Dil Bahadur Alias Bahadar vs State (Delhi Administration)
1988 Latest Caselaw 252 Del

JUDGMENT

Charanjit Talwar, J.

(1) The question which arises for consideration in this appeal is whether the appellant Dil Bahadur alias Bahadur was liable to be convicted and sentenced for the offence of murder punishable under Section 302 of the Indian Penal Code. The trial court by its Judgment dated 18th March, 1985, found him guilty for the said offence and sentenced him to R.I. for life. The reason for not imposing the death sentence was that the accused (appellant) was only 17 years of age at the time when the offence was committed on 4th of March, 1984.

(2) Initially, the case was registered on the statement made by the injured Anil Gulati to Sub-Inspector Karnail Singh for the offence under Section 307 of the Indian Penal Code. This statement was made at about 3.30 p.m. on 4th March, 1984. As Anil Gulati expired in the hospital on that very day, at about 5.30 P.M., in the operation theatre, the offence was later on converted into one punishable under Section 302 Indian Penal Code There is no eye-witness to the occurrence. The prosecution case mainly depends upon the dying declarations made by Anil Gulati to various persons apart from the one made to Sub Inspector Karnail Singh. In that statement made to the Police which ias been exhibited as Ex. Public Witness IO/D, Anil Gulati stated that his servant Dil Bahadur had attacked him with a knife at about 12.30 P.M. inside his residence E-287, Narama Vihar, New Delhi. According to that dying declaration. Anil Gulati was about to go out of his house when his servant Dil Bahadur attacked him at about 12.30 P.M. with a knife firstly on his forehead and then on the left side of his neck and waist. To escape further assault. Anil Gulati. in the injured condition, scaled the wall dividing the front courtyard of his house from the next house i.e. E-286, Naraina Vihar, New Delhi and jumped into the other house.

(3) Smt. Shanta Malhotra, Public Witness -2. who is the landlady of Anil Gulati and resided in the other house helped Anil Gulati in supporting him and taking him outside the house. It seems that on hearing the commotion, Shri Ram Narain who lived in front of the house of Shanta Malhotra came out . of his house. He put the injured in his car and took him to the hospital. Smt. Shanta Malhotra specifically averred that when she heard the alarm and the cries raised by Anil Gulati from his house, she shouted to him to find out as to what had happened. According to her, he replied : "He replied that he had been stabbed by his domestic servant Dil Bahadur and that he bad given me 3/4 knife blows. At that time Anil Gulati was alone in the house as his wife and Ayah had gone away and accused Dil Bahadur his servant was present there. After this Anil Gulati jumped over the courtyard wall and came to my courtyard. He was bleeding profusely and the wall also got smeared with blood. In my wash basin he spit out and blood came out and my wash basin also got blood stained. I was also alone in the house as my servant and husband were away. When I brought Anil Gulati out from the house on the road I saw accused Dil Bahadur scaling over the back boundary wall of the house which is about 5 feet high and running away. ..."

(4) The above is the first dying declaration on which the prosecution relied upon to prove its case against the appellant herein Dil Bahadur.

(5) Shri Ram Narain who had taken the injured to the hospital was produced as Public Witness 3. He stated that on 4th March, 1984, it was a Sunday. Only Dil Bahadur out of the servants of Anil Gulati, was present in the house no. E-287, Naraina Vihar. He stated that at that time he was sitting in his courtyard and reading the newspaper. Anil Gulati's house is directly opposite .to his house and in between there is just a road. He also deposed to the effect that Gulati's wife Along with the children bad gone to her parents on that day, and that he (Gulati) was alone in the house with the servant. The second dying declaration on which the prosecution relies was deposed to by this witness in his testimony as follows :- "I heard the cries of Anil Kumar Gulati, the deceased who was saying that Dil Babadur bad stabbed him and he should be saved from him. (Dil Bahadur Ne Mar Diya, Maar Diya). He cams out running bleeding from his person and pressing his wounds with his bands and he asked me to take him to the hospital. Since my car was already standing outside my house I immediately put him in the car and took him to Khera Hospital at Pandu Nagar. Since no doctor was there, they just gave him first aid by bandaging the wounds and asked me to take him to Dr. Ram Manohar Lohia Hospital. I took him there to Dr. Ram Manohar Lohia Hospital."

