Vijay @ Kale vs The State (Nct Of Delhi)
2010 Latest Caselaw 2079 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision : 20th April, 2010

+                     CRL.A. 287/2004

        VIJAY @ KALE                                     ..... Appellant
                              Through:         Mr.Naveen Gaur, Advocate

                      versus

        THE STATE (NCT OF DELHI)       ..... 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

PRADEEP NANDRAJOG, J. (Oral)

1. Conceding that the testimony of PW-3 and PW-6,

brother and father respectively of the deceased established

the dying declaration made by the deceased Kailash pertaining

to the cause of his death and naming the appellant as the

assailant; further conceding that the testimony of PW-5 who

saw the incident establishes that the appellant struck two

blows with a knife on the person of the deceased Kailash;

learned counsel for the appellant has made a short

submission, being that, the offence committed by the

appellant is culpable homicide not amounting to murder.

2. To make good the argument aforenoted, learned

counsel for the appellant draws our attention to the post-

mortem report Ex.PW-9/A of the deceased which evidences

that two blows with a knife were inflicted on the person of the

deceased. Both blows were directed on the upper part of the

chest towards the shoulder. The first stab wound is on the

right side of the chest at the point 11 cm from mid-line and 4

cm above the right nipple. Unfortunately, the upper right lobe

of the lung got cut. The other stab wound is on the opposite

side i.e. left chest somewhere around the same region as the

first was not fatal inasmuch as the wound only cut the

subcutaneous tissue, ending into inter lobe septum. The left

lung was not damaged.

3. We note that as per the solitary eye-witness PW-5

he has simply stated that the appellant stabbed the deceased,

but why did the appellant do so, had not been deposed to by

the witness.

4. We note that the deceased was admitted at Lady

Harding Medical College where he was declared brought dead

at 11:15 AM as per MLC Ex.PW-10/A. The MLC Ex.PW-10/B

shows that at 11:30 AM the appellant himself reached the

same hospital with a head injury and collapsed. As recorded

on the MLC, the appellant had a 10 cm contused lacerated

wound on the left parietal region.

5. It is unfortunate that the appellant did not have the

benefit of a proper legal advise, for the reason, when

examined under Section 313 Cr.P.C., the appellant did not

explain as to how he received the injury as recorded on his

MLC Ex.PW-10/B.

6. The MLC Ex.PW-10/B shows that after he reached

the hospital, the appellant became unconscious and his pulse

was feeble. BP was high being 140/100 mm Hg. It is apparent

that the injury received by appellant around same time was a

grievous injury.

7. It assumes importance that the deceased was

admitted at the hospital at 11:15 AM and the appellant

reached hospital at 11:30 AM and then became unconscious.

There is thus a probability of there being a sudden quarrel

between the two i.e. deceased and the appellant, the origin

whereof has remained shrouded in mystery.

8. Under the circumstances, we hold that it would be

safe to conclude that the offence committed by the appellant

would be culpable homicide not amounting to murder

punishable under Section 304 Part I IPC.

9. For the offence committed by the appellant we

sentence the appellant to undergo RI for a period of 10 years.

Needless to state that the appellant would be given benefit of

Section 428 Cr.P.C. and remission as per policy of the

executive.

10. Since the appellant is still in jail, we direct that a

copy of this order be sent to the Superintendent Central Jail,

Tihar for necessary action.

PRADEEP NANDRAJOG, J

SURESH KAIT, J APRIL 20, 2010 'mr'