Sehdev Bhuiya @ Chotu vs State
2010 Latest Caselaw 202 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision :15th January, 2010


+                         Crl. A. No. 652/2004


        SEHDEV BHUIYA @ CHOTU                          ..... Appellant
                      Through:           Mr.Parminder Singh Goindi,
                                         Advocate
                      versus
        STATE                                    ..... Respondents
                           Through: Ms.Richa Kapoor, 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?                       Yes
     3. Whether the judgment should be reported in the Digest?Yes

PRADEEP NANDRAJOG, J. (Oral)

1. 20.07.2002 was a most unfortunate day in the life

of HC Param Hans, who while sleeping in room No.5 of PS Civil

Lines was put into permanent slumber. He was killed.

2. The appellant has been accused of murdering HC

Param Hans.

3. It all commenced when DD No. 24A Ex. PW-2/A was

recorded at 8:34 PM at PS Civil Lines on 23.07.2002 that a

person had climbed up a piller and was threatening that he

would blow up the Tis Hazari Courts Complex. Armed with a

copy of said DD entry ASI Kalawali Khan PW-2 accompanied by

Ct.Ajay Sanyal proceeded to Tis Hazari Courts and saw the

appellant having climbed the Metro pillar under construction

opposite Tis Hazari Courts. A PCR Van and a Fire Brigade were

present. The appellant was brought down after some

persuasion and was brought to the police station where ASI

Kalawali Khan took him to room No.5 for making

enquiries/interrogation. He left the room at 11:45 PM and as

claimed by him (when he deposed as PW-2) he did this briefly

as he had to go to the room of the Additional SHO.

4. HC Param Hans was sleeping in the room No.5.

Cries of HC Param Hans attracted Ct.Jawahar Lal PW-1, ASI

Kalawali Khan PW-2, as also Ct.Rohtash PW-3 to room No.5.

Ct.Jawahal Lal PW-1 was the first to reach as deposed to by

him. He saw the appellant with an iron rod in his hand and he

was attacking HC Param Hans. The appellant was saying that

he would not leave any policemen on that day and will kill all

of them. Blood was oozing from the head and forehead of the

HC Param Hans. With the assistance of ASI Kalawali Khan,

Ct.Jawahal Lal PW-1 succeeded in dis-arming the appellant.

Ct.Rohtash PW-3 pinned down the appellant. HC Param Hans

was rushed to Sushruta Trauma Centre. He was given medical

aid but could not survive. He was declared dead at 4:00 AM

i.e. early hours of the morning of 24.07.2002. The dead body

of HC Param Hans was sent to the mortuary of Aruna Asaf Ali

Hospital where Dr.Sarvesh Tandon PW-10 conducted the post-

mortem and noted two bruised injuries, one each on the upper

lid of the right eye and on the right side of the head; three

injuries on the head being the result of hit by a blunt object as

also a lacerated wound on the right side of the back. Internal

examination revealed that the skull bones were fractured

spirally and irregularly. The brain was damaged. Death was

opined due to cranio cerebral damage consequent upon blunt

force impact.

5. At the police station, the iron rod used as the

weapon of the offence was seized.

6. The report of the serologist dated 31.10.2002 has

reported that human blood of the same group as that of the

deceased was detected on the iron rod recovered from the

room where the crime took place.

7. At the trial ASI Kalawali Khan appeared as PW-2 and

deposed that on receipt of DD 24A accompanied by Ct.Ajay

Sanyal he reached Tis Hazari Courts and found that the

appellant had climbed on the Metro Rail Bridge which was

under construction and that he was not coming down. A PCR

Van and Fire Brigade were present at the spot. They got

appellant down and he brought the appellant to room No.5 at

the police station. He interrogated him and at about 11:45 left

the room for 2-3 minutes to speak to the Additional SHO. He

rushed back on hearing a noise. He saw Ct.Jawahar Lal yelling

Mar Diya Mar Diya. He went to room No. 5 and saw that the

appellant was apprehended by Ct.Jawahal Lal who told him

that the appellant had attacked HC Param Hans with an iron

rod which was lying in the room. HC Param Hans was removed

to Trauma Centre.

8. Ct.Jawahar Lal PW-1 deposed that he was on duty at

the lock up of the police station from 9:00 PM to 12:00 PM

midnight and at about 10:30 PM, ASI Kalawali Khan brought

the accused to his room No.5 in the police station and was

making enquiries from him. HC Param Hans was sleeping in

the room. At around 11:45 PM he heard noise from room No.5.

