Kartara and another vs The State of Haryana

S.C. Mital, J.—Kartara, aged 15 years, his other Sarti and his paternal uncle Chander were tried on charge u/s 304, read with Section 34, Indian Penal Code, for committing the cuipable homicide of their relation Jai Narain in furthe ance(sic) of their common intention. The Additional Sessions Judge, Sonepat, acquitted Chander, but convicted the other two on the said charge and sentenced each of them to life imprisonment and fine of Rs. 500/-each. Feeling aggrieved, they have preferred this appeal.

Prosecution case is that on 11th February, 1977, at about 7 p.m ., Rajbir, aged 7 years, son of Jai Narain deceased, was playing in the street of his village Pur Khas, Dharambir, aged 12 years, son of Smt. Sarti, came on bicycle. The donda with which Rajbir was playing struck the mudguard of the cycle. At this, Dharambir, alighted and thrashed Rajbir, who went weeping to his father Jai Narain, Dharambir went to his mother Sarti and complained to her that his uncle Jai Narain was after him. Chander who was then present, went to the gher of Jai Narain situate in the vicinity and asked him to come out. Jai Narain and hit wife Smt. Bhagwan P.W. came out. Chander asked Jai Narian as to why he wanted to beat Dharambir. In the meantime, Santi armed with mogra and Kartara with lathi came on the scene. Kartara struck a lathi blow on the head of Jai Narain, followed by a mogra blow on the back of Jai Narain by Sarti. Banwari P.W. tried to intervene, but Kartara and Sarti did not desist from causing more injuries to Jai Narain. Thereafter, they went to their house. Jai Narain and Bhagwani went to their house.

On the morning of 12th February, 1977, Bhagwani took her husband Jai Narain to the hospital in Ganaur where at 10.30 a m. Dr. Trilock Chand Arora examined him and observed as follows:

Contusion of about 8 cm. x 8.5 cm. over the right side of the scalp and forehead about 3 cm. above the right eyebrow and about 2cm above the right ear Colour was reddish blue. Tenderness of the area was present.

A reddish contusion about 2 cm x 2cm. over the centre of farenad.

A reddish contusion of about 3 cm. x 2 cm over the forehead just above the left eyebrow.

Reddish contusion of about 6 cm. x 4 cm. over the left supra scapular region, about 4 cm. away from midline of back. In the opinion of the doctor, the injuries were caused by a blunt weapon within 2 hours. Injuries 2, 3 and 4 were simple in nature. Later, the X-ray result, injury No. 1 was declared grievous.

The same day (12th February, 1977) Bhagwani lodged report Exhibit P. L. at Police Station, Ganaur. It was recorded by Head Constable, Banarsi Dass in the daily diary. For better treatment, Jai Narain, was referred to the Medical College Hospital, Rohtak, where on 14th February, 1977. his head was X rayed by Dr. Raj Kumar Airon. Fracture of the right fronto parietal bone was detected vide report Exhibit P.F. Thereupon, a case u/s 325/34, Indian Penal Code, was registered at the Police Station above said on 16th February, 1977. against the above said three accused persons.

In the aforementioned hospital, the head injury of Jai Narain was operated upon by Dr. Jagdish Gupta. The exploration further revealed depressed fracture of the parietal bona along with extra dural baematome. The depressed fragment was removed. Jai Narain remained under treatment in the said hospital. Later, owing to some complication, he expired on 22nd April, 1977, at 11.45 a m Post mortem examination on his dead body was performed by Dr. Om Parkash who opined that the cause of death was coma due to brain injury and super imopsed septic meningitis. The injury was declared to he sufficient in the ordinary course of nature to cause death.

At the trial, the accused persons admitted their relationship inter se and with Jai Narain deceased. The quarrel between Rajbir and Dharambir was also admitted. However the defence version put-forward was that Smt. Bhagwani and Smt. Sarti accused exchanged blows outside the house of the latter. At the time Jai Narain deceased was on the keekar tree standing in his gher. While coming down, he fell and struck against the bricks and wall. Nevertheless, he reached near the two women and started fighting with Sarti Some other persons namely, Chandan, Mange, and Hari Singh intervened and separated them. No evidence was led in defence.

