33 Crl A No 876 SB of2000 1 IN THE HlGIi COURT OF PUNJAB c0HARYANA AT CHANDIGARH Crl A No 876 SB of2000 6081M1 Dateofdecision 2652Oll MajorSingh 4ppellant m r VSe 0 Stateof Punjab 0 eeeeRespondent C5 I Coraml Honble Mr Justice KC Puri Z PresentlSh NavjinderSinghDandiwa Advocate l for the appellant I SinghRai Assistant Advocate General 1 Punjab Z KC Puri Je 00 4 r 3 This is an appealdirected by Major Singh accuset Z ll againstthejudgment and order dated2172000 passedby AdditionalSessionsJudgeMoga vide which the has been convicted under Sections 304 6II9and 456 IPC and sentenced to undergo imprisonment and fine as detailed underl 304IPC Sentencedto undergoRI for 4 yearsand to pay a tlneof 5001nd in default ofpayinent ofline to undergofilrtherRI for l montll 456IPC Sentenced to undergoRl for l year and to pay a fineof 2001 and in default ofpayment offine SURESH KUMAR 2014.11.26 16: 55 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 1 34 P Crl A N 876 SB of2000 2 r to undergofurtherRl for l month Boththe sentences were orderedto run concurrently Case of the prosecutionlIl brief is that Bohar Singh made statement that he was workingas a Siri with Gian Singh slo Gurdev SinghOn l101995 at 830 PM He alongwith his 1 wife Binder Kaur and mother SurjitKaur was presentin his house r hisathers brotherMajorSinghaccused came to his house He was 0 0 underthe intluence of liquorand startedabusingand was sayingthat I C5 hewill teachtheln a lesson for lockingthe handpump On hearingthe noise SurjitSingh Seeta Tulsa SinghHarijancanoe to Z hishouse and tried to paci8MajorSinghin the outer street After some time MajorSinghcame backalongwithdangand againstarted The wife Binder Kaur also came in the street I MajorSinghattacked him with the dang Wife of the complainant Z came forwardto separatethem The dangstruck on her head Major m Singhgave another blow of dangnear her rightear She fell down m7 Z Accusedgave anotherdangblow on her back side of waist On alarm C MajorSinghescaped from the spotalongwith dangThe indent was seenbythe and othersin the lightofbulb installedin the houseof SurjitSingh The motive ofthe occurrence was statedto be thatchildren of MajorSinghand that of used to have a fightbetween them and the had locked his hand puinP forwhich reason MajorSinghhad a grouseand had inflicted injuries on thepersonofBinder Kaur Earlier she was beingtreatedat home but thereafter on 7 0 1995 her condition deteriorated The alongwithhis fatheralaw Darshan Singhadmitted SURESH KUMAR 2014.11.26 16: 55 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 35 0 Il Crl A No 876 SB of2000 8 r Binder Kaur in Civil HospitalMoga Due to serious condition of BinderKaur she was referred to Medical CollegeFaridkot where shedied On the basis of the statement of complainantDDR No3O dated7 01 995 was recorded However after the death of Binder 1 Kaur in the hospitalFIR under Section 304 IPC was Accusedwas arrestedand on disclosurestatelnent inadeby him dang 0 0 wasrecovered from the roof of the kotha of electric motor of Atma I Singhin the fields C5 I After goingthroughthe record chargeunder Section 456 Z IPC for lurklnghouse trespass 1d under Section 304 lPC for culpablehomicide not amounting to inurder was framed C the accused to which he pleaded not guiltyand claiined trial I Prosecutionin order to bringhome guiltof the accused Z examinedPWl Bohar Singh PV2 SurjitKaur mother CO of Bohai Singh Pl3 HC BaljinderSinghPW4 Dr 7 VJS Dhillon PV5 Dr Prem Singh PH6 JagmohanSingh Z PW7 Dr Harjinder Pal Sandhu PH8 Baldev SinghASI andclosed the evidence After closure of the evidence all the evidence was put to the accusedto which he denied He false implication and statedthat Binder Kaur was ill and she died on that account Accused was called upon to Iead defence evidencebut he did not lead any evidencein defence Learnedtrial Court afterappraisal ofthe evidenceon the Ole foundthe accused guiltyunder Section 304 6119and 456 IPC and SURESH KUMAR 2014.11.26 16: 55 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 36 0 CrI A No 876 SB of2000 T sentenced him to undergo and flne as detailed above Feelingdissatisfied with the above said j udgnlentthe haspreferred the presentappeal Learnedcounsel for the appellant has submittedthat thereis hugedelayof 9 daysin lodgingthe FlR which relnainsunexplained 1 It is submittedthat in fact no occurrence had takenplaceBinder Kaur was from Jaundice and she had died natural death on 0 0 account ofthat disease I Leamedcounsel for the appellanthas submitted that the C5 I medicalevidence totallybelied the death due to injuriesPW Dr Z Prem Singhwho is the star witness of has statedthat cause of death in his opinionwas due to hapaticand neurogenic failurewhich was sufficient to cause deathin an ordinarycourse of I natureThis witness has 8lrther stated that there was no external Z injury visible on the deadbodyIn the cross examination this witness f las statedthat death in this case was due to