This appeal challenges the judgment and order dated
17.07.2012 passed by the High Court of Uttarakhand at Nainital
in Criminal Appeal No.24 of 2007.
In Sessions Trial No.138 of 2000 on the file of the Additional
District & Sessions Judge, First Fast Track Court, Haldwani,
District Nainital, the appellant was tried for having committed the
offence punishable under Section 304 of the Indian Penal Code, 1860
("IPC" for short). According to the prosecution, in an incident
which occurred at about 8.30 a.m. on 09.03.2000, the appellant
assaulted one Prem Kumar who suffered two injuries which have been
described in the record as under:
“i. An incised wound measuring 8 cm x 11 cm. Scalp deep
with fresh bleeding on posterio lateral part right
side of head 8 cm above the right ear obliquely
placed. Sharp, clear cut margin.
ii. An incised wound 3 cm x 15 cm x abdominal cavity
present on left side of abdomen 4 cm away from the Mukesh Nasa sharp edged with fresh bleeding.”
According to the record, the victim was given medical
attention and was shifted to Indraprastha Apollo Hospital, New
Delhi on 12.03.2000 where he expired on 21.03.2000. Death Summary
issued by said Hospital stated as under:
"He was referred to Apollo hospital on 12.3.2000. At the
time of admission he was in a state of septicemia. He was
on antibiotics, O2 inhalation inotropic agents. His
anastmosis leaked and peritonitis developed for which he
was operated on 15.3.2000. He developed multi organ system
failure. His condition deteriorated and he died on
21.3.2000, despite of all resuscitative measures."
Relying on the evidence on record including the eye-witnesses
account through prosecution witnesses no.4 and 5, the Trial Court
by its judgment and order dated 18.01.2007 found the appellant
guilty of the offence punishable under Section 304 IPC and
sentenced him to undergo rigorous imprisonment for life.
The High Court having affirmed the view taken by the Trial
Court by dismissing criminal appeal vide its judgment and order
which is presently under challenge, the appellant is in appeal
before us.
While issuing notice in the instant matter, by order dated
07.01.2013, notice was confined to the nature of offence. Special
leave to appeal was granted on 04.10.2013.
Heard Ms. Manisha Bhandari, learned Advocate for the appellant
and Dr. Rajiv Nanda, learned Advocate for the respondent-State.
Out of two injuries suffered by the victim, second injury
finally proved to be fatal. However, the fact remains that the
victim survived for more than 11 days and as the Death Summary
discloses, his condition deteriorated after 15.03.2000.
The appellant was also charged for having committed the
offence punishable under Section 304 of the IPC and not under
Section 302 of the IPC.
Considering the totality of the circumstances on record, in
our view, the conviction of the appellant ought to be under Section
304 Part-I IPC and the appropriate punishment to be imposed upon
the appellant ought to be rigorous imprisonment for 10 years.
Ordered accordingly.
If the appellant has completed actual sentence of more than 10
years, he be released forthwith, unless his custody is required in
connection with any other offence.
With these observations, the appeal stands allowed.
New Delhi, September 24, 2021