Ramchander vs The State (Govt Of Nct)
2012 Latest Caselaw 5252 Del

$ R14
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       DECIDED ON : 4th September, 2012

+                             CRL.A.682/2009

       RAMCHANDER                                     ....Appellant
              Through :             Mr.A.J.Bhambhani,      Advocate  with
                                    Ms.Lakshita Sethi, Ms.Bhavita Modi &
                                    Ms.Nisha Bhambhani, Advocates.

                                    versus


       THE STATE (GOVT. OF NCT)            ....Respondent

Through : Mr.Sanjay Lao, APP.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE S.P.GARG

SANJIV KHANNA, J. (Open Court)

1. Ram Chander has preferred this appeal against his conviction

by impugned judgment of the Additional Sessions Judge dated 24.07.2008

under Sections 302 and 307 of Indian Penal Code, 1860 (IPC) for murder

of Dhunu Lal and for having caused injuries to Kamla, Ram Prasad and

Makdum. By the order of sentence dated 31.07.2008, the appellant has

been sentenced to Imprisonment for life for the offence under Section 302

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

of `5,000/- for the offence under Section 307 IPC. In case of default for

payment of fine of `5,000/-, the appellant is to undergo Simple

Imprisonment for one month.

2. Homicidal death of Dhunu Lal is established from the

evidence of PW-16 (Dr.Kulbhushan Goel) who had conducted post-

mortem of the body of Dhunu Lal. There were five external injuries on the

dead body. Injury No.1 consisted of lacerated penetrative wound over the

right side base of the neck of the size 3.4 cm X 1.8 cm X 2 cm with

contused margins and which had abraded area 3 X 1.25 cm. The wound

had pierced the soft tissues at the base of the right side of the neck and

went downwards at an angular route to the right side of the chest cavity

and had entered into the upper lobe of the right lung and came out from

the middle lobe anteriorly making an exit from the lung. It fractured the

sternum at fourth rib site on the right side and the third and fourth ribs.

The second injury was a lacerated penetrative wound 1.25 X 0.8 cm just

on the medial end of the left clavicle with contused margins and which

had an abraded area of 3.5 X 1.25 cm and had fractured the underlying

clavicle bone at the medial end and entered into the left chest cavity

taking a downward and angular route which had pierced the left lung and

fractured 1 to 6 ribs and costal cartilages. The death was caused due to

asphyxia and hemorrhagic shock consequent upon bilateral chest and lung

injuries resulting into haemothorax. The injuries No.1 and 2 were caused

by a moderately heavy weapon with a cutting edge which was not so

sharp and were sufficient to cause death in ordinary course of nature

individually or collectively. Injuries No.3 to 5 were caused by a blunt

force impact.

3. Death of Dhunu Lal is also proved from the statements of

PW-5 (Ram Prasad), PW-2 (Kamla) and PW-13 (Mukesh Kumar). Their

statements have been referred to below while dealing with the contentions

whether or not the appellant had caused the said injuries and has been

rightly convicted for the offences under Section 302 and 307 IPC.

4. PW-2 (Kamla), PW-4 (Makdum) and PW-5 (Ram Prasad)

were injured in the said occurrence allegedly by the appellant. They are

the eye witnesses as per the prosecution case. PW-4 (Makdum) is the

father of the appellant. In his statement, he had stated that on 22.07.2004

he was present with the appellant in his jhuggi. At about 11.00 P.M. there

was a quarrel between him and the appellant on the question whether the

appellant‟s wife should come back to Delhi. The appellant became angry

and took out a „getti', which is used for digging earth. He hit „getti‟ on the

head of PW-4 (his father) and also hit his mother with it. Thereafter, PW-

4 did not support the prosecution‟s case and did not state that the appellant

had caused injuries on Dhunu Lal. PW-4 had stated that Dhunu Lal, the

deceased who was a watchman, was sitting on the statue of George-V in

the Coronation Park. He had stated that he was in his jhuggi and outside

of the boundary wall of the statue of George-V. Dhunu Lal and his wife

were inside the park. He however, identified the „getti‟ which was used to

cause injuries as Ex.P1. He was cross-examined by the Additional Public

Prosecutor but PW4 had stated that he had not told the police that the

appellant had given „getti‟ blows on Dhunu Lal (deceased), his wife

Kamla (PW-2) and Ram Prasad (PW-4) in his presence. He however,

admitted that the Dhunu Lal died on the same night, while he was inside

the boundary wall, after sustaining injuries. In the cross-examination on

behalf of the appellant, PW-4 had stated that he had not seen the appellant

causing injury with „getti‟ to deceased Dhunu Lal, his wife Kamla and

Ram Prasad.

