Kailash Chand vs The State
2010 Latest Caselaw 1310 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Crl.A.No.70/2005

%                         Reserved on:     05th March, 2010
                          Date of Decision: 09th March, 2010

#     RAM AVTAR                                    ..... Appellant
!                         Through:     Mr. Mukesh Kalia, Adv.

                          versus

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

                                 Crl.A.No.07/2005

#     GIRJA SHANKER                                .... Appellant
!                 Through:             Mr. Mukesh Kalia, Adv.

                          versus

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

                                 Crl.A.No.65/2005

#     KAILASH CHAND                                .... Appellant
!                 Through:             Mr. Mukesh Kalia, Adv.

                          versus

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

                                 Crl.A.No.60/2005

#     RAM CHANDER                             ..... Appellant
!                Through:              Mr. Mukesh Kalia, Adv.

                          versus



Crl.A.Nos. 70, 07, 65, 60/2005                         Page 1 of 20
 $     THE 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?               Yes

      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.

1. This are four appeals against the Judgment dated 27th

November and Order on Sentence dated 2nd December 2004,

whereby the appellants were convicted under Section

307/323/201 of IPC read with Section 34 thereof and

appellants Ram Avtar and Ram Chander were sentenced to

undergo RI for seven years each and to pay fine of Rs.5000/-

each or to undergo RI for six months each in default whereas

the appellants Kailash Chand and Girija Shanker were

sentenced to undergo RI for four years each and to pay fine of

Rs.2,000/-each or to undergo RI for six months each in

default. The appellants Ram Chander and Ram Avtar were also

sentenced to undergo RI for six months each and to pay

Rs.1,000/- each or to undergo RI for three months each in

default, whereas the appellant Kailash Chand and Girija

Shanker were sentenced to undergo RI for three months each

and to pay fine of Rs.500/-each or to undergo RI for one

month each in default under Section 323 IPC. No separate

sentence under Section 201 of IPC was awarded to the

appellants. The sentences were directed to run concurrently.

2. On 17th September, 2001, an information was received at

Police Control Room at about 04.00-05.00 pm that there was

quarrel amongst 4-5 persons near Inderlok red light. On

receipt of this information, the Investigating Officer of this case

went to the spot and found a motorcycle parked there. On

inquiry, he came to know that the injured had been taken in

an auto-rickshaw. At about 7.00 pm, the complainant Vikas

Kumar came to Police Post Inderlok and lodged an FIR. He

alleged that his friend Avinash @ Babloo was married to the

younger daughter of Ram Avtar, with whom he had a love

affair and that had annoyed Ram Avtar and his family. He

further alleged that on that day, Ritu called Avinash on

telephone and asked him to come to Inderlok where she was

staying with her sister, so that the matter could be resolved

with her brother and father who also were to come to Inderlok.

Both of them reached the park near Inderlok red light and

were waiting there when Ram Avtar, his brother Ram Chander,

his father Girija Shanker and another person unknown to him

came there and started beating Avinash @ Babloo. Ram

Chander held Avinash, whereas Kailash gave fist and leg blows

to him. Ram Avtar picked up a brick lying on the spot and

started causing injuries on the head of Avinash. The fourth

person was giving fist and leg blows to Avinash from his back.

When the crowd gathered there, the assailants took Avinash

with them in an auto-rickshaw saying that he was their

brother-in-law. He further stated that from the spot, he went

to the house of Avinash to inform his family members and

when he came back to the spot and found the motorcycle to be

missing. The Police Constable, who was present on the spot,

told him that the motorcycle had been taken to Inderlok Police

Post, whereupon he reached the Police Post and reported the

matter to the police.

3. The prosecution examined 19 witnesses in support of its

case. Two witnesses were examined in defence.

