Ratan @ Ratania vs State
2009 Latest Caselaw 3845 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Date of Decision: 18th September, 2009

+                        CRL.A. 386/2001

      RATAN @ RATANIA                               ..... Appellant
               Through:        Mr.S.D.S.Rathore, Advocate for
                               Mr.M.P.Singh, Advocate.

                               versus

      STATE                                  ..... Respondent
                    Through:   Mr.Pawan Sharma, A.P.P.

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 appeal has reached for hearing on 20.8.2009.

Neither appellant nor his counsel appeared on said date and

thus, Court notice was issued to the appellant as also his

counsel.

2. The Court notice issued to the appellant has been

returned unserved with the report that the appellant is no

longer residing at the given address. Mr.M.P.Singh, Advocate

for the appellant was served.

3. Mr.S.D.S.Rathore appears for the appellant.

4. We note that Mr.S.D.S.Rathore and Mr.M.P.Singh,

Advocate have jointly signed the petition seeking suspension

of sentence filed by the appellant and Mr.S.D.S.Rathore,

Advocate is a signatory to the application seeking suspension

of sentence. Mr.S.D.S.Rathore states that even he was

engaged as counsel for the appellant along with Mr.M.P.Singh.

5. Learned counsel prays for an adjournment stating

that he needs time to prepare the brief.

6. We note that Mr.M.P.Singh, Advocate was served on

28.8.2009. Thus, Mr.M.P.Singh, Advocate and his associate

Mr.S.D.S.Rathore had sufficient notice that the appeal would

be taken up for hearing today.

7. We decline the request for adjournment. Our

reason is that in nine out of ten appeals counsel for the

appellants are not appearing. We are being compelled to

issue notices to the appellants and their counsel. The

movement of the Board gets choked due to the non-

cooperative attitude of learned counsel.

8. As in the instant case, we are ensuring that learned

counsel for the appellant are served well in time giving them

at least two weeks to prepare the matter. In the instant case,

learned counsel was served on 28.8.2009. More than two

weeks prior notice was given to the counsel that the appeal

would be taken up for hearing today.

9. Thus, we proceed to consider the record with the

assistance of learned counsel for the State.

10. When we proceeded, Mr.S.D.S.Rathore, Advocate

stated that even he would render assistance to the Court.

11. We have heard learned counsel for the parties and

have gone through the record of the learned Trial Judge.

12. The appellant has been convicted for the offence of

murdering Chagan Lal who was seriously/grievously injured on

the intervening night of 4th and 5th May 1997 at DDU Hospital.

The post-mortem report Ex.PW-14/A shows three stab wounds

on the infrascapular region, posterior axillary region and over

back mid chest. Internal damaged caused was to the left lung

which was cut into multiple pieces. Cause of death was the

injury to the left lung. We note that the MLC has been proved

through testimony of Dr.Komal Singh PW-14.

13. Chagan Lal was admitted in an injured condition at

DDU Hospital on 4.5.1997 at 11:30 in the night by his brother

Narain PW-1. He was given medical aid at the hospital by

Dr.Mukesh Aggarwal PW-9 who proved the MLC Ex.PW-7/A of

Chagan Lal. The MLC also records three stab injuries.

Dr.Mukesh Aggarwal deposed that the patient was bleeding

heavily and approximately 2.5 litres of blood was removed

through a chest tube and equivalent quantity of blood was

transfused into the patient but the patient could not be saved.

He deposed that he conducted the surgery on the injured and

on exploration of the wound found glass pieces inside.

14. It is thus not in dispute that Chagan Lal died when

his body was pierced with glass and the glass broke inside

causing multiple cuts to the left lung.

15. There are four eye-witnesses, namely, PW-1 to PW-

4.

16. The FIR has been registered pursuant to the

statement Ex.PW-1/A of Narain PW-1. The endorsement

Ex.PW-23/A shows that the rukka was dispatched from the

hospital at 1:15 AM.

17. The crime was committed at 10:30 PM. Chagan Lal

was admitted at the hospital at 11:30 PM as recorded in

Chagan Lal‟s MLC.

18. So soon after the crime has Narain PW-1 made his

statement Ex.PW-1/A that there is hardly any scope for false

implication.

19. Be that as it may, Narain PW-1, Prahlad PW-2,

Laxmi PW-3 who is the wife of the deceased and Man Singh

PW-4 have deposed against the appellant.

20. Through their testimony motive for the crime which

has emerged is that the deceased was instrumental in a

panchayati decision resulting in the daughter of the accused

being separated from her husband.

21. From the testimony of PW-1 to PW-4 it is apparent

that the witnesses and the accused are tribal nomads and had

moved from Rajasthan to Delhi. They had set up their camp at

Barar Square. About 10 - 12 tents were pitched by the

members of the community. At 10:30 PM on 4.5.1997 the

accused stabbed the deceased.

