Hamil Singh vs State
2009 Latest Caselaw 2240 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision : May 25, 2009

+                         CRL.A.183/2005

          HAMIL SINGH                               ..... Appellant
                    Through:    Mr. S. M. Chopra, Advocate

                                versus
          STATE                              ..... Respondent
                     Through:   Mr. Pawan Sharma, Advocate

          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. When examined under Section 313 Cr.P.C., responding to

the question No.20. Have you anything to say? The appellant

answered :-

"I am innocent and falsely implicated in this case. My wife Rajesh D/o deceased Bhagwana eloped with me with her own will. We had three children Sagar, Samundar and Aarti and we all were living happily in Punjab. Bhagwana, Santosh, Jugnu, Kishan and Bir Singh were inimical towards me and Rajesh for having run away with Rajesh and living separately.

On 15.4.03 I had come to my village to meet my old mother, who used to walk with the help of stick/lathi.

Bhagwana, Santosh, Mukesh, Bir Singh and Jugnu surrounded me and were armed with lathis. Bhagwana told me that I have brought disrespect to their family by taking his daughter Rajesh away and said that today they will finish me and then all of them started wielding lathi blows to me. I apprehended danger to my life and I wielded my old mother‟s lathi to save my life and in this commotion, some injuries might have been caused to the deceased and to Santosh Devi."

2. It is apparent that the appellant has not disputed the

presence of the deceased Bhagwana, the daughter-in-law of

the deceased namely Santosh (PW-2) as also the presence of

Mukesh (PW-4) at the place where the incident took place.

3. The basis of the defence of the appellant, is the MLC

Ex.PW-5/A of the appellant, which was prepared on the day of

the incident itself i.e 15.04.2003 by Dr.S.A.Francis (PW-5)

recording five injuries on the person of the appellant, being:

       (i)           C.L.W. over upper eye-brow.

       (ii)          Abrasion over right elbow.

       (iii)         C.L.W. on right leg.

       (iv)          C.L.W. over head.

4. Suspecting a fracture of the right elbow, the appellant

was referred to an Orthopaedic Surgeon who in turn referred

the appellant to X-ray Division. As noted in the MLC, the x-ray

revealed a fracture of the right elbow.

5. Briefly noted, case of the prosecution is that the

appellant had eloped with Rajesh, the daughter of the

deceased, and on said account there was bad blood between

the appellant and the family members of Rajesh. Though the

elopement was an event of the past, but as deposed to by

Mukesh PW-6, the deceased had brought back his daughter

Rajesh, and had got her married elsewhere, which probably

antagonized the appellant, who lethally assaulted the

deceased with a stick having a metallic sharp edged piece

attached on one side of the stick. The deceased was taking a

siesta underneath the trees outside his house at around

1:15 PM/1:30 PM on 15.4.2003.

6. Police received the information, when D.D. Entry No.20-B

Ex.PW-7/A, was recorded at the police station at 2 PM by ASI

Gianbir PW-7 to the effect that a quarrel had taken place at

House No. 190, Balmiki Basti, Village Dariyapur.

7. SI Satbir Malik accompanied by H.C. Gurprasad and

Const. Manoj proceeded to the place where they found the

dead body of the deceased on a cot. The appellant had been

apprehended by the villagers and was injured. Const. Manoj

was deputed to take the appellant to the hospital, where after

examination, Dr.S.A.Francis PW-5 recorded MLC Ex. PW-5/A of

the appellant; relevant contents whereof have been noted in

para 3 above.

8. A photographer PW-8 was summoned who took

photographs Ex.PW-8/A-1 to Ex.PW-8/A-4. The same show that

each and every injury inflicted upon the deceased is a

horizontal injury; none being a vertical or a slanting injury. The

photographs show the deceased to be a fairly built person. At

the spot, rough site plan was prepared by the investigating

officer. A Lathi stated to be the weapon of offence was

seized, as noted in the memo Ex. PW-6/A. The cot on which

the body of the deceased was found having blood stains

thereon, was also seized, as recorded in the same seizure

memo.

9. The dead body of the deceased was sent to the

mortuary. Statement Ex.PW-2/A of Santosh PW-2, who had

met the investigating officer at the spot was recorded, as per

which she informed that she was the daughter-in-law of the

deceased and was present in the house when the appellant

assaulted the deceased and that she had witnessed the crime.

The investigating officer made an endorsement Ex.PW-15/A on

the statement Ex.PW-2/A and forwarded the same through HC

Gurprasad at 3.30 PM for registration of an FIR. At the Police

Station ASI Gianbir PW-7 registered the FIR Ex.PW-7/C.

10. The post-mortem of the appellant was conducted and as

per post-mortem report the undernoted injuries inflicted on the

person of the deceased were noted:-

"1. C.L.W. on bridge of the nose, placed horizontally upto lateral end of eye-brow size 8 cm. x 1 cm into bone deep.

2. C.L.W. on left sides of nose, 4 cm. X0.7 cm. into bone deep and nasil bone fractured.

3. C.L.W. on right side below eye 2 cm. below size 3 cm x 0.5 cm.

4. C.L.W. on left side of lower border mendible 3 cm. lateral to chin 4.2 cm x 1 cm left lower jaw is fractured.

5. C.L.W. on 1 cm. lateral to middle of chin on left side 3 cm. x 1 cm.

6. Parrall rode pattern 2.5 cm. angle of lip left 6 cm x 2 cm.

7. C.D.W. on left ear lobes 2 cm. x 0.5 cm."

11. The deceased died at the spot. The cause of death

opined to be is the cranio cerebral damage consequent and as

a result of head injury sustained by the deceased.