5. PW-2 (Kamla) had stated that on 21.07.2004 at about 11.00

P.M. or midnight she along with her brother Ram Parsad, her two sons-

Rekesh and Mukesh and her husband Dhunu Lal was present near the

statue of George-V, in the Coronation Park, Delhi. Her husband was a

watchman. Makdum and the appellant Ram Parsad were living in a jhuggi

near the statue of George-V, Coronatin Park, Delhi and were quarrelling

with each other whether the wife of the appellant Ram Çhander should be

brought from her parents‟ house. She and her husband tried to pacify and

make the appellant understand but on this the accused took out the „getti‟

and hit the head of her husband. The appellant had also given three „getti‟

blows on her husband‟s head, neck and other parts of body. Her husband

died there. He hit the „getti‟ on lower left side of her abdomen and on the

left side of her lower eye brow. The appellant also hit „getti‟ on the head

of her brother, Ram Parsad. Her son Rakesh was also hit on the upper part

of his back with the „getti‟. They started running helter skelter to save

themselves and informed the police on telephone No.100. The police

came there and removed them i.e. she (PW-2), brother Ram Parsad (PW-

5), son Rakesh and father of the appellant, Makdum (PW-4) to the

hospital. She identified the „getti‟ (Ex.P1).

6. She was cross-examined but there is nothing in the cross-

examination to suggest that statement made by PW-2 in her examination-

in-chief was not creditable or trustworthy. As noticed below, PW-2 was

one of the injured persons and the injuries suffered by her have been

proved in the MLC recorded by PW-11 (Dr.D.K.Sinha). We shall refer to

the MLCs together subsequently.

7. PW-5 (Ram Parsad) has made a similar statement. There was

a quarrel between the appellant and the deceased Dhunu Lal on the day of

occurrence in July, 2004. At that time, he was sleeping on the chabutra of

the statue of the English King. He woke up at about 11.30 P.M. or

midnight on hearing the quarrel. He intervened but was hit on his head by

someone. He fell down on the ground and became unconscious. He

regained consciousness in the hospital. Later on, he came to know Dhunu

Lal died in that quarrel. He was cross-examined by the Additional Public

Prosecutor. In the cross-examination, he accepted that Makdum, father of

the appellant along with his wife and sons was living in jhuggi in the

Coronation Park. He also stated that the appellant used to ply a rickshaw

sometimes and on other occasions, he used to do labour work. He testified

that at about 11.30 P.M., the appellant had caused injuries with the „getti‟

on the person of Makdum (PW-4) and on the person of his sister (PW-2)

and Dhunu Lal (the deceased).

8. PW-11 (Dr.D.K.Sinha) has proved MLCs bearing Nos.6713,

6714 and 6716 issued by the Casualty Ward, Hindu Rao Hospital, Delhi

which were marked Ex.PW-11/A to Ex.PW-11/C, respectively and were

recorded on 22.07.2004 at 0.45 A.M. i.e. soon after midnight. They refer

to history of assault and record details of the injuries suffered by PW-2,

PW-4 and PW-5. Injuries suffered have been discussed below, while

examining the conviction under Section 307 IPC.

9. The post-mortem report of the deceased Dhunu Lal (Ex.PW-

16/A) refers to five external injuries suffered by the deceased including

the two lacerated penetrating wounds which have been stated above. The

injuries have been specifically mentioned in the statement of PW-16. It is

opined that the time since death was about 14 hours. The post-mortem

was done on 22.07.2004 at 01.20 P.M. The post-mortem report (Ex.PW-

16/A) and the MLCs (Ex.PW-11/A to Ex.PW-11/C) corroborated the

statements made by PW-2, PW-4 and PW-5 about the occurrence and the

time of the occurrence.

