Kishore Singh vs State And Ors.
2004 Latest Caselaw 101 Del

JUDGMENT

Dr. Mukundakam Sharma, J.

1.The present appeal is directed against the judgment and Order of conviction and sentence passed by the Additional Sessions Judge, Delhi in Sessions Case No. 44/92. By the aforesaid judgment and order, the appellant herein has been convicted for the offence punishable under Section 304 Part-I IPC and he has been sentenced to undergo a period of ten years imprisonment and to pay a fine of Rs. 3,000/- and in default of payment of fine to undergo simple imprisonment for a further period of six months.

2. In Order to appreciate the contentions raised in this appeal by the appellant, which were advocated by his counsel appearing before me, it would be necessary to set out brief facts which resulted in the institution of the criminal proceeding against the appellant. The appellant Kishore Singh was employed as a driver by M/s.Rajiv Road Carriers and he used to drive their petrol tanker. M/s.Rajiv Road Carriers had their office at Industrial Area, Phase-II, Mangolpui, Delhi wherein deceased Prakash was working as an Accountant (munim) with M/s. Rajiv Road Carriers. It is alleged that on 5.4.1990 accused Kishore Singh went to the aforesaid office of M/s.Rajiv Road Carriers around 9.30 P.M where Surinder Kumar (PW3) and Jaswant Singh (PW5) were also present. It seems that there was some dispute with regard to payment to be made to the appellant and, therefore, the appellant asked the deceased Prakash to clear his account on which deceased Prakash brought an accusation against him that he had sold petrol from the tanker of the company, which fact would be reported to the owner. As allegations were brought in, there was heated arguments between the accused and the deceased Prakash and they started grappling with each other, during the course of which the appellant picked up a wooden arm of the cot (bahi) with which he gave 2 or 3 blows on the head of deceased Prakash, who started bleeding. Surinder Kumar and Jaswant Singh , who were allegedly present at that time, tried to contact the police on telephone but the said telephone was out of Order due to which Jaswant Singh went out and reported the matter to police officials posted at PCR van whereupon injured Prakash was removed to DDU hospital in the police van. Ultimately, injured Prakash succumbed to his injuries and died on 10.4.90 in the hospital. The accused/appellant had also suffered injuries and he was also removed to the hospital by the same PCR van, which had taken deceased Prakash to the hospital.

3. Duty Constable posted at DDU hospital informed Police Station Mangolpuri on telephone about the admission of Prakash and accused Kishore Singh in the hospital. Said information was recorded in DD No. 32A (Ex.PW8/A) which was handed over to S.I. Munshi Ram (PW8) for enquiry. The said S.I Munshi Ram is the Investigating Officer in the present case, who conducted the investigation and on completion of the enquiry, a chargesheet was submitted by the police. On the basis of the aforesaid chargesheet, the appellant was charged for the offence under Section 304 IPC to which appellant pleaded not guilty and claimed to be tried. Accordingly, trial was held, during the course of which the prosecution examined ten witnesses including two alleged eye-witnesses, namely, Surinder Kumar and Jastwant Singh (PW3 & PW5 respectively). The defense examined no witness.

4. Dr. L.T.Ramani (PW6) had conducted the post mortem on the dead body of deceased Prakash and on his examination he found following external injuries on the body of the deceased:-

1. Stitched wound "C" shaped 18cm long extending from the right zygoma to right occipital area of scalp (operational).

2. Stitched wound 2-1/2 long placed obliquely on the right temporo parietal region with haematoma beneath (corresponding to the injury mentioned in the MLC).

5. On examination Dr. Ramani found internal injury with massive blood on the right half of the scalp. In his report he has given an opinion that death was due to coma resulting from head injury. He has also opined that injury to the skull was antemortem caused by blunt object/weapon and it was sufficient to cause death in ordinary course of nature. After completion of investigation, the Police filed a charge-sheet against the appellant for the offence punishable under Section 304 IPC.

6. The trial court examined all the ten witnesses which were produced on behalf of the prosecution. However, the defense did not examine any witness in its defense. The appellant took up a defense of denial simplicitor of the entire incident and claimed that he has been falsely implicated in the offence. The trial court conducted the trial and on conclusion thereof also examined the accused/appellant under Section 313 of the Cr.P.C. and ,thereafter, by his judgment and Order dated 30.11.2000 held the appellant/accused guilty of the charge and convicted him for the offence punishable under Section 304 Part-I IPC. The trial court held that the appellant was guilty of causing death of deceased Prakash. His death was found amounting to amount to culpable homicide not amounting to murder, which offence is punishable under Section 304 Part-I IPC.

7. So far the sentence is concerned, the trial court heard the accused and thereafter, by a separate Order passed on 4th December, 2000 sentenced the accused to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 3000/- and in default of payment of fine, to undergo a further simple imprisonment for a period of six months.

8. Being aggrieved by the aforesaid Order of conviction and sentence, the present appeal is filed. It was contended by Mr. B.S.Rana, learned counsel appearing for the appellant that none of the witnesses, who have been examined in the present case, could be said to be an eye-witness to the occurrence. It was also submitted by him that although PW3 and PW5 have been examined as eye witnesses to the occurrence but there are number of discrepancies in their evidence, which would nullify their stand that they had witnessed the occurrence. It was also submitted by him that although the incident had taken place on 5.4.1990, the police met the accused and the alleged eye witnesses only on 7th April, 1990. He also pointed out certain discrepancies, irregularities and omissions in the investigation, in support of his contention that the investigation in the present case was conducted in a very slipshod manner and, therefore, the Order of conviction and sentence is required to be set aside .

