Randhir Singh vs State
2011 Latest Caselaw 2015 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment Reserved on : 23rd March, 2011
                               Judgment Pronounced on :7th April, 2011

+                             CRL. A. NO. 56/1999

        RANDHIR SINGH                                ...Appellant
                  Through:         Mr.Puneet Ahluwalia, Advocate
                                   with appellant in person.

                                    versus

        STATE                                              ..Respondent
                    Through:       Mr.Pawan Sharma, Standing
                                   Counsel (Crl.) with Mr.Harsh
                                   Prabhakar, Advocate.

                              CRL. A. NO. 80/1999

        DAYA SINGH                                  ...Appellant
                 Through:          Mr.K.B.Andley, Senior Advocate
                                   with Mr.M.Shamikh, Advocate.

                                    versus

        STATE                                              ..Respondent
                    Through:       Mr.Pawan Sharma, Standing
                                   Counsel (Crl.) with Mr.Harsh
                                   Prabhakar, Advocate.

         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?

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

SURESH KAIT, J.

1. These appeals are directed against the judgment and

order dated 27.01.1999 by which the appellants have been convicted for offences punishable under Section 323/302/307/34 IPC and vide order on sentence of even date have sentenced the appellants to undergo rigorous imprisonment for life and also to pay fine in sum of `1000 and in default to further undergo RI for 3 months each for offence of murder. For the offence of attempt of murder they have been sentenced to undergo RI for 5 years. For the offence punishable under Section 323 IPC they have been fined `500.

2. 3 co-accused Harish Chand @ Bablu, Ram Kumar and Vijay Kumar have been acquitted for the charge under Section 302 and 307 IPC. They have been convicted for the offence punishable under Section 323 IPC for which they have been sentenced to pay fine in sum of `500. The 6th co-accused Ved Prakash had died and hence proceedings qua him stood abated.

3. We are thus concerned with only the appellants as the 3 co-accused have not challenged the verdict of guilt and the sentence imposed upon them.

4. Criminal investigation commenced when on the intervening night of 23-24.07.1986 at about 12:25 AM Ct.Azad Singh PW-12, posted at Hindu Rao Hospital, informed PS Ashok Vihar that one Dharamvir s/o Hazara Singh had been brought to the said hospital, which information was noted vide DD No.21A and copy thereof was entrusted to SI Panjab Singh PW-28 who met Pratap Singh PW-8 and made the statement Ex.PW-8/A on which FIR was registered.

5. As per the statement Pratap Singh said that on 23.07.1986 at about 10:45 PM he alongwith Rajinder Singh PW-4 and Rajesh Kumar PW-3 had dinner at Yadav Hotel, while returning to their village Wazirpur they reached near the wall of

police station quarters, they saw one crane bearing registration No. DIL-6333 parked in front of a „building material‟ shop of Dharamvir (deceased). Sitting in front of his shop, Dharamvir requested the crane driver not to park the same in front of the shop. Crane driver, namely, accused Harish Chander got down from his crane and started abusing Dharamvir saying: "the said place did not belong to his father". Accused Randhir Singh, Head Constable of Delhi Police (Traffic) in charge of crane, who was seated as the co-driver along with another person also started abusing Dharamvir; at that time 3 more persons namely, Ram Kumar, Ved Prakash and Vijay Kumar who were seated at the rear portion of the crane also got down. Thereafter, all attacked Dharamvir and at that time he and Rajesh PW-3 intervened and objected. Rajesh PW-3 was also attacked and accused Randhir secured a „belcha‟ from the shop and attacked deceased Dharamvir with the same. At that time accused Randhir continued to tackle Dharamvir and Rajesh PW-3 whereby causing injuries to both. While assaulting the accused were saying that Dharamvir and Rajesh should be killed.

6. FIR Ex.PW-5/A was registered. Dead body of Dharamvir was seized and sent for postmortem and as per the postmortem report Ex.PW-32/A, 3 bruises on the posterior surface of distal arm of right forearm, incised stab wound placed horizontally on the anterior-medial aspect of right thigh and an incised wound on the posterior middle aspect of the right thigh were detected. The 2 incised stab wounds on the thigh were the result of a single stab blow by a sharp-edged weapon which pierced through the right thigh and unfortunately cut the femur artery. This was the cause of the death opined.

