CRL.A./935/2011 of HASIBUL REHMAN Vs STATE

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 09.04.2013

CRIMINAL APPEAL NO.935/2011

HASIBUL REHMAN

..... AppellantThrough:Ms. Saahila Lamba, Advocate.

versus

STATE (GOVT. OF NCT) OF DELHI..... RespondentThrough:Mr. Sanjay Lao, APP

CORAM:HON'BLE MR. JUSTICE SANJIV KHANNAHON'BLE MR. JUSTICE SIDDHARTH MRIDUL

J U M N T

SANJIV KHANNA, J. (ORAL)

1.The appellant Hasibul Rehman by the impugned judgment dated 7[th]December, 2010 has been convicted under Section 302 of the Indian PenalCode, 1860 for committing the murder of Tarikul on 19[th]February, 2007. Byorder of sentence dated 15[th]December, 2010, the appellant has beensentenced to life imprisonment along with fine of `15,000/-. In default ofpayment of fine, the appellant is to undergo rigorous imprisonment for aperiod of one year.

2.On the question of involvement of the appellant in the occurrence on19[th]February, 2007, we feel that there is sufficient evidence in view of thetestimonies of three eye witnesses Jamirul (PW-8), Jariful (PW-17) andMansoor Ali (PW-18).The three eyewitnesses in almost identicalstatements have averred that the deceased Tarikul, the appellant and three ofthem were residing in the same room at A-70, JJ Colony, Shakurpur, Delhi.About 8/10 days prior to the occurrence, the appellant and deceased Tarikulhad quarreled as the appellant had tried to remove the pant of Tarikul, whichwas objected to. Thereupon, one Soni (PW-7) was called and the dispute wassettled. On 19[th]February, 2007, PW-8 along with the deceased Tarikulreturned from duty at about 9 a.m. The appellant had not gone for duty onthe said date and was in the room. All the three eye witnesses went off tosleep but woke up on the hearing noise. They saw the appellant hitting abottle on the head of deceased Tarikul. PW-8 questioned the appellant but hedid not reply and ran away from there. Tarikul was taken to doctor whostitched the wound and thereafter, Tarikul was brought back to the room.Tarikul, however, kept on vomiting and did not feel well. At 9 p.m., callwas made to Soni (PW-7), co-villager of Tarikul, who was asked to come.Soni came there and took Tarikul to private hospital but he could not beadmitted there as Soni could not arrange for money. Tarikul was brought to

the room of one Alam. Soni then left for taking food. The condition ofdeceased Tarikul had deteriorated. Before Soni could come back, Tarikulexpired. On return, Soni made call to police station and informed the fatherof deceased Tarikul. Police came there and inquiries were made. On thebasis of statement of PW-8 Jamirul, rukka Ex. PW-8/A was prepared on thebasis of which FIR Ex.PW13/A was registered. The police seized twopillows and pieces of the broken bottle from the spot vide seizure memoEx.PW8/B and Ex.PW8/C. The broken bottle pieces were produced beforethe court. It was found to be bottle of Limca cold drink which wasidentified by the witnesses and marked as Ex.P-1. As the bottle was in piecesand it was testified that the pieces were of the same bottle, which was hit onthe head of deceased Tarikul by the appellant. PW8 in his cross-examination,however, admitted that he had not told the police that the appellant hadremoved the pant of the deceased Tarikul. Instead, he had stated this fact toSoni (PW-7) but he did not remember if he had told the police that he hasinformed Soni about the same. PW-8 did not remember the name of thedoctor where the deceased Tarikul was taken immediately after the injury.He did not remember whether the name of the doctor was Dr. SanjeevVishwas or not. He had informed the doctor that Tarikul had fallen from thestair case so that he could get treatment at the earliest. He, however, denied

the suggestion that the deceased had fallen from the staircase and sustainedthe head injuries. He deposed that the doctor did not make any prescriptionslip and was paid `500/- for which no receipt was issued.

3.PW-17 Jafirul has deposed that PW-8 Jamirul took the deceasedTarikul to doctor. Thereafter they were asked to arrange money but thiswas not possible. Thereupon PW-8 had made call to PW-7 Soni on thephone. He also deposed that the bottle after being hit on the head of deceasedTarikul had broken into pieces which were collected and handed over to thepolice.

