Randhir Singh vs State
2009 Latest Caselaw 4514 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI



                                                       Reserved on : 27.10.2009
%                                                   Date of decision : 06.11.2009


+                               CRL. A. No. 515 of 2009


RANDHIR SINGH ...                 ...    ...    ...    ...    ...     ... APPELLANT
                                Through : Mr.S.M.Chopra, Advocate.


                                     -VERSUS-


STATE                                     ...   ...     ...    RESPONDENT
                                Through : Mr. Sunil Sharma, Advocate.


CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE AJIT BHARIHOKE


1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                            No

2.        To be referred to Reporter or not?                             No

3.        Whether the judgment should be                                 No
          reported in the Digest?


SANJAY KISHAN KAUL, J.

1. The appellant, a DTC employee, has been convicted

under Section 302 of IPC vide Judgment dated

29.04.2009 and sentenced to undergo life imprisonment

vide Order on Sentence dated 30.04.2009 and pay fine of

Rs.3,000/- in default of which to undergo RI for one year

for having committed murder of his colleague Ramesh

Kumar at the work place.

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2. The case of the prosecution is that on 10.10.2005, an

information was received at 5 P.M. at PS Mukherjee

Nagar from a PCR that there was an injured person at the

BBM Marg Depot-II („the Depot‟ for short) known as

Central Works Shop-1. This information was recorded

vide DD No.23-A and a copy of the same was sent to HC

Subhash/PW19 through Ct. Ravinder/PW18 for

investigation. HC Subhash/PW19 reached the spot at the

battery section and found that one person whose clothes

were blood stained had been caught hold by the people.

Inspector P.C.Mann/PW22 and SI Rakesh Kumar had also

reached the spot by that time. The blood was found

lying at the spot along with a blood stained iron rod ExP-

1. The appellant was the person who had been

apprehended and was an employee of the battery

section and was alleged to have beaten up Ramesh

Kumar who had become unconscious. The statement of

Ajay Kumar/PW6 was recorded at the site and in

pursuance thereto, FIR No.434/2005 under Section 307 of

IPC was registered by Umesh Kumar/PW8, which is

ExPW8/B. The deceased survived till 29.10.2005

whereafter he passed away. The case was thereafter

converted into one under Section 302 of IPC and on

completion of the investigation, charge sheet was filed.

The charges were framed by the learned Addl.Sessions

Judge to which the appellant pleaded not guilty and

claimed trial.

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3. The prosecution in order to establish its case examined

22 witnesses. The witnesses, PW1, PW2, PW4 and PW13,

who were employees of DTC, turned hostile though it did

emerge from their testimony that the appellant and the

deceased were last seen in the battery section together

at about 4.45 P.M.

4. The case of the prosecution is thus based on two other

eye-witnesses i.e. PW5 and PW6. Dheeraj/PW5 is the son

of the deceased while Ajay Kumar/PW6 is the nephew of

the deceased.

5. Learned counsel for the appellant contended that these

two eye-witnesses had been introduced by the police and

were never present at site. The witnesses were chance

witnesses since neither of them were employed at the

place of crime nor was there any occasion for them to be

present at the site. Learned counsel also submitted that

there is a provision of gate pass to enter the work place

as has emerged from the testimony of the hostile

witnesses of DTC i.e. PW1, PW2, PW4 and PW13 and the

names of PW5 and PW6 are not entered in any register at

the gate. A further submission in this behalf by learned

counsel for the appellant is the statement of these two

witnesses is an improvement over their statements given

under Section 161 of Cr.P.C. and thus materially

contradict their testimony recorded in the Court.

6. In view of the submissions of learned counsel for the

appellant the case of the prosecution being based on the _____________________________________________________________________________________________

testimonies of these two eye-witnesses i.e. PW5 and

PW6, the said testimonies have to be scrutinized closely.

7. Dheeraj/PW5 who is the son of the deceased has deposed

that he along with his cousin Ajay Kumar/PW6 had gone

to the office of his father (deceased) and when he

reached the battery section he found that the appellant

was hitting his father on his head with an iron rod. The

deceased fell down on the floor and the appellant then

tried to chase PW5 and PW6 but was over-powered by

the other persons. PW5 and PW6 with the help of one

more person assisted in lifting the deceased and put him

in the CATS van which had been called in the meantime.

