Sumer Chand vs State of Haryana etc.

V.K. Bali, J.

Appellant Sumer Chand, who was tried with his coaccused Raju, Sham Lal, John Masih and Mohan Lal, has been held guilty of intentionally causing death of Amit Kumar. The coaccused of the appellant, Raju, however, died during the course of trial. The other coaccused of the appellant were, however, held guilty under Sections 323/34 IPC and were sentenced to undergo rigorous imprisonment for nine months. Rajesh, who, as per prosecution version, also participated in the crime, being a juvenile, as per information given to us by learned counsel for the parties, is facing trial before a Juvenile Court. The present appeal has been filed only by Sumer Chand against the order of conviction and sentence recorded by the learned Addl. Sessions Judge, Yamuna Nagar dated January 30, 1995, whereby the appellant has been sentenced to undergo life imprisonment and to pay a fine of Rs. 1,000/, or in default of payment of fine, to further undergo RI for one year, under Section 302 IPC.

Amit Kumar is stated to have received injuries at the hands of appellant and his coaccused on May 14, 1990 at 2 PM. The FIR with regard to incident came to be recorded at 4.20 P.M. on the same day on the statement made by PW3 Anoop Kumar which statement was recorded by ASI Narinder Kumar, PW PW13. Initially, the FIR was registered under Sections 148/149/323 IPC. The special report with regard to incident reached the Ilaqa Magistrate, Jagadhri on May 15, 1990 at 10 A.M.

Mr. Sibal, learned counsel for the appellant, has confined his arguments to the nature of offence only. On that count, he vehemently contends that once the learned Addl. Sessions Judge has ruled out the applicability of Section 149 or 34 IPC and has held everyone guilty of his individual act, as also when it is proved on records that Amit Kumar died of septicaemia, there was no question to hold the appellant guilty under Section 302 and at the most he could be pinned down under Section 304 Part II of the Indian Penal Code. Inasmuch as learned counsel for the appellant has limited his contention to the nature of offence, there is no need to give detailed facts. However, the contents of the FIR and the medical evidence, on which alone the aforestated contention of the learned counsel has been based, need a necessary mention.

Anoop Kumar, while unfolding the prosecution version, got recorded in the FIR that he was running a sugarcane juice shop in a Kiosk opposite Dua Hospital on Civil Hospital road. His uncle Bhagwat Parshad, his brother Amit Kumar and he were working there and selling the juice. The sugarcane crop had been stored on the back side of kiosk. On that day at about 9 A.M. his uncle Bhagwat Parshad alias Bhola, his brother Amit Kumar and he were present in their kiosk when Rajesh alias Michale son of Seenu and one boy Sumer came to their koisk and started taking out sugarcane. His brother Amit Kumar saw them and caught hold of them and his uncle Bhagwat Parshad gave them slaps. Both of them ran away from there. Later on, at about 2 P.M., when they were present in their kiosk and were selling cane juice, Raju, Sham son of Bishan Dass, Rajesh @ Michale son of Seenu, John, Mohan and Sumer, residents of Issa Pur Colony, Jagadhri, came there. Rajesh @ Michael gave an order for the juice. His brother Amit Kumar prepared six glasses of cane juice and he supplied it to them. His brother Amit Kumar demanded the payment. Instead of paying the amount, all of them hurled abuses to his brother. Amit Kumar, he and his uncle asked them to desist from hurling abuses. Rajesh @ Michale took up a wooden rafter lying nearby and gave its blow on the head of his brother Amit Kumar. Sumer Chand, who was hiding an iron rod, gave its blow on the head of his brother Amit Kumar. Raju and Sham Lal caught hold of his uncle Bhagwat Parshad and fell him on the ground. John and Mohan Lal gave stick blows to his uncle Bhagwat Parshad. He raised an alarm and many people collected there. Their servant Dheeraj was also present on the spot, who saw the occurrence. His brother Amit Kumar and uncle became unconscious. On seeing the people coming there, the assailants ran away from the spot. Ravi and he took his brother Amit Kumar and uncle Bhagwat Parshad to Civil Hospital, Jagadhri and got them admitted there. The doctor at the hospital referred Amit Kumar and Bhagwat Parshad to PGI, Chandigarh for treatment. They were, thus, taken to PGI, Chandigarh for treatment. He was also on his way to go to Chandigarh that he got recorded his statement to ASI Narinder Kumar. It required to be mentioned here that Amit Kumar died on May 23, 1990, i.e., nine days after he received injuries at the hands of the appellant and his coaccused.

