Pirthi vs State of Haryana

S.K. Jain, J.—Pirthi Singh son of Mangal son of Surjan aged 60 years, resident of village Hameergarh was found guilty of an offence punishable u/s 304, Part-II of the Indian Penal Code for his having caused bodily injury to Jai Lal with knowledge that such injury was likely to result in his death though without any intention to cause death. He was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 10,000/ - and in default of payment thereof to further undergo rigorous imprisonment for one year. It was further directed that the whole of the amount of fine on its recovery be paid to heirs of Jai Lal, deceased. Feeling aggrieved against his conviction and sentence, Pirthi has come up in appeal.

In brief, the facts of this case are that at about 2 p.m. on 2-4-1986, Pirthi came in front of the house of Jia Lal and called him. He came out along with his wife Smt. Phulpati and his daughter Usha. Pirthi appellant asked Jia Lal as to why he had stolen turi from his house but he denied the allegation and stated that he had borrowed the same from his children. On the asking of Pirthi, Jia Lal accompanied him to get the factum of his having borrowed the turi confirmed from his (Pirthi''s) children. Phulpati P.W. 4 and Usha P.W. 5 had also accompanied them. They entered the Nohra of Pirthi where he threatened Jia Lal that he would teach him a lesson. Saying so, he kicked him on his.testicles as a result whereof Jia Lal fell down. Pirthi gave a second kick blow on the testicles of Jia Lal. In order to save his life Phulpati and Usha, wife and daughter of Jia Lal fell down upon him but in spite thereof Pirthi gave several kick blows more on the scrotum of Jia Lal. Kishan Lal P.W. 10, brother of Jia Lal, arrived at the spot and with his help Phulpati and Usha removed him to their house. A number of persons of the community of Pirthi accused came to the house of Jia Lal and assured his wife that they will get the matter settled. Since they were poor persons, wife of Jia Lal could not pick up enmity with the accused who was a rich person and a Panch of the Gram Panchayat. They were prevented from reporting the matter to the police as also from removing the injured to the hospital till 4-4-1986. Condition of Jia Lal had deteriorated. It was only then that Jia La1 was got admitted in General Hospital, Narwana by Kishan Lal P.W. 10, his brother, and Sham Lal, his nephew. Dr. Subhash Chand Gupta P.W. 6 examined Jia Lal vide Medico Legal Report Ex.PD at 5-45 P.M. on 4-4-1986 in General Hospital, Narwana and found a diffused swelling of the scrotum and penis and skin over the scrotum and penis was found to be blackening and gangrenous. The injury was kept under observation. The doctor opined that the injury was the result of a blunt weapon, within the probable duration of three days. On receipt of ruqa Ex.PC from the hospital with regard to Jia Lal having arrived in the hospital in an injured condition at 7 p.m. Head Constable Prit Singh reached the hospital, moved application Ex.PC/2 and obtained endorsement in the hand of Dr. Subhash Chand Gupta P.W. 6 to the effect that Jia Lal was not fit to make a statement at 8-35 p.m. on that day. Again on 5-4-1986 Assistant Sub-Inspector Prem Singh P.W. 11 reached the hospital and obtained medical opinion Ex.PH/1 in the hand of Dr. L.N. Garg P.W. 7 that Jia Lal was unconscious and was not fit to make a statement. He had then recorded statement Ex.P.C. of Smt. Phulpati P.W. 4. On the basis of the said statement First Information Report Ex.PB/2 u/s 307, Indian Penal Code, was recorded at 10 a.m. and it was conveyed to the Ilaqa Magistrate vide endorsement Ex.PB/3 at 5 p.m. on the same day. Jia Lal died in General Hospital, Narwana at 2 p.m. on 5-4-1986. Ruqa Ex.PF was sent by Dr. Subhash Chand Gupta PW-6 at 2-50 p.m. Inspector Ved Parkash PW-12 on receipt of the said ruqa converted the offence from one u/s 307 to Section 302 of the Indian Penal Code. Special Report Ex.PN was despatched to the Ilaqa Magistrate. Sub Inspector Ved Parkash on reaching the hospital prepared inquest report Ex.PK and entrusted the dead body to Head Constable Prit Singh for post-mortem examination.

