Jain, Advocate for the applicant.
Shri Mohd. Irshad, Panel Lawyer for the respondent No.1/
State.
Shri Ranjeet Singh Rawat, Advocate for the respondent
No.2.
----------------------------------------------------------------
ORDER
(27.02.2017) The applicant is calling in question the order dated 9.11.2016, passed by Special Judge (Atrocities), Shivpuri in Special Sessions Trial No. 75/2016, whereby the application filed by the applicant under Section 216 of the Code of Criminal Procedure (CrPC) has been dismissed.
2. The facts leading to filing of the instant criminal revision are that the applicant is accused of severing the penis of deceased Daulatram by using a sharp cutting object, namely, Hasiya. The prosecution has developed its story in the manner that the death has occurred due to direct result of severing of the penis rendering the case to be sufficient to conduct the trial for the commission of offences punishable under Sections 302, 326, 323 and 506 of Indian Penal Code (IPC) and Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short, the SC/ST Act).
3. The respondent No.1 was given information by the -( 2 )- CRR No. 1094/2016 wife of the deceased Rekhabai about the incident stating that the deceased narrated about the cause of emasculation committed by the present applicant. The respondent No.1 recorded the FIR and proceeded to conclude the investigation by filing charge sheet against the present applicant alleging commission of offence punishable under Section 302 of IPC along with other lesser offences mentioned herein above. The trial Court proceeded to frame the charges against the present applicant under Sections 302, 326, 506 (Part-2) of IPC and Section 3(2)(V) of SC/ST Act.
4. The applicant filed an application under Section 216 of CrPC for discharging him from the aforesaid offences, which was rejected by the trial Court. The applicant feeling aggrieved by such order has filed the instant revision application.
5. Learned counsel for the applicant has invited attention of this Court to the nature of injuries alleged to have been caused by the applicant, to submit that such injuries are not sufficient in the ordinary course of nature to result in death. Further, the death has occurred not due to the alleged emasculation but because of infection during the treatment and developed after four months of the incident. It was further contended that the infection is an independent cause of death having no nexus with the injury sustained due to emasculation. Accordingly, learned counsel for the applicant made a prayer to allow the revision application and exonerate the present applicant from the charges framed against him, mentioned herein above.
6. Learned counsel for the respondent No.1 has based his argument on the principle of ' res ipsa loquitur' (the -( 3 )- CRR No. 1094/2016 thing speaks for itself) and submitted that number of days have been spent by the deceased in the hospital will not mitigate the graveness of injury inflicted by the applicant. Further, he submitted that if such injury was not caused, the deceased would not have died, meaning thereby that the injury was sufficient to cause death and the medical complication which was developed after considerable period of time will not change the primary cause of death which is emasculation. In order to substantiate this contention, learned counsel for the respondent placed reliance on the judgment of Hon'ble Supreme Court in the case of State of Rajasthan vs. Arjun Singh and others, (2011) 9 SCC 115, wherein the death occurred after 35 days from the date of incident due to septicemia but still the Hon'ble Supreme Court maintained conviction under Section 302 of IPC. In this manner, he prayed for dismissal of the revision application.
7. The case at hand arises important question of law touching upon the ingredient of Section 300 of IPC and the contingencies under which the accused persons can be booked for commission of offences punishable under Section 302 of IPC. Further, another question which arises for consideration is that whether the injury on male private organ will be sufficient to cause death ? The applicability of Section 302 of IPC will be founded on the nature of injury which shall also throw light on the aspect of mens rea. These aspects are crucial for arriving at any conclusion. Thus, before adverting to the rival contentions, opinion about the nature of injury would be necessary.
8. As spelt out above, the deceased suffered -( 4 )- CRR No. 1094/2016 emasculation as the accused severed his penis leading to hospitalisation where he died on account of septicemia after four months. Whether this injury was sufficient in ordinary course of nature to cause death ? The answer to this query can be authentically derived from 'Modi - A Text-book of Medical Jurisprudence and Toxicology' 2011, 24th Edition, edited by Justice K.Kannan and Justice K. Mathiharan, published by Lexis Nexis,. The relevant extract (at page 603) is reproduced herein below:-
"Penis"- Wounds of the penis and its total extirpation, if not fatal by shock and haemorrhage, are not dangerous".
