Sanjay vs The State
2011 Latest Caselaw 525 Del

          IN THE HIGH COURT OF DELHI: NEW DELHI

+              CRL. APPEAL 232/2009

%              Judgment decided on: 31st January, 2011

SANJAY                                            .....APPELLANT

                       Through: Mr. A. J. Bhambhani & Ms.
                                Lakshita Seth, Advs.

                            Versus

THE STATE                                      .....RESPONDENT

                            Through: Mr. Arvind Gupta, APP


Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers              No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?                 No

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

A.K. PATHAK, J. (Oral)

1. Appellant has been convicted under Sections 325/304-

II IPC by the Trial Court; sentenced to undergo rigorous

imprisonment for six years with fine of `10,000/- and in

default of payment of fine to undergo rigorous imprisonment

for three months under Section 304-II IPC; sentenced to

rigorous imprisonment for three years with fine of `5,000/-

and in default of payment of fine to undergo rigorous

imprisonment for two months under Section 325 IPC. Both

the sentences have been directed to run concurrently.

2. It is this judgment which is under challenge in this

Appeal.

3. Factual matrix as unfolded is that Shri. Pal Krishan

(PW1) was the owner of two buses bearing registration Nos.

DL1P-A-5062 and DL1P-A-5663. Appellant was driver of bus

No. DL1P-A-5663, while Naveen (PW2), brother of deceased

Praveen, was working as a driver on bus bearing registration

No. DL1P-A-5062. Deceased was working as conductor on

bus bearing registration No. DL1P-A-5663 of which appellant

was driver. Both these buses used to be parked in the night

at Jheel Chowk. On 24th August, 2006, buses were parked

at Jheel Chowk. After taking meals, appellant, deceased and

Naveen were resting on the roof of the bus. At about 1:30

AM, a quarrel broke out between the appellant and deceased

over the settlement of account. Appellant commanded that

money be paid to him immediately. When deceased told

appellant that he will pay money later, appellant pushed him

from the roof of the bus. Deceased fell down on the ground,

sustained fatal injuries on his head and back to which he

succumbed at the spot itself. When Naveen (PW2) asked the

appellant as to why he had pushed his brother, appellant

pushed him also from the roof of bus. PW2 fell down on the

ground and sustained grievous injuries.

4. Charge under Section 302 IPC was framed against the

appellant on 2nd December, 2006 for causing death of

Praveen. Charge under Section 325 IPC was also framed

against him same day for causing grievous injuries on the

person of Naveen Kumar. Appellant pleaded not guilty to the

charges framed against him and claimed trial.

5. After the prosecution closed its evidence, statement

under Section 313 Cr.P.C. of the appellant was recorded

wherein entire incriminating material, which had come on

record, was put to him. Case of appellant is that of simple

denial. He claimed that he had been falsely implicated. He

did not lead any evidence in his defense.

6. PW2 Naveen Kumar is the injured. He had also

witnessed the appellant pushing the deceased from the bus.

