Mohan Singh vs State
2009 Latest Caselaw 3247 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Judgment: 19th August, 2009.

+                         CRL.A.82/2007

       MOHAN SINGH                                   ...Appellant
                Through:        Ms. Purnima Sethi, Adv.

                         Versus

       STATE                                      ...Respondent
                     Through:   Mr. Pawan Sharma, 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?           Yes

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

PRADEEP NANDRAJOG, J. (ORAL)

1. The appellant has been convicted for the offence of

murder. The impugned judgment is dated 12.12.2005.

2. Before we note the facts of the case, we wish to

pen down a prelude, for the reason we are noting an

unfortunate trend of convicting each and every accused,

whose act has resulted in the death of a person.

3. In a case of homicide, the distinction between

homicide simplicitor and a homicide amounting to murder is

well re-cognised by law and has to be kept in view while

evaluating evidence. Further, the distinction between Part I

and Part II of Section 304 IPC has also to be kept in view. That

apart, there may be cases where the intention of the accused

may be to cause an injury simplicitor but death may result. In

such cases, it has to be considered whether the act constitutes

an offence punishable under Section 322, 323, 325 or 326 IPC.

4. The reason is obvious. Unlike in statutory offences

or offences of strict liability, mens rea plays a very important

role in criminal matters. An act actuated by mens rea comes

within the four corners of a penal offence.

5. The appellant has been convicted on the testimony

of Const.Shiv Kumar PW-1 who claimed to be an eye-witness.

6. Shiv Kumar deposed that he was posted as a

Constable in police station Kalyanpuri and at 9.45 PM on

22.9.2003 was proceeding towards Khichripur. He reached

near a wine shop and saw people running here and there. He

entered the market place and saw the accused hitting a boy

with a broken bottle. On seeing him, the accused fled with the

broken bottle. He chased the accused and apprehended him.

He brought him back to the spot and met HC Jaiveer. The SHO

arrived soon. His statement Ex.PW-1/A was recorded by the

SHO. He handed over the accused whom he had apprehended

i.e. the appellant to the SHO.

7. We may note that the apprehension of the

appellant and the recovery of a broken glass bottle from him

stands recorded in the rukka prepared at the site and

dispatched from the spot in the midnight at 00.15 hours. The

same is evidenced from the endorsement Ex.PW-2/A on the

statement Ex.PW-1/A i.e. the rukka.

8. Another fact of importance qua the involvement of

the appellant may be noted. The shirt and the pant which he

was wearing when he was apprehended and were seized

immediately after his apprehension have been detected with

the presence of human blood of group A i.e. the blood group of

the deceased as per the report Ex.PW-19/L of the serologist.

9. The post-mortem report of the deceased Ex.PW-

15/A notes only two injuries on the person of the deceased

being:

"(i) Incised injury 1.5cm x .5cm x 1cm deep just below left eye semicircular. Margins (illegible);

(ii) Abrasion 2x.5 cm just below injury above."

10. Opinion regarding cause of death was kept pending till

chemical analysis report of the viscera was made available.

11. It is apparent that the doctor who conducted the post

mortem report could not give a definite opinion as to what

caused the death. We may note that as per the post-mortem

report, one liter blood was detected in the abdomen due to

heamorrhage.

12. For record we may note that there is no evidence of

the deceased being poisoned to death.

13. The doctor who conducted the post-mortem,

namely, Dr.V.K.Singh deposed that as per the post-mortem

report the cause of death of the deceased was heamorrhagic

shock consequent upon blunt force impact on the abdomen.

14. The learned Trial Judge has, without analyzing the

post-mortem report or the testimony of the doctor who

conducted the post-mortem, simply on the basis of the fact

that the deceased died, held that it is a case of murder.

15. We totally disagree.

16. The post-mortem report of the deceased shows that due

to a blow given on the stomach of the deceased a resultant

injury inside the stomach of blood vessels being ruptured

resulted. Due to blood loss the deceased suffered a

heamorrhagic shock. No external injury on the stomach could

be detected. Not even a contusion injury. It is apparent that

the blow on the stomach was sans a material object. In all

probability the blow on the stomach was a fist blow. The two

incised injuries near the eye are superficial. In any case, the

doctor has not opined the same to be dangerous.

17. Dead bodies speak for themselves. The dead body

of the deceased speaks and tells us that an unfortunate fist

blow on the stomach of the deceased resulted in internal

arteries getting ruptured and blood loss being the result

thereof. The end was heamorrhagic shock.

18. We need not discuss the theory of culpable

homicide amounting to murder and culpable homicide not

amounting to murder for the reason the theory is well-known.

19. The act of the appellant does not evidence any

intention to cause death of the deceased. It even does not

evidence an intention to cause an injury which the appellant

knew likely to cause the death of the deceased. There is no

intention to cause the injury which has resulted from the act

i.e. the rupturing of the internal arteries, which has resulted in

the death. Even knowledge contemplated by the third limb of

Section 299 IPC i.e. that the act of the appellant is likely to

cause death of the deceased is ruled out.

20. It is obvious that the appellant simply intended to

cause an injury on the person of the deceased by giving him a

fist blow on the stomach. At best, the offence committed by

the appellant is of voluntarily causing grievous hurt punishable

under Section 325 IPC with imprisonment for a term which

may extent up to seven years.

21. The appellant, as per his nominal role, has already

undergone an actual sentence of five years, ten months and

nineteen days. He has earned remissions which would entitle

him to immediate release even if we sentence him to undergo

imprisonment for seven years.

22. We dispose of appeal setting aside the impugned

judgment and order dated 12.12.2005. We acquit the

appellant from the charge of having murdered the deceased.

We convict the appellant for the offence punishable under

Section 325 IPC and sentence him to undergo imprisonment

for the period already undergone.

23. Copy of this judgment be sent to the

Superintendent, Central Jail, Tihar for immediate compliance

since the appellant has to be set free pursuant to our decision,

save and accept, his being in custody in some other case.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE August 19, 2009 rb