Delhi High Court
Rasool Mohd. vs State on 14 July, 2014
Author: Pradeep Nandrajog
$~R-2&3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: July 14, 2014
+ CRL.A. 80/2014
ASHOK KUMAR AGGARWAL ..... Appellant
Represented by: Mr.Sumeet Verma, Advocate
versus
STATE ..... Respondent
Represented by: Ms.Aashaa Tiwari, APP for State
CRL.A. 81/2014
RASOOL MOHD. ..... Appellant
Represented by: Mr.Sumeet Verma, Advocate
versus
STATE ..... Respondent
Represented by: Ms.Aashaa Tiwari, APP for State
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J. (Oral)
1. Vide impugned judgment dated September 06,2013 the appellants have
been convicted for the offence punishable under Section 302/34 IPC for
having murdered the deceased Harpal Singh. The two have been convicted
for the offence punishable under Section 323/34 IPC for having caused
simple hurt to Chotte, Chander Pal and Shyam.
2. Vide order on sentence dated September 13, 2013 for the offence
punishable under Section 302/34 IPC, the appellants have been sentenced to
undergo imprisonment for life and to pay fine in sum of `5,000/-; in default
of payment of fine to further undergo simple imprisonment for three years.
For the offence punishable under Section 323 IPC, the appellants have been
sentenced to undergo imprisonment for one year and pay fine in sum of
`1000/- and in default to undergo simple imprisonment for three months. The
appellants have also been directed to pay compensation in sum of `25,000/-
each to the legal heirs of the deceased Harpal and `5,000/- for the injury
caused to Chander Pal, Chotte and Shyam. In default of payment of
compensation, the appellants have been directed to undergo simple
imprisonment for six months.
3. We begin our destination by noting the injuries found on the person of
deceased Harpal. The same are to be found recorded in the post mortem
report Ex.PW5/A, authored by Dr. V.K. Jha, PW-5. Three external injuries
have been noted as under:-
(1) Multiple bruises over left arm outer aspect size of 6x3 cm and 2 cm x
1cm.
(2) Multiple bruises over palmer surface of both hands .
(3) Three abrasions over left dorsum of the hand 4x0.5cm.
4. Internal injury noted is subscalp hematoma over occipital region with
fracture of the occipital bone. Subarachnoid hemorrhage over occipital and
base of the frontal lobe was also detected.
5. Cause of death was Craniocerebral damage consequent to blunt force
diverted upon head which was sufficient to cause death in ordinary course of
nature.
6. The head injury was opined to be possibly caused by the hockey stick
Ex.P-1.
7. We have noted as aforesaid to focus our attention on whether the acts
attributed to the appellants, if proved, would make out a case for sustaining
conviction for the offence punishable under Section 302 IPC or would make
out a case to alter conviction to the offence of culpable homicide not
amounting to murder punishable under Section 304 IPC.
8. A perusal of the evidence lead before the trial court shows that there
were as many as five eye witnesses to the incident who were examined.
Three were the injured eye witnesses in respect of whose injuries; as noted
hereinabove the appellants were tried for the offence punishable under
Section 323 IPC. The other two were the wife and the daughter of the
deceased.
9. Having pursued the testimony of all the eye witnesses, whose
credibility has not been demolished by the learned counsel for the appellants,
we note the eye witness account of PW-12 Smt. Anita, the wife of Harpal.
10. Her testimony would evidence that the appellants used to reside in the
neighbourhood and had abused her daughter when they were in the company
of a third co-accused named A who is a juvenile and for whom we are not
concerned in the appeal. The three were under influence of alcohol and had
caught the wrist of Anita's daughter. Her husband, the deceased came out
and resisted. The three accused left. After one hour the three accused along
with two other persons whose name Anita did not recollect returned. Rasool
was armed with a hockey. Accused and A were having danda. They started
beating her husband and fled. Chander Pal, Chote and Shyam came from the
neighbourhood and intervened to save her husband. The accused gave
beating to these three persons and fled. Her husband was taken to the
Government hospital where he was declared brought dead. From the
testimony of Anita, which learned counsel for the parties concede fairly
brings out the fact of what happened on the unfortunate day, it is apparent
that the accused resided in the neighbourhood and was having some issue
with the family of the deceased evidenced by the fact that on the day of the
incident, they had abused the daughter of the deceased and Anita. When
challenged by the deceased, the three left but returned to seek revenge.
11. As per Anita, the three accused were armed with dandas and hockey
stick. If the three had an intention which was definite to kill the deceased, the
hammering on the person of the deceased with the hockey stick and dandas
would have been severe. The three have opportunity to do so.
12. The post mortem report would bring out that the three launched a
random assault on the deceased which the deceased successfully managed to
avoid, in that the three were unable to cause any serious injury to the
deceased. The multiple abrasions on the left arm outer aspect, multiple
bruises on both hands and the abrasion over a left dorsum of the hand
evidences that the deceased successfully managed to block the blows
directed. There being no fracture of the metacarpal bones indicates the blows
directed not being very serious. The internal injury found over the occipital
region and in respect of which surprisingly we find no external injury
recorded shows that in all probability a blow got unintentional directed
towards the occipital region causing fracture of the occipital bone. The blow
with the hockey stick being the weapon of the offence, was obviously not
very powerful for having so the dura mater or the pia mater would have
oozed out of the skull
13. The impugned judgment passed by the learned trial court has not noted
the aforesaid aspect concerning the post mortem report.
14. Highlighting that the incident took place at 11.18 P.M., it was dark, the
possibility of one blow, which was not intended to be directed towards the
head struck the occipital region. All other blows seem to be directed towards
a non-vital part of the body which the deceased successfully blocked.
15. Having considered the circumstances, the two appeals are disposed of,
setting aside the appellants' conviction for the offence punishable under
Section 302/34 IPC. The appellants are convicted for the offences punishable
under Section 304 Part (II)/323/34 IPC and as regards the sentence we find
that the appellants have already undergone sentence for more than five years,
which in our opinion should be sufficient.
16. We accordingly direct that the appellants shall undergo imprisonment
for the period already undergone.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
JULY 14, 2014
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