Jaundice Theinjuriesmentionedin the MLR are not sufficient to cause death Z tl 111the ordinaryCOUrse of nature PW4 Dr VlS Dhillon Medical Oftlcer Civil HospitalMoga has statedthat Jaundice was highly positive when he examinedBinder Kaur on 710 1995 at 3A5 PM He hasgivendetail ofinjuries 1 Allegedhit on skull No visible extemal injuryXerayand surgicalopinionsought 2 Healed abrasionon and behindrightear 3 Allegedhit on theback This witness in the cross examinatiOn has Iy e SURESH KUMAR 2014.11.26 16: 55 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 37 Crl A No 876 SB of2000 Y statedthat possibilityof deathdue to Jaundice cannot be ruled out This witness has further stated in the cross exainination that of the injurieshavingbeen received 1015 dayspriorto examination also cannot be ruled out It is subInittedthat so far as No 1 and 3 are concerned there is no external lnark Of 1 injuryInjuryNo 2 healed abrasion on and behind rightear could be C a result of a fail So in the presenceof categoric opinionof both the 0 0 doctorsexaminedbythe itselfthat deathin this case is a I 0 resultof Jaundice the leamedtrial Court has cominitted a grave error I in convicting the accusedunder Section304 6II9IPC Z It is further contendedthat the trial Court in No 16of the judgment held that Jaundice cannot be a result of injuries but injuriesmay have effect of the symptoms lt 1S I t submittedthat flndingof the trial Court to the effect that since Z had the knowledgeof Typhoidand Jaundice and as such Cn assaultby the appellantcould have caused death and on that W2 Z accountoffence under Section3046IIIIPC is madeout Qm It is submittedthat the categoric opinionof the doctor that undice is the cause ofdeath and allegedinjuriesin the MLR are not sufficientto cause death in the ordinary course of nature clearly showsthat the above said conclusion convictingaccused under Section304 IIIIPC is basedupon wrong facts Learnedcounsel for the appellant has further submittedthat HonbleApex Court in authorityreported as Pirthi vse State of 1994 Crl LJ 2187 has held that accused cannot be convictedOnder Section 304 Part II IPC where the injuryto the SURESH KUMAR 2014.11.26 16: 55 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 38 1 Crl A No 876 SB of2000 6 Pr testicleswas not the direct cause of death In that case the accused was convictedunder section323 IPC lt is filrther submitted that in authorityreportedas B1Ve Kavatakar and another vse State of Karnataka 1994 Supp Supreme Court Cases 304 it has been held that where the deathis to secondary to injuriescaused five days C agoandperitonltis offence under Section304134IPC is not madeout 0 0 andat the most could be under Section 326134IPC I C Even if whole of theallegations are taken as a gospeltruth I thatcase also the appellant has already incarnationfor a ln Z period of9 monthsout ofsubstantive sentence of4 years LearnedStatecounselhassupported thejudgment ofthe trial Court I I have givenmy thoughtfulconsideration to the rival Z submissions made bycounsel for both the sides and have also gone m through the record ofthe case mmo Z The first and foremost for decision of the present is whether the of offence under Section 304 6I IPC are made out on the facts of the presentcase The lnedical evidencein this regardis being PW4 Dr VS Dhillon was the person who examined deceased B inder Kaur on 710995 at 3A5 Plvl As per this witness Jaundice was highly in respectof Binder Kaur This witnesshasgivendetail of 3 as mentionedabove Injuries No 1 and 3 are allegedhit on 1 theskull and back of Binder Kaur and there was no inJury foundby him In respectof injuryNo this doctor found 1 SURESH KUMAR 2014.11.26 16: 55 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 39 r 41 Crl A No 876 SB of2000 e healedabrasion on and behindrightear He has statedthat said injury could be a result of fall This witness has statedthat he cannot say whetherthese injuries can cause deathas there was no externalmark of injuries So if the evidence of this witness is taken as a whole thiswitnessdoesnot prove the fact thatinjuries are the cause of death e in the presentcase This witness has Rlrther statedthat possibility of C deathdue to Jaundice cannot l5eruled out in this case 0 0 PW5 Dr Prem singhwho conducted the post morteln on I C5 thedead bodyof Binder Kaur has statedthat no externalmark Of I injury was presentOn of skull haemorrhagic Spotswere Z in the brain On 18 1996 on receiptof result of viscera examination from Departmentsaid could r not reachto any conclusion On the basis of entries in the bed head I ticketof the deceasedfrom Medical CollegeFaridkot the cause of Z death in his opinionwas due to hapaticand failure which 00 was sufficientto cause death in an ordinarycourseof nature In the 7 Z crossexamionationthis witnesshas statedin clear terins that deathin tl thiscase was due to Jaundice He has further madecategoricopinion thatinjuriesmentioned ln MLR are not sufflcient