Dr. Naveen Sabharwal, PW-8 conducted post-mortem examination on the dead body of Jia Lal on 5-4-1986 and found diffused swelling of scrotum and penis. Two small dimples were present in midline on scrotum. The colour of scrotum was black. On dissection of scrotum, dark foul smelling clotted blood was found present in scrotal cavity. On dissection of penis, dark foul smelling clotted blood was found present under penial skin. Both chambers of heart contained some blood. Stomach was empty. Liver and spleen were congested. Bladder was full of urine. Autopsy Surgeon opined that the death was due to toxemia, because of gangrene which could be the result of injury on the scrotum and was sufficient to cause death in ordinary course of nature.

On police request Ex.PG on 1-5-1986, Dr. Subhash Chand Gupta P.W. 6 gave medical opinion Ex.PG/1 to the following effect :--

(a) that possibility of injury as a result of blows on the private parts could not be ruled out; and

(b) Duration between injury and death could not be given because the cause of death was toxemia.

P.W. 12 Baldev Parkash SI/SHO arrested the accused on 6-4-1986 and after completion of the investigation and other formalities the accused was arraigned for trial on such like allegations for the murder of Jia Lal.

Before the trial Court, in order to prove its above referred case, the prosecution examined 12 witnesses. Smt. Phulpati P.W. 4 and Usha P.W. 5, eye-witnesses, supported the version of the prosecution.

The accused, when examined by the trial Court u/s 313, Code of Criminal Procedure, came out with the plea of denial simpliciter and false implication. The accused-appellant, examined Raj Kumar Gupta, Draftsman D.W. 1 who had prepared site plan Ex.DX at the instance of Smt. Dharmo wife of the accused. D.W. 2 Bhali Ram proved printed form of pronote and receipt Ex.DC and DD, vide which Kishan Lal purported to have borrowed Rs. 2400/-from the accused in the presence of this witness.

The trial Court believing the ocular evidence of Smt. Phulpati and Usha, eye witnesses, coupled with the medical evidence, convicted and sentenced the appellant as referred to above.

I have heard the learned counsel for the parties besides perusing the record.

It is firmly established in the testimony of the two eye-witnesses Smt. Phulpati and Usha, P.W. 4 and P.W. 5 respectively, that on the day of occurrence, on having been called by the accused, Jia Lal came out from his house along with the said witnesses. Appellant told him of his having stolen turi from his house. Jia Lal denied that allegation and told him that he had borrowed the turi from his (Pirthi''s) children. Then on the asking of Pirthi, Jia Lal along with his wife and daughter accompanied him to his Nohra in order to get his assertion confirmed from his children. When they reached in the Nohra, Pirthi threatened to teach him a lesson and saying so, he gave a kick blow on the scrotum of Jia Lal who fell down. Then again he gave another kick blow to Jia Lal on the same part of his body. In spite of the fact that Phulpati and Usha had fallen on him in order to save his life, Pirthi accused dealt further kick blows on the scrotum of Jia Lal. The above ocular account given by the two eye-witnesses stands corroborated by the medical evidence comprised of the testimony of Dr. Subhash Chand Gupta P.W. 6 and Dr. Naveen Sabharwal, P.W. 8. Their testimony has been discussed in details in the earlier part of this judgment.

