Vs. State of Haryana  INSC 413 (8 October 1993)
K. JAYACHANDRA (J) REDDY, K. JAYACHANDRA (J) RAY, G.N. (J) CITATION: 1994 AIR
1582 1994 SCC Supl. (1) 498 JT 1993 Supl. 143 1993 SCALE (4)35
Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.- Special leave
appellant was tried for an offence punishable under Section 302 IPC and has
been ultimately found guilty under Section 304 Part II IPC and sentenced to
undergo four years' RI and to pay a fine of Rs 10,000 in default of payment of
which to further undergo one year's RI.
facts of the prosecution case are that on April 2, 1986 at about 2 p.m. the appellant came in front of the house of Jia Lal,
deceased and there was a quarrel and the appellant kicked the deceased on his
testicles as a result of which the deceased fell down. The appellant again
kicked on the testicles of the deceased. The wife and daughter of the deceased
intervened and they removed the injured to the house and later he was shifted
to the hospital only on April
4, 1986. The doctor
found a diffused swelling on the scrotum and penis and skin over the scrotum
and penis was found to be blackening and gangrenous and he was treated in the
hospital. Because of the gangrene the deceased died on April 5, 1986. A case was registered under
Section 302 IPC.
Sabharwal, PW 8 conducted the postmortem and he opined that the death was due
to toxemia because of the gangrene which could be the result of the injury to
the testicles. PW 6, another doctor again gave a medical opinion that the
duration between injury and the death could not be given because the cause of
death was toxemia due to gangrene. The doctor also admitted that because of the
lack of immediate medical help, the gangrene developed.
Both the courts below have accepted the prosecution case that the appellant
kicked the deceased on the testicles. The High Court held that by giving such
kicks, the appellant had knowledge that he was likely to cause the death and
accordingly convicted him under Section 304 Part II IPC.
Having regard to the medical opinion, admittedly the injury to the testicles
was not the direct cause of death.
treatment was given for two days and it is only on April 4, 1986 that the deceased was admitted in the hospital. but,
unfortunately, in the meanwhile gangrene developed. Under the circumstances the
offence only amounts to one punishable under Section 323 PC. In the result, the
conviction of the appellant under Section 304 Part 11 IPC and the sentence of
four years' RI awarded thereunder are set aside. Instead he as convicted under
Section 323 IPC and sentenced to undergo seven months' RI. the sentence of fine
with default clause and the direction that the whole amount should be paid to
the heirs of the deceased, are confirmed. Subject to the above modification of
sentence, the appeal is disposed of.