Sanjay vs State
2015 Latest Caselaw 6403 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: 30th July 2015

+                                 CRL.A. 649/1999

       NARESH                                            ..... Appellant

                                  Through:   Mr. Jitender Sethi with
                                             Mr. Hemendra Jailiya, Advs.

                                    versus

       STATE                                             ..... Respondent

Through: Mr. Varun Goswami, APP

+ CRL.A. 680/1999

SANJAY ..... Appellant

Through: Mr.Jitender Sethi with Mr.Hemendra Jailiya, Advs.

                                    versus

       STATE                                             ..... Respondent

                                  Through:   Mr. Varun Goswami, APP

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R. K. GAUBA

SANJIV KHANNA, J (ORAL)

1. Naresh and his brother Sanjay stand convicted for murder of Lakhpat @ Babu and for causing simple injuries to Bhagwan Dass (PW-2) and Mohan Dass (PW-6) in an occurrence on 28th September, 1990 at about

5:30 p.m., vide judgment under challenge dated 29th November, 1999 arising from the charge-sheet filed in FIR No.285/1990, P.S. Nand Nagari. By order of sentence dated 30th November, 1999, the appellants have been sentenced to imprisonment for life, fine of Rs.5000/- each and in default, to undergo simple imprisonment for six months for the offence under Section 302 read with Section 34 of the Indian Penal Code, 1860 („IPC‟, for short). The appellants have also been sentenced to undergo rigorous imprisonment for six months each, fine of Rs.500/- and in default to undergo simple imprisonment for two months for the offence under Section 323 read with Section 34 IPC. Charan Singh, father of the two appellants, was also charge-sheeted, but had died during the trial.

2. We have heard learned counsel for the appellants and the learned Addl. Public Prosecutor for State. The learned counsel for the appellants has urged that there is big divergence between the facts mentioned in the FIR No.285/1990 (Ex.PW-8/A), brief facts of the case (Ex.PW-13/J) and the death report of Lakhpat (Ex.PW-13/M) on one hand, and the court testimonies of Bhagwan Dass (PW-2) and Mohan Dass (PW-6) on the other. It is highlighted that the dissimilarity is due to the post-mortem report (Ex.PW-14/A) which opines that the cause of death was not the wound or injury on the head but a punctured wound on the back side of the chest of Lakhpat, whereas the FIR (Ex.PW-8/A), brief facts (Ex.PW-13/J) and the death report (Ex.PW-13/M) do not mention the said injury. Further, the knife (Ex.P-2) could not have caused the said punctured wound. The wound on the back side of the chest, it is submitted, could have been accidently caused by any sharp object like a nail lying on the street as the deceased had fallen down during the quarrel and grappling. The MLCs of the appellants who were also injured have not been brought

on record. Some other discrepancies asserted, will be dealt with while examining the testimony of the eye-witnesses.

3. Bhagwan Dass (PW-2) and Mohan Dass (PW-6) are the injured eye- witnesses. They have deposed that 28th September, 1990 being Ram Navami, they had collected utensils from different persons in the neighbourhood for serving Prasad. In the evening, while they were in the process of returning the said utensils, the appellant Naresh who was under influence of liquor came there and started abusing Bhagwan Dass (PW-2). This was objected to by PW-2 but the appellant Naresh gave fist and kick blows to PW-2 and had hit him with his head. The appellant Sanjay and Charan Singh (since expired) joined and started beating PW-2. They took PW-2 towards their house. The deceased Lakhpat and Mohan Dass (PW-6) reached there and intervened. Appellant Naresh brought an iron pipe from his house and had hit Lakhpat on his head with considerable force. As a result, Lakhpat fell down with his face towards the ground and started bleeding from his nose and mouth. Appellant Sanjay took out a buttondaar (button-actuated) knife from a pocket of his pants and struck Lakhpat on his back side, as a consequence of which, Lakhpat started bleeding from his back. Mohan Dass (PW-6) and Tulsi Dass (PW-1) had then removed Lakhpat to GTB Hospital, where he was declared „brought dead‟. Both PW-2 and PW-6 were also examined in the hospital and MLCs of Bhagwan Dass (Ex.PW-10A) and of Mohan Dass (Ex.PW10/B) were recorded. The time of examination mentioned in the MLC (Ex.PW10/A) is 6:25 p.m., in the MLC (Ex.PW-10/B) is 6:20 p.m., and in the MLC of Lakhpat (Ex.PW- 3/A) is 6:15 p.m. Thus, it is apparent that the deceased Lakhpat, PW-2 and PW-6 had together reached the hospital. This corroborates the prosecution version that PW-2 and PW-6 had suffered injuries in the same occurrence

and confirms that PW-2 and PW-6 were eye-witnesses who had seen the occurrence. We, therefore, reject the contention that PW-2 and PW-6 are planted eye-witnesses. We also reject the contention, relying upon the scaled site plan (Ex.PW-12/A) and the unscaled site plan (Ex.PW-13/B), that there is a discrepancy as to the location where the incident had taken place. The aforesaid site plans specifies the place where Bhagwan Dass (PW-2) was accosted and the location was near the residence of the appellants i.e. A-4/218, Mandir wali Gali, Nand Nagari. This is the place where the injuries were inflicted and blood had spilled. Houses in the said street were small, measuring about 25 sq. yards, a fact stated by the counsel for the appellants before us. The police officers, Insp. Davender Singh (PW-12), IO Prem Singh (PW-13), Bhanwar Singh (PW-7) Crime team In- charge, Ct. Sushil Kumar (PW-15), Photographer, who conducted the investigation and the crime team report (Ex.PW-9/A), affirm and corroborate that the place of occurrence was adjacent to the residence of the appellants, located at A-4/218, Mandir wali Gali, Nand Nagari.

