Bal Krishan Sita Ram Pandit vs State
1986 Latest Caselaw 33 Del

JUDGMENT

G.R. Luthra, J.

(1) A charge under section 304. Part-11 Indian Penal Code was framed against the present appellant. He was, however, by the judgment dated October 9, 1975, convicted of an offence punishable under section 323 Ipc and sentence to undergo imprisonment of the court and a fine of Rs. 1000.00 in default of payment of which he was to under go imprisonment for six months.

(2) Mehtab Rai Jain (now deceased) was residing along with bids daughter Raj Rani, his sons Ranvir Singh Jain (Public Witness 1), Udai Singh Jain (PW 2), his wife Smt. Premwati Jain (Public Witness 4) and his mother Smt. Kalawati (PW 3) in a portion of house No. 2710, Chowk Raiji, Delhi. Raj Rani was working as a teacher in Government Higher Secondary School, Panama Building, Ballimaran, Delhi. She had some differences with her parents. She left the house of her father and started living separately in a house situated in Gandi Gali, Fatehpuri, Delhi.

(3) The case of the prosecution briefly is as follows. The appellant used to visit Raj Rani The appellant used to threaten Ranvir Singh Jain (PW 1), his brother Udai Singh Jain (Public Witness 2) and Mehtab Rai Jain (deceased) that they should improve their relations with Raj Rani otherwise the consequences would not be good. Smt. Premwati Jain (Public Witness 4), mother of Raj Rani, was working as a teacher in Jain Giris Higher Secondary School at Dharampura. The appellant used to pester Smt. Premwati also for improving relations with Raj Rani. The appellant also used to talk ill of Mehtab Rai Jain, his wife Smt. Premwati and his sons to other people and used to say that on account of their mal-treatment Raj Rani had to leave the house.

(4) On September 28, 1974 at about 8 p.m. Mehtab Rai Jain, his sons (PW 1) and (Public Witness 2) and his wife Premwati were sitting in a room. Adjoining to that room, was the residence of Aftab Rai, whom the appellant used to visit practically daily. On that day i.e. 28th September 1974, the appellant had come to meet Aftab Rai and was sitting with the latter. Ranvir Singh Jain (Public Witness 1) advised his father Mehtab Rai Jain that the latter should tell the appellant that the appellant should. not talk ill of them. Accordingly. when the appellant was coming out of the house of Aftab Rai, Mehtab Rai Jain told him that since Raj Rani bad severed all relations, he (the appellant) should not talk anything about Raj Rani to them. On this, the appellant got enraged. He told Mehtab Rai Jain that the former would teach a lesson to the latter. Then the appellant hit with a club (danda) on the right side neck of Mehtab Rai Jain on account of which the latter felt down and received some injuries. The appellant started running away. Smt. Kalawati (Public Witness 4) tried to catch hold the appellant. She was also given a danda blow by the appellant and thereafter he escaped.

(5) Ranvir Singh Jain gave an information on the telephone to the control room. Flying squad reached at the spot. Thereafter local police also reached. The local police was headed by Si Sultan Singh (Public Witness 13). He recorded statement of Ranvir Singh Jain (Public Witness 1). That statement is Ex. Public Witness l/A. He sent that statement to the police station Kotwali through constable Sri Chand for recording of first information report. The first information report was recorded.

(6) Mehtab Rai Jain died at the spot. On 29th September 1974 at 10.30a.m. Dr. Bharat Singh (Public Witness 14) Police Surgeon, Delhi conducted the postmortem examination on the body of Mehtab Rai Jain and found the following four injuries on his person : "1.Abrasionontherightsideofneckl"below the lobule of the ear. Size 1/2"X¬" red in colour. Shape was irregular. 2. One abrasion on the right side of neck I" below and lateral to the chin. Size 3/4"XI/4" red in colour. There was no evidence of nail marks over the neck and face. 3. One bruise on the back of right elbow joint 1 in diameter. Bluish in colour. Blood clot was present in the soft tissues. 4. One bruise on the back of left elbow 1/2" in diameter. Bluish in colour. Blood clot was present in the soft tissues."

(7) Smt. Kalawati (Public Witness 4) was medically examined on 29th September 1974 at 2 p.m. by Dr. L.T. Ramani (Public Witness II) of police hospital, Delhi. He found the following injury on the person of Smt. Kalawati : "CONTUSION1/2 "X 1/2" on the left side forehead with abrasion 1/4" X 1".

(8) The eye witnesses to the occurrence were Ranvir Singh Jain (PW 1), Udai Singh Jain (Public Witness 2), Smt. Kalawati (Public Witness 3) and Smt. Premwati (PW 4). Pushapdant Kumar Jain (Public Witness 5), who is owner of house No. 2710, Chowk Raiji, Delhi, in a portion of which the deceased was residing, was cited as an eye witness. But he stated that no quarrel took place in bids presence. The Public Prosecutor was allowed to put such questions to the said witness as could be asked in cross-examination. He was confronted with his statement recorded under section 161 Criminal Procedure Code . by the police. He denied having made that statement.

(9) The plea of the appellant was one of denial. He stated that he had been falsely implicated because the complainant party was labouring under an erroneous impression that Raj Rani, when she severed her connections from her family, was acting under his influence.

