Satish And Ors. vs State
2014 Latest Caselaw 2622 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CRIMINAL APPEAL NO. 571/1999

%                                  Date of decision: 22nd May, 2014

       SATISH AND ORS.                               ..... Appellants

                   Through Mr. M.L. Yadav, Advocate.

                         Versus

       STATE                                        ..... Respondent

Through Ms. Rajdipa Behura, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE G.P. MITTAL

SANJIV KHANNA, J. (ORAL):

Mangal, one of the appellant, has expired and the present appeal

has been pressed on behalf of Satish and Subhash who are aggrieved

by their conviction under Section 302 read with Section 34 of the

Indian Penal Code 1860 ( for short „IPC‟) for murder of Maya Devi.

The appellants were also convicted under Section 324 read with

Section 34 of IPC for having caused simple injuries to Kitab Singh.

The impugned conviction arises out of FIR No. 410/96, P.S. Sultan

Puri, which became subject matter of Sessions Case No. 394/96.

2. By order on sentence dated 30th September, 1999, both the

appellants have been sentenced to undergo imprisonment for life and

to pay a fine of Rs.1000/- each under Section 302 IPC, and in default of

payment of fine to undergo further rigorous imprisonment for a period

of two months each. For the offence under Section 324 IPC, they have

been directed to undergo rigorous imprisonment for a period of one

year each.

3. On the question of occurrence in question, the prosecution relies

upon testimonies of the injured eye witness Kitab Singh (PW-1), and

Shashi Kumar (PW-4), brother of Kitab Singh and husband of the

deceased Maya Devi. PW-1 in his deposition recorded on 29th January,

1997 had identified the two appellants and stated that on 18 th April,

1996, when he was going to Nangloi with the deceased Maya Devi,

they were confronted by the two appellants along with Mangal

(deceased) and Raj Kumar (who has not been arrested and declared a

proclaimed offender). Maya Devi was questioned why she had lodged

a complaint against them in the police station. They urged that Maya

Devi should be taught a lesson. Thereupon, Mangal (deceased) caught

hold of Maya Devi and the appellant Satish inflicted injuries on her

with a knife. Raj Kumar (proclaimed offender) caught hold of PW-1

and the appellant Satish threw a stone on his leg, as a result of which

PW-1 had suffered an injury. Appellant-Subhash also caused injuries

on the chest and left thumb of PW-1. Kitab Singh (PW-1) had claimed

that his foot broke i.e., he had suffered a fracture. After causing

injuries, the two appellants along with Mangal (deceased) and Raj

Kumar (proclaimed offender) escaped. The police came and took the

deceased Maya Devi and Kitab Singh (PW-1) to the Deen Dayal

Upadhaya Hospital (for short "DDU") where they were examined.

Subsequently, Maya Devi died due to the injuries caused. In the

cross-examination, Kitab Singh (PW-1) deposed that the appellant

Subhash had hit him with a big stone which could be lifted with both

hands. But neither the said stone nor the knife was recovered in his

presence.

4. Shashi Kumar (PW-4) in respect of the occurrence of 18th April,

1996 has testified that at about 11.30 A.M., Maya Devi and Kitab

Singh (PW-1) had gone towards Budh Bazar Road where they were

accosted by the appellants Satish and Subhash, Mangal (deceased) and

Raj Kumar (proclaimed offender). Mangal (deceased) caught hold of

his wife Maya Devi and the appellant Satish caused injuries on his

wife with a knife, whereas Raj Kumar (proclaimed offender) caught

hold of Kitab Singh (PW-1) and the appellant Subhash inflicted injuries

on him with a knife. He claimed that he had raised alarm and

thereupon the appellants along with Mangal (deceased) and Raj Kumar

(proclaimed offender) ran away. However, in the cross-examination,

PW-4 had stated that the incident had taken place on the main road

and he was informed by a third person about the quarrel as he was in

his own house. The said occurrence had taken place 5-7 minutes after

Maya Devi had left the house. He did not intervene or rescue the

injured Kitab Singh (PW-1) or his wife Maya Devi, and when he

reached the spot, 10-15 persons were already present. It, therefore,

appears that Shashi Kumar (PW-4) was not a witness to the actual

occurrence and had reached the spot immediately after the occurrence,

when he heard noise and was informed about the quarrel by a third

person, as deposed in his cross-examination. However, this would not

deviate and negate the testimony of Kitab Singh (PW-1), the injured

eye witness who was certainly present at place and time of occurrence.

