Delhi High Court
Mukesh Kumar vs State on 1 December, 2014
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision : December 01, 2014
+ CRL.A. 1050/2010
MUKESH KUMAR ..... Appellant
Represented by: Mr.Bhupesh Narula, Adv.
versus
STATE .... Respondent
Represented by: Ms.Aashaa Tiwari, APP.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. Mukesh Kumar was charged and convicted for murder of Uday after
an altercation took place between them on September 28, 2008 witnessed by
Kuldeep Singh PW-1 the maker of the FIR.
2. Kuldeep Singh in his statement to the Police stated that he was
running a general merchant shop at his house. At around 9.00 PM on
September 28, 2008 when he was at his shop he heard noise. He went to
the place at a distance of 20 steps from his shop and saw that Mukesh and
Uday Singh were quarrelling. They were got separated. At around 9.45 PM
while Kuldeep Singh was at his shop and Uday Singh was sitting in front of
his shop Mukesh came with a wooden danda in his hand and gave a blow on
his head due to which Uday Singh fell on the road and blood started oozing
out of his head. Mukesh ran away from the spot with the danda and Uday
Singh was taken to the hospital by his son Nitin and two-three other boys.
Uday was admitted in the hospital at 10.00 PM on September 28, 2008 when
the doctor noticed head injury and referred him to RML hospital. At the
RML hospital the doctor noticed laceration on the upper left side of the
lower lip and upper lip and the eye-brow. The doctors made efforts for
resuscitation but failed and hence Uday was declared dead on September 28,
2008 at 11.30 PM. On the basis of statement of Kuldeep Singh FIR No.
317/2008 was registered under Section 302 IPC.
3. The post-mortem of Uday Singh was conducted by Dr.B.N.Mishra
PW-7 who noticed the following injuries.
"1. Lacerated wound sized 3 cm x 1 cm x full thickness
present at left side of lower lip with irregular margins and
blood clot at edges.
2. Lacerated wound sized 2 cm x 1 cm x full thickness
present at left side of upper lip with ragged margins and blood
clot it edges.
3. Lacerated wound sized 3 cm x 2 cm x bone deep present
at eyebrow of left eye with irregular margins.
4. Periorbital haematoma present at left side of eye with
dark red coloured haematoma (blood clot) revealed on Section.
5. Ill defined bruise 8 cm x 4 cm present at upper part
abdominal wall with bruising of abdominal muscles.
6. Haematoma of size 10 cm x 6 cm present at left zygoma
of face."
4. Dr.B.N.Mishra exhibited the post-mortem report wrongly noted as
MLC vide Ex.PW-7/A and opined the cause of death to be due to head
injury caused by blunt and forceful impact upon head. Vide Ex.PW-7/B he
further opined that injury No.3 was sufficient to cause death of deceased
Uday Singh.
5. Pursuant to the arrest of Mukesh Kumar the weapon of offence i.e. the
danda was got recovered from near nala, Vaishno Mata Mandir, Sudershan
Park. As per the FSL report though blood was detected, however neither it
could be opined that it was of human origin nor the grouping. Further there
is no opinion of the post-mortem doctor that the injury was possible by the
said danda. However, Kuldeep Singh, the eye-witness identified the danda
as the one from which injuries were inflicted. Thus the recovery of the
weapon of offence pursuant to the disclosure of Mukesh Kumar is also
connected to the offence committed.
6. Kuldeep Singh appeared in the witness box as PW-1. He deposed that
at 9.00 PM on September 28, 2008 when he was present in his shop there
was a "Tu T u Mein Mein" going on between Uday and Mukesh at a
distance of 20 yards from his shop. Thereafter Mukesh left the spot uttering
the words "Mein Tujh ko Chodunga Nahin". At about 9.45 PM Uday was
present in his shop when Mukesh Kumar came with a danda. Mukesh
inflicted danda blow on the head, stomach and foot of Uday and thereafter
ran away from the spot. His son Nitin and his friend took Uday to the
hospital. He further stated that he had seen such an incident for the first
time so he was perplexed. The witness was confronted with his earlier
statement Ex.PW-1/A. It notices that Kuldeep Singh made improvements
on two counts i.e. that Mukesh left the spot uttering the words "Mein Tujh
ko Chodunga Nahin" and that injuries were inflicted on the head, stomach
and foot instead of one danda blow on the head. Though the second part of
the statement wherein he attributes injuries on the head, stomach and foot is
a material improvement however the testimony of this witness cannot be
discarded as the substratum of his version is true and the presence of this
witness at the spot cannot be disbelieved because the place of incident is the
residence-cum- shop of Kuldeep Singh.
7. As noted above the injury No.3 in the post-mortem report corresponds
to injury No.4 which was revealed on dissection of the body. The Injury
No.1, 2 & 3 showed irregular margins and all were on the left side of the
face which extended from eye to the upper lip and the lower lip. The
haematoma mentioned in the injury No.4 & 6 corresponds to external
injuries No.1 to 3 and the ill-defined bruise 8 cm x 4 cm present at the
upper part abdominal wall is attributable to fall. Thus the version of
Kuldeep Singh in the rukka that one danda blow was given on the head of
Uday due to which he fell down is a right version and that number of
injuries were given on the head, stomach and foot is an exaggeration. The
single danda blow has caused haematoma on the left periorbital and zygoma
of the face, however there is no depressed fracture or fracture of any skull
bone which has been caused. Consequently, the offence committed by
Mukesh Kumar would be the one punishable under Section 304 Part-II IPC.
Consequently, the conviction of the appellant is altered to one under Section
304 Part-II IPC.
8. As per the nominal roll Mukesh Kumar has undergone more than 7
years in custody along with remissions. Therefore the sentence of Mukesh
Kumar is altered to the period already undergone. Superintendent Tihar Jail
will release Mukesh Kumar forthwith if not required in any other case.
9. Appeal is accordingly disposed of.
10. T.C.R. be returned.
11. Two copies of the judgment be sent to the Superintendent Central Jail
Tihar one for his record and the other to be handed over to the appellant.
(MUKTA GUPTA)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
DECEMBER 01, 2014
'ga'
