Bhudev Pal @ Boby vs The State (Nct Of Delhi)
2014 Latest Caselaw 3180 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : 22nd APRIL, 2014
                                 DECIDED ON : 18th JULY, 2014

+     CRL.A.1279/2011, CRL.M.B.385/2014 & CRL.M.A.2732/2014

      BHUDEV PAL @ BOBY                                 ..... Appellant

                          Through :    Mr.Prem Kumar, Advocate with
                                       Mr.Harindra Singh, Mr.Bhasker &
                                       Mr.Rakesh Kumar, Advocates.

                          versus

      THE STATE (NCT OF DELHI)                          ..... Respondent

                          Through :    Mr.M.N.Dudeja, APP.

AND
                                    RESERVED ON : 30th MAY, 2014
                                     DECIDED ON : 18th JULY, 2014

+     CRL.A. 550/2013

      SUNIL                                             ..... Appellant

                          Through :    Ms.Aishwarya Rao, Advocate.


                          versus



      THE STATE (NCT OF DELHI)                          ..... Respondent

                          Through :    Mr.Lovkesh Sawhney, APP.


Crl.A.Nos.1279/2011 & 550/2013                               Page 1 of 17
        CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Challenge in this appeal is to a judgment dated 23.08.2011 of

learned Addl. Sessions Judge in Sessions Case No. 44/08 arising out of

FIR No. 607/07 PS Punjabi Bagh by which the appellants - Bhudev Pal @

Boby (A-1) and Sunil (A-2) were convicted under Sections 304

(II)/323/452/34 IPC. By an order 27.08.2011, they were sentenced to

undergo RI for ten years with fine ` 5,000/- each under Section 304

(II)/34 IPC; RI for one year with fine ` 1,000/- each under Section 323/34

IPC; RI for three years with fine ` 5,000/- each under Section 452/34 IPC.

The substantive sentences were to operate concurrently.

2. Shorn of details, the prosecution case as unfolded during trial

was that on 27.08.2007, at around 10.00 P.M. at house No.L-27/1,

Railway Colony, Shakur Basti, Punjabi Bagh, Delhi, the appellants in

furtherance of common intention with their associate Prakash (facing trial

before Juvenile Justice Board) inflicted injuries to Ram Dulare and Beena

Devi after committing house trespass. The police swung into action on

getting information about the quarrel and Daily Diary (DD) No. 62B

(Ex.PW-2/A) came into existance at 10.35 P.M. at PS Punjabi Bagh. The

investigation was entrusted to ASI Lallan Prashad who with Const.Satish

went to the spot. The victims had already been taken to Sanjay Gandhi

Memorial Hospital (in short : SGM Hospital) by PCR Van. The

Investigating Officer collected the MLCs of the victims. Ram Dulare was

unfit to make statement and was referred to Trauma Centre for treatment.

On 31.08.2007, after recording Beena Devi‟s statement (Ex.PW-3/A), the

Investigating Officer lodged First Information Report. On 01.09.2007, A-

1 and A-2 surrendered in the Court and were arrested. Pursuant to their

disclosure statements, the crime weapons were recovered. On 02.09.2007,

Ram Dulare succumbed to the injuries in the Trauma Centre. Post-mortem

examination of the body was conducted. Statements of the witnesses

conversant with the facts were recorded. After completion of

investigation, a charge-sheet was submitted against the appellants; they

were duly charged and brought to trial. The prosecution examined eleven

witnesses to further its case. In 313 statements, the appellants denied their

complicity in the crime and pleaded false implication without examining

any witness in defence. The trial resulted in their conviction as aforesaid.

Being aggrieved and dissatisfied, they have preferred the appeals.

