Ram Kishan vs State
2009 Latest Caselaw 3226 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                Date of Judgment: 18th August, 2009.


+                           CRL.A.371/2001

        RAM KISHAN                                        ...Appellant
                  Through:         Dr. L.S.Chaudhary, Advocate/ Amicus
                                   Curiae

                           Versus

        STATE                                          ...Respondent
                      Through:     Ms. Richa Kapoor, APP.


        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MS. JUSTICE INDERMEET KAUR


     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?

     3. Whether the judgment should be reported in the
        Digest?

PRADEEP NANDRAJOG, J. (ORAL)

1. Vide impugned judgment and order dated 20.4.2001,

the appellant has been convicted for the offence punishable under

Sections 302/325/34 IPC.

2. Vide order dated 28.4.2001, the appellant has been

sentenced to undergo imprisonment for life for the offence of

murder. Fine in sum of Rs.1000/- has also been imposed. In

default of payment of fine, it has been directed that the appellant

shall undergo R.I. for 15 days. The appellant has also been

sentenced to undergo R.I. for one year and to pay a fine in sum of

Rs.1000/-; in default of payment of fine to undergo R.I. for 15 days

in respect of the conviction for the offence punishable under Section

325/34 IPC.

3. We may note that there were six accused sent to trial.

Two of the six accused have been acquitted. Three accused namely

Ramesh, Suresh and Kishan have been convicted for the offence

punishable under Section 325/34 IPC. It appears that the said three

accused had already been undergone the sentence imposed upon

them and hence have not preferred any appeal challenging the

order of conviction or the order of sentence.

4. Appellant Ram Kishan is the sole accused who has filed

an appeal challenging the judgment and order of conviction and the

order imposing sentence.

5. It may be noted at the outset that the appellant has been

convicted for having murdered Jagdish. He has been convicted for

the offence punishable under Section 325/34 IPC on account of a

finding returned that the appellant and three other co-accused,

namely, Ramesh, Suresh and Kishan inflicted lathi blows on Jagjit.

Needless to state, the sentences imposed upon the appellant have

been directed to run concurrently.

6. The post mortem report Ex.PW2/A evidences that the

deceased Jagdish was inflicted only one blow with a lathi. The blow

was directed towards the left temporal region. Unfortunately, the

blow resulted in the fracture of the left parietal and the temporal

bones. Consequent effect thereof was oedema of the brain.

7. The incident took place on 9.1.1991 in the evening at

around 6.30 PM. The deceased died on 18.1.1991 at around 2.05

PM. Thus, an important fact may be noted at the outset, that the

deceased died on the 9th day of having received the injury in

question.

8. Jagjit Singh, the person who had also received lathi

blows and in respect whereof the appellant and three co-accused,

namely, Ramesh, Suresh and Kishan have been convicted for the

offence punishable under Section 325/34 IPC, deposed as PW-6. As

per his testimony, at 6 AM on 9.1.1991, a minor verbal dual had

taken place between the appellant and deceased Jagdish. The

verbal dual took place when the appellant pulled an iron pipe from

the roof of the shop of Jagdish. Jagdish objected to the iron pipe

being pulled out. Appellant stated that he was merely borrowing

the iron pipe to break a twig from a tree to be used as a „datun‟.

With the intervention of neighbours, the matter was sorted out in

the morning. On the same day i.e. 9.1.1991 at about 6 PM or 6.30

PM, the appellant along with Ramesh, Suresh and Kishan armed

with lathis, came. Appellant inflicted a lathi blow on the head of

Jagdish. The other three co-accused also started inflicting lathi

blows on the deceased and himself i.e. Jagjit Singh. People

gathered. He i.e. Jagjit and the deceased were taken to DDU

hospital. His brother was shifted to Willington Hospital where he

died.

9. It may be noted at the outset that when confronted with

his statement Ex.PW-6/1 recorded by the police, Jagjit admitted that

it did not find mention therein that an altercation had taken place in

the morning, but clarified that he had told the Investigating Officer

of the same.

10. Eschewing reference to the lengthy cross-examination

of PW-6, suffice it would be to note that on one aspect of the matter

PW-6 has given an exaggerated version. The same is evidenced by

the post mortem report as also the MLC of the deceased, which

records a solitary injury on the left parietal region. No other injury

on any other part of the body stands recorded in the two

documents. Thus, the testimony of Jagjit that after assaulting his

brother on the head, all accused inflicted further lathi blows on the

person of the deceased is incorrect.

11. The learned Trial Judge has convicted the appellant for

the offence of murder by relying upon the decision of the Supreme

Court in the decision reported as Virsa Singh vs. State of Punjab AIR

1958 SC 465. Discussing the contention urged on behalf of the

appellant that the deceased died on the 9th day of the incident and

that a solitary blow with a lathi being inflicted on the left parietal

region of the skull cannot make out a case of commission of an

offence punishable under Section 302 IPC; with reference to the

decision in Virsa Singh's case (supra), learned Trial Judge has held

that said decision shows that a single fatal blow can well attract the

offence of murder. The learned Trial Judge has held that if a vital

part of the body is the target of the attack, the same would show

the intention to cause an injury on the vital part of the body. It has

been held that if the injury is opined to be sufficient in the ordinary

course of nature to cause death, the act committed would attract

the penalty under Section 302 IPC.