The presence of PW-1 was also proved and established beyond doubt

in view of his MLC, Ex.PW13/A, recorded at DDU Hospital at 1.10

PM. The MLC of Kitab Singh (PW-1) records that the patient was

conscious and oriented and had suffered an incised wound of one inch

on the right side of chest. Other wounds were also indicated in the said

MLC. History of assault has been mentioned as a cause of the said

injuries received by the patient. The averments made by Kitab Singh

(PW-1) that the appellant Satish had broken his foot does not appear to

be correct as this is not borne out from the MLC Ex. PW13/A. The

MLC also records that some of the injuries were caused by a sharp

weapon, while others were blunt in nature. Other possible

exaggerations in the statement of Kitab Singh (PW-1) have been

discussed below.

5. Learned counsel for the appellants has drawn our attention to the

deposition of Kitab Singh/PW-1 and Shashi Kumar/PW-4, recorded on

22nd January, 1998 after they were recalled for further cross-

examination. PW-1 and PW-4 in their cross-examination recorded on

recall have completely denied the occurrence and involvement of the

two appellants. PW-1 has gone to the extent of stating that he had gone

for his job and returned on 18th April, 1998 at about 2.30 PM and was

not present with the deceased Maya Devi when she was stabbed. He

subsequently came to know that the deceased Maya Devi had suffered

injuries. Similarly, PW-4 who was the husband of the deceased Maya

Devi on his recall cross-examination conducted on 22nd January 1998,

had stated that he had not spoken to or told the police, the names of the

appellants and he did not know them. He had come to know about the

occurrence at about 12.30 PM from a neighbour.

6. We are not inclined to accept and rely upon the testimonies of

PW-1 and PW-4 as recorded on 22nd January, 1998. Complete

summersault taken by PW-1 and PW-4 does not inspire confidence.

We are inclined to substantially accept the testimonies of PW-1 and

PW-4 as they were earlier recorded on 29th January, 1997 and 29th

April, 1997 respectively, subject to the reservation expressed by us on

the deposition of PW-4 and some exaggerations by Kitab Singh (PW-

1).

7. The main issue raised by the learned counsel for the appellants

in the present appeal pertains to justification of the conviction under

Section 302 IPC. It is submitted that the conviction of the appellant

Satish should have been under Section 299 read with Section 304 Part I

or II IPC. It is further submitted that a common intention cannot be

attributed to the appellant Subhash for the injuries caused to the

deceased Maya Devi. His role as per the testimony of PW-1 was

confined and restricted to the injuries caused by a stone on Kitab

Singh (PW-1).

8. The MLC of the deceased Maya Devi though available on the

trial court record was not proved and has not been given an exhibit

number. Learned counsel for the appellants has drawn our attention to

the death summary report prepared by the DDU Hospital dated 21 st

April, 1996. The said report was filed by the prosecution and is part of

the trial court record and in view of the submission made by the

learned counsel for the appellants, the same has been marked as Ex.PX.

The death summary report or intake and output record of DDU

Hospital mentions that there were nine stab wounds with suspect of

hemoperitoneum. The operation findings refer to two lacerated wounds

and one CIW injured wound over the outer wall of stomach up to

mucosa. In the diagrams, locations of the injures have been indicated.

It is recorded that after the operation the patient had shown changes

during the first two days but on 21st April, 1996 in the morning at 9

AM the patient had pulled out the ryles tube and fistula. She had

earlier also done the same on three occasions. After the surgery the

patient was conscious. Attempt was made to fix IV line but without

success and the patient was shifted to ICU from the ward.

Subsequently, at 1.30 PM the patient suddenly suffered cardiac arrest

and died.

9. The post mortem on the body of the deceased Maya Devi was

conducted by Dr. Kamal Singh (PW10). He had deposed that the post

mortem was conducted on 22nd April, 1996 at 1.50 PM and the cause of

death to the best of his knowledge and belief was due to injuries which

were ante mortem in nature. These injuries were caused by a sharp

edged weapon and injuries no. 4 and 6 were sufficiently or otherwise

collectively sufficient to cause death in an ordinary course of nature.

Death was due to shock resulting from injuries. This is contrary to

what has been deposed in the death summary report which mentions

that the death was due to cardiac arrest, though it can be argued that the

injuries might have caused the cardiac arrest. In the cross-examination,

PW-10 went on to state that there were 15 injuries which were again

not proved or established and not stated in the death summary report.

He had stated that most of the injuries were grievous and there were

some stab injuries. On the said aspect, we would refer to the testimony

of Kitab Singh (PW-1) who had deposed that only one knife wound

was given by the appellant when he deposed that the appellant Satish

had inflicted injury on the deceased Maya Devi with a „chhuri‟. Ex.

PX refers to two injuries, other injuries it appears were not significant.

