Daya Nand Giri vs The State (Nct Of Delhi)
2015 Latest Caselaw 3224 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI
+                     CRIMINAL APPEAL NO. 654/1999

                                            Reserved on: 21st January, 2015
%                                        Date of Decision: 22nd April, 2015

         DAYA NAND GIRI                                  ....Appellant
             Through Mr. Sumeet Verma and Mr. Amit Kala, Advocates.
                                   Versus

    THE STATE (NCT OF DELHI)                         ...Respondent
        Through Ms. Aashaa Tiwari, APP along with
               Inspector Sunil Kumar, P.S. Mehrauli.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR

SANJIV KHANNA, J.

Daya Nand Giri impugns the judgment dated 21st August, 1999 in Sessions Case No.11/1998 arising out of charge sheet filed in FIR No.187/1998, Police Station Mehrauli, convicting him under Section 302 of the Indian Penal Code, 1860 (IPC, for short) for having committed murder of his co-security guard Hari Om in the intervening night between 8 th and 9th April, 1998 at J.S. Farms, village Dera, Mehrauli, Delhi. The appellant has also challenged the order on sentence dated 23rd August, 1999 by which he has been sentenced to undergo imprisonment for life, fine of Rs.5,000/-, and in default of payment of fine, to undergo rigorous imprisonment for two years. Benefit of Section 428 of the Code of Criminal Procedure, 1973 (Cr.P.C., for short) has been granted.

2. The appellant has challenged his conviction on merits and in the alternative that the offence should be converted to one under Section 304, Part I or Part II of the IPC. We would first examine the contention whether there is sufficient evidence to establish that the appellant Daya Nand Giri was the perpetrator who was responsible for the homicidal death of Hari

Om. The factum that Hari Om had died a homicidal death is not in dispute. This aspect has been also examined while answering the question raised above.

3. On the question that the deceased Hari Om was a co-security guard deployed at the J.S. Farms, village Dera at the date and time of occurence along with the appellant, we have evidence in the form of testimonies of two brothers; Abrar Ahmed (PW-1) and Asrar Ahmed (PW-7), who were working as gardeners at the said farm, and Rajeev Chadha (PW-6), Staff Officer Marwell Security International. They have deposed affirming the said factual position.

4. Abrar Ahmed (PW-1) and Asrar Ahmed (PW-7) have also deposed that in the morning of 9th April, 1998, dead body of Hari Om was found lying in the security-guard room and the appellant-Daya Nand Giri and his minor sister, who were residing in the same room, were missing and had absconded. Rajeev Chadha (PW-6) has stated that at about 8.30 A.M. on 9th April, 1998, he was informed on telephone that a security guard had been murdered but the caller did not tell him the name of the victim. On being cross-examined by the Additional Public Prosecutor, he reiterated his stand, but accepted that he had furnished the permanent address of the appellant- Daya Nand Giri. On the question of abscondence and the fact that the appellant was missing, Abrar Ahmed (PW-1) and Asrar Ahmed (PW-7) have been forthright and categorical. Abrar Ahmed (PW-1) had also made a statement, Exhibit PW-1/A, which was signed by him and became the substratum of the FIR in question. The versions given by Abrar Ahmed (PW-1) and Asrar Ahmed (PW-7) get affirmed from the statement of Head Constable Satbir (PW-2), who had recorded DD No. 6/A (Exhibit PW-2/A) on intimation given on telephone that a security guard had been murdered by another security guard at J.S. Farm, village Dera. PW-2 on directions of