4.PW-18 Mansoor Ali has stated that he woke up after he heard noisesof breaking of bottle and saw that the deceased Tarikul bleeding from hishead. The appellant was standing with bottle in his hand. The appellant ranaway from the spot and PW-8 then took Tarikul to doctor. They tried toarrange for money but the same could not be arranged. He had also gone tohis contractor/thekedar and asked him for money but could not get the same.At night, deceased Tarikul spoke something and died subsequently.Thereafter, the police came there. PW-18 in his cross-examination, deposedthat he did not remember if he had informed the police about the earlieroccurrence in which the appellant removed the pant of the deceased. He alsodid not remember whether he had informed the police that he had gone to his

thekedar to arrange for money. PW-18 in his cross-examination clarified thathe was sleeping and woke up only after hearing the noise of breaking of thebottle and thereafter, he had seen deceased Tarikul bleeding and appellantwas standing with the bottle in his hand.

5.Dr. Sanjeev Biswas appeared as PW-2 and has deposed that he wasrunning clinic at A-484, Shakurpur, Delhi. On 19[th]February, 2007, atabout 11 a.m. one person named Tarikul was brought to his clinic by 2-3boys. He gave first-aid and TT injection to Tarikul. He had directed that theinjured should be taken to Government Hospital but he had not preparedany prescription slip or made any entry in his register. In his cross-examination, PW-2 deposed that he did not inform the police that oneinjured was brought his clinic and that he did not prepare any record aboutgiving treatment to the injured. Two-three boys, who had brought theinjured, had stated that Tarikul had sustained the injuries by falling fromstaircase.

6.It is submitted by the Counsel for the Appellant that this avermentshould be accepted as correct as it was the first statement of PW-8 Jamirul toa third person. PW-8 Jamirul has also made similar assertion. We do notthink the statement of PW2 in the cross-examination to the effect that theboys who had brought the injured had stated that the injuries were sustained

by falling from the staircase should be accepted. The said version orstatement by PW2 is to protect himself, who as doctor was required by lawto give proper treatment and also inform the police in case he suspected thatTarikul was injured by third person. PW2 was protecting himself as he hadnot prepared any prescription slip nor made any entry in the register. Thesaid version or statement was also made by PW-8 Jamirul but with clearrider that it was necessary so that treatment could be made available toTarikul at the earliest and without any delay. It appears that PW-8 wanted toavoid police case and therefore, it was only after the death of Tariqul that acomplaint was lodged before the police officials.

7.Soni has appeared as PW-7 and deposed that at 9 p.m. on 19[th]February, 2007 he received telephone call from PW-8 Jamirul that Tarikul,a resident of his village, was not feeling well and has been hit by bottle onhis head by the appellant. He came there and found that the condition of the

Tarikul was bad. Thereafter, he took him to Savitri Hospital but the deceasedcould not be admitted there as they could not pay `30,000/- which wasdemanded for treatment. Thereafter, he took deceased Tarikul to anotherprivate hospital where also demand of `30,000/- was made and therefore,Tarikul could not be admitted. They brought deceased Tarikul back to theroom of his brother Shakimul at about 1 a.m. and PW-7 returned to his own

room. Subsequently, he was informed that condition of Tarikul deteriorated,and before he could come back the deceased Tarikul had expired. Telephonecall was made at 100 number. Thereafter, police arrived and photographswere taken. There is nothing in the cross-examination which dents thetestimony of PW-7.

8.PW-26, Dr. Upender Kishore conducted the post-mortem on the dead

body of the deceased on 23[rd]February, 2007. The post mortem report is ExPW-10/A. PW-26 has deposed that body of Tariqul was brought for postmortem with alleged history of being attacked with bottle by the appellant.He has further stated that the deceased had been earlier taken to Dr. SanjeevBiswas who had stitched the wound and referred Tariqul to higher medicalcenter. Thereafter, the deceased was taken to Aggarwal Nursing Home,Shastri Nagar but he was not admitted there due to paucity of funds/money.Subsequently, he died at about 3 a.m. on 20[th]February, 2007 and his bodywas brought to the BJRM hospital for medico legal examination. We willrefer to the injuries on the head as delineated in the post-mortem reportEx.PW10/A as well the opinion of PW-26 on the weapon of offencesubsequently while dealing with the question whether the appellant shouldbe convicted under Section 302 or Section 304 Part-I or Part-II.

