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2003 DIGILAW 2 (SIK)

DAL BAHADUR v. STATE OF SIKKIM

2003-03-24

N.S.SINGH, RIPUSUDAN DAYAL

body2003
RIPUSUDAN DAYAL, C. J. ( 1 ) THIS appeal is directed against the Judgment and order dated 30/8/2002 by the learned Sessions Judge. (East and North) Sikkim in criminal case No. 24 of 1994, where by the appellant Dal Bahadur Tamang alias Dhalay was convicted for the offence under Section 304 part II of the Indian Penal Code and sentenced to rigorous imprisonment for three years with a fine of Rs. 1000/- and in failure of payment of fine to undergo further rigorous imprisonment for one month. ( 2 ) SHRI learned Sharma learned counsel for the appellant has submitted that there is nothing on record to show that the injuries suffered by the deceased Tikaram Tamang were caused by the appellant and also that the injuries which the deceased received were such as were likely to cause death. According to the learned counsel, the appellant caused only simple injuries and. at best the injuries inflicted upon the deceased could amount to grievous hurt. He has further submitted that the deceased himself had initiated the night and the appellant was only a victim of circumstances and he did not commit any offence. Shri N. B. Khatiwada, the learned public prosecutor, has on the other hand tried to support the judgment of the learned trial court. ( 3 ) AFTER perusing the record and hearing the learned counsel for the parties we find that there is no reliable evidence to show that the injuries inflicted on the person of the deceased were all caused by the appellant. The incident occurred on 4/11/1988 and the deceased died in the S. T. N. M. Hospital on 8/12/1988. Post Mortem was conducted on the body of the deceased by Dr. S. T. Basi on 8/12/1988. Dr. S. T. Basi could not be examined to prove his post mortem examination report Ex. P. 3 since as per the evidence of the Investigating Officer. Shri K. K. Gurung PW-7. Dr. S. T. Basi had left the, STNM Hospital 5/6 years back and his whereabouts were not known to anybody. The post mortem report was proved by Dr. S. D. Shamm PW-6 who was the Senior Medico Legal Specialist attached to the STNM Hospital and he had counter-signed the report after satisfyhing himself that the Medical Officer had come to a correct conclusion as to the cause of death. The post mortem report was proved by Dr. S. D. Shamm PW-6 who was the Senior Medico Legal Specialist attached to the STNM Hospital and he had counter-signed the report after satisfyhing himself that the Medical Officer had come to a correct conclusion as to the cause of death. As per the medical report the following injuries were found on the body of the deceased:1) Open discharging sinus over the left deltoid region 1 x 1 cm. reaching upto the bone with a purulent discharge. 2) Surgical incision 8 x 2 cms. bone deep over the medical aspect of the left arm with a purulent discharge. 3) An open wound 2 x 1. 5 cms. over the medical aspect of the left arm lower and muscle deep with purulent discharge. 4) Fracture of the neck of left humerus with osteomyelities in the area. There is nothing in the post mortem report or in the evidence of Dr. S. D. Sharma to show that the injuries caused were such as were likely to cause death. According to his evidence death was due to shock as a result of septecemia due to secondary infection following compound fracture of the left humerus. In the cross-examination he admitted that osteomyelities is a curable decease provided the, patient seeks timely medical intervention. All this shows that the death was not caused on account of the injuries suffered by the deceased but on account of the fact that the deceased had not received proper treatment in time. Shri K. K. Gurung PW-7. Investigating officer has deposed that he had forwarded the victim Tikaram Tamang to Rhenock Primary Health Centre for medical treatment, on 12/11/1988 after receiving a written complaint from the brother of the deceased through Panchayat Aritar. As per the Autopsy Report Exhibit P-3, he was shifted to the STNM Hospital on 13/11/1988. Passang Tamang PW-1 who is the brother of the appellant has deposed that it was after two days of the incident that the deceased came to his residence and then he saw that the deceased was having injury on his hand. No complaint was made either to the police or to the Panchayat soon after the Incident. Though the incident had occurred on 4/11/1988, the complaint was made by PW-1 Pas sang Tamang to the Panchayat Secretary on 12/11/1988 and the formal FIR was registered by the police on 6/12/1988. No complaint was made either to the police or to the Panchayat soon after the Incident. Though the incident had occurred on 4/11/1988, the complaint was made by PW-1 Pas sang Tamang to the Panchayat Secretary on 12/11/1988 and the formal FIR was registered by the police on 6/12/1988. Passang Tamang, while giving reason for not lodging complaint to anyone soon after the incident, stated in his cross-examination that the deceased had sustained only minor injury and so he did not make any complaint to anyone. In these circumstances there is merit in the submission of the learned counsel for the appellant that, at best, it could be a case falling under Section 325 IPC. ( 4 ) IN order to prove the occurrence, besides Dr. S. D. Sharma PW-6 and the Investigating Officer Shril K. K Gurung PW-7, five other witnesses have entered the witness box though the only actual eye witness is Padma Kumari Chettri PW-3, the mother of the appellant. She has deposed that on the day of the occurrence at 8 p. m. while her son, the appellant, had gone to a provision shop, the appellant entered her house and caught hold of her and tried to rape her and when she shouted for help the appellant broke open the door and came inside and separated her from deceased. She has further deposed that the deceased had caught hold of her son by his chest. In order to free him from the grip of the deceased she used the iron pipe which was lying in the house to separate the two. Though, the fight took place between the deceased and the appellant there is nothing in the evidence to show that the appellant caused any injury to the deceased by using the Iron pipe. The other witness Pas sang Tamang PW-1 is the brother of the deceased. He has Dal Bahadur v. State of Sikkim as to what the mother of the appellant told him about the incident and nothing turns on his statement in view of the other evidence on record. ( 5 ) IT would appear from the evidence on record that the Injuries were caused to the deceased not only by the appellant but also by the mother of the appellant. There is nothing on record to show that the appellant caused any grievous injury to the deceased. ( 5 ) IT would appear from the evidence on record that the Injuries were caused to the deceased not only by the appellant but also by the mother of the appellant. There is nothing on record to show that the appellant caused any grievous injury to the deceased. It appears that whatever injuries the deceased suffered apart from the injuries caused by the mother of the appellant were suffered by him during the fight for which the appellant was not at all responsible as, it was the deceased who was entirely to blame. There is nothing on record to show that the appellant acted in a revengeful or cruel manner. PW-3 Padma Kumari Chettri has deposed that after she had managed to separate the appellant and the deceased the appellant ran away from the house and the deceased then chased him. In the fight which resulted because the deceased had chased the appellant some injuries were got inflicted on the deceased and it cannot be said, that the injuries were caused by the appellant intentionally to cause any hurt to the deceased. The evidence of Indramaya Sharma PW-4 also shows that the appellant had come to her house to request her to send her husband saying that there was some fight taking place in his house. This also shows that the appellant had no intention of having any fight or cause any injury to the deceased and it was the deceased who had picked up the fight with the appellant and the appellant had no escape from the night. In these circumstances, the appellant cannot be said to have committed any offence ( 6 ) IN the result, the appeal is allowed the impugned judgment and order of conviction and sentence is set aside and the appellant is acquitted of the offence under Section 304 part II IPC. If any amount of the fine has been recovered from the appellant in pursuance of the judgment of the learned trial court the same be refunded to him. The appellant be set at liberty forthwith, if not required in any other case. Appeal allowed. --- *** --- .