the SHO had proceeded to the spot and at 11.40 A.M., Constable Vinod Kumar (PW-15) had brought the rukka on the basis of which FIR (Exhibit PW-2/C) was recorded. Similar is the statement of SI Hari Singh (PW-4), who was posted as the duty officer in Police Station, Mehrauli and had visited the farm and, thereafter, written the application (Exhibit PW-4/A) for conducting post-mortem. Gokul Kumar (PW-5) has stated that he had received a call from Sanjeev Lamba at about 9 A.M. on 9 th April, 1998 that at his (Sanjeev Lamba's) farm, a murder had taken place and a person had run away. The site plan of the place was prepared by Madan Lal, Draughtsman (PW-8), who had proved the scaled site plan (Exhibit PW- 8/A). Constable Gurmeet Singh (PW-9) affirmed that he had visited the J.S. Farm along with SI Hari Singh and had seen the dead body of Hari Om at the spot. The dead body was sent for post-mortem to the All India Institute of Medical Sciences (AIIMS) and on 10th April, 1998, he had brought from the hospital, a sealed parcel containing bedding, blood stained clothes, one envelope containing blood gauge, blood samples, etc., which were seized vide memo (Exhibit PW-9/A). Photographs of the spot were taken by Constable Bhure Singh (PW-11), who proved the said photographs as Exhibit PW-11/A-1 to A-7. SI Vijay Kumar (PW-17) was the Investigating Officer, who went to J.S. Farm after receipt of DD No.6/A (Exhibit PW-2/A) and had seen the dead body of Hari Om, which was lying smeared with blood in a room near the gate of the farm house. He had recorded the statement of Abrar Ahmed (PW-1) (Exhibit PW-1/A) and prepared the site plan (Exhibit PW-17/B). Blood from underneath the dead body was seized vide Exhibit PW-15/A. He had also completed the inquest proceedings and proved the inquest report (Exhibit PW-17/C).

5. The aforesaid depositions thus prove the following facts; the deceased Hari Om and the appellant-Daya Nand Giri were working as

security guards at J.S. Farm and used to reside in the same room; minor sister of the appellant-Daya Nand Giri also used to reside with them; they were seen together in the evening of 8th April, 1998; in the morning of 9th April, 1998 at 8/8.30 A.M. dead body of Hari Om was found in the said room and the appellant-Daya Nand Giri and his sister were absconding. The aforesaid facts when put to the appellant in his statement under Section 313 Cr.P.C. were partly accepted as correct as the appellant accepted that he was working as security guard in J.S. Farm and Hari Om was also working as a security guard in the said farm. He has also accepted that Abrar Ahmed (PW-1) and Asrar Ahmed (PW-7) were living in the said farm with their family. The appellant affirmed that he and his sister were living in the J.S. Farm and that the deceased Hari Om had started working as a security guard in the said Farm, about 20-22 days before the occurrence.

6. On the question whether the deceased Hari Om had suffered a violent homicidal death, we have referred to the statements of Abrar Ahmed (PW-

1), Asrar Ahmed (PW-7) and the police officers, who had visited the spot and seen the dead body, namely, SI Vijay Kumar (PW-17), SI Hari Singh (PW-4), Constable Gurmeet Singh (PW-9), Constable Bhure Singh (PW-

11) and Constable Vinod Kumar (PW-15). On the nature and cause of death/injuries, we have the testimony of Dr. S.K. Gupta (PW-18), who had conducted the said post-mortem examination and proved the post-mortem report (Exhibit PW-18/A). He opined that the deceased had suffered ante- mortem injury in the form of split laceration measuring 10 cm x 3 cm on the left parietal area of the skull. On dissection, extravagation of blood in the scalp tissues in an area of 17 cm x 7 cm compound radiating fracture of parietal bone in an area of 12 cm x 2 cm underneath the brain tissues was found. The cause of death was shock and coma as a result of blunt force injury No.1, which was sufficient to cause death in ordinary course of

nature. He also opined that the iron pipe (Exhibit P-1) could have possibly caused the injury in question. He, however, accepted that the injury found on the dead body could have been inflicted if the deceased had fallen down on his own. We do not think there is any evidence or material to show that the deceased had died an accidental death by falling down on his own. The injury in question is substantial and a serious one. That apart, the appellant had absconded and had run away. He did not get in touch with other residents/workers in the farm house, including Abrar Ahmed (PW-1) and Asrar Ahmed (PW-7), who were staying separately in their quarters constructed at some distance.

7. Interestingly, the appellant in his statement under Section 313 Cr.P.C. has stated that he did not know the cause of death, but he along with his sister had run away as some robbers had entered the farm house at night. The appellant claimed that he and his sister were sleeping when some 'badmash' had entered the room and asked for the keys to the farm. He had informed them that the keys were with Hari Om. Thereafter, as per the appellant, the said badmash went to the room of Hari Om, which was situated at the other side of the gate. Out of fear, the appellant and his sister ran away from the spot. Subsequently, the appellant surrendered to the police.