7. It is apparent that the deceased was most

unfortunate inasmuch as a single stab wound directed towards the non-vital part of the body proved fatal due to the femur artery being cut.

8. As, accused Randhir Singh, accused Ram Kumar and accused Harish were found to be injured; hence their medical examination was conducted. The MLC Ex.PW-22/B of Randhir Singh shows his having an incised wound on the left side of the face 2" x 1/4" about 1/2" and bruises on the left maxillary eminence. The MLC Ex.PW-28/DB of Ram Kumar shows an injury being a CLW (clear lacerated wound) on forehead above the hairline about 2" on right eye-brow measuring 1" x 1/4" x 1". The MLC Ex.PW-28/DC of Harish Chander shows an injury being a CLW on forehead above right eye just above the hairline measuring 1 ½" x ¼" x ¼" and a blunt injury to the right side of the abdomen and multiple abrasions on both hands.

9. To prove an alleged motive Watan Singh PW-6 deposed that on 13.04.1986 on the occasion of his son‟s birthday a party was organized, where the accused Randhir Singh as well as the deceased were present and had quarreled. Joginder Singh PW-7 supported Watan Singh and gave more incriminating testimony by stating that Randhir had threatened the deceased with dire consequences.

10. Rajesh PW-3 who was injured and whose MLC Ex.PW- 1/A shows the following injuries to him:-

"1. There was clean incised wound measuring about 3cms x 1cm on supra amblical region with active bleeding.

2. Clean incised wound 4cms x 1cm on the infra- amblical region, laterally with active bleeding.

3. Clean incised wound left scapular region measuring about 5cms x 1cm with active bleeding.

4. Clean incised wound on left flank infra scapular region, 2cms x 1cm with active bleeding.

5. Clean incised wound about 1.3cms, 1cm with active bleeding and posteriarly to the anterior superior lilac spine.

6. Abrasions ever the left palm, left lower leg and right wrist."

11. He deposed that the fight commenced when accused Randhir Singh and accused Daya Singh got down from the crane and started a quarrel with deceased Dharamvir. Thereafter, persons who were seated at the rear portion of the crane caught hold of the deceased Dharamvir and accused Randhir Singh started beating Dharamvir with a belcha. Accused Daya Singh took out a knife and started inflicting injuries on Dharamvir (deceased) and assaulted him on his abdomen, buttock and back. Rajender Singh PW-4 and Pratap Singh PW-8 raised an alarm of "bachao-bachao". Accused Daya Singh gave a knife blow on the thigh of deceased Dharmavir as a result of which he fell down.

12. In his cross-examination, Rajesh Kumar PW-3 had almost resiled from what he had deposed in the examination-in- chief, he stated that, he denied knowing the identities and the exact number of persons who were seating at the rear portion of the crane. He denied knowing the driver prior to the occurrence. He denied having identified the accused before the Magistrate and denied having told the police that Daya Singh had stabbed Dharamvir.

13. Rajender Singh PW-4 deposed that, accused Randhir and accused Daya Singh were sitting in the crane with driver Harish Chander who got down from the crane and started abusing deceased Dharamvir. Three more persons were sitting in the rear portion of the crane. Thereafter, accused Daya Singh also got down from the crane followed by the others who grappled with Dharamvir. Accused Randhir picked up belcha

Ex.P/5 and started assaulting Dharamvir who tried to ward him with his right hand. Rajesh Kumar PW-3 intervened to save Dharamvir. Accused Randhir exhorted accused Daya Singh to give knife blow to Rajesh Kumar PW-3 upon which he acted. Deceased Dharamvir tried to rescue Rajesh Kumar, but was unsuccessful.

14. Pratap Singh PW-8 deposed that he knew Dharamvir who used to sell building materials and that on 23.7.1986 at about 10:45 PM when he along with Rajesh Kumar and Rajender were returning after taking dinner from Yadav Hotel saw a crane parked near the shop of Dharamvir who asked the driver not to park the crane outside his shop. He saw Daya Singh and Randhir seated by the side of the driver and 3 accused were seated behind them. Randhir picked up a belcha from the shop of Dharamvir and assaulted him. When Rajesh tried to rescue Dharamvir, Randhir exhorted Daya Singh to stab them with a knife and he i.e. Daya Singh inflicted injuries to Rajesh and Dharamvir.