to cause death in course of nature There is no other medical evidence on the file Even in the presenceof categoric opinionof both the by the that deathin the presentcase is due to and cannot be caused due to injuriesthe trial Court has theappellant under Section 304 IPC The observationmade bythe trial Court is that no doubt Jaundice cannot be caused by but it can certainlyhave the effect of the SURESH KUMAR 2014.11.26 16: 55 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 40 9 Crl A No 876 SB of2000 Y It was 8lrther observedby the trial Court that since in the statementunder Section 313 CrP accused admitted the fact that BinderKaur was suffering from and as such he was having theknowledge of the illness of Binder Kaur and byhis act of inflictingDangblow the appellanthas the knowledge that it was likelyto cause deathor bodilyinjurywhich can cause death n No 15 of the judgmentthe trial Coult after 0 0 the factsofthe Modis as well as Medical I TextbookbyDavidsons reached to the conclusion that internalinjury C5 I on the head could not cause Jaundice The trial Court has itself Z observedin the said that various diseases of liver and e2 biliarysystem containingthe mechanisms producingJaundice variouscauses ofJaundice and different forms ofJaundice have been I dealt with There are different types of Jaundice ie Haemolytic Z Jaundice Jaundice Cholestatic Jaundice and OO and thesetypesof 7 Jaundicecould not be caused due to head injuryThe trial Court lost Z sightof the fact that has to prove its case beyond reasonable doubt The is requiredto prove that act of accusedin causinginjuriesresultedin the deathof the victiin From thereadingof statement of PW4 Dr VS Dhillon and PW Dr PremSlnghit is crystalclear thatdeathin this case is due to Jaundice andinjuriesfound in the N7 are not the cause ofdeath TheMonble ApexCourtin Pirths case ipral has held that wherethereis a quarrelbetweenthe accused and deceasedand iccused kicked the deceasedon his testicles no medical treatment e SURESH KUMAR 2014.11.26 16: 55 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 41 L Il Crl A No 876 SB of2000 1P wasgivento the deceasedfor two daysthe medical opinionthat deathwas due to Toximia becauseof gangrenewhich could be result of injuryto testicles in that case thereis not direct cause of deathand accusedcannot be convicted under Section 304 6IIIIPC and the accusedwas sentencedunder Section 323 IPC So from the reading 1 of the factsof that case it is clear that although the deathin that case CL wascausedby the injuriesbut therewas no direct cause ofdeath his 0 0 deathwas due to Toximia and gangreneThe facts of thepresentcase I C5 are betterthan that case as thereis no externalmark of injuryas per I thedoctors and death in the presentcaseis due to Jaundice and not Z dueto injurieS m In BeN Kavatakars case 6Supralthe injuries were caused C bylethal weapons death was to secondary I to injuriescaused 5 daysago and it was held that offence under Z Section302134IPC is not madeout and offence under Section326134 CQ is madeout 7 Z So in these circumstances the findingof the trial Court C1 the accusedunder Section 304 6I IPC is not sustainable in theeyes of law and the same standsset aside The accused StandS under Section304 II9IPC So far as the delayin lodgingthe FlR is concerned that cannotbe said to be fatal The accused is the near relative of the The trial Court has observedthat motive is provedThe accused hasnot provedany motive for false implicationSo it seems thatthere was some disputebetweenthe partiesand occurrence has takenplaceThe injury on the ear was visiblv found in the MLR SURESH KUMAR 2014.11.26 16: 55 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 42 V Crl A N 876 SB of2000 Althoughno external in respectof injuryon the head and loackside There is no opinionof the doctor that any of the injury 1S grievousSo in these circumstancesthe accusedstandsconvicted under Section 323 IPC andconviction under Section456 IPC standsmaintained m As per the conviction slip the appellanthas undergone Q incarnation for a periodof 9 months This Court in judginentdated 0 0 2212010 titled as Malkiat Singhand others VSe Stateof PunjabItl I Crl A No 485 SB of 2001 has held that the endsofjusticewould t5 I bemet in case the sentence under Section 323 IPC is reduced to the Z periodalreadyundergone So keepingin view the fact that occurrence relatesto the C year1995 and appellant has already trial for I C more than15 years and has undergone incarnation for a periodof 9 Z months the ends ofjusticewould be met in case his sentence under Cll Sections323 and 456 IPC is reducedto theperiodalreadyundergone 7 orderaccordingly However the sentence of fle under Section 456 Z I lPC standsmaintained The appealstandsdisposed of A copy of the j udgrnentbe sent to the trial Court for compliance May26142011 Judge chugh 1 t0 1e Il 61 SURESH KUMAR 2014.11.26 16: 55 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document