3. Learned counsel for the appellants urged that the Trial Court

did not appreciate the evidence in its true and proper perspective and erred

in relying upon the sole testimony of interested witness i.e. deceased‟s

wife without independent corroboration. The appellants who were not

named in the FIR had no extraneous motive to inflict severe injuries to the

victim with whom they had no prior animosity. No independent public

witness was associated at any stage of the investigation. It was

emphatically contended that the statement of the deceased‟s wife was full

of discrepancies and contradictions. Referring to admission in the cross-

examination, he urged that the victim was in the habit of consuming liquor

and used to quarrel with his family members when they objected to it. On

the day of incident itself, he was under the influence of liquor and

sustained injuries due to fall after having struck against an electric pole in

the street. The appellants were not author of the injuries to the victim and

were not present there. Counsel further urged that the delay in lodging the

First Information Report remained un-explained. The complainant in her

statement did not describe if the victim had suffered any head injury in the

quarrel. Exonerating the appellants, she clearly stated that she had no

grievance or grudge and did not want any action against them. Ingredients

of Section 304 part-II IPC are not attracted and proved. Learned Addl.

Public Prosecutor urged that PW-3 (Beena Devi) has supported the

prosecution on material facts and there are no valid reasons to discard her

statement. She being an illiterate and rustic woman, certain discrepancies

emerged in her statement which are not material to discard her version in

its entirety.

4. The occurrence in which the victims sustained injures

happened at around 10.00 P.M. on 27.08.2007. PW-11 (ASI Umed

Singh), In-charge PCR, after getting infromation of a quarrel at about

11.00 P.M., went to the spot i.e. house No.L-27/1, Railway Colony,

Shakur Basti, Punjabi Bagh, Delhi immediately and found Ram Dulare in

an injured condition. He admitted him in SGM Hospital in emergency.

PW-2 (Const.Niazzuddin) recorded Daily Diary (DD) No.62B (Ex.PW-

2/A) at about 10.35 P.M. regarding the quarrel at the said place. Victim

Ram Dulare was medically examined at SGM Hospital by MLC (Ex.PW-

4/B) at 11.15 P.M. PW-10 (Dr.Brijesh Singh) examining doctor deposed

that the patient was brought to casualty with the history of physical

assault, loss of consciousness and mouth bleeding. On local examination,

he found the following injuries :

"1. Swelling & abrasion around left eye.

2. Bruise over left side of chest."

The patient was referred to surgery department for further

management and opinion. The victim was unconscious to make any

statement. In the cross-examination, he stated that the patient was referred

for CT Scan and disclosed that from the overall report, he could anticipate

„head‟ injuries on the patient. The blood had oozed out from the mouth.

He denied medical negligence in the treatment of the patient. The witness

was not cross-examined to ascertain if the patient was under influence of

liquor or had consumed liquor. Nothing was suggested to him if the

injuries found on the body were possible due to fall.

Material testimony is that of PW-4 (Dr.Manoj Dhingra) who

conducted post-mortem examination (Ex.PW-4/A) on the body on

03.09.2007. Following injuries were found :

"External Injury :

1. Abrasion over left side of face & swelling present just below left eye.

2. Abrasion over left side of shoulder of size 3 x 2 c.m.

3. Bruise over left side of chest of size 2 x 1 c.m.

Internal Injury :

Head - Sub Scalp Hematoma present over left frontal region. Sub arachonoid hemorrhage over left tempo parital region. Fracture right parital bone. "

Cause of death was „coma‟ as a result of head injury

consequent to blunt force impact. All the injuries were ante-mortem in

nature and of same duration. The opinion regarding the cause of death

remained unchallenged. Again, nothing was suggested if the injuries were

result of fall after striking against an electric pole or whether the patient

had consumed liquor or was under its influence. The post-mortem

examination report (Ex.PW-4/A) does not show if the victim had

consumed liquor prior to the occurrence. Nothing was suggested if the

injuries suffered by the victim were not sufficient to cause death in the

ordinary course of nature or that the death was due to victim‟s weakness

for consumption of liquor or it was the result of medical negligence. The

victim was hale and hearty before the incident in his house. After

sustaining injuries in the altercation, he lost consciousness and went into

„coma‟. Despite regular medical treatment for seven days, he could not

come out of „coma‟ and ultimately succumbed to the injuries. Apparently,

the injuries internal or external caused to him had direct nexus with his

death. It was a case of culpable homicide.