9.Inspector Pradeep Kumar (PW-25) was the investigating officer of the

case. He had visited the spot in question where the incident occurred. By thattime the crime team had also reached the spot. Photographs Ex.PW16/A1 toA10 (Negatives) and Ex.PW16/A11 to A20 (Positives) were taken. Thecrime team had already prepared report Ex.PW22/A. He prepared the scaledsite plan Ex PW-25/B on the instance of PW-8 Jamirul. PW-25 has deposedthat blood stained pillows and broken pieces of Limca bottle were lying atthe site which were seized vide Ex PW-8/B and C. Later on, Mohd.Muslim(PW-3), father of the deceased and Tyab Ali, relative of the deceasedjoined the investigation and identified the dead body of Tarikul in themortuary vide Exs PW-3/A and PW-1/A respectively. He had prepared theinquest papers and requested for post-mortem. He had also recorded thestatement of Soni PW-7, Dr. Sanjiv Biswas PW-2 and the three eyewitnesses namely PW-8 Jamirul, PW-17 Jariful and PW-18 Mansoor Ali.

10.The FSL report Ex.PW15/A and Ex.PW15/B have been proved by V.Shankaranarayanan (PW15) who has deposed that he had given biologicaland serological report which bears his signature. As per the said reports,human blood was found on the pillows (Ex P-3 and P-4), the bottle and thepieces of the bottle (Ex P-1 and P-2). However, the blood group could not beascertained on pieces of glass but blood of Group-A was found on one of thepillows.

11.In view of aforesaid findings and categorical statement of the threeeyewitnesses, we are satisfied that the trial court has rightly answered thequestion regarding involvement of the appellant as the person who isresponsible for the death of the deceased Tarikul by hitting the bottle on thehead of the deceased.

12.The next question which arises for consideration is whether theappellant has rightly been convicted under Section 302 IPC or whether heshould have been convicted under Section 304 Part-I or Part-II IPC. Beforeexamining the said aspect, we would like to reproduce the statement of Dr.Upender Kishore PW-26 who had conducted the said post mortem andproved his report Ex PW-10/A.In his testimony in the court, PW26 hasstated:-

“External injuries:-

1. Stitched lacerated wound of size 1.5 x 0.5 x 0.5 cm,present over the left side fronto temporal region,stitched with two sutures.present over the left side fronto temporal region,stitched with two sutures.

Internal Examination:-

Extravasation of blood present in the left frontal regionin the scalp. Skull bone intact – NAD. Extra duralhematoma of size 8 x 4cm x 2 cm (organized clot)present on the left temporo-parietal region (about 500ml) Brain congested, depression present in the leftcerebrun, shifting of cerebrum present, contusionpresent at the uncal region with herniation of thetonsills, indentation present both sides of the uncal

region, sub arachanoid haemorrhage on the righthemisphere patchy, flatening of the gyri and sulcipresent.

Allinternalorganscongested.Stomachempty.Abnormal smell nil, Anal canal patulous and gapy.

Cause of Death:- Cerebral damage due to compressionof brain, injury ante mortem in nature and produced byblunt object, possible as suggested, sufficient to causedeath in ordinary course of nature, injury is (sic) freshin duration.”

13.PW-26 examined the broken pieces of bottle and vide subsequent

opinion Ex. PW-25/H, he opined that the injury on the head could have beencaused by the weapon of offence in an intact form, i.e., the unbroken glassbottle. He further deposed that the injury was sufficient to cause death inordinary course of nature.In his cross-examination, he has stated that itcould be possible but it was not necessary that in every case bottle likeEx.PW8/C when hit on the head would result in fracture of the skull bone.He further deposed that it was not necessary that the bottle in question in allcases would break into pieces.

14.We note that in the present case the skull bone was intact and nothingabnormal was detected. Further, there was extra dural hematoma of size 8 x4 cm x 2 cm and there was haemorrhage etc. These aspects have beenmentioned under the heading Internal Examination quoted above.

15.Modi’s Medical Jurisprudence and Toxicology, 23[rd]Edition, recordsthat brain damage can sometimes occur even without fracture of the skullbone.

