IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-7106 of 2009 Date of decision: 27th May, 2009 Rajbir … Petitioner Versus State of Haryana … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. R.S. Rai, Senior Advocate with Mr. Gautam Dutt, Advocate for the petitioner. Mr. S.S. Mor, Sr. Deputy Advocate General, Haryana for the State. Mr. M.S. Joshi, Advocate for the complainant. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present petition has been filed under Section 439 Cr.P.C. seeking grant of regular bail to the petitioner in case FIR No. 123 dated 14.06.2008 registered at Police Station Sadar Tohana, District Fatehabad under Sections 304, 323, 147, 149 IPC. The case set out against the petitioner in the FIR is that he along with Anil son of Ramdhari, Ravinder son of Ramdhari, Satbir son of Chhala Ram, wife and sister of Satbir gave beating to the husband of the complainant by way of kicks and fist blows. In the present case, occurrence had taken place on 13th June, 2008. On the same day, at the place of occurrence, Lilu son of the complainant died at 9.30 p.m. Following injuries have been found on the person of Lilu: Criminal Misc. No. M-7106 of 2009 “1. Two abrasions size 1 cm x = cm size at front of the chest on left side just below the medial 1/3rd of the clavicle. On dissection, small blood underneath the abrasion (one word not legible) colen present. 2. Abrasion 1 cm x = cm size at ant aspect of the neck 4 cm above the supiest notch. 3. All other organs were healthy. Viscera had been sent to the Chemical Examiner. As regards the cause of death, the doctor wrote as follows: The cause of death in this case in our opinion will be given after the result of report from Chemical Examination and histopathological report from MC Rohtak. The injuries are ante mortem in nature. The time between the death and he post mortem examination was within 24 hours.” A perusal of these injuries will show that the size of injuries is 1 cm and they are abrasions. The opinion regarding cause of death was deferred by the doctor, who conducted autopsy, to await report from Chemical Examiner and Pathologist. Dr. M.L. Gupta appeared as PW-2 and furnished his affidavit (Annexure P-3). According to this affidavit, cause of death was reserved till the receipt of report from Medical College, Rohtak regarding histopathological examination and from Chemical Examiner. Report of Pathologist is annexed as Annexure P-4 with the petition. Pathologist opined as under: “1. Heart: Representative micro sections examined from various portions of heart show partial autolysis. However micro sections examined from left ventricular wall show patchy areas of leprosies. Both the coronaries show mild atheroseterotic changes. Chronic Ischemic heart disease with coronary Artery Disease.” 2 Criminal Misc. No. M-7106 of 2009 Report of Chemical Examiner suggested that alcohol was consumed by the deceased. The result of Chemical Examiner reads as under: “Contents of the exhibit No.1, 2 & 4 gave positive test for Ethyl alcohol which was estimated as 46.0 mg% in exhibit No.4.” After the reports from the Pathologist and Chemical Examiner were received, a Board of Doctors consisting of Dr.M.L. Gupta PW-2 and Dr.Hanuman Singh opined as under: “The possibility of Acute Cardiac arrest due to fright cannot be ruled out.” The testimony of the Dr. M.L. Gupta has been placed on record as Annexure P-2. He stated as under: “It is correct that injuries No.1 and 2 are superficial and can be caused by fall against hard object or by impact of a blunt weapon. It is correct that dimension of these injuries is very small in size and could be the result of a due to nail scratch. Injuries No.1 and 2 were simple in nature and were not responsible for the death of the deceased. As per report from the PGIMS, Rohtak the deceased Leelu Ram was suffering from chronic ischemic heart disease with coronary artery disease. The opinion in Ex.P6 was a general opinion and not specifically for this case. Not only injuries could have been the reason for the fright but there can be other reasons of fright also. Ethyl alcohol cannot give rise to increase in blood pressure. Regarding this an expert opinion of Physician can be taken. In high concentration and in excessive quantity of ethyl alcohol can adversely effect the heart.” Thereafter, the doctor has further admitted in cross- examination as under: “As per report from Pathology Department, PGIMS, Rohtak the person was having chronic Ischemic heart disease 3 Criminal Misc. No. M-7106 of 2009 with coronary artery disease; the possibility of natural death (acute cardiac arrest) cannot be ruled out.” Counsel for the petitioner has stated that in the present case, cause of death is cardiac arrest. No poison has been found. The presence of alcohol shows that the fright cannot be attributed to the injuries, which are simple and superficial in nature and causing of injuries by the accused, who were empty handed, cannot be the direct cause of death and therefore, petitioner cannot be held liable for culpable homicide amounting to murder. Counsel for the State, Mr.S.S. Mor, Sr. DAG Haryana and Mr.S.S. Joshi appearing for the complainant have stated that seven witnesses have been examined and next date fixed before the trial Court is 1st July, 2009. Counsel for the State has further stated that even though offence may not fall under Section 302 IPC, for the lesser offence, punishment can be awarded and therefore, till now, incarceration of the petitioner is justifiable. Trial is in progress. The trial Court is directed to conclude the trial within four months after the receipt of certified copy of this order. With these observations, present petition is disposed off. [KANWALJIT SINGH AHLUWALIA] JUDGE May 27, 2009 rps 4