5. Crucial testimony to infer the appellants‟ complicity in the

crime is that of PW-3 (Beena Devi) victim‟s wife whose presence in the

house at the relevant time is undeniable. She herself suffered injuries in

the incident at the hands of the assailants and was medically examined.

PW-8 (Dr.Manoj Dhingra) proved her MLC (Ex.PW-4/C) by identifying

signatures of examining - doctor Mr.Aditya. She was taken to SGM

Hospital with the alleged history of „physical assault‟. On local

examination, one Clear Lacerated Wound (CLW) over left parietal wound

(1.5 cm x 0.5 cm) was found. PW-3 (Beena Devi) in her testimony also

claimed that she was injured by the accused persons on her head. Injuries

suffered by the witness, confirms her presence at the spot at the time of

the incident.

6. PW-3 (Beena Devi) categorically implicated the appellants

for inflicting multiple injuries to her husband Ram Dulare. She deposed

that in August, 2007 at night time when she, her husband (since deceased)

and children were present in the house. A-1, A-2 and Prakash (facing trial

before the Juvenile Justice Board) who lived in their neighbourhood

started peeping in their house through window. When her husband

objected to it, they entered inside the house with dandas and started

beating him; she was also beaten on her head. Police officials took both of

them to SGM Hospital. Her husband became unconscious and started

bleading profusely due to the injuries caused to him. He was shifted to

Trauma Centre where he died after two or three days. She identified the

crime weapons (Ex.P1, Ex.P2 & Ex.P3).

In the cross-examination by learned Addl. Public Prosecutor

after seeking Court‟s permission, she disclosed that the accused persons

entered into her house after her husband objected to their peeping into the

house and they started abusing them. She admitted the suggestion that

appelants had thicker / thinner dandas. She further admitted that when she

tried to intervene to save her husband, A-1 said "first we would see my

husband" and thereafter, the accused persons started beating her husband

as a result of which he (Ram Dulare) fell down. The accused persons

again hit him on his face several times. She was also pushed and injured

in her attempt to rescue him. The testimony proves the version given to

the police at the first instance in her statement (Ex.PW-3/A) without major

variations. The assailants who lived in the neighbourhood were known to

her. No ulterior reasons or motive was ascribed to her to falsely name the

appellants as assailants for inflicting injuries to her husband. The victim

gave detailed account of the occurrence and attributed specific and

definite role to each of the assailants for their participation in the crime.

She accused all of them for the fatal injuries caused to the victim. She

being the victim‟s wife and herself injured in the incident was not

expected to spare the real offenders and implicate innocent ones. Her

testimony inspires implicit confidence and in the absence of inherent

infirmities or flaws, her version cannot be suspected. Her testimony is in

consonance with medical evidence referred above and there is no conflict

between the two.

7. It is true that there was delay in lodging the First Information

Report on 31.08.2007 by the Investigating Officer. For the delay, the

complainant cannot be held responsible as the police machinery was set in

motion in promptitude when information about the incident was conveyed

and Daily Diary (DD) No.62B (Ex.PW-2/A) came into existence at 10.35

P.M. at PS Punjabi Bagh, ASI Lallan Prashad was entrusted with the

investigation. It was for him to record the statement of the complainant at

the time of his visit to the hospital. Ram Dulare was unconscious to make

any statement. PW-3 (Beena Devi) being an illiterate lady was not in a

position to compel the Investigating Officer to record her statement. The

Investigating Officer has reasoned that on the day of incident she was

reluctant to record her statement due to injuries inflicted to her husband. It

appears that initially the matter was not taken seriously as the injuries on

the body of the victim were not externally visible. When the victim could

not come out of „coma‟ despite regular treatment for number of days, the

Investigating Officer thought it fit to record complainant‟s statement. In

her statement (Ex.PW-3/A), she gave vivid description of the incident and

named the appellants and their associate Prakash for causing injuries to

her and her husband. For delay in lodging the report, the otherwise cogent

testimony of the witness cannot be discredited.