Learned counsel for the appellant has firstly argued that there is a delay of three days in lodging the First Information Report and no explanation, much less satisfactory, is corning forth in this regard. Therefore, the prosecution case was doubtful and the accused deserves to be acquitted. I have given a thoughtful consideration to this argument. It is true that the occurrence had taken place at 2 p.m. on 2-4-1986 whereas the injured was removed to the hospital on 4-4-1986, reaching there at 4,45 p.m. It is also true that although the injured remained conscious uptil 10.00/ 11.00 p.m. yet Head Constable Prit Singh P.W. 3 failed to record his statement or that of Kishan Lal and Sham Lal. He also did not go to the village and start investigation. But I do not find any force in the submission of the learned counsel that the statement of Smt. Phulpati P.W. 4 (Ex.PB) was recorded after the death of Jia Lal on 5-4-1986 at 2-45 p.m. because the facts and circumstances of this case go a long way to show that Phulpati and other relatives of Jia Lal did not take the injury to be so serious that it could lead to the death of Jia Lal. No doctor was called nor the injured was removed to the hospital. Moreover, Jia Lal and his relations were poor carpenters belonging to backward class. As against them the accused belonged to a influential community i.e. Jat, and was himself a Panch of the Gram Panchayat. The members of Jat community who had soft corner for the accused, had urged the complainant party not to escalate the dispute either by reporting the matter to the police or by getting the injured admitted in the hospital. Under such pressure the complainant party did not report the matter to the police nor they got the injured admitted in the hospital till his condition deteriorated. It was at the most a laxity on the part of Head Constable Prit Singh in not recording the statement of Jia Lal while he was still conscious or that of any of the attendants of Jia Lal. On account of such inaction on the part of the police, the prosecution case cannot be thrown overboard.

The discrepancy in the prosecution version with regard to the place where the panchayat was held, as pointed out by the learned counsel for the appellant, is not material. It has come in the evidence that several persons had intervened possibly at the instance of the accused, as mentioned hereinbefore, and had assured the complainant party for a reasonable and honourable settlement.

Next argument of the learned counsel for the appellant is that the house of the deceased was at a considerably long distance from the Nohra of the accused but Smt. Phulpati and/or Usha did not disclose the incident to anybody in the way. I do not find any substance in this argument because uptill that point of time it was a trifling matter as the accused had only asked the deceased that he had stolen his turi, whereas the deceased had asserted that he had borrowed the same from his children and in order to get it confirmed from his (Pirthi''s) children he along with his wife and daughter had accompanied the accused to his Nohra. There had been no altercation or exchange of hot words and, therefore, there was no occasion for the two eye witnesses to be alarmed and to inform any one who met them on the way. So far as the question of Phulpati, Usha and Kishan Lal having not narrated the occurrence to anybody in the way while taking Jia Lal in an injured condition from the Nohra of the accused to their house is concerned I find that there is nothing on record including the cross examination of the witnesses, to show that while coming back, they had met anyone of their relations, friends or acquaintances to whom they could narrate the occurrence. Besides what has been stated above, the sequence of events show that initially they had not taken the injury of Jia Lal to be serious, much less deadly. They did not even call for a doctor or take Jia Lal to any private or government clinic and, therefore, no importance can be attached to the failure of the three witnesses to disclose the occurrence to anyone while returning from the Nohra of the accused to the house of the injured.

It is then argued on behalf of the appellant that the house of the deceased and the Nohra of the accused were situated in the abadi of the village and at the time of the occurrence besides Jia Lal, two witnesses namely Smt. Phulpati and Usha must have raised hue and cry thereby attracting neighbours or passersby to the spot but no witness from an independent source has either been cited or examined at the trial which renders the prosecution case doubtful. This argument also does not find favour with me.

It is a matter of common knowledge that an average villager is reluctant to appear as a witness and get himself involved in Court proceedings and police investigation agencies. Moreover the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses.

The statement of Usha was sought to be assailed on the ground that she was too young to be depended upon. What is however forgotten is that in this kind of experience a girl even though of a. tender age would be able to depose and identify correctly as to who was the one who had given kick blows to her father. I have gone through her statement and find that she has deposed very naturally and in a manner in which a child of her age would be able to depose. There is nothing in her evidence which would suggest that she was tutored or coaxed to depose in a particular manner. Her''s is a straight forward evidence in which she identified the accused as the person who had inflicted kick blows to her father on the day of the incident. Moreover a child in the innocent purity of its mind and unsophistication is more likely to come forth with a version which is unbiased, unsoiled, natural and forthright. Above submission of the learned counsel is, therefore, without any substance.