15. In view of the evidence led the learned Trial Judge has opined that there was no common intention of the accused when the quarrel commenced and that this would entitle the 3 co- accused to be acquitted for the injuries caused to Dharamvir and Rajesh, but the 3 would be liable for their individual acts of beating Dharamvir. The learned Trial Judge has reasoned that only when Randhir exhorted Daya Singh to use the knife that the quarrel took an ugly shape and there was no evidence of the 3 co-accused participating any further. For the act of Daya Singh who yielded the knife and the act of Randhir exhorting Daya Singh, Randhir has been convicted with the aid of Section 34 IPC and Daya Singh for his own acts.

16. At the outset it may be highlighted that the witnesses of the prosecution have not been able to explain the injuries inflicted on the 3 accused namely Randhir, Harish and Ram Kumar. The learned Trial Judge has discussed this aspect in para 53 - 59 of the impugned decision by reasoning that since the injuries were minor, they could be a result of the scuffle.

17. Now, the learned Trial Judge, in our opinion has trivialized the issue by ignoring that the injury on Randhir Singh, Ram Kumar and Harish Chander showed a sharp edged weapon of assault used. The learned Trial Judge ignored that as per the witnesses of the prosecution 2 persons namely Rajesh and Rajender had tried to save Dharamvir and the possibility of the natural reaction of the 2 being one of picking up a handy object lying nearby to counter attack cannot be ruled out. The learned Trial Judge ignored that there is a tendency of eye witnesses who have participated in a counter assault to play down their role. We shall with this aspect a little later, but simply highlight that the injuries on the 3 accused certainly suggest a mutual fight in which even the defence side has used a weapon of offence and if we compare the injuries received by the accused and the defence side, but for the unfortunate fatal stab injuries to Dharamvir‟s thigh, the injuries are fairly balanced.

18. With respect to the eye witness testimony it was highlighted to us that deposing first Rajesh Kumar PW-3 did not state that Daya Singh assaulted Dharamvir as the exhortation by Dharamvir. He simply stated that Randhir gave beating to Dharamvir with a belcha and Daya Singh assaulted Dharamvir on the abdomen, buttock and back with a knife. It is apparent that Rajesh Kumar has given an exaggerated version of the assault on Dharamvir for the reason, as noted by us in para 6 above the

post mortem report Ex.PW-32/A show only 3 bruises on the right forearm of Dharamvir and a single stab wound piercing through the thigh. Rajender Singh and Pratap Singh are the ones who stated that on exhortation of Randhir Daya Singh used the knife. It may be highlighted that in his statement Ex.PW-8/A Pratap Singh does not state that at Randhir‟s exhortation Daya Singh used the knife. In the said statement he simply said that while assaulting Dharamvir and Rajesh the accused were saying that the two should be killed. In fact, in the said statement Pratap Singh does not name Daya Singh at all.

19. There are thus, improvements made, but we find the same not to be so serious so as to lock, stock and barrel throw out the case of the prosecution. It is natural that discrepancies would occur when 3 persons give versions of an incident in which 2 persons are injured and there are 5 persons who are the stated aggressors.

20. It is the duty of a Court to identify the nugget of truth. We do so.

21. A co-joint reading of the testimony of PW-3, PW-4 and PW-8 brings out that when the crane in which the 5 accused were seated was parked outside Dharamvir‟s shop, he objected and something happened which made the accused get down from the crane. It could be a hard and offensive word used by Dharamvir? There was a scuffle and Rajesh and Rajender rushed to the rescue of Dharamvir. It became 5 accused versus 3 i.e. Dharamvir, Rajesh and Rajender. Randhir picked up a belcha lying nearby and assaulted Dharamvir who warded off the attack using his right hand and this explains the 3 bruises on the posterior surface of the distal arm of right forearm. Somebody from the side of the defence was armed with a sharp edged

weapon and a blunt weapon and used the same and this explains the injuries in the nature of incised wound on Randhir Singh and clear lacerated wounds on Ram Kumar and Harish Chander. Around the same time and may be a split second prior thereto was the knife used by accused Daya Singh to cause the injuries on Rajesh and the solitary stab injury on the thigh of Dharamvir.

22. The learned Trial Judge is therefore correct in not fastening liability on the 3 co-accused for the injuries caused to Dharamvir and Rajesh.