4. PW-1 Bhartu, PW-2 Sham Lal and PW-3 Khem Chand

who were stated to be eye-witnesses of the incident, supported

the prosecution in their examination-in-chief and stated that

one of the boys sitting under the tree was beaten by four

persons, two of whom were the accused Ram Avtar and Ram

Chander present in Court, they did not support the

prosecution during their cross-examination. PW-1 Bhartu and

PW-3 Khem Chand claimed that they themselves did not see

the incident taking place. PW-1 had also claimed that during

examination-in-chief, he identified the accused persons at the

instructions of the Investigating Officer. In his cross-

examination, PW-2, Sham Lal claimed that he cannot identify

any of the four assailants, who were beating the boy. He also

claimed that in his examination-in-chief, he had identified the

accused persons at the instance of Investigating Officer.

Similar claim was made by PW-3 Khem Chand. PW-10 Sudhir

Sharma is the brother of Avinash. He stated that the accused

persons were not happy with Avinash as he had married the

sister of Ram Chander.

5. PW-15 Vikas Kumar is the key witness of prosecution in

this case. He has stated that Avinash was his business

partner and brother-in-law of the appellant Ram Avtar. He

stated that Avinash was having a love affair with the sister of

Ram Avtar and had married with her in a temple. According to

him, on 17th September, 2001, Avinash came to his office at

about 10.30 am and informed him that he had received a

telephone call from Ritu, sister of Ram Avtar asking him to

come to MCD park, Inderlok as her family members were

coming forward for the purpose of compromising the matter.

He accordingly went to the park with Avinash on a motorcycle.

After about 14 minutes of their reaching the park, all the four

accused also reached there. The accused Ram Chander

caught hold of Avinash from the front side, by embracing him,

whereas the accused Kailash started kicking and giving fist

blows to him. A piece of brick was lying near the spot. Accused

Ram Avtar picked that piece of brick and started hitting on the

head of Avinash. When he tried to intervene, accused Girija

Shanker gave beating to him. In the meantime, a lot of crowd

gathered there on the spot. Thereupon, the accused persons

caught an auto-rickshaw from the spot and took Avinash with

them saying that he was their brother-in-law. He further

stated that after this incident, he went to the house of Avinash

to inform his family members and from there he came back to

the spot with his mother and landlord. On reaching the spot,

he found the motorcycle of Avinash missing. A Constable, who

was present on the spot, informed them that the motorcycle

had been taken to Police Post Inderlok. They then went to the

Police Post, where he lodged an FIR Ex.P-15/A. He also

claimed that one brick piece stained with blood was seized by

the IO from the spot in his presence. According to him, from

the spot, they came to RML Hospital where Ram Avtar and

Ram Chander were found outside casualty and were arrested

by the police. The shirt of Ram Avtar, which was having

bloodstains on it, was seized by the police. The witness has

identified the shirt of Ram Avtar Ex.P-1 and the piece of brick

Ex.P-2.

6. PW-17 Ritu Sharma is the wife of injured Avinash. She

stated that on 17th September, 2001, Vikas had come to her

house on a motorcycle and told her husband that the money,

which he owed to him, would be returned to him that day and

he took Avinash with him on his motorcycle. She further

stated that at about 3.00 pm, she received a telephonic call

from Vikas informing her that her husband had met with an

accident. According to her, when she reached the hospital, her

husband was found admitted there.

7. PW-19 Shri Inderjeet Singh, Additional Rent Controller,

stated that the appellant Girija Shanker was produced before

him in a muffled face when he was working as Metropolitan

Magistrate, Delhi and had refused to join Test Identification

Parade vide his statement Ex. P-19/C

8. In their statement under Section 313 Cr.P.C., the

appellants denied the allegations against them and claimed

that they have been falsely implicated in this case.

9. DW-1 Shanker Dayal is the brother of appellant Girija

Shanker. He stated that the other appellants are not known to

him and are not related to them. DW-2 Tej Pal Sharma has

stated that on 17th September, 2001, the appellant Kailash

had performed shrath of his grandfather at their residence in

village Kakola.

