Pitam Singh vs State
2010 Latest Caselaw 630 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Reserved On: 1st February, 2010
                      Judgment Delivered On: 4th February, 2010

+                   CRL.APPEAL NO.123/2002

       PITAM SINGH                             ......Appellant
                 Through:      Mr.A.K.Goyal, Advocate

                               Versus

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

       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 the Reporter or not?            Yes

     3. Whether the judgment should be reported in the
        Digest?                                           Yes

PRADEEP NANDRAJOG, J.

1. As per the prosecution, appellant Pitam Singh was

having a property dispute with his brother Vijay @ Pardesi

(deceased) and on 11.3.2000, accompanied by Subodh PW-2,

Rajpal PW-5 and Sanjay PW-10, he went to the house of the

appellant to demand his share in the property and when the

demand was refuted, Vijay picked up a table from the house of

the appellant and walked away. When Vijay, Subodh, Rajpal

and Sanjay reached a nallah at some distance from the house

of the appellant, the appellant and his son Pratap Singh

(proclaimed offender) overtook the 4 and saying that he would

teach Vijay a lesson for demanding a share in the property,

using a iron rod (saria) the appellant assaulted Vijay as a result

whereof he sustained serious and grievous head injuries which

proved fatal i.e. Vijay died. When they intervened, Sanjay,

Rajpal and Subodh were also assaulted. Vijay was brought

dead to the hospital where he was removed after the assault.

The appellant and his son fled from the scene of the crime and

after he was arrested the appellant admitted to the crime and

stated that he could get recovered the iron rod used by him to

assault his brother and after making the statement he led the

investigating officer to his house and produced an iron rod

from the roof of his house.

2. The post-mortem of the deceased was conducted

by Dr.Gautam Biswas PW-3 at GTB Hospital and as per the

post-mortem report Ex.PW-3/A the deceased had as many as 7

injuries on his person, as under-

"1. Avulsed lacerated wound of size 13.2 x 6.1 cm x cranial cavity deep present over left temporal- parietal region, 5.2 cm above left ear lobule and 7.1 cm away from midline with fracture of underlying bone.

2. Lacerated wound of size 3.1 x 0.7 x 0.9 cm present over left zygomatic area, 2.1 cm away from lateral canthus of left eye and 5.5 cm below injury No.1 with fracture of orbital cavity of left eye.

3. Lacerated wound of size 4.3 x 1.0 x bone deep with underlying fracture of parietal bone in right side present over parietal region whose inner end is 3.5 cm from midline and outer end is 6.0 cm above the right ear lobule.

4. Contusion reddish in colour of size 2.5 x 2.0 cm present over right frontal area, 3.1 cm above the upper margin of right orbit and 5.5 cm lateral to midline.

5. Railroad pattern reddish contusion of size 12.0 x 1.3 cm present horizontally over the forehead, 2.5 cm above the nasion.

6. Contusion of size 1.3 x 1.0 cm present over the bridge of nose (nasion).

7. Reddish abrasion of size 1.3 x 0.7 cm present over the left side ala of nose."

3. Internal examination revealed fracture of the

frontal, temporal, parietal and occipital bone. Extravessation

was present over the frontal, temporal and parietal region.

Massive subdural haemorrhage was noted. Cause of death

opined was shock due to anti mortem head injuries. It was

further opined that the injuries were produced by a blunt force

impact. When sent for serological examination no blood could

be detected on the iron rod.

4. Needless to state case of the prosecution hinged

upon the testimony of Subodh, Rajpal and Sanjay who were

examined as PW-3, PW-5 and PW-10 respectively.

5. Soon after the incident which took place at around

10:30 PM on 11.3.2000 Subodh, Sanjay and Rajpal reported at

Guru Teg Bahadur Hospital, Shahdara and got themselves

medically examined. The MLC Ex.PW-16/A of Subodh records a

lacerated wound over the left temporal area. The MLC Ex.PW-

5/B of Sanjay does not record any injury. The MLC Ex.PW-15/C

of Rajpal records an abrasion over his chest.

6. Subodh PW-2 did not support the case of the

prosecution inasmuch as he deposed that he was at his juice

shop near the place where some boys gave a beating to the

deceased. Being dark, he could not recognize the boys who

were outsiders. He intervened to save Vijay and in the process

received a lathi blow on his head.

