Raju @ Rajinder And Anr vs State Of Delhi
2014 Latest Caselaw 489 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Judgment:27.01.2014.

+      CRL.APPEAL No.74-75/2006
       RAJU @ RAJINDER AND ANR.
                                                           ..... Appellants
                            Through       Mr. K.B. Andley, Sr. Adv. with
                                          Mr.M. Shamikh, Adv.
                            versus

       STATE OF DELHI
                                                            ..... Respondent
                            Through       Ms. Fizani Husain, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 The appellants are aggrieved by the impugned judgment and order

of sentence dated 19.01.2006 and 24.01.2006 respectively wherein the

appellants Rajinder and Surender (brothers) had been convicted under

Section 304 of the IPC and had been sentenced to undergo RI for a

period of 4 years as also to pay a fine of Rs.25,000/- each; in default of

payment of fine, to undergo RI for a period of 1 year. Out of the total

fine of Rs.50,000/-, Rs.40,000/- was to be paid as compensation to the

heirs of the deceased. Fine amount has since been paid.

2 The version of the prosecution was unfolded in the version of

Ram Kumar (PW-7). He was an eye-witness and the brother-in-law of

the victim. As per his version on 03.05.2002 at about 11:00-11:30 pm,

he saw the accused persons quarrelling with his brother-in-law Bhim

Singh (deceased). Surender had caught hold of the deceased and

Rajinder was beating him. PW-7 intervened and saved Bhim singh.

Further version being that the deceased and accused used to consume

liquor daily; they also used to play cards; they often used to quarrel. Still

further version being that in the morning of 04.05.2002 at about 03:00-

03:15 pm, Ram Avtar Singh (PW-2) was awakened by Bhim Singh who

told that he is suffering from severe pain in his stomach. He along with

his nephews Devender and Arjun Singh had accompanied Bhim Singh

to the Ram Lal Kundan Lal Nursing Home where an injection was

administered to him. They thereafter returned home.

3 The emergency MLC of Bhim Singh conducted at the Ram Lal

Kundan Lal Orthopaedic Hospital (Ex.PW-16/B) evidences that the

patient had come into emergency at 04:45 am on 04.05.2002. He was

smelling of alcohol. He was complaining of abdominal pain. He was

otherwise conscious and his parameters were normal. He was

administered an injection. He was advised admission for further

investigation but the patient as also his attendants refused it.

4 Further case of the prosecution is that on 05.05.2002 at 12:05 pm,

the deceased went to Lal Bahadur Shastri Hospital as he was

complaining of abdominal pain and vomiting. His MLC (Ex.PW-1/A) of

the Lal Bahadur Shastri Hospital on a naked examination noticed no

further external injury; he was admitted in the hospital and thereafter at

subsequent time i.e. at 02:00 pm and again at 07:20 pm, the patient was

unfit for statement.

5 The patient succumbed to his death on 05.05.2002 at 09:15 pm.

The post mortem report was proved as Ex.PW-9/A. The post mortem

had noted 8 external injuries. Perusal of these injuries shows that there

were largely abrasions and none of these injuries either individually or

collectively could have led to the death of the victim. The stomach of

the victim was found to be empty; peritoneal lining was inflamed;

abdominal wall showed a reddish bruise in the epigastric region which

appeared to be less than a day in age. The cause of death was opined to

be as under:-

"Shock due to peritonitis due to a perforated ulcer and acute pancreatitis and was sufficient to cause death in the ordinary course of nature. It could have been caused by a blunt trauma to the abdomen sustained about one day prior to death."

6 Apart from oral version of PW-7, Ram Avtar (PW-2) the brother

of the victim who had taken the deceased to the hospital and to whom an

alleged dying declaration had been made by the victim had also been

examined by the trial Judge as another piece of incriminating evidence

against the appellants. Testimonies of Arjun Singh (PW-4), Kumari

Radha (PW-5) and Sohan Singh (PW-6) were also noted; they had also

corroborated the version of PW-2 qua the dying declaration made by the

deceased.

7 It was in this aforenoted scenario keeping in view the said oral

and documentary evidence that the appellants had been convicted under

Section 304-II of the IPC. The sentence as noted supra was 4 years RI

for each convict and a fine of Rs.25,000/- each.

