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2007 DIGILAW 1075 (PNJ)

Ram Chand v. State Of Punjab

2007-05-08

NAWAB SINGH

body2007
Judgment Nawab Singh, J. 1. This appeal is directed against the judgment and order dated June 1, 1994 passed by learned Sessions Judge, Patiala whereby the accused- appellant was convicted for the offence punishable under Section 304-II of the Indian Penal Code (for short "IPC") and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 500/-. In default of payment of fine, the accused-appellant was ordered to undergo further rigorous imprisonment for a period of nine months. 2. On August 23, 1993 Sham Sunder (since deceased) was present at Rajpura in connection with the purchase of grocery items as he used to run a grocery shop in his village Pabtra. It was about 10 a.m. Ram Chand accused-appellant met him and asked him to pay him some money for buying liquor. Sham Sunder refused to oblige him. The accused-appellant gave a kick blow on the left hip joint and struck his head against his chest. He fell down and raised an alarm. On hearing the alarm, Rajinder Kumar, the nephew of the deceased and Kishan Chand (PW-3) reached the spot and rescued the deceased from the accused-appellant. The deceased was immediately brought to A.P. Jain Civil Hospital, Rajpura. 3. The police was informed by the Senior Medical Officer, A.P. Jain, Civil Hospital, Rajpura. Sukhdev Singh Assistant Sub-Inspector (for short "ASI") (PW-4) reached Civil Hospital. He moved an application (Exhibit PC) before the Medical Officer to seek his opinion as to whether Sham Sunder was fit to make statement. Medical Officer vide his opinion (Exhibit PC/1) opined that Sham Sunder was fit to make statement. Statement (Exhibit PG) of Sham Sunder was recorded. He narrated the facts as mentioned in para No. 2 of this judgment. Daily Diary Report was recorded at Police Station City Rajpura, District Patiala. 4. On August 25, 1993 Sham Sunder was referred to Rajindra Hospital, Patiala where he succumbed to his injuries on August 26, 1993. Thereafter, formal First Information Report (for short `FIR) (Exhibit PG/2) was recorded at Police Station City Rajpura under Section 304 IPC. On August 26, 1993 Sukhdev Singh ASI (PW-4) reached Rajindra Hospital, prepared the inquest report (Exhibit PF) in the presence of Lal Chand and Kamal Nain and recorded the statements of witnesses under Section 175 of the Code of Criminal Procedure (for short "Cr.P.C."). On August 26, 1993 Sukhdev Singh ASI (PW-4) reached Rajindra Hospital, prepared the inquest report (Exhibit PF) in the presence of Lal Chand and Kamal Nain and recorded the statements of witnesses under Section 175 of the Code of Criminal Procedure (for short "Cr.P.C."). He also prepared rough site plan (Exhibit PJ). The dead body was sent for post-mortem. Post-mortem report is Exhibit PD. 5. On September 7, 1993 Balwinder Pal SI arrested the accused-appellant. 6. On completion of investigation and all formalities, the report under Section 173 Cr.P.C. was prepared by Sukhdev Singh ASI (PW-4). 7. Charge, in respect of commission of offence punishable under Section 304 IPC, was framed against the accused-appellant. He pleaded not guilty and claimed trial. 8. In support of its case, the prosecution examined four witnesses viz. Dr. O.P. Goel (PW-1), Dr. Deepak Walia (PW-2), Kishan Chand (PW-3) and Sukhdev Singh ASI (PW-4). 9. When examined under Section 313 Cr.P.C., accused-appellant denied the allegations and pleaded that he has been implicated falsely. 10. Learned counsel for the appellant, without assailing the prosecution evidence on any ground, has urged that the act involved could tantamount to causing simple hurt, punishable under Section 323 IPC. There was no intention or knowledge to cause such injury as was likely to cause death and for that reason, the accused-appellant could not be held guilty or convicted under Section 304 Part-I or Part-II IPC. 11. For offence of culpable homicide defined under Section 299 IPC and punishable under Section 304 IPC as also for the offence of murder defined under Section 300 IPC and punishable under Section 302 IPC. Intention of causing death is integral and inseparable part of the act amounting to culpable homicide or murder, intention or knowledge that the injury is likely to cause death or is sufficient in the ordinary course of nature to cause death are, inter alia, the other relevant considerations. In the instant case, there was no intention to cause death. The act done was that the accused-appellant struck his head against the lower part of the chest of Sham Sunder (since deceased) and also gave a kick on the hip. There was no previous enmity and no premeditation. There is no evidence that the accused- appellant had the knowledge that liver of Sham Sunder (since deceased) was vulnerable although a vital part. There was no previous enmity and no premeditation. There is no evidence that the accused- appellant had the knowledge that liver of Sham Sunder (since deceased) was vulnerable although a vital part. The distinction between Section 299 and Section 300 of IPC is not required to be gone into in this case. 12. Death of Sham Sunder took place due to rupture of liver as a result of the blow received when the accused-appellant struck his head against the upper part of his abdomen. An act of causing death in this manner would not tantamount to culpable homicide or murder. 