8. From the testimony of Abrar Ahmed (PW-1), Asrar Ahmed (PW-7) and other police witnesses who had visited the spot, it is apparent that no evidence of forced entry or robbers/badmash having entered the farm house at night was found. On the other hand, Abrar Ahmed (PW-1) and Asrar Ahmed (PW-7) have stated that the appellant-Daya Nand Giri, his minor sister and the deceased Hari Om used to reside/sleep in the same room and not in two separate rooms at night. It is also an accepted position that the appellant had absconded, even before any resident/worker had seen the dead

body or the police had arrived. No one till then had suspected the appellant, as the perpetrator and asked him any question. In case robbers/badmash had entered the farm house at night, the appellant should have protested and shouted, or would have returned and come back after some time or at least by the morning. On the other hand, there is evidence that the appellant had surrendered in the Court on 17th April, 1998. Earlier, SI Vijay Kumar (PW-

17) had visited the native village of the appellant in Bihar in search of the appellant, but he was not available there. On 18th April, 1998, the appellant was formally arrested with the permission of the court and, thereafter, two days of police custody was granted.

9. SI Vijay Kumar (PW-17) has deposed that the appellant thereupon had made disclosure statement (Exhibit PW-14/B) and from the J.S. Farm house, they had recovered an iron pipe (Exhibit P-1) and the blood stained pant (Exhibit P-2), which was seized vide memo (Exhibit PW-14/C). As noticed above, Dr. S.K. Gupta (PW-18) had deposed that the injury in question was possible with the iron pipe (Exhibit P-1). The said iron pipe had also been sent for forensic examination and human blood was found. Similarly, on the pant in question, human blood of Group 'A' was found, which matches with the blood group of the deceased. The FSL report was marked Exhibit PW-16/C. On the question of disclosure statement (Exhibit PW-14/B) and the recovery of the pant (Exhibit P-2) and the iron pipe (Exhibit P-1), we also have testimonies of Constable Surender (PW-14) and Inspector Jagdish Prasad Meena (PW-16). The presence of the appellant at the farm house on or about 19th April, 1998 is deposed to by Abrar Ahmed (PW-1) and Asrar Ahmed (PW-7). No doubt, PW-1 has stated that the appellant had told the police officers that some 'badmash' had come there, but PW-1 was equally assertive that this story by the appellant was

concocted and he had not seen any third person and no noise or voices were heard.

10. We clarify that abscondence by itself has not been treated as a significant incriminating circumstance. We have noted the entire gamut of facts proved, the factum that the appellant and the deceased were co- security guards residing in the same room, the occurrence resulting in homicidal death of Hari Om by violence had taken place at night, and the incriminating facts when put to the appellant had drawn unacceptable and false explanations as to the reasons and cause for abscondence and the injury, etc. Recoveries made and admissible under Section 27 of the Indian Evidence Act, 1872 would be another link in the chain of the facts substantiated and proved. The cumulative effect of the facts established and proved form the essence and foundation of the finding that the appellant and no other person was the perpetrator.

11. The last question and issue is whether the appellant should be convicted under Section 302 IPC for having committed the murder of Hari Om or the present case is one where the crime is of a lesser degree, i.e. 'culpable homicide not amounting to murder'. Learned counsel for the State has submitted that this is a case of pre-meditated murder as on 8th April, 1998, there was a dispute/quarrel between the appellant-Daya Nand Giri and the deceased Hari Om and a call had been made to Rajeev Chadha (PW-6) regarding the same. Abrar Ahmed (PW-1) and Asrar Ahmed (PW-

7) have deposed on the nature of the dispute, which pertained to price of salt, i.e. whether the purchase price was Rs.2/- or Rs.5/-. PWs-1 and 7 have stated that they had asked the two guards to resolve the petty matter and the issue was settled. Rajeev Chadha (PW-6) accepted having received a call from the appellant at around 7.30 P.M. on 8th April, 1998, regarding the quarrel and the appellant had alleged that the deceased Hari Om had abused

him. PW-6 at that moment had asked the appellant not to quarrel with Hari Om and that he would change Hari Om's duty on the next day. As we perceive, there may have been a quarrel between the appellant-Daya Nand Giri and the deceased Hari Om on 8th April, 1998 at about 5 P.M., but it was on a petty and a trivial matter. The issue, thereafter, was sorted out and the two were pacified. It is not the allegation of the Abrar Ahmed (PW-1), Asrar Ahmed (PW-7) or Rajeev Chadha (PW-6) that the appellant and the deceased had come to fists and blows or they had tried to physically assault each other. We would, therefore, not give too much credence and importance to treat the said quarrel as an impelling motive for committing the offence. Of course, it does appear that the relationship between the two had become strained.