16.There is no doubt that in the present case there was only one strike andthat was directed on the head of the deceased. The weapon used was colddrink bottle. The question which arises for consideration is whether in thesecircumstances the appellant should be convicted under Section 302 or under

Section 304 Part-I or Part-II of the IPC. The difference between the twosections with reference to Clause Thirdly of Section 300 has been lucidlyand clearly explained in Virsa Singh v. State of Punjab, AIR 1958 SC 465,

in the following words:-

“14. To put it shortly, the prosecution must prove thefollowing facts before it can bring case under Section300 “3rdly”.

15. First, it must establish, quite objectively, that abodily injury is present.

16. Secondly, the nature of the injury must be proved.These are purely objective investigations.

17. Thirdly, it must be proved that there was anintention to inflict that particular bodily injury that isto say that it was not accidental or unintentional or thatsome other kind of injury was intended.

18. Once these three elements are proved to be present,the enquiry proceeds further and.

19. Fourthly, it must be proved that the injury of thetype just described made up of the three elements setout above is sufficient to cause death in the ordinarycourse of nature. This part of the enquiry is purelyobjective and inferential and has nothing to do with theintention of the offender.

x x x x x xx x x x x x

23. ……….The question is not whether the prisonerintended to inflict serious injury or trivial one butwhether he intended to inflict the injury that is provedto be present. If he can show that he did not, or if thetotality of the circumstances justify such an inference,then, of course, the intent that the section requires isnot proved. But if there is nothing beyond the injuryand the fact that the appellant inflicted it, the onlypossible inference is that he intended to inflict it.Whether he knew of its seriousness, or intendedserious consequences, is neither here nor there. Thequestion, so far as the intention is concerned, is notwhether he intended to kill, or to inflict an injury of aparticular degree of seriousness, but whether heintended to inflict the injury in question; and once theexistence of the injury is proved the intention to causeit will be presumed unless the evidence or thecircumstances warrant an opposite conclusion. Butwhether the intention is there or not is one of fact andnot one of law. Whether the wound is serious orotherwise, and if serious, how serious, is totallyseparate and distinct question and has nothing to dowith the question whether the prisoner intended toinflict the injury in question.”

17.In other words under clause Thirdly of Section 300, culpable homicide

is murder if two conditions are satisfied that (a) the act which causes deathwas done with the intention of causing the bodily injury inflicted and (b) the

injury intended to be inflicted is sufficient in the ordinary course of nature tocause death.

18.The difference between Section 299 and Section 300 IPC has beenelucidated and tabulated in State of U.P. v. Virendra Prasad (2004) 9 SCC37 in the following manner:-

“7. Theacademicdistinctionbetween“murder”and“culpable homicide not amounting to murder” has alwaysvexed the courts. The confusion is caused, if courts losingsight of the true scope and meaning of the terms used by thelegislature in these sections, allow themselves to be drawninto minute abstractions. The safest way of approach to theinterpretation and application of these provisions seems tobe to keep in focus the keywords used in the various clausesof Sections 299 and 300. The following comparative tablewill be helpful in appreciating the points of distinctionbetween the two offences:

Section 299Section 300

ApersoncommitsSubject to certain exceptionsculpable homicide if theculpable homicide is murder, ifact by which the death isthe act by which the death iscaused is done—caused is done—

Intention

(a) with the intention ofcausing death; or

(b) with the intention ofcausingsuchbodilyinjury as is likely tocause death; or

(1)withtheintentionofcausing death; or(2)withtheintentionofcausing such bodily injury asthe offender knows to be likelyto cause the death of the personto whom the harm is caused; or

(3)withtheintentionofcausing bodily injury to anyperson and the bodily injuryintendedtobeinflictedissufficientintheordinarycourse of nature to cause death;or

Knowledge

(c) with the knowledge(4) with the knowledge that thehat the act is likely toact is so imminently dangerouscause death.that it must, in all probability,cause death or such bodilyinjury as is likely to causedeath, and commits such actwithoutanyexcuseforincurring the risk of causingdeath or suchinjury as ismentioned above.