10. During the course of arguments before this Court, the

learned counsel for the appellants did not dispute conviction of

the appellants under Section 323 of IPC read with Section 34

thereof. He, however, contended that no offence under Section

307 of IPC was made out against any of them.

11. In order to succeed the prosecution was required to prove

(i) that the death of Avinash was attempted, (ii) that his death

was attempted to be caused by or in consequence of the act of

the appellant and (iii) that such act was done with the

intention of causing death or that it was done with the

intention of causing such bodily injuries as the appellant knew

to be likely to cause death or were sufficient in the ordinary

course of nature to cause death. Although the nature of injury

may often give considerable assistance in coming to a finding

as to the intention of the accused, such intention may also be

deduced from other circumstances. What the court has to see

is whether the act, irrespective of its result, was done with the

intention or knowledge and under the circumstances

mentioned in the section. The intention of the assailants can

be gathered from the motive for the crime, nature of weapon

used, number of blows given by him, severity of blow and the

parts of the body where the injuries are inflicted and other

surrounding circumstances, if any.

12. The testimony of PW-15 Vikas shows that the injured

Avinash was called to the place of this incident on a false

pretext of resolving the disputes that had arisen between him

and the family of his wife Ritu on account of his marrying Rity

without their consent. This clearly indicates pre-planning on

the part of the appellants and it cannot be disputed that the

intention behind calling Avinash to the park was to cause

harm to him. The next question which then arises is as to

what harm the appellants intended to cause to Avinash. He

was called to a public place and not to a secluded spot. The

injured was called there in day time and not at odd hours in

the night. Admittedly, none of the appellants was armed when

they reached the park. Admittedly, brick, which was used for

causing injuries to Avinash, was not a whole brick, but was

only a piece of it, which happened to be lying on the spot. This

is not the case of the prosecution that any of the appellants

continued giving beatings to Avinash even after blood has

started oozing out from his head. In fact, PW-15 has

specifically stated that after Avinash started bleeding, that

ended the incident. Admittedly, immediately after Avinash

started bleeding, the appellants took him to RML hospital.

Admittedly, it was the appellant Ram Avtar who donated blood

to the injured Avinash in RML hospital. All these facts and

circumstances of the case clearly indicate that none of the

accused intended to commit murder of Avinash. Had their

intention been to murder Avinash, he would have been called

to some secluded place and not in a public park near traffic

light, which is a public place and where other persons are

always expected to be present, particularly during day hours.

Had their intention been to commit murder of Avinash, they

would have called him at some odd hour in the night and not

during day time. Had the intention of the appellant been to

take his life, they or at least some of them would definitely

have been armed when they came to the park. They will not be

expecting a piece of brick to be lying in the park, for being

used as a weapon of offence. All the four appellants being

unarmed while coming to the park is a strong indicator that

they did not intend to kill him. Had their intention been to kill

Avinash, they would not have stopped immediately after

Avinash started bleeding. They would rather have continued

causing injuries to him and would have seen to it that he was

finished there and then. This is not the case of the prosecution

that either PW-11 or anyone from the public had stopped the

appellants from causing further injuries to Avinash. PW-11 is

quite specific in saying that the incident ended the moment

Avinash started bleeding.

13. The testimony of PW-7 Dr. Shyam Gopal, who examined

the injured in RML hospital on 17th September, 2001, coupled

with the MLC prepared by him shows that two clean lacerated

wounds, one on the right side of the scalp approximately 1.5"

inside and the other with swelling on the left scalp were found

to have been caused to him. Neither width nor depth of the

wound found on the right side of the scalp has been given in

the MLC which indicates that brick blow was not given with

much force. Had the brick blow been given using a

substantial force, the wound would have been deep injury

scalp and in that case depth of the wound would have been

noticed by the doctor and noted on the MLC. Since no size of

wound with swelling on the left scalp has been given, the

inference is that this wound was a minor one. Had it been a

serious, its dimensions as well as depth would have been

noticed and given by the doctor on the MLC prepared by him.

