IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.493 of 2008. Judgment reserved on: 27.5.2011. Decided on: June 24th, 2011. _______________________________________________________ Bhagat Ram. ……..Appellant. Versus State of Himachal Pradesh. …..Respondent. Coram Hon’ble Mr. Justice R.B. Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Anup Chitkara & Mr. Chaman Negi, Advocates. For the respondent : Mr. R.K.Sharma, Sr. Addl. Advocate General. _______________________________________________________ SURINDER SINGH,J: The appellant, hereinafter referred to as ‘the accused’ has challenged the judgment of conviction for the offence punishable under Section 307 of the Indian Penal Code, passed by the learned Additional Sessions Judge (Fast Track Court), Shimla, Camp at Rohru, in Sessions Trial No.12-R/7 of 08/07, on 5.8.2008, whereby he has been sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Whether reporters of the Local papers are allowed to see the judgment? - 2 - `25,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. The benefit of Section 428 of the Code of Criminal Procedure was also granted. 2. Shorn of unnecessary details, the facts germane to the present appeal can be stated thus. PW2 Kesar Singh and PW1 Dev Raj are nomads of Kinnaur district reeling their herd of sheep/goats for grazing at various places. During winter season, they had been going to the areas of district Sirmaur and on-set of the summer season, used to return to Kinnaur. (ii) On 28th of April, 2006, both of them while returning to district Kinnaur alongwith herd of sheep, reached in the area of Jubbal. On the aforesaid day, they camped at a place known as Khara Pathar alongwith four other companions. They could not move from that place as about dozen of their sheep and goats went missing. (iii) On the previous day to the day of incident, Kesar Singh (PW1) and Dev Raj (PW2) were searching for their missing goats - 3 - and sheep, in that pursuit, in the morning at about 7.15 a.m., they reached in the courtyard of accused Bhagat Ram, located near Potato Farm. Kesar Singh enquired from the accused whether he had seen his goats/ sheep which had gone astray. The accused, who was having a Kassi, an instrument used for digging the earth retaliated, whether he was a thief and dealt a blow of Kassi on the back of Kesar Singh. The wound swelled up, he suffered pain in his back. Thus, both of them went to the Police Station and lodged a report Ext.PW4/A. (iv) PW2 Kesar Singh was got medically examined by the Police from PW6 Dr. (Mrs.) Usha Daroch, Medical Officer, Civil Hospital, Jubbal. She found a contusion on the left side of the back of chest of the size 4 x 2 cms. irregular in shape and reddish in colour. Doctor found the crepitation present. She suspected fracture of underlying bone of the left side chest, thus, advised X-ray and referred him to the Civil Hospital, Rohru for - 4 - further management, consultation and opinion of the surgical specialist. (v) The injured was got x-rayed by PW7 Dr. O.P. Ram Dev, Radiologist and under his supervision the x-ray was conducted. The x- ray films are Exts.PW7/B and C respectively. He found the fracture of 8th and 9th ribs with left CP angle obliterated with hydro pneumothorax and gave his report Ext.PW7/D. (vi) PW5 Dr. Gopal Singh, Medical Officer (Surgeon), Civil Hospital, Rohru, on the request of PW6 Dr. (Mrs.) Usha Daroch, gave his opinion on the report of the Radiologist. He opined that there was fracture of 8th and 9th ribs on the left side with pneumothorax. The injury was opined to be dangerous to life. His report is Ext.PW5/A, as such, formal FIR Ext.PW8/A was registered and during investigation, police recovered the weapon of offence (Kassi) aforesaid, which was sealed. Police also prepared site plan of the place of alleged incident. - 5 - 3. After completing the investigation, police finalized the challan against the accused for the offences aforesaid, as such, it was presented in the Court for his trial. The accused was accordingly charge-sheeted. He pleaded not guilty and claimed trial. 4. To prove the case, prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. While denying the circumstances found attendant upon him, he took up the stand that the complainant and his friend branded him as a thief in the presence of Rajinder Singh and his wife PW3 Kamla Devi and forced their entry into his house and godown to conduct the search of the sheep and goats, but they did not find any of them there. Both were badly drunk and were not in a position to walk, as such, complainant might have fallen down and sustained the injury, however, he alleged his false implication in the present case. When called upon to enter into his defence, he did not lead any evidence in defence. - 6 - 5. At the end of trial, the defence taken by the accused was disbelieved and the learned trial Court convicted and sentenced the accused as aforesaid, hence the present appeal by the appellant before this Court. 