* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 3rd APRIL, 2014
DECIDED ON : 27th MAY, 2014
+ CRL.A.1165/2011 & CRL.M.B.No. 18/2014
PRADEEP KUMAR ..... Appellant
Through : Mr.Mukesh Kalia, Advocate with
Mr.Hansraj Singh, Advocate.
VERSUS
THE STATE (NCT OF DELHI) ..... Respondent
Through : Mr.Lovkesh Sawhney, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Pradeep Kumar (the appellant) impugns a judgment dated 17.08.2011 of learned Addl. Sessions Judge in Sessions Case No. 32/2011 arising out of FIR No. 327/2010 PS Timarpur by which he was held guilty under Sections 452/341/304 part-II IPC. By an order dated 24.08.2011, he was awarded RI for four years with fine ` 5,000/- under Section 452 IPC; SI for fifteen days under Section 341 IPC; and, RI for seven years with fine ` 50,000/- under Section 304 part-II IPC. All the substantive sentences were to operate concurrently.
Crl.A.No.1165/2011 Page 1 of 12
2. Shorn of details, the prosecution case as reflected in the charge-sheet was that on 14.12.2010 at about 08.00 P.M., in gali No.16, Shiv Mandir, Wazirabad, the appellant wrongfully restrained Ram Balak Yadav and Deepak Yadav in the gali. Soon thereafter, he gave severe beatings to Deepak Yadav in his house which resulted in his death. The police machinery was set in motion when information about the incident as recorded in PCR form (Ex.PW-2/A) was conveyed to the Police Control Room at 20:45:14 hours. The victim was taken to Sushruta Trauma Centre and was medically examined by MLC (Ex.PW-4/A). He succumbed to the injuries on 30.12.2010 in the Trauma Centre. Post- mortem examination on the body was conducted. The Investigating Officer lodged First Information Report after recording complainant - Ram Balak Yadav's statement (Ex.PW-6/A) on 15.12.2010. Statements of the witnesses conversant with the facts were recorded. On 04.01.2011, the appellant surrendered in the Court and was arrested. After completion of investigation, a charge-sheet was submitted against the accused; he was duly charged and brought to trial. The prosecution examined nineteen witnesses to prove his guilt. In 313 statement, he abjured his guilt and claimed to be tried. The defence chose not to adduce any evidence. The Crl.A.No.1165/2011 Page 2 of 12 trial resulted in his conviction as aforesaid. Being aggrieved and dissatisfied, he has preferred the appeal.
3. Appellant's counsel urged that the Trial Court did not appreciate the evidence in its true and proper perspective and fell into grave error in relying upon the testimony of interested witness PW-6 (Ram Balak Yadav) without independent corroboration. Vital improvements in the testimony of PW-6 (Ram Balak Yadav) in Court statement were ignored. PW-1 (Veer Sain) did not support the prosecution and turned hostile. The complainant was a falsely introduced witness who never lived at the given address. The inordinate delay in lodging the First Information Report remained un-explained. Adopting the alternative plea, counsel urged that even if the prosecution case was accepted in toto, the offence could not go beyond Section 325 IPC as the incident took place all of a sudden without pre-meditation and the appellant was not armed with any dangerous weapon; no visible injuries were caused to the victim. Appellant's counsel voluntarily offered to pay ` 50,000/- as compensation to the legal heirs of the deceased. Learned Addl. Public Prosecutor urged that no sound reasons exist to discard the testimony of the complainant who had witnessed the incident and had no ulterior considerations to falsely implicate the appellant.
Crl.A.No.1165/2011 Page 3 of 12
4. PW-1 (Veer Sain), landlord, though did not support the prosecution in entirety and resiled from the previous statement (mark 'A') nevertheless, deposed that Ram Balak Yadav and his nephew Deepak (since dead) lived on the ground floor of House No. 240, Gali No.16, Shiv Mandir, Wazirabad as tenants. He also deposed that incident occurred in the presence of Ram Balak Yadav. Someone called the PCR and took the victim to the hospital. His son Raj Kamal also accompanied them. The testimony goes to prove the relationship of landlord and tenant between PW-1 (Veer Sain) and Ram Balak Yadav, and also confirms Ram Balak Yadav's presence at the spot. Mere non-execution of rent-note or tenancy agreement is not a vital factor to doubt / suspect this relationship.
