Vijay vs The State (Nct Of Delhi)
2010 Latest Caselaw 458 Del

               HIGH COURT OF DELHI: NEW DELHI


+              CRL. A. No. 687/2003
%
VIJAY                                                ......Appellant
                             Through: Mr. Satish Tamta and Ms.
                                      Rushi Kapur, Advs. for
                                      respondent No.2.
                             Versus

The STATE (NCT OF DELHI)                             .....Respondent

                             Through: Mr. M.P. Singh, APP for the
                                      State.
                             AND


               CRL. A. No. 688/2003


NAND LAL                                             ......Appellant


                             Through: Mr. Satish Tamta and Ms.
                                      Rushi Kapur, Advs. for
                                      respondent No.2.
                             Versus

The STATE (NCT OF DELHI)                 .....Respondent
                  Through: Mr. M.P. Singh, APP for the
                           State.
                  AND


               CRL. A. No. 693/2003


NARENDER KUMAR                                       ......Appellant

                             Through: Mr. Satish Tamta and            Ms.
                                      Rushi   Kapur,   Advs.          for
                                      respondent No.2.



CRL. REV. P. No. 1017/2003                             Page 1 of 20
                              Versus

The STATE (NCT OF DELHI)                 .....Respondent
                  Through: Mr. M.P. Singh, APP for the
                           State.
                  AND


               CRL. A. No. 712/2003


BALRAJ                                                ......Appellant

                             Through: None for the appellant.

                             Versus

The STATE (NCT OF DELHI)                              .....Respondent

                             Through: Mr. M.P. Singh, APP for the
                                      State.
                             AND

               CRL. REV. P. NO. 1017/2003


OMWATI                                                ..... Petitioner

                             Through: Mr. Abhishek Rai, Adv.

                             Versus

The STATE (NCT OF DELHI)                              .....Respondent

                             Through: Mr. M.P. Singh, APP for the
                                      State.
                                      Mr. Satish Tamta and Ms.
                                      Rushi   Kapur,   Advs.  for
                                      respondent No.2.


               Judgment reserved on: 22nd January, 2010
               Judgment delivered on: 28th January, 2010



CRL. REV. P. No. 1017/2003                               Page 2 of 20
 Coram:
HON'BLE MR. JUSTICE A.K. PATHAK


       1. Whether the Reporters of local papers
          may be allowed to see the judgment?     Not necessary

       2. To be referred to Reporter or not?      Not necessary

       3. Whether the judgment should be          Not
          reported in the Digest?                 necessary



A.K. PATHAK, J.

1. Accused Narender Kumar, Nand Lal, Balraj and Vijay had

been convicted under Sections 323/34 of the Indian Penal Code

(IPC) by the learned Additional Sessions Judge, Delhi; and have

been sentenced to undergo rigorous imprisonment for one year

and to pay fine of Rs. 1,000/- and in default to further undergo

rigorous imprisonment for one month. Benefit of Section 428

of the Code of Criminal Procedure (Cr.P.C.) had been given to

them.

2. Aggrieved by their conviction and sentence appellants

have preferred above mentioned appeals and the same are

being disposed of by this common judgment having arisen from

the same judgment.

3. FIR No. 218/1991 was registered at Police Station Sultan

Puri under Sections 302/34 IPC. After investigation accused

were sent up to face trial for having committing murder of one

Rajesh. However, after scrutinizing the evidence adduced by

the parties, learned Additional Sessions Judge concluded that

the accused were not guilty for committing the offence under

Sections 302/34 IPC and acquitted them for this offence. But

accused were convicted under Section 323/34 IPC for causing

simple injuries on the person of deceased, by their offending

acts.

4. Aggrieved by the acquittal of accused under Sections

302/34 IPC, complainant has filed a revision petition under

Sections 397/401 Cr.P.C. being Crl. Revision No. 1017/2003

and same is also disposed of along with the appeals, as the

same set of evidence is to be appreciated.

5. Briefly stated prosecution case, that emerges from the

trial court record is that, an information was received in the

Police Station Sultan Puri on 6th September, 1991 at about 6:15

pm that a quarrel was going on near Higher Secondary School,

Village Pooth Kalan; this information was recorded as D.D. No.

66-B and handed over to ASI Jodha Singh for inquiry, who

along with Const. Sat Narayan reached the spot and found

accused Balraj, Narender Kumar and deceased Rajesh

quarreling and scuffling with each other. ASI Jodha Singh

arrested Narender Kumar, Balraj and Rajesh under Sections

107/151 Cr.P.C. and lodged them in the lock up of Police

Station Sultan Puri after deceased Rajesh and accused

Narender Kumar had been medically examined at DDU

hospital.

