Mahender vs State
2009 Latest Caselaw 544 Del

i.11
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CRL.A. 972/2008

%                         Date of Order : February 16, 2009

      MAHENDER                               ..... Appellant
              Through:         Mr. Sumeet Verma, 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 papers may be allowed
         to see the judgment?

      2. To be referred to the Reporter or not?

      3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J. (Oral)

Crl.M.B.No.1461/2008

During arguments in the application seeking bail it

transpired that there was a possibility of the sentence being

modified from that of the offence of murder to the offence of

culpable homicide not amounting to murder.

For said reason with consent of learned counsel for

the appellant and the State it was decided that the main appeal

itself may be heard for disposal. Since the appeal has been

heard, the application seeking suspension of sentence is

dismissed as infructuous.

Crl.A.No.972/2008

1. Information was received by PS Roop Nagar at 10:00

PM on 10.8.2000 that a person was lying unconscious near a

lane across Shakti Nagar, Jain Mandir, Near Aggarwal Hospital.

Additional SHO, Inspector Randhir Singh accompanied by SI

Manoj Kumar and Const. Bhagat Singh went to the spot and at

the spot met one Umrao Singh, a public witness who identified a

dead body lying nearby as that of Balijour @ Panchi. He

informed the police that accused Mahender had hit the

deceased with brick blows and had run away from the spot.

2. The statement Ex.PW-6/A of Umrao Singh was

recorded and after making an endorsement thereon, was sent to

the police station for registration of the FIR. Investigation at the

spot was completed in the form of recovery of a brick; the

alleged weapon of offence with which the appellant had inflicted

blows on the deceased. Control earth, blood stained earth was

also lifted vide memos Ex.PW-5/B to Ex.PW-5/E. The dead body

was seized and sent for post-mortem. Dr. Jaiswal PW-27,

conducted the post-mortem and recorded that the injuries on

the person of the deceased were the result of being hit by a

blunt object and that the injuries had affected the brain i.e. were

craniocerebral injuries.

3. Back at the spot, a photographer was summoned

who took the photographs. Site plan was prepared.

4. After a few days an application Ex.PW-27/B was

submitted to Dr. Jaiswal for an opinion whether the injuries could

be caused by a brick. He opined vide Ex.PW-27/B that the

injuries were possibly caused by a brick.

5. Suffice would it be to state that armed with the

aforesaid post-mortem report and an eye witness to the

incident, namely Umrao Singh PW-6, the charge sheet was filed

indicting the appellant of the offence of murdering Balijour.

6. Umrao Singh PW-6, eye witness deposed that he

used to iron clothes at the thiya of one Balram Singh and that

the deceased was a truck driver and used to sleep at the thiya

at night as and when he was at Delhi and that the accused

Mahender used to work as a waiter in a tent house and used to

visit the thiya. That on 11.8.2000 i.e. the date of the incident, at

10:00 PM, deceased Balijour was present at the thiya and the

accused as also one Hari Singh came there. All of a sudden

there was a quarrel. He intervened and the quarrel stopped.

Hari left the place and he i.e. Umaro Singh went to fetch water

from a tap behind a tempo and when he returned he saw that

the accused was striking the brick on the head of Balijour who

was bleeding. That the accused ran away and he i.e. Umrao

Singh went to a nearby chemist and informed the PCR.

7. As per the post-mortem report there are 8 ante-

mortem injuries on the body of the deceased. The post-mortem

report Ex.PW-27/A reveals the following 8 injuries:-

"1. Lacerated wound with bruised margin on (R) fronto parietal region of size 2½" x ¼" - ½" x ½" with bone piece driven in and crepitus felt over it.

2. Lacerated wound with bruised margin on (R) parietal region 2" x 1½" x ½", bone piece driven in with crepitus around.

3. Lacerated wound with bruised margin just lateral to (R) eye ½" x ¼" x ¼".

4. Hematoma 2" x 2½" over (L) tempo parietal region with crepitus underneath it and around it.

5. Hematoma 2" x 1¼" over forehead in midline.

6. Abrasion (R) side neck lateral aspect 1½" x ½".

7. Abrasion (R) shoulder posterior lateral aspect 3" x ¼".

8. Multiple tiny abrasion 3 mm to 5 mm on (R) lateral neck lower 3rd."

8. The cause of death opined is that injury No.1, 2 and 4

are individually and collectively sufficient to cause death in

ordinary course of nature.