10. Learned counsel for the appellants has drawn our attention to the

MLC of the appellant Subhash which was not given exhibit number

before the trial court. However, in view of the reliance placed by the

learned counsel for the appellants, the same has been taken into

consideration by us and has been marked as Ex.PY. The said MLC

records that the patient i.e., appellant Subhash was brought by

Constable Rajbir Singh of P.S. Sultan Puri to the DDU Hospital for

medical examination. The patient had alleged history of assault and

claimed that he was wounded by a knife during a fight for knife. The

appellant Subhash had received multiple incised wounds on right hand

with main injury below the right thumb and two incised wounds on the

left thumb.

11. These are important and relevant circumstances required to be

taken into consideration before we decide the question whether the

appellants have been rightly convicted under Section 302 read with

Section 34 IPC or should have been convicted for culpable homicide

not amounting to murder under Section 304 read with Section 34 IPC.

Deceased Maya Devi had died after three days of hospitalization and

we have already referred to the death summary report as to the reason

for cause of her death recorded therein.

12. At this stage, it would be important to refer to the testimony of

Kitab Singh (PW-1) and Shashi Kumar (PW-4) as to the

dispute/quarrel which had taken place on 17 th April, 1996. Shashi

Kumar (PW-4) had stated that on 17th April, 1996 he was beating a

drum on behalf of an election candidate seeking votes, when two boys

namely Ladi and another, whose name he did not know, were

quarrelling. The second boy came and asked Shashi Kumar (PW-4)

about Ladi. Thereupon, PW-4 had given the identity and the details of

Ladi, who was standing at a distance of 5/7 ft. The accused thereupon

had come to PW-4 and objected and quarrelled with him why he had

given the address of Ladi and identified him. In the meanwhile, the

deceased Maya Devi came there and she was abused. Later Maya

Devi informed the police and had also brought two constables. The

accused, however, had run away from the spot. Similar statement was

made by PW-1 about the occurrence on 17th April, 1996 that the

deceased Maya Devi had gone to the police station and lodged a report

against the accused. On 18th April, 1996 at about 11.30 AM the police

had come to their house in connection with the complaint but the

accused had run away from their houses.

13. So called complaint made by the deceased Maya Devi has not

been brought on record and we do not know the details and the nature

of the complaint. As noticed above, PW-1 and PW-4 in their

subsequent depositions after being recalled for cross-examination had

completely resiled and exonerated the appellants but we have rejected

the said depositions and have relied upon their first depositions.

However, it is not the case of the prosecution that the appellants,

Mangal (deceased) and Raj Kumar (proclaimed offender) were known

as Ladi. Even if we accept that earlier occurrence had taken place on

17th April, 1996, it is clear that the said occurrence cannot be called and

regarded as a major quarrel to constitute a reason/motive for murder.

There is no allegation that on 17th April, 1996 any physical violence

had occurred. At best there was exchange of words. In this context,

we would now like to refer to the statement of Kitab Singh (PW-1) as

to the actual occurrence and what had happened on 18 th April, 1996

when injuries were inflicted on Maya Devi and PW-1. The exact

testimony of PW-1 is reproduced below:-

"On 18.04.96, we were going to Nangloi along with my deceased Bhabi Maya Devi and when we reached in the Budh Vihar Chowk, Accd. Satish, Subhash, Mangal present in the court and Raj Kumar who is not present in the court were coming in front of us and they told that Maya Devi had lodged a complaint against us in the PS and she be taught a lesson. Accd. Mangal caught hold of Maya Devi and accd. Satish inflicted injury on her with churi. Raj

Kumar caught hold of me and accd. Subhash present in the court had thrown stone on my leg, as a result, I received injury. Accd. Subhash also caused injury on my chest and left thumb."

14. What is clear and intelligible from the statement of PW-1 Kitab

Singh is that the accused who were present had accosted PW-1 and

the deceased Maya Devi. They had stated that Maya Devi should be

taught a lesson. Separate and specific role was attributed to Mangal

(deceased) and the appellant Satish on the one hand and Raj Kumar

(proclaimed offender) and the appellant Subhash on the other hand.

The appellant Subhash had thrown a stone on the leg of PW-1 and had

also caused injuries on chest and left thumb of PW-1. PW-1 has not

deposed and stated about use of knife on PW-1 or that appellant

Subhash had caused injuries or attacked Maya Devi. In this

connection, it would be appropriate to notice the injuries which were

suffered by the appellant Subhash as noticed in his MLC marked as

Ex.PX. The said injuries were caused by a sharp edged weapon on the

right hand and left thumb of the appellant Subhash. It therefore

appears that there was a fight after a verbal exchange and injuries were

also caused to the appellant Subhash. Sharp weapon was used to cause

injuries on the appellant Subhash. This indicates that there is a

possibility that someone from the other side was armed and possibly

had used a sharp edged weapon.