PW2 has fully supported the prosecution story. His

testimony has been found trustworthy and reliable by the

Trial Court to conclude that it is the appellant, who had

pushed the deceased from the roof of the bus resulting head

injuries to him, as a consequence whereof he died at the spot

itself; further appellant had caused grievous injuries on the

person of PW2 Naveen by pushing him from the roof of the

bus. Keeping in mind the fact that appellant, deceased and

the injured were friends, had taken liquor and meals

together, quarrel broke out between the appellant and

deceased all of a sudden, Trial Court was of the view that

intention on the part of the appellant to cause culpable

homicide of the deceased cannot be inferred. However, it

was held that knowledge on the part of the appellant that by

his act of pushing the deceased from the roof of the bus was

likely to result in his death cannot be ruled out. Throwing a

person from the roof of a bus was a dangerous act and

cannot be termed as accidental. Appellant had pushed the

deceased in order to teach him a lesson since he had failed to

handover the money on that day itself. This aspect was

further strengthened from the fact that when PW2 Naveen

Kumar confronted the appellant as to why he had thrown his

brother (deceased) from the roof of the bus, appellant pushed

him down also. The repetition of this act ruled out the

possibility of appellant accidentally pushing the deceased

from the roof of the bus. Trial Court concluded that since

there was no intention or mens rea brought out from the

evidence led on record, no case was made out under Section

302 IPC as also 304-I IPC. Thus, appellant was convicted

under Section 304-II IPC for causing death of deceased

Praveen. He was also convicted under Section 325 IPC for

causing grievous injuries on the person of Naveen by

pushing him from the roof of the bus.

7. I have carefully perused the statement of PW2 and find

that he has fully corroborated the prosecution story. He has

categorically deposed that after the buses were parked at

Jheel Chowk, he along with appellant and deceased had

taken meals. Thereafter they were resting on the roof of the

bus. A quarrel took place between the appellant and

deceased on the point of payment of money. Deceased told

the appellant that he would pay him later on. However,

appellant was adamant that money should be paid to him

immediately and when deceased expressed his inability to do

so, appellant pushed him from the roof of the bus. Deceased

fell down on the ground and sustained head injuries to

which he succumbed at the spot itself. When he asked

appellant as to why he had pushed his brother down,

appellant pushed him also. He fell down on the ground and

sustained grievous injuries. His this version has remained

unshattered in his cross-examination. No material

discrepancy could be pointed out by the learned counsel for

the appellant in his testimony during the course of

arguments. The version given by PW2, while in witness box,

is in conformity with his statement contained in the FIR. In

my view, Trial Court has been right in accepting his

testimony to conclude that it is the appellant who had

pushed the deceased from the roof of the bus resulting in his

death, after a quarrel broke out between them over the

payment of money; when PW2 confronted him as to why he

had pushed his brother, appellant pushed him also from the

roof of the bus resulting grievous injuries to him.

8. As per postmortem report Ex. PA2, following injuries

were sustained by the deceased:

"external injuries:-Laceration-avulsion 8 cm x 5 cm over right fronto parieto temporal region. Grazed abrasion 3 x 2 cm over lateral aspect of left knee. Internal examination:-Head- sub scalp bruising Bi-parietal & both temporal & part of right frontal regions fracture

reparation medical part of right coronal suture, left coronal suture and fissure, fracture left temporal and part of left parietal bone. Meninges infort SAH both parietal and left temporal lobes blood and clots also present over bone of skull middle cranial fossa."

Doctor has opined that cause of death was on account of

cranio cerebral injuries as a result of blunt force impact,

which was possible due to falling from height. Possibility of

knock down from the roof of the bus, as alleged, cannot be

ruled out. Cranio cerebral injury was sufficient to cause

death in ordinary course of nature. Medical evidence, thus,

corroborates the testimony of PW2 Naveen that deceased, on

account of having been pushed from the roof of the bus by

the appellant, fell down on the ground and sustained injuries

on his head which ultimately caused his death.

9. MLC Ex. PA1 of Naveen shows that he had sustained

interior compressed fracture of L-2 vertebra. Doctor has

opined the injuries of PW2 as grievous. From the evidence

adduced on record, it has been proved that by his acts

appellant had caused grievous injuries on the person of PW2

Naveen.

10. Learned counsel for the appellant has vehemently

contended that from the MLCs of injured and appellant it is

clear that they had consumed liquor. PW2 has nowhere

stated that there was previous enmity between him, deceased

and the appellant. Appellant, deceased and the injured were

resting on the roof of the bus after taking meals. They were

under the influence of liquor. Appellant had pushed the

deceased after a verbal quarrel took place between them. In

these facts, at best, the act of appellant in pushing the

deceased and injured from the roof of the bus can be termed

as his rash and negligent act. It was not expected by the

appellant to have realized or comprehended that a person

can die due to falling from the roof of the bus which may be

about 15 feet high. In nutshell, his contention is that

appellant cannot be held guilty of committing the offence

punishable under Section 304-II IPC as there was no

knowledge on his part that by his act he would have caused

death of deceased. According to the learned counsel only

ingredients of Section 304-A are attracted in this case.

