JUDGMENT [ENTITY], J.
1. [ENTITY] son of [ENTITY] son of [ENTITY] aged 60 years, resident of village Hameergarh was found guilty of an offence punishable under [SECTION], [SECTION] of the [ACT] for his having caused bodily injury to [ENTITY] with knowledge that such injury was likely to result in his death though without any intention to cause death. He was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 10,000/ - and in default of payment thereof to further undergo rigorous imprisonment for one year. It was further directed that the whole of the amount of fine on its recovery be paid to heirs of [ENTITY], deceased. Feeling aggrieved against his conviction and sentence, [ENTITY] has come up in appeal.
2. In brief, the facts of this case are that at about 2 p.m. on 2-4-1986, [ENTITY] came in front of the house of [ENTITY] and called him. He came out along with his wife Smt. [ENTITY] and his daughter [ENTITY]. [ENTITY] appellant asked [ENTITY] as to why he had stolen turi from his house but he denied the allegation and stated that he had borrowed the same from his children. On the asking of [ENTITY], [ENTITY] accompanied him to get the factum of his having borrowed the turi confirmed from his ([ENTITY]'s) children. [ENTITY] P.W. 4 and [ENTITY] P.W. 5 had also accompanied them. They entered the [ENTITY] of [ENTITY] where he threatened [ENTITY] that he would teach him a lesson. Saying so, he kicked him on his.testicles as a result whereof [ENTITY] fell down. [ENTITY] gave a second kick blow on the testicles of [ENTITY]. In order to save his life [ENTITY] and [ENTITY], wife and daughter of [ENTITY] fell down upon him but in spite thereof [ENTITY] gave several kick blows more on the scrotum of [ENTITY]. [ENTITY] P.W. 10, brother of [ENTITY], arrived at the spot and with his help [ENTITY] and [ENTITY] removed him to their house. A number of persons of the community of [ENTITY] accused came to the house of [ENTITY] and assured his wife that they will get the matter settled. Since they were poor persons, wife of [ENTITY] could not pick up enmity with the accused who was a rich person and a Panch of the Gram Panchayat. They were prevented from reporting the matter to the police as also from removing the injured to the hospital till 4-4-1986. Condition of [ENTITY] had deteriorated. It was only then that [ENTITY] was got admitted in General Hospital, Narwana by [ENTITY] P.W. 10, his brother, and [ENTITY], his nephew. Dr. [ENTITY] P.W. 6 examined [ENTITY] vide Medico Legal Report Ex.PD at 5-45 P.M. on 4-4-1986 in General Hospital, Narwana and found a diffused swelling of the scrotum and penis and skin over the scrotum and penis was found to be blackening and gangrenous. The injury was kept under observation. The doctor opined that the injury was the result of a blunt weapon, within the probable duration of three days. On receipt of ruqa Ex.PC from the hospital with regard to [ENTITY] having arrived in the hospital in an injured condition at 7 p.m. Head Constable [ENTITY] reached the hospital, moved application Ex.PC/2 and obtained endorsement in the hand of Dr. [ENTITY] P.W. 6 to the effect that [ENTITY] was not fit to make a statement at 8-35 p.m. on that day. Again on 5-4-1986 Assistant Sub-Inspector [ENTITY] P.W. 11 reached the hospital and obtained medical opinion Ex.PH/1 in the hand of Dr. [ENTITY] P.W. 7 that [ENTITY] was unconscious and was not fit to make a statement. He had then recorded statement Ex.P.C. of Smt. [ENTITY] P.W. 4. On the basis of the said statement First Information Report Ex.PB/2 under [SECTION], [ACT], was recorded at 10 a.m. and it was conveyed to the Ilaqa Magistrate vide endorsement Ex.PB/3 at 5 p.m. on the same day. [ENTITY] died in General Hospital, Narwana at 2 p.m. on 5-4-1986. [ENTITY] Ex.PF was sent by Dr. [ENTITY] PW-6 at 2-50 p.m. Inspector [ENTITY] PW-12 on receipt of the said ruqa converted the offence from one under [SECTION] of the [ACT]. Special Report Ex.PN was despatched to the Ilaqa Magistrate. Sub Inspector [ENTITY] on reaching the hospital prepared inquest report Ex.PK and entrusted the dead body to Head Constable [ENTITY] for post-mortem examination.