12. The learned Trial Judge is partly correct and partly

wrong. The partly correct part of the decision of the learned Trial

Judge is where it has been held that the body part which is targeted

by the act would be a relevant fact to be taken note of. The partly

wrong part of the decision of the learned Trial Judge is in not

proceeding further to consider another very important facet;

namely, whether the blow was struck with sufficient force to cause

the kind of the injury actually found to have been inflicted. In para

13 of the decision in Virsa Singh's case (supra) the twin element of

the strike being directed at a vital or a dangerous spot and the

ferocity of the strike was so stated:

"13.In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquiry into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense: the kind of enquiry that "twelve good men and true" could readily appreciate and understand."

13. It may be noted that in Virsa Singh's case (supra),

weapon of offence was a spear. The blow was directed at the

abdomen. The ferocity of the blow was such that the spear pierced

the whole thickness of the abdominal wall. The small intestines

were pierced and three coils of intestines were coming out of the

wound. The assault took place at 8 PM on 13.7.1955. The

deceased died the next day at about 5 PM.

14. It is apparent that the nature of the weapon of offence

i.e. a spear, the vital part of the body which was the target of the

attack and the sufficiency of the force with which the blow was

directed were taken note of by the court. The deceased having died

in less than 24 hours of the assault was an additional circumstance

taken note of.

15. In the instant case, the weapon used is a lathi. It is a

common object found in houses in India, unlike a spear which by its

very nature is a weapon of offence. A lathi is not inherently a

weapon of offence. No doubt, the blow has been directed towards

the skull of the deceased but the ferocity of the blow is not of an

extreme violent nature wherefrom the intention to cause the

specific injury to the brain can be ascertained with near certainty.

16. We take guidance from a few decisions of the Supreme

Court where the weapon of offence was a stick or an object akin to

a stick, for example, a gandasi, spade or a dhariya (scythe). In the

decision reported as Thangaiya vs. State of Tamil Nadu 2005 (9)

SCC 650, the weapon of offence was a stick. The injury was a four

inch wound over the right parietal skull. The opinion of the doctor

was that the injury was sufficient in the ordinary course of nature to

cause death. Sentence imposed by the High Court for the offence

punishable under Section 302 IPC was altered to an offence

punishable under Section 304 Part I IPC. Sentence imposed was 10

years rigorous imprisonment.

17. In the decision reported as Sunder Lal vs. State of

Rajasthan 2007 (6) scale 649, the weapon of offence was a gandasi

and a lathi. Number of accused were two. One blow was directed

on the head with the gandasi. There were several other injuries on

the hands and legs caused by the gandasi and the lathi. Conviction

sustained by the High Court for the offence punishable under

Section 302 IPC was altered to a conviction under Section 304 Part I

IPC. Sentence imposed was rigorous imprisonment for 10 years.

18. In the decision reported as Kesar Singh and Another vs.

State of Haryana JT 2008 (5) SC 407, the weapon of offence was a

spade. A single blow was directed on the head from the blunt side

of the spade. Sentence imposed by the High Court for the offence

punishable under Section 304 Part II IPC was altered, for an offene

punishable under Section 304 Part I IPC. We may note that in Kesar

Singh‟s case (supra) the blow was inflicted upon a sudden fight.

19. In the decision reported as Thakard A. Lalaji Gamaji vs.

State of Gujrat AIR 1974 SC 1351, the weapon of offence was a

dhariya (scythe) two blows, one on the head directed towards the

left temporal region of the skull and the other on the arm was held

attracting an offence punishable under Section 304 Part I IPC and

not Section 302 IPC.

20. Reverting to the fact of the instant case, it is important

to note that the appellant inflicted only one blow with a lathi on the

deceased. The blow fell on the head of the deceased. Two bones of

the skull got fractured. The intensity of the blow is not of the kind

where blow can be classified as a ferocious blow. We say so for the

reason that the deceased died after nine days. It was not a case

where the brain matter came oozing out of the skull as a result of

the blow. Under the circumstances, it cannot be said that the

appellant has committed an offence punishable under Section 302

IPC.

21. We dispose of the appeal partially allowing the same.

Conviction of the appellant for the offence punishable under Section

302 IPC is modified. In that, pertaining to the death of Jagdish, the

appellant is convicted for the offence punishable under Section 304

Part I IPC. We maintain the conviction of the appellant for the

offence punishable under Section 325/34 IPC.

22. For the offence punishable under Section 304 Part I IPC,

we direct the appellant to undergo rigorous imprisonment for ten

years. Needless to state, both sentences imposed upon the

appellant shall run concurrently.

23. The appellant shall be entitled to the benefit of Section

428 Cr.PC.

24. The appellant has been admitted to bail vide order

dated 19.12.2006. The nominal roll of the appellant shows that as of

11.12.2006 the appellant had undergone an actual sentence of five

years, six months and twelve days. The appellant had earned

remissions for a period of one year, seven months and three days.

It is apparent that the appellant has to undergo further sentence.

Thus, we cancel the bail bond and the surety bond furnished by the

appellant who shall surrender to undergo the remaining sentence.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE

August 18, 2009 rb