Dr. M.R. Passi, Medical Officer, Civil Hospital, Mullana, who was examined as PW11, stated that on May 14, 1990 at 2.30 P.M. he had medicolegally examined Amit Kumar. He found following two injuries on his person :

"1. There was a contusion 5 cm x 2 cm on the right parietal region of the head. Xray of skull was advised.

There was a contusion 5 cm x 3 cm on the left upper eye bid."

Both the injuries were kept under observation. The same were caused by blunt weapon within a duration on 24 hours.

On the same day at 2.40 P.M. he medicolegally examined Bhagwat Parshad as well and found following injuries :

"1. A lacerated wound 2 cm x 1 cm was present on the palmer surface of the left hand at the base of left index finger.

There was a contusion of the size of 5 cm x 2 cm on the left parietal region of the head."

The doctor opined that injury No. 1 on the person of Amit Kumar could be caused by Saria. He further stated that injury No. 2 on the person of Amit Kumar and injuries 1 and 2 on the person of Bhagwat Parshad could be caused by wooden rafter and stick. In his crossexamination, he stated that there were less chances of septicaemia creeping in the skull underneath injury No. 2 of Amit Kumar unless the wound had been opened. The Surgeon would open the wound for the sake of treatment. The possibility of infection could not be ruled out after opening of the wound because there is never 100% foollproof sterilization. Dr. J.R. Chauhan, Medical Officer, General Hospital, Chandigarh, who was examined as PW1, stated that he had conducted postmortem examination on the dead body of Amit Kumar on May 23, 1990 at 2.15 P.M. On opening the skull, extradural haemorrhage was found present in fronto parietal region. Dura matter under the bone was ruptured. There was transverse fracture of the base of skull and subdural haemorrhage was present in the left parietal region. Even though the doctor observed as mentioned above, but while giving his opinion with regard to cause of death, he clearly stated that the same was due to septicaemia due to head injury which was sufficient to cause death in ordinary course of nature. The probable duration between injuries and death was within nine days and between death and post mortem within 24 hours. The doctor nowhere positively stated that septicaemia was the direct result of injuries on the head of Amit Kumar. On the other hand, it is well made out from the records of the case that Amit Kumar could have developed septicaemia on account of operation that was conducted upon him.

We find considerable merit in the sole contention raised by learned counsel for the appellant. The reading of FIR clearly makes it out that insofar as appellant is concerned, he had given only one injury, even though on the head of Amit Kumar. He did not thereafter either give any injury to Amit Kumar or to Bhagwat Parshad. It is not clear from the medical evidence as to whether Amit Kumar died on account of the injuries that he sustained on his head. The death of Amit Kumar could well be on account of septicaemia. In fact, it is clearly stated by PW1 Dr. J.R. Chauhan that death was on account of septicaemia. The doctor, however, did not further clarify as to whether septicaemia was the direct result of the injuries. On the other hand, PW11 Dr. M.R. Passi had stated that there were less chances of septicaemia creeping in the skull underneath injury No. 2 of Amit Kumar unless the wound had been opened. The Surgeon would open the wound for the sake of treatment and possibility of infection could not be ruled out after opening of the wound because there was never 100% foollproof sterilization. From reading of the evidence, referred to above, it is thus clearly made out that Amit Kumar could have developed septicaemia because of operation also. That possibility, in any case, cannot be ruled out. If that be so, surely, appellant cannot be pinned down for an offence under Section 302 IPC. He is, however, held guilty under Section 304 Part II IPC and convicted accordingly. Considering the totality of the facts and circumstances of the case, we are of the view that ends of justice would be fully served if the appellant is sentenced to undergo rigorous imprisonment for four years. We order accordingly. The order regarding fine that was imposed by the learned trial Judge is, however, maintained and so also the consequence of nonpayment thereof.

Appeal is thus partly allowed in the manner indicated above.