12. What had actually happened which led to the assault causing the death of the deceased Hari Om, would remain imprecise and a mystery for the appellant has not elucidated and explained the said facts. Normally such elucidation could come out from the facts asserted by the prosecution. The accused can be also forthright. However, sometimes, due to lack of understanding and proper legal advice, the accused do not appreciate the significance of the statement under Section 313, Cr.P.C. The appellant has, as noted above, to exonerate himself alleged that a third person/robbers were responsible for the said assault. To this extent, we have disbelieved the appellant. However, on the basis of the medical evidence, one aspect is apparent that it is a case of a single blow. Only one injury was suffered by the deceased and no other injury has been indicated. The injury could have been caused by a blunt force object.

13. The question, therefore, arises whether the appellant should be convicted of a lesser offence under Part I to Section 304 IPC. Whether a solitary blow should be treated as 'murder' or 'culpable homicide not

amounting to murder' has been a subject matter of several decisions. There are decisions in which a solitary or a single blow has been held to be 'murder' punishable under Section 302 IPC, and in other cases even the injuries caused by a knife, have been treated as one falling in Part I or Part II of Section 304 IPC. As a legal principle, it would be correct to hold that a single or solitary blow resulting in the injury intended, which is sufficient in ordinary course of nature to cause death, would be 'murder' under Clause 3 of Section 300 IPC. The outcome would be different with a slight change in facts. The adjudication would depend upon the nature of injury, the reason of which the injury is caused, pre- and post-occurrence facts, the utterances made by a party, existence of motive, etc. The whole exercise depends upon what was the intention of the perpetrator.

14. In Tholan versus State of Tamil Nadu, (1984) 2 SCC 133, the Supreme Court noticed that only one blow with knife was given, but the accused did not have any malice and the incident had occurred in the spur of the moment. The accused possibly was misguided by his ego-centric nature and in this background had given a blow with the knife. Referring to several other decisions, the conviction was converted into Part II to Section 304 IPC and the sentence of five years imprisonment was held to be adequate. In Chhotu versus State of Haryana, (2010) 15 SCC 386, conviction was converted into Section 304 Part II IPC. Similarly, in Ashok Kumar versus State, (2014) 1 JCC 548, reference was made to several decisions and the conviction was converted into Section 304 Part I IPC. Reference can also be made to Rajesh Kumar versus State, 2011 (125) DRJ

22. Similar view has been taken in Ramachami versus State, (2008) 15 SCC 122, wherein conviction was converted into one under Section 304 Part II IPC. In Mahinder versus State, (2009) 2 JCC 895, a Division Bench of this Court referred to the earlier decision of the Supreme Court in

Surinder Kumar versus U.T. Chandigarh, AIR 1989 SC 1094, wherein Exception 4 was applied even when three injuries were suffered and the offender was punished under Section 304 Part I IPC with imprisonment of seven years. Applying the same reasoning, in Mahinder's case (supra), conviction was converted into Section 304 Part I IPC.

15. In the present case, the appellant and the deceased were alone in the room. Minor sister of the appellant was also present. No doubt, there was a minor dispute, which had occurred in the evening, there is evidence that the issue was resolved/settled. It is not a case of deliberate intended or pre- meditated plan. The solitary injury it does appear was caused due to a sudden squabble.

16. Keeping in view the aforesaid factual position, we partly allow the present appeal and convert the conviction of the appellant from Section 302 to Section 304 Part I IPC.

17. On the question of sentence, we find that as per the nominal roll placed on record, the appellant had already suffered incarceration for nearly six years, including remission of about eleven months as on 20 th June, 2003. He was directed to be released on suspension of sentence vide order dated 2nd December, 2003. In other words, the appellant has suffered incarceration for more than six years and six months, including remission.

18. Keeping in view the aforesaid facts, we sentence the appellant to the period already undergone. The appellant will pay fine of Rs.10,000/-, within a period of 45 days from the date of this judgment and in default of payment of fine, will undergo simple imprisonment for a period of four months. The quantum of fine has been fixed keeping in mind the economic position of the appellant. While fixing the sentence, we have also noted the fact that the occurrence in question relates to the year 1998 and the appellant was released on bail on or after December, 2003 and has been on

bail for the last 12 years. It has been stated at the Bar that he is not involved in any other case.

19. The appeal is accordingly disposed of. Trial court record will be sent back.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

(ASHUTOSH KUMAR) JUDGE APRIL 22, 2015 VKR/kkb