Satpal vs State
2012 Latest Caselaw 5550 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CRIMINAL APPEAL No. 385/1998

                                   Reserved on: 30th July, 2012
%                               Date of Decision: 17th September, 2012

SATPAL                                           ....Appellant
                      Through Mr. B.R. Bakshi, Advocate.

                       Versus

STATE                                          ...Respondent

Through Mr. Sanjay Lao, APP for the State.

CORAM:

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

SANJIV KHANNA, J.:

The appellant-Satpal has been convicted under Section 302 of the Indian Penal Code, 1860 (IPC, for short) for having committed murder of Ayub by hitting him with a stone on 9th December, 1987. The impugned judgment passed by the learned Additional Session Judge dated 12th August 1998 and order of sentence dated 17th August, 1998, in S.C. No. 72/1996 arise out of FIR No. 238/1987, Police Station, Seema Puri.

2. The case of the prosecution in brief is that on 9th December, 1987 the deceased Ayub at 3.30 p.m. was at the water tap in the gali and had put his bucket under the tap for filling water. Ram Bharose, a co- accused, who used to reside nearby asked Ayub to remove his bucket. Ram Bharose threw the bucket of Ayub and put his own bucket under the

tap. There was a fight between Ayub and Ram Bharose. On hearing noise, many persons from the public assembled. Habibullah, PW-5 and his wife Zarina Begum, PW-3 came forward to separate them. The deceased Ayub was living with them and Ayub was brother of Zarina. In the meanwhile, Satpal arrived at the spot and he threw a stone at the head of the Ayub. Ayub fell down unconscious and blood started oozing out from his head. Habibullah, PW5 took him to the hospital where he died on 10th December, 1987 at 10.20 p.m.

3. Homicidal death of Ayub stands proved and established by PW1, Dr. V.P. Arya. He opined that on 9th December, 1987 at around 4.50 p.m., Ayub, aged 27 years, was examined by him. He had sustained injury on left parietal region of the skull measuring 1x3 cm. The said injury was caused by a blunt weapon. The MLC has been proved and marked as Exhibit PW1/A. In his cross-examination, he had stated that the appellant Satpal was brought in an injured state and was examined by another doctor Dr. J.S. Purty. He had contusion on the forehead 1 ½ inches in size. The MLC of the appellant was exhibited as PW-1/DA. The post mortem of Ayub was conducted by Dr. George Paul, PW-2. He had stated that the head region of the Ayub was shaved on the left side and blood was coming out from the nostrils and mouth. The deceased had number of minor injuries and one stitched lacerated wound 3 cm with abrasion around in 4x2.5 cm present in the left temporo-parieital region of scalp. The cause of death was due to extensive cranio-cerebral damage as a result of the injury on the head by a blunt object.

4. Though not argued on behalf of the appellant, the Death Summary Report Ex.PW 18/C of Lok Nayak Jai Prakash hospital records that the patient i.e. the deceased was admitted to the said hospital on 9th December, 1987 at 6 p.m. and expired on 10 th December, 1987 at 10.20 p.m. At the time of admission the patient was unconscious, but there was slight reaction to light. He expired due to sudden cardio respiratory arrest caused by head injury. Statement of PW-2 with regard to the cause of death as per the post mortem report conducted by him, however, remained unchallenged.

5. The next question and issue is whether the appellant is responsible and had caused the said injury. The prosecution in this regard relies upon statements of PW-3 Zarina Begum and PW-5 Habibullah. They claim that they were the eye witnesses. Ayub was the real brother of PW-3 and was residing with PW-3 and PW-5. As per their testimonies, Ayub used to work as a tailor with PW-5. They have affirmed that Ayub took a bucket and went to take water from the government tap at the corner of the street. PW-3 and PW-5 have stated that the tap was visible to them from the place where they were standing, i.e., outside the house, in the street. However, PW-14, SI Amrit Kumar, who was also the Investigating Officer of the case, in his cross-examination has accepted that the spot was not visible from the house of PW-3, Zarina Begum and PW 5 Habbibullah as there were various other houses in between. The learned trial court has negated and not accepted the testimony of PW-14 and treated it as a minor deviation and immaterial. This, to our mind, is not correct. The site plan and measurement was prepared by PW-6,

