Delhi High Court

Satpal vs State on 1 March, 2013

Author: Sanjiv Khanna

$~15&16
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CRIMINAL APPEAL NO.429/2012


%                                            Date of decision: 1st March, 2013
         SATPAL
                                                                 ..... Appellant
                                  Through Mr. Saurabh Kansal, Advocate.

                                  versus

         STATE
                                                               ..... Respondent

Through Mr. Sanjay Lao, APP for the State.

CRIMINAL APPEAL NO. 430/2012

RAJU ..... Appellant Through Mr. Manoj Kumar Singh, Advocate.

versus

STATE ..... Respondent Through Mr. Sanjay Lao, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

SANJIV KHANNA, J. (ORAL):

The two appellants have been produced before us from the

prison. Learned Amicus Curiae spoke to them outside the Court. Mr.

Sanjay Lao, APP has also spoken to them outside the Court. As

noticed in our order dated 28th February, 2013, ASI Rajvir Singh (PW-

3) has not been cross-examined at the Trial Court. PW-3 is the most

important witness, as per the Trial Court judgment itself, as he has

stated that he had seen the occurrence and detained the appellants

immediately thereafter. Learned Amicus Curiae, after talking to the

appellants, have averred that they do not want to avail opportunity to

cross-examine PW-3. The aforesaid statement has been taken on

record.

2. These two appeals by Satpal and Raju impugn the common

judgment dated 25th May, 2011 convicting them under Section 302

read with Section 34 of the Indian Penal Code, 1860 (IPC, for short)

for having committed murder of Ram Sudhar on 13th December, 2007

at about 9.00 P.M. The aforesaid conviction arises out of FIR No.

629/2007, Police Station Bawana. By the order of sentence dated 28 th

May, 2011, they have been sentenced to life imprisonment and fine of

Rs.10,000/- each, in default which they have to undergo rigorous

imprisonment for three months.

3. The appellants, who are brothers, were detained by ASI Rajvir

Singh (PW-3) and Constable Kuldeep Singh, (PW-6), after the

incident, therefore, their statements are crucial for the present case.

4. ASI Rajvir Singh (PW-3) has averred that, on 13th December,

2007, he was posted on PCR duty from 8.00 P.M. to 8.00 A.M., at

PCR van L-77, and was present with Constable Kuldeep Singh (PW-6)

at Hanuman Mandir Narela Road, near Western Yamuna Canal. At

about 9.00 P.M., a passerby came and apprised them that at the

distance of about 500 - 600 yards, two men were beating another

person. They reached the spot immediately in the PCR van and found

the two appellants to be present there. On interrogation they revealed

their names. The person they had mauled, aged around 35 years, was

lying naked, in an unconscious condition. A track pant found nearby

was put on his lower body. The injured and the two appellants were

removed from the spot at about 9.15 P.M. and taken to M.B. Hospital,

Pooth Khurd where the injured was declared as brought dead.

Subsequently, Sandeep (PW-2) identified the dead body to be of his

father Ram Sudhar.

5. PW-3 has further deposed that crime team was called, site plan

was prepared and photographs were taken at the crime spot. The

investigating officer seized blood, blood stained pieces of dry bushes,

blood stained grass and earth control. In addition, one full sleeves

sweater of sleti colour, one chocolate colour half sleeves, one

underwear of sky blue colour, one pant of chocolate colour, one T-shirt

of sky blue colour half sleeves, one cap of sleti colour, all blood

stained were seized vide seizure memo Exhibit PW-2/A, signed by

him at point „B‟. From the spot, the IO further seized one right side

chappal blood stained, one pair of brown colour shoes blood stained,

other pair of blue coloured plastic chappals blood stained and two caps

of black colour on which the word „Nike‟ was written in English.

After wearing apparel were arranged from their house, the clothes

worn by the two appellants, which were blood stained, were also seized

by the investigating officer vide seizure memo Exhibit PW- 2/F and -

2/G. The deceased‟s clothes (collectively marked Exhibit P-1) were

identified by PW-3. The shoes found at the spot were marked Exhibit

P-2. The track pant found lying which was put on the unconscious

deceased was marked Exhibit P-3. One pair plastic slippers was

marked Exhibit P-4 and the single chappal found at the spot was

marked Exhibit P-5. The clothes worn by the appellant-Satpal were

marked Exhibit P-6, P-7 and P-8 and the clothes worn by the appellant-

Raju were marked Exhibit P-9, P-10 and P-11. PW-3 correctly

identified the aforesaid articles in the Court.