6. In the night deceased Rajesh, while he was lodged in the

lock up, complained of pain, vomited and became unconscious

and was taken to DDU hospital at about 3:10 am on 7th

September, 1991 from where he was referred to R.M.L.

hospital. Medical treatment was provided to Rajesh but

unfortunately he died at about 5:30 am on 7th September, 1991.

As he died while in Police custody, inquest was conducted by

the SDM, Patel Nagar, Delhi. Thereafter, medical board under

the chairmanship of Dr. Bharat Singh, Medical Superintendent,

Civil Hospital was constituted of which Dr. L.K. Baruah and Dr.

R.K. Baruah were members. Autopsy on dead body was

conducted. As per autopsy report, death was possible due to

hepatic failure following viral hepatitis. It was mentioned that

the injuries found on the person of deceased were simple in

nature and not sufficient to cause death. Internal examination

also showed that there was no intra-cranial hemorrhage and

skull appeared to be normal.

7. After death of Rajesh, his mother Omwati made a

statement at about 10:00 am on 7th September, 1991 before

Inspector Dharampal Sharma, that about two years ago Rajesh

had objected to Balraj, Narender Kumar and Vijay teasing his

niece and for this reason they were nursing a grudge against

him. They used to beat Rajesh off and on. In the month of July

they gave beatings to Rajesh and a police complaint was made

in this regard. On 6th September, 1991 at about 5:30 pm

Rajesh along with his cousin Ashok had gone to ease himself in

the jungle. After some time Ashok returned and informed that

Narender Kumar, Balraj and Vijay were beating Rajesh on the

instigation of Nand Lal and Ram Chander. On receipt of this

information, she went towards the jungle along with Ashok and

saw Rajbir her Jeth (husband's elder brother) bringing Rajesh

with him by extending support to him. On her enquiring, Rajbir

informed her that Vijay, Balraj and Narender Kumar had given

beatings to Rajesh by hockey and dandas on the instigation of

Nand Lal and Ram Chander, who were also carrying lathis.

Rajesh also confided in her that Balraj had assaulted him with

hockey, accused Narender Kumar with bullet chain and

accused Vijay with lathi on the instigation of Nand Lal and Ram

Chander. She took Rajesh to Police Station in a rickshaw

where Balraj and Narender Kumar were already present. She

narrated the incident to Police officials present there and

requested them to lodge her report but nothing was done.

Instead Rajesh was taken to hospital by a Police constable on

his scooter and later on at about 8:30 pm he was lodged in the

Police lock up. In night when his condition deteriorated he was

finally taken to DDU hospital and from there to RML hospital,

where he died in the morning. In the Police Station ASI Jodha

Singh tried to put pressure on her husband to settle the matter

with the accused persons. On the basis of this statement of

complainant, FIR No. 218/1991 under Sections 302/34 IPC was

registered.

8. Accused were arrested. Accused Nand Lal got recovered

lathi from his house on 8th September, 1991 which was seized

by the Police. Accused Balraj got recovered hockey from the

agricultural field on the same day which was also seized.

Accused Narender Kumar got recovered bullet chain of a

motorcycle from agricultural field on the same day which was

also seized by the Police. Weapons of offence got were

recovered by the accused pursuant to their disclosure

statements. Scaled site plan was prepared by SI Manohar Lal

at the instance of Rajbir and Ashok. Case property was

deposited in the Malkhana. Statements of these witnesses

including that of eye witnesses Rajbir and Ashok were

recorded. After completion of investigation charge sheet was

filed in the court of learned Metropolitan Magistrate who took

cognizance of the offence and after completing procedural

formalities under Section 207 Cr.P.C., committed the case to

the court of Sessions since the offence under Section 302 IPC is

exclusively triable by the Sessions court.

9. Charges under Sections 147/148/302 read with Section

149 were framed against the accused by the learned Additional

Sessions Judge on 4th February, 1998 to which they pleaded not

guilty and claimed trial.

10. Prosecution examined twenty four witnesses in all. After

prosecution closed evidence, statements of accused were

recorded under Section 313 Cr.P.C. on 13th August, 2003

wherein entire incriminating material, which had come on

record, was put to them. Accused persons denied the same

being as incorrect and claimed themselves to be innocent.

They stated that they had been falsely implicated in this case

due to past enmity. However, no evidence in defence was led

by them.

