Titoo vs State
2015 Latest Caselaw 6245 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                Date of Decision: 25th August, 2015

+     CRL.A. 646/2015
      Titoo                                        ..... Appellant
                        Through:       Ms.Sahila Lamba, Amicus Curiae

                        versus

      STATE                                        ..... Respondent

                        Through:       Ms.Aashaa Tiwari, APP.
      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
      HON'BLE MR. JUSTICE R.K.GAUBA
SANJIV KHANNA, J (ORAL)

1. The appellant Titoo by the impugned judgment dated 21.04.2015 has

been convicted under Section 302 of the Indian Penal Code, 1860 (IPC) for

murder of his mother Kiran and under Section 323 of the IPC for having

caused injuries to his brother Deepak at about 10:30 AM on 08.11.2011.

2. By order on sentence dated 27.04.2015, the appellant has been

sentenced to imprisonment for life, fine of Rs. 5000/- and in default of

payment of fine, to undergo six months imprisonment for the offence

punishable under Section 302 IPC. For the offence punishable under

Section 323 IPC, the appellant stands sentenced to undergo six months

imprisonment with fine of Rs. 1000/- and in default of payment of fine to

undergo two months imprisonment. Sentences are to run concurrently.

3. Having heard counsel appearing for the appellant and the Public

Prosecutor we are of the opinion that the impugned judgment convicting the

appellant on both accounts should be sustained.

4. Deepak (PW-4), younger brother of the appellant aged about 10-12

years, in his court deposition has stated that he was present in the house

along with his mother Kiran on the date and time of occurrence. His elder

brother Titoo at about 10:00AM had started demanding money from his

mother, which was refused. On this Titoo became angry and started fighting

with his mother and gave fist blows and then picked up a 'Belan' (rolling

pin) and gave her several blows with the 'Belan' on her head. Deepak (PW-

4) had tried to intervene and save his mother, on which Titoo had hit PW-4

with leg and fist blows. His younger brother Rahul, who was also present

there, ran out to make a call to his father. Blood started oozing out from his

mother's head and she fell unconscious. The appellant while running away

took his younger sister Jyoti with him. He had narrated the incident to the

police when they came to their house. In the cross-examination, PW-4

clarified that Jyoti was subsequently found at the house of their neighbour

Hemu. He also clarified that the appellant had hit him on his head with the

Belan and blood had started oozing. He was medically examined. He had

raised an alarm but no one from the neighbourhood came to their house,

except one old lady whose name he did not remember. The said lady had left

the place after seeing the condition of his mother. The appellant used to live

with them but sometimes used to leave the house for many days. Titoo had

never caused injuries or fought with the neighbours or their children earlier.

Titoo would daily go for work with his father but on the said day he had not

gone for work with his father.

5. Rahul (PW-9) was about eight years of age when he was examined in

the court. He has stated that he was playing outside the house, while the

appellant came in the house in an underwear. Titoo had injection marks on

his hand and stitch marks were visible. Titoo had given beating to his

mother on her chest, then on her head and stomach. He had used a 'Belan' to

beat his mother. His elder brother Deepak who also was present in the house

was also beaten. He had rushed to the STD booth and informed his father on

telephone that the appellant Titoo was beating his mother. Phone number of

his father written on a piece of paper, was handed over to the aunty sitting in

the PCO. Subsequently, he went to the house of Khem and told him that the

appellant Titoo was beating his mother. Khem had asked him to sit in his

house. Police had subsequently made enquiries and recorded his statement.

In his cross-examination, Rahul (PW-9) accepted that Titoo had not beaten

him and also accepted that Titoo had never quarrelled with any neighbour or

caused injuries to them. He denied the suggestion that he was tutored by his

father to give statement against Titoo due to family dispute.

6. The aforesaid version of Rahul (PW-9) and the version of the injured

eye-witness Deepak (PW-4) get confirmation and corroboration from the

statement of Prem Pal (PW-2), Bimla (PW-6) and Khem singh (PW-7).

Bimla (PW-6) has confirmed that Rahul (PW-9) had come to her kiryana

store and had made a call on a mobile number to converse with his father.

However, she could not recollect and did not depose as to the contents of the

conversation. Khem Singh (PW-7) has testified that Titoo was living in the

neighbourhood at a distance of 2-3 houses with his parents, brothers and

sisters. He (PW-7) had met with an accident and was nursing a fractured

leg. Younger brother of Titoo had come to his house and informed him that

Titoo had beaten him. He had then asked the younger brother of Titoo to

remain seated in his house. He had made a call to the police on number 100.