10. PW-4 is the father of the appellant. He had admitted to the

presence of the appellant at the spot and the fact that appellant hit „getti‟

on his head. He had however, denied that he had seen the appellant hitting

Dhunu Lal (the deceased), PW-2 (Kamla) and PW-5 (Ram Parsad). PW-4

is the father of the appellant and his attempt to save and absolve his son,

the appellant, for the injuries suffered by PW-2, PW-5 and Dhunu Lal is

apparent and can be explained. PW-2, PW-4 and PW-5 had gone to the

hospital together and were treated in the same hospital. They had all

suffered external injuries in the same occurrence. They were taken to the

hospital in 659 PCR-C-61 by HC Ram Naresh Singh. Statements and

testimonies of PW-2 and PW-5 are trustworthy and creditable.

11. PW-12 (HC Hoshiar Singh) in his statement has mentioned

that he had received a telephone from one Ramesh who had reported that

chowkidar named Dhunu Lal had been beaten up by someone in a park

near Yuvraj Nagar Colony, Dhir Pur village, Delhi. PW-1 (HC Prem Dutt

Sharma) had recorded FIR No.302/04 (Ex.PW-1/A) under Section

302/307 IPC on the basis of rukka sent by the Insp.P.C.Maan. PW-15 (SI

Bakshish Singh) had stated that he was posted at police station Mukherjee

Nagar and was on emergency duty from 08.00 P.M. to 08.00 A.M. on

21/22.07.2004. DD No.64B was recorded at 11.45 P.M. by PW-10

(Const.Randhir Singh) containing information that somebody had killed

Sonnu Lal of Dhir Pur village. He accordingly reached the spot and saw a

person lying dead on the chabutara. PW-21 SHO Insp.P.C.Maan (Retd.)

was also present with staff. PW-21 (Insp.P.C.Maan) has stated that he had

gone to the spot after handing over DD No.64B to SI Bakshish Singh.

Dead body of Dhunu Lal was there. Injured Kamla (PW-2), Makdum

(PW-4) and Ram Parsad (PW-5) were taken to the hospital in the PCR

van. He reached the hospital after leaving the staff at the spot and

collected the MLCs of the injured persons. He also recorded statement of

Kamla (PW-2) and then made an endorsement (Ex.PW-21/A) on the

statement and prepared the rukka, which was sent to the police station and

FIR (Ex.PW-1/A) was registered. The appellant was arrested on

22.07.2004 at about 04.15 P.M. He was apprehended from village

Dhirpur, Delhi. He made a disclosure statement (Ex.PW-19/E) and „getti‟

was recovered from under a Kikar Tree in the Coronation Park. The „getti‟

was blood stained. It was seized vide memo Ex.PW-19/C. The clothes of

the accused which he was wearing having blood stains were also seized

vide memo Ex.PW-19/D.

12. The FSL reports are Ex.PW-17/A and Ex.PW-17/B and have

been proved by Naresh Kumar, Sr.Scientific Assistant, Biology, FSL

Rohini, Delhi. As per the said reports human blood was detected on

„getti‟, shirts and pants, which were seized/recovered from the appellant

on the basis of the statement made by him. Blood was of human origin but

there was no reaction and blood group could not ascertained on the „getti‟

and shirt. In the case of pants, the blood group was ascertained as „AB‟.

The blood group of the deceased as per the FSL report Ex.PW-17/B was

„AB‟.

13. From the aforesaid evidence, we are of the view that the

eyewitnesses PW-2 and PW-5 established the case of the prosecution

beyond doubt. PW-4, the father of the appellant has partly supported the

prosecution‟s case. The MLCs and the post-mortem report (Ex.PW-11/A

to Ex.PW-11/C and PW-16/A) supported and corroborated the

prosecution version and the statements made by PW-2 and PW-5.

14. Learned counsel for the appellant had submitted that the

appellant did not have intention or desire to commit the offence under

Section 302 IPC. He has submitted that the allegations made by the

prosecution witnesses especially by PW-4 (Makdum), suggest that the

offence would fall under Section 304 part-II. He has relied upon the

decision of the Supreme Court in the case of „Vineet Kumar Chauhan vs.

