Punjab-Haryana High Court
Kimti Lal And Anr vs State Of Haryana on 18 January, 2025
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill, Jasjit Singh Bedi
CRA-D-642-DB-2004 (O&M);
CRA-D-661-2004
2004 (O&M) &
CRA-S-1378-SB-2004
2004 (O&M)
(1)
In The High Court for the States of Punjab and Haryana
At Chandigarh
1. CRA
CRA-D-642-DB-2004 (O&M)
Kimti Lal and another ... Appellants
Versus
State of Haryana ... Respondent
2. CRA
CRA-D-661-DB-2004(O&M)
Ram Pal ... Appellant
Versus
State of Haryana ... Respondent
3. CRA
CRA-S-1378-SB-2004(O&M)
Jaswant Singh @ Pehalwan & others ... Appellants
Versus
State of Haryana ... Respondent
Date of Decision:- 18.01.2025
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. Vinod Ghai, Senior Advocate, with
Mr. Arnav Ghai, Advocate,
for appellant No.2 in CRA-D-642
642-DB-2004;
for appellant No.2 in CRA-S-1378
1378-SB-2004 and
for the appellant in CRA-D-661
661-DB-2004.
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integrity of this document
CRA-D-642-DB-2004 (O&M);
CRA-D-661-2004
2004 (O&M) &
CRA-S-1378-SB-2004
2004 (O&M)
(2)
Mr. Nikhil Saini, Advocate, for
Mr. Vikram Singh, Advocate,
for appellant No.1 in CRA-642
642-DB-2004.
Mr. Sagar Aggarwal, Advocate,
for appellant No.1 in CRA-S-1378
1378-SB-2004.
Mr. R.K.Arya, Additional Advocate General, Haryana.
GURVINDER SINGH GILL, J.
J
1. The above mentioned three appeals are being taken up together, having
arisen from the same very impugned judgment i.e. judgment dated
12.06.2004
6.2004 and order dated 15.06.2004
6.2004 passed by learned Additional
Sessions Judge, Karnal vide which the appellants namely Kimti Lal, Ram
Parkash, Ram Pal, Jaswant Singh, Dalbir Singh and Sher Singh have been
convicted and sentenced as under:
1. Kimti Lal
2. Ram Pal
3. Ram Parkash
Par Rigorous imprisonment for a period of two
years for the offence punishable under
4. Sher Singh Section 148 of the Indian Penal Code
5. Jaswant Singh
6. Dalbir Singh
1. Kimti Lal Rigorous imprisonment for life and a fine of
2. Ram Pal Rs.10,000/- each for the offence punishable
under Section 302 read with Section 34 of
3. Ram Parkash the Indian Penal Code. In default of payment
of fine, they shall further undergo rigorous
imprisonment for a period of one year each
1. Kimti Lal Rigorous imprisonment for a period of four
2. Ram Pal years and a fine of Rs.5000/
Rs.5000/- each for the
3. Ram Parkash offence punishable under Section 307 read
with Section 149 of the Indian Penal Code.
4. Sher Singh
In default of payment of fine, they shall
5. Jaswant Singh further undergo rigorous imprisonment for a
6. Dalbir Singh period of six months each
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integrity of this document
CRA-D-642-DB-2004 (O&M);
CRA-D-661-2004
2004 (O&M) &
CRA-S-1378-SB-2004
2004 (O&M)
(3)
1. Jaswant Singh Rigorous imprisonment for a period of two
years for the offence punishable under
Section 506 Part II of the Indian Penal Code.
2. The matter pertains to death of Virender Gaba
Gaba, alleged to have been
murdered by 6 accused namely,
namely Kimti Lal, Ram Parkash, Jaswant Singh,
Dalbir Singh, Sher Singh and Ram Pal.
3. The FIR (Ex.PF/2)
(Ex. ) was lodged at the instance of Sand
Sandip Arora, wherein it
is alleged that he works at Shifali Hotel and that on 18.
18.06.2000 he along
with his brother-in-law
brother Vikas Sahni was
as present at the hotel where
Virender Gaba,
Gaba who used to supply butter and cheese had also come. At
about 10:15
15 PM, 3 persons namely Raju Tangewala (also referred to as
Ram Pal),, Hanuman (also referred to as Ram Parkash) and an unknown
person, who used to sell fruit and who all were in an inebriated state came
to the dining hall. Raju Tangewala took off his shirt to which
complainant’s brother-in-law
brother law Vikas Sahni objected while advising him to
sit in a decent manner. Hanuman and Raju Tangewala
Tangewala, however, took
offence to the same and a scuffle took place. The aforesaid 3 persons
caught hold of Vikas
Vikas Sahni from his neck and slapped him and went out
of the hotel from where they picked up soda water bottles and also bottles
of ‘Limca’ and ‘Pepsi’,
‘Pepsi’ which were lying at a tea shop across the road and
started hurling the same towards the complainant and ot
others. The
complainant and his companions rushed towards them to stop them from
doing so. Raju and Hanuman,
Hanuman however, caught hold of Virender Gaba
from his head and gave injuries with soda water bottle on his head, eyes
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integrity of this document
CRA-D-642-DB-2004 (O&M);
CRA-D-661-2004
2004 (O&M) &
CRA-S-1378-SB-2004
2004 (O&M)
(4)
and temporal region and also on the back
back of his head and on account of
the said injuries Virender
V Gaba fell down. In the meantime
meantime, another four
persons who had been sitting in a white coloured Tata Sierra vehicle
parked outside, came there to help the accused
accused. The three assailants also
sat in the vehicle and attempted to run over their vehicle over the
complainant and others. One of the said persons, while waving a pistol
even threatened to shoot them.