22. The witnesses have spoken in unison that without

any provocation the appellant stabbed the deceased with a

broken glass.

23. The only variation is; whereas Narain PW-1 stated

that the deceased was stabbed in the „daira‟ (tent) of the

accused, the other witnesses have clearly deposed that the

accused stabbed the deceased on the open space outside his

daira. Clutching on to the said discrepancy, learned counsel

for the appellant states that the scene of crime is

unascertainable as one prosecution witness claims the same to

be inside the tent and the others claim the scene of the crime

to be the open space outside the tent.

24. Learned counsel for the appellant is clutching to

straws evidenced by the fact that all witnesses of the

prosecution are illiterate; evidenced by the fact that PW-1, PW-

3 and PW-4 cannot even sign. PW-4 can barely manage to

write. His signatures on his testimony are evidence of the said

fact. Even a child of Class-I can write better.

25. The place of incident described by PW-1 may be

noted in the language of PW-1. He stated:-

"From the spot of the incident the daira of Chagan Lal was at a distance of 40 steps. The daira of accused Ratan was at a distance of about 20 yards from the spot of incident. It is incorrect to suggest that the incident did not take place at the daira of accused Ratan. Rather it took place at the daira of Ratan Singh."

26. These are his words when he was cross-examined.

In his examination-in-chief he deposed that the deceased was

killed in the daira of the accused.

27. It is apparent that PW-1 was a little confused

whether to describe the place of incident as near the daira of

Chagan Lal or near the daira of Ratan. He thought it prudent

to say that the incident took place in the daira of Ratan. The

poor fellow did not understand the different between 'near'

and 'in'.

28. The rough site plan Ex.PW-23/B prepared by the

investigating officer shows that the crime was committed not

inside the tent (daira) but in the open space in the front of the

daira of the accused. The recovery memo Ex.PW-1/B shows

that the chappal of the deceased was lifted from the spot mark

„C‟ in the site plan Ex.PW-23/B. The site plan shows that spot

„B‟ where the deceased was attacked is also in the open area

in front of the tents which were pitched by the nomads.

29. No other point has been urged by learned counsel

for the appellant.

30. Notwithstanding that learned counsel for the

appellant had urged no other point, we have still, on our own,

with the assistance of learned counsel for the appellant and

the State gone through the record.

31. The record shows that the deceased was admitted

at DDU Hospital by PW-1. In the MLC of the deceased it has

been written that the deceased has been brought to the

hospital by his brother Narain. The MLC has been prepared at

11:30 PM. Simultaneously, a corresponding DD Entry No.29A

Ex.PW-18/A stands recorded at the police station since the

duty constable at the DDU Hospital gave information at the

police station that a person seriously injured was admitted at

the hospital.

32. The statement Ex.PW-1/A of Narain has been

dispatched from the hospital at 1:30 PM for FIR to be

registered.

33. Notwithstanding that PW-1, PW-2, PW-3 and PW-4

are related to the deceased, we see no reason to disbelieve

their testimony as they are natural witnesses. Their presence

in the camp where the nomads had pitched their tents is

natural at 11:30 PM in the night.

34. Motive for the crime has also been established

through their testimony.

35. There are no blemishes, improvements or

contradictions in the testimony of the four witnesses.

36. The only point which needs further consideration is,

whether the act of the accused is an offence punishable under

Section 302 IPC or Section 304 Part-I IPC.

37. Unfortunately, the thickness of the glass piece used

by the appellant for the assault cannot be ascertained by us

for the reason most of it broke inside the body of the deceased

and pieces which were recovered during operation could not

throw light on the thickness of the glass. But, one fact can be

inferred; being that, the glass was fairly thick. We say so for

the reason the glass has pierced through the muscle tissue

and has penetrated the left lung. After entering the lung the

glass broke resulting in the lung receiving multiple cuts.

38. The ferocity and intensity of the blow can be

ascertained from the fact that the glass piece, which is not as

sharp as a knife, could cut so deep.

39. The testimony of Narain PW-1 shows that the

accused wrapped cloth on the piece of glass. This shows that

the appellant had taken a conscious and intentional decision to

cause a grievous injury. Why had he wrapped cloth on the

piece of glass? Obviously, he was aware that if he caught the

glass piece with his bare hand, he ran the risk of cutting his

hand. The appellant was aware that to strike a ferocious blow

he needed to wrap cloth around the glass piece. It evidences

his intention to cause a grievous injury.

40. Noting the injuries caused on the deceased and the

testimony of the doctor who operated upon the deceased but

could not manage to save him as also the post-mortem report,

we hold that the learned Trial Judge has rightly convicted the

appellant for the offence of murder.

41. The appeal is dismissed.

42. Since the appellant is on bail, we cancel the bail

bond and the surety bonds furnished by the appellant and

direct the appellant to surrender and suffer the remaining

sentence.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE September 18, 2009 Dharmender