2007 P Cr (PLP)

Laws Cited

Representation

• ----S. 426---Penal Code (XLV of 1860), Ss.220 & 316---Suspension of sentence---Application for---Observation of the Trial Court was that because deceased was suffering from Tuberculosis, injuries on his body became the cause of his death---Medical Officer had deposed that cause of death- was shock and asphyxia was a result of massive Haemoptysis due to pulmonary Tuberculosis---Medical Officer had further deposed that he did not find any marks of violence on the dead-body---Deceased died after 34 days of the incident---Crucial point in the matter was whether or not accused knew that the deceased was suffering from T.B. so as to judge the injuries from that aspect, but Assistant Advocate-General stated that no such evidence was available on file---Matter had been compromised between the parties---Section 220, P.P.C. though was not compoundable, but the sentence awarded thereunder was five years---counsel for accused had stated that said conviction and sentence was illegally awarded as no charge was framed for said offence---Said defect, was curable. under section 535, Cr. P. C. but it was yet ~ to be determined as to whether accused was prejudiced in his defence because of such error---Present case was a fit case where sentence could be suspended---Sentence was suspended and bail was granted to accused.
• The learned Advocate for the applicant has stated that the applicant was on bail when the case was pending before the trial Court; that the matter has been compromised; that the applicant has paid an amount of Rs. 1,50,000 and remaining amount would be paid very soon; that the appellant did not know that the deceased was suffering from Tuberculosis,; that the injuries are simple in nature, therefore, the sentence may be suspended.
• The learned Advocate for the complainant has stated that the matter has been compromised between the parties; that in pursuance to the said compromise-the appellant has paid Diyat amount of Rs.1,50,000 and the remaining Diyat amount would be paid shortly; that he has no objection to the suspension of sentence.
• The learned Assistant Advocate-General has stated that deeper appreciation of evidence is not permissible at this stage; that the case has been proved against the appellant. However, he has admitted that there is no evidence to show that the appellant knew that the deceased was suffering from Tuberculosis.
• I have given due consideration to the arguments. It is not "permissible to go into deeper appreciation of evidence at this stage. but a tentative assessment can be made. The observation of the trial Court was that because the deceased was suffering from Tuberculosis, therefore, the injuries became the cause of death. The Medical Officer Dr. Jawahar Lal deposed that the cause of death was shock and asphyxia as a result of massive Maemoptysis due to Pulmonary Tuberculosis. He further deposed that he did not find any marks of violence on the dead body. In this case, the deceased died after 34 days of the incident. At the initial ~ stage when Dr. Satramdas examined the deceased on 20-12-2001, He found eight injuries out of them four were bruises; two were abrasions and for two injuries, deceased complained pain. The bruises were on the eyes and gluteal region, the abrasions were on right shoulder and right leg below knee. The injuries by itself do not appear to be fatal. This point can very well be judged when the post-mortem was conducted; the deceased had no marks of violence on the body. The crucial point in the matter is whether or not the appellant knew that the deceased was suffering from T.B. so as t.o~ judge the injuries from that aspect but the learned Assistant Advocate-General has stated that there is no such evidence. The matter has been compromised between the parties.. As per statement of Advocate. for the complainant half of Diyat amount has been paid to the complainant party and the remaining amount is likely to be paid very shortly. The appellant has remained in jail for a period of 16 . months.
• I am aware of the fact that section 220, P.P.C. is not compoundable but the sentence awarded thereunder is five years. The learned Advocate for the appellant has stated that the said conviction and sentence was illegally awarded as no charge was framed for the said offence. The said defect in the share is curable under section 535, Cr.P.C. but it is yet to be determined as to whether the appellant was prejudiced in his defence because of such error.

Headnotes / Summary

Judgment & Decree