Dev Raj @ Polar vs State
2010 Latest Caselaw 1862 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision : 9th April, 2010

+      CRL.A. 266/2010

       DEV RAJ @ POLAR                                  ..... Appellant
                     Through:            Mr.Mukesh Kalia, Advocate

                      versus

       STATE GOVT. OF NCT OF DELHI         ..... Respondent
                     Through: Mr.M.N.Dudeja, APP

+      CRL.A. 342/2010

       ANOOP SINGH                                      ..... Appellant
                              Through:   Mr.Mukesh Kalia, Advocate

                      versus

       STATE GOVT. OF NCT OF DELHI         ..... Respondent
                     Through: Mr.M.N.Dudeja, APP

+      CRL.A. 343/2010

       KRISHAN PAL                                     ..... Appellant
                              Through:   Mr.Mukesh Kalia, Advocate

                      versus

       STATE                                         ..... Respondent
                              Through:   Mr.M.N.Dudeja, APP



        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

    1. Whether the Reporters of local papers may be allowed
       to see the judgment?
    2. To be referred to Reporter or not?
    3. Whether the judgment should be reported in the Digest?
                                                                    Yes
Crl.A.Nos. 266/10, 342/10 & 343/2010                            Page 1 of 10
 PRADEEP NANDRAJOG, J. (Oral)

1. Appellants Krishan Pal, Dev Raj @ Polar and Anoop

Singh were charged that on 27.09.2007 at about 10:30 PM

near Kumar Tent House, Main Road, Gali No.1, Kailashpuri

Road, Main Sagarpur, New Delhi, they inflicted bodily injuries

by kicks and fists to the deceased Rajender @ Raju @ Pappu

S/o Sh.Babu Lal with intention to kill him and in furtherance of

their common intention murdered him and thereby committed

an offence punishable under Section 302 read with Section 34

IPC.

2. Vide impugned judgment and order dated

16.01.2010 the appellants have been convicted for the offence

which they were charged of. Vide order on sentence dated

27.01.2010, the appellants have been sentenced to undergo

imprisonment for life and pay fine in sum of Rs.15,000/- each.

3. In sustaining the conviction of the appellants, the

learned trial judge has held that PW-1 who gave an eye-

witness account of the incident has fully supported the case of

the prosecution. With reference to the post-mortem report

Ex.PW-15/A, the learned trial judge has held that injuries on

the person of the deceased corroborate what has been

disclosed as the eye-witness account by PW-1.

4. We note that the learned trial Judge has not

discussed the testimony of PW-2. The learned trial judge has

simply noted the testimony of Satish Kumar PW-2. We further

note that the learned trial judge has not discussed whether on

the evidence on record it could be held that the necessary

intention or knowledge contemplated by Section 300 IPC could

be attributed to the appellants, or whether their acts simply

constituted the offence of voluntarily causing grievous hurt.

5. As deposed to by Kishan PW-1 he was informed by

some person at around 10/10:30 PM when he was at

Brahmpuri Nala that some people were beating his brother

Rajender at the main Sagarpur Road in front of the Kumar Tent

House. On receiving information he immediately reached the

said place and saw the accused Krishan Pal, Dev Raj and

Anoop assaulting his brother. He saw that Dev Raj had caught

hold of his brother by both hands and the other two were

giving beating and while beating, accused Krishan Pal was

uttering "Maro saale ko yeh humse kiraya mangta hai aur

hamari gali ke samne TSR khada karta hai, maro isse hum

batayenge paise kaise mangta hai". He i.e. Kishan PW-1

raised an alarm at which accused fled. He removed his

brother to the hospital where he was declared brought dead

and that at the hospital his statement Ex.PW-1/A was recorded

in which he disclosed aforesaid facts to the police.

6. Satish Kumar PW-2, deposed that he was a TSR

driver by profession for the last 30 years and used to mainly

operate his TSR in Sagarpur area and knew Rajender, who also

used to drive a TSR. That on 27.09.2007 at around 9:20 PM

there was some altercation between accused Krishan Pal and

Rajender. The altercation pertained to Rajender demanding

fare in sum of Rs.5/- from Krishan Pal which was objected to by

Krishan Pal. The altercation turned into a physical quarrel.

When the quarrel was on, brother of Rajender came and he left

the spot.

7. Satish PW-2 was declared hostile by the learned

APP and on being cross-examined and confronted with what he

had stated before the Investigating Officer and as recorded in

his statement under Section 161 Cr.P.C., admitted the fact that

he had told the police that Rajender had started the fight when

he caught hold of accused Krishan Pal and inflicted blows upon

Krishan Pal and that accused Dev Raj and Anoop Singh joined

later and assaulted Rajender with fists and kicks.

8. Now, it is apparent that Kishan PW-1 did not see the

origin of the fight. Indeed, Kishan PW-1 has not claimed to

have seen the origin of the fight. As noted above, Kishan has

deposed that he was at the Brahmpuri Nala when somebody

informed him that his brother Rajender was being beaten in

front of the Kumar Tent House, main Sagarpur Road and he

went there.

9. A co-joint reading of the testimony of PW-1 and PW-

2 brings out that upon Rajender demanding fare in sum of

Rs.5/- from accused Krishan Pal, a verbal altercation ensued

which resulted in a physical fight with Rajender being the

aggressor. Rajender assaulted Krishan Pal. Accused Dev Raj

and Anoop came to the rescue of Krishan Pal. Rajender got

out numbered and received a sound thrashing.