8. Clause (b) of Section 299 corresponds with clauses (2)and (3) of Section 300. The distinguishing feature of themens rea requisite under clause (2) is the knowledgepossessed by the offender regarding the particular victimbeing in such peculiar condition or state of health that theinternalharmcausedtohimislikelytobefatal,notwithstanding the fact that such harm would not in theordinary way of nature be sufficient to cause death of aperson in normal health or condition. It is noteworthy thatthe“intentiontocausedeath”isnotanessentialrequirement of clause (2). Only the intention of causing thebodily injury coupled with the offender's knowledge of thelikelihood of such injury causing the death of the particularvictim, is sufficient to bring the killing within the ambit ofthis clause. This aspect of clause (2) is borne out byIllustration (b) appended to Section 300.

9. Clause (b) of Section 299 does not postulate any suchknowledge on the part of the offender. Instances of casesfalling under clause (2) of Section 300 can be where the

assailant causes death by fist-blow intentionally givenknowing that the victim is suffering from an enlarged liveror enlarged spleen or diseased heart and such blow is likelyto cause death of that particular person as result of therupture of the liver or spleen or the failure of the heart, asthe case may be. If the assailant had no such knowledgeabout the disease or special frailty of the victim, nor anintention to cause death or bodily injury sufficient in theordinary course of nature to cause death, the offence willnot be murder, even if the injury which caused the death,was intentionally given. In clause (3) of Section 300,instead of the words “likely to cause death” occurring in thecorrespondingclause(b)ofSection299,thewords“sufficient in the ordinary course of nature” have been used.Obviously, the distinction lies between bodily injurylikely to cause death and bodily injury sufficient in theordinary course of nature to cause death. The distinction isfine but real and if overlooked, may result in miscarriage ofjustice. The difference between clause (b) of Section 299and clause (3) of Section 300 is one of degree of probabilityof death resulting from the intended bodily injury. To put itmore broadly, it is the degree of probability of death whichdetermines whether culpable homicide is of the gravest,medium or the lowest degree. The word “likely” in clause(b) of Section 299 conveys the sense of probability asdistinguished from mere possibility. The words “bodilyinjury … sufficient in the ordinary course of nature to causedeath” mean that death will be the “most probable” result ofthe injury, having regard to the ordinary course of nature.”19.In the present case we have no doubt that the appellant had intentionof causing the injury by hitting the bottle on the head. We further note that amere fact that there was only one injury on the head by itself as an isolatedcircumstance cannot be ground to hold that appellant had not intended tocommit murder but only culpable homicide not amounting to murder

punishable under Section 304 Part-I or Part-II IPC. However, there areseveral facts and reasons why we feel that the appellant should be convictedunder Section 304 Part-II and not under Section 302 IPC. They areenumerated as under:-

a) cold drink bottle was used to strike at the head;

b) The occurrence had taken place in the morning in thehouse/room where knife and other sharp instrumentswere available but were not used;house/room where knife and other sharp instrumentswere available but were not used;

c) Skull bone was intact and not fractured;

d) From the statements of the eye witnesses PW-8Jamirul, PW-17 Jariful, PW-18 Mansoor Ali and PW-7Soni, it appears that the injury was serious but was nottreated /considered to be life threatening. The deceasedTarikul was initially taken to Dr. Sanjeev Biswas(PW-2) who gave him two stitches and thereafter, thedeceased Tarikul was brought back to the room. Hiscondition kept on deteriorating. Tariqul died aftersome time. PW-2’s version that he had directed PW-8Jamirul to take Tariqul for intensive treatment to agovernment hospital is not supported and accepted byPW-8 in his testimony.Jamirul, PW-17 Jariful, PW-18 Mansoor Ali and PW-7Soni, it appears that the injury was serious but was nottreated /considered to be life threatening. The deceasedTarikul was initially taken to Dr. Sanjeev Biswas(PW-2) who gave him two stitches and thereafter, thedeceased Tarikul was brought back to the room. Hiscondition kept on deteriorating. Tariqul died aftersome time. PW-2’s version that he had directed PW-8Jamirul to take Tariqul for intensive treatment to agovernment hospital is not supported and accepted byPW-8 in his testimony.

e) The cold drink bottle is blunt and round in shape. It isgenerally not perceived and recorded as an instrumentor weapon which can or is likely to cause death with adegree of certainty when it is hit on the head of aperson with force.generally not perceived and recorded as an instrumentor weapon which can or is likely to cause death with adegree of certainty when it is hit on the head of aperson with force.