4. The matter was investigated by the police. During the course of
investigation, the police inspected the place of occurrence from where
broken pieces of glass, blood stained soil were collected, sealed and taken
into possession. A rough site plan of the pla
place of occurrence was
prepared. Statement of witnesses were recorded in terms of Section 161
Cr.P.C. Injured – Virender Gaba had been taken to hospital, but could not
survive and ultimately succumbed to his injuries on 30.06.2000. Post
Post-
mortem examination was
was conducted on the dead body of Virender Gaba.
Inquest proceedings were also conducted. Upon conclusion of
investigation challan was presented initially against five accused namely
investigation,
Kimti Lal, Ram Pal, Hanuman @ Ram Parkash, Jaswant Singh and Dalbir
Singh on 27.09.2000
27. in the Court of learned Additional Chief Judicial
Magistrate who upon finding that the facts prima facie disclosed
commission of offences punishable under Sections 148, 302, 323, 324,
326 read with Section 149 and 506 IPC and Section 225 of Arms Act,
committed the case to the Court of Sessions where charges were framed
against the aforesaid five accused on 04.04.2001.
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CRA-D-642-DB-2004 (O&M);
CRA-D-661-2004
2004 (O&M) &
CRA-S-1378-SB-2004
2004 (O&M)
(5)
5. Subsequently, upon arrest of another co-accused
co accused namely Sher Singh
Singh, who
had earlier been declared a proclaimed offender, a supplementary challan
was presented against said Sher Singh and consequently fresh charges
were framed against all the six accused on 18.
18.02.2002 for offences under
Sections 148, 302/149, 307/149, 506 IPC,, to which the accused pleaded
not guilty and claimed trial. Accused Jaswant Singh was also charged for
offence under Section 25 of Arms Act.
6. The prosecution in order to establish its case examined as many as 222
PWs, the gist of whose testimonies is being briefly referred to herein
under:-
PW-1 HC Satish Kumar stated that he is a trained armourer and that on
9.08.2000 Inspector Ram Kumar had presented a country made
pistol (12 bore) along with two live cartridges and that upon
examining the same he had given his opinion that the pistol was in
working order and proved his report Ex.PA/1 to this effect.
PW-2 UGC Mangat Singh is a formal witness who deposed that on
30.6.2000, SI Umed Singh entrusted three sealed enve
envelopes
containing special reports for their onward transmission to Illaqa
Magistrate and to other higher police officials which he
accordingly delivered to the authorities concerned on the same
very day.
PW-3 HC Dharam Pal tendered his affidavit Ex.PC in evidence wherein
he deposed that on 19.6.2000 when he was posted as MHC at
Police Station Civil Lines, SI Umed Singh had deposited two
parcels in the malkhana and that on 18.9.2000 he handed over the
aforesaid parcels to Constable Kulbir Singh for depo
depositing the
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integrity of this document
CRA-D-642-DB-2004 (O&M);
CRA-D-661-2004
2004 (O&M) &
CRA-S-1378-SB-2004
2004 (O&M)
(6)
same in FSL Madhuban and that as long as the said parcels
remained in his custody the same were not tampered with.
PW-4 Vikas Sahni who is an eye-witness
eye witness of the occurrence stated in
detail about the manner of occurrence
occurrence, broadly in tune with the
case of prosecution. He specifically stated that Kimti Lal,
Hanuman and Ram Pal caught hold of Virender Gaba (deceased)
and inflicted injuries to him with the help of bottles on his head,
eyes and temporal region.
PW-5 Yogesh Gaba stated that Virender Gaba (deceased) was his elder
brother who was into dairy business and that on 18.6.2000 his
brother had gone to Shifali Hotel,
Hotel Karnal to collect his payment
and that he along with his unc
uncle Vijay Sachdeva also
accompanied Virender Gaba to the said hotel. W
While they were
present in the said hotel, a Tata Sierra came there. Three persons
riding a LML Vespa scooter also came there and out of which he
(PW
(PW-5) knew two of them namely Kimti Lal and Hanuman. He
further stated that the 3rd person was referred to as Raju @ Ram
Pal. The three persons who had come on a scooter talked to the
occupants of the Tata Sierra vehicle and entered into the said
building and occupied the chairs in the dining hall. He deposed
that two out of them i.e. Raju @ Ram Pal and Kimti Lal removed
their shirts to which the hotel owner Vikas Sahni objected and
told them to conduct themselves in a decent manner
manner, upon which
a scuffle took place and the said persons gave slaps and fist blows
to the hotel owner Vikas Sahni and went out. PW-5 further stated
in tune with the case of prosecution as regards the aforesaid three
persons having picked up soda bottles and having hurled the same
towards the hotel and that when Virender Gaba tried to stop them,
the said three persons caught hold of Virende
Virender Gaba and gave
injuries to him on his head, eyes and temporal region with the
bottles. He also stated that all the accused sat in the TATA Sierra
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CRA-D-642-DB-2004 (O&M);
CRA-D-661-2004
2004 (O&M) &
CRA-S-1378-SB-2004
2004 (O&M)
(7)
vehicle and attempted to run over the vehicle upon them and that
Jaswant Singh, while brandishing a pistol th
threatened to kill them.
PW-6 Sandip
Sand p Arora who is the complainant stated in tune with his
statement (‘ruqa’)
( ) Ex.PF, on the basis of which FIR came to be
lodged.