(6) Anil Kumar Gulati was brought to the hospital at about 2.10 P.M. on 4-3-1984, It seems that on information given by Smt. Shanta Malhotra (PW-2), his father had already arrived at the hospital. What is of importance in the medico-legal certificate (Public Witness -10/C) is that the history given by Gulati who was in complete senses was that "stabbed by the house servant". The doctor who prepared the M.L.C. was careful to endorse therein that this statement was made to him by the patient himself. The doctor further noticed that "Pt. (Patient) is fully conscious, answering to the questions," The pulse rate recorded was 80 p. minute and the respiratory rate was 16 per minute. The doctors also noticed against the pulse rate that it was of "good volume". On local examination Dr. C.K. Durga who appeared as Public Witness -16- noticed the following injuries : "(1)Incised wound on the forehead in the middle sized about 1 1/2" X 1/4" (2) Incised wound on the left side of the neck sized I" X 1/4" 95 (3) Incised wound on the back of interscapular region size about 1/2" X 1/4" (4) Incised wound over the left index finger size about 1" X 1/4" The doctor has opined that the injuries were caused by a sharp-edged weapon. The patient thus was immediately referred to Surgical Department.

(7) The statement made by Anil Gulati to Dr. C.K. Durga, Public Witness -16 at the hospital is also being relied 'upon by the prosecution as a dying declaration.

(8) At about 2.30 P.M. on the date of the incident i.e. 4th March, 1984, Anil Gulati was declared fit to make a statement vide endorsement Ex. PW-10/E by Dr. P.K. Gupta. This endorsement appears on the M.L.C. Ex. P.C. IO/C. It was after obtaining the permission that the S.I. Karnail Singh, the Investigating of the case recorded the statement referred to above, of Anil Gulati. In the endorsement Ex. Public Witness -IO/E made underneath that statement, it has been noted by the Investigating Officer : "I recorded the statement of Shri Anil Kumar Gulati word for word which was read over to him who having heard and admitted the same to be correct put his signature in English which I attested. The contents of the statement disclosed an offence punishable under Section 3071.P.C."

The time of occurrence has been stated therein as 12.30 P.M. and the time of dispatch of writing as 3.30 P.M. It was on receipt of the statement Ex. PW-IO/D Along with the endorsement Ex. Public Witness -IO/E that the formal Fir Ex PW-13/Awasrecordedat4.10PMon4th March, 1984 at Police Station Naraina. In Column-2 of the Fir it is recorded, "On receipt of a writing in Urdu prepared by Shri Karnail Singh, S.I. on the basis of statement made by Shri Anil Gulati s/o Shri Jagan Nath Gulati, aged 33 years, R/o E-287, Naraina Vihar, New Delhi." The case, as noted above, was registered under Section 307 of the Indian Penal Code. As noticed earlier the doctor who examined the patient in the Casualty .when he was brought at about 2.10 P.M. has been produced as a witness but no other doctor who performed the operation or had attended on the injured in the Surgical ward has been produced. For reasons best know to the prosecution, it has not produced the ''surgical notes" and the death summary prepared by the Surgeons who had performed the operation. ' The prosecution evidence does suggest that an operation was carried out in the hospital. This is stated by the father of Anil Gulati who appeared as Public Witness -I. Jagan Nath Gulati who had reached the hospital at 2 P.M. on coming to know of the incident, stated, "My son was bleeding profusely and I with the help of Mr. Malani (reference is to Public Witness -3 Ram Narain) I took him out from the car and removed him to the Casualty on the stretcher. At about 5/5.30 P.M. my son was declared dead after operation."

(9) It is reasonable to presume that as the injured had been referred to the Surgical Ward by Public Witness -16 Dr. C.K. Durga, there was an operation conducted. But missing from the prosecution case are the details about the said operation. It is not even clear whether Anil Gulati died because of the operation or immediately thereafter. Whether he died because a particular medicine was not available or whether the blood required for transfusion was not available or that he died because of the negligence on the part of the surgeons are the questions which remain unanswered. We pointedly asked the learned State counsel as to why were the operation notes and the death summary not produced during the trial. We may note that the learned counsel was unable to give us the reasons for this lapse.

