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PETITIONER: PIRTHI

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT08/10/1993

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: 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

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by K.   JAYACHANDRA REDDY, J.- Special leave granted. 2.   The 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. 3.   The 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. Dr  Naveen 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. 4.   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. 5.   Having  regard to the medical opinion,  admittedly  the

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injury  to the testicles was not the direct cause of  death. No 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. 500