5. The time of occurrence was at around 08.00 P.M. on 14.12.2010. PW-6 (Ram Balak Yadav) made PCR call in promptitude and the information was recorded at 20.45.14 hours in PCR form (Ex.PW- 2/A). PW-2 (Const.Poonam) deposed that she received the information from mobile No. 9650183700 about an individual lying injured in a quarrel in Gali No.16, Shiv Mandir, Wazirabad. Daily Diary (DD) No. 35A (Ex.PW-9/A) was recorded at PS Timarpur at 20.50 hours. PCR form (Ex.PW-2/A) further records that the injured who sustained injuries in a quarrel with a neighbour was taken by PCR officials to Trauma Centre. Crl.A.No.1165/2011 Page 4 of 12 MLC (Ex.PW-4/A) records the arrival time of the patient with the alleged history of 'physical assault' at 09.00 P.M. The patient was conscious, confused and irritable; he was unfit to make statement. MLC further reveals that the patient did not come to senses and remained unfit for statement on subsequent dates. Finally, he succumbed to the injuries and could not survive despite getting medical treatment continuously at the Trauma Centre. The prosecution produced examining doctor PW-4 (Dr.Satyendra Kumar) to prove MLC (Ex.PW-4/A). On local examination, no visible external injury was found. PW-11 (Dr.Vikas Kumar) brought the original case history-sheet of the patient and proved the report of NCCT Head (Ex.PW-11/A). As per record, the nature of injuries were 'dangerous' in nature from neuro surgical side. He further deposed that the patient remained unfit to make statement on various dates as reflected in the MLC (Ex.PW-4/A) on Ex.PW-11/B to Ex.PW-11/D. PW-5 (Dr.S.Lal) conducted post-mortem examination (Ex.PW-5/A) on the body on 31.12.2010. The cause of death was intra-cranial haemorrhage consequent upon blunt force impact on head, sufficient to cause death in the ordinary course of nature. Apparently, it was a case of culpable homicide.
Crl.A.No.1165/2011 Page 5 of 12
6. Crucial testimony is that of PW-6 (Ram Balak Yadav) whose statement (Ex.PW-6/A) formed the basis for recording First Information Report. It gave a detailed account of the incident. No deficiency in terms of the omission of the name or the role played by the accused was pointed out by the counsel. He specifically named the appellant Pradeep Kumar to be the author of injuries caused to his nephew Deepak Kumar Yadav. While appearing as PW-6, in Court statement, he proved the version given to the police without major variation and deposed that on 14.12.2010 when he and his nephew Deepak Kumar Yadav were coming back to their house No. 240, Gali No.16, Shiv Mandir, Wazirabad, on a cycle being peddled by Deepak Kumar Yadav, Pradeep Kumar who was attending a mobile call was standing in the gali. When he and Deepak Kumar Yadav overtook him, he came and asked them to remove the cycle from the way. On Deepak telling that it was a narrow lane, he started giving beatings to the victim with kicks and fists. He intervened to save the victim and brought him to his house. He further deposed that at about 08.00 P.M., the appellant again came to his house and started beating the victim. He banged his head against the wall and threw him (the victim) on the floor and gave beating. Blood started oozing out from the mouth and nose. Again, he banged the victim's head against the ground. On his raising Crl.A.No.1165/2011 Page 6 of 12 alarm, his landlord and son came down. He took the victim to his room; covered him with a blanket, made a telephone call to the police at 100. He brought him on his shoulders outside in the gali. After fifteen minutes, the PCR van took the victim to the hospital. In the cross-examination, he admitted that on enquiry from PCR officials, he disclosed he was Ram Balak Yadav calling from Wazirabad. He fairly admitted that at the time of taking the room on rent, no rent agreement was executed and the landlord did not seek police verification. In the PCR van, there were three police personnel besides him and the victim. PCR officials remained in the hospital for about ten minutes. He remained in the hospital till the victim expired. Explaining the delay in lodging FIR, he stated that due to fear, he did not go to the police station. He also admitted that the police did not seize his clothes and clothes of the victim. He denied the suggestion that he did not witness the incident or falsely implicated the appellant. On a consideration and appraisement of the evidence of the eye witness, it is clear and apparent that despite searching in-depth cross- examination, no material discrepancies / contradictions could be elicited to disbelieve the version narrated by the victim's uncle. No ulterior motive was assigned to the witness to falsely implicate the appellant with whom he had no prior animosity. Both of them lived in the vicinity and had no Crl.A.No.1165/2011 Page 7 of 12 past history of hostile relations. The occurrence had taken place all of a sudden on a trivial issue when the appellant commanded the victim to remove the cycle from the narrow lane. The victim's refusal to remove the cycle from the way infuriated the appellant and he turned violent to cause merciless beatings to him at the spot. After the matter was pacified due to the intervention of this witness, again, he went to the victim's house and gave severe beatings which proved fatal. Presence of this witness at the spot has been spoken to by PW-1 (Veer Sain). PW-6 (Ram Balak Yadav)'s presence at the spot was quite natural and probable