PW-7 Sushil Bathla
B stated that on 18.6.2000 while he was posted as
Medical Officer in Government Hospital, Karnal, he had medico
legally examined Virender
V Kumar and had recorded the injuries in
MLR. He proved the MLR as Ex.PG.
PW-8 Vinod Kumar, Ahlmad, District Magistrate Ka
Karnal proved the
sanction order Ex.PH passed by the District Magistrate, Karnal as
regards prosecution of Jaswant Singh for offence under Section
25 of Arms Act.
PW-9 C.Vir Shakti Singh who had prepared the site plan proved the
same as Ex.PJ.
PW-10 Smt. Shashi Bhatia, Record Keeper, District Courts, Karnal
proved an attested copy (Ex.PK) of bail application which had
been filed by Kimti Lal in the Court of District and Sessions
Judge, Karnal.
PW-11 Dr. Sandeep
Sand Grewal stated that she had conducted the post
mortem examination on the dead body of Virender Kumar
(Gabha) on 30.06.2000 and proved the Post-Mortem Report as
Ex.PL. PW-11 opined that the cause of death was superadded
infection due to injuries sustained by the deceased which were
sufficient to cause death in ordinary course of nature.
PW-12 S.II. Kushal Singh stated that on 16.
16.07.2000 he had been
entrusted with the task of getting the test identification parade
conducted in District Jail, Karnal, but accused Dalbir refused to
participate in the test identification parade.
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CRA-D-642-DB-2004 (O&M);
CRA-D-661-2004
2004 (O&M) &
CRA-S-1378-SB-2004
2004 (O&M)
(8)
PW-13 S.I. Chatarbuj stated that he had been deputed by Inspector Ram
Kumar on 11.07.2000 to get the test identification parade
conducted with regard to Jaswant Singh in District Jail, Karnal,
but when he went to the Jail, aforesaid Jaswant Singh refused to
participate in the test identification parade.
PW-14 Bal Kishan, Clerk in the office of SDM Karnal
Karnal, proved the
record pertaining to scooter bearing registration No.
No.HR-05H-
2904 as per which the scooter stood registered in the name of
Kimti Lal.
PW-15 Constable Kulbir Singh tendered his affidavit is Ex.PD in
evidence deposing therein that on 18.9.2000 he had deposited
two sealed parcels in FSL Madhuban, handed over to him by
MHC Dharampal and that
that as long as the said parcels remained in
his custody the same were not tampered with
with.
PW-16 SI Umed Singh stated that on 18.06.2000, upon receipt of
telephonic message in the police station regarding admission of
Virender
irender in the General hospital, Karnal, he proceeded to the
Hospital, from where he came to know that the injured had been
referred to PGI, Chandigarh.
Chandigarh However, Sandeep (complainant)
was present and got his statementEx.PF recorded on the basis of
which formal FIR Ex.PF/2 came to be lodged. He further stated
with regard to the investigation conducted by him thereafter
including visiting the place of occurence
occurence, lifting of shattered
pieces of glass and blood stained soil. He also stated that LML
scooter which was found parked outside the hotel, was also taken
into possession. He stated in detail with regard to the
investigation conducted in the matter while the matter remained
entrusted to him.
PW-17 SI Ram Mehar stated that Sher Singh, who had earlier been
declared a proclaimed offender surrend
surrendered before the Court of
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2004 (O&M) &
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2004 (O&M)
(9)
Chief Judicial Magistrate, Karnal on 17.09.2001 and that he had
formally arrested him with the permission of the Court on
22.09.2001 and that upon completion of investigation, a
supplementary challan had
ha been filed against said Sher Singh.
PW-18 Ram Singh, Medical Record Technician, Central Registration
Department, PGI, Chandigarh, produced the medical record
pertaining to Virender
V Kumar with regard to treatment given to
him in PGI.
PW-19 K.K.Rao, Superintendent of Police (Vigila
(Vigilance), Hisar, who had
taken over investigation of the case on 01.07.2000, stated with
regard to the proceedings conducted by him.
PW-20 Hawa Singh, SDM, Ambala,
Ambala, stated that on 11.07.2000, he was
posted as Naib Tehsildar, Karnal when an application was
presented before him by the police for getting test identification
parade conducted with regard to Jaswant Singh, and pursuant
thereto he went to the District Jail, Karnal, but Jaswant Singh
refused to participate in the same. He further stated that simil
similar
was the position with regard to Dalbir Singh, who also refused to
participate in the test identification parade.
PW-21 Inspector Ram Kumar stated that on 09.07.2000 he had taken
over the investigation of the case from DSP K.K.Rao
K.K.Rao. He stated
with regard to the investigation conducted by him. He stated that
on 08.08.2000,, Jaswant Singh was interrogated by him during the
course of which he suffered a disclosure statement Ex.PEE
regarding his having concealed a country
country-made pistol 12 bore
alongwith 2 live cartridges in the rear side of rice sheller of Jai
Parkash Gupta, MLA. PW-21 further stated that pursuant to said
disclosure statement, Jaswant Singh led the police party to the
nominated place and got the live cartridges and pisto
pistol recovered,
which were
w taken into possession and were sealed and were later
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CRA-D-642-DB-2004 (O&M);
CRA-D-661-2004
2004 (O&M) &
CRA-S-1378-SB-2004
2004 (O&M)
( 10 )
deposited in the Malkhana. He stated that upon completion of
investigation, he sent the file to Civil Lines, Karnal for
preparation of report under Section 173 Cr.P.C.
