Pradeep Kumar vs State
2010 Latest Caselaw 735 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Decision: 09th February, 2010

+                  CRL.APPEAL No.19/2010

PRADEEP KUMAR                              ......Appellant
         Through:       Ms.Charu Verma, 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. (Oral)

1. Information was noted at 5:45 AM vide DD

No.52-B at PS Alipur that a man has been injured with a

phawra at J.B.Gupta Farmhouse, Bhaktawarpur Road.

2. Accompanied by Const.Surya Prakash, ASI

Mohar Singh PW-9 left for the farmhouse and met none.

HC Daya Chand PW-7 and Const.Ajit PW-8 from near a

police picket informed him that the injured had been

removed in the PCR van to Babu Jagjeevan Ram Hospital.

He reached the hospital and found one Raj Kumar

admitted in an injured condition and unfit for statement.

He met one Sita Devi PW-14 and her minor son Om

Prakash PW-11 at the hospital and he recorded statement

Ex.PW-9/1 of Om Prakash as per which the appellant had

assaulted the injured. Making the endorsement Ex.PW-

9/2 on the statement Ex.PW-9/1 he sent a rukka through

Const.Surya Prakash for FIR to be registered.

Approximately at the same time the injured died. The

body was sent to the mortuary.

3. Being a case of suspected murder,

investigation was taken over by Inspector P.C.Jha the

Additional SHO of the police station i.e. PW-22.

4. Further investigation at the spot was

conducted jointly by ASI Mohar Singh and Inspector

P.C.Jha. Returning to the spot i.e. J.B.Gupta Farmhouse

they lifted a phawra, a blood stained mattress and a blood

stained pant from a room in the farmhouse. Photographer

was summoned who took photographs of the place. The

Additional SHO prepared the site plan.

5. Since Sita Devi and Om Prakash named the

appellant as the assailant he was searched for and finally

apprehended at his work place.

6. Needless to state, case of the prosecution

hinged upon the testimony of PW-11 and PW-14 with

respect to the act of the appellant.

7. Whether the act of the appellant showed

commission of an offence punishable under Section 302

or Section 304 Part I or Section 304 Part II became a

matter of issue to be determined with reference to the

post-mortem of the deceased.

8. Dr.Anil Shandil PW-13 who conducted the post-

mortem on the dead body of the deceased noted the

following 3 injuries:-

"1. Stitched wound right post auricular region 5 cm from right ear posterior aspect, 4 cm in length with three stitches on opening the stitches margin contused irregular lacerated with dried up blood and clots along margins.

2. Stitched wounds over right parietal region 3.5 cm long. On opening the stitches margins contused irregular lacerated with dried up blood and clots along margins.

3. Right eye black eye (periorbital bruising) on incision underneath tissues effused with blood and clots."

9. He recorded the same in the post-mortem

report Ex.PW-13/A and gave the opinion that as a result of

injuries 1 and 2 the skull got fractured. Subdural and

sudarachnoid haemorrhage resulted. Death was caused

due to cranio ceriberal damage. All injuries were opined

to be ante mortem and could be possible with a hard

blunt object.

10. At the trial PW-11 Om Prakash and PW-14 Sita

Devi, deposed in harmony with reference to the past

relationship shared by Sita Devi and the accused. Both of

them were common in their deposition that after the

husband of Sita Devi left her, she found employment in a

cooker factory where the appellant was also a co-worker.

The appellant was on visiting terms with her. The son Om

Prakash PW-11 went a step further and stated that the

appellant had lived with his mother for about 1½ years.

Both deposed commonly that when the daughter of Sita

Devi reached marriageable age the appellant was told by

Sita Devi to leave the house but the appellant used to

regularly visit the house of Sita Devi.

11. With respect to what happened in the wee

hours of the morning of 26.10.2005, both stated that Sita

Devi did not return home from J.B.Gupta Farmhouse,

Village Ibrahimpur where she had taken employment a

few days earlier. The appellant had spent the night in the

house of Sita Devi and in the morning asked Om Prakash

as to why his mother had not returned. Om Prakash

informed him that since the farmhouse was far away and

his cousin Manoj who used to escort his mother has not

come, probably his mother has stayed at the farmhouse.

Om Prakash and the appellant reached the farmhouse

and knocked the door of a room. Sita Devi opened the

door. On seeing the deceased inside, the appellant

assaulted the deceased with a phawra, using the blunt

side and not the side having metal thereon. He fled after

assaulting the deceased. Whereas Om Prakash stated

that he ran to the police picket nearby, PW-14 stated that

both ran to the police picket nearby and informed about

the incident. HC Daya Chand PW-7 and Const.Ajit PW-8 at

the police picket stated that the mother and son had

come to the police picket at about 5:30 AM in the morning

of 26.10.2005 had informed about the incident. The two

were not cross examined.

12. It is apparent that while deposing in Court PW-

11 has made a slight blemish pertaining to only his going

to the police picket. The same is immaterial.

13. While deposing in Court, PW-11 stated that

before the deceased was removed in a PCR van to the

hospital the police officers questioned him. He denied

that his statement was recorded in the hospital. He

stated that his mother did not go to the hospital.