This is yet another circumstance which shows that this was

not the intention of even Ram Avtar to cause death of Avinash

or to cause such injury to him as he knew to be likely to cause

death or as would, in ordinary course, have been sufficient to

cause death. Had the intention of the appellants been to

commit murder of Avinash, instead of taking him to hospital,

they would have taken him to a convenient place where they

could cause more injuries to him and finish his life. The very

fact that they took him to RML hospital leaves no reasonable

doubt that they did not intend to take his life. Rather they

were keen to save his life by rushing him to hospital. Also,

they took him to a Government hospital, which was bound to

inform police ad not to a private hospital which might or might

not have informed the police. The act of the appellant Ram

Avtar in donating blood to Avinash is yet another circumstance

which shows that they wanted rather to save the life of

Avinash instead of taking it away. While giving blood to

Avinash in the hospital, the appellant Ram Avtar as well as the

other appellant-accused with him would be quite conscious

that if the life of Avinash was saved on account of blood being

given to him by Ram Avtar, he was likely to cause harm to

them by reporting the incident to the police and getting them

arrested and prosecuted for causing injuries to him.

Therefore, in the facts and circumstances of the case, it is

extremely difficult to say that the appellants intended to cause

his death or to cause such injury to him as they knew to be

likely to cause his death or which, in the ordinary course of

nature, would be sufficient to cause his death. It is true that

the part chosen by the appellant Ram Avtar to cause injuries

to Avinash was a vital part of his body, but considering the

nature of the weapon used by him for this purpose and other

facts and circumstances of the case, it will be difficult to

accept that the intention was to cause his death or to cause a

fatal injury which the appellants knew to be likely to cause

death or which would, in the ordinary course, have been

sufficient to cause his death.

14. In my view, the facts and circumstances of the case

indicate that the intention of the appellants, when they called

Avinash to the park, was to cause injuries to him or may be to

intimidate him so as to put pressure on him to sever his

relations with Ritu. Some arguments must have ensued on

the appellants asking Avinash to sever his relations with Ritu.

Probably, during the course of arguments and altercation that

took place in the park, Ram Avtar got enraged and picked up

the piece of brick which happened to be lying in the park and

caused injuries using that piece of brick on the head of

injured Avinash. In my view, Ram Avtar, gave brick blow to

the injured with such intention or knowledge and under such

circumstances, that if he had caused his death, the act

committed by him, would have amounted to culpable homicide

not amounting to murder, which is punishable under Section

308 of IPC. Had death of Avinash resulted from the injuries

caused on his head with a piece of brick, the appellant Ram

Avtar would have guilty of culpable homicide not amounting to

murder punishable under Section 304 of IPC and his act

would not have constituted murder punishable under Section

302 of IPC. Therefore, Ram Avtar is liable to be convicted

under section 308 and not under Section 307 of IPC.

15. The appellant Ram Chand had held Avinash when Ram

Avtar gave two blows on him using a piece of brick for this

purpose. The appellant Ram Avtar did not release Avinash

from his clutches even when he saw Ram Avtar picking up a

piece of brick for the purpose of causing injury to Avinash. He

did not release Avinash even after first blow had been given on

his head by Ram Avtar. This clearly shows that Ram Chand

also shared a common intention with Ram Avtar to cause

injuries on the head of Avinash using a piece of brick for this

purpose. Of course, this common intention between Ram

Avtar and Ram Chand seems to have developed on the spot

and did not exist when they came to the park alongwith the

other appellants. Therefore, the appellant Ram Chand is also

liable to be convicted under Section 308 read with Section 34

thereof. Both of them are also liable to be convicted under

Section 323 read with Section 34 of IPC.