8 At the outset, learned counsel for the appellants has assailed the

impugned judgment on merits. It is pointed out that the medical record

of the patient clearly shows that he had gone to the hospital for the first

time only at 04:45 am on 04.05.2002 when the incident was of 11:30 pm

on the previous night of 03.05.2002. Even at that time he was

administered an injection and he returned home which was against

medical advice; the doctor had advised him to get admitted for further

investigation but not only the deceased but also his relatives had refused

admission. It is further pointed out that as per the post mortem report, 8

injuries had been suffered by the victim which were all abrasions and as

per the report of the post mortem doctor Dr. Gaurav Jain (PW-9), they

were not sufficient to cause death of the victim. The cause of death has

been opined to be perforated duodenal ulcer and was clearly for the fact

that the victim was a habitual drunkard; he had died probably due to

haemorrhage in the pancreas and because of his already enlarged liver

and spleen. It is pointed out that PW-2 and PW-7 have admitted that

Bhim Singh used to drink daily and he along with the appellants used to

play cards; they also often used to quarrel one another. The fact that the

parties are living in the adjoining house is an admitted fact. It is further

pointed out that cross-examination of PW-9 also answers this

submission of the appellants who has in his cross-examination admitted

that the victim could have died because of ulcer perforation because of

his drinking habits. Even when he was taken in the emergency to the

Ram Lal Kundan Lal Nursing Home at 04:45 am on 04.05.2002, he was

still reeking with the smell of liquor. Knowledge also cannot thus be

attributed to the appellants that by their beatings, they had caused the

death of the victim. As per the eye-witness account of PW-7, Surender

had only caught hold of Bhim Singh whereas Rajender had given him

beatings. These beatings were only with hand; there was no extraneous

weapon. In these circumstances, death of Bhim Singh has occurred not

because of the act of the appellants but because of his medical condition

as he was already suffering from ulcers which got perforated because of

his daily drinking habits.

9 In the alternate, the second argument of the learned counsel for

the appellants is on the point of sentence. His submission is that under

Section 304-II of the IPC, the Legislature has prescribed a sentence of

imprisonment up to 10 years or a fine and the intent of the Legislature

can be gathered from the fact that punishment by way of fine in the

alternative, keeping in view the facts and circumstances of each case,

may be alone imposed.

10 These arguments had been refuted by the learned public

prosecutor. It is pointed out that the version of the eye-witness (PW-7) is

clear; the incident had occurred at 11:30 pm on 03.05.2002 and the

patient had succumbed to his death within less than 48 hours i.e. at

09:00 pm on 05.05.2002. It is not the case of the appellants that the

victim had suffered any other injury in this intervening period. The fact

that the victim used to take liquor would not mean that his medical

condition was otherwise so serious; it was his daily routine to take

liquor. He had but obvious died for the reason that he was beaten and

these beatings could have been on the abdominal cavity; the victim had

been rushed to the hospital in the early morning hours of 04.05.2002;

i.e. victim 5 hours after the incident and had again been rushed back in

an emergency condition to the Lal Bahadur Shastri Hospital where on

05.05.2002 at noon; at 02:00 pm he had even become unfit for

statement. The cause of death which was abdominal trauma was because

of the acts of the appellants. On the point of sentence, learned public

prosecutor submits that out of a sentence of 4 years, the appellants have

undergone only 1 year and 2 months which includes the remissions

earned by them.

11 Arguments have been heard. In the course of the arguments, it has

been pointed out by the Court that the conviction of the appellants

would not call for an interference as apart from the testimonies of PW-7,

PW-2, PW-4, PW-5 & PW-6 as also the medical record are all

incriminating pieces of evidence. The dying declaration given to PW-2,

PW-4, PW-5 & PW-6 was also a crucial piece of corroborative evidence

against the appellants.

12 At this stage, learned counsel for the appellants under instructions

from the appellants (who are present in Court today) states that he is not

pressing the appeal on merits and his submission on the point of

sentence alone be considered. Thus the submission on the point of

sentence has accordingly been considered

13 Noting the background in which the incident had occurred, there

being no malice attributed to the appellants; the fact that the appellants

and the victim used to sit together every day and play cards; they also

used to drink liquor in other's company; they often used to quarrel. The

appellants are also the real nephews of the victim. This Court has been

informed that even as on date, the parties are living in their same

respective residences; the appellants are still occupying the adjoining

house where the legal heir i.e. son of Bhim Singh is now residing with

his family. The wife of Bhim Singh has since expired. His daughter has

been married. This Court has also been informed that the parties are on

talking terms.

14 Record shows that out of total period of 4 years, the appellants

have undergone a sentence of 1 year and 2 months which included the

period of remission earned by them. They have no other criminal

background. Their nominal roll shows that at the time of incarceration,

their conduct was satisfactory. Since their grant of bail in the year 2006,

they have not misused the process of bail; they have been regularly

appearing in the matter.

15 This Court is also conscious of the fact that Legislature has

engrafted punishment of incarceration up to 10 years or fine for the

offence under Section 304-II of the IPC for which the appellants have

been convicted. Having noted the period of sentence already undergone

by them and also the fact that they have already paid a fine of

Rs.50,000/- (out of which Rs.40,000/- have been disbursed to the legal

heirs of the victim), in the fitness of things and in the facts and

circumstances, it would be appropriate that the period of incarceration

already undergone by them is the sentence imposed upon them.

However, the appellants are directed to pay an additional compensation

amount of Rs.50,000/- i.e. Rs.25,000/- each which amount shall be paid

to the two remaining legal heirs of Bhim Singh i.e. Kumari Radha (PW-

5) (daughter) and Sohan Singh (PW-6) (son). This fine be deposited in

two weeks. The Investigating Officer/ SHO of PS Trilok Puri will

ensure that this sum of Rs.50,000/- is paid to each of the legal heirs i.e.

Rs.25,000/- to Kumari Radha and Rs.25,000/- to Sohan Singh.

16 With these directions, the appeal stands disposed of.

INDERMEET KAUR, J

JANUARY 27, 2014/A