12. Deposing against the appellant, Santosh Devi PW-2,

stated that the appellant had kidnapped Rajesh, her sister-in-

law about 15 years back and had fled. That on the day of the

incident her father-in-law was sitting on cot in front of the

house on Gram Sabha Land. The appellant came with a lathi to

which some sharp object was attached at one end. He

assaulted her father-in-law. She cried for help. The appellant

inflicted a blow on her right hand. Her brother-in-law Krishan

(PW-4) and her son Mukesh (PW-6) came to the spot. Villagers

gathered. The appellant was apprehended. Police was

informed. She gave the statement Ex.PW-2/A to the police and

the same bore her signatures at point A. Her father-in-law was

removed to the hospital. From the spot, blood stained earth, a

lathi Ex.P-1 and a cot were seized as recorded in the seizure

memo Ex.PW-6/A and Ex.PW-6/B.

13. On being cross examined, she stated that she was

illiterate and was employed in a private school. Sunday was

weekly off and whenever she was absent from duty, her salary

was deducted. She denied the suggestion that on the day of

the occurrence, she was in the school. She stated that having

gone to the school in the morning, but having fever, she

returned to her house by 11 AM. She denied the suggestion

that the appellant had come to meet his old mother and on

seeing him, she, Bhagwana, Mukesh, Bir Singh and Jugnu

surrounded the accused and gave him severe beating.

14. Jugnu PW-3, deposed that he was present at the spot and

heard the voice of her mother Santosh. He rushed out and

saw appellant running and on alarm raised by him, people

gathered and apprehended the appellant. He saw his grand-

father Bhagwana lying on a cot and was bleeding from his ear,

mouth, neck and eye. That when appellant was apprehended

he was having lathi to which some sharp iron object was

attached. Mukesh, their neighbour, informed the police.

Police came and apprehended the appellant. His grand-father

died.

15. Krishan PW-4 deposed that he had gone to work and at

about 2 PM, received information that his father was

murdered. He returned to the house and by that time the

appellant had already been apprehended.

16. Mukesh PW-6 deposed that he was present in his house.

At around 1.15/1.30 PM on 15.04.2003 he heard Santosh

shouting „Bachao-Bachao‟. He was standing on the roof of his

house and looked into the street and saw the appellant. He

was having a lathi in his hand and was giving lathi blows to

Santosh. He came down. Bir Singh his brother-in-law, Santosh

and her son Jugnu reached. On seeing them, the appellant

started running. He, Jugnu and Bir Singh chased the appellant

and apprehended him near a kikkar tree and brought him back

where Bhagwana‟s body was lying on a cot. He informed the

PCR from his house. The police reached and apprehended the

appellant. The lathi used as the weapon of offence was seized

as recorded in the memo Ex.PW-6/A. He went to depose that

prior to the occurrence, the appellant had eloped with Rajesh,

daughter of Bhagwana, and about a year and six months back,

Rajesh was brought back to the village by her father and

brothers and got married somewhere else. The appellant had

apologised for his behaviour and was pardoned. That Rajesh

returned to Bhagwana‟s house from her matrimonial house

and the appellant again eloped with her.

17. We note that during cross-examination, a suggestion was

given to the witness that he i.e. the witness, Bir Singh, Jugnu

and Santosh had assaulted the appellant with lathis.

18. In view of the defence of the appellant, learned trial

judge has discussed whether it was possible for only one of the

alleged assailants to have suffered the injuries as were noted

in the post-mortem of the deceased, if indeed the appellant

was assaulted as alleged by him.

19. The finding returned by the learned trial judge is that in

no manner could the deceased receive the injuries if the same

were the result of the appellant exercising a right of private

defence. Though, no witness of the prosecution explained the

injuries on the person of the appellant, in para 59 of the

decision, learned trial judge has opined that it is apparent that

the injuries suffered by the appellant were the consequences

of his being thrashed after he was apprehended. Learned trial

judge has also noted that the eye-witnesses probably hid the

truth, as they feared of possible punishment if they deposed

that they had beaten the appellant after he was apprehended

by them.

20. We concur with the view taken by the learned trial judge

that it is just not possible for the deceased to have received

the injuries, if they were the result of the appellant taking

defensive action and exercising a right of private defence.

21. The reason is obvious. The appellant claims to have used

a lathi belonging to his mother to save himself. The lathi

blows could not have resulted in the wounds which are cut

wounds on the face of the deceased. It is apparent that the

injuries were caused on the deceased when he was lying on

the cot. The body was horizontally placed and this explains the

horizontal wounds on the person of the deceased. Besides, if

five people had assaulted the appellant as claimed by him, and

the appellant had yielded a lathi in retaliation to save himself,

the assailants, if not all, at least two or three would have

received random lathi blows. That all injuries on the deceased

have been directed towards the face are indicative of a

targeted assault on to the face and the skull of the deceased,

which is just not possible if the appellant had swung at random

the lathi of his mother.

22. The injuries on the person of the appellant are

explainable as explained by the learned trial judge,

notwithstanding no witness of the prosecution having

explained as to how the appellant received the injuries.

23. No other point has been argued.

24. We find no merit in the appeal. The appeal is dismissed.

PRADEEP NANDRAJOG, J.

May 25, 2009                                    INDERMEET KAUR, J.
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