Banwari (P. W. 7) and Smt. Bhagwani (P. W. 8) testified to the prosecution case set out above it may be said at the outset that Jai Narain decased was closely related to the accused-persons But for th sudden quarrel between Rajbir, son of Jai Narain deccessed, and Dharambir, son of Sarti accused, never had there been dispute of any kind between the parties In the nature of things, the question of the false implication of Kar ara and Sarti in the incident does not arises(sic) All the same, their learned Counsel urged that there was delay in lodging the first information report. It appears that Jai Narain and Bhagwani were not ite sure of the internal damage caused by he head injury. Therefore, no immediate steps were taken for going to the hospital. It was n the morning following the incident that Jai Narain got himself examined at the hospital in Ganaur As advised by the doctor, Jai Narain got himself admitted to the Medical College Hospital, Rohtak, and his treatment commenced It deserves mention that on 12th February, 1977, the report Exhibit P.L lodged by Smt. Bhagwani was regestered in the daily diary. It was only after the receipt of the Ex Ray report Exhibit P. F. indicating grievous hurt that a case u/s 325/34, Indian Penal Code, was registered against the accused persons For the foregoing reasons, the delay in lodging the report at the police station cannot be said to be of any consequence.

We have gone through the evidence of Banwari and Smt. Bhagwani P. W. to the effect that in the circumstances set out above, injuries were caused to Jai Narain deceased by Kartara and Smt. Sarti with a lathi and mogra, respectively We are no valid reason to disagree with the reliance placed by the learned trial Judge on their testimony.

The main question to be determined in this case is the nature of the offence committed by Kartara and Smt. Sarti. In this regard, it deserves mention again that injuries were caused to Jai Narain on the evening of 11th February, 1977, he was admitted to the hospital in Rohtak the next day, since then he remained under treat ment, but despite proper medical aid, he expired on 2nd April, 1977. Dr. Om Parkash, who performed the post-mortem examination, opined that the cause of death was coma due to brain injury and super imposed septic meningitis The bead injury was also declared to be sufficient in the ordinary course of nature to cause death. In Anda and Others Vs. The State of Rajasthan, their lordships laid down:

The third clause of Section 300, I.P.C. views the matter from a general stand point It speaks of an intention to cause bodily injury which is sufficient In the ordinary course of nature to cause death. Here the emphasis is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature When the sufficiency exists and death follows and the causing such injury is intended, the offence is murder.... If the interded injury cannot be said to he sufficient in the ordinary course of nature to cause death, that is to say the probability of death is not so high, the offence does not fail within murder but within culpable homicide not amounting to murder or something else.

Applying this principle to the facts of the present case, it is patent thai in view of the long time that elapsed between the causing of injury and death, the opinion of Dr Om Parkash, it appears, was not rightly acceted by the trial Judge.

For invoking Section 304, Indian Penal Code, the trial Judge, however, expressed the view that the head injury was likely to cause the death of Jai Narain. Now, one of the ingredients or Section 299, Indian Penal Code, defining culpable homicide is the coming of death with the intention of causing such bodily injury as is likely to cause death'' It is no gain saying that the connection between the causing of injury and death must be direct and distinct, and though not immeddiate, it must not be too remote. When the interval of time between the death and the causing of the injury is too long, the said ingredient of Section 299 cannot be said to have been satisfied Applying this ratio to the present case, we find that the conviction of the accused persons u/s 304, read with Section 34, Indian Penal Code, cannot be sustained. It is accordingly altered to one u/s 325 read with Section 34, Indian Penal Code. Their learned Counsel then contended that instead of sentencing them to imprisonment, they be released on probation. Apart from the above mentioned facts and circumstances in which the incident occured, learned Counsel pressed that Kartara accused was around 15 years of age at the relevant time and Smti Sarti is a woman aged 30 years. We find the contention tenable. It is accordingly ordered that Kartara and Smt. Sarti be re leased on probation on their entering into a bond in the sum of Rs. 2,000/ each with one surety each in the like sum, to the satisfaction of the Chief judicial Magistrate, Sonepat, under taking to appear and re ceive sentence when called upon during a period of two years, and in the meantime to keep the peace and be of good behaviour.

This appeal stands disposed of accordingly.