PW-22 Dr. Sanjay Bansal stated that Virender Kumar was admitted in
PGI on 19.06.2000
19. 6.2000 and that he was examined by Dr. Phani and
that the patient was in unconscious state and that CT Scan of his
head revealed presence of hematoma
hem toma in the brain. He further
deposed that the injured was having multiple incised wounds
over his head, right eyelid and lacerated
cerated wound over left side of
his head.
7. Upon closure of the prosecution evidence, when the statements of the
accused were
ere recorded in terms of Section 313 Cr.P.C.
Cr.P.C., they denied the
case of prosecution in toto and pleaded false implication. The accused,
however, examined DW-1 Rajinder Singh, who stated that Dalbir Singh
was his brother-in-law
brother law and that the police came to his house in July, 2000
and enquired about Dalbir Singh. He further stated that the police entered
his house and took away family photographs after he (DW
(DW-1) pointed
towards the photograph of Dalbir Singh. DW
DW-2 Sunil Mann stated that on
15.07.2000 when he was passing through the street in front of the house
of Dalbir Singh, he noticed that 3-4
3 4 persons were standing there. He
stated that Dalbir Singh’s mother informed him that the police had taken
away photographs of Dalbir Singh and also his voter identity card. DW-3
Bijender Kumar, Sub Inspector, Food & Civil Supply Department, Karnal
produced the record pertaining to issuance of a license in favour of Ram
Parkash for public distribution of grains etc. He stated that as per rule
rules,
the depot holder has to run a depot himself and that Ram Parkash had
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2004 (O&M) &
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2004 (O&M)
( 11 )
himself been running the depot allotted to him. DW-4 Yashpal Chand
Jain, Finger Print and Document Expert, Jind stated that he had examined
the thumb impression of Kimti Lal as exist
existing on bail application dated
23.06.2000 (Ex.DH) and had compared the same with the thumb
impressions as existing on the Vakalatnama in favour of Shri
P.K.Bhandari, Advocate and had opined that the said thumb impressions
P.K.Bhandari,
do not match with each other. He proved
proved his report Ex.DL in this regard.
DW-5 Ram Pal,
Pal, Senior Accountant, Central Cooperative Bank, Karnal
stated that a letter dated 19.07.2000 written by Ranbir Singh Mann, the
then Branch Manager of Moonak Branch was received in the head office
on 20.07.2000. He proved the copy of said letter as Ex.DM. DW-6 Ram
Narain stated that Sher Singh is his son and that he (DW-6) owned land in
Villages Gagsina and Rasalva and that while he resides in Village
Rasalva, the land of his son is in village Gagsin
Gagsina. He stated that Sher
Singh had raised a loan from Central Cooperative Bank, Moonak by
mortgaging his land situated in Village Gagsina. He stated that police had
visited his house on 18.07.2000 and taken away bank pass
pass-book of his son
Sher Singh and that
that on the next day, he had made an oral complaint in the
office of Deputy Commissioner, Karnal. DW
DW-7 Dharam Pal stated that on
18.07.2000 while he was posted as Loan Clerk Central Cooperative Bank,
Moonak Branch,
Branch, a police party had visited the bank and enquired about
the accounts of Sher Singh and that he expressed his inability to furnish
information on account of the rules of the bank and had asked the police
officials to get the permission from the head office
office. He further stated that
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2004 (O&M) &
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2004 (O&M)
( 12 )
the police officials also threatened the Manager Ranbir Singh and forcibly
took away the photograph of Sher Singh, which was affixed on his loan
account.
8. The learned trial Court, upon marshalling the evidence on record, held
that
hat the prosecution had been successful in establishing its case and
accordingly, convicted the accused vide judgement dated 12.6.2004 which
is being impugned in the instant appeals. It may here be mentioned that
accused/appellant No.3 – Sher Singh in CRA
CRA-S-1378-SB-2004 has
expired and proceedings qua him stand abated vide order dated
17.12.2024..
9. Learned counsel for the appellants,
appellant while assa
assailing the case of
prosecution broadly raised the following submissions:
prosecution,
(i) that
hat even if all the allegations are taken to be correct, the appellants
cannot be held responsible for death of V
Virender Gaba, as he had
admittedly died after about 12 days of the occurrence on account of
some infection in the body and apparently it was on account of
negligence on the part of the Doctors, which resulted in infection
leading
ing to his death. It has been submitted that in the post
post-mortem
report, the cause of death has been attributed to “”superadded
infection” and under these circumstances, give
given the fact that the
appellants did not inflict injuries with any sharp edged weapon or
with any fire arm, the death cannot be said to be a natural
consequence of the injuries allegedly caused by the accused
accused;
(ii) that
hat in any case, the appellants cannot be attributed any mens rea
for causing death inasmuch as admittedly it is a case where there
was no prior enmity between the deceased and the accused and that
VIMAL KUMAR
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CRA-D-642-DB-2004 (O&M);
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2004 (O&M) &
CRA-S-1378-SB-2004
2004 (O&M)
( 13 )
some dispute had allegedly taken place at the spot on account of
two of the accused having taken off their shirts in a hotel dining
hall;
(iii) that
hat there is no proper identification of the accused some of whom
have been identified by the witnesses for the first time in the Court;
(iv) that
hat an attempt has been made
made by the police to rope in a large
number of persons as accused and that apart from the allegation that
three persons had hurled soda water bottles at the deceased, the
police has come with a false allegation to the effect that another 3
of their other co-accused
co accused tried to run over the complainant and his
companions with a Tata Sierra vehicle though neither there is any
evidence to corroborate the said fact nor any other person other
than the deceased has been found to be injured in the incident.