11. Learned Additional Sessions Judge found the testimony of

PW2 Rajbir, PW3 Ashok and PW4 Omwati to be trustworthy

and reliable and concluded that accused persons Narender

Kumar, Nand Lal, Bal Raj and Vijay in furtherance of their

common intention had caused simple injuries on the person of

Rajesh, by blunt objects. However, in view of the medical

evidence, according to which death had been caused due to

hepatic failure following viral hepatitis and that the injuries on

the person were not sufficient to cause death, learned

Additional Sessions Judge held that the offence punishable

under Sections 302/34 was not made out, therefor, acquitted

the appellants of the charge of murder. But appellants were

convicted under Sections 323/34 IPC for having caused simple

injuries to the deceased by blunt object.

12. I have heard learned counsel for the

appellant/complainant/revisionist and State and perused the

trial court record carefully. What emerges from the trial court

record is that initially an information was received in the Police

Station regarding a quarrel near Higher Secondary School,

Village Pooth Kalan which was recorded in daily diary as DD

No. 66-B (Ex. PW14/A). On receipt of this information, ASI

Jodha Singh reached the spot and found that accused Narender

Kumar, Balraj and deceased Rajesh were scuffling and

quarreling with each other. He also found injuries on the

person of Rajesh and Narender Kumar. Narender Kumar and

Rajesh were taken to DDU hospital for their medical

examination. Thereafter, Rajesh, Narender Kumar and Balraj

were lodged in the lock up at Police Station Sultan Puri after a

case under Sections 107/151 Cr.PC. was registered against

them. PW2 Rajbir in his cross examination, had admitted that

Kalandra under Sections 107/151 Cr.P.C was prepared against

deceased Rajesh, Narender Kumar and Balraj. He also

admitted that the deceased as well as accused Narender and

Balraj were lodged in the lock up. PW3 Ashok and PW4

Omwati also confirmed this fact in their cross examination.

PW8 Jagdish Singh, father of the deceased, also stated so, in

his cross-examination. PW14 Inspector Dharam Pal Sharma,

who was posted as SHO, P.S. Sultan Puri on 6th September,

1991, had also categorically deposed that ASI Jodha Singh had

arrested Narender Kumar, Bal Raj and deceased Rajesh under

Sections 107/151 Cr.P.C. on 6th September, 1991 and lodged

them in the police lock up. He further deposed that accused

Narender Kumar and Bal Raj were produced before the Special

Executive Magistrate on 7th September, 1991 under Sections

107/151 Cr.P.C. and later they were arrested in the present

FIR. PW 21 Kishan Kumar who was posted as Special

Executive Magistrate, at the relevant time has confirmed this

fact. He has also deposed that deceased was in custody of

Police under Sections 107/151 Cr.P.C. on 6th September, 1991

and had died on 7th September, 1991 in RML hospital. So far

as ASI Jodha Singh is concerned, he died during the trial,

therefore, could not be produced. However, from DD No. 66-B

coupled with other material on record, including the statement

of above witnesses, it is clear that the deceased along with

accused Narender Kumar and Bal Raj was arrested under

Sections 107/151 Cr.P.C. by ASI Jodha Singh and lodged in the

police lock up. As per the Kalandra, incident of beating had

taken place near Higher Secondary School, Village Pooth

Kalan.

13. Other prosecution story as emerges from the statements

of PW2, PW3 and PW4, does not run hand in hand with initial

story propounded by it. As per the eye-witnesses, incident had

taken place in a jungle which was about 1km away from the

Higher Secondary School, wherein Narender, Balraj and Vijay

had thrashed deceased on the instigation of Nand Lal and Ram

Chander. Deceased, in an injured condition was taken to police

station by his mother PW4 Omwati. Both these theories do not

run parallel to each other and creates a serious doubt about the

whole incident, as narrated by the eye-witnesses.

