Pradeep Kumar vs The State (Nct Of Delhi)
2014 Latest Caselaw 2715 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     RESERVED ON : 3rd APRIL, 2014
                                     DECIDED ON : 27th MAY, 2014

+     CRL.A.1165/2011 & CRL.M.B.No. 18/2014

      PRADEEP KUMAR                                    ..... Appellant

                         Through :    Mr.Mukesh Kalia, Advocate with
                                      Mr.Hansraj Singh, Advocate.


                         VERSUS

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

                         Through :    Mr.Lovkesh Sawhney, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Pradeep Kumar (the appellant) impugns a judgment dated

17.08.2011 of learned Addl. Sessions Judge in Sessions Case No. 32/2011

arising out of FIR No. 327/2010 PS Timarpur by which he was held guilty

under Sections 452/341/304 part-II IPC. By an order dated 24.08.2011, he

was awarded RI for four years with fine ` 5,000/- under Section 452 IPC;

SI for fifteen days under Section 341 IPC; and, RI for seven years with

fine ` 50,000/- under Section 304 part-II IPC. All the substantive

sentences were to operate concurrently.

2. Shorn of details, the prosecution case as reflected in the

charge-sheet was that on 14.12.2010 at about 08.00 P.M., in gali No.16,

Shiv Mandir, Wazirabad, the appellant wrongfully restrained Ram Balak

Yadav and Deepak Yadav in the gali. Soon thereafter, he gave severe

beatings to Deepak Yadav in his house which resulted in his death. The

police machinery was set in motion when information about the incident

as recorded in PCR form (Ex.PW-2/A) was conveyed to the Police

Control Room at 20:45:14 hours. The victim was taken to Sushruta

Trauma Centre and was medically examined by MLC (Ex.PW-4/A). He

succumbed to the injuries on 30.12.2010 in the Trauma Centre. Post-

mortem examination on the body was conducted. The Investigating

Officer lodged First Information Report after recording complainant -

Ram Balak Yadav's statement (Ex.PW-6/A) on 15.12.2010. Statements of

the witnesses conversant with the facts were recorded. On 04.01.2011, the

appellant surrendered in the Court and was arrested. After completion of

investigation, a charge-sheet was submitted against the accused; he was

duly charged and brought to trial. The prosecution examined nineteen

witnesses to prove his guilt. In 313 statement, he abjured his guilt and

claimed to be tried. The defence chose not to adduce any evidence. The

trial resulted in his conviction as aforesaid. Being aggrieved and

dissatisfied, he has preferred the appeal.

3. Appellant's counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective and fell into

grave error in relying upon the testimony of interested witness PW-6

(Ram Balak Yadav) without independent corroboration. Vital

improvements in the testimony of PW-6 (Ram Balak Yadav) in Court

statement were ignored. PW-1 (Veer Sain) did not support the prosecution

and turned hostile. The complainant was a falsely introduced witness who

never lived at the given address. The inordinate delay in lodging the First

Information Report remained un-explained. Adopting the alternative plea,

counsel urged that even if the prosecution case was accepted in toto, the

offence could not go beyond Section 325 IPC as the incident took place

all of a sudden without pre-meditation and the appellant was not armed

with any dangerous weapon; no visible injuries were caused to the victim.

Appellant's counsel voluntarily offered to pay ` 50,000/- as compensation

to the legal heirs of the deceased. Learned Addl. Public Prosecutor urged

that no sound reasons exist to discard the testimony of the complainant

who had witnessed the incident and had no ulterior considerations to

falsely implicate the appellant.

4. PW-1 (Veer Sain), landlord, though did not support the

prosecution in entirety and resiled from the previous statement (mark 'A')

nevertheless, deposed that Ram Balak Yadav and his nephew Deepak

(since dead) lived on the ground floor of House No. 240, Gali No.16, Shiv

Mandir, Wazirabad as tenants. He also deposed that incident occurred in

the presence of Ram Balak Yadav. Someone called the PCR and took the

victim to the hospital. His son Raj Kamal also accompanied them. The

testimony goes to prove the relationship of landlord and tenant between

PW-1 (Veer Sain) and Ram Balak Yadav, and also confirms Ram Balak

Yadav's presence at the spot. Mere non-execution of rent-note or tenancy

agreement is not a vital factor to doubt / suspect this relationship.

5. The time of occurrence was at around 08.00 P.M. on

14.12.2010. PW-6 (Ram Balak Yadav) made PCR call in promptitude and

the information was recorded at 20.45.14 hours in PCR form (Ex.PW-

2/A). PW-2 (Const.Poonam) deposed that she received the information

from mobile No. 9650183700 about an individual lying injured in a

quarrel in Gali No.16, Shiv Mandir, Wazirabad. Daily Diary (DD) No.