10. It has, thus, been submitted that the impugned judgment be set aside and
consequently the appellants be acquitted of all the charges framed against
them.
11. Opposing the appeals, the learned
learned State counsel submitted that having
regard to the fact that it is a case based on direct evidence inasmuch as the
complainant (Sandip Arora) is an eye-witness
witness of the occurrence in
question and whose testimony has remained unimpeached coupled with
the fact that medical evidence
evidence fully corroborates the case of prosecution,
there is no room to doubt the complicity of the appellants.
12. We have considered the rival submissions addressed before this Court and
with the assistance of learned counsel have also perused the record of the
case.
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2004 (O&M) &
CRA-S-1378-SB-2004
2004 (O&M)
( 14 )
13. Before proceeding further, it is apposite to first of all refer to the medical
evidence as regards the injuries sustained by the deceased V
Virender Gaba
and the cause of his death.
death Immediately after the occurrence had taken
place on 18.06.2000, Virender
V Kumar, who had been badly injured, was
taken to General Hospital, Karnal where he was medically examined by
Dr. Shushil Bathla,
B , who has been examined by the prosecution as PW
PW-7.
PW-77 Dr. Sushil Bathla
B described the injuries found on tthe person of
Virender Kumar as under:
under
“1. Incised wound 5cmx3/4 cm x bone deep on the right
parietal region of the skull. Bleeding was present. The
wound was 7 cm away from the upper pole of right ear.
Advised x-ray skull.
2. Incised wound 3cmx ¾ x ½ cm on the right eyebrow
bleeding was present. X-R
Ray was advised.
3. Incised wound 1cmx ½ x ½ cm on the right upper eye lid.
4. A lacerated wound 6cm x 1cm x bone deep on the left
parieto occipital region of the skull. Bleeding was present.
Advised X-Ray skull.”
14. A perusal of the aforesaid injuries indicates that Virender Kumar had
sustained as many as 4 injuries on various parts of head and on his right
eye. Since Virender Kumar could not survive, his dead body was
subjected to post-mortem
post mortem examination, which was conducted by PW
PW-11
Dr. Sandee
eep Grewal,, who proved the post
post-mortem report as Ex.PL,
wherein she
he recorded the injuries found on the dead body of Virender
Gaba as under:
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2004 (O&M) &
CRA-S-1378-SB-2004
2004 (O&M)( 15 )
“1. There was U shaped stitched wound st
started from right
mandibular form to right frontal bone after encircling right
temporal bone around 24 cm in length.
2. Multiple brown scab formation over ventral aspect of right hand.
3. Brown scar formation about 0.5cmx1.5cm over the interior
aspect of right leg.
4. Stitched wound over left eye brow. There were two stitches.
5. Wound over left occipital region above 2cmx0.5cm.
6. Traechostomy had been done. Pus oozes out of the surgical
traechstomy wound.”
15. PW-11 opined that the cause
ca of death was superadded infection due to the
injuries sustained by the deceased which were enough to cause death in
ordinary course of nature.
nature. During the course of cross
cross-examination, she
stated as under:
” ………..the pus formation as found in the surgical wounds as
also in the lungs. The pus could be formed because of surgical
wounds or because of other injuries i.e. any external injury. It is
correct that by analysis of the pus it could be found as to what
kind of bacteria was there in the pus. This could be done by the
culture of the pus. Some of the bacterias are present in the
orifices of the body. Bacteria is present everywhere. It could
attack in the hospital as well. Voluntee
Volunteered that due to weakness
of the body of the patient also, the patient may not be able to
fight back the bacterial attack. …… ….. …..”
16. Though learned counsel for the appellants vehemently argued that the
death was not a natural outcome of the injuries caused by the accused, but
was on account of subsequent infection which had developed in the body
on account of negligence of the Doctors, but having regard to the fact that
it is a case where the deceased died within about 12 days of occurrence
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while he was still undergoing medical treatment in the PGI for the injuries
sustained by him,
him the plea raised on behalf of the accused/appellants that
the death was not a natural consequence of the injuries is unsustainable
inasmuch as there always
al is a chance of infection in case of an incised
wound as the flesh
f underlying the skin or the muscle when exposed is
prone to catch infections
17. Hon’ble Supreme Court in State of Haryana Vs. Pala & others reported in
(1996) 8 SCC 51,
51, discussed the difference between the primary effect of
the injuries and the secondary effect of the injuries. The deceased, in the
said case, was hit on his head thrice and then he fell down. Another
accused had also hit him thrice on his chest and abdomen. The deceased
was taken to the hospital. The deceased died several days later, while in
the hospital. The doctor’s
doctor’s opinion in respect of the cause of death in the
said case was as follows:
” Cause of the death was due to septicaemia, which
resulted as a result of the head injury and was sufficient
to cause death in ordinary course of nature.
nature.”
