Imran vs State
2009 Latest Caselaw 1427 Del

*                HIGH COURT OF DELHI AT NEW DELHI

+                            Crl. Appeal No.681/2008


%                                Date of Order : April 16, 2009

IMRAN                                             ..... Appellant
                        Through : Mr. Rajesh Mahajan, Advocate


                                       VERSUS

STATE                                            .....Respondent

Through : Mr. Pawan Sharma, Advocate

CORAM :-

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH

(1) Whether reporters of local paper may be

allowed to see the judgment?

(2) To be referred to the reporter or not? Yes

(3) Whether the judgment should be reported

in the Digest ? Yes

PRADEEP NANDRAJOG, J.(Oral)

1. Vide impugned judgment and order dated 18.7.2007,

the appellant has been indicted for the offence of having

murdered Kavinder.

2. Vide order of sentence dated 21.7.2007, the

appellant has been sentenced to undergo imprisonment for life

and pay a fine in sum of Rs.2,000/- with a direction that in

default of payment of fine, appellant would undergo RI for one

year.

3. Briefly stated case of the prosecution was that the

appellant as well as the deceased used to take cycle rickshaw

on hire from Abdul Aziz @ Mulla Ji PW-3, and that about 4 or 5

months prior to 6.7.2004, the appellant vanished with a

rickshaw taken by him on hire from Abdul Aziz and that Mulla Ji

managed to track down the appellant with the help of the

deceased and brought him along with the rickshaw to his garage

at Gali No.15, Vijay Park, Mauz Pur, Delhi. That the appellant

and the deceased slept in the garage in the intervening night of

6th and 7th July 2004 and that around 4:30 AM the appellant

picked up an iron piece (being a segment of a railway track) and

started assaulting the deceased whose cries attracted Halku PW-

1 and Bhandari PW-2 who saw the assault being completed.

Halku raised an alarm. People gathered. The appellant was

apprehended at the spot and was handed over to the police.

The clothes which he was wearing namely a shirt and a pant got

stained with blood. They were seized and as per FSL report

Ex.PW-18/D it was opined that blood of human origin of group

„O‟ was detected on the pant. Human blood was detected on

the shirt but gave no reaction pertaining to the group thereof. It

was opined that the blood group of the deceased was „O‟. The

metal piece used for the assault, which was also stained with

blood, was opined to be having human blood of group „O‟.

4. The dead body of the deceased which was seized

from the garage where the assault took place was sent for post-

mortem and as per post-mortem report Ex.PW-19/A it stands

recorded that the following ante-mortem injuries were noted:-

"1. Lacerated wound 8cm x 2 cm x bone deep with contused margin present obliquely on right side forehead starting from outer angle of right eye going towards midline upto the hair line of scalp with underline depressed fracture of the skull.

2. Lacerated wound "L" shaped with contused margin. The longer limb measures 6cm x 2 cm and the shorter limb 3 cm x 2 cm present obliquely on right side of forehead starting just at the tip of bridge of nose going towards left side of forehead terminating 1.5 m below the hair line of scalp with underline depressed fracture of skull.

3. Lacerated wound 2.5 cm x 0.5 cm x bone deep present on left side of face horizontally placed 4cm away from left ala nasi 4 cm medial to tragus of left hair 1.5cm below the horizontal line from outer angel of left eye with fracture of underlying zygomatis bone.

4. Lacerated wound 2.5 cm x 0.5 cm x subcutaneous tissue deep present on left upper lip obliquely placed 1.5 cm medial to the outer angel of left side of mouth 2cm below the left nostril.

5. Superficial lacerated wound 3 cm x 0.2 cm x bone deep present on left side of face 1cm below the lower lip, 1.5 cm away from midline.

6. Lacerated wound 2 cm x 0.2 cm x subcutaneous tissue deep present on left side of face 1 cm below injury No.5.

7. Lacerated wound 8 cm x 2.5 cm x subcutaneous tissue deep present on left side of lower part of front of neck, medial end starting from midline and lateral end terminating little away from a vertical line drawn from left ear lobule with wound margins having tags of

skin and exposing the underlying blood vessels and muscles of neck.

8. Lacerated wound incised looking three in number, 2 cm, 3 cm and 7 cm long 0.1 cm broad, present on the lower part of left side of face on the mandilbular margin.

9. Linear multiple abrasions brownish present on the front of neck across the midline 7cm long.

10. Abrasions 2 cm x 0.5 cm on right side of face, 1.5 cm below the outer angle of right eye. Upper frontal incisor teeth broken.

11. Abrasions 9.5 cm x 0.2 cm brownish obliquely present in the outer aspect of left upper arm, the medial end is 11 cm below the tip of left shoulder."