as he lived with the victim in the rented accommodation. Soon after the occurrence, he put the police machinery into motion making a call on his mobile at 08.45 P.M. PCR form (Ex.PW-2/A) records the name of the informant with his mobile number. He took the victim to Trauma Centre in the PCR van and remained present throughout there. Lapses on the part of the Investigating Officer in not recording his statement at the Trauma Centre cannot be a ground to discredit his otherwise cogent and reliable testimony. PW-14 (ASI Devi Ram) to whom the investigation was assigned went to Trauma Centre where the victim was admitted and was opined unfit for statement. He stated that finding no eye witness in the hospital or at the spot, he came back to the police station. Apparently, he Crl.A.No.1165/2011 Page 8 of 12 (the Investigating Officer) did not perform his duties sincerely. Despite the name of the informant, his mobile number and address appearing in Ex.PW-2/A, no sincere efforts were made by him to contact him [the informant - PW-6 (Ram Balak Yadav)]. On 15.12.2010, he lodged First Information Report after recording Ram Balak Yadav's statement (Ex.PW-6/A). For delay in lodging the report, only the Investigating Officer can be faulted. It is true that certain improvements have been made by the complainant in his deposition before the Court on certain facts which did not find mention in the statement (Ex.PW-6/A). These omissions, however, do not affect the basic structure of the prosecution case and can be considered as elaboration of the facts disclosed in the statement (Ex.PW-6/A). PW-6 attributed specific role to the appellant and implicated him for the brutal beatings given to the victim. The Court can assume that a related witness would not ordinarily shield the real offender to falsely implicate an innocent person. PW-6's version appears to be natural and probable and inspires implicit confidence. It is in consonance with medical evidence referred above. In 313 statement, the appellant did not give plausible explanation to the incriminating circumstances appearing against him. He did not deny his presence at the spot. All the relevant contentions / pleas raised by the appellants have been elaborately Crl.A.No.1165/2011 Page 9 of 12 examined by the Trial Court. The evidence has been appreciated in consonance with the rule of prudence and law. These findings can neither be termed as perverse or improper to warrant intervention. Apparently, the appellant was the author of the injuries caused to the victim. In the initial confrontation in the gali, the appellant had given beatings to the victim. On the intervention of PW-6 (Ram Balak Yadav), the mater was pacified and the victim was brought to the house. However, it did not deter the appellant. He again, dared to go inside the house and inflicted numerous blows with force on vital part of the body which reflects his violent nature. He even banged victim's head against a wall. Apparently, the repeated multiple injuries were caused with the avowed object or knowledge to cause death or else he had no reasons to forcibly enter the house once the dispute had come to an end on Ram Balak Yadav's intervention in the street itself. The conviction under Section 304 part-II IPC cannot be faulted.
7. The appellant was sentenced to undergo RI for seven years with fine ` 50,000/- under Section 304 part-II IPC. Nominal roll dated 31.03.2014 reveals that he has already undergone three years, two months and twenty seven days incarceration besides remission for eleven months and four days as on 31.03.2014. It further reveals that he is not a previous Crl.A.No.1165/2011 Page 10 of 12 convict; has clean antecedents and is not involved in any other criminal case. His overall jail conduct is satisfactory. Sentence order records that he was a young boy aged about 21 years; doing Computer course from Hi Tech Institute, Kingsway Camp. The occurrence took place on a trivial issue at the spur of the moment. The appellant was not armed with any weapon. There was no past history of hostile relations. At the same time, the Court cannot be oblivious of the fact that the victim was also a young boy aged about 26 years and was sole bread earner of the family. He was unarmed at the time of occurrence and did not retaliate in turn to cause injuries to the aggressor. Due to the violent acts of the appellant over a petty issue, a young life was lost.
Considering the mitigating / aggravating circumstances and taking into account the offer of the appellant to pay reasonable compensation to the victim's family, sentence order is modified and the substantive sentence of RI for seven years is reduced to RI for six years. Other terms and conditions of the sentence order are left undisturbed. The appellant shall deposit ` 50,000/- as compensation within fifteen days besides unpaid fine (if any) in the Trial Court and it will be released to the victim's parents and wife (if the victim was married) in equal proportions Crl.A.No.1165/2011 Page 11 of 12 after due notice. ` 50,000/- shall also disbursed as compensation on realization of the fine amount imposed by the Trial Court to them.
8. The appeal stands disposed of in the above terms. Pending application also stands disposed of. Trial Court record be sent back immediately with the copy of the order. A copy of the order be sent to the Superintendent jail for information.
(S.P.GARG) JUDGE MAY 27, 2014 / tr Crl.A.No.1165/2011 Page 12 of 12