18. The trial Court
Court had convicted the accused under Section 302 IPC. On
appeal, the High Court converted the offence of murder into culpable
homicide not amounting to murder and convicted the aaccused under
Section 304 Part II off IPC. In the further appeal, the Hon’ble Supreme
Court held as follows:
“3. On the other hand he contended that w
when death was due to septicemia,
it cannot be referable to the cause of the death in the ordinary course of
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nature due to anti-mortem
anti mortem injuries and that, therefore, the offence of
murder
der has not been made out. In support thereof, he sought to place
reliance on Lyon’s Medical Jurisprudence for India (Tenth Edition) at
page 222. It is stated therein that “Danger to life depends, primarily, on
the amount of haemorrhage, on the organ wound
wounded, and on the extent of
shock, secondarily, on secondary haemorrhage, on the occurrence of
septicaemia, erysipelas, tetanus, or other complications. In answering
the question whether a wound is dangerous to life, the danger must be
assessed on the probable
probable primary effects of the injury : Such
possibilities as the occurrence of tetanus or septicaemia, later on, are not
to be taken into consideration.” Though the learned counsel had not read
the later part of the opinion, the medical evidence on record do cl
clearly
establish that septicaemia is not the primary cause and the death was
due to injuries caused to the deceased and they are sufficient to cause
death in the ordinary course of nature. Septicaemia would, therefore, not
be taken into account.”
19. From the above judgment, it is crystal clear that it is not as though in
every case where the death is due to Septicemia resulting on account of
the injuries, the offence would fall outside the scope of murder or
culpable homicide. In Sudershan Kumar V
Vs. State of De1hi, AIR 1974
Supreme Court 2328,
2328 Hon’ble Supreme Court, in a case of death by acid
burn injuries resulting in medical complications, observed that the fact
that the deceased lingered for about 12 days would not show that the
death was not the direct result of the act of the accused in throwing aacid
on her. It was further held that the fact that the deceased developed
symptoms of malaena and respiratory failure and they also contributed to
her death could not in any way affect the conclusion that the injuries
caused by the acid burns were the direct
direct cause of her death. In the said
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case, the conviction of accused for offence under section 302 IPC was
maintained.
20. The contention of the counsel that death was on account of complications
due to medical negligence and that with proper medical care the deceased
could have survived and therefore Section 302 IPC is not attracted clearly
overlooks Exception 2 to Section 299 IPC, which reads as follows:
“Explanation 2.-
2
Where death is caused by bodily injury, the person who causes
such bodily injury shall be deemed to have caused the death
although by resorting to proper remedies and skillful treatment
the death might have been prevented.”
21. When the medical evidence led in the instant case is examined on the
touchstone of the principles of law highlighted
highlighted in cited judgments, the
inevitable result is that death was direct result of injuries inflicted to
deceased. As already discussed above, the deceased was found to have
sustained 4 injuries including three incise wounds on various parts of head
and
nd on his right eye. The death took place within about 12 days of
occurrence while he was still undergoing medical treatment in the PGI for
the injuries sustained by him. PW-11
PW 11 Dr. Sandeep Grewal opined that the
cause of death was superadded infection due to the injuries sustained by
the deceased which were enough to cause death in ordinary course of
nature. There is nothing on record to suggest that the deceased was not
properly treated before his death. As such, the contention put
put-forth on
behalf of the appellants
a that
hat the cause of death was on account of the
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negligence of the doctors
doctors is not acceptable. Rather, the death was
immediate and natural result of the injuries inflicted to deceased wherein
infection had also set in.
22. As regards the evidence to establish the occurrence, PW-6 Sandip Arora
(complainant) while in the witness-box
witness box stated absolutely in tune with the
allegations as got recorded by him in his statement Ex.PF on the basis of
which FIR Ex.PF/2 came to be lodged. He stated that on 18.06.2000,
when he was present at Shifali Hotel, where he was working, his brother
brother-
in-law
law Vikas Sahni was also present there. He stated that Virender Gaba,
who was running a dairy,
d , came there accompanied by his Fuffad (uncle)
Vijay Sachdeva and his brother Yogesh Gaba. He stated that three
persons had come there on a scooter i.e. Raju, Hanuman and an unknown
person and entered into the hotel and sat on the chairs and that thereafter
Raju and the unknown person took off their shirts to which his brother-in-
law Vikas Sahni objected, as some female guests were also there in the
hotel. He stated that the said persons however started arguing with the
complainant’s brother-in-law
brother law Vikas Sahni and gave him fist blows and
slaps and then went out of the hotel. He stated that the said persons went
across the road to a shop from where they picked up bottles of soda and
threw the same at the complainant and others. PW-6 further stated that
when Virender Gaba (deceased) moved forward to stop the
them, the said
persons caught hold of Virender Gaba and gave blows with soda bottles
on his head, eye and temporal region as a result of which Virender Gaba
fell down. He further stated that there were three more persons, who had
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come in a Tata Sierra vehicle
vehicle and that the aforesaid three assailants also
sat in the said vehicle and they made an attempt to run over the vehicle on
the complainant and others. Despite lengthy cross
cross-examination of PW-6,
nothing could be elicited so as to doubt his credibility in aany manner.
23. The aforesaid statement of PW-6
PW 6 Sandip Arora (complainant) is
corroborated by the testimony of PW-4
PW Vikas Sahni i.e. brother
brother-in-law of
the complainant and who was running Shifali Hotel where the occurrence
had taken place. PW-5
PW Yogesh Gaba has also stated in support of the
prosecution version. Though the name of Yogesh Gaba does not find
mention in the FIR, but this Court finds that even if for the sake of
arguments, his testimony is not taken into account, the testimony of
complainant (PW-6
(PW Sandip Arora) finds ample corroboration from the
testimony of PW-4
PW 4 Vikas Sahni, who have both stated consistently as
regards the manner in which three accused, namely, Ram Parkash, Ram
Pal
al and Kimti Lal had inflicted injuries to the deceased.