9. Similar argument, as sought to be raised now regarding the manner in which the investigation was conducted by the police, was also raised before the trial court , which was considered by the trial court but the said submission that the accused should be acquitted in view of certain discrepancies and omissions in the investigation, was rejected by the trial court by relying upon decisions of the Supreme Court and of this court. It was held by the trial court that whatever lapses committed by the Investigating Officer in the course of investigation would not be of any help to the accused as there was unassailed testimony of Surinder Kumar (PW3) which clearly proves that it was the accused and none else who had assaulted the deceased Prakash. In support of the aforesaid conclusion, the learned trial court referred to the decision of this court in Manoj @ Manu v. State of Delhi reported in 2000 Vol.I A.D (Delhi) 67 wherein it was observed that criminal justice should not be made a casualty for the wrongs committed by the Investigating Officer and, therefore, the prosecution case cannot be thrown out on account of lapses committed by the investigating officer. Reference was also made to the decision of the Supreme Court in the case of State of U.P. v. Hari Mohan and Others reported in 2000 Vol.VIII AD (SC) 389 wherein the Supreme Court had held that failure of the Investigating Officer cannot be allowed to become escape route for release of the accused. To the similar effect is the decision of the Supreme Court in the case of Ambika Prasad v. State reported in 1997 Vol.V A.D.(SC) 467. The trial court, therefore, scrutinized carefully the evidence of PW3 and PW5, who were said to be the eye witnesses to the occurrence and after scrutinizing the said evidence held that Surinder Kumar PW3 is definitely an eye witness to the occurrence and that his evidence is unassailable to the extent that it was the accused and none else who had assaulted the deceased Prakash. I have also scrutinised the evidence myself given by the said PW3 and PW5 and upon going through the same I find no reason to disbelieve the statements given by the said eye witnesses in whose presence the incident had taken place. They, particularly PW-3, categorically stated that the incident had taken place in the manner it is alleged and that it is the appellant/accused, who had given 2 or 3 blows on the head of the deceased picking up a wooden arm of the cot (bahi). PW-3, Surinder Kumar, is an independent witness having no previous enmity with the accused. In his deposition he has given a vivid description as to how the quarrel between the accused and the deceased and in what manner and how the accused gave the blows on the head of the deceased had taken place . The said description is corroborated by the medical evidence and also by the evidence of PW, Jaswant Singh, on all material points. Therefore, no ground for discarding the evidence of PW-3 and PW-5 is made out by the appellant. Immediately after the occurrence the deceased was hospitalised wherein he stayed in a coma position and finally died due to the injuries received on 10.4.90.

10. In view of the aforesaid position and the evidence on record, failure on the part of the investigating officer to start the investigation immediately and commission of certain omissions by him in conducting the said investigation cannot be a ground on which the prosecution case could be thrown out . It is proved by the evidence on record that it is the accused who had given 2-3 blows by the aforesaid blunt weapon on the head of the deceased, which caused the injury to his skull. The said injury was also opined to be sufficient to cause death in the ordinary course of nature and , therefore, there could be no doubt with regard to the fact that the appellant is responsible for the death of the deceased.

11. Counsel appearing for the appellant/accused next submitted that even going by the prosecution case, it cannot be said that the present case is a case under Section 304 Part-I IPC but if at all , it is a case under Section 304 Part-II IPC. It was submitted by him that there was a sudden fight between the parties without any premeditation , during the course of which the deceased received injuries but the appellant/accused also received injuries and since two blows were given to the deceased in the heat of passion and the fact that the deceased died after five days of the incident, it is established that there was no intention to kill the deceased although it can be said that there was knowledge and, therefore, it could at best a case of Section 304 Part-II IPC and, therefore, the accused could be convicted by converting the case to one under Section 304 Part-II and by sentencing him to the period already undergone.

12. I have given my anxious consideration to the aforesaid submission. It is no doubt true that the incident had happened as a result of sudden fight and without any premeditation but the medical evidence, which is placed on record, clearly reveals that the appellant gave two blows on a very vital part of the body that is on the head. As a result of the said blows the deceased suffered massive fracture in the right side of the scalp. Therefore, it cannot be said that it is not a case of 304 Part-I but it is a case of 304 Part-II. Therefore, I am of the considered opinion that the finding of the learned trial Judge that it is a case of Section 304 Part-I, needs no interference by this court .

13. Next submission of the counsel appearing for the appellant pertained to the quantum of punishment. Counsel submitted that the appellant has three marriageable daughters to be given in marriage. I have considered the said submission in the light of various decisions of the Supreme Court relating to period of imprisonment to be awarded in a case of this nature. It is proved by the evidence on record that the incident had taken place as a result of a sudden quarrel between the appellant and the deceased, during the course of which not only the deceased received injuries but it is also proved on record that the appellant also received injuries. Although the nature of injuries received by the appellant has not been proved during the course of trial yet it has come on evidence that the appellant was also admitted into the hospital due to injuries received by him. The appellant/accused has already undergone a period of about three years and two months imprisonment till date and that he has three marriageable daughters to be given in marriage and that there is no other earning member in his family. Considering the entire facts and circumstances of the case and in the light of the decision of the Supreme Court in Mahesh v. State of Madhya Pradesh reported in 1996 Crl.LJ 4142 (SC) convicting under Section 304 Part I IPC and awarding a sentence of six years rigorous imprisonment in a case of sudden quarrel and infliction of blow resulting in the death of the deceased, I uphold the conviction of the accused/appellant under Section 304 Part-I but reduce the sentence inflicted on him from the period of ten years to a period of six years rigorous imprisonment and also to pay a fine of Rs. 3,000/- and in default to undergo a further period of simple imprisonment for four months. With the aforesaid modification in the sentence, the appeal stands disposed of.