Zia-Ud-Din Son Of Late Mohd. Sher ... vs State (Nct Of Delhi)
2010 Latest Caselaw 954 Del

*               HIGH COURT OF DELHI : NEW DELHI
               Judgment reserved on: February 09, 2010
           Judgment pronounced on: February 19, 2010

+                            Crl. Appeal No. 4 of 2004

%        Zia-ud-din
         Son of Late Mohd. Sher Khan           ... Appellant
                    Through: Mr. S.K. Sharma, Mr. Jivendra
                              Katoch and Mr. Dhruv Kumar,
                              Advocates.

                                     versus

         State (NCT of Delhi)                      ...  Respondent
                   Through:         Mr. Amit Sharma, Additional Public
                                    Prosecutor

CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

1.           Whether the Reporters of local
             papers may be allowed to see
             the judgment?
2.           To be referred to Reporter or                No.
             not?

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

SUNIL GAUR, J.

1. Appellant herein has been convicted by the trial court for

the offence of culpable homicide not amounting to murder and

has been sentenced to rigorous imprisonment for ten years

with fine for the offence under Section 304 (Part-II) of the

Crl. Appeal. No. 4 of 2004 Page 1 Indian Penal Code.

2. Prosecution case stands unfolded by Master Banti (PW-

11), who along with his maternal uncle Dinesh had gone to the

nearby shop to purchase candle as there was no electric light

in the residential area at about 10:00 p.m. on 29th Day of May,

2001 and while they were returning, Mehndi, younger brother

of appellant-accused started abusing aforesaid Dinesh and in

the meanwhile, appellant-accused came there and started

giving leg and fist blows to abovesaid Dinesh. According to this

witness (PW-11), he immediately rushed to his house and had

informed his parents about this incident and soon he along

with his father returned at the spot and they saw appellant-

accused and his co-accused were beating Dinesh. As per the

prosecution version, many persons had gathered at the spot

and injured-Dinesh was removed to the hospital, where he was

declared as brought dead.

3. Regarding this incident, FIR No. 268/2001 under Section

302/34 of Indian Penal Code was registered at Police Station

Timarpur, Delhi. After conducting the spot proceedings, Sub-

Inspector Surya Prakash collected MLC of the deceased and

thereafter had arrested the appellant/accused in this case. Post

Crl. Appeal. No. 4 of 2004 Page 2 Mortem Report of the deceased was obtained and the exhibits

of this case were seized and were sent to CFSL for analysis.

Investigation of this case stood completed with the filing of

charge sheet for the offence under Section 302/34 of Indian

Penal Code before the Sessions Court, whereas, co-accused -

Mehndi was prosecuted before the Juvenile Justice Board, as he

was said to be a juvenile on the day of this incident.

4. Trial of this case proceeded as appellant/accused chose

to contest the murder charge framed against him in this case.

Prosecution evidence consists of deposition of twenty

witnesses and the material ones out of them, whose deposition

has been referred to, during the hearing of this appeal, are

Bunty (PW-11), his parents (PW-3) and (PW-9). Post Mortem

Report of the deceased is Ex.PW-2/A, which gives the cause of

death as shock due to sudden vagal inhibition caused by blows

to the testis of the deceased. Sub-Inspector Surya Prakash

(PW-19) and Inspector R.K. Rathi (PW-20) had conducted the

investigation of this case.

5. The stand of the appellant/accused before the trial court

was of denial of the prosecution case and of his being

innocent. He had claimed that he has been framed in this case

Crl. Appeal. No. 4 of 2004 Page 3 by the police. Three witnesses, who had been got examined by

the appellant/accused in his defence were his neighbourers

and the stand taken by them was that appellant/accused was

not present at the spot, when this incident had occurred.

However, the defence evidence was not referred to, during the

hearings of this appeal.

6. The trial of this case ended with the conviction of the

appellant/accused for the lesser offence, i.e., under Section

304 (Part-II) of Indian Penal Code and the sentence imposed

upon him, is under challenge in this appeal.

7. Learned counsel for the appellant had tried to dislodge

the evidence of Bunty (PW-11) by contending that the time of

this incident given by this witness, is 9.30 p.m., whereas, in the

FIR of this case, the time of this incident mentioned is 10:00

p.m. It is urged on behalf of the appellant/accused that PW-3 -

brother-in-law of the deceased, who had lodged the FIR of this

case, has not supported the prosecution case. It has been

emphatically argued by appellant's counsel that there was no

previous dispute or enmity, nor there was any intention or

knowledge on the part of the appellant/ accused that the

alleged beating would result in death of injured-Dinesh. It has

Crl. Appeal. No. 4 of 2004 Page 4 been urged that the evidence of star witness (PW-11) does not

show that appellant/ accused had given any injury on the

private parts of the deceased. It is pointed out that the Doctor

(PW-2) who had conducted the post-mortem examination on

the dead body of the deceased, has stated that possibility

cannot be ruled out of the injury, which is the cause of death in

this case, being sustained by the person falling on the hard

object.