In the cross-examination, she admitted the suggestion that

she did not make any case against the accused and it were the police

officials who registered the case against them. She was fair enough to

state that after the incident, she had no quarrel with the family of the

accused persons; she had no grudge against any of them and had no

complaint against them. She admitted that prior to the incident there was

no quarrel or enmity. Certain discrepancies definitely emerged in her

cross-examination. However, Beena Devi‟s deposition is to be scrutinised

as a whole. She being an illiterate and rustic lady could not face the

grilling cross-examination when attempt was made to confuse her by

putting one after the other question. She was, however, certain and firm

that the accused persons were the author of injuries inflicted to her

husband. Even in the cross-examination, she admitted that her husband

had received injuries on his left eye and chest which were in the nature of

abrasions / bruises and she did not care much considering them minor.

She admitted that her husband did not get any injury from „danda‟ but was

quick to add voluntarily, "the accused were beating me and when my

husband intervened, he received injuries."

8. During examination-in-chief, the complainant informed the

Trial Court that she was unable to remember all the details of the incident

as she had received four stitches on her head. Apparently, the witness was

not completely in a physical and mental position to narrate the details of

the incident due to injuries sustained by her. For that reason, she even

admitted that her husband had consumed liquor on the day of incident and

he used to keep unwell in general. She further admitted that she used to

tell her husband not to take liquor but he never paid heed; they used to

quarrel on his habit to take liquor. She further stated that on the day of

incident none else except she and her husband were present in the house.

No quarrel between her husband and all the three accused persons took

place regarding consumption of liquor. She also admitted that injuries

were caused on the person of her husband by hitting against electricity

pole on chest and he lost consciousness. All these wavering statements

reflect her state of mind during her deposition before the Court.

9. During investigation, nothing emerged if any such quarrel

had taken place near any electricity pole in the street. Site-plan (Ex.PW-

6/D) does not show existence of any such electricity pole near the house

of the victim. In Ex.PW-6/D „A‟ has been shown the place / spot where

the victim was beaten with dandas inside the house after committing

trespass. PW-6 (ASI Lallan Prashad), the Investigating Officer, who

prepared the site-plan was not questioned in the cross-examination

regarding the existence of any such electricity pole near the victim‟s

house. From the very inception, the prosecution had claimed that the

occurrence had taken place inside the house of the victim. The PCR

official - PW-11 (ASI Umed Singh) was not asked a question as to where

the victim was lying in injured condition when he took him for admission

in the hospital. His statement is categorical that after receiving a call of

quarrel, he went to the spot i.e. house No.L-27/1, Railway Colony, Shakur

Basti, Punjabi Bagh, Delhi, and found Ram Dulare in injured condition.

The testimony remained unchallenged. Nothing was suggested to him if

there was any electric pole in the street and the injured was lying there

unconscious. PW-3 (Beena Devi), in her examination-in-chief, did not

testify if the victim had come out of the house after sustaining injuries and

had struck against an electric pole. As observed above, no material except

the bald statement in the cross-examination of the witness came on record

to ascertain if the deceased had consumed liquor on that day or was under

its influence. The medical evidence does not substantiate consumption of

liquor by the deceased. Simply because, PW-3 (Beena Devi) has given

certain answers to the questions put to her favouring the appellants, ocular

testimony given by her in the examination-in-chief, coupled with medical

evidence cannot be disbelieved. Her evidence is required to be considered

in proper perspective.