23. But, as the evidence stares us in the face, it would be difficult to make liable Randhir for the acts of Daya Singh inasmuch as the evidence probablizes that in a mutual fight, without there being any specific common intention of any accused, other than the intention to fight, matters went out of control and thus it would be each accused to himself and God above.

24. The conflicting role of Randhir to whom no act of exhortation was attributed by PW-3 and PW-8 made improvement vis-à-vis what he told to the police as regards Randhir‟s role would entitle Randhir to a benefit of doubt on the issue of his having given any exhortation to Daya Singh. Thus, Randhir would be liable for his individual acts of hitting Dharamvir with a belcha.

25. As regards Daya Singh, his acts, keeping in view that the opposite side has also used a sharp edged weapon and a blunt weapon, factoring in that Daya Singh gave only 1 stab blow on the thigh of the deceased and injured Rajesh 5 times, it becomes evident that Daya Singh had intended to use the knife to injure the opposite party and had no intention to cause anybody‟s death. He would thus be liable for such offences as

stand attracted for causing injuries, intending to cause them, and using a knife.

26. Qua the injury to Dharamvir, the situs thereof i.e. the right thigh, a non-vital part of the body would not attract even the liability of fastening knowledge upon Daya Kishan of knowing that his act was likely to cause the death of Dharamvir. But for the unfortunate circumstance of the femur artery being cut, Dharamvir did not receive any fatal injury. What proved to be the fatal injury was the unfortunate one.

27. Though the knife used by Daya Singh has not been recovered but that does not mean that the Court has no idea whether Daya Singh used a dangerous weapon. The post- mortem report of Dharamvir shows 2 injuries on the thigh and both are the result of a single blow. The situs of the 2 injuries show that a knife pierced from the outer thigh and came out on the other side and the resultant internal injury not only cut the thigh muscles but even the femur artery. Thus, for the injury caused to Dharamvir the offence committed by Daya Singh would be the offence punishable under Section 326 IPC i.e. voluntary causing grievous hurt by means of a dangerous weapon.

28. For the injuries caused to Rajesh, who was not the object of the assault, it cannot be said that Daya Singh intended to cause the death of Rajesh, nor are the injuries of a kind where it can be said that the act was backed by such intention or knowledge that had death been caused, Daya Singh would have been guilty of culpable homicide not amounting to murder. Qua the injuries caused to Rajesh the acts of Daya Singh constitute the offence punishable under Section 326 IPC i.e. voluntary causing grievous hurt by dangerous weapon.

29. We thus set aside the impugned judgment and order dated 27.1.1999 and acquit appellants for the offence punishable under Section 302 and 307 IPC. Appellant Randhir is convicted for the offence punishable under Section 323 IPC for the injuries caused by him to Dharamvir. Appellant Daya Singh is convicted for the offence punishable under Section 326 IPC for the injuries caused to Dharamvir and Rajesh.

30. Randhir has undergone a sentence of 8 months and 13 days and Daya Singh has undergone a sentence of 9 months as per the nominal roll and report dated 1.4.2011 received from the Superintendent Central Jail Tihar. The two have no previous criminal record and none after the unfortunate incident which took place on 23.7.1986. More than 24 years have gone by. The youth in the two which had roused their passions and anger in the year 1986 has lost its vigour and the two are passed their middle age. Life has mellowed down the two. In the decision reported as AIR 1973 SC 2418 Ghisa Vs. State of UP, the Supreme Court permitted the long lapse of time between an offence and date of decision of the appeal to be taken in as a factor to levy an appropriate sentence.

31. Keeping in view the aforesaid circumstance we direct that the appropriate sentence to be imposed upon the appellants would be to direct that the two should suffer imprisonment for the period already undergone but should compensate the legal heirs of the deceased and Rajesh and for which we direct that appellant Randhir would pay a sum of `25,000/- to the legal heirs of deceased Dharamvir and appellant Daya Singh would pay a sum of `50,000/- to the legal heirs of deceased Dharamvir and `25,000/- to Rajesh. The amounts are by way of compensation.

32. In view of the sentence imposed upon the appellants

the bail bonds and surety bonds furnished by them are discharged.

(SURESH KAIT) JUDGE

(PRADEEP NANDRAJOG) JUDGE

APRIL 07, 2011 dk/mm