8. According to learned counsel for the appellant, the

alleged incident was on sudden impulse and no knowledge can

be attributed to the appellant/accused that mere giving of kick

and fist blows could by any stretch of imagination, result in the

death of Dinesh. In the last, it is asserted on behalf of the

appellant/accused that the offence, if any, committed by the

appellant/ accused would fall within the ambit of Section 323 of

Indian Penal Code and not under Section 304 (Part-II) of Indian

Penal Code and for this submission, reliance has been placed

upon a decision of the Apex Court in "State of Karnataka vs.

Shivalingaiah alias Handigidda", AIR 1988 SC 115. Thus, it is

urged that the impugned judgment is unsustainable and is

liable to be set aside.

Crl. Appeal. No. 4 of 2004 Page 5

9. Mr. Amit Sharma, Additional Public Prosecutor for the

Respondent - State counters the arguments raised on behalf of

the appellant/accused, by contending that the deposition of

Bunty (PW-11) by itself is sufficient to prove the prosecution

case. It is pointed out that the hostility of PW-3 - father of

Bunty is of no avail, as PW-9 - mother of Bunty corroborates

the version of this incident as narrated by Bunty (PW-11). It is

also pointed out that the medical evidence corroborates the

ocular version and the appellant/accused has been rightly

convicted by the trial court for the offence under Section 304

(Part-II) of Indian Penal Code, as the fatal assault on Dinesh by

the Appellant and his co-accused - Mehndi was without any

provocation and that there is no merit in this appeal.

10. After carefully considering the arguments raised by both

the sides and upon analysis of the evidence on record, this

Court finds that the most crucial evidence is that of Bunty (PW-

11), whose deposition is assailed by the defence by contending

that there is variation in the timing of this incident as this

witness has stated in his evidence that this incident had

happened at 9:30 p.m. whereas in the FIR lodged by father of

the deceased, the time of this incident given is 10:00 p.m. To

Crl. Appeal. No. 4 of 2004 Page 6 say the least, this so called variation is hardly of any

consequence as it is no body's case that the FIR of this case

has been ante timed. During the hearing of this appeal, it was

not shown as to how inconsequential variance in the timing of

this incident, adversely reflect upon the prosecution case.

11. It is true that this witness (PW-11) has not stated in so

many words that any injury was caused to the deceased on his

private parts, but it has to be kept in mind that this incident

had taken place at night time and when the deceased was

being assaulted by giving of kick and fist blows by the

appellant, then in normal course of events, it is not expected

that the witness would state with precision as to on which

particular part of the body, the leg and fist blows were given.

In a somewhat similar case of a deceased receiving injury by

kick on his private parts and of his dying instantly at the spot,

Apex Court in "State of Karnataka vs. Mohamed Nazeer @

Babu" AIR 2003 SC 999 had set aside the conviction of the

accused for the offence under Section 323 of the Indian Penal

Code and had restored his conviction under Section 304 (Part-

II) of Indian Penal Code, by aptly observing as under:-

"One has never come across nor can it be expected of the witnesses to state that the blow or kick was

Crl. Appeal. No. 4 of 2004 Page 7 aimed at the private parts or a particular part and that it then landed on that part".

12. In the light of the above, non-specification by the eye

witness (PW-11) as to on which part of the body, the deceased

had received injuries, does not cause any dent in the

prosecution case. Medical evidence needs to be looked into to

gauge as to whether the bodily injuries received by the

deceased were likely to cause his death or not. Out of the

three injuries sustained by the deceased, the two which are

material, are as under:-

"2. Bruise 4X2 cm over left scrotam on lower

surface.

3. Bruise 3X3 cm , over right scortam over lower surface. There was effusion of blood under injury No.2 and 3 alongwith contision of both testis."

13. The effusion of blood under aforesaid injuries no. 2 & 3

clearly shows that the intensity of the kick blows was quite

severe, otherwise effusion of blood under injuries no. 2 & 3

with contusion of both the testes is just not possible. The

presence of bruises at the seat of injuries no. 2 & 3, also

indicate that the kick blows were inflicted upon the private

parts of the deceased with considerable force by the appellant.

The possibility of deceased receiving the injuries in question by

Crl. Appeal. No. 4 of 2004 Page 8 falling on a hard object, is ruled out as there is no whisper in

the evidence of the eye witness (PW-11) or in the deposition of

any other witness that deceased had fallen on any hard object.

There is nothing in the medical evidence which creates a

reasonable doubt about deceased sustaining the injuries in

question by kick blows. Infact, the medical evidence advances

and proves the prosecution case to the hilt.