35A (Ex.PW-9/A) was recorded at PS Timarpur at 20.50 hours. PCR form

(Ex.PW-2/A) further records that the injured who sustained injuries in a

quarrel with a neighbour was taken by PCR officials to Trauma Centre.

MLC (Ex.PW-4/A) records the arrival time of the patient with the alleged

history of 'physical assault' at 09.00 P.M. The patient was conscious,

confused and irritable; he was unfit to make statement. MLC further

reveals that the patient did not come to senses and remained unfit for

statement on subsequent dates. Finally, he succumbed to the injuries and

could not survive despite getting medical treatment continuously at the

Trauma Centre. The prosecution produced examining doctor PW-4

(Dr.Satyendra Kumar) to prove MLC (Ex.PW-4/A). On local

examination, no visible external injury was found. PW-11 (Dr.Vikas

Kumar) brought the original case history-sheet of the patient and proved

the report of NCCT Head (Ex.PW-11/A). As per record, the nature of

injuries were 'dangerous' in nature from neuro surgical side. He further

deposed that the patient remained unfit to make statement on various dates

as reflected in the MLC (Ex.PW-4/A) on Ex.PW-11/B to Ex.PW-11/D.

PW-5 (Dr.S.Lal) conducted post-mortem examination (Ex.PW-5/A) on

the body on 31.12.2010. The cause of death was intra-cranial

haemorrhage consequent upon blunt force impact on head, sufficient to

cause death in the ordinary course of nature. Apparently, it was a case of

culpable homicide.

6. Crucial testimony is that of PW-6 (Ram Balak Yadav) whose

statement (Ex.PW-6/A) formed the basis for recording First Information

Report. It gave a detailed account of the incident. No deficiency in terms

of the omission of the name or the role played by the accused was pointed

out by the counsel. He specifically named the appellant Pradeep Kumar to

be the author of injuries caused to his nephew Deepak Kumar Yadav.

While appearing as PW-6, in Court statement, he proved the version given

to the police without major variation and deposed that on 14.12.2010

when he and his nephew Deepak Kumar Yadav were coming back to their

house No. 240, Gali No.16, Shiv Mandir, Wazirabad, on a cycle being

peddled by Deepak Kumar Yadav, Pradeep Kumar who was attending a

mobile call was standing in the gali. When he and Deepak Kumar Yadav

overtook him, he came and asked them to remove the cycle from the way.

On Deepak telling that it was a narrow lane, he started giving beatings to

the victim with kicks and fists. He intervened to save the victim and

brought him to his house. He further deposed that at about 08.00 P.M., the

appellant again came to his house and started beating the victim. He

banged his head against the wall and threw him (the victim) on the floor

and gave beating. Blood started oozing out from the mouth and nose.

Again, he banged the victim's head against the ground. On his raising

alarm, his landlord and son came down. He took the victim to his room;