(10) Learned counsel for the appellant strenuously argued that Anil Gulati could not have possibly made the statement Ex. Public Witness -10/D which is the basis of the FIR. He submitted that as 3.30 P.M. on 4th March, 1984, Anil Gulati was presumably in the operation theatre having been referred to that ward at about 2.10 P.M. The submission is that as no details regarding the treatment and the operation or of the happenings inside the Surgical ward after 2.10 P.M. where be was brought, are available, it is unsafe to hold that the injured made the statement (Public Witness -IO/D) at 3.30 P.M. on that day. As far as the other dying declaration on which reliance has been placed, learned counsel submits that those have also to be ignored from the consideration. He referred to certain discrepancies in the testimony of Public Witness -2 Smt. Shanta Malhotra and Public Witness -3 Ram Narain. The argument is that the appellant herein Dil Babadur was no longer a domestic servant working with the Gulatis in the house as ai the relevant time he was working in the factory of Anil Gulati. The plea is that the appellant has been falselted. It is further stated that the motive of crime has not been proved.

(11) With the assistance of the counsel, we have gone through the evidence. We have no hesitation in upholding the findings of the trial court that: (1)Dil Bahadur, the appellant herein was the one who gave the knife blows to Anil Kumar Gulati ; (2) Anil Kumar Gulati on receiving the blows raised an alarm 'bachao bachao' and shouted that Dil Bahadur had stabbed him; (3) He jumped over the dividing wall of E-286 and E-287, after the incident; (4) Public Witness -2 Smt. Shanta Malhotra had heard him saying that it was Dil Bahadur who had stabbed him ; (5) Public Witness -2 Smt. Shanta Malhotra had seen Dil Bahadur jumping from the back wall of Gulati's house i.e. E-287, Naraina Vihar, New Delhi; (6) Anil Gulati made declaration in the hearing of Public Witness -3 Ram Naraina that he has been stabbed by Dil Bahadur ; (7) The statement made by Anil Gulati before Dr. C.K. Durga was voluntary one and that the declaration that he had been stab bed by his domestic servant referred to the fact that he had been attacked and stabbed by Dil Bahadur.

(12) Even if for the sake of arguments, the statement Ex.PW-10/D is kept out of consideration, the above facts in our view conclusively prove the allegations of the prosecution that it was Dil Bahadur who had stabbed Anil Gulati at about 12.30 P.M. on 4th March, 1984 at E-287,Naraina Vihar, New Delhi.

(13) We are, however, unable to agree with the learned trial court that the offence made out is that of murder as defined in Section 302 Indian Penal Code . As the prosecution, for reasons best known to them, has not produced any evidence whatsoever about the details of the operation or the death summary, it is unsafe to hold that the direct cause of death were the injuries inflicted by Dil Bahadur on AnilGulati, the deceased. As we have noticed above, Anil Gulati was in absolute senses at about 2.10 P.M. on 4th March,. 1984 at the time when he was admitted in the hospital. His heart beat was just 80 per minute and his respiratory rate was 16 per minute. We take judicial cognizance that the pulse rate as well as the respiratory rate of Anil Gulati was normal. He, however, died within 2 1/2 hours of admission to the hospital. A reasonable doubt that the death was caused by negligence cannot be ruled out. The offence made out thus is not of murder and is, therefore, not punishable under Section 302 of the Indian Penal Code. After giving our careful consideration to the evidence on record, we are of the view that the injuries caused come within the purview of grievous hurt. We are further of the view that Dil Bahadur caused the grievous hurt voluntarily with the Kitchen knife which was used as the weapon of offence. We hold that the offence punishable under Section 326 of the Indian Penal Code has been made out against the appellant. We alter the conviction from 302 Indian Penal Code to that under Section 326 IPC.

(14) The learned trial court found that the appellant was just about 17 years of age at the time of commission of offence. The evidence of Mrs. Kiran Gulati, wife of the deceased does suggest that he i.e. Anil Gulati was a man of violent tamper and had threatened to beat the appellant as he suspected him of theft. Whether in fact the appellant was beaten prior to the incident is, however, not clear from the record. In our opinion the ends of justice would be met if 7 years' R.I. is awarded to the accused for the offence under Section 326 Indian Penal Code instead of maximum of life imprisonment as provided under that Section.

(15) We allow the appeal to the extent that while converting the conviction from under Section 302 Indian Penal Code to that under Section 326 Indian Penal Code we award 7 years' R.I. to the appellant. The Jail Superintendent be informed.