6. Constable Kuldeep Singh (PW-6) has deposed that in the

intervening night of 13th/14th December, 2007 he was posted as a driver

from 8.00 P.M. to 8.00 A.M. with PCR van L-77 which was parked in

front of Hanuman Mandir, Bawana Road, Narela. At about 9.00 P.M.,

ASI Rajvir Singh, in charge of PCR van, was informed by a passer-by

that two boys were beating a third boy at about 500/600 yards towards

Bawana side on Narela Bawana Road. He drove the PCR van with

ASI Rajvir Singh and reached the place of occurrence where he saw

the two appellants mercilessly beating another person, after removing

his clothes. He identified the two appellants, in the court, and averred

that they were apprehended at the spot and were made to sit with the

injured in the PCR van which was taken to M.B. Hospital, Pooth

Khurd. He was cross-examined by the counsel for the two appellants

and has deposed that the spot of occurrence was secluded and there

was no shop or establishment nearby. The factory area was at some

distance. They saw the two appellants beating the deceased from a

distance of about 40 feet. PW-6, however, could not recollect the

name and address of the person, i.e., passer-by, who had given them

the information. Public persons were not joined in the said

proceedings. PW-6 has further deposed that the injured was

unconscious and could not make any statement. PW-6 remained in the

hospital for 30 to 40 minutes and then returned back to the spot at

about 10.00/10.30 P.M. His statement was subsequently recorded by

Inspector H.S. Meena at the spot.

7. H.S. Meena (PW-18), the investigating officer and the SHO of

Police Station Bawana, has deposed that at 10.15 P.M. he received

information from duty officer that an injured has been admitted in MB

Hospital by PCR and doctor had declared him dead. Thereafter, he

along with Constable Satish, Constable Joginder and an operator

reached M.B. Hospital. The appellants were present there in custody

of Head Constable Dharambir and Head Constable Balwan.

Thereafter, he reached the spot of occurrence and found ASI Rajvir

Singh (PW-3), driver Kuldeep Singh (PW-6) and the deceased‟s son

Sandeep were present there. A crime team had reached the spot. He

prepared the rough site plan at the instance of ASI Rajvir Singh

(marked Exhibit PW-18/B), recorded the statements and lifted the

incriminating material/evidence etc. He also took into possession the

blood stained clothes worn by the appellants. The case properties were

identified by him in the Court. In the cross-examination he has stated

that the place of occurrence was surrounded by jungle and, therefore,

there was no question of any enquiry from a third person. The

incriminating material was seized and sent to CFSL for a report.

8. The CFSL reports (Exhibit PW-11/A and 11/B) were proved by

Dr. Rajender Kumar (PW-11), Assistant Director, Biology, FSL,

Rohini, Delhi. As per the said report (Exhibit PW-11/A), blood was

found on the articles sent for examination but could not be detected on

the earth control, deceased‟s cap, the pair of dirty shoes, the pair of

slippers and one belt. As per the serological report (Exhibit PW-11/B)

human blood was found on other articles. The blood group indicated

for most of the articles was of blood group „A‟ but cotton wool swab,

blood stained soil, slipper right foot, one pant and the payjama had no

reaction.

9. We agree with the appellants counsel that the FSL report

(Exhibit PW-11/A and 11/B), which show presence of human blood or

blood group „A‟ cannot, obviously, be a decisive proof against the

appellants since the appellants were taken with the deceased in the

same PCR van. At that time the blood oozing from the deceased‟s

body could have stained and come on to the clothes worn by the two

appellants. The presence of the appellants in the PCR van and in the

hospital is an accepted and admitted position by the prosecution. This

is clear from the above mentioned statements of PW-3, PW-6 and PW-

18. Similar statement was made by Inspector Satyapal Singh (PW-15),

who on receipt of DD entry No. 26A, along with Constable Charan

Singh, reached M.B. Hospital, Pooth Khurd. In the meanwhile other

police officers also reached the hospital. PW-15 had recorded the

statement of ASI Rajvir Singh (Exhibit PW-3/A).

10. The MLC of the deceased (Exhibit PW-4/A) does not mention

the name of the deceased, who has been described as unknown male

aged about 35 years. It records that the said unknown person was

brought to the casualty ward on 13th December, 2007 at 9.25 P.M. and

was declared brought dead.

11. The FIR in question was recorded on 14th December, 2007 at

about 1.50 A.M. However, it is noticeable that the crime team had

reached the spot on 13th December, 2007at 11.30 P.M. after receiving

information and had remained there till 12.30 A.M. They have

recorded the time of departure from the police station as 11.05 P.M..

The crime team report is Exhibit PW-8/A.

12. We have been through the statements of the two appellants

recorded under Section 313 of the Code of Criminal Procedure, 1973

(Cr.P.C., for short). In reply to the questions put forth to them, the

appellants have either stated that the suggestion given was incorrect or

that they did not know. They have averred that they were innocent and

had been falsely implicated in this case by the police officers to solve

the case.