14. But we note that as per Sita Devi she also went

to the hospital but not in the PCR Van as there was no

space inside. She went in a scooter. It is apparent that

the child and the mother have not contradicted each

other on said issue.

15. On the issue where the statement Ex.PW-9/1 of

Om Prakash was recorded, notwithstanding Om Prakash

stating that no such statement was recorded in the

hospital and that his statement was recorded in the

farmhouse we note that when ASI Mohan Singh PW-9

deposed that he recorded the statement of Om Prakash in

the hospital, said statement was not challenged during

cross examination.

16. While narrating the facts aforenoted we have

noted slight variations in the testimony of the mother and

the son for the reason the learned counsel for the

appellant has urged that the same are material

contradictions.

17. We disagree. It is apparent that these are

minor variations. It has to be taken note of that when Om

Prakash deposed in Court he was aged 12 years. Thus, he

was about 11 years old when the crime was committed.

18. PW-14 is a domestic help. The mother and son

come from a humble background. They are poor people.

Their utterances have to be viewed as utterances of

common humble folks on the street and not literate

persons well articulated.

19. No motive for the mother and the son falsely

implicating the appellant has emerged.

20. Faced with the evidence aforenoted and the

fact that what was sought to be highlighted as variations

of a material nature have turned out to be mere specs of

sand, learned counsel for the appellant falls back on the

only argument which is worthy to be considered.

21. With reference to the fact that it hardly

matters where a man sees his wife in the company of

another man or sees his mistress or the one who he loves

in the company of another, overcome by passion he

assaults the man in whose company he sees his beloved

and the fact that the lethal part of the phawra i.e. the side

having metal piece was not used to inflict the injuries but

the blunt side was and that only 2 injuries were caused,

learned counsel urges that it is apparent that the

appellant was overcome, if not by a grave and a sudden

provocation, at least by a sudden burst of emotion and

considering the fact that the blunt side of the phawra was

used to assault it is apparent that to wreck vengeance

and anger the appellant only intended to cause injury to

the deceased and no more.

22. Learned counsel draws attention of this Court

to the decision reported as 2005 (9) SCC 650 Thangaiya

Vs. State of TN where only one injury with a stick was

caused on the right parietal region resulting in death due

to brain being damaged; conviction sustained was for the

offence punishable under Section 304 Part I IPC. In the

decision reported as JT 2008 (5) SC 407 Kesar Singh &

Anr. Vs. State of Haryana where the blow on the head was

inflicted from the blunt side of a spade, conviction

sustained was for the offence punishable under Section

304 Part I IPC. In the decision reported as AIR 1974 SC

1351 Thakarda Lalji Gamaji Vs. The State of Gujarat where

two blows were inflicted on the head with the blunt side of

a scythe and other blows were on the arm, the injury

resulting was fracture of the temporal bones and the brain

suffered damage; noting that the sharp side of the scythe

was not used but the blunt side thereof was used to cause

injury, conviction was sustained for the offence

punishable under Section 304 Part I IPC.

23. Factoring the circumstances in the instant case

that the appellant never went armed; the appellant went

with Om Prakash to bring back Sita Devi to her house; on

seeing Sita Devi inside the room with the deceased the

appellant having a soft corner for Sita Devi got enraged

and picked up the phawra lying at the spot and used not

the lethal side thereof but the non-lethal side thereof,

taking guidance from the 3 decisions aforenoted we

conclude that the offence committed by the appellant is

punishable under Section 304 Part I IPC.

24. On the issue of sentence, learned counsel

urges that in the decision reported as AIR 1998 SC 1007

State of UP Vs. Lakhmi, the Supreme Court had inflicted

the sentence to undergo imprisonment for 6 years for the

offence punishable under Section 304 Part I IPC.

25. We note that the general trend of the Courts is

to sentence the accused to undergo RI for 10 years

pertaining to offence punishable under Section 304 Part I

IPC unless there are some mitigating factors.

26. In the decision cited, the victim was the wife.

Evidence established that the accused had seen

something lascivious between his wife and PW-2 and on

account thereof his mind became suddenly deranged; the

sentence of 6 years was imposed.

27. There is no evidence of the kind as was before

the Supreme Court in Lakhmi's case (supra) to reduce the

sentence with reference to the moral worth of the action

of the deceased to provoke the crime.

28. In our opinion, a sentence to undergo RI for 10

years is the appropriate sentence to be imposed upon the

appellant.

29. The appeal stands disposed of by partially

allowing the same. The conviction of the appellant for the

offence punishable under Section 302 is modified.

30. The appellant is convicted for the offence

punishable under Section 304 Part I IPC and sentenced to

undergo RI for 10 years. Needless to state, the appellant

would be entitled to the benefit of Section 428 Cr.P.C.

31. Since the appellant is in jail, copy of this order

be sent to the Superintendent Central Jail Tihar, to be

made available to the appellant.

32. Before concluding we place on record our

appreciation for the prompt assistance rendered by

learned counsel for the appellant and the State.

33. The appeal filed in the month of January 2010

and which was listed for preliminary hearing on 12.1.2010

has been decided within just over one month of its filing

due to the unfailing cooperation and assistance rendered

by learned counsel.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE FEBRUARY 09, 2010 mm