10. With reference to the post-mortem Ex.PW-15/A as

proved by the author thereof Dr.Komal Singh PW-15, it be

noted that a Sub-scalpular haemotoma over the occipital

region as also brain oedematous with sub-arachnoid

haemotoma over the over parietal area were detected.

11. We have looked up the medical dictionary and do

not find any word "sub-scalpular" thus we are unable to

comprehend the exact nature of injury on the occipital region.

But, it appears that what the doctor intends to convey is that

the injury on the occipital region was not deep in the brain and

was hovering somewhere at the scalp.

12. The two injuries show that there was extravasation

of the capillaries of the membrane enwombing the brain

matter i.e. the membrane just beneath the scalp.

13. The post-mortem report further shows that the

fourth rib towards the right and the fifth rib towards the left in

the chest cavity were fractured with clotting of blood at the

surface of the left and the right lung immediately at the point

of two lungs beneath the spot where the two ribs were

fractured. The liver had some injury evidencing a hard blow on

the stomach.

14. Cause of death opined was craniocerebral injury,

which has been opined to be the result of blunt impact

produced by fists and kicks.

15. It is apparent that two blows were inflicted with fists

on the chest of the deceased as also two blows were inflicted,

one each on the occipital and parietal region of the scalp. One

blow was inflicted on the stomach. The blows were inflicted

with considerable force.

16. The hurt caused may sometimes result in death. In

order to determine whether the offence committed is murder

or culpable homicide not amounting to murder or grievous hurt

or simple hurt, it is the intention of the accused that serves as

the guideline or the knowledge which can be imputed to the

accused with reference to his acts. The death caused as a

result of the acts will not be murder unless the accused had

the necessary intention or could be fastened with the

necessary knowledge as contemplated by Section 300 IPC. If

the accused had intended to cause only hurt and could not be

attributed with the knowledge of knowing that the act is likely

to cause death or in all probability would cause death, then

neither Section 299 IPC nor Section 300 IPC would be attracted

and then, notwithstanding the fact that death has occurred,

the act of the accused only would be an offence of causing

voluntary grievous hurt.

17. In cases where more than one person has attacked

and it is not possible on evidence to infer any common

intention as contemplated by Section 34 of the Code or a

common object as contemplated by Section 149 of the Code,

each of them will be responsible for his individual act only.

18. Where death is caused and there is no evidence to

show which of the accused inflicted the vital blow and neither

Section 34 nor Section 149 of the Code is applicable, the

accused can be convicted only for the offence of voluntarily

causing hurt or grievous hurt. Further, where the medical

evidence is uncertain as to which of the blow was vital, only

the minimum intention can be attributed to the act of the

accused and the conviction can be only for the offence of

voluntarily causing hurt or grievous hurt.

19. In view of the testimony of PW-1 and PW-2, it

cannot be said that the three appellants shared any common

intention. The cause of death opined is the craniocerebral

injury, but we do not know who caused the same. Neither PW-

1 nor PW-2 has disclosed to the court as to which accused

gave the fist blow on the head of the deceased.

20. It is unfortunate for the deceased that two fist

blows directed one each towards the occipital and parietal

region resulted in extravasation of the arteries which in turn

caused haemotoma. But, as noted above, the same is at the

external surface of the brain immediately at the point where

the membrane enwombing the brain touches the scalp.

21. Under the circumstances, noting the fact that the

deceased was the initial aggressor, it cannot be said that the

accused intended to cause the death of the deceased or even

that the accused had knowledge that their acts are likely to

result in the death, much less the fact that the accused knew

that in all probability the deceased would die. Thus, the

offence committed by the appellants is that of voluntarily

causing grievous hurt. No dangerous weapon has been used.

What has been used by the appellants are their fists. Thus,

the offence committed by the appellants is punishable under

Section 325 IPC.

22. The appellants are in custody since they were

arrested on 28.09.2007. The appellants have thus undergone

a sentence of 2 years, 6 months and 13 days.

23. The nominal roles of the appellants do not show

that the appellants are involved in any other criminal offence

neither have they been convicted nor are they facing trial for

any other offence.

24. Under the circumstances, we are of the opinion that

ends of the justice would meet if the appellants are sentenced

to undergo imprisonment for the period already undergone

and to pay a fine in sum of Rs.35,000/- (Rupees Thirty Five

Thousand) each; in default of payment of fine the appellants

shall undergo simple imprisonment for six months.

25. If realized the fine shall be paid to the widow of

deceased Rajender.

26. The three appeals stand disposed off modifying the

conviction of the appellants; the appellants are acquitted of

the charge of having murdered deceased Rajender but are

convicted for the offence of voluntarily causing grievous hurt

to Rajender and for said offence are sentenced to undergo

imprisonment for the period already undergone and pay fine in

sum of Rs.35,000/- each, in default of payment of the fine to

undergo SI for six months.

27. Since the appellants are in jail we direct that if the

appellants pay the fine they shall be set free forthwith failing

which the appellants or such of them who does not pay the

fine would suffer further SI for six months.

28. Three copies of the instant decision be handed over

to learned counsel for the appellants under signature and

authentication by the Court Master.

PRADEEP NANDRAJOG, J

SURESH KAIT, J APRIL 09, 2010 'mr'