Sunder Singh & Anr vs State (Govt. Of Nct)
2014 Latest Caselaw 6231 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

        CRL.A. 1097 of 2014 & CRL.M.A. Nos. 10282, 10283 of 2014
        (for suspension of sentences)

                                            Reserved on: November 24, 2014
                                            Delivered on: November 27, 2014

        SUNDER SINGH & ANR                        ..... Appellants
                     Through: Mr. Sundeshwar Lal with
                              Mr. Rahul Tyagi, Advocates.

                                   versus

        STATE (GOVT. OF NCT)                      ..... Respondent
                      Through: Mr. Rajat Katyal, APP.

        CORAM: JUSTICE S. MURALIDHAR

                                   JUDGMENT

27.11.2014

1. This appeal is directed against the impugned judgment dated 3rd June

2014 passed by the learned Additional Sessions Judge („ASJ‟) in Session

Case No. 18 of 2011 arising out of FIR No. 304 of 2010 registered at

Police Station („PS‟) Geeta Colony, Delhi convicting the Appellants,

Sunder Singh and Vinod, for the offence under Sections 304 (Part-II),

323 and 34 Indian Penal Code, 1860 („IPC‟) and the order on sentence

dated 7th June 2014 whereby both of them were sentenced to undergo

rigorous imprisonment („RI‟) of five years with fine of Rs.10,000 each

and in default, to undergo six months‟ SI for the offence under Section

304 (Part-II)/34 IPC and for the offence under Section 323/34 IPC both

of them were sentenced to undergo six months‟ RI. Both the sentenced

were directed to run concurrently. It was also directed that the fine

amount, if realized, was to be paid as compensation to the kin of the

deceased.

2. The case of the prosecution is that DD entry No. 4A was recorded at

0010 hours on 13th November 2010 to the effect that in the jhuggis near

a school at A-43, Rani Garden a quarrel was going on. On receipt of the

said information Head Constable (HC) Ishwar Singh (PW-13) and

Constable Deepak (PW-14) reached the spot, where they were met by

Sub Inspector („SI‟) R.N. Pathak (PW-19), all of whom were attached to

PS Geeta Colony. The spot was described as Ambedkar Park, Rani

Garden near Banta Ki Factory. Upon enquiry, they were informed that

Raju, the deceased had been taken to Dr. Hedgewar Hospital by his

brother, Sanjay (PW-9). Leaving PW-14 at the spot, PW-13 and PW-19

proceeded to the said hospital where PW-19 collected the MLC of Raju

(Ex.PW-18/A) which showed that Raju had been brought by his brother

Sanjay (PW-9) at the hospital at 12.25 am on 13th November 2010 with

the alleged history of assault. The injury was described as "lacerated

wound about 4 cm x .5 cm over right tempero parietal region".

Thereafter at 2.20 am on the same date, the doctor stated on the MLC

that the deceased Raju was unfit for statement.

3. By the time PW-19 reached Dr. Hedgewar Hospital, Raju had been

moved to Guru Teg Bahadur („GTB‟) Hospital at Shahdara. There Raju

succumbed to the injuries. The post-mortem conducted revealed the

cause of death to be the "head injury". In the application for request for

post-mortem (Ex.PW-17/A) the summary of the case was set out. It was

stated that on 13th November 2010 a case was registered on the

complaint of Dhanpal that his son Raju had been beaten by two persons.

The case was initially registered under Section 307/323/34 IPC, on 14th

November 2010. After the death of Raju, Section 302 IPC was added.

4. In his evidence, PW-19 stated that he went to the Swamy Dayanand

Hospital („SDN‟) where he collected the MLCs of Dhanpal (Ex.PW-

7/B) and Monu (Ex.PW-7/A). Both MLCs stated that the injuries

suffered by them were simple.

5. In his testimony before the Court, PW-8 Dhanpal, father of the

deceased Raju, stated that at about 11.45 pm on 12th November 2010

while he was present at his house, one neighbour came and told him that

a quarrel was going on between his son Surender (PW-5) and accused

Sunder (A-1) and Vinod (A-2) in front of the factory of Banta Singh. He

saw that both the accused had caught hold of his elder son Raju and

were beating him with wooden phatties (sticks). When he tried to

intervene, he was attacked by the accused as a result of which he

sustained injuries on his head and left foot. Meanwhile, the other son

Sanjay (PW-9) reached there and took Raju to Dr. Hedgewar Hospital.

6. Since PW-8 was not sticking to the version given by him to the police

in the first instance he was cross-examined by the learned Additional

Public Prosecutor (APP). PW-8 now clarified that on reaching the spot

he saw that both the accused were beating Monu (PW-4) who was his

neighbour. He also noted that his other son, Surender, (PW-5) was

beating the accused to defend PW-4. In the meanwhile, Raju reached

there and questioned them. Thereupon A-1 caught hold of Raju and

exhorted A-2 stating that "maar saale ko jyada bada neta banta hai."

A-2 then assaulted Raju on his head with a danda with intention to kill

him.

7. It appears that A-1 and A-2 also received injuries and they were taken

to SDN hospital. Their respective MLCs (Ex.DW-1/B and Ex.DW-1/A)

show the nature of injuries of both of them to be simple.