14. Though it was urged on behalf of the appellant, that the

happening of this incident was on sudden impulse, but the

appellant does not disclose as to what was that impulse. Infact,

the deposition of the eye witness (PW-11) reveals that the

deceased was fatally assaulted by the appellant, without any

provocation being there from the side of the deceased. This

distinguishes the case of the appellant from that of

„Shivalingaiah alias Handigidda‟ (Supra), where the deceased

had put his hands on the shoulder of the respondent/accused

with a view to make him sit down and all of a sudden, the

accused had reacted by squeezing the testicals of the

deceased resulting in his instantaneous death and in the facts

of the aforesaid case, the conviction was enhanced from

Section 323 to Section 325 of the Indian Penal Code.

Crl. Appeal. No. 4 of 2004 Page 9

15. Regarding the nature of offence committed, on the basis

of the evidence on record, the reasoning of the trial court, to

convict the appellant for the offence under the second part of

Section 304 of the Indian Penal Code, appears to be logical and

is as under:-

"Considering the events of the case, I find that kick blows were given on testis of the deceased, which proved fatal. It is a matter of common knowledge that testis is more sensitive part to a injury. If someone gives blows on testis, he would having a knowledge that such injury was likely to cause death. Herein the case blows were given on testis of the deceased as a result of which there was bruise on lower surface of left as well as right scrotum. Effusion of blood alongwith contusion on testis were also noted by the autopsy surgeon. These facts bring it over the record that blows with full force were given on the testis of the deceased. When accused gives blows with full force on the testis of the deceased, he is to be credited with the knowledge that the acts committed by him was likely to cause death of the victim. Therefore, it is apparent that accused had the knowledge that his act was likely to cause the death of Dinesh."

16. After having scrutinized the evidence on record, I find no

good reason to take a different view than the aforesaid one

taken by the trial court. Consequentially, the conviction of the Crl. Appeal. No. 4 of 2004 Page 10 appellant by the trial court deserves to be upheld and it is

accordingly done. However, on the quantum of sentence, this

Court finds that there is ample scope to interfere with the

impugned order on sentence. Trial court has awarded the

maximum substantive sentence for the offence in question.

Although trial Court has taken note of the fact that appellant

was a young man, aged about 23 years, having clean

antecedents but proceeds to observe that the conduct of the

appellant was so cruel that he had taken away life of the

deceased. Observation of the trial court regarding cruel

conduct of the appellant in committing the offence in question

is not borne out from the records of this case. In the facts and

circumstances of this case, it becomes quite clear that the trial

Court has taken a harsh view and has inflicted highly excessive

substantive sentence upon the appellant.

17. A perusal of the record of this case reveals that the

appellant was aged about twenty one years when this incident

took place and he had been suffering from tuberculosis and he

had remained in custody during the trial of this case but during

the pendency of this appeal, the substantive sentence imposed

upon the appellant was suspended and he is on bail since

Crl. Appeal. No. 4 of 2004 Page 11 February, 2004. As per the Nominal Roll of the appellant he

has undergone substantive sentence of about two years and

six months and his conduct during his detention in jail, was

satisfactory and it does not reveal appellant's involvement in

any other criminal case.

18. In the peculiar facts of this case, this Court finds that the

period of substantive sentence already undergone by the

appellant would meet the ends of justice and it would be too

harsh to now send the appellant behind bars to undergo

substantive sentence of a year or so. If it is so done, then it

would reflect a punitive approach and not a reformative one.

By now appellant has settled in life and to upset him after

nearly a decade or so, would not serve any purpose. Especially

so, when he has faced the agony of the trial and appeal

proceedings for long nine years or so. The offence punishable

under the second part of Section 304 of the Indian Penal Code

leaves a lot of discretion with the Court as the punishment to

be imposed for the offence of this nature, may extend to ten

years or in a appropriate case, the accused may be left with

fine alone.

19. By adopting a humanistic approach, in view of the facts

Crl. Appeal. No. 4 of 2004 Page 12 emerging on record, the substantive sentence imposed upon

the appellant is reduced to the period already undergone by

him. However, to strike a balance, the sentence of fine is

suitably enhanced to Rupees fifty thousand only. In default of

the payment of the enhanced fine, appellant will have to

undergo simple imprisonment for a period of six months. Out

of the enhanced fine, if realized, Rupees forty thousand shall

go to Smt. Urmila (PW-9), mother of the deceased.

20. This appeal stands partly allowed in the aforesaid terms.

Trial Court be apprised of this order to ensure its compliance.

21. The appeal as well as pending application, if any, are

accordingly disposed of.

Sunil Gaur, J.

February 19, 2010
pkb/rs




Crl. Appeal. No. 4 of 2004                                     Page 13