State of Uttar Pradesh‟ (2007) 14 SCC 660. In the said decision reference

has been made to the decisions of the Supreme Court in „Virsa Singh vs.

State of Punjab‟ AIR 1958 SC 465 and „Rajwant Singh vs. State of

Kerala‟ AIR 1966 SC 1874 and the distinction between the two Sections

has been elucidated as under:

"16. The academic distinction between "murder" and "culpable homicide not amounting to murder" has been vividly brought out by this Court in State of A.P.v. Rayavarapu Punnayya. It has been observed that the safest way of approach to the interpretation and application of Sections 299 and 300 IPC is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of Sections 299 and 300 IPC and drawing support from the decisions of this Court in Virsa

Singh v. State of Punjab and Rajwant Singh v. State of Kerala, speaking for the Court, R.S.Sarkaria, J. neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the Court said that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 IPC, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304 IPC. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative. "

15. In the case of Vineet Kumar Chauhan (supra), the Supreme

Court noticed that there was no enmity between the parties and the

prosecution had not alleged that before the occurrence the accused had

premeditated the crime of murder. A sudden quarrel had taken between

the accused and the son of the deceased and on account of heat of passion,

the accused went home, took out his father‟s revolver and started firing

indiscriminately, and unfortunately one of the bullets hit the deceased on

his chin and he died.

16. In the present case, we have referred to the injuries which

were suffered by the deceased Dhunu Lal. The post-mortem report

(Ex.PW-16/A), in the present case, highlights five injuries and details the

first two injuries which were sufficient to cause death in the ordinary

course of nature, individually and collectively. It is not a case of a single

or one blow but multiple blows. PW-2 (Kamla) had stated that the

appellant had given three blows with „getti‟ on the body and vital parts of

the deceased Dhunu Lal. In addition, we find that injuries were also

suffered by PW-2 (Kamla), PW-5 (Ram Parsad) and PW-4 (Makdum).

There was no provocation by the deceased, PW-2 or PW-5. The appellant

had not sustained any injury. The deceased had died at the spot itself. The

blows in question were by a sharp edged weapon and had caused the

external and the internal injuries, which have been indicated and

mentioned above. In the present case, we are satisfied that the intention to

cause injuries at vital parts of the body was present. The appellant has

been rightly convicted under Section 302 IPC.

17. The second issue pertains to the injuries suffered by PW-2,

PW-4 and PW-5 and whether the conviction of the appellant under

Section 307 IPC is justified. The MLCs (Ex.PW-11/A to Ex.PW-11/C)

record that the injuries suffered by PW-5 (Ram Parsad) were dangerous.

He had suffered a lacerated wound over head around the right paritorial

region of about 6 cm. X 2 cm. The bone was exposed and there was

bleeding. It is mentioned that the patient was drowsy and was not

responding to visible command. However, the MLC does not show that

Ram Parsad was admitted in the hospital for treatment or observation.

PW-4 (Makdum) had received wound over right peritorial temporal region

on the head and was bleeding. In addition, he had a lacerated wound over

the left forearm which was also bleeding. There was swelling on the left

arm upper part. The patient was conscious, co-operative and oriented.

PW-2 (Kamla) had a lacerated wound over the forehead near the left eye

and was bleeding. The wound has been described as simple. It is apparent

that the aforesaid three witnesses were discharged from the hospital after

first aid and were not admitted. Considering the nature of injuries suffered

by three of them, we feel that the conviction of the appellant under

Section 307 IPC is not correct and he is convicted under Section 325 IPC.

The conviction of the appellant, to this extent, stands modified.

18. For the offence under Section 325 IPC, the appellant will

undergo rigorous imprisonment for a period of three years and shall also

pay a fine of `5,000/-. In default of payment of fine, he will further

undergo simple imprisonment for one month. We confirm the sentence of

imprisonment for life and fine of `5,000/- for the offence under Section

302 IPC. In default of payment of fine, the appellant will undergo simple

imprisonment for one month.

19. The appeal is disposed of in the above terms.

(SANJIV KHANNA) JUDGE

(S.P.GARG) JUDGE SEPTEMBER 04, 2012 tr