He heard the appellant yelling that he will not leave the

policemen on that day and will kill them. The appellant was

having an iron rod in his hand and was assaulting HC Param

Hans. He ran and over-powered the appellant and snatched

the iron rod. Blood was oozing from the fore-head of the HC

Param Hans. ASI Kalawali Khan and Ct.Rohtash came running

and took HC Param Hans to the hospital. SI Hans Raj PW-15

recorded his statement Ex. PW-1/A at the spot itself.

9. SI Hans Raj PW-15 deposed that he was at the

police station and on hearing noise in room No.5 went there

and saw HC Param Hans lying in a serious condition. He

recorded the statement Ex.PW-1/A of Ct.Jawahar Lal and after

making an endorsement Ex.PW-15/A got registered the FIR.

Thereafter he prepared the site plan Ex.PW-15/B and took into

possession the blood sample, blood stained concrete and other

blood stained articles as recorded in seizure memo Ex.PW-1/B

to Ex.PW-1/E. He deposed that he arrested the appellant vide

arrest memo Ex. PW-15/C.

10. On being cross-examined he deposed that no finger

print was lifted from iron pipe Ex.P1.

11. This, then, is the entirety of the evidence against

appellant.

12. We have perused the testimony of Ct.Jawahar Lal PW-1,

ASI Kalawali Khan PW-2, Ct.Rohtash PW-3 as also of SI Hans

Raj PW-15. Nothing has been brought out to dis-credit their

testimony. The crime took place in the police station itself and

Ct.Jawahar Lal PW-1 is a witness to what has happened. Three

police officers reached the place of crime when Ct.Jawahar Lal

PW-1 dis-armed the appellant and had pinned him down. They

saw HC Param Hans in a seriously injured condition in the

room in the police station.

13. It is urged by learned counsel for the appellant that

there is no arrest memo prepared by ASI Kalawali Khan when

he apprehended the appellant from outside Tis Hazari Courts.

Counsel urges that it is apparent that appellant was kept in

illegal detention in the police station and if he has acted in a fit

of anger, it has to be treated akin to a case of accused acting

upon sudden and grave provocation. Counsel highlighted that

pertaining to the appellant climbing the Metro pillar outside Tis

Hazari Courts complex and threatening to blow up Tis Hazari

Courts complex no FIR was registered.

14. The submission urges merit hardly any

consideration save to except to note that the act of the

appellant in climbing the Metro pillar outside Tis Hazari Courts

complex and threatening to blow up Tis Hazari Courts

complex, without there being any ammunition with the

appellant would constitute an offence no more than that of

creating a public nuisance. The offence being non-cognizable,

we find nothing wrong in the police not recording an FIR when

the appellant was brought down from the Metro pillar opposite

Tis Hazari Courts. It is unfortunate that when they brought the

appellant to the police station the corresponding DD entry

which requires to be recorded whenever somebody is brought

to the police station has not been proved at the trial. But, this

would not mean that the appellant was kept under illegal

detention.

15. Be that as it may, this cannot be a basis for the

appellant to assault HC Param Hans.

16. From the testimony of the Ct.Jawahar Lal it is

apparent that the appellant attacked HC Param Hans in the

police station and the act of the appellant resulted in the death

of HC Param Hans. That apart, the right of private defence in

the only legally recognized ground for a person to injure and

kill another. Even this right is very limited i.e. to use

reasonable force to protect one self and the property.

17. To the reader of this judgment a query may arise in

the mind: Whether at all the appellant was mentally fit ? To

put it differently is the defence of insanity available to the

appellant.

18. It is settled law that a mere mental disturbance

which falls short of a person being so insane that he does not

realizes the consequences of his acts, alone is sufficient to

attain the status of the defence of insanity. We note that no

such defence has been raised at the trial. We further note that

the appellant has clearly understood the charge against him

and with respect to the cross-examination of the various

witnesses we note that the same reveals that the appellant

was clearly understanding what was going on at the trial.

19. The nature of injuries suffered by the deceased as

noted and recorded in the post-mortem report Ex. PW-10/A

lead no manner of doubt that from the acts of the appellant

the only offence which is made out is that of murder.

20. We find no merit in the appeal which is dismissed.

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

sent to the Superintendent Central Jail Tihar to be made

available to the appellant.

PRADEEP NANDRAJOG, J

SURESH KAIT, J JANUARY 15, 2010 'mr'