Lastly, learned counsel for the appellant has urged that death could have been avoided if proper treatment was provided to the injured. I have given a thoughtful consideration to this argument also. Doctor Subhash Chand Gupta P.W. 6 has no doubt stated in his cross-examination that if the patient had been given timely medical aid, he could be saved. The Autopsy Surgeon Dr. Naveen Sabharwal, P.W. 8 had opined that the cause of death was due to toximia, because of gangrene having set in. He also affirmed that if timely medical aid was given gangrene could have been avoided. Thus, from the statement of the two doctors, it is evident that the cause of death in this case was toximia because of gangrene. It has been categorcially admitted by both the doctors that for the said complication, the injury by itself, would not have proved fatal According to them the onset of gangrene would have been avoided if medical aid had been given. Relying on (i) Virsa Singh Vs. The State of Punjab, ; (ii) Paramjit Singh v. State 1983 (2) CLR 353 : 1983 Cri LJ 108 and (iii) Morcha Vs. State of Rajasthan, , learned counsel for the State has argued that the case in hand squarely fell within the ambit of clause ''Thirdly'' of Section 300 of the Indian Penal Code, The above said authorities have been carefully gone through. In paramjit Singh''s case (Supra) law laid down in Virsa Singh''s case (supra) has been summarised as under (at page 820 of Cri LJ):--

"To put it shortly, the prosecution must prove the following facts before it can bring a case u/s 300, thirdly;

First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the injury must be proved; these are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury that is to say, that it was not accidental or unintentional, or that some other kind, of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and of course, the burden is on the prosecution throughout) the offence is murder u/s 300, thirdly,

It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature -- not that there is any real distinction between the two".

When the facts and circumstances of this case are given above the acid test, I find that the incident had taken place over a trifling matter regarding the alleged theft of a small quantity of Turi. No exchange of hot words or physical altercation had taken place between the deceased and the accused. There was no previous enmity between the two. The kick blow given by the accused had caused an injury on the scrotum and penis of the deceased. Combined reading of the testimony of Dr. Subhash Chand Gupta, P.W. 6, who had medicolegally examined the deceased and Dr. Naveen Sabharwal, P.W. 8, who had conducted autopsy on the dead body of the deceased shows that the injury on scrotum and penis was not the direct cause of death of the deceased. For want of timely medical aid the injury developed toxaemia because gangerine had set in. It could certainy be avoided if timely medical aid was given to the injured. Under the circumstances, the learned trial Court had rightly concluded that only one kick blow had landed on the scrotum and penis of Jia Lal and, therefore, requisite intention to kill in order to prove third ingredient laid down in the above said judg-ment was missing. Fourth ingredient was also absent. To sum up, the death of Jia Lal was not direct consequence of the kick blow given by the accused on his private parts and the injury was, only .remote cause of death. In holding the above view, I am fortified by the following judgments:--

(i) Naga Ban Min v. Emperor AIR 1935 Rang 418

(ii) Sobha v. Emperor AIR 1935 Oudh 446: 1935 Cri LJ 1265 and

(iii) K. Malles Rao v. The State 1986 Cri. LJ 427.

AS a sequel to the above discussion I am of the opinion that the learned trial Court had rightly held that the accused had knowledge that the kick blow on the scrotum and penis of Jia Lal was likely to result in his death although he had no intention to cause death. The appellant has, therefore, rightly been convicted for an offence u/s 304, Part-I of the Indian Penal Code. As far as the question of quantum of sentence is concerned, the learned trial Court has already taken a lenient view in awarding the sentence of Rigorous Imprisonment for four years and to pay a fine of Rs. 10,000/-. In default of payment of fine he was further sentenced to undergo rigorous imprisonment for one year. It has also been rightly ordered by him that on recovery of amount of fine of Rs. 10,000/-whole of it should be paid to the heirs of Jia . Lal deceased.

As a sequel to the above discussion, this appeal fails and is hereby dismissed.

The appellant be arrested through npn bailable warrants and lodged in prison to serve the sentence.