3. Dr. [ENTITY], PW-8 conducted post-mortem examination on the dead body of [ENTITY] on 5-4-1986 and found diffused swelling of scrotum and penis. Two small dimples were present in midline on scrotum. The colour of scrotum was black. On dissection of scrotum, dark foul smelling clotted blood was found present in scrotal cavity. On dissection of penis, dark foul smelling clotted blood was found present under penial skin. Both chambers of heart contained some blood. Stomach was empty. Liver and spleen were congested. Bladder was full of urine. Autopsy Surgeon opined that the death was due to toxemia, because of gangrene which could be the result of injury on the scrotum and was sufficient to cause death in ordinary course of nature.
4. On police request Ex.PG on 1-5-1986, Dr. [ENTITY] P.W. 6 gave medical opinion Ex.PG/1 to the following effect :
(a) that possibility of injury as a result of blows on the private parts could not be ruled out; and
(b) Duration between injury and death could not be given because the cause of death was toxemia.
P.W. 12 [ENTITY] SI/SHO arrested the accused on 6-4-1986 and after completion of the investigation and other formalities the accused was arraigned for trial on such like allegations for the murder of [ENTITY].
5. Before the trial Court, in order to prove its above referred case, the prosecution examined 12 witnesses. Smt. [ENTITY] P.W. 4 and [ENTITY] P.W. 5, eye-witnesses, supported the version of the prosecution.
6. The accused, when examined by the trial Court under [SECTION], [ACT], came out with the plea of denial simpliciter and false implication. The accused-appellant, examined [ENTITY], Draftsman D.W. 1 who had prepared site plan Ex.DX at the instance of Smt. [ENTITY] wife of the accused. D.W. 2 [ENTITY] proved printed form of pronote and receipt Ex.DC and DD, vide which [ENTITY] purported to have borrowed Rs. 2400/-from the accused in the presence of this witness.
7. The trial Court believing the ocular evidence of Smt. [ENTITY] and [ENTITY], eye witnesses, coupled with the medical evidence, convicted and sentenced the appellant as referred to above.
8. I have heard the learned counsel for the parties besides perusing the record.
9. It is firmly established in the testimony of the two eye-witnesses Smt. [ENTITY] and [ENTITY], P.W. 4 and P.W. 5 respectively, that on the day of occurrence, on having been called by the accused, [ENTITY] came out from his house along with the said witnesses. Appellant told him of his having stolen turi from his house. [ENTITY] denied that allegation and told him that he had borrowed the turi from his ([ENTITY]'s) children. Then on the asking of [ENTITY], [ENTITY] along with his wife and daughter accompanied him to his [ENTITY] in order to get his assertion confirmed from his children. When they reached in the [ENTITY], [ENTITY] threatened to teach him a lesson and saying so, he gave a kick blow on the scrotum of [ENTITY] who fell down. Then again he gave another kick blow to [ENTITY] on the same part of his body. In spite of the fact that [ENTITY] and [ENTITY] had fallen on him in order to save his life, [ENTITY] accused dealt further kick blows on the scrotum of [ENTITY]. The above ocular account given by the two eye-witnesses stands corroborated by the medical evidence comprised of the testimony of Dr. [ENTITY] P.W. 6 and Dr. [ENTITY], P.W. 8. Their testimony has been discussed in details in the earlier part of this judgment.