6. Shri Anup Chitkara, learned counsel for the appellant vehemently argued that it is proved on record that the complainant and his friend were badly drunk and might have sustained injury by fall and the accused was falsely implicated in this case because of altercation aforesaid, which ensued between him and the complainant. He further argued that even if the story of the prosecution is admitted to be true, it is not a case of attempted murder as the doctor had failed to point out that the injury in question was imminently dangerous to the life of the complainant. He also ventilated that there was no intention to cause the death of Kesar Singh aforesaid. The altercation took place in a sudden spurt and the opinion of the Dr. Gopal Singh is that the injury in question is dangerous to life because of pneumothorax, which he opined without explaining in which - 7 - category such type of injury falls, therefore, the impugned judgment of conviction and sentence is not sustainable. 7. Shri R.K. Sharma, learned Senior Additional Advocate General has supported the impugned judgment and further argued that the doctors have clearly established that the injury in question could be due to the blow given by Kassi which is the weapon of offence, alleged to have been recovered from the accused, to which the complainant had also identified during the trial of the case. He also ventilated that there is no reason to disbelieve the version of the injured, which stands corroborated by his companion PW1 Dev Raj. 8. To appreciate the rival contentions of the parties, we have carefully gone through the evidence on record. 9. PW2 Kesar Singh injured corroborated the prosecution case in its totality. He stated that while staying at Khara Pathar, about 10-12 sheep and goats went astray. He alongwith his companion PW1 Dev Raj while searching for them reached - 8 - near the house of accused and enquired from him if he had seen them anywhere. He further stated that the accused remarked as to why he was enquiring about the sheep etc. from him as to whether he was a thief. Thereafter, the accused gave a blow of Kassi ( from its blunt side) on the back of his body fracturing two ribs. He also stated that the lung got punctured by the said blow. In the meantime, PW3 Kamla Devi also came there. She tied a shawl around the waist of the injured. Then he alongwith PW1 Dev Raj walked upto Potato Farm, from where they went to the hospital, but he was directed to go to the Police Station to lodge report. He went to Police Station and reported the matter. He also identified his signatures on the report Ext.PW4/A. He stated about having been x- rayed for his injury at Rohru hospital. He remained hospitalized there for medical treatment till 15.5.2006, his discharge. He identified Kassi Ext.P1 during the trial of the case in the Court. PW1 Dev Raj afforded his corroboration. PW2 Kesar Singh denied in cross-examination that he alongwith - 9 - Dev Raj both were drunk and also that they had searched the house and godown of the accused. It is also denied by him that they called the accused as a thief, searched his house and godown, abused and pounced upon him, which was witnessed by PW3 Kamla Devi. They also denied that they were drunk and PW2 sustained injury by a fall. 10. PW3 Kamla Devi admitted the presence of PWs 1 and 2 aforesaid at that place, who were enquiring about the missing goats/ sheep. She did not support the case of the prosecution qua assault, as such, she was declared hostile. She stood confronted with her statement Ext.PW3/A recorded under Section 161 of the Code of Criminal Procedure. She did not supply any reason as to why her version was wrongly recorded by the police. She admitted that she is Harijan and a neighbour of accused, who is from a upper caste and have been visiting the house of the accused at many occasions. She expressed her ignorance if the injured and his companion were under the influence of alcohol and also that they had - 10 - searched the godown and the house of the accused. 11. PW6 Dr. (Mrs.) Usha Daroch clinically examined the injured Kesar Singh on the same day and noticed injury on the 1/3 lower of the back side of the chest, which was 4 x 2 cms, reddish in colour. She felt crepitation present or palpation and auscultation and suspected fracture of the underlying bone, hence the injury was x-rayed under the supervision of PW7 Dr. O.P. Ram Dev, Radiologist and found the fracture of ribs. 12. On the critical examination of the aforesaid evidence, it is proved that the injury in question was inflicted by the accused with Kassi Ext.P1 from its blunt side. There is no reason to disbelieve the injured PW2 Kesar Singh and PW1 Dev Raj another eye witness. The presence of both of them has been admitted by the accused and PW3 Kamla Devi. Accused could not probablise his defence that the injured and PW1 aforesaid were drunk. Doctors also did not testify that the injury in question could be caused because of fall in absence of the associated injury, rather, the - 11 - doctor