Inspector Davinder Singh of Crime Branch. When cross-examined, he had had stated that he did not remember whether house of PW-3 and PW- 5 was visible from the place of occurrence. We have also in this connection examined the site scale plan filed by the prosecution marked Exhibit PW-6/A. Place A in the site plan is indicated as the place of the water tap and B the place where Ram Bharose had caught hold of Ayub and Satpal had attacked him with a stone. The site plan mentions name of one Parimal, who at point C had witnessed the occurrence. In the said plan, point D is stated to be the location from where PW-3 and PW-5 had witnessed the occurrence. Point D is outside the house of PW3 and PW5. A perusal of the said site plan would clearly show that there were properties or houses in between and it would not have been possible for PW-3 and PW-5 to witness the actual occurrence at the tap from point D. Thus, there is grave doubt and suspicion whether the PW-3 and PW-5 in view of the site plan had actually witnessed the commission of the offence from point D. However, it is possible that the PW-3 and PW-5 might have immediately reached place of the occurrence as their residence was not far off from point A but after the actual occurrence. They might have noticed that the Ram Bharose and the appellant herein were present and/or were running away. It is equally plausible after they heard noise, they may have come out of their house and proceeded to the place of occurrence and both of them had seen the actual act of stone throwing. The question is which of the situations is established and proved.

6. PW-3, Zarine Begum in her examination-in-chief had supported the prosecution version completely including the entire episode of the fight between Ram Bharose and Ayub and then how the appellant picked up the stone, which was lying there, and hit the same on the head of Ayub. However, when cross-examined, she had stated as under:-

"The tap is 10-12 paces away from the place, outside our house, where we were standing. Within 5 minutes of quarrel, I reached the spot to resolve the dispute. 20-25 people collected at the time of occurrence. Because of the crowd, I could not save my brother. Accused Satpal hit the stone on the head of the Ayub. Earlier I did not know the accused. I cannot recognize him by face. I cannot say that whether the accused Satpal was present there or not, when I went to save my brother. I do not recognize him. About stone hitting incident by the accused Satpal, I got the information from the place of incident. The name of the accused as Satpal was informed by the people. I got to know name of Satpal after the incident. After the stone hit, Ayub became unconscious and fell on the ground and I was taking care of him so I cannot say whether accused Satpal stayed for some time or ran away from the place of incident. Because of the same reason I cannot say whether Ram Bharose stayed for some time or ran away from the place of incident. My husband and other people from the street took the Ayub to the hospital. After the Ayub was taken to hospital, I have not seen any police man at the place of incident. I met the police officer in the hospital and my statement was recorded in the hospital. My second statement was recorded when I returned from my village. I informed the police in my statement that Ayub went to the fetch the water from the tap. At that time I was standing outside my house and my husband was standing on the road. (Confronted with the portion A to A of exhibit PW3/DA where only it is mentioned that at the relevant time the witness and her husband were standing in the lane outside their house). It is incorrect that the place where I was standing was 1000-1500 feet away from the tap. It is also incorrect to state that I could not hear the conversation happening near the tap from where I was standing. It is also incorrect that I could not see the tap from where I was

standing. It is incorrect that I did not see the incident from where I was standing. It is incorrect there was as "balav" due to which lot of stones were thrown, because of which my brother Ayub and Ram Bharose got injured. It is incorrect that I did not see any occurrence that day and police has made me a false witness in this case. I must have told police that when I and my husband ran to save my brother, we raised alarm. (Confronted with the statement PW3/DA where it is no mention the factum of raising alarm.) Ques. Do you know the witness prior to the incident? (Question is disallowed as the witness has already told that she did not know accused Satpal earlier by name or by face before the incident hence this question does not arise) It is correct that on being questioned by the police, I had told the police in my statement that I know accused very well. I gave my statement to police after knowing the name of accused Satpal from the people gathered at the spot that is why I have stated that I know Satpal very well. It is incorrect that I am deposing falsely."

(Emphasis supplied)

7. The aforesaid statement of PW-3 in the cross-examination appears to be the correct statement and this creates doubt whether PW-3 and 5 were eye witnesses or had reached the spot before the occurrence i.e. before Ayub, the deceased was hit on the head and had seen the actual act causing injury.

8. PW-5, Habibullah, however, is clear and categorical that he at the time of actual occurrence was present and had seen the appellant hitting the stone on the head of the deceased. He had removed the deceased to the hospital, where he had died. The residence of PW-5 was at a very short distance from the place of occurrence. Even if PW-5 had not seen the initial quarrel from their house, he could have reached the tap in the Gali i.e. the place of occurrence within 1-2 minutes. It is apparent that

there was heated quarrel between Ram Bharose and Ayub, the deceased, at the tap. There was loud and acrimonious exchange of words between the two and public had gathered. In these circumstances, we are inclined to accept that PW-5 had reached the spot slightly before PW-3 had reached and had seen the actual occurrence i.e. the appellant picking up the stone and hitting the same on the head of the deceased. PW-5 had stated that he had come to the spot and had separated the deceased from the accused-Ram Bharose. He had also stated that he was alone at that time.