7. On being cross examined by the learned APP he

denied knowledge of any dispute between the appellant and

Vijay. He denied that deceased Vijay removed a table from

the house of the appellant but admitted that a compromise

had been arrived at between the accused and his parents and

that the family members of deceased Vijay and accused Pitam

Singh did not want him to deposed against the accused.

Surprisingly, he admitted when confronted with his statement

recorded by the police that he had named Pitam Singh as the

person who had given blows with an iron rod on the head of

the deceased. He also admitted that he had informed the

police that the accused had given him a blow on his head with

an iron pipe. He admitted that due to bleeding his shirt Ex.P-1

and pant Ex.P-2 was stained with blood which were seized by

the police vide memo Ex.PW-2/C and that even he had made a

complaint Ex.PW-2/B to the police on 11.3.2000 inculpating the

accused.

8. Rajpal PW-5 also did not support the case of the

prosecution. He deposed that at around 10:30 PM he was on

the way to his house and when he was near a nallah at loni

road he saw some persons assaulting Vijay. He tried to

intervene and in the process sustained an injury on the left

side of his chest.

9. On being cross-examined by the learned APP with

respect to his statement recorded by the police he stated that

his signatures were obtained by the police on blank papers.

He denied that any table was removed from the spot where

the crime was committed. He denied having gone to the

house of the appellant and having witnessed any exchange of

words between the appellant and the deceased.

10. Sanjay PW-10 fully supported the case of the

prosecution save and except he referred to the date of the

incident as 12.3.2000 and not 11.3.2000. He deposed that he

and the deceased went from Bhagwan Pur Kheda to Loni

Border and on the way Subodh and Rajpal met them. They

went to the house of Vijay Pardesi near a nallah. Vijay @

Pardesi took a table as he wanted his share in the property.

When they reached near a nallah the accused Pitam Singh

accompanied by Pratap Singh (PO) reached and the accused

inflicted blows with a saria on the head of Vijay who sustained

injuries. Even Rajpal received an injury on the head when the

saria was struck on his head. Accused Pitam gave a fist blow

on his chest.

11. Holding that it was apparent that Rajpal PW-5 had

been totally won over and that Subodh PW-2 had been

partially won over by the accused, but the fact that Sanjay PW-

10 had fully supported the case of the prosecution, vide

impugned judgment and order dated 6.12.2001 the learned

Trial Judge has convicted the appellant for the offence of

having murdered the deceased.

12. It may be noted that pertaining to the injuries on

Subodh, Rajpal and Sanjay, the appellant was charged for the

offence punishable under Section 323/324 IPC. The appellant

has been convicted for the said two offences as well.

13. Vide order on sentence dated 6.12.2001 the

appellant has been sentenced to undergo imprisonment for life

pertaining to the death of Vijay which has been held to be a

case of murder. For the offences punishable under Section

323/324 IPC, the appellant has been convicted for a period of 1

year each.

14. At the hearing of the appeal learned counsel for the

appellant urged 7 submissions, as under:-

"(i) Date of incident is 11.03.2000 and while deposing

in Court Sanjay had said that the incident took place on

12.03.2000.

(ii) As per prosecution the weapon of offence is pipe

i.e. a cylindrical metal piece with hollow inside and that

the Sanjay had said that the weapon of offence was

Saria. Counsel urges that Saria and a pipe are different

objects. Submissions made is that since Sanjay has

wrongly referred to the weapon of offence, it is apparent

that he did not witness the incident.

(iii) It is urged that having deposed that accused met

the deceased as also Sanjay, Subodh and Rajpal at Pulia,

counsel submits that during cross-examination Sanjay

said that it was correct that all had gone to the house of

deceased Pardesi and therefrom to the house of Pitam

Singh i.e. appellant. It is submitted that Sanjay had half-

heartedly supported the case of prosecution.

(iv) It is urged that from the pipe alleged to be the

weapon of offence no blood could be detected.

(v) It is urged that the pipe was recovered from the

roof of the appellant a place accessible to all.

(vi) It is urged that the pipe has not been proved to be

the weapon of the offence.

(vii) That the incident took place at around 9:30 PM on

11.03.2000 it was night, the area was not well lit thus,

offence if any made out, is punishable under Section 304

Part I IPC and not Section 302 IPC."