The witness in his cross examination has stated that he

was a student of 12th class and his statement had been

recorded at the Depot. Learned counsel for the appellant

emphasized the observations of the learned

Addl.Sessions Judge who recorded the testimony of this

witness to the effect that the witness was taking too

much time in replying to the questions posed to him.

PW5 and PW6 are stated to have started from their house

at about 4.15 P.M. and reached the Depot at 4.40 P.M.

He has deposed that no entry was made at the main

gate. The witness has admitted that his clothes also got

blood stained when he assisted in lifting his father but

the clothes had not been seized by the police.

8. It may be noticed that the testimony of the hostile

witnesses show that the working hours were up to 5 P.M. _____________________________________________________________________________________________

and visitors required a pass to enter the work place.

However, we cannot lose sight of the fact that the area

where the workplace was located is not a high security

area, but the object of security at the gate is to see that

the ingress and egress is not unrestricted. PW5 was the

son of the deceased and had come to the Depot at the

closing hour. Judicial notice can be taken of the fact that

in such places security is not so tight and the visiting

person was the son of a workman.

9. Ajay Kumar/PW6, who is the nephew of the deceased,

has given a reason for the visit to the Depot by PW5 and

PW6. The deceased is stated to have called PW6 to take

money from him to purchase construction material as

some construction was going on in his house. He has

admitted that there is a punching system maintained at

the entry gate, but that he and PW5 were permitted to

enter into the Depot. On enquiry, he was told to go the

battery section and on reaching the same he saw that

the appellant was having a iron rod in his hand and was

giving blows on the head of the deceased. The appellant

did make an improvement from what he had stated in his

statement recorded under Section 161 of Cr.P.C. by

stating that the appellant had even shown the irod rod to

them. The statement of PW6 was also recorded at the

Depot. PW6 correctly identified the weapon of offence

being the iron rod as also the blood stained clothes of the

appellant.

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10. We find that ASI Mahadevan T, PW15 and HC

Subhash/PW19 have testified to the presence of PW5 and

PW6 at the site. The testimonies of these police

witnesses who had gone to the site and who have

testified to the presence of PW5 and PW6 cannot be

disbelieved merely because they are police witnesses.

The testimonies of PW5 and PW6 have to be read as a

whole. PW5 was the son of the deceased and a class XII

student. Anyone in his position would have been in a

state of shock on witnessing the incident. There may be

some element of padding in the testimony recorded in

the court when compared to what is stated to be

recorded under Section 161 of Cr.P.C. but the essential

ingredient remained which was that the appellant

assaulted the deceased with a iron rod which downed

him to the floor and caused him bleeding and ultimately

resulted in his death 18 days later. The cause of death

has been opined by Dr. Anil Shandilya/ PW17 as

craniocerebral damage resulted from a head injury and

cumulative effect of trauma with septicemia following the

injury. The said witness has proved the post mortem

report as ExPW17/A and has categorically denied that

septicemia would have been caused due to medical

negligence. Since the defence sought to set up a case as

if the injuries may have been caused by a fall because

the deceased was in the habit of drinking and in this

regard questions were posed to Dr. Anil Shandilya, PW17 _____________________________________________________________________________________________

in cross examination to advance the plea. The witness

has clearly opined that though likelihood of receiving

injuries on falling down on a blunt object cannot be ruled

out, but all the injuries could not have been caused by

such a fall. Therefore, at least some of the injuries

undisputedly were caused on account of hit by the iron

rod. The witness has also denied the suggestion that

the injuries are not sufficient to cause death in the

ordinary course of nature. The CFSL report ExPW20/D

establishes the presence of blood on the iron rod and the

clothes of the appellant.

11. Learned counsel for the appellant, while drawing our

attention to the testimony of PW6, has laid great

emphasis on the response of the said witness to the

question in respect of whether he had talked to his uncle.

The witness answered in the negative and thereafter

volunteered "Agar mere uncle bolte to clear hi ho jata".

The court question was "kya clear ho jata" to which he

answered "ki unko kisne mara hai". Learned counsel

thus submitted that the said witness himself was unclear

as to who had caused the death of the deceased which

shows that he was never an eye-witness. We are unable

to accept this plea because the statement of the witness

has to be read in the context of what he was saying. The

witness deposed that he was not able to talk to his uncle.