In the present case, it cannot be said that hitting cold drink bottle on

the head should lead to an inference that the appellant had intended to cause

bodily injuries which were sufficient in ordinary course of nature to cause

death. It is rather difficult to visualize and accept that person would diefrom injuries caused when cold drink bottle is hit on his head. Injuries canbe caused in such cases, but the degree of probability of death is notsufficiently or most possible. It is rather remote. High probability associatedand required in cases under Section 300 IPC is missing. However, theappellant can definitely be attributed with the intention to cause injurieswhich may or are likely to cause death.We do not think the motive asalleged would be itself justifies and mandates treating the offence as underSection 300 Clause 3. Motive may be the cause for hitting the bottle butdoes not compel us to hold that the case would fall under Section 300 IPC.The quarrel had taken place about 8/10 days before. We have takencumulative effect of the facts established and proved.

21.The view we have taken finds support and affirmation in JagrupSingh vs. The State of Haryana, AIR 1981 SC 1552. In the said case there

was solitary blow from the blunt side of the gandhala on the head of the

deceased. Relying upon Virsa Singh (supra) , The Supreme Court held :-

“9. Looking at the totality of the evidence, it would notbe possible to come to the conclusion that when theappellant struck the deceased with the blunt side of thegandhala, he intended to cause such bodily injury aswas sufficient in the ordinary course of nature to causedeath.A gandhala isacommonagriculturalimplement consisting of flat, rectangular iron strip,

three sides of which are blunt, embedded in woodenhandle. The length of the iron strip is in continuationof the wooden handle and the end portion is sharp,which is used to dig holes in the earth to set up fencingon embankments in the field. If man is hit with theblunt side on the head with sufficient force, it is boundto cause, as here, death. There can be no doubt that itwas used with certain amount of force because therewas cerebral compression. But that by itself is notsufficient to raise an inference that the appellantintended to cause such bodily injury as was sufficientto cause death. He could only be attributed with theknowledge that it was likely to cause an injury whichwas likely to cause the death. The matter, therefore,does not fall within clause Thirdly of Section 300 ofthe Code.”

22.In Palaru vs. State of Madhya Pradesh, AIR 1993 SC 1487 the

accused had inflicted single blow by tabbal, blunt agriculturalequipment, which was not deadly weapon. The conviction was convertedfrom 302 IPC to 304, Part-II of IPC keeping in view the circumstances thataccused was not armed with the deadly weapon as such and being anagriculturalist he must have been carrying the tabbal in his hands when he hitthe deceased.

23.Similarly in Panchaiah and Others vs. State of Karnataka, AIR 1994

SC 963 conviction was altered from Section 302/34 IPC to Section 304, PartII read with Section 34 of IPC. In the said case the injuries caused on thehead of the deceased was serious/grave and other injuries suffered by thedeceased were only bruises and abrasions.It was noticed that clubs and

cycle chain were used and no other deadly weapon was used by theassailants.

24.In Sarup Singh vs. State of Haryana, AIR 1995 SC 2452, the Courtagain converted the conviction from Section 302 IPC to Section 304, Part IIIPC. single injury was inflicted on the head of the deceased by use ofhammer. After referring to the medical report in the form of post-mortemexamination, the cause of death was opined as hydrocephalus andsepticemia. The doctor had found fracture in the bone of the right temporo-parietal region of the deceased. It was observed that the appellant i.e. theaccused could be clothed with the knowledge that the injury that he hadcaused to the deceased by hitting the hammer on his head, vital part of thebody, was likely to cause death, though without any intention to cause deathor such injury was sufficient to cause death in the ordinary course of nature.

25.In State of Punjab vs. Tejinder Singh and Anr., AIR 1995 SC 2466the accused were armed with gandasas. The death occurred because ofgandasa blows.From the nature of injuries it was concluded that theaccused had used both the sharp and blunt edge of the gandasa. There weremultiple injuries on non-vital parts but one was on the head, which wasmuscle deep. It was observed that if the accused really wanted to commitmurder, they would have not used the blunt edge and the task would have

been expedited by use of the sharp edge. Keeping these aspects in mind, theconviction was converted into Section 304, Part I.