13. Learned counsel for the appellants has relied upon DD entry No.

26A (Ex.PW-5/A) which was recorded by ASI Prem Singh (PW-5) at

9.55 P.M. on 13th December, 2007. The said DD entry mentions that

three boys, who were heavily drunk, had beaten up one boy and all of

them were being taken to the M.B. Hospital. As per the DD entry No.

26A (Exhibit PW-5/A), the aforesaid entry was recorded by PW-5 on

the basis of information given by the PCR. The reference to three

persons appears to be incorrect or probably includes the deceased. We

note that viscera report of the deceased is not on record. We further

note that the MLC of the two appellants was placed on record before

the trial court but was not proved and, therefore, not given exhibit

mark. However, it is noticeable that the appellants were formally

arrested vide arrest memos Exhibit PW-2/B (Satpal) and Exhibit PW-

2/D (Raju). The arrest of Satpal has been shown at 6.40 A.M. on 14 th

December, 2007 from the M.B. Hospital. Raju was shown to be

arrested at 6.10 A.M. on 14th December, 2007 from M.B. Hospital.

The delay in arrest and that too from the hospital raises some doubt

regarding whether the appellants had suffered injuries and why they

were in the hospital from 9.15 P.M. at night till 6.00 A.M. in the

morning.

14. From the statements of PW-3 and PW-6, it is apparent that there

was a sudden scuffle between the appellants and the deceased. The

appellants did not know the name of the deceased, who was an

unknown person. The identity of the deceased came to the knowledge

of the police subsequently when his son Sandeep (PW-2) identified

him. The identity of the deceased is not mentioned in the MLC

(Exhibit PW-4/A). Further, the appellants who were nabbed at the

crime spot and detained were not carrying any weapon of offence.

They were completely unarmed and had not picked up any object like

stone, wood etc. to attack and/or injure. The MLC (Exhibit PW-4/A)

does not mention any physical injury on the body of the deceased.

However, the post-mortem report (Exhibit PW-12/A) records that there

was fracture-dislocation of the second, third, fourth, fifth and sixth of

the left side of middle clavicular line. The brain matter was conjested

and ocdenctous. The post-mortem report refers to small reddish

bruises and abrasions and the cause of death was opined to be cerebral

damage as a result of blunt force directed upon the head. All injuries

were ante mortem in nature. It also refers that the other injuries in

form of abrasions and bruises caused by blunt force during assault and

there were some fingernail marks as a result of manual pressure on the

neck but this was not delineated as the cause of death.

15. What is discernible from the facts, as proved by PW-3 and PW-6

and the post-mortem, is that there was a scuffle or a sudden hand to

hand fight. In the said grapple possibly the deceased fell down and

injured or hurt his head which caused the fatal injury resulting in

cerebral damage and his subsequent death. Learned counsel for the

appellants has rightly submitted that the bruises and abrasions, which

are mentioned in the post-mortem report, are minor in nature and could

have been caused during the scuffle and when the deceased fell down.

As noticed and highlighted, the MLCs of the accused were not proved

and exhibited. The doctor, who had examined the appellants, was not

produced though it has come on record that the appellants had

remained in the hospital till early morning of 14 th December, 2007.

This is strongly indicative or suggestive to the fact that appellants too

suffered injuries during the scuffle.

16. It is difficult to accept that the fatal injury, which resulted in

cerebral damage, was the intended injury and there is no evidence to

show that the appellants had caused or beaten the head of the deceased

on the ground. We have already noticed DD entry No. 26A (Exhibit

PW-5/A), which mentions that three persons were inebriated. The

viscera report of the deceased is not available. It has been stated in

Virsa Singh v. State of Punjab (1958) 1 SCR 1495:

"16. The learned counsel for the appellant referred us to Emperor v. Sardarkhan Jaridkhan (1917) I.L.R. 41 Bom 23, 29 where Beaman J., says that -

"where death is caused by a single bow, it is always much difficult to be absolutely certain what degree of bodily injury the offender intended." With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate an distinct, though the evidence about them may sometimes overlap. The question is not whether the prisoner intended too inflict a serious injury or a racial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intents that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he know of its seriousness, or intended

serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict and injury of particular degree of seriousness, but where he intended or inflict the injury in the question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distant question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.

17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial; scratch and that by accident this victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guess-work and fanciful conjecture."

17. Even otherwise Explanation 4 to Section 300 IPC would be

applicable to the facts of the present case as there that there was a

sudden quarrel. The fact that the two appellants were not carrying any

weapon of offence and did now know the name of the deceased, are

suggestive of the said facts and position. The post-mortem report

(Ex.PW-12/A) does not indicate that there was any attempt to have

unnatural intercourse or the deceased was sexually assaulted. Neither is

that the case of the prosecution.

18. Keeping in view the aforesaid facts, we feel that the appellants

should be convicted under Part-I of Section 304 IPC and not under

Section 302 IPC as held by the trial court. Their conviction is

accordingly modified.