The reason was that his uncle could not talk. It is in this

context that the witness has stated that if his uncle could _____________________________________________________________________________________________

make a statement, there would be no issue that who had

killed him. The statement cannot imply that the witness

was unaware of who killed his uncle and that only his

uncle could have disclosed this fact.

12. The last plea of learned counsel for the appellant was

that if the story of the prosecution is to be believed, it is

not a case covered by Section 302 of IPC since it arose

on the spur of the moment. The weapon of offence was

part of the contraption at site. There was no past

animosity proved between the appellant and the

deceased and in fact the first call at the PCR from a

cellphone number reported about drunken brawl. There

has been no undue advantage taken by the appellant.

To substantiate his contention, learned counsel for the

appellant referred to the observations of the Supreme

Court in Arumugam v. State; AIR 2009 SC 331,

A.Maharaja v.State of Tamil Nadu; AIR 2009 SC 480 and

Baij Nath v. State of Uttar Pradesh; AIR 2009 SC 426.

13. Arumugam v. State‟s case (supra) has a bearing in the

present case for more reason than one. In fact, it

supports the plea of the prosecution insofar as believing

the testimony of the relatives of the deceased is

concerned. The plea that the witness being a close

relative implied that the testimony carried low credibility

was negatived. The Supreme Court simultaneously

discussed the applicability of fourth exception to Section

300 of IPC, which reads as under:

_____________________________________________________________________________________________

"Section 300. Murder

-----

-----

Exception 4-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner."

and observed that it was not sufficient to show that there

was a sudden quarrel and there was no premeditation,

but that it must be further shown that the offender had

not taken any undue advantage of or acted in a cruel or

unusual manner. In the facts of the case where the

appellant had stabbed the deceased in the course of a

sudden quarrel, the conviction was made under Section

304 Part I and not under section 302 of IPC.

14. In Baij Nath v. State of Uttar Pradesh‟s case (supra) a

lathi blow was given on the head of the deceased

resulting in his death and considering the nature of injury

and weapon used, the accused was convicted under

Section 304 Part I of IPC for a period of seven years.

15. In A.Maharaja v.State of Tamil Nadu‟s case (supra) a

sudden fight about cutting of trees by the deceased and

the accused and thereupon snatching the cutting

instrument from the deceased and inflicting cut on the

neck and shoulders, conviction was altered to Section

304 Part I of IPC imposing a sentence of 10 years.

16. The evidence brought on record in the present case

shows that there was no past animosity between the _____________________________________________________________________________________________

appellant and the deceased, both used to work in the

same division and the appellant was not carrying any

weapon at the time of the incident. Even as per the

prosecution case, some altercation ensued though the

details of the same are not available from the testimony

of the witnesses. This resulted in the appellant

snatching an iron rod which was a part of the contraption

at the site and using the same as the weapon of offence

inflicted injuries on the head of the deceased which were

sufficient in the ordinary course of nature to have caused

death of a person. The death was not immediate but the

deceased survived for a period of 18 days before he

succumbed to the injuries. During this period, he

apparently never gained consciousness and thus no

dying declaration could be recorded.

17. We are thus inclined to accept the plea of the learned

counsel for the appellant that the present case falls

within the fourth exception to Section 300 of IPC as it was

a consequence of an impromptu quarrel, reasons of

which are not known, at the end of the day at the work

place. There was no premeditated intention to cause

death specially as the weapon of offence was part of the

contraption at the work place and not an arm or knife.

The appellant cannot be said to have taken any undue

advantage of or acted in a cruel or unusual manner.

18. We feel that the present case is one under Section 304

Part II of the IPC as the intention to cause death cannot _____________________________________________________________________________________________

be deciphered though the act was certainly done with the

knowledge that it was likely to cause death or cause such

bodily injury as is likely to cause death.

19. We find that in the given facts of the case, sentence of

five years imprisonment would suffice while sustaining

the fine imposed by the Trial Court. The order of

conviction and sentence accordingly stand modified and

the appeal is partly allowed to the aforesaid extent.

20. The appellant is directed to surrender before the

concerned jail authorities within a week from today and

serve the remaining part of the sentence.

21. A copy of the judgment be immediately sent to the

concerned jail authorities.

SANJAY KISHAN KAUL, J.

NOVEMBER 06 2009                                                    AJIT BHARIHOKE, J.
dm

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