In the opinion of PW-4 (Dr.Manoj Dhingra) cause of death

was „coma‟ as a result of head injuries consequent to blunt force impact.

Since the victim had fallen on the ground inside the house after the

assault, it is unbelievable that he would go in the street near the electric

pole as alleged. PW-4 (Dr.Manoj Dhingra) found a fracture of the right

parital bone. No question was put to him if internal injuries sustained by

the victim were possible due to fall after hitting against an electric pole.

10. The Trial Court has dealt with all these contentions minutely

to outrightly reject them with cogent reasons. The findings are based upon

fair and proper appraisal of the evidence and need no intervention. Since

the injuries were inflicted on vital organs, the conviction under Section

304 part-II IPC cannot be faulted. The unarmed victim was assaulted and

attacked repeatedly by dandas by assailants numbering three sharing

common intention. When his wife intervened to save him, she was also

injured. Post-event conduct of the assailants to flee away from the spot

also points an accusing finger against them. Instead of taking care of their

neighbour, they absconded after the incident. The impact of the injuries

caused to the victim was so serious that he lost consciousness and started

bleeding from mouth. Despite continuous treatment for number of days,

he could not come out of „coma‟ and finally, succumbed to the injuries.

PW-3 (Beena Devi) categorically deposed that the appellants were

responsible and perpetrator of the crime in causing injuries to her

husband. Minor discrepancies, improvements and contradictions

highlighted by the appellants‟ counsel are not fatal to the prosecution case.

Recovery of the crime weapons at the appellants‟ instance is another

incriminating circumstance against them. The plight of the lady can be

seen as she could not visit her husband during his stay in the hospital. She

was under misconception that the injuries sustained by him were not

serious and he would come alive.

The appellants did not give plausible explanation to the

incriminating circumstances in their 313 statements. They had no reasons

to be present inside the victim‟s house at odd hours. In 313 statements,

they were not categorical to claim that the victim had struck against an

electric pole and had suffered injury on head on that count.

11. The appellants were awarded various prison terms including

RI for ten years with fine ` 5,000/- under Section 304 (II)/34 IPC. A-1‟s

nominal roll dated 26.02.2014 reveals that he has suffered incarceration

for four years, four months and twenty one days besides remission for one

year as on 26.02.2014. A-2‟s nominal roll dated 23.07.2013 shows that he

is in custody for five years and eleven months besides remission for eight

months and twenty three days as on 01.08.2013. They are not involved in

any other criminal case and are not previous convicts. They are the first

offenders and their overall jail conduct is satisfactory. The occurrence

took place over a trivial issue. The parties lived peacefully as neighbours

since long without any past history of hostile relations. The injuries

inflicted to the victim were not visible and due to internal injuries, despite

treatment, he could not be saved. Sentence order records that A-1 had a

family consisting of his old parents, pregnant wife and son aged about five

years. He was about 26 years of age and was the sole bread earner of the

family. A-2 was aged about 22 years and was to support a family

consisting of his old parents; he was also the sole bread earner of the

family. At the same time, the Court is not oblivious of the fact that an

innocent life was done to death without any fault of his by giving

merciless beatings without provocation inside his house. Taking into

consideration the mitigating and aggravating circumstances, substantive

sentence is reduced / altered to RI for eight years from RI for ten years.

Other terms and conditions of the sentence order are left undisturbed. The

appellants shall deposit ` 50,000/- each to be paid as compensation to the

deceased‟s wife - Beena Devi, in the Trial Court within fifteen days and

the amount so deposited will be released to her after notice.

12. The appeals stand disposed of in the above terms. Pending

applications also stand disposed of. A-2 is on bail. He is directed to

surrender and serve the remainder of his sentence. For this purpose, he

shall surrender before the Trial Court on 28th July, 2014. Trial Court

record be sent back immediately with the copy of the order. A copy of the

order be sent to the Superintendent Jail for information.

(S.P.GARG) JUDGE JULY 18, 2014 / tr