13. The question of paramount importance, which now arises for adjudication is as to what offence was committed. It has been argued that this was a case of voluntarily causing hurt defined under Section 321 IPC for which punishment is provided under Section 323 IPC and that there is plethora of case law for the proposition. This is a catchpenny of an argument. Of course courts, in various judgments involving such like circumstances held that the act was punishable under Section 323 IPC only. This Court cannot help observing that one aspect has so far escaped the notice of the courts or has not been considered at length. The question is whether it was a case of causing simple hurt or grievous hurt. Grievous hurt is defined under Section 320 IPC, which reads as under :- "Grevious hurt. - The following kinds of hurt only are designated as "grievous" :- First - Emasculation. Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear. Fourthly - Privation of any member or joint. Fifthly - Destruction or permanent impairing of the powers of any member or joint. Sixthly - Permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth. Eighthly - Any hurt which endangers life or which causes the sufferer to be during the scape of twenty days in severe bodily pain, or unable to follow his ordinary pursuits." 14 Clause `Eighthly of Section 320 needs an incisive consideration. Sixthly - Permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth. Eighthly - Any hurt which endangers life or which causes the sufferer to be during the scape of twenty days in severe bodily pain, or unable to follow his ordinary pursuits." 14 Clause `Eighthly of Section 320 needs an incisive consideration. In cases of attempt to murder punishable under Section 307 IPC and attempt to commit culpable homicide punishable under Section 308 IPC, courts rely on the opinion of the experts, that is, the doctor which generally is to the effect that the injury was dangerous to life. An opinion is after all an opinion and there always remains an element of inexactness and uncertainty in it. In other words, in marginal cases, the opinion may not hold good but what needs stress is that on the basis of such an opinion it is held that the act tantamounted to attempt at culpable homicide or murder. As would be the situation when an injury is caused to a person and that person actually dies due to that injury. Can death come without the life of the dead being endangered, whether for a fraction of a second or a longer period ? The answer can only be in the negative. Death in case of injury will always be preceded by endangering of life. On this simple analogy, the act of the accused-appellant in the present case squarely falls within the mischief of clause `Eighthly in Section 320 IPC. In other words, hurt to Sham Sunder (since deceased) by the accused- appellant was hurt, which endangered the life of the deceased and then actually resulted in his death. The answer to the question proposed, therefore, is that the accused-appellant is guilty of voluntarily causing grievous hurt, punishable under Section 325 IPC. 15. Consequently, the conviction of the accused-appellant for offence under Section 304 IPC is set aside. The accused-appellant committed the offence of causing grievous hurt. He is, therefore, held guilty of offence under Section 325 IPC and is convicted thereunder. 16. Ram Chand accused-appellant served sentence by remaining in custody for more than ten months. He has faced a prolonged trial. This court is of considered opinion that no useful purpose shall now be served by sending him to jail for any further period. He is, therefore, held guilty of offence under Section 325 IPC and is convicted thereunder. 16. Ram Chand accused-appellant served sentence by remaining in custody for more than ten months. He has faced a prolonged trial. This court is of considered opinion that no useful purpose shall now be served by sending him to jail for any further period. The ends of justice shall be met squarely if he is sentenced for the period already undergone by him. The sentence of fine shall remain intact. It is ordered accordingly. 17. The appeal is accepted partly as indicated above.