covered him with a blanket, made a telephone call to the police at 100. He

brought him on his shoulders outside in the gali. After fifteen minutes, the

PCR van took the victim to the hospital. In the cross-examination, he

admitted that on enquiry from PCR officials, he disclosed he was Ram

Balak Yadav calling from Wazirabad. He fairly admitted that at the time

of taking the room on rent, no rent agreement was executed and the

landlord did not seek police verification. In the PCR van, there were three

police personnel besides him and the victim. PCR officials remained in

the hospital for about ten minutes. He remained in the hospital till the

victim expired. Explaining the delay in lodging FIR, he stated that due to

fear, he did not go to the police station. He also admitted that the police

did not seize his clothes and clothes of the victim. He denied the

suggestion that he did not witness the incident or falsely implicated the

appellant. On a consideration and appraisement of the evidence of the eye

witness, it is clear and apparent that despite searching in-depth cross-

examination, no material discrepancies / contradictions could be elicited

to disbelieve the version narrated by the victim's uncle. No ulterior motive

was assigned to the witness to falsely implicate the appellant with whom

he had no prior animosity. Both of them lived in the vicinity and had no

past history of hostile relations. The occurrence had taken place all of a

sudden on a trivial issue when the appellant commanded the victim to

remove the cycle from the narrow lane. The victim's refusal to remove the

cycle from the way infuriated the appellant and he turned violent to cause

merciless beatings to him at the spot. After the matter was pacified due to

the intervention of this witness, again, he went to the victim's house and

gave severe beatings which proved fatal. Presence of this witness at the

spot has been spoken to by PW-1 (Veer Sain). PW-6 (Ram Balak

Yadav)'s presence at the spot was quite natural and probable as he lived

with the victim in the rented accommodation. Soon after the occurrence,

he put the police machinery into motion making a call on his mobile at

08.45 P.M. PCR form (Ex.PW-2/A) records the name of the informant

with his mobile number. He took the victim to Trauma Centre in the PCR

van and remained present throughout there. Lapses on the part of the

Investigating Officer in not recording his statement at the Trauma Centre

cannot be a ground to discredit his otherwise cogent and reliable

testimony. PW-14 (ASI Devi Ram) to whom the investigation was

assigned went to Trauma Centre where the victim was admitted and was

opined unfit for statement. He stated that finding no eye witness in the

hospital or at the spot, he came back to the police station. Apparently, he

(the Investigating Officer) did not perform his duties sincerely. Despite

the name of the informant, his mobile number and address appearing in

Ex.PW-2/A, no sincere efforts were made by him to contact him [the

informant - PW-6 (Ram Balak Yadav)]. On 15.12.2010, he lodged First

Information Report after recording Ram Balak Yadav's statement

(Ex.PW-6/A). For delay in lodging the report, only the Investigating

Officer can be faulted. It is true that certain improvements have been

made by the complainant in his deposition before the Court on certain

facts which did not find mention in the statement (Ex.PW-6/A). These

omissions, however, do not affect the basic structure of the prosecution

case and can be considered as elaboration of the facts disclosed in the

statement (Ex.PW-6/A). PW-6 attributed specific role to the appellant and

implicated him for the brutal beatings given to the victim. The Court can

assume that a related witness would not ordinarily shield the real offender

to falsely implicate an innocent person. PW-6's version appears to be

natural and probable and inspires implicit confidence. It is in consonance

with medical evidence referred above. In 313 statement, the appellant did

not give plausible explanation to the incriminating circumstances

appearing against him. He did not deny his presence at the spot. All the

relevant contentions / pleas raised by the appellants have been elaborately

examined by the Trial Court. The evidence has been appreciated in

consonance with the rule of prudence and law. These findings can neither

be termed as perverse or improper to warrant intervention. Apparently,

the appellant was the author of the injuries caused to the victim. In the

initial confrontation in the gali, the appellant had given beatings to the

victim. On the intervention of PW-6 (Ram Balak Yadav), the mater was

pacified and the victim was brought to the house. However, it did not

deter the appellant. He again, dared to go inside the house and inflicted

numerous blows with force on vital part of the body which reflects his

violent nature. He even banged victim's head against a wall. Apparently,

the repeated multiple injuries were caused with the avowed object or

knowledge to cause death or else he had no reasons to forcibly enter the

house once the dispute had come to an end on Ram Balak Yadav's

intervention in the street itself. The conviction under Section 304 part-II

IPC cannot be faulted.

7. The appellant was sentenced to undergo RI for seven years

with fine ` 50,000/- under Section 304 part-II IPC. Nominal roll dated

31.03.2014 reveals that he has already undergone three years, two months

and twenty seven days incarceration besides remission for eleven months

and four days as on 31.03.2014. It further reveals that he is not a previous

convict; has clean antecedents and is not involved in any other criminal

case. His overall jail conduct is satisfactory. Sentence order records that

he was a young boy aged about 21 years; doing Computer course from Hi

Tech Institute, Kingsway Camp. The occurrence took place on a trivial

issue at the spur of the moment. The appellant was not armed with any

weapon. There was no past history of hostile relations. At the same time,

the Court cannot be oblivious of the fact that the victim was also a young

boy aged about 26 years and was sole bread earner of the family. He was

unarmed at the time of occurrence and did not retaliate in turn to cause

injuries to the aggressor. Due to the violent acts of the appellant over a

petty issue, a young life was lost.

Considering the mitigating / aggravating circumstances and

taking into account the offer of the appellant to pay reasonable

compensation to the victim's family, sentence order is modified and the

substantive sentence of RI for seven years is reduced to RI for six years.

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

appellant shall deposit ` 50,000/- as compensation within fifteen days

besides unpaid fine (if any) in the Trial Court and it will be released to the

victim's parents and wife (if the victim was married) in equal proportions

after due notice. ` 50,000/- shall also disbursed as compensation on

realization of the fine amount imposed by the Trial Court to them.

8. The appeal stands disposed of in the above terms. Pending

application also stands disposed of. 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 MAY 27, 2014 / tr