15. That the date of the incident is 12.3.2000 is not in

dispute because this is the day when around midnight

information was received at the local police station about the

crime. The date 11.3.2000 being recorded in the testimony of

Sanjay can either be a typographic error or a slip of the tongue

or a memory lapse. All three are trivial. It cannot be said that

for said reason it has to be held that Sanjay is a planted

witness. The second submission predicated on the weapon of

offence being a pipe i.e. a cylindrical metal piece with hollow

inside and Sanjay stating that the weapon of offence is a saria

is in blissful ignorance that a person who sees, when it is dark,

a piece of pipe or a small metal rod would hardly be expected

to note the difference between the two. That apart, the man

on the street uses the two expressions as interchangeable

expressions. The third submission is based as if Sanjay was

taking an examination in English language and was being

subjected to a comprehension of a passage. The common

man speaks not only with imperfect reflection but even with a

slight mix up of the sequence of events which actually

transpired.

16. While deposing in Court Sanjay has clearly said that

he and Pardesi came to Loni Border and Subodh and Rajpal

met them. He said that Pardesi took them all to his house

near nallah and took his table and came to the nallah as he

wanted to take his share in the property. When all reached

the nallah, accused Pitam Singh who is brother of Pardesi

came with his son and gave saria blows on the head of Pardesi

saying that he would teach Pardesi a lesson for demanding his

share. He then said: Subodh reached there and tried to save

Pardesi and received injuries on his head due to saria blow.

Rajpal also reached there and even he received an injury. We

fail to understand as to how can it be urged that Sanjay has

deposed half-heartedly.

17. Having re-read the testimony of Sanjay we find

complete consistency and truthfulness in the same. Even

Subodh PW-2, has substantially proved the case of the

prosecution, notwithstanding he denying knowledge of how

the deceased died, but during cross-examination admitting

that he had told the police that the appellant had hit him on

his head with an iron pipe. He also admitted that he told the

police that the appellant had inflicted blows on the head of the

deceased with an iron rod. He further admitted that pertaining

to the injuries received by him the report Ex.PW-2/B was

lodged by him. It is interesting to note that Ex.PW-2/B is the

rukka and as told by Subodh, the deceased was assaulted and

Subodh, Sanjay and Vijay Pal were injured as disclosed in the

Court by Sanjay PW-10.

18. It assumes significance that Subodh admitted that

due to a patch up in the family of the accused and the

deceased, who were brothers, he was impressed upon not to

depose in Court.

19. That blood could not be detected on the pipe Ex.P-2

is immaterial because the injuries on the person of the

deceased are with a blunt object and the blood loss is internal

and not external. We are surprised at the argument that the

pipe was not proved to be the weapon of offence and hence

nothing turns on the pipe Ex.P-2 being the weapon of offence.

It is trite that blunt object injuries can be caused by any blunt

object and nobody on earth can say that such and such injury

can be caused only by a particular blunt object. Injuries by

blunt objects can only be opined as possibly being caused with

a particular blunt object.

20. Be that as it may, ignoring the evidence pertaining

to the recovery and use of the pipe Ex.P-2 in the commission

of the offence, we have on record the unblemished eye-

witness testimony of Sanjay who has no motive or an axe to

grind and substantial corroboration to said eye-witness

account even by the truncated testimony of Subodh PW-2. It is

settled law that where eye-witness account pertaining to a

crime is accepted by the Court and there is nothing to

contradict the same, it hardly matters as to whether the

offence was committed by a particular object claimed by the

prosecution as the weapon of offence.

21. The last argument of the time being dark and hence

a presumption to be drawn that it cannot be said with certainty

that the appellant intended to inflict the injury on a particular

part of the body and hence the crime is not murder, needs to

be noted and rejected for the reason we could have well

appreciated the argument if one or two blows were struck. As

noted in para 2 above, 7 blows were struck on the deceased.

All of them are directed towards the skull or the forehead. It is

apparent that the appellant has intentionally and repeatedly

targeted the head of the deceased. Everybody knows that the

head is a vital part of the body. If not Section 300 thirdly,

undoubtedly Section 300 fourthly is attracted in the instant

case. So ferocious is the attack directed towards the skull that

the frontal, temporal, parietal and occipital bone have been

fractured. Massive subdural haemorrhage has resulted.

22. We concur with the view taken by the learned Trial

Judge that the offence committed by the appellant is of

murder.

23. The appeal is dismissed.

24. Since the appellant is in jail, a copy of this order be

sent to the Superintendent, Central Jail, Tihar to be supplied to

the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE FEBRUARY 04, 2010 mm / dk