24. Having regard to the aforesaid consistent testimonies, this Court has no
hesitation
ation in affirming the findings of the trial Court to the effect that the
aforesaid three persons, namely, Ram Parkash, Ram Pal and Kimti Lal
had inflicted injuries to deceased with the help of bot
bottles of soda water
which ultimately led to his death.
25. As far as role of three other accused, namely, Jaswant Singh, Dalbir Singh
and Sher Singh is concerned,, the case of the prosecution is that they had
come in a Tata Sierra vehicle and that after the three assailants, namely,
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Ram Parkash, Ram Pal and Kimti Lal had inflicted injuries to deceased,
they also sat in the vehicle and they all tried to run over their vehicle over
the complainant and others. However, apart from the fact tha
that there is
nothing on record as to who was driving the vehicle in question, it is a
case where none from the complainant side has sustained any injury on
account of alleged attempt made by the accused to run over the vehicle
over the complainant and others.
others While it could be expected that the
complainant PW-6
PW and PW-5 Yogesh Gaba could have quickly moved to
safety and avoided being run over by the speeding vehicle but the fact that
Virender who had been rendered immobile on account of injuries inflicted
to him, was also not found to have been run over by the vehicle creates a
doubt as regards the said part of prosecution story.
26. Admittedly, the other three persons i.e. Jaswant Singh, Dalbir Singh and
Sher Singh were neither present inside the hotel nor were amongst those,
who had thrown soda bottles on the deceased. Under these circumstances,
they can neither be attributed with any overt act in causing any injury nor
is there any evidence to show that they shared any kind of common
intention
ion with the other three accused for inflicting injuries to the
deceased or to cause his death or to cause injury to the complainant or to
anybody else. Under these circumstances, the said three persons i.e.
Jaswant Singh, Dalbir Singh and Sher Singh cannot be held guilty either
for offence under Section 148 IPC or Section 307 IPC or Section 302 IPC.
Their conviction for offence under Section 307 IPC, as such, is
unsustainable and deserves to be set aside. Similarly, the other three
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accused namely Ram Pal, Ram Parkash and Kimti Lal also des
deserve
acquittal as far as offences under section 148 and 307 IPC are concerned.
For the same reasoning, conviction of appellant – Jaswant Singh for
offence under Section 506 IPC also cannot be mainta
maintained and he deserves
acquittal for the said offence as well.
27. Coming back to the case of three main assailants i.e. appellants namely,
Ram Pal, Ram Parkash and Kimti Lal,
Lal, who had hurled soda water bottles
at the deceased, the moot question before th
this Court is as to whether on
account of the fact that the deceased ultimately succumbed to his injuries
caused by aforesaid three persons offence under Section 302 IPC is made
out or as to whether it is a case where any lesser offence in terms of
provisionss of Section
Section 304 IPC would be made out. While considering the
said question, it is apposite to bear in mind the provisions of section 300
IPC which reads as under:
300. Murder. – Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with the intention of
causing death, or –
2ndly. – It is done with intention of causing such bodily injury as the offender
knows to be
be likely to cause the death of the person to whom the harm is caused,
or –
3rdly. – If it is done with the intention of causing bodily injury to any person and
the bodily injury intended to be inflicted is sufficient in the ordinary course of
nature to cause
ca death, or –
4thly. – If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury as is
likely to cause death, and commits such act without any excuse for incurring the
risk
isk of causing death or such injury as aforesaid.
Exception 1.– When culpable homicide is not murder. – Culpable homicide is not
murder if the offender, whilst deprived of the power of self
self-control by
grave and sudden provocation, causes the death of the person who gave
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the provocation or causes the death of any other person by mistake or
accident.
The above
above exception is subject to the following provisos:
provisos:-
First. – That the provocation is not sought or voluntarily provoked by
the offender as an excuse for killing or doing harm to any person.
Secondly. – That the provocation is not given by anything done in
obedience to the law, or by a public servant in the lawful exercise of the
powers of such public servant.
Thirdly. – That the provocation is not given by anything done in the
lawful exercise of the right
ight of private defence.
Explanation. – Whether the provocation was grave and sudden enough
to prevent the offence from amounting to murder is a question of fact.
Exception 2. – Culpable homicide is not murder if the offender, in the exercise in good
faith of the right of private defence of person or property, exceeds the
power given to him by law and causes the death of the person against
whom he is exercising such right of defence without premeditation, and
without any intention of doing more harm that in necessary for the
purpose of such defence.
Exception 3. – Culpable homicide is not murder if the offender, being a public servant
or aiding a public servant acting for the advancement of public justice,
exceeds the powers given to him by law, and causes death by doing an
act which he, in good faith, believes to be lawful and necessary for the
due discharge of his duty as such public servant and without ill ill-will
towards the person whose death is caused.
Exception 4. – Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden
quarrel and without the offenders having taken undue advantage or acted
in a cruel or unusual manner.
Explanation. – It is immaterial in such cases which party off
Explanation offers the
provocation or commits the first assault.
Exception 5. – Culpable homicide is not murder when the person whose death is
caused, being above the age of eighteen years, suffers death or takes the
risk of death with his own consent.
consent
28. In somewhat identical circumstances, in a recent judgment rendered on
25.04.2024 in Criminal Appeal No.2265 of 2024 titled Mohd. Ahsan vs.