14. In this case PW2 and PW3 are the alleged eye witnesses

to the incident. So far as PW4 is concerned, admittedly, she

was not even present at the spot. She derived information

regarding the incident from PW3 and had not witnesses the

same. Therefore, her knowledge about the incident being only

heresay, would be of no consequence. At best, it could have

been read only to corroborate the statements of PW2 and PW3,

who had deposed that accused Narender Kumar, Bal Raj and

Vijay had given beatings to deceased Rajesh on the instigation

of Nand Lal and Ram Chander, in their presence in the jungle

which was about 1 km. away from the Higher Secondary School

as well as Village Pooth Kalan. The place of incident as

narrated by these witnesses, was not near Higher Secondary

School but was a deserted place in a jungle far away from the

Village and Higher Secondary School. As per the site plan,

incident took place in isolated vacant land and not near the

school. The story propounded by these two witnesses is

inconsistent with the first theory of prosecution that on receipt

of information regarding quarrel near Higher Secondary

School, ASI Jodha Singh reached and apprehended Rajesh,

Narender Kumar and Bal Raj, booked them under Sections

107/151 Cr.P.C., and lodged them in the lock up. As per this

theory, accused Nand Lal, Ram Chander and Vijay were

nowhere in the picture. First theory of prosecution, regarding

arrest of deceased, accused Narender Kumar and Bal Raj under

Section 107/151 Cr.P.C., is duly supported by the prosecution

witnesses and cannot be discarded. This creates a serious

doubt on the veracity of versions of PW2, PW3 and PW4.

15. Conduct of PW3 also creates a serious doubt, his being an

eye witness. In his cross examination, he had stated that after

the incident he returned home and went to sleep. He did not

visit Police Station almost for fifteen days. He has admitted

that he did not inform the Police officials, who were present at

the Tehrvi ceremony that he was one of the eye witness. As per

the prosecution, statement of this witness under Section 161

Cr.P.C. was recorded on 7the September,1991. But in his

cross-examination, PW3 deposed that from the spot he came

back to his house; he did not go to police station after coming

to know about death of Rajesh at about 10.00 a.m. nor made

any statement on that day. He went to police station for the

first time after the tehrvi to tell them that he had witnessed the

incident. His this conduct is quite unnatural and creates a

doubt about his presence at the time of incident.

16. Conduct of PW2 is also not above board. As per him, he

told PW4 Omwati to take the deceased to the police station. He

was uncle of deceased, therefore, his conduct of leaving the

deceased in injured condition midway was quite unnatural.

That apart, he admittedly, reached the police station after

sometime and remained there whole night. In spite of this, he

did not inform the police officials including the SHO that he

had seen the appellant causing injuries on the person of

deceased. He had failed to explain as to why he did not tell any

of the police officers that he was eye-witness to the incident. In

the police station he came to know that deceased along with

Narender and Bal Raj was arrested under Section 107/151

Cr.P.C. but even then he did not lodge any protest and intimate

the concerned police officer that the appellants had given

beatings to the deceased in the jungle and a case be registered

against them. He gave statement implicating appellant only

after the death of Rajesh.

17. It appears that deceased, Narender and Balraj were

quarrelling near the school and were arrested by ASI Jodha

Singh and put in the lock up. Late in the night, condition of

deceased deteriorated on account of his ailment with which he

was suffering, this lead to his hospitalization where he died due

to viral hepatitis. After his death, these eye-witnesses were

brought in picture, for deposing against Narender and Balraj,

who had quarreled with the deceased near the school, also

implicating other accused persons as well as apparently there

was past acrimony between the two families. But the fact

remains that Narender and Balraj had indeed quarreled with

the deceased wherein he suffered simple injuries.

18. In the light of above discussions, I am of the view that at

best it can be said that accused Bal Raj and Narender Kumar

by giving beatings to deceased had caused injuries on his

person. So far as accused Nand Lal and Vijay are concerned,

they are entitled to acquittal. Ram Chander died during the

pendency of trial.

19. Next question, which arises for the consideration is as to

whether accused Bal Raj and Narender Kumar had

intentionally caused such injuries on the person of deceased

Rajesh so as to commit his murder; the injuries so caused on

the person of Rajesh resulted in his death.

20. Post mortem on the dead body of Rajesh was conducted

by a board of three doctors. Dr. Bharat Singh and

Dr.L.K.Baruah had been examined as PW9 and PW19

respectively. Dr. R.K. Baruah had not been examined.

However, post-mortem report had been duly proved by the

PW9 and PW19. As per post mortem repot following injuries

were found on the person of deceased:-

1) Abrassion 0.5 cm x 0.5 cm left allae of the nose.

2) Bruise size 7 cm x 1.2 cm on the lateral aspect of left shoulder joint

3) Bruise size 5 cm x 2 cm on the lateral aspect of left hand 2 inches below the elbow joint

4) Bruise size 5 cm x 1.2 cm on the tip of the right shoulder

5) Two intra cardice injection markover the left side of the chest

6) One injection prick mark on the right cubital fossa

7) Abrassion 2 cm x 1 cm on the posterior lateral aspect of the right elbow joint.

