Delhi High Court
State Of Nct Of Delhi vs Neeraj & Ors. on 2 July, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order : 2nd July, 2009.
+ CRL.L.P. 133/2008
STATE OF NCT OF DELHI ..... Petitioner
Through: Mr.Vikas Pahwa Addl. Standing
Counsel with Mr.Piyush Kr. Singh,
Adv.
versus
NEERAJ & ORS ..... Respondent
Through: Mr. Sanjiv K. Chaudhary, Adv.
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? Yes
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. We have heard learned counsel for the State.
2. By the impugned judgment and order dated 25.2.2008, the
respondents have been acquitted for the offence punishable under
Section 304 IPC and Section 308 IPC. They have been convicted for
the offence punishable under Section 323 IPC. Needless to state,
since the number of accused were more than one and less than five,
the learned Trial Judge has taken the aid of Section 34 IPC.
3. The genesis of the offence relates to past animosity between
the family members of the respondents and the deceased as also
the injured.
4. It appears that a daughter of the family got entangled in some
kind of a dispute involving a boy of the opposite family resulting in
acrimonious relationship between the family of the deceased and
the injured as also the respondents who reside in the same vicinity.
5. In the intervening night of 12th and 13th, July 2001, at around
12.45 mid-night, the accused i.e. the respondents who are brothers
alongwith their co-accused (since deceased), their mother, went to
the house of Ram Sharan (deceased) and created a ruckus. Ram
Sharan went out. Kailaswati, his wife, Chander Deep, son of Ram
Sharan and Anita, wife of Chander Deep also came out of the house.
6. The respondents were armed with sticks and a hockey.
7. A fight ensued.
8. Ram Sharan died. As per post mortem report, as also the
specific opinion by doctor Anil Aggarwal who was examined as a
court witness, cause of death of Ram Sharan was a heart attack
suffered by him when the fight took place.
9. Injuries noted on his person are fist blow on the scalp and a
blow with a stick on the wrist.
10. It is not in dispute that Ram Sharan was aged 75 years.
11. Pertaining to the death of Ram Sharan in respect whereof
charge for the offence punishable under Section 304 IPC was
framed, it was debated before the learned Trial Judge whether the
act of the accused would attract Section 304 Part II IPC.
12. It was the case of the prosecution that where an old man aged
75 years is assaulted, knowledge has to be attributed to the
accused that their acts can trigger the death of the old man.
13. Per contra, the accused urged that if the causa causaun is
broken and cause of death is something which is not the direct
consequences of the act, the offence cannot be made out. It was
also the case of the defence that the injuries inflicted on the
deceased, at best, evidence an intention to cause hurt and no more.
14. Learned Trial Judge has agreed with the defence.
15. Pertaining to said part of the impugned decision, learned
Counsel for the State draws our attention to para 7 of the impugned
decision and highlights the fact that the learned Trail Judge has
noted the fact that the possibility of the heart attack being triggered
due to injuries sustained by Ram Sharan on his brain could not be
ruled out. Thus, counsel urges that this court should look into the
evidence and grant leave to appeal to the State.
16. It is apparent that the learned Trial Judge has used a wrong
expression while describing the injuries sustained by Ram Sharan
while penning para 7 of the impugned decision.
17. Learned counsel for the State concedes that there is no
evidence that any part of brain of Ram Sharan suffered an injury. It
appears to be a case of use of a wrong expression i.e. injury on the
scalp has been treated as an injury to the brain.
18. There is a distinction between the brain and the scalp.
19. We have perused the testimony of CW-1 Dr. Anil Aggarwal.
We have perused the post mortem report of the deceased. The
injuries noted are fist blows on the scalp. No resultant internal
injury has resulted to the brain.
20. There is no causal connection between the injury to the scalp
(much less the brain) and the heart which was suffered by the
deceased when the fight was on.
21. It is not in dispute that the deceased was a heart patient.
22. It is settled law that where the Trial Judge has correctly
probablised the evidence and has drawn an inference therefrom,
which can be labled as a perverse inference the Appellate Court
would not upset such a finding returned by learned Trial Judge.
Thus, we find no infirmity in the impugned judgment insofar the
accused stand acquitted of the charge punishable under sections
304/34 IPC.
23. Pertaining to the charge for the offence punishable under
Sections 308/34 IPC, suffice would it be to state that the said charge
pertained to the injury caused on the person of Chander Deep.
24. Learned Trial Judge has convicted the accused for the offence
punishable under Section 323/34 IPC for the injuries caused to
Chander Deep.
25. Reasoning of the learned Trial Judge is that a single blow
directed towards the skull of Chander Deep was inflicted with a mild
force evidenced by the fact that a mild lacerated wound akin to an
abrasion injury resulted from the attack.
26. Merely because the blow was directed towards the head of
Chander Deep by itself would not make out an offence punishable
under Section 308 IPC.
27. The ferocity of the blow and the resultant nature of the injury
is also an important facet to be taken note of.
28. We find no case made out to grant leave to appeal.
29. The application seeking leave to appeal is, accordingly,
dismissed.
PRADEEP NANDRAJOG, J.
INDERMEET KAUR, J.
JULY 02, 2009
nandan
