Jai Shankar Mishra vs State Nct Of Delhi
2014 Latest Caselaw 3541 Del

$~R-11
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of decision: August 05, 2014

+                         CRL.A. 219/2012

      JAI SHANKAR MISHRA                                ..... Appellant
                   Represented by:           Mr.Ajay Verma & Ms.Saahila
                                             Lamba Advocates

                          versus

      STATE N.C.T. OF DELHI                             ..... Respondent
                     Represented by:         Mr.Varun Goswami, APP for
                                             the State.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J. (ORAL)

1. Believing the eye witness account narrated before the Court by Mohd.Gulzar PW-6, Jagdamba Prasad Tiwari PW-8 and by Shyam PW-12 (albeit with hiccups) the appellant has been convicted for having murdered Imran at 8.15 P.M. on July 17, 2010 on the pavement in front of shop No.3, near Kodia Pul, H.C.Sen Marg, Delhi.

2. The appellant was apprehended at the spot and was handed over to Insp.Inder K.Jha PW-15.

3. Graphic details of what transpired between the appellant and the deceased has been deposed to by PW-6 at whose statement Ex.PW-6/A the FIR was registered.

4. Deposing in Court, Mohd.Gulzar PW-6 has stated on oath as under:-

"I used to sell clothes at Kodia Pul. On 17.07.2010 at

about 8.15 p.m. I was present at my stall and I saw the accused present in the court today (correctly identified by the witness) was quarrelling with another person as they were coming from Gate No.4 of the Metro Station, Chandni Chowk. The accused was asking the other person to return his money otherwise he would not spare him. The accused was having a danda in his hand and the other person was saying that he was not having any money and dared the accused to do whatever he could. The accused was not satisfied and he persisted with his demands and so also the other person in his refusal. On that the accused got annoyed and started hitting the other person with danda landing the blows on his head and other parts of the body. The other person started bleeding and collapsed on the floor. I managed to apprehend the accused along with some public persons. The other person died at the spot. The police was called by me from my mobile and by some other public persons as well. The police reached the spot with 5-10 minutes. The accused was handed over to the police along with the danda. The police recorded my statement which was signed by me which is Ex.PW-6/A bearing my signatures at point A."

5. From the perusal of the testimony of PW-6 it is apparent that the deceased owed money to the appellant when the appellant requested the deceased to return the money owned to him the deceased dared the appellant saying that the appellant may do whatever he could. At that the appellant got annoyed and started assaulting the deceased with a danda. The assault was indiscriminate evidenced from the post mortem report Ex.PW-7/A. Four lacerated, three contusion and two abrasion wounds were inflicted.

6. The abrasions appeared to be result of impact injury when the deceased fell. The lacerated and the contusion wounds are aimlessly directed towards the face and the head.

7. The danda Ex.P-1 lifted from the spot where appellant was apprehended soon after the assault has been opined by Dr.Akash Jhanjee

who conducted the post mortem of the deceased as the possible weapon of offence.

8. The testimony of Jagdamba Prasad Tiwari PW-8 is in complete sync with the testimony of PW-6.

9. It is apparent that there was no enmity or a motive for the crime. When the deceased who owned money to the appellant challenged the appellant to do what he could with respect to the demand of the appellant of money to be returned, in a fit of rage on being annoyed the appellant launched the brutal assault.

10. It all happened at the spur of the moment without any pre-meditation. It was a petty quarrel on return of petty sum of money.

11. This aspect of the matter has been overlooked by the learned Trial Judge i.e. whether the offence was one of the culpable homicide amounting to murder or culpable homicide not amounting to murder.

12. Noting the eye witness account we hold that the offence committed by the appellant is culpable homicide not amounting to murder punishable under Section 304 Part-I IPC and for which we sentence the appellant to undergo R.I. for 10 years. The appellant shall be entitled to the benefit of Section 428 Cr.P.C.

13. Two copies of the decision be sent to the Superintendent Central Jail Tihar. One for the appellant and the other for the jail record.

14. TCR be returned.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE AUGUST 05, 2014/skb