opined that the injury in question could be caused by Kassi Ext.P1 to which the injured had also identified during the trial of the case. The MLC of injured does not reveal that the doctor had observed any alcoholic smell emanating from the injured at the time of examination. The accused could also not probablise that PW2 and his companion had conducted the search of his house and godown. Both these persons were novice to the place, they could not have dared to search the house of the accused without his permission, however, it is clear from the statement of injured that on having been asked about his missing animals, the accused retaliated whether he was a thief and gave a single blow from the blunt side of Kassi Ext.P1 on the back lower side of Kesar Singh, so it is proved beyond reasonable doubt that it was an accused and accused alone, who caused an injury in question to Kesar Singh with the help of Kassi Ext.P1. Having been held so the next question before us is as to what offence the accused has committed? - 12 - 13. PW6 Dr. (Mrs.) Usha Daroch proved injury in question on the person of PW2 Kesar Singh. PW7 Dr. O.P. Ram Dev, Radiologist conducted the x-ray and noticed the fracture of 8th and 9th ribs of the left side with left CP angle obliterated with hydro pneumothorax. PW6 Dr. Usha Daroch requested PW5 Dr. Gopal Singh, Medical Officer (Surgeon) Civil Hospital, Rohru to give his expert opinion. On having gone through the Medico Legal Certificate issued by Dr. Usha Daroch and also the report of the Radiologist, she gave his opinion in writing Ext.PW5/A that there was fracture of 8th and 9th ribs on the left side with pneumothorax and the injury was dangerous to life. This injury was related to the covering of the lungs. He could not say as to whether lungs of Kesar Singh were affected or not which dislodged the statement of injured that by Kassi blow his lung got punctured. Doctor further opined that the injured must have collapsed due to this injury if he would not have been treated timely. According to him, the injury was on the vital part of the body. He denied in cross-examination - 13 - that no important structure or extensive area was involved. 14. In fact, each lung is covered by pleura, a serious membrane arranged as a closed invaginated sac. The visceral or pulmonary pleura adheres closely to the pulmonary surface and its interlobar fissures. The right and left pleural sacs form separate compartments and touch only behind the upper half of the sternal body. Any breach of the chest wall and parietal pleura or visceral pleura leads to the accumulation of air within the pleural cavity (pneumothorax). Fluid (hydrothorax), blood (haemothorax) and lymph (chylothorax) can also accumulate in this space. As per “Davidson’s Principles and Practice of Medicine” edited by Nicki R. Colledge, Brian R. Walker and Stuart H. Ralston, Churchill Livingstone Elsevier, 21st Edition at page-991 refers that Pneumothoraces occurs spontaneously or following trauma, for example rib fractures, penetrating injuries from sharp instruments or iatrogenic injury. - 14 - 15. The instant case is a case of “pneumothorax”, which means there was a accumulation of air on account of the breach of the chest wall and parietal pleura or visceral pleura. PW5 Dr. Gopal Singh an Expert, as already stated above, could not authentically say if the lung of Kesar Singh was affected or not and that it was not an injury which was imminently dangerous to the life. 16. In Madan Lal v. State of H.P. [1990 Cr.L.J. 310] Hon’ble Single Judge Mr. Justice Bhawani Singh of this Court, as he then was, was confronted almost with a similar proposition. He relied upon the authoritative work of celebrated authors on Medical Jurisprudence and held that ‘danger to life’ from an injury should be ‘imminently dangerous’ one. Such injuries are of serious nature like haemorrhage, shock or injuries implicating important structure or organs causing immediate danger. For that the Hon’ble Judge relied upon the Medical authorities. - 15 - 17. Taylor in his book ‘Principles and practice of Medical Jurisprudence’, 11th Edition, at page 230 can be referred which state as follows:- “The meaning of the words ‘dangerous to Life’ is left entirely to the professional knowledge of a witness. It is not sufficient that he should make a simple assertion that the wound was dangerous to life; he must be prepared to state to the Court satisfactory reasons for this opinion; and these reasons may be rigorously inquired into by counsel for the defence. Danger to life primarily depends upon haemorrhage, shock or damage to a vital organ; and secondly, on the chance of complications such as infection leading to septicemia, payaemia, tetanus or gas gangrene and of infection of particular parts or tissues- pneumonia, pleurisy, empyema, pericaditis, meningitis or peritonis: or more remotely to the effects of scaring, causing stricture (of the urethra, oesophagus, gut, etc.) paralysis, urinary infection, etc. As a general principle, the Court is likely to consider as dangerous to life in a legal sense only those words in which the danger is imminent. The law appears to contemplate the more immediate rather than the more remote possible danger.” 