9. Believing PW-6 that the appellant had assaulted the

deceased and with reference to the post-mortem report, vide

impugned judgment dated 20.10.2007, learned Trial Judge has

held that the appellant is guilty of murdering the deceased.

10. Learned counsel for the appellant urges that the

learned Trial Judge has not discussed as to why Section 304 IPC

was not attracted. Learned counsel urges that there is no

discussion by the learned Trial Judge whether the Court was

holding the appellant guilty of having the intention to murder the

deceased i.e. has convicted the appellant under first part of

Section 300 or has convicted the appellant taking aid of part III

or part IV of Section 300.

11. Learned counsel further urges that the learned Trial

Court failed to appreciate the testimony of PW-6 in its proper

perspective, in that, he deposed that when the appellant came

with one Hari, the appellant and Balijour started quarrelling.

Counsel urges that the witness never stated that the appellant

initiated the quarrel. Counsel urges that the origin of the quarrel

was not disclosed by Umrao Singh and hence the only possible

conclusion is that a sudden quarrel took place.

12. That there is nothing to discredit Umrao Singh PW-6 is

conceded by learned counsel for the appellant.

13. If we peruse the testimony of Umrao Singh, it is

apparent that he has failed to disclose the origin of the quarrel.

He simply deposed that all of a sudden the appellant and the

deceased started quarrelling.

14. That the appellant had no intention to kill Balijour is

evident from the fact that he did not bring with him any weapon

of offence. Umrao Singh has not deposed that the appellant had

come armed with a brick. It is apparent that while quarrelling

with the deceased, the appellant picked up a brick and started

hitting the deceased.

15. From the post-mortem report it is apparent that

injuries 6 to 8 are abrasions. Injuries No.1 to 5 are the result of

being hit by a blunt object. The blunt object, in the instant case

is a brick. The injuries are directed towards the head. The result

was a damage to the brain.

16. In the decision reported as AIR 1989 SC 1094

Surinder Kumar Vs. U.T.Chandigarh where 3 injuries were caused

on the person of the deceased; all injuries being with a knife and

directed towards a vital part of the body, namely the chest and

that too the place where the heart is to be found and the neck;

noting that the quarrel was sudden and the accused, in a heat of

moment, picked up the weapon which is handy i.e. did not bring

along with him the weapon, it cannot be said that Section 300

IPC was attracted. We may clarify that the Supreme Court held

that Exception 4 to Section 300 would take said act out from the

rigors of Section 300 i.e. the offence of murder and would reduce

the same to the offence of culpable homicide not amounting to

murder. To put it pithily the act held was an imminently

dangerous act and knowledge could be attributed to the offender

that by the act he would be causing death, but since the quarrel

was a sudden quarrel Exception 4 to Section 300 was held

applicable. That 3 injuries were caused was held as not

justifying an inference that the accused had acted in a cruel

manner.

17. In said decision, holding that the offence was

punishable under Section 304 Part I IPC, rigorous imprisonment

for 7 years was inflicted upon the accused.

18. Taking guidance from the aforesaid decision we hold

that the acts of the appellant make him liable for the offence of

culpable homicide not amounting to murder and hence

punishable under Section 304 Part I IPC. The appellant has

already undergone imprisonment for a period of 8 years and 6

months as of today. As per the nominal roll, he would be

entitled to remission of 3 months and 10 days.

19. Under the circumstances, we hold that ends of justice

would be met if the appellant is sentenced to undergo

imprisonment for the period already undergone.

20. The appeal is partially allowed. The appellant is

convicted for the offence punishable under Section 304 Part I in

FIR No.185/2000 PS: Roop Nagar. We sentence appellant to

undergo imprisonment for the period already undergone.

21. Copy of this order be sent to the Superintendent

Central Jail Tihar for compliance with a direction that if the

appellant is not required in any other case he be set free

forthwith.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

FEBRUARY 16, 2009 mm