10. Learned counsel for the appellant has firstly argued that there is a delay of three days in lodging the First Information Report and no explanation, much less satisfactory, is corning forth in this regard. Therefore, the prosecution case was doubtful and the accused deserves to be acquitted. I have given a thoughtful consideration to this argument. It is true that the occurrence had taken place at 2 p.m. on 2-4-1986 whereas the injured was removed to the hospital on 4-4-1986, reaching there at 4,45 p.m. It is also true that although the injured remained conscious uptil 10.00/ 11.00 p.m. yet Head Constable [ENTITY] P.W. 3 failed to record his statement or that of [ENTITY] and [ENTITY]. He also did not go to the village and start investigation. But I do not find any force in the submission of the learned counsel that the statement of Smt. [ENTITY] P.W. 4 (Ex.PB) was recorded after the death of [ENTITY] on 5-4-1986 at 2-45 p.m. because the facts and circumstances of this case go a long way to show that [ENTITY] and other relatives of [ENTITY] did not take the injury to be so serious that it could lead to the death of [ENTITY]. No doctor was called nor the injured was removed to the hospital. Moreover, [ENTITY] and his relations were poor carpenters belonging to backward class. As against them the accused belonged to a influential community i.e. Jat, and was himself a Panch of the Gram Panchayat. The members of Jat community who had soft corner for the accused, had urged the complainant party not to escalate the dispute either by reporting the matter to the police or by getting the injured admitted in the hospital. Under such pressure the complainant party did not report the matter to the police nor they got the injured admitted in the hospital till his condition deteriorated. It was at the most a laxity on the part of Head Constable [ENTITY] in not recording the statement of [ENTITY] while he was still conscious or that of any of the attendants of [ENTITY]. On account of such inaction on the part of the police, the prosecution case cannot be thrown overboard.
11. The discrepancy in the prosecution version with regard to the place where the panchayat was held, as pointed out by the learned counsel for the appellant, is not material. It has come in the evidence that several persons had intervened possibly at the instance of the accused, as mentioned hereinbefore, and had assured the complainant party for a reasonable and honourable settlement.
12. Next argument of the learned counsel for the appellant is that the house of the deceased was at a considerably long distance from the [ENTITY] of the accused but Smt. [ENTITY] and/or [ENTITY] did not disclose the incident to anybody in the way. I do not find any substance in this argument because uptill that point of time it was a trifling matter as the accused had only asked the deceased that he had stolen his turi, whereas the deceased had asserted that he had borrowed the same from his children and in order to get it confirmed from his ([ENTITY]'s) children he along with his wife and daughter had accompanied the accused to his [ENTITY]. There had been no altercation or exchange of hot words and, therefore, there was no occasion for the two eye witnesses to be alarmed and to inform any one who met them on the way. So far as the question of [ENTITY], [ENTITY] and [ENTITY] having not narrated the occurrence to anybody in the way while taking [ENTITY] in an injured condition from the [ENTITY] of the accused to their house is concerned I find that there is nothing on record including the cross examination of the witnesses, to show that while coming back, they had met anyone of their relations, friends or acquaintances to whom they could narrate the occurrence. Besides what has been stated above, the sequence of events show that initially they had not taken the injury of [ENTITY] to be serious, much less deadly. They did not even call for a doctor or take [ENTITY] to any private or government clinic and, therefore, no importance can be attached to the failure of the three witnesses to disclose the occurrence to anyone while returning from the [ENTITY] of the accused to the house of the injured.
13. It is then argued on behalf of the appellant that the house of the deceased and the [ENTITY] of the accused were situated in the abadi of the village and at the time of the occurrence besides [ENTITY], two witnesses namely Smt. [ENTITY] and [ENTITY] must have raised hue and cry thereby attracting neighbours or passersby to the spot but no witness from an independent source has either been cited or examined at the trial which renders the prosecution case doubtful. This argument also does not find favour with me.
14. It is a matter of common knowledge that an average villager is reluctant to appear as a witness and get himself involved in Court proceedings and police investigation agencies. Moreover the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses.
15. The statement of [ENTITY] was sought to be assailed on the ground that she was too young to be depended upon. What is however forgotten is that in this kind of experience a girl even though of a. tender age would be able to depose and identify correctly as to who was the one who had given kick blows to her father. I have gone through her statement and find that she has deposed very naturally and in a manner in which a child of her age would be able to depose. There is nothing in her evidence which would suggest that she was tutored or coaxed to depose in a particular manner. Her's is a straight forward evidence in which she identified the accused as the person who had inflicted kick blows to her father on the day of the incident. Moreover a child in the innocent purity of its mind and unsophistication is more likely to come forth with a version which is unbiased, unsoiled, natural and forthright. Above submission of the learned counsel is, therefore, without any substance.