16. As far as the appellant Kailash Chand and Girija Shanker

are concerned, there is no overt act on their part from which it

may be inferred that they also shared a common intention with

Ram Avtar and Ram Chand to cause injuries on the head of

Avinash with a piece of brick lying on the ground. There is no

evidence of either of them having exhorted Ram Avtar to pick

up the piece of brick lying in the park and give injuries to

Avinash using that piece of brick. There is no allegation of

either of them having helped Ram Avtar in giving brick blows

on the head of Avinash. There is no allegation that they

caused any injury to Avinash, after brick blow had been given

to him by Ram Avtar. In fact, the entire incident came to know

once Avinash started bleeding. Therefore, it cannot be said

that either appellant Kailash Chander or the appellant Girija

Shanker shared a common intention with Ram Avtar or Ram

Chander to cause injuries to Avinash with such intention of

knowledge and under such circumstances that if the injuries

had caused death, the act or Ram Avtar would have amounted

to culpable homicide not amounting to murder. The appellant

Kailash Chander and Girija Shanker can be held guilty only

under Section 323 of IPC read with Section 34 thereof for

causing simple injuries to Avinash.

17. In order to succeed in a charge under Section 201 of IPC,

the prosecution was required to prove the following:

(1) that an offence has been committed;

(2) that the accused knew or had reason to believe the

commission of such offence;

(3) that with such knowledge or belief he--

(a) caused any evidence of this commission of that offence to

disappear, or

(b) gave any information respecting that offence which he

then knew or believed to be false;

(4) that he did as aforesaid, with the intention of screening

the offender from legal punishment;

The learned Additional Sessions Judge convicted the

appellant under Section 201 of IPC on the ground that they

removed the injured from the park where the incident took

place. In my view, the view taken by the Trial Court was wholly

unjustified. The facts and circumstances of the case, as

discussed in the preceding paragraphs, would show that the

appellants had taken Avinash to hospital for the purpose of his

treatment and not for the purpose of screening themselves

from punishment for causing injuries to him. As noted earlier,

they took Avinash to a Government hospital which was duty

bound to inform the police about Avinash having been brought

there in injured condition. Hence, the purpose of taking

Avinash to a Government hospital could never have been to

save them from punishment, for causing injuries to him. The

very fact that one of the appellants gave blood to him in the

hospital is yet another indicator that they wanted to save his

life despite knowing it fully well that if his life is saved, that

would result in his being a witness against them for the

injuries caused by them to him. Therefore, this was not a case

of causing disappearance of evidence with the intention of

screening the offender from legal punishment. The appellants

are, therefore, liable to be acquitted of the charge under

Section 201/34 of IPC.

18. For the reasons given in the preceding paragraphs, the

appellants Ram Avtar and Ram Chand are convicted under

Section 308/323 of IPC read with Section 34 thereof. The

appellant Kailash and Girija Shanker are convicted under

Section 323 IPC read with Section 34 IPC. During the course of

arguments, I was informed that the appellant Ram Avtar has

already spent about 5 years in actual custody, whereas the

appellant Ram Chand has spent about 45 months in custody.

Taking into consideration all the facts and circumstances of

the case, they are sentenced to undergo imprisonment for the

period already spent by them in custody and are further

sentenced to pay a fine of Rs.25,000/- each or to undergo SI

for three months each in default. No separate sentence is

awarded to them under Section 323/34 of IPC. The appellants

Girija Shanker and Kailash Chand have also spent about 24

months and 21 months respectively in jail. They are

sentenced to undergo imprisonment for the period already

spent by them in jail under Section 323 IPC read with Section

34 thereof.

The appellants Ram Avtar and Ram Chander are granted

two weeks time to pay the amount of fine. If they do not pay

the amount of fine within that period, they will surrender

before the Trial Court to undergo the sentence awarded to

them in default of payment of fine. The amount of fine be paid,

in equal share, to the mother and wife of the injured, who has

expired during pendency of this case.

The record of the Trial Court be sent back alongwith a

copy of the judgment for information and compliance.

(V.K.JAIN) JUDGE MARCH 09, 2010 BG