18. Modi in his book ‘Medical Jurisprudence and Toxicology, 13th Edition, at page 238, states as follows:- - 16 - “Danger to life should be imminent before the injuries are designated ‘dangerous to life’ such injuries are extensive, and implicate important structures to organs, so that they may prove fatal in the absence of surgical aid. For instance, a compound fracture of the skull, a wound of a large artery, or rupture of some internal organ, such as the spleen, should be considered dangerous to life. But the injuries which prove fatal remotely by intercurrent diseases, such as tetanus, erysipelas, etc. should not be considered as dangerous.” 19. The opinion of these celebrated authors clearly reveals that danger to life from an injury should be imminent to constitute it as a dangerous one. Such injuries are of serious nature like haemorrhage, shock or injuries implicating important structure or organs causing imminent danger. 20. Therefore, it can be said that the injury caused to the injured in the case in hand is not imminently dangerous nor caused on the vital part of the body. At best, it can be said that there could be some remote chance of its becoming ‘dangerous to life’ or becoming sufficient, in ordinary course of nature, to cause the death of the complainant, in case medical aid was not - 17 - rendered. Intention or knowledge are alternative ingredients of this offence under Section 307 of the Indian Penal Code. Now, from the evidence discussed above as well as to be discussed hereinafter, it is not possible to conclude that the accused intended to cause the death or intended to inflict injury which was sufficient in the ordinary course of nature to cause death or that he knew that his act was so imminently dangerous that it must in all this probability cause the death or cause an injury as is likely to cause death. The burden to prove all this is upon the prosecution, and in our opinion, it has failed to discharge the same to the extent to record a finding of commission of an offence under Section 307 of the Indian Penal Code. 21. Further the intention to cause death by the accused is also lacking as he did not use point- sharp edged of Kassi, rather used the reverse and blunt side thereof. There was neither any enmity between the accused and the victim nor premeditation as the accused is proved to have retaliated in a sudden flash of anger. He also - 18 - chose to hit the back of Kesar Singh instead of selecting the head or any other vital organ in the front, though blow had fractured the ribs, but did not penetrate the lungs. It was a single blow. He could be attributed the knowledge that by inflicting the above injury, he was likely to cause death and did not have intention of causing death. If the victim had died, he would have been guilty of culpable homicide nor amounting to murder. Therefore, present case falls fairly and squarely under Section 308 of the Indian Penal Code, for attempting to commit culpable homicide and not under 307 of the Indian Penal Code for attempt to murder. Conclusion. 22. In view of the above, in our opinion, the offence under Section 307 of the Indian Penal Code against the accused is not made out, however, we hold him guilty and accordingly convert his conviction for an offence under Section 308 of the Indian Penal Code. 23. So far as the sentence is concerned, Section 308 of the Indian Penal Code provides - 19 - imprisonment for either description of a term, which may be seven years or with fine or with both, if the hurt is caused. 24. In the instant case, PW2 Kesar Singh remained hospitalized for the management and treatment of his injury for a period of about 18 days. There was a fracture of 8th and 9th ribs and the lung was not pierced through it, which only caused “pneumothorax” of the lung. Therefore, without disturbing the fine, we hereby sentence the accused to undergo rigorous imprisonment for a period of 3 (three) years. Since, the accused was arrested on 3rd May, 2006 in this case and was released on bail on 18th of May, 2006, his period of detention during the trial was only 16 days and after his conviction and sentence passed on 5th August, 2008, he is in custody serving out sentence, he has been in custody for a period of about two years and eleven months, therefore, he shall be entitled for the benefit of Section 428 of the Code of Criminal Procedure. 25. The fine, if deposited, an amount of `20,000/- shall be paid to PW2 Kesar Singh as compensation. - 20 - 26. The appeal is partly allowed to the above extent. 27. The Registry of this Court is directed to issue amended warrants in conformity with this judgment to the Superintendent, Jail concerned. 28. Send down the records. ( R.B. Misra ), Judge. (Surinder Singh), Judge. June 24th, 2011. (Pds)