IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.201-DB of 1998 Date of decision: 15.01.2008 Dashinder Singh & another. -----Appellants. Vs. State of Haryana. -----Respondent. CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE S. D. ANAND Present: Ms. R.S. Rai, Sr. Advocate with Mr. Anurag Arora, Advocate for the appellants. Mr. S.S. Pattar, Sr. DAG, Haryana. ----- Adarsh Kumar Goel, J. The appellants challenge their conviction under Sections 302/34 IPC for which they have been sentenced to life imprisonment and to pay fine of Rs.1,000/- each, in default, to undergo further RI for six months. Case of the prosecution is that Raj Kumar deceased and his brother of Mangat Ram (PW-5) were going to Lakhi Karyana Store for purchasing some articles at 8.00 P.M. on 19.9.1994. When they reached near the house of Charan Dass, Uttam Singh accused father of the appellants (since acquitted) and the appellants emerged from Criminal Appeal No.201-DB of 1998 their street. They stated that they had asked Raj Kumar not to come to their street and they will eliminate him. Uttam Singh took Raj Kumar in his grip. Dashinder Singh, appellant No.1, took out a knife from his pocket and he gave a blow on the lower portion of his chest. Surinder Singh accused was also holding a knife and he gave a blow on the left side of his back. They also gave some more blows with their knives on the left arm of Raj Kumar. Mangat Ram tried to intervene but he was caught hold by Uttam Singh. PW-4 Anil Kumar who was standing nearby also witnessed the occurrence. Mangat Ram raised alarm which attracted many people. The accused ran away with their weapons. Raj Kumar was taken to the hospital by Mangat Ram and his cousin Surinder. ASI Sham Lal (PW-9) reached the hospital on receiving information and recorded statement of Mangat Ram, Ex.PB, which led to registration of the FIR under Sections 307/34 IPC. Raj Kumar injured was taken to PGI, Chandigarh, where he died on 24.9.1994 i.e. after five days. He remained unfit to make statement. After his death, offence was converted to Section 302 IPC. Mangat Ram made a supplementary statement that he came to know that Raj Kumar deceased had love affair with the daughter of Uttam Singh and her family members were aware about this fact. ASI Sham Lal went to the spot on 20.9.1994 and prepared rough site plan. Accused were arrested on 22.9.1994. On disclosure-statement of the accused, knives (Ex.P1 and Ex.P2) were recovered. 2 Criminal Appeal No.201-DB of 1998 During interrogation, Uttam Singh was declared innocent and though he was sought to be discharged, but he was also charged under Section 302/34 IPC. The prosecution examined nine witnesses. Main witnesses of the prosecution are PW-4 Anil Kumar and PW-5 Mangat Ram, who are the eyewitnesses. PW-7 Dr. K.S. Rana conducted the post-mortem examination and according to him cause of death was septicemia due to intra abdominal and chest injuries which were ante mortem and sufficient to cause death in the ordinary course of nature. Relevant part of the statement of Dr. K.S. Rana is as under:- “I found as follows:- INJURIES: 1. A stitched wound 2 cm long on antero lateral side of chest on left side 7 cm below nipple at 4 O’clock position. 2. 2.5 cm stitched wound in midline on back of trunk in lumber region. 3. 3 cm stitched wound in upper arm left in the middle on medial surface. 4. 2 cm stitched wound in left upper arm just (4 cm) below injury no.3. 5. 1.5 cm stitched wound just below axilla. 6. Stitched wound 2.5 cm left upper arm near shoulder. 7. Stitched wound 4 cm left side abdomen in front 1.2 cm away from midline. 8. Drain present in both ilac fossa. 9. 30 cm stitched wound present in front of abdomen from xiphisternum to the public symphysis. 3 Criminal Appeal No.201-DB of 1998 10. 2.5 cm stitched wound on right side of chest in antereo exillary line. 11. 2.5 stitched wound in right abdomen right side 10 cm away from midline in upper 1/3rd. 12. 2.5 cm stitched wound in right upper arm near elbow joint medial surface. Internal injuries:- Both plural cavities full of blood. Pleura is suptured under the injury no.1. Trachestomy wound present. Lower lobe an incised 1 ½ cm x ½ cm x 1 cm present on lateral anterior surface of left lower lobe of lung. Both lungs show pus mixed blood on cut section. Peritoneum cavity contains 500 CC of blood and foul smelling fluid present. Peritoneum stitched anteriorly in the midline. Stitched wound at the junction of gastroduodenum. Jejunum – A stitched wound on anterior surface of jejunum was present. Stitched wound at the terminal ileum and transverse colon. Stitched wound 2 in number on left kidney 2 cm each. In my opinion, the cause of death was septicaemia due to intra abdominal and chest injuries which are sufficient to cause death in ordinary course of nature and injuries were ante- mortem in nature. The probable time between injury and death was within five days and between death and post mortem examination was within 24 hours.” Anil Kumar (PW-4), who is an eyewitness, fully supported the prosecution version as to the role played by both the appellants. Nothing relevant could be elicited from him in cross-examination. PW- 5 Mangat Ram also fully supported the version given by him in the FIR. He is real brother of the deceased. 