16. Lastly, learned counsel for the appellant has urged that death could have been avoided if proper treatment was provided to the injured. I have given a thoughtful consideration to this argument also. Doctor [ENTITY] P.W. 6 has no doubt stated in his cross-examination that if the patient had been given timely medical aid, he could be saved. The Autopsy Surgeon Dr. [ENTITY], P.W. 8 had opined that the cause of death was due to toximia, because of gangrene having set in. He also affirmed that if timely medical aid was given gangrene could have been avoided. Thus, from the statement of the two doctors, it is evident that the cause of death in this case was toximia because of gangrene. It has been categorcially admitted by both the doctors that for the said complication, the injury by itself, would not have proved fatal According to them the onset of gangrene would have been avoided if medical aid had been given. Relying on (i) [ENTITY] v. State of Punjab, AIR 1958 SC 465 : (1958 Cri L.J 818); (ii) [PRECEDENT] and (iii) [PRECEDENT], learned counsel for the State has argued that the case in hand squarely fell within the ambit of [SECTION] of the [ACT], The above said authorities have been carefully gone through. In [ENTITY]'s case (Supra) law laid down in [ENTITY]'s case (supra) has been summarised as under (at page 820 of Cri LJ):
"To put it shortly, the prosecution must prove the following facts before it can bring a case under [SECTION], [SECTION]
First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; these are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury that is to say, that it was not accidental or unintentional, or that some other kind, of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
Once these four elements are established by the prosecution (and of course, the burden is on the prosecution throughout) the offence is murder under [SECTION] It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature not that there is any real distinction between the two".
17. When the facts and circumstances of this case are given above the acid test, I find that the incident had taken place over a trifling matter regarding the alleged theft of a small quantity of Turi. No exchange of hot words or physical altercation had taken place between the deceased and the accused. There was no previous enmity between the two. The kick blow given by the accused had caused an injury on the scrotum and penis of the deceased. Combined reading of the testimony of Dr. [ENTITY], P.W. 6, who had medicolegally examined the deceased and Dr. [ENTITY], P.W. 8, who had conducted autopsy on the dead body of the deceased shows that the injury on scrotum and penis was not the direct cause of death of the deceased. For want of timely medical aid the injury developed toxaemia because gangerine had set in. It could certainy be avoided if timely medical aid was given to the injured. Under the circumstances, the learned trial Court had rightly concluded that only one kick blow had landed on the scrotum and penis of [ENTITY] and, therefore, requisite intention to kill in order to prove third ingredient laid down in the above said judg-ment was missing. Fourth ingredient was also absent. To sum up, the death of [ENTITY] was not direct consequence of the kick blow given by the accused on his private parts and the injury was, only .remote cause of death. In holding the above view, I am fortified by the following judgments:
(i) [PRECEDENT];
(ii) [PRECEDENT]; and
(iii) [PRECEDENT].
AS a sequel to the above discussion I am of the opinion that the learned trial Court had rightly held that the accused had knowledge that the kick blow on the scrotum and penis of [ENTITY] was likely to result in his death although he had no intention to cause death. The appellant has, therefore, rightly been convicted for an offence under [SECTION], [SECTION] of the [ACT]. As far as the question of quantum of sentence is concerned, the learned trial Court has already taken a lenient view in awarding the sentence of Rigorous Imprisonment for four years and to pay a fine of Rs. 10,000/-. In default of payment of fine he was further sentenced to undergo rigorous imprisonment for one year. It has also been rightly ordered by him that on recovery of amount of fine of Rs. 10,000/-whole of it should be paid to the heirs of [ENTITY] . Lal deceased.
18. As a sequel to the above discussion, this appeal fails and is hereby dismissed.
19. The appellant be arrested through npn bailable warrants and lodged in prison to serve the sentence.