26.We must note the contention raised by the appellant which waspainstakingly highlighted to us. The deceased Tarikul was taken to twohospitals but could not be admitted there as necessary funds or money could

not be arranged. The Amicus Curiae had urged that in case the deceased was

provided with timely and proper/appropriate medical treatment, death maynot have occurred. However, the said argument has to be rejected in light ofExplanation 2 of Section 299 IPC which for the sake of convenience isreproduced below:-

“Explanation 2. – Where death is caused bybodily injury, the person who cause such bodilyinjury shall be deemed to have caused the death,although by resorting to proper remedies andskilful treatment the death might have beenprevented.”bodily injury, the person who cause such bodilyinjury shall be deemed to have caused the death,although by resorting to proper remedies andskilful treatment the death might have beenprevented.”

27.We, however, express our anguish and distress that the deceased who

had suffered the severe/ grave injuries and hanging between life and deathwas not given admission and treatment in the two hospitals where he wastaken for treatment. In Parmanand Katara v. Union of India, (1989) 4 SCC286, Supreme Court has observed:-

“7.There can be no second opinion that preservationof human life is of paramount importance. That is so

on account of the fact that once life is lost, the statusquo ante cannot be restored as resurrection is beyondthe capacity of man. The patient whether he be aninnocent person or be criminal liable to punishmentunder the laws of the society, it is the obligation ofthose who are in charge of the health of the communityto preserve life so that the innocent may be protectedand the guilty may be punished. Social laws do notcontemplate death by negligence to tantamount to legalpunishment.

8. Article 21 of the Constitution casts the obligation onthe State to preserve life. The provision as explainedby this Court in scores of decisions has emphasisedand reiterated with gradually increasing emphasis thatposition.Adoctoratthegovernmenthospitalpositioned to meet this State obligation is, therefore,duty bound to extend medical assistance for preservinglife. Every doctor whether at government hospital orotherwise has the professional obligation to extend hisservices with due expertise for protecting life. No lawor State action can intervene to avoid/delay thedischarge of the paramount obligation cast uponmembers of the medical profession. The obligationbeing total, absolute and paramount, laws of procedurewhether in statutes or otherwise which would interferewith the discharge of this obligation cannot besustained and must, therefore, give way.”

(emphasis supplied)

28.The hospitals and nursing homes are under an obligation to admit and

provide proper and necessary aid/treatment to an injured person. Ethically,socially and morally, turning away patient in serious condition for failureto deposit money cannot be accepted as justification as nursing homes andhospitals owe duty towards the society. The social and moral obligation

should be embraced by the hospitals in such situations. Many of them claimthemselves to be philanthropic institutions established for charitablepurposes. Further there is need and necessity for the Government of NCT ofDelhi and the Central Government to disseminate and circulate clearinformation/instructions to the hospitals and nursing homes to providemedical aid and necessary treatment to such injured patients in cases whereemergent treatment would avert grave consequences. Instructions shouldalso be issued that, if required and necessary, such patients should betransported under medical attention to hospitals where they can be providedwith proper medical aid. From the facts in the present case, one can easilycomprehend and understand the sheer frustration and helplessness of PW-8Jamirul, PW-17 Jafirul, PW-18 Mansoor Ali and PW-7 Soni who took theinjured Tarikul to two different hospitals but could not secure admissionbecause they could not arrange for `30,000/- without benefit and advantageof medical attention which was available yet beyond “reach”.

29.The last question relates to the quantum of sentence. Here we noteone factor which goes against the appellant. The appellant ran away fromthe spot and did not participate or ensure that any medical aid was providedto the deceased Tarikul. But perhaps he did not visualize or understand thegravity. At the same time it is noticed that the appellant has already suffered

incarceration for nearly 6 years. We also note that at the time of occurrence,he was about 19 years of age.

30.Keeping in mind the said aspect, we feel that the rigorousimprisonment of seven years and fine of `3,000/- would meet the ends ofjustice.In default of payment of fine, the appellant will further undergosimple imprisonment for three months. The appeal is disposed of.

31.Copy of this judgment will be sent to The Secretary (Law),Government of NCT of Delhi and Secretary (Health), Ministry of Health,Government of India.

SANJIV KHANNA, J.SIDDHARTH MRIDUL, J.

APRIL 09, 2013mk/dn