IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No. 44116 of 2008 in
Crl. Appeal No. 669-DB of 2008
Date of decision: November 18, 2008
Rakesh and another
..... Applicants/Appellants
Versus
State of Haryana
..... Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MRS. JUSTICE SABINA.
Present: Mr. R.N. Lohan, Advocate for the applicants/appellants.
Mr. H.S. Sran, Addl. A.G., Haryana.
***
S.S. SARON, J. (ORAL)
Heard counsel for the parties.
The applicants – Rakesh (appellant No.1) and Mahabir (appellant No.2)
by way of Crl. Misc. application seek suspension of sentence of imprisonment and
of fine during the pendency of the appeal.
The case of the prosecution is that the deceased Rajbir son of Hans Raj
was a labourer and on 01.01.2005 at 8.15 p.m. he was going for exercise near the
Railway line. When he reached behind the room near Chhapra at a distance of 100
yards, Rakesh (applicant/appellant No.1) and Mahabir (applicant/appellant No.2)
were sitting there. On seeing him, Rakesh (applicant/appellant No.1) said that
enemy had come. On this, Mahabir (applicant/appellant No.2) caught hold of Rajbir
(deceased) and Rakesh (applicant/appellant No.1) gave a ‘kulhari’ blow on the head
and neck of Rajbir (deceased) which hit on the fingers of his left hand. Rajbir
Crl. Misc. No. 44116 of 2008 in [2]
Crl. Appeal No. 669-DB of 2008
(deceased) raised an alarm. On hearing his cries, his father Hans Raj and Rattan Lal
son of Mothu reached at the spot. On seeing them, both the assailants ran away.
Hans Raj father of Rajbir (deceased) shifted him to Metro Hospital, Hisar where he
was admitted. The motive behind the occurrence was with respect to a dispute of
money transaction between the accused and Rajbir (deceased). On the basis of the
statement, the present FIR for the offences under Sections 307, 324/34 IPC was
registered against the applicants/appellants.
Learned counsel for the applicants/appellants has submitted that the
occurrence in the case is of 01.1.2005 and the FIR was registered on 08.1.2005.
Rajbir (deceased) was discharged from the hospital on 14.1.2005 and thereafter he
died on 3.4.2005. A reference has been made to the deposition of Dr. Raj Kumar
Saraf (PW-8) who conducted the post-mortem on the dead body of Rajbir along with
Dr. J.L. Jhajharia. The cause of death in the their opinion was due to asphyxia
resulting from bilateral pulmonary edema and bilateral broncho pneumonitis,
sufficient to cause death in due course of nature. It is submitted that the death of
Rajbir is in no way the direct or the consequential result of the alleged injuries
attributed to the applicants/appellants. Therefore, it is submitted that the learned
trial Court has erred in convicting the applicants/appellants for the offence under
Section 302 read with Section 34 IPC.
In response, learned counsel for the State has submitted that the
applicant Rakesh (appellant No.1) though has undergone three years, nine months
and fifteen days of sentence of imprisonment as on 17.11.2008, however, his post-
conviction imprisonment is of three months and five days only. It is further
submitted that the applicant Mahabir (appellant No.2) has undergone actual
imprisonment of about three months only. Besides, it is submitted that the learned
trial Court has held that the fact remain that the deceased Rajbir died due to injuries
sustained in the occurrence.
Crl. Misc. No. 44116 of 2008 in [3]
Crl. Appeal No. 669-DB of 2008
Therefore, it is submitted that in view of the injuries having been caused by the
applicants/appellants, they are not entitled to the concession of suspension of
sentence of imprisonment or that of fine.
We have given our thoughtful consideration to the contentions of the
learned counsel appearing for the parties. It may be noticed that the contentions as
raised would more appropriately be considered and gone into at the time of final
hearing. However, it may be noticed that there is a difference in the injuries noticed
by Dr. Sanjay Verma (PW-5), Consultant Metro Hospital, Hisar while admitting
Rajbir and that noticed by Dr. Raj Kumar Saraf (PW-8) who along with Dr. J.L.
Jhajharia had conducted the postmortem examination.
Be that as it may. It is evident that cause of death in the opinion of the
Board of Doctors was asphyxia resulting from bilateral pulmonary edema and
bilateral broncho pneumonitis. The question whether these could be the result of the
injuries caused as far back as on 01.1.2005 and the death having taken place on
03.4.2005 is not liable to be gone into at this stage, but is a circumstance which does
show that prima facie it cannot be said to be a result of the injuries sustained in the
occurrence. Therefore, without commenting into the said question at this stage, we
feel that ends of justice would be met if the sentence of imprisonment and fine of the
applicants/appellants during the pendency of the appeal is suspended.
Accordingly, Crl. Misc. 44116 of 2008 is allowed and the sentence of
imprisonment and fine of the applicants Rakesh (appellant No.1) and Mahabir
(appellant No.2) shall during the pendency of the appeal remain suspended subject
to their furnishing personal bonds and sureties each to the satisfaction of the learned
Chief Judicial Magistrate, Hisar.
(S.S. SARON)
JUDGE
November 18, 2008 (SABINA)
amit JUDGE