Ashok Kumar vs State
2010 Latest Caselaw 2043 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision : 19th April, 2010

+                        Crl. A. No. 498/2008

        ASHOK KUMAR                  ..... Appellant
                          Through:   Mr.Mukesh Kalia, Ms.Sumita
                                     Kapil and Ms.Mitika Sharma,
                                     Advocates
                    versus

        STATE                        ..... Respondent
                          Through:   Mr.M.N.Dudeja, A.P.P.
         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

PRADEEP NANDRAJOG, J. (Oral)

1. Learned counsel for the appellant urges a short point;

that there is every possibility of a single blow being struck on the

right side of the face of the deceased with the half brick which is

alleged to be the weapon of offence and hence the offence

committed by the appellant would be culpable homicide not

amounting to murder punishable under Section 304 Part-II IPC.

2. We note the injuries on the person of the deceased as

recorded in the post mortem report Ex.PW-14/A. The author of

the report Dr.V.K. Jha PW-14 has proved the report. As per the

post mortem report, following four external injuries were noted

on the dead body of deceased Ram Kumar aged 52 years:-

i) Lacerated wound on ® forehead 2 cm above,

supraciliary margin, extending from lateral angle of

eye to midline size about 10 cm x 2 cm x bone deep

with fracture of underline bone.

       ii)     Crush injury of upper and lower lip.

       iii)    Right face, right eye bruised; right face deformed with

fracture underlying maxillary and zygomotic bone.

iv) ® side body and rami of mandible fractured.

3. It is apparent that there is every possibility that a half

sized brick, if struck with considerable force only once could have

caused the afore-noted four injuries.

4. We note that the weapon of offence recovered by the

police from near where the dead body of the deceased was

recovered is a half size brick and as per the eye-witnesses, the

appellant hit the deceased with the said half-size brick.

5. It assumes importance that the two eye witnesses

Pawan PW-2 and Ram Chander PW-10 have not deposed that

they saw the appellant repeatedly strike the deceased with a half

brick. The two witnesses have simply deposed that they saw the

appellant beating the deceased with a brick.

6. With reference to the post mortem report, it may be

noted that apart from the three bones which were fractured

corresponding to injury Nos.1,3 and 4, subarachnoid hemorrhage

resulted. Obviously, the cause of death opined was Cranio

Cerebral Injury and Medullary Suboxla consequent to blunt

injuries inflicted upon the face of the deceased.

7. The motive for the crime has not appeared with

certainty. One set of witnesses have referred to a quarrel which

had taken place about a week ago at which the deceased had

apparently slapped the appellant. The other is a probable fight

over the consumption of liquor.

8. There is every possibility that a single blow with a half

brick was struck on the right side of the face of the deceased;

unfortunately the result was a Cranio Cerebral injuries as afore-

noted.

9. Keeping in view the two possible reasons which led

the appellant to pick up the half brick and inflict possibly a

solitary blow on the right side of the face of the deceased, it

cannot be said that there is evidence to show that the appellant

intended to murder the deceased or intended to cause any

particular injury with intention of causing death. It cannot also

be said that knowledge of the kind contemplated by Section 300

Fourthly can be attributed to the appellant of the consequences

of his act.

10. But, it can safely be said that he who picks up a half

brick and strikes a full blow at the face of a person would have

knowledge of likely to know that his act may result in the death.

Thus, we hold that Section 299(C) IPC is attracted. Hence, the

offence committed by the appellant would be culpable homicide

not amounting to murder punishable under Section 304 Part-II

IPC.

11. The appellant was apprehended on 17.10.2003 and

since then has remained in custody. Thus, the appellant has

suffered incarceration for a period of 6 years and 5 months,

besides earning some remissions. There is no history of the

appellant being involved in any other criminal activity.

12. Accordingly, we opine that the ends of justice would

be secured if the appellant is directed to suffer imprisonment for

the period already undergone.

13. The appeal stands disposed of by converting the

conviction of the appellant from the offence punishable under

Section 302 IPC to having committed an offence punishable

under Section 304 Part-II IPC.

14. Setting aside the sentence imposed upon the

appellant to undergo imprisonment for life, we direct that for the

offence committed by the appellant he shall suffer sentence for

the period already undergone.

15. Copy of this order be supplied dasti to learned

counsel for the appellant.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

APRIL 19, 2010 'nks'