State of Haryana,
Haryana, Hon’ble Supreme Court altered the offence from
Section 302 IPC to Section 304 Part I IPC. The rele
relevant extract wherein
facts are recorded is reproduced herein under:
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“3.2 The prosecution case is that on 17th August, 2005 at about 11
11-11:30 p.m.,
the de-facto
de complainant (PW-10)
10) had been taking food at Shiv Dhaba which
was situated opposite Bus Stop, Jagadhri, in the company of Charan Singh
and Rajiv Kumar (PW-12),
(PW 12), when another group of four men, namely, Neeraj
Gulati (PW-11),
(PW 11), Kamal Kumar, Naresh Kumar and the deceased arrived at
the Dhaba to partake their meals. To attract the attention of the waiter, the
deceased called the waiter by use of the word “hello”. This gesture irked
another customer i.e. the present Appellant who was seated in a corner of the
Dhaba, smoking a cigarette. The Appellant initially abused the deceased in
the name of his sister and
and thereafter rose from his seat, walked up to the
deceased and grappled with him. During the said quarrel, the Appellant and
the deceased went out of the Dhaba where they were separated by the
complainant (PW-10)
(PW 10) and his companions. However, refusing to relent, the
Appellant rushed to his car and pulled out a glass bottle which he broke on
the bonnet of his car and thereafter proceeded to inflict five injuries on the
body of the deceased, due to which the deceased fell to the ground bleeding,
after which the
the Appellant fled from the scene. Subsequently, Neeraj Gulati
(PW 11) and the others present at the Dhaba placed the deceased on the
(PW-11)
motorbike of PW-11
PW 11 and rushed him to Aggarwal Hospital, but owing to the
unavailability of a doctor, the deceased was subse
subsequently taken to the Civil
Hospital, Jagadhri, where he eventually succumbed to his injuries.
injuries.”
29. Para 13 to 15 of the cited judgment wherein the relevant discussion has
been made for altering conviction read as under:
“13.
13. From the testimonies of the prosecution
prosecution witnesses themselves, it would reveal
that there is no premeditation. The incident occurred since the appellant
believed that the utterances by deceased Vikrant @ Chintu were aimed at him
and, therefore, he retaliated by abusing the deceased. Th
This was followed by a
heated exchange between them. They grappled out of the building of the Dhaba.
Though the witnesses were successful in separating them, the accused
accused-
Appellant rushed to his car, pulled out a bottle from the driver’s seat side, broke
it on
n the bumper of the car and attacked the deceased.
14. It is thus clear that the incident occurred without premeditation, in a sudden
fight, in the heat of passion and upon a sudden quarrel. The evidence would also
not show that the accused-Appellant
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in a cruel or unusual manner. We therefore find that the present case would fall
under Exception 4 to Section 300 of the IPC.
15. We therefore find that the present appeal deserves to be partly allowed. The
conviction of the accused-Appellant
Appellant under Section 302 of the IPC is altered to
one under Part I of Section 304 of the IPC and he is sentenced to rigorous
imprisonment for a period of eight (08) years and a fine of Rs.5,000/
Rs.5,000/- (Rupees
Five thousand) and in default of payment of fine, a further imprisonment for a
period of three (03) months.”
30. Admittedly, the instant case is a case where there was no premeditation on
the part of the accused. They had no motive whatsoever to eliminate the
deceased nor were carrying any weapon at the time of occurrence. It was
on account of the owner of Shifali Hotel namely Vikas Sahni (PW-4)
having objected to the conduct of Raju @ Ram Pal having taken off his
shirt in the dining hall that a quarrel ensued between three accused and the
hotel owner and after giving fist blows and slaps to the hotel owner all the
said three assailants immediately rushed outside the hotel and picked up
soda water bottles from a shop situated across the road and threw the
same towards the hotel. However, when the deceased, who had in fact
come to the hotel to collect payment for having supplied dairy products,
tried to intervene and to stop the assailants, he suffer
suffered the wrath of three
assailants, who hit him with bottles. It is a case where everything
happened in the spur of the moment without there being premeditation.
The accused, as already noticed, were neither carrying any weapon nor
had made any preparation to inflict injuries. The case of the accused
would, thus, be covered under Exception 4 of Section 300 IPC.
Consequently, the conviction of the appellants, namely, Kimti Lal, Raju
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@ Ram Pal, Hanuman @ Ram Parkash for offence under Section 302 IPC
is found to be unsustainable. However, the facts oof the case, as discussed
above, attract an offence punishable under
under Section 304 Part
Part-I IPC.
31. Resultantly, CRA-S-1378-SB-2004 preferred on behalf of appellants –
Jaswant Singh and Dalbir Singh is allowed and they are acquitted of all
the charges framed against them.
them CRA–D-642-DB-2004 preferred on
behalf of appellants – Kimti Lal and Ram Parkash as well as CRA-D-661-
2004 preferred on behalf of appellant – Ram Pal are partly allowed to the
extent that whilee their conviction for offence under Section 148 IPC and
307 IPC is set aside, their conviction for offence under Section 302 read
with Section 34 IPC is converted into an offence under Section 304 Part I
read with Section 34 IPC and they are sentenced tto undergo rigorous
imprisonment for 7 years. The fine as imposed by the trial Court shall
shall,
however, remain unaltered.
32. A copy of this judgment be sent to the quarters concerned for necessary
compliance.
33. The appellants,
appellant if on bail, be arrested immediately to undergo remaining
part of sentence.
34. Pending application/s, if any, are also stand disposed of.
(GURVINDER
GURVINDER SINGH GILL
GILL)
JUDGE
18.01.2025 (JASJIT SINGH BEDI)
mohan/Vimal
Vimal JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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