11. I do not find the above contention of learned counsel

much convincing. The act of the appellant, by no stretch of

imagination, can be termed as rash and negligent act on his

part. A quarrel had taken place between the deceased and

appellant on the question of payment of some money.

Appellant commanded the deceased to pay money then and

there and when this was not complied, he pushed the

deceased from the roof of the bus. When PW2 Naveen asked

him as to why he had pushed his brother down, then

appellant pushed him also. His this act clearly shows that it

was not a mere rash and negligent act on his part, even

though he may not be having any intention to cause death of

the deceased and grievous injuries to the injured. Repetition

of similar act in succession negates the arguments of his

counsel that pushing of deceased from the bus was nothing

but his rash and negligent act.

12. In Shankar Narayan Bhadolkar vs. State of Maharashtra, (2005) 9 Supreme Court Cases 71, it has been held as under:

"18. Coming to the plea of the applicability of Section 304-A, it is to be noted that the said provision relates to death caused by negligence. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision relates to offences outside the range of Sections 299 and 300 IPC. It applies only to such acts which are rash and negligent and are directly the cause of death of another person. Rashness and negligence are essential elements under Section 304A IPC. It carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder in Section 300 IPC. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A IPC has to make room for the graver and more serious charge of culpable homicide.

19. In order to be encompassed by the protection under Section 304-A there should be neither intention nor knowledge to cause death. When any of these two elements is found to be present, Section 304-A has no application. The accused-appellant not only picked up the gun, unlocked it for use but also put the cartridges and fired from very close range, aiming at a very vital part of the body."

(emphasis supplied)

13. Similar view has been expressed in Girish Singh vs.

State of Uttaranchal , (2008) 15 Supreme Court Cases

330. In the said case accused and deceased were going on a

hill road, an altercation took place between them on hill

road, accused suddenly pushed deceased from the road as a

result of which deceased fell down from the hill and

sustained injuries to which he later on succumbed in the

hospital. In the above facts, Supreme Court has held that

the offence punishable under Section 304-II IPC was

disclosed and the ingredients of offence punishable under

Section 304-A were not attracted.

14. In this case, knowledge on the part of appellant that

his act of throwing the deceased from the roof of the bus may

result in his death can safely be inferred. A normal prudent

person cannot feign ignorance of the fact that in case a

person is pushed down from the height of about 12 feet it

can result in head injury leading to death of such a person.

Section 304-II of the Code envisages that whoever commits

culpable homicide not amounting to murder shall be

punished with imprisonment of either description for a term

which may extend to ten years, or with fine, or with both, if

the act is done with the knowledge that it is likely to cause

death, but without any intention to cause death, or to cause

such bodily injury as is likely to cause death. Thus, in my

view, Trial Court was right in convicting the appellant under

Section 304-II for causing death of Parveen.

15. In view of the above discussion, I do not find any

illegality or perversity in the impugned judgment of

conviction. Accordingly, conviction of the appellant under

Section 304-II IPC is upheld. Learned counsel for the

appellant has next contended that appellant is aged about 30

years; he is not involved in any other case; he is not a

previous convict; he has two minor children aged about 2½

years and 4 years respectively; old aged ailing parents of the

appellant are also wholly dependent upon him. Thus, it is

prayed that sentence of the appellant be reduced to the

period already undergone by him, which is by now

approximately 4 years. Keeping in mind the totality of the

circumstances, sentence of the appellant is reduced to 4½

years from 6 years. Sentence of fine is maintained as it is.

16. Appeal is disposed of in the above terms.

A.K. PATHAK, J.

JANUARY 31, 2011 rb