Sunder vs State
2010 Latest Caselaw 746 Del

    R-7A
    *    IN THE HIGH COURT OF DELHI AT NEW DELHI

    +                    Crl.A.92/2005

                                    Date of Order: 9th February 2010

    #      SUNDER .....                             Appellant
!                             Through: None.


                              versus


    $      STATE                             ..... Respondent
^                              Through: Mr.Jaideep Malik, APP.

    *      CORAM:
           HON'BLE MR. JUSTICE V.K. JAIN

           1.       Whether the Reporters of local papers
                    may be allowed to see the judgment?                     No

           2.       To be referred to the Reporter or not?             Yes

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


    : V.K. JAIN, J. (Oral)

1. This is an appeal against the judgment dated 13.1.2005

and Order on Sentence dated 15.1.2005 whereby the

appellant was convicted under Section 308 of IPC and

was sentenced to undergo Rigorous Imprisonment for

six months and to pay a fine of Rs.15,000/- or to undergo

Rigorous Imprisonment for three months in default. The

amount of fine was directed to be paid as compensation

to the injured.

2. The case of the prosecution is that on 14.1.2001, the

injured Mahipal was selling Chhole Bhatoore on his cart

on Wazirabad Road, Ashok Nagar, Delhi. The brother of

the appellant purchased one plate of Chhole Bhatoore

from Mahipal for Rs.5/- and consumed it on the spot.

While going back, he demanded a sum of Rs.95/- from

the injured, claiming that he had given a hundred rupee

note to him. The injured having refused to refund the

amount of Rs.95/- to him, he left saying that he would

definitely recover the balance amount of Rs.95/- from

him. After some time, he, accompanied by two old

persons and the appellant Sunder, returned to the cart

of Mahipal and demanded the balance amount of Rs.95/-.

Mahipal refunded the amount of Rs.95/- to him. After

taking the money and while going back the appellant

caused injury on the head of Mahipal, using lemon-

presser for this purpose.

3. The injured Mahipal came in the witness box as PW-3

and stated that on 14.1.2000, Vinod Kumar, brother and

co-accused of the appellant, purchased one plate of

Chhole Bhatoore from him after paying Rs.5/- to him.

After some time, Vinod started demanding Rs.95/- on the

ground that he had given a hundred rupee note to him.

When he refused to refund the amount of R.95/- to

Vinod, he left with a threat to recover that amount.

After some time, Vinod came back accompanied by his

parents. He returned Rs.95/- to Vinod, with a view to

avoid quarrel. After some time, the appellant Sunder,

who is the brother of Vinod picked up the lemon-presser

from his cart and gave blow on the left side of his head.

4. PW-2 Kali Charan stated that on 14.1.2001, there was

hot exchange of words between Mahipal and Vinod.

Vinod claimed that he had given Rs.100/- to him. Vinod

left after giving threat to recover Rs.95/- from Mahipal.

After some time, Vinod returned, accompanied by his

parents and the appellant Sunder, to the cart of Mahipal

and demanded the balance amount of Rs.95/-. Mahipal

returned Rs.95/- in order to avoid quarrel. After that,

the appellant Sunder, who is the younger brother of

Vinod picked up the lemon-presser from his cart and hit

the same on the head of Mahipal, as a result of which,

he fell down and started bleeding. The appellant Sunder

was, however, over-powered by other hawkers.

5. PW-5 Satpal Singh has stated that on 14.1.2001, Vinod

took a plate of Chhole Bhatoore after paying Rs.5/- to

him. Later Vinod started claiming that he had given

Rs.100/- note to Mahipal. Vinod then left after

threatening Mahipal. He returned after some time along

with other accused. Mahipal offered Rs.100/- to him but

the appellant Sunder attacked him with lemon-presser

as a result of which he fell down.

6. Other witnesses being more or less formal in nature,

their testimony need not be discussed. In his statement,

under Section 313 of Cr.P.C., the appellant denied the

allegations against him.

7. The learned counsel for the appellant states that

considering the deposition of the injured, which has

been supported by two-eye witnesses namely PW-2 Kali

Charan and PW-5 Satpal Sinch and also finds further

corroboration from the MLC of the injured, she does not

dispute the injury caused to Mahipal but no offence

under Section 308 of IPC is made out from the facts and

circumstances of the case.

8. In order to succeed in a prosecution under Section 308

of IPC, the prosecution was required to prove that injury

to Mahipal was caused by the appellant with such

intention or knowledge and under such circumstances,

that if it had caused death, the act of the appellant

would have amounted to culpable homicide not

amounting to murder.

9. In the present case, admittedly, there was no previous

enmity or dispute between the appellant and Mahipal.

The brother of the appellant had gone to the cart of the

Mahipal to eat Chhole Bhatoore. He actually purchased

a plate of Chhole Bhatoore from him and consumed it on

the spot. The dispute arose when the brother of the

appellant, rightly or wrongly, claimed that he had given

a hundred rupee note to Mahipal whereas Mahipal,

rightly or wrongly, claimed that only a five rupee note

was given to him. The brother of the appellant was,

therefore aggrieved on account of refusal of Mahipal to

refund the balance amount of Rs.95/-, which he felt was

genuinely payable to him. The only threat alleged to

have been given by the brother of the appellant when

leaving the cart of the Mahipal was that he would

recover the balance amount of Rs.95/- from him. No

threat to cause any injury to Mahipal was given by the

brother of the appellant.

10. When the brother of the appellant returned back to

the cart of Mahipal, he was accompanied by the

appellant as well as by their parents. Though, PW-2 Kali

Charan and the injured Mahipal claimed that the parents

of the appellant had left his cart after taking Rs.95/- and

the appellant had subsequently come to his place, this

part of the deposition of PW-2 and PW-3 is obviously

false, since, in the FIR itself, it has been specifically

alleged that when Vinod, brother of the appellant,

returned to the cart of Mahipal, he was accompanied by

his parents as well as the appellant Sunder. In fact

PW-5 Satpal Singh has also stated that when Vinod

returned back to the cart of Mahipal, he was

accompanied by his parents as well as by the appellant.