4 Criminal Appeal No.201-DB of 1998 In view of direct evidence, the case of the prosecution was held to be fully proved by the trial Court and the appellants were convicted and sentenced as above. We have heard learned counsel for the parties and perused the record. We find that version of the prosecution is fully proved. Mangat Ram, brother of the deceased immediately took the injured to the hospital where his statement was recorded at 11.15 P.M., on the basis of which, FIR was registered. There is no dispute about the identity. All the relevant details are found mentioned in the FIR. PW-5 Mangat Ram fully supported the said version in his testimony before the Court. There is no material discrepancy in his testimony. He has been corroborated by Anil Kumar (PW-4) and the medical evidence. In their statement under Section 313 Cr.P.C., the stand taken by the accused is that Raj Kumar tried to attack Dashinder Singh with his knife. Surinder Singh accused came to rescue him. Raj Kumar gave him a blow. Musaraf Ali took them to the hospital. Surinder Singh accused pleaded that he came to rescue his brother from Raj Kumar and Raj Kumar gave him a blow and in the scuffle, Raj Kumar also sustained some injuries. Thus, from the version of the accused also, the occurrence is proved. The version of the accused that they were assaulted by the injured/deceased Raj Kumar is clearly belied by the medical evidence. PW-7 Dr. K.S. Rana has found as many as twelve injuries on the person of the deceased. Nature of injuries on the accused is superfluous. Surinder Singh was having one wound below his left 5 Criminal Appeal No.201-DB of 1998 knee joint and Dashinder Singh was having only contusion on right forearm. In view of above, we are of the view that the appellants are liable to be convicted for having caused the death of Raj Kumar. It was next argued by learned counsel for the appellants that there was no intention to cause death and there was a gap of five days in the injuries and the death. Cause of death was septicemia. Intention to cause death or such bodily injury as is sufficient to cause death is a matter of inference from the given circumstances. Every person is supposed to intend the consequences of his act. Unless an injury is shown to have been caused accidentally, the offence will be murder if the injury is sufficient to cause death in the ordinary course of nature. Where it is not clear whether the injury was sufficient to cause death by itself, the question may arise whether Clause IIIrdly of Section 300 is attracted. In State of A.P. v. Rayavarapu Punnayya AIR 1977 SC 45, it was observed:- 16. In clause (3) of Section 300, instead of the words likely to cause death occurring in the corresponding clause (b) of Section 299, the words sufficient in the ordinary course of nature have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which 6 Criminal Appeal No.201-DB of 1998 determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word likely in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words bodily injury …sufficient in the ordinary course of nature to cause death mean that death will be the most probable result of the injury, having regard to the ordinary course of nature. The matter has also been considered inter-alia in State of Haryana v. Pala and others AIR 1996 SC 2962 (para 5) and Shanmugam alias Kulandaivelu v. State of Tamil Nadu AIR 2003 SC 209 (para 13). Each case depends on its own facts. Having regard to all the circumstances of the present case, we are of the view that offence will fall under Section 304 Part-II IPC. We, accordingly, alter the conviction of the appellants to Section 304-II IPC. We are of the view that ends of justice will be met if the appellants are sentenced to undergo RI for seven years and are required to pay compensation of Rs.1,00,000/- each to the complainant (PW-5) or his heirs. The appellants will pay the compensation within six months either directly to PW-5 Mangat Ram or deposit the same in the trial Court, which will be disbursed to PW-5 Mangat Ram. In default, the appellants will undergo further RI for two years each. 7 Criminal Appeal No.201-DB of 1998 The appeal is disposed of accordingly. ( ADARSH KUMAR GOEL ) JUDGE January 15, 2008 ( S. D. ANAND ) ashwani JUDGE 8