9. To further elaborate on the proposition of fatalness of injury in the case at hand, reference to the judgment of Hon'ble Supreme Court in the case of Pirthi vs. State of Haryana (1994) Suppl 1 SCC 498 would be worthy. The injury which was sustained by the deceased in the said case has been described in para 3 of the judgment, which is reproduced below :-
"3. The facts of the prosecution case are that on April 2, 1986 at about 2 p.m. the appellant came in front of the house of Jia Lal, deceased and there was a quarrel and the appellant kicked the deceased on his testicles as a result of which the deceased fell down. The appellant again kicked on the testicles of the deceased. The wife and daughter of the deceased intervened and they removed the injured to the house and later he was shifted to the hospital only on April 4, 1986. The doctor found a diffused swelling on the scrotum and penis and skin over the scrotum and penis was found to be blackening and gangrenous and he was treated in the hospital. Because of the gangrene the deceased died on April 5, 1986. A case was registered under Section 302 IPC. Dr Naveen Sabharwal, PW 8 conducted the postmortem and he opined that the death was due to toxemia because of the gangrene which -( 5 )- CRR No. 1094/2016 could be the result of the injury to the testicles. PW 6, another doctor again gave a medical opinion that the duration between injury and the death could not be given because the cause of death was toxemia due to gangrene. The doctor also admitted that because of the lack of immediate medical help, the gangrene developed."
10. On the basis of narration made in para 3 of the judgment, the Hon'ble Supreme Court concluded that the injury on the testicles was not the direct cause of death and the conviction of the appellant in the case under Section 304 Part-II of IPC was set aside and instead, he was convicted under Section 323 of IPC. In another case of Central Bureau of Investigation vs. Kishore Singh, (2011) 6 SCC 369, the Hon'ble Supreme Court encountered the facts in which penis was chopped of leading to hospitalisation due to excessive bleeding. The trial Court in that case convicted the accused for an offence punishable under Section 308 of IPC along with Section 326 IPC and under Section 342 of IPC. This conviction was challenged before the High Court and the High Court modified the conviction to be under Sections 326 and 342 of IPC. The CBI challenged this order before the Hon'ble Supreme Court, in which the Hon'ble Supreme Court maintained the order by which the High Court has convicted the accused although the punishment was enhanced under Section 326 of IPC.
11. It is now pertinent to deal with the contentions canvassed by learned counsel for the respondent to object the relief sought by filing this revision application. The reliance placed on the judgment in the case of Arjun Singh (supra) will not render any assistance to the respondent for the reason that in that case the Hon'ble -( 6 )- CRR No. 1094/2016 Supreme Court arrived at the conclusion of conviction for offence punishable under Section 302 of IPC due to the fact that the injuries sustained were gunshot injuries and, therefore, the plea of death after 35 days has no force because the primary injury was sufficient to cause death in ordinary course of nature.
12. The consideration of nature of injury sustained by the deceased as narrated above gives rise to an irrefutable conclusion that the said injury was not the direct cause of death, in this regard the reference made to Modi - A Text-book of Medical Jurisprudence and Toxicology (supra) is pertinent, as would of penis can be termed as dangerous only in cases where the death is caused by either shock or hemorrhage. Apart from it, the judgment of Hon'ble Supreme Court will fortify the observation. Another aspect which will have bearing on the outcome of this application is the factum of mens rea, as in this case, despite the opportunity being available to the applicant to inflict repeated injuries on the vital part of the body of the deceased, the applicant did not do so which strengthens the observation made by this Court that the injury in the present case cannot be tried for commission of offence punishable under Section 302 of IPC.
13. The facts of this case can also be examined from the point of view of Section 320 of IPC, which defines 'grievous hurt'. The provision enumerates 8 injuries which could be designated as 'grievous hurt'. The relevant kind of hurt for the purpose of this case is the first type of injury narrated under Section 320 of IPC, i.e., 'emasculation'. Mention of this kind of hurt under Section 320 IPC clearly reflects that the injury if not fatal by -( 7 )- CRR No. 1094/2016 shock or hemorrhage, will not be enough in ordinary course of nature to cause death.
14. On cumulative consideration of the factors indicated above, it is clear that the death which has taken place after four months of the incident is not the direct result of the injury caused by the applicant, rather the cause of death is septicemia, which happens to be an independent cause of death.
15. Taking this view of the matter, the revision application is allowed in part and the impugned order is set aside to the extent it frames charge against the applicant under Section 302 of IPC and the trial for remaining charges framed against the applicant shall continue.
16. The revision application is allowed in part with the aforesaid modification.
(S.K.Awasthi) Judge (yogesh)