8) Bruise in an area of 10 cm x 2 cm on the right knee.

9) Similar bruise in an area of 7 cm x 2 cm just below the right patella

10) One small abrasion 1.5 cm x .5 cm on the front of leg and

11) One small abrasion 1.5 cm x .5 cm on the lateral aspect of the right knee.

21. Doctors opined that all the injuries were anti-mortem;

Injury no. 8 and 9 were possible by flexible blunt object and all

the other injuries were possible by blunt object; Injuries were

not sufficient to cause death and were simple in nature; death

was possible by hepatic failure following viral hepatitis."

(emphasis supplied)

22. It is apparent that no head injury was detected on the

person of deceased Rajesh. There is no mention of head injury

even in the first MLC of deceased Rajesh prepared at DDU

hospital. Merely because there is mention of head injury in the

death summary prepared by RML hospital, would be of no

consequence more so, when no such injury was found by the

team of doctors, who had conducted the autopsy on the dead

body, inasmuch as, no MLC of RML hospital had been placed

on record.

23. It has been categorically deposed by PW9 that injuries

were simple in nature and were not sufficient to cause death

and death had occurred due to hepatic failure following viral

hepatitis. PW19 Dr. L.K. Baruah supported PW9 Dr. Bharat

Singh. In his cross examination, he categorically deposed that

he did not observe any abrasion on the head. The medical

evidence clearly shows that the deceased died due to hepatic

failure following viral hepatitis and not because of injuries

suffered by him. Nature of injuries suffered by the deceased

are possible due to scuffle and supports the first theory

propounded by the prosecution that ASI Jodha Singh found

deceased, accused Narender and Balraj quarrelling near the

school and arrested them under Section 107/151 Cr.P.C.

Accordingly, I am of the view that learned Additional Sessions

Judge has rightly concluded that from the evidence available on

record no case of murder was made out against the accused

persons.

24. Learned counsel for the complainant has vehemently

contended that medical evidence cannot be preferred as

against the cogent, credible and trustworthy ocular evidence.

Reliance has been placed on Krishnan and Anr. vs. State

(Rep. by Inspector of Police) reported in AIR (2003) SC

2978. According to him, PW2 and PW3 are trustworthy

witnesses and since they categorically deposed that accused

Balraj, Narender Kumar and Vijay had given beatings to the

deceased on the instigation of Ram Chander and Nand Lal

resulting in fatal injuries to him, learned Additional Sessions

Judge ought to have convicted all the appellants under Section

302/34 IPC. Medical evidence in these circumstances by itself

would not be sufficient to hold that deceased did not die due to

injuries caused to him but on account of hepatic failure

following viral hepatitis. Deceased was not suffering from

jaundice nor was being treated in any hospital prior to the

incident, therefore, there was no question of his, all of a sudden

collapsing due to the alleged ailment. He has further

contended that deceased had vomited before falling

unconscious and this happens only in case of head injury.

Thus, it is contended that the appellants be convicted under

Section 302/34 IPC.

25. I do not find any force in this contention of the learned

counsel. For the detailed reasons already mentioned in the

preceding paras, testimony of eye-witnesses PW2, PW3 and

PW4 had been discarded. Krishna's case (supra) is in different

facts and is not applicable in the facts of this case, inasmuch,

as it has been held therein that when ocular evidence is cogent,

reliable and trustworthy, minor variance, if any, with the

medical evidence is of no consequence. In this case, as per

medical evidence death was not homicidal but was due to

ailment with which deceased had been suffering, and merely on

the basis of eye-witnesses account, which otherwise is not

credible, it cannot be concluded that it was as a result of

alleged beatings.

26. In the light of the above discussions, I allow Crl.Appeal

No.688/2003 and 687/2003 and acquit appellant Nand Lal and

Vijay.

27. Conviction of Balraj and Narender Kumar under Sections

323/34 IPC is upheld. However, their sentence is reduced to

six months from one year, keeping in view, the submission of

learned counsel that at the time of occurrence they were young

in age but with the passage of about twenty years their

responsibility has grown. Their respective families are wholly

dependent upon them. Crl. Appeal Nos. 693/2003 and

712/2003 are disposed of in the above terms.

28. Appellants Narender Kumar and Balraj be taken in

custody and sent to jail to serve the remainder of their

sentence.

29. Crl. Revision Petition No.1017/2003 is dismissed.

A.K. PATHAK, J

January 28, 2010 ga