The obvious purpose behind claiming that the appellant

had come alone to the cart of Mahipal after his parents

had already left having taken Rs.95/- from Mahipal, was

to show that the appellant had pre-planned to cause

injuries to Mahipal. Therefore, no intention on the part

of the appellant to cause injuries to Mahipal, at the time

he visited his cart, stands proved in the facts and

circumstances of the case. When Vinod, accompanied

by his parents and the appellant Sunder, came back to

the cart of Mahipal, the purpose was to take back

Rs.95/- from him. Though, Mahipal claims to have

returned Rs.95/-to them, this part of his statement does

not appear to be correct. Had Mahipal returned Rs.95

to them, the dispute would have ended there and then,

since the only purpose behind the appellant, his brother

and his parents coming to the cart of Mahipal was to

take back Rs.95/- from him.

11. The true facts seems to be that Vinod genuinely

believed that Mahipal had misappropriated the balance

amount of Rs.95/- which was returnable to him, and that

is why he brought his parents and brother to the place of

Mahipal, in order to pressurize him to refund the

amount of Rs.95/-. Mahipal must have refused to return

the amount of Rs.95/- claiming that Vinod having paid

only Rs.5/- to him, no amount was returnable by him to

them. This obviously must have led to some altercation

between the appellant and his companions on the one

hand and Mahipal on the other hand, which resulted in

the appellant picking up the lemon-presser which was

lying on the cart and giving one blow on the left

backside of the scull of Mahipal. The very fact that

neither the appellant nor any of his companions was

armed when they came to the cart of Mahipal is a strong

indicator that their intention was to take back Rs.95/-

from Mahipal and was not to cause any injury to him.

Thus, there was absolutely no pre-planning or

pre-meditation on the part of appellant and the entire

incident took place during the course of an altercation,

which must have ensued on the spot, on account of

Mahipal persisting in refusing to return Rs.95/- to the

brother of the appellant.

12. It has come in the testimony of PW-3 Mahipal that the

lemon-presser was made of wood. Mahipal was selling

Chhole Bhatoore and the lemon-presser must have been

kept by him at his cart, in order to squeeze lemons for

putting some lemon juice in the Chholas which he used

to give along with Bhatooras. A wooden lemon-presser

cannot be said to be a dangerous or deadly weapon, in

any manner. Such pressers/squeezers are kept even in

households to squeeze lemons. Therefore, no intention

to cause culpable homicides not amounting to murder

can be inferred from the nature of weapon used by the

appellant for causing injury to Mahipal. It cannot be

said that a person giving a single blow using the wooden

lemon-presser knows that the injury given by him was

likely to cause death of a human being.

13. A perusal of the MLC of Mahipal would show that

only one blow was given on the left side of skull. The

size of the wound was 3X1 cm. The size of the wound

indicates that the wooden lemon-presser for causing the

injury to Mahipal was of a rather small size. The injury

caused to Mahipal appears to be superficial as no depth

of the wound has been given in the MLC. Had the

wound not been superficial, it would be having some

depth which the doctor would have notice and recorded

in the MLC.

14. Since the wound was superficial, it shows that no

much force was used by the appellant while causing

injury to Mahipal. Had he used substantial force, the

injury would have been deep and not superficial.

15. Admittedly, only one blow was given by the appellant

to Mahipal. Had the intention of the appellant been to

cause such injury to Mahipal as was likely to cause

death, he would not have stopped at giving one blow and

would have given multiple blows to him. This is yet

another indicator, which shows that the appellant did

not intend to cause death of Mahipal nor did he know

that the injury caused by him was likely to result in

death of Mahipal.

16. In Velu Vs. State 2004 Crl.L.J. 3783, there was a

dispute between the appellant and the injured when the

appellant parked his vehicle in front of the vehicle of the

injured. The appellant caused injury on the backside

scalp of injured using an iron pipe for this purpose and

run away from the spot. It was held by the Madras High

Court that the blow having been given in a spur of

moment and there being no pre-plan or pre-mediation,

the offence under Section 308 IPC was not made out

against the appellant.

17. The offence under Section 308 of IPC does not stand

established from the facts and circumstances of the

present case. The appellant is guilty only of offence

punishable under Section 323 of IPC, for having cause

hurt to Mahipal.

18. For the reasons given in the preceding paragraphs,

while setting aside the conviction of the appellant under

Section 308 of IPC, I convict him under Section 323

thereof. During the course of the arguments, I am

informed that the appellant had already spent some

dates in judicial custody. Taking all the facts and

circumstances of the case, the appellant is given benefit

of probation and is directed to be released on his

furnishing a bond of peace and good conduct in the sum

of Rs.10,000/- with one surety of like amount for a

period of six months, to the satisfaction of the trial court

within two weeks from today. During the period of

bond, the appellant shall maintain peace and good

conduct and shall refrain from committing any crime.

He shall appear, as and when directed, to receive the

sentence. In default of furnishing the bond, the

appellant shall undergo Rigorous Imprisonment for six

months. The appellant shall also deposit a sum of

Rs.15,000/- as compensation which may be paid to the

injured Mahipal. In case fine was deposited by the

appellant, in terms of the sentence awarded to him by

the trial court, that amount will be treated as

compensation paid in terms of this judgment and will be

paid to the injured, unless already paid.

Record of the trial court be sent back along with the

copy of judgment.

V.K. JAIN (JUDGE) FEBRUARY 09, 2010 'sn'