9. PW-5 in his cross-examination by counsel for Ram Bharose had stated as under:

"....At the time of incident I was standing at some distance. I was standing 5 paces away from the house. I used to recognize accused Satpal by face prior to incident but I did not used to go to his house. The house of the accused Satpal was in the same street at some distance. I or any relatives of mine have no issues with the accused Satpal prior to the incident. We can hear the conversation from the tap at the place where we were standing. As soon as accused started beating the Ayub I ran to save him. On bucket throwing issue Ayub and Ram Bharose started grappling. Then only I reached there. At the time of grappling accused Satpal was not present there. At the time grappling 4-6 men were standing. I cannot tell their names. Nobody was present from my house. I do not remember whether accused Ram Bharose and Satpal had any conversation the time of incident. As soon as accused Satpal came, he hit the stone on the head of the Ayub. I was trying to separate Ayub and Ram Bharose from each other. At that time I did not get any injuries and none of the accused hit me. I cannot tell that for how long I was present at the spot. From the spot, I took Ayub in the injured state to the police station Seempapuri..."

10. PW-5 was further cross-examined and it was put to him that he had not stated that he along with his wife had moved to save Ayub in his statement under Section 161 Cr.P.C. Exhibit PW-5/A there is no mention that his wife went to the spot to rescue Ayub. The relevant portion of the said cross-examination is as under:

"I have told police that me and my wife went to save Ayub. (confronted with portion of Exhibit PW-5/A where there is no mention of the wife of the witness accompanying him to the spot to rescue Ayub."

11. It is, therefore, clear that PW-5 in his statement under Section 161 Cr.P.C. Exhibit PW-5/A had not mentioned about presence of his wife at the spot when he went to rescue Ayub.

12. MLC of the deceased Ex.PW 1/A does not mention the name of the assailant, but this does not mean that the name of the assailant was not known to PW-5. The two accused Satpal and Ram Bharose were arrested at the instance of PW-5 on the date of the occurrence itself.

13. Name of the appellant has been mentioned as the stone thrower in the statement of PW-5 recorded in the hospital Exhibit PW-5/A. On the basis of this statement, FIR under Section 307 read with Section 34 IPC was registered. After the death of Ayub on 10th December, 1987, it was converted into Section 302 IPC.

14. Apart from this, we also find that the appellant was injured at the time of occurrence. This factum was established by the appellant himself on the basis of questions put to PW-1 in his cross-examination. This

establishes the appellant's involvement in the quarrel, though it does not prove that the appellant had thrown the stone.

15. From the aforesaid we hold and observe that it has been proved that Ram Bharose had a quarrel with Ayub. A stone was certainly thrown and the said stone had hit the deceased Ayub on his head. The stone was thrown by the appellant. The act of throwing of stone is attributed to the appellant and not Ram Bharose.

16. The next question, which arises for consideration is whether the appellant has been rightly convicted under Section 302 IPC. The co- accused Ram Bharose was not convicted under Section 302 IPC. The trial court had also observed and held that Ram Bharose did not have any common intention. He was convicted under Section 323 IPC and sentenced to one year rigorous imprisonment.

17. Culpable homicide is of two types: 1) Culpable Homicide amounting to murder (Section 300/302); 2) Culpable Homicide not amounting to murder (Section 299/304). Section 299 defines Culpable Homicide as an offence when an accused causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death. The following are the essential ingredients of culpable homicide. 1) There must be a death of a person; 2) The death should have been caused by the act of another person; 3) The act causing death should have been done; a) with the intention of causing death; or with the intention of causing such bodily injury as is likely to cause death; or with knowledge that such act is likely to cause death.

18. Intention to cause a specified result or actor's purpose has to be gathered and inferred from the action of the person and the surrounding circumstances such as motive of the accused, utterances made, nature of attack, the time and place of attack, the nature and type of weapon used, the nature of injuries caused and so on. These and other factors are to be taken into consideration to determine whether the accused had requisite intention. Knowledge means consciousness. The offender is reasonably expected to be aware of the consequences of his act even if he did not intend the death. In the present case there is no evidence or material to show or establish that appellant had intention of causing death or had intention of causing such bodily injury as is likely to cause death. There is also no material or evidence to show that the act, which is of throwing the stone, was such that it can be attributed that such act was likely to cause death. What has been established and proved are the bodily injury and the nature of the injury but what has not been proved or established is the intention of the appellant to cause the bodily injury or the knowledge that the act of throwing the stone was likely to cause death. There is no evidence on the basis of which it can be determined and held that the appellant had requisite intention or knowledge. Witnesses have not averred or proved the said ingredient beyond doubt. There is inadequate evidence to determine the force and power with which stone was thrown, whether the stone was aimed at the head, the distance between the accused and the deceased, whether there was any exchange of words between appellant and deceased and even whether the stone was thrown or whether the appellant had hit the stone on the head of the deceased. Apparently, there was a grapple and fight between Ayub and Ram

Bharose and that it had taken place at the spur of the moment. There was no previous ill will or enmity between the parties. It was sudden quarrel over water, which was in short supply. The appellant was not armed and had not come prepared with any weapon, knife etc. or with the intention to cause death or cause bodily injury, which is likely to cause death. What happened was spontaneous at the spur of the moment and without much thinking and deliberation. It was not premeditated but as a result of the sudden fight. In these circumstances, we are inclined to accept the appeal to the extent that offence under Section 302 or even 304 IPC is not made out.