8. The other witnesses who had spoken about the presence of both the

Appellants on the spot and their attacking Raju are PW-4, Monu and

PW-5, Surender. PW-6, Suraj and PW-9, Sanjay reached the spot and

noticed Raju lying in the injured condition. They also noted PW-8 was

in an injured condition. They spoke about Raju being taken to Dr.

Hedgewar Hospital.

9. The trial Court on relying upon the above eye-witnesses held that the

case against the Appellants had been proved beyond reasonable doubt.

The trial Court convicted and sentenced the Appellant in the manner

indicated hereinabove.

10. Learned counsel for the Appellants has taken the Court through the

entire evidence. It was submitted that there were several inconsistencies

in the versions of the prosecution witnesses. He focused on the place of

occurrence and tried to develop the alternate theory that there were two

places of occurrence in the prosecution case which vitiated the

conclusion of the trial Court. He referred to the computerized site plan

(Ex.PW-10/A) in support of his submission. He referred to the

deposition of the prosecution witnesses who at various points had

described the place of occurrence as either at the jhuggis near the school

at Rani Garden or Rani Garden Chowk or the area opposite Banta ki

factory.

11. The site plan Ex.PW-10/A gives the precise location of where the

Appellants were beating PW-4 (marked A), where PW-5 and Raju had

intervened (marked B), where A-1 caught hold of and A-2 attacked Raju

with danda (marked C) and where PW-8 had intervened and got beaten

by A-2 and A-1 (marked D). These four positions are outside the jhuggis

near Rani Garden Chowk opposite Banta Singh‟s factory. This is more

or less consistent with the place described by the prosecution witnesses.

The Court is, therefore, not prepared to accept the submission of learned

counsel for the Appellants that there is any reasonable doubt or

confusion created as regards the area and place of occurrence.

12. An alternate theory sought to be developed by learned counsel for

the Appellants was that Raju was not present at the place of occurrence

and that he was run over by a car and had suffered injuries as a result

thereof. In support of this submission, reliance is placed on the death

summary (Ex.PW-20/A) issued by GTB Hospital which noted that

"patient allegedly had a history of RTA on 13 th November 2010

following which he got unconscious."

13. The report of the post-mortem (Ex.PW-3/A) conducted at GTB

Hospital mentions the fact that the deceased suffered injuries after

physical assault with sticks. As already noticed, even in the application

of request for post-mortem (Ex.PW-17/A), the summary of the case was

mentioned that PW-8 and Raju was beaten by the accused persons. The

death report (Ex.PW-17/B) also noted that the injury on the head was

caused by a wooden stick. Therefore, as rightly pointed out by learned

APP, the above quoted line in the death summary (Ex.PW-20/A) appears

to be a mistake.

14. A reference has also been made to the answer given by Dr. Thejaswi,

Senior Demonstrator, AIIMS, Delhi (PW-3) that the injuries suffered by

Raju "are possible with if hit with moving vehicle." The above answer

again cannot be read out of the context. When she was asked if it is

possible to receive such an injury if the head of the deceased rammed

against a stationery vehicle, she answered the negative and then gave the

above answer which has been quoted. This cannot override the

categorical written opinion and the description of the manner of the

occurrence in the records of the case. PW-3 also opined that the wooden

stick recovered by the police could have been used to cause injuries as a

result of which Raju died.

15. It was submitted that there were no blood stains on the wooden stick

despite the fact that Raju had died on account of head injury and even

PW-8 had suffered head injury from the stick. It was further submitted

that there was no mention in the MLCs as to all the accused causing

injuries to the deceased.

16. The MLC need not set out all the details with regard to the offence.

In the considered view of this Court, merely because the danda did not

contain blood stains, the evidence of the injured eye-witnesses about the

manner in which the occurrence took place does not get diluted. In the

present case, the evidence of the injured eye-witnesses PWs 4, 5 and 8 is

trustworthy and truthful.

17. The alternate theory that all the injured eye witnesses and the

deceased suffered injuries as a result of being hit by car has not been

substantiated by the defence. Only suggestions to that effect were given

to some of the prosecution witnesses in their cross-examination, which

of course were promptly denied.

18. Learned counsel for the Appellants tried to show inconsistencies in

the evidence of the prosecution witnesses as regards who took deceased

Raju to the hospital. While some witnesses deposed that he was taken by

the PCR van, certain others stated that PW-9 took the deceased to the

hospital. In the considered view of the Court, this is not a material

inconsistency that affects the case of the prosecution.

19. The MLC of the accused (Ex.DW-1/B and Ex.DW-1/A) reveals the

presence of alcohol in both of them. This further lends credence to the

version of the injured eye-witnesses.

20. The Court is unable to find any error having been committed by the

trial Court in convicting the Appellants for the offence under Section

304 (Part-II), 323 and 34 IPC. Also considering the nature of the injuries

and the manner of occurrence, sentence awarded to each of them cannot

be said to be disproportionate.

21. The appeal is dismissed.

22. The trial Court record along with a certified copy of this judgment be

sent back forthwith.

S. MURALIDHAR, J.

NOVEMBER 27, 2014 Rk