5. Internal examination revealed vertax fracture under

injury No.1, 2 and 3. Anterior cranial fossa multiple fracture was

found from orbital plate to wings of sphenoid on both sides.

Odima i.e. swelling of the brain had resulted with sub-arachnoid

haemorrhage.

6. Needless to state the death was shock resulting from

ante-mortem injury to the brain and the skull produced by heavy

blunt force impact.

7. As would have become apparent to the reader of the

present order, the case was based on eye witness account as

also the fact that the blood group of the deceased was „O‟ and

the pant of the appellant was found stained with same blood

group. Pertaining to the weapon of offence, the FSL Report was

relevant inasmuch as the iron piece was also found to be stained

with human blood of group „O‟.

8. At the trial Halku PW-1 deposed that he was plying

the rickshaw of Mulla Ji and used to reside in the garage of Mulla

Ji at Vijay Park. On 6.7.2004 appellant Imran had been brought

by Mulla Ji to the garage because he had been absent for the

last 3 months and had not paid the hire charges for the rickshaw

belonging to Mulla Ji which he had taken on hire. He deposed

that Kavinder also used to ply a rickshaw for Mulla Ji and had

come to the garage of Mulla Ji at 8:00 Pm on that day. After

taking meals he i.e. Halku slept. At 4:30 AM he saw appellant

hitting Kavinder with iron piece used in the construction of

railway line/track, which was been used in the workshop for

repairing rickshaws. He deposed that the appellant inflicted

injury on the forehead of Kavinder. Blood started oozing from

the wound on the forehead. He raised an alarm. People

gathered. Somebody informed the police. Appellant was

apprehended at the spot and the iron piece Ex.P-1 recovered at

the spot itself.

9. The witness was cross examined. We note that

nothing has been brought out in the cross examination of the

witness which discredits his testimony.

10. Bhandari PW-2 deposed that even he used to ply a

rickshaw of Mulla Ji and on 6.7.2004 returned to the garage of

Mulla Ji at about 8:00 AM (It appears that the time has got

incorrectly recorded; the same should be 8:00 PM). He deposed

that the accused was brought to the garage by Mulla Ji and

Kavinder as the accused who was plying a rickshaw of Mulla Ji

had not paying the hire charges for the last 4 to 5 months and

Mulla Ji demanded same from him. That in the morning at 4:30

AM he heard cries. He got up and heard some argument

between the accused and Kavinder. The accused picked up a

piece of iron (part of a rail) and struck a blow on the forehead of

Kavinder. The accused was apprehended at the spot by public

persons who had gathered. Blood was oozing from the forehead

of the injured. He went to Mauzpur and called Mulla Ji to the

spot. When he reached back with Mulla Ji, he found that the

police had already reached. His statement Ex.PW-2/A bearing

his signatures at point A was recorded.

11. The witness was cross examined. We note that

nothing of substance has been brought out which discredits the

witness.

12. We need not note any further evidence save and

except to note that the FIR was registered pursuant to the

statement Ex.PW-2/A. We further note that the incident took

place at 4:30 AM. Information reached the police station when

DD Entry No.26A was recorded at 5:30 AM. The endorsement on

the statement Ex.PW-2/A was made at 6:40 AM for registration

of an FIR; meaning thereby, Bhandari PW-2 made the statement

to the police in the shortest possible time after the incident took

place and could not possibly have contrived false facts.

13. We further note that the testimony of Bhandari is in

harmony with his statement Ex.PW-2/A.

14. Since eye witness account has successfully stood the

test of cross examination we need not note any further.

15. We concur with the findings returned by the learned

Trial Judge.

16. Before concluding we note that learned counsel for

the appellant has urged that from the nature of injuries it cannot

be conclusively opined that from the acts of the appellant an

intention to cause the death of the deceased surfaced. Counsel

urges that at best case is made out to convict the appellant for

the offence punishable under Section 304 IPC.

17. We disagree. We have noted hereinabove the

injuries inflicted on the person of the deceased. The assault has

been directed towards the face and the skull. If not more, from

the acts in question, it can be unhesitatingly concluded that the

acts are so imminently dangerous that they must, in all

probability, cause death or such bodily injury as is likely to

cause death. Even a lay man is aware of the importance of the

brain and the skull. Every person would know that with the use

of a heavy iron piece, repeated blows directed towards the skull

would cause such bodily injury as would result in death as a

near certainty.

18. We find no merits in the appeal.

19. The appeal is dismissed.

(PRADEEP NANDRAJOG) JUDGE

(ARUNA SURESH) JUDGE APRIL 16, 2009 mm