19. Having considered the factual matrix we feel that the appellant has committed offence under Section 325 read with Section 320 and Section 322 IPC. Section 320 defines grievous hurt and category seven and eight relate to fracture of skull bone or tooth, or any hurt which endangers life. Section 322 postulates that whoever voluntarily causes hurt, if the hurt which he intended to cause or knows himself is likely to causes grievous hurt; it is punishable under Section 325 unless the case is covered by Section 335 IPC. Intention to cause hurt, or knowledge that an act is likely to cause hurt, is the most decisive factor to decide whether a person can be held guilty of voluntarily causing hurt. It is not the extent of injury which is relevant, but the intention with which hurt was caused which is relevant. There may be cases where the act may even result in death but what has to be gathered from the facts is the intention of the accused. If the intention was only to cause hurt, then the accused will be punished for grievous hurt and not murder. We would like to refer to the decision of

Dina v. State 1996 CriLJ 2398 where the accused had caught hold of the hands of deceased, dragged him towards his house and pushed him. In the process head of the deceased hit the door frame, as a result of which he died. As per the Post Mortem Report the deceased was 65 year old and bones were brittle and could have been fractured easily. It was held that the case should be covered under Section 325 IPC and not Section 304 Part II or Section 302 IPC. The Court observed:

8. Eight kinds of hurt are designated as 'grievous', as set out in Section 320, IPC, Clause 8 thereof speaks of two things (1) any hurt which endangers life, and (2) any hurt which causes the sufferer to be during the space of twenty days; (a) in severe bodily pain or (b) unable to follow his ordinary pursuits. The line between culpable homicide not amounting to murder and grievous hurt is a very thin line. In the former the injuries must be such as are likely to cause death, in the latter, the injuries must be such as endangering life. An injury can be said to endanger life if it is in itself such that it may put the life of the injured in danger. Where there is no intention to cause death or no knowledge that death is likely to be caused from the harm inflicted, and death is caused, the accused would be guilty of grievous hurt if the injury was of a serious nature, but not of culpable homicide.

20. In an earlier decision of in Re: Marana Goundan AIR 1941 Mad 560 the accused had kicked the deceased in the stomach twice. The deceased collapsed and died due to shock. An offence under Section 323 was made out and conviction under Section 302 of IPC was set aside. Court concluded that it was difficult to hold that the accused had intention or knew that by kicking at the abdomen, the accused had endangered life of the deceased.

21. More appropriate and relevant to the facts of this case, would be the decision of Shan v. Emperor AIR 1934 Lah 111. In this case accused had picked up a heavy stone with both his hands and had thrown it at Bahadur Ali. The stone struck Bahadur Ali on the back of his head. He fell down and died as a result of the wound received by him. Conviction under Section 325 was upheld observing that the accused had intention of causing grievous hurt and there was no reason to think that the accused deliberately aimed the stone at the head of the deceased. In State of Karnataka v. Shivalingaiah alias Handigidda AIR 1988 SC 115, the gravemen of the charge against the respondent was that after an altercation he suddenly pulled the deceased by his testicles and squeezed the same as a result of which he fell down unconscious and died almost instantaneously, the Supreme Court upheld the conviction to Section 325 IPC, agreeing with the High Court that the accused did not have any intention to cause death nor could he be attributed with knowledge that his act was likely to cause cardiac arrest. It was held that this was a case of grievous hurt. In light of these cases, we believe that in the present factual scenario, no intention to murder or culpable homicide can be inferred or gathered but rather a case of intention to cause grievous hurt has been established. The conviction of the appellant is converted into one under Section 325 IPC.

22. The last question relates to quantum of sentence. Normally sentence of about 5 years in the present case would be justified. However we may notice certain extenuating circumstances. The offence in question was committed in December, 1987. The appellant had remained in jail

till May, 1989. The appellant was detained for the second time after his conviction till the order of suspension of sentence was passed on 25th January, 1999. We deem it appropriate and proper to release the appellant on the sentence already undergone after noticing the fact that the appellant is not involved in any other case and does not have any criminal record.

23. The appeal is accordingly disposed of.

(SANJIV KHANNA) JUDGE

(S. P. GARG) JUDGE September 17th, 2012 VKR/kkb