In his cross-examination by the Public Prosecutor, PW-7 accepted that

younger brother of Titoo had told him that Titoo had given beatings to his

mother and to save his mother. In his cross-examination on behalf

of appellant, PW-7 accepted that his leg was under plaster and he did not go

to the spot. It was correct that Titoo had never quarrelled with him or any

neighbour. Most significant and relevant is the statement of Prem Pal (PW-

2), father of Titoo and husband of deceased Kiran. He was working as

Mason and living in Delhi with his wife and five children. The appellant

aged about 23 years was a gambler and used to take drugs. He used to leave

the house and go missing. The appellant used to visit the house for a day or

two. He had returned 3-4 days earlier after staying on his own for some

time. He had asked the appellant on the morning of 08.11.2011 to go to

work but the appellant had stated that he would go later. Prem Pal (PW-2)

had left for work at about 9:00AM. and at about 10:28 AM, he had received

a telephonic call from his son Rahul that the appellant Titoo had caused

injuries to his wife and he should return home immediately. The call was

made from the STD booth near their house. When he returned, he found

that Kiran (the deceased) was in a pool of blood and the appellant was not

present. Rahul (PW-9) was present and had narrated the occurrence to him.

On the basis of the statement made by PW-2, marked Ex.PW-2/A, the rukka

was recorded and FIR No. 302/2011, P.S. Nihal Vihar was registered. PW-2

proved the 'Belan' marked Ex.P-1, which was taken out from the parcel

with the seal of NK, FSL, Delhi.

7. The version given by Deepak (PW-4) and Rahul (PW-9), thus gets

support and affirmation from the statement by Prem Pal (PW-2), Bimla

(PW-6) and Khem Singh (PW-7). It is noticeably that in the present case

DD No. 11A mark Ex.PW-1/A was recorded at about 10:48 AM at police

station Nihal Vihar as deposed to by Head Constable Naresh Kumar (PW-1).

This information was given to ASI Brahm Prakash through Ct. Mahavir.

ASI Brahm Prakash (PW-10) has deposed that on 08.11.2011 he had visited

the spot i.e. Gali No. 74, Shisham Wali Gali, Nihar Vihar, Delhi and on

entering the room, he found a dead body of a lady. Blood was seen inside

and outside the room. One 'Belan' was lying near the dead body. He noticed

broken pieces of bangles, one pair of shoes and other articles, which were

lying scattered. Similar statement was made by Ct. Mahavir (PW-16).

Inspector Sunil Kumar (PW-20), Investigation Officer (IO) has stated that he

had lifted exhibits/ evidence from the spot including the 'Belan' (Ex.P-1),

pieces of bangles (Ex.P-4) and pair of shoes (Ex.P-6). At that time crime

team was already present.

8. Photographs of the place in question were taken by Head Constable

Sanjeev Kumar (PW-3) who has proved eight photographs mark Ex.PW-

3/A-1 to PW-3/A-8. The negative of the said photographs were marked

Ex.PW-3/B1 to B8. We would be subsequently referring to said

photographs. SI Gyan Singh (PW-8) In-charge of the Mobile Crime Team

has proved the Crime team report (Ex. PW-8/A). The crime team had

remained at the spot from 11:40 AM to 12:40 PM. The appellant was

arrested on the next day i.e. 09.11.2011 vide arrest memo Ex. PW-10/H at

about 8:20 AM. This fact is deposed to by ASI Brahm Prakash (PW-10), Ct.

Mahavir (PW-16) and Inspector Sunil Kumar (PW-20).

9. Learned Amicus Curiae has submitted that in the present case the FIR

was registered on the basis of the statement made by Prem Pal (PW-2) and

not on the basis of the statement of Deepak (PW-4). She submits that the

purported eye-witness Deepak (PW-4) was not present at the spot. It is

correct that in the present case, the FIR was registered on the basis of

statement made by Prem Pal (PW-2), marked Ex.PW-2/A, but this is not a

good reason or justification to disbelieve that PW-4 was not present at the

spot and an eye witness to the occurrence. The rukka specifically records

that the Deepak had been taken to the hospital and was not present at the

spot when statement of PW-2, marked Ex.PW-2/A, was recorded. We have

on record the MLC of Deepak, Ex. PW-19/A, (wrongly mentioned as

Ex.PW-18/A). Deepak was examined by Dr. Shankar (PW-19) on

08.11.2011 after he was brought to the hospital by SI Lal Chand. On

examination it was observed that PW-4 had suffered injury on his right eye.

He was referred for examination by an Ophthal Senior Resident, PW-19

identified signature of his junior Dr. Anand on the MLC. PW-19 had also

signed the MLC (Ex.Pw-19/A). The MLC was recorded on 11.50 AM. The

FIR was registered at about 1:15 PM. Presence of Deepak (PW-4) at the spot

should be accepted and should not be doubted. He had suffered injuries at

the time of occurrence. He is not a chance witness and his presence is

natural and normal.