(10) The learned Additional Sessions Judge, believing all the eye witnesses (PW 1) to (Public Witness 4) and other evidence of the prosecution, found that the appellant was guilty. The learned Additional Sessions Judge, however, remarked that there was neither any intention to cause death nor there was any know- ledge that the death was likely to be caused, that the opinion of the doctor was that the death of deceased might have been due to shock on account of injury and that, therefore, the offence fell within the purview of section 323 Ipc which punishes simple hurt. Hence he convicted the appellant under section 323 Indian Penal Code and acquitted him of the charge under section 304 Part Ii IPC.

(11) On September 2, 1985 I, inter alia, passed the following order : "I have gone through the judgment of Shri D.C. Aggarwal. Additional Sessions Judge which is under appeal. Prima tacies, without prejudice to the decision of the case on merits, I am of the opinion that if the appellant is to be convicted, the conviction should be under section 304 Part Ii Indian Penal Code, for which he was charged and accordingly the sentence should also be enhanced. Therefore, notice has been given to the learned counsel for the appellant to argue in that respect also when arguing the appeal."

That order was registered as Criminal Misc. No. 1422/85.

(12) I have heard the learned counsel for the parties in respect of the appeal as well as the aforesaid notice given on September 2, 1985.

(13) There are same circumstances which taken together and cumulatively cast doubt as to the correctness of the case of the prosecution. Those circumstances are as under : (A) The alleged occurrence took place on September 28,1974 at about 8 p.m. Si Sultan Singh (Public Witness 14) stated that the information about the occurrence reached the police station at about 10 p.m., that be went at the spot and recorded the statement of Ranvir Singh Jain at about Ii p.m. and that the Fir was recorded at about 11.10. p.m. The case was registered as one of murder punishable under section 302 Indian Penal Code Therefore, it was obligatory under the police rules as well as under section 157 Cr. P.C. on the police to have sent a copy of the Fir to the magistrate competent to take cognizance of the offence. Such magistrate was Shri H.P. Sharma (DW 2). The said. magistrate was examined as a witness by the appellant. He stated that on 30th September 1984, an application was presented before him for inspection of the file, that the said inspection could not be carried out by the appellant because as reported by the Ahlmad, copy of the Fir had not been received by that time. He added that it was on October 3, 1974 that inspection could be done. It is clear from the said statement that copy of the Fir was received by the concerned magistrate sometime after September 30, 1974. In Ishwar Singh v. The State of Uttar Pradesh, , such an unexplained delay was found to be providing a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In that case also, there was a delay of two days in sending a copy of the first information report to the magistrate concerned. Here the delay was of more than twÿo days. There is no explanation for delay and hence this circumstance raises the same suspicion as was mentioned by the Supreme Court in the case cited above. (B) It has already come that, according to the prosecution, a report about the Occurrence had been lodged with the police and Fir was recorded at 11.10 p.m. It appears from the statement of Pw 2 on cross-examination that Public Witness 2 went to the police station Kotwali with the dead body of his father on the night intervening 28th and 29th September 1974 and that he saw the appellant present in the police station. Yet, according to the version of the prosecution as contained in the statement of Si Sultan Singh (Public Witness 13), the appellant was arrested at 9 a.m. on 29th September 1974. Had the Fir been recorded as is alleged by the police and it had come to be known that the appellant had committed an offence of murder, the normal conduct of the police Would have been to have arrested the appellant during the night time and he would not have been allowed to go to his house so as to be subsequently arrested in the morning of next day i.e. 29th September 1974. Si Sultan Singh (Public Witness 13) denied on cross-examination that the appellant was present in the police station on the night of September 28, 1974 But to my mind that denial has no value as against the statement of Public Witness 2. The very fact that the appellant was not arrested when he was present in the police station indicates that by that time the prosecution had not made up its mind that the appellant was guilty. Learned counsel for the appellant contended that in fact the police was investigating on a different line and was working on the theory that the offence, if any, had been committed by some body else. (C) Dr. Bharat Singh (Public Witness 14) made the following statement on cross- examination : "IN this particular case, the cause of death was heart failure due to coronary artery disease. Shock can also cause death if a person is having a weak heart or he is an emotional type of person. The deceased was having diseased heart and the danda blow may have produced a shock aggravating the heart attack."

It is apparent from the above that the death was not necessarily caused on account of any danda blow and it could be a simple case of heart attack on account of Mehtab Rai Jain having become emotional. Therefore, the medical report does not fully corroborate the version of the prosecution that the appellant bad caused the death of Mehtab Rai Jain by causing injury with 'danda. (D) The statement of Smt. Kalawati (Public Witness 3) to the effect that she had received injuries on her person finds corroboration from the statement of Dr. L.T. Ramani (Public Witness II). But that by itself does not conclusively prove about her veracity specially when we are confronted with the aforementioned circumstances casting suspicion about the truth of the story of prosecution.

(14) Under the above circumstances I give the appellant benefit of doubt and acquit him. The amount of dine, if paid, shall be refunded to him.

(15) A copy of this order shall be sent to the learned Sessions Judge, Delhi for information and necessary action.

(16) Criminal Appeal No. 91 of 1976 stands.