15. In view of the aforesaid discussion, we find it difficult to accept

that the appellant Subhash had common intention under Section 302

read with Section 34 IPC as to the knife injuries on Maya Devi, which

were inflicted by the appellant Satish with a chhuri, while Mangal

(decased) had caught hold of her. This may have happened at spur of

moment when altercation took place. Injuries on the appellant Subhash

indicate attempt to snatch the knife, or a sharp edged weapon. Kitab

Singh (PW-1) has not attributed any specific words or utterances to the

appellant Subhash. Even as per the version given by Kitab Singh (PW-

1) and Shashi Kumar (PW-4), the appellants, Mangal (deceased) and

Raj Kumar (proclaimed offender) had accidentally met Maya Devi and

Kitab Singh (PW-1). We do not think it would be safe to hold that the

appellant Subhash had common intention, especially noticing the fact

that he had only given injuries by throwing a stone on the leg of Kitab

Singh (PW-1) and caused minor injuries on his chest and left thumb.

However, for the reasons stated above we find sufficient grounds to

convict the appellant Subhash under Section 324 IPC for the injuries

caused to Kitab Singh (PW-1). The said conviction under Section 324

IPC is maintained.

16. This brings us on the question whether conviction of the

appellant Satish should be converted from Section 302 IPC to Section

304, Part I IPC. We have already referred to the death summary report

marked as Ex.PX, as well as the MLC of Subhash marked as Ex.PY.

We have quoted the testimony of PW-1 as to the actual occurrence.

We have also noted the difference between the testimony of PW-10

Dr. Komal Singh and the post mortem report and what has been stated

and opined in the death summary report Ex. PX. The purported

happening on 17th April, 1996 has not been deposed to by any of the

police officers. Even the investigating officer SI Bhoop Singh PW-12

did not refer to any occurrence or incident of 17th April, 1996. PW-12

has referred to DD Entry No. 19-A which was handed over to him and

thereupon he had reached the spot, but no one met him there. DD

Entry 19-A again has not been proved and given exhibit number but is

available on trial court record. The said DD Entry records that one

lady Constable Prabha had informed that one boy at Aman Vihar

Crossing had been stabbed with a knife. This also to some extent

supports the version given by Subhash in his MLC Ex. PY. The

medical examination of Subhash was undertaken pursuant to an

application given by SI Bhoop Singh PW-12 that refers to DD Entry

No. 19-A.

17. However, learned counsel for the State has drawn our attention

to the fact that the FIR was registered at 3.30 PM and refers to the

previous occurrence on 17th April, 1996. Be that as it may, we have

noticed that some doubts exist as to the occurrence of 17th April, 1996.

Whether acrimony and antagonism generated on 17th April, 1996 had

resulted in the occurrence of 18th April, 1996, or more had happened

immediately before the said occurrence is something which remains

uncertain and debatable.

18. In these aforesaid circumstances, serious doubts persist whether

the version given by Kitab Singh (PW-1) and Shashi Kumar (PW-4)

about the previous occurrence on 17th April, 1996 is correct as they

were overstating and exaggerating the 17th April incident to implicate

the appellant Satish and others for an offence under Section 302 IPC.

19. In view of the aforesaid discussion, possibility of a sudden

quarrel without premeditation covered by exception 4 to Section 300

cannot be ruled out.

20. Keeping in view aforesaid facts and the reasons, we convert the

conviction of the appellant Satish from murder to culpable homicide

not amounting to murder under Part I of Section 304 read with Section

299 IPC.

21. This brings us to the question of sentence which should be

imposed on the appellant Satish. As per nominal roll, he has already

undergone incarceration of three years, eight months and eight days as

on 29th December, 1999. The appellant Satish was directed to be

released on bail on suspension of sentence vide order dated 25 th

August, 2000. In other words, the appellant Satish appears to have

undergone the rigorous imprisonment of more than four years and four

months excluding remission. We sentence the appellant Satish to

undergo rigorous imprisonment for a period of seven years and impose

fine of Rs.1000/-. In default of payment of fine he shall undergo

simple imprisonment for a period of two months for the offence under

Section 304 Part I, IPC. The appellant Satish shall surrender within a

period of one month to undergo the remaining sentence.

22. As far as the appellant Subhash is concerned, we have

maintained his conviction under Section 324 IPC. He had been

sentenced to undergo rigorous imprisonment for a period of one year

by the trial court. As per the nominal roll dated 29th October, 1999 of

the appellant Subhash, he had already undergone rigorous

imprisonment of three years and seven months. The appellant Subhash

was subsequently released on suspension of sentence after order dated

25th August, 2000 was passed. In these circumstances, the appellant

Subhash has already undergone the sentence imposed under Section

324 IPC. Therefore, his personal bond and surety bond are discharged.

23. The appeal is disposed of.

SANJIV KHANNA, J

G.P. MITTAL, J MAY 22, 2014 Mg/VKR