10. Learned counsel for the appellant has drawn our attention to the post-

mortem report (Ex.PW-15/A) which mentions that both eyes of the deceased

were missing and this was confirmed on internal examination. Post-mortem

on the dead body of Kiran was conducted by Dr. Manoj Dhingra (PW-15),

who has also proved the said report. PW-15 was not cross-examined. Even

the police officers i.e. SI Brahm Prakash (PW-10), Ct. Mahavir (PW-16) and

SI Sunil Kumar (PW-20) were not cross-examined on the aspect of the

missing eyes. PW-4 has mentioned that his mother was beaten by the

'Belan' and several blows were given on her head. PW-4 was also given

blows on the head by the same 'Belan'. We find that Deepak (PW-4) as per

the MLC marked Ex.PW19/A had suffered conjunctival hemorrhage on the

right eye. This is the only injury which is mentioned in the MLC (Ex.PW-

19/A). The injury was serious as is clear from the deposition of Dr. Shankar

Gupta (PW-19) who had stated that the patient was referred to an Ophthal

Senior Resident. It is apparent to us that the appellant Titoo had given

blows with the 'Belan' on the eyes of the deceased. The photographs mark

Ex.PW-3/A2, Ex.PW-3/A3, Ex.PW-3/A4 and Ex.PW-3/A6 reflect and show

the extent and nature of injuries suffered and how the blood had oozed and

flowed from the head and face of the deceased. It is apparent that

perpetrator had used the ends of the Belan to cause the injuries in the most

brutal and cruel manner.

11. We, therefore, do not find any reason to disbelieve the cause of death

as mentioned in this post-mortem (Ex.PW-15/A), which was, cerebral

damage consequent upon blunt force impact to head. The other injuries

recorded in the same post-mortem report are; contused laceration bone deep

present over left side of face, lateral to left eye covering forehead and cheeks

with multiple fractures of underlying facial bones; contused abrasion, soft

red, over front of the left ear; and contusion red in colour lateral to the right

eye. Skull bones including facial bones and base of skull were fractured on

the frontal and left temporal bones areas.

12. The last contention of the learned counsel for the appellant is for

converting the sentence from Section 302 IPC to Section 304, Part-I IPC. It

is submitted that the appellant had not used a knife or any sharp edged

weapon and had used a Belan, an article used for cooking. The deceased was

the mother of the appellant and as she had refused to part with money, the

appellant has retaliated and caused the injuries. It is the nature and manner

in which the injuries were caused, that compels and necessitates that we

reject this contention. Photographs mark Ex. PW-3/A1 to A8 reflect and

show the gruesome attack and the fury unleashed. A deliberate and

intentional violence targeted on the head, eyes and face of the deceased was

made. The blows were lethal and extremely hard as the deceased had

suffered multiple fractures of underlying facial bones. Both her eyes came

out. Skull bones were also fractured. Given the nature of violence, injuries

caused and the area which was targeted, the appellant had been rightly

convicted for under Section 300/302 IPC. The appellant had acted ruthlessly

and with frightening alacrity to cause injuries on his own mother without

any hesitation or mercy. The victim was a silent spectator to this barbarity

and died at the spot. When his younger brother Deepak (PW-4) had tried to

save their mother, he was attacked and was given blows on his eye/head.

13. We have also examined the statement made by the appellant under

Section 313 Cr.P.C. and we do not find any explanation or ground for

having caused said injuries. The appellant had denied most of the questions

by stating that the factual assertion was incorrect and he did not know. At

the end, he proclaimed that he was innocent and had been falsely implicated.

14. We also notice with regret failure of the prosecution to investigate

and bring on record the full extent of injuries suffered by Deepak (PW-4). It

is noticeable that the doctor who had examined PW-4 on 08.11.2011 at 1:15

PM had opined Conjunctival hemorrhage on right eye. The MLC (ExPW-

19/A) mentions that the medical condition of PW-4 should be reviewed in

the medical OPD subsequently. The said papers and reports have not been

placed on record.

15. We must also express our concern on another aspect. As per the

prosecution version blood-stained clothes i.e. shirt and pant (Ex.P-7) worn

by the appellant at the time of occurrence were seized and were sent for

forensic examination. The report received from the forensic laboratory has

not been placed on record and was not tendered in evidence. We had, in

these circumstances, asked the public prosecutor to produce before us a copy

of the said report only to ascertain whether the said report is in favour of the

appellant. We have not taken the report on record and we also do not base

our decision on the subject report or for that matter, recovery of the clothes

allegedly worn by the appellant at the time of occurrence.

16. In view of the aforesaid position, we do not find any reason to modify

the conviction of the appellant as he has been rightly convicted for murder

under Section 302 IPC and under Section 323 IPC for the injuries caused to

Deepak.

17. On the question of sentence, we do not find any reason to modify the

sentence but we clarify that in default of payment of fine, the appellant will

undergo simple imprisonment for the period specified and Section 428 of the

Criminal Code of Procedure, 1973 would apply. The appeal is disposed of.

(SANJIV KHANNA) Judge

(R. K. GAUBA) Judge AUGUST 25, 2015/mr