4. The core issue which arises for consideration is somewhat different. The FIR (Ex.PW-8/A) was recorded on the basis of the statement of Mohan Dass (PW-6). The English translation of the said statement (Ex.PW-6/L) reads as under:

"I reside at the above noted address and work in the Civil Court at Ghaziabad. At about 5:30 p.m. today, I was present at my above said house along with my brothers, Lakhpat alias Babu and Tulsi Dass. That at that time, the son of my paternal uncle (chacha), namely Bhagwan Dass s/o Daya Saran R/o A-4/198, Nand Nagari, came with some utensils which were collected in the morning from the persons living in the locality to distribute Prasad in the temple, inquiring as to which of them belonged to whom. He [Bhagwan Dass] reached House No.A- 4/196 of Shivcharan Lal Sharma, where Naresh s/o Charan Singh R/o A- 4/218, Nand Nagari, who was under the influence of alcohol, came and started hurling abuses. He [Naresh] had previously also gotten into

many fights and altercations after consuming liquor, and carries a grudge against us because we had asked him not to use profane and abusive language. Even today, when my cousin brother (chachere bhai ne) asked him not to swear, he caught hold of Bhagwan Dass and aggressively pushed and bumped into him (takkar maari) 3-4 times. In the meanwhile, brother and father of Naresh had also reached there, and started beating Bhagwan Dass while taking him towards their house. I and my brother Lakhpat also intervened. While we were trying to intervene and save, Sanjay and Charan Singh grabbed Lakhpat and started giving him fist blows. Naresh brought an iron pipe from his house and gave a forceful blow on the head of Lakhpat. Lakhpat started bleeding from his head, mouth and nose, and fell then and there. I, with the aid of my brother Tulsi Dass, took him [Lakhpat] to the GTB Hospital in a TSR, where the doctors examined him and declared him as „brought dead‟. During the scuffle, I, my cousin (chachera bhai) Bhagwan Dass, Sanjay, Naresh and Charan Singh also sustained some minor injuries. Sanjay, Naresh and Charan Singh have murdered my brother Lakhpat alias Babu by inflicting injuries upon him. Appropriate legal action may be taken."

A perusal of the said narration would indicate that it refers to the head injury by a blow from an iron pipe given by the appellant Naresh. It does not specifically refer to any incised wound on the back side of the chest or use of a knife or a sharp weapon of offence. The request letter for post- mortem (Ex.PW-13/H) written by the SHO Prem Singh (PW-13) refers to the head injury on the head with an iron pipe by Naresh at about 5:30 p.m. on 28th September, 1990. The doctors‟ opinion on the cause of death, time since death, etc. were sought. The aforesaid request letter does not mention any punctured or incision wound on the back side of the chest. Brief facts noted vide Ex.PW-13/J records that Mohan Dass (PW-6), the eye-witness and brother of the deceased had stated that at about 5:30 p.m. on 28th September, 1990, Lakhpat (the deceased) was attacked by an iron pipe by the appellant Naresh. Thus, the aforesaid contemporaneous documents do not mention or record any injury by a sharp weapon or knife on the back side of the chest. In the death report (Ex.PW-13/M), however, reference is

made to an injury suffered by the deceased on the back side of the chest by a sharp weapon.

5. Dr. B.N. Acharya (PW-14) had conducted the post-mortem on 29th September, 1990 and has proved the post-mortem report (Ex.PW-14/A). This report records:

" External Injury

1. Incised wound on left back 23 cm below the midshoulder and 13 cm letral to midline placed obliquely downward. Margin regular and would is gaping. Size of wound 2 cm X 1 cm depth.

2. Here is haematoma over the left side of scalp on middle loin diameter. No CLW as mentioned in MLC. No other injury present on the body.

Internal Injury There is clotted blood underneath subcutaneous tissues on left parietal region. Scalp bones is intact.

There is patchy haemorrhage 2 cm in diameter over the left cerebral hemisphere. Neck tissues:- normal."

On internal examination the following position was noted "Trachea contains blood. Hyoid bone intact. Tra-Cheal ring is intact. Chest-injury, no. 1 is penetrating into chest cavity in between 5th and 6th inter coastal space and the left lower lobe. On probing depth of wound in the lung is 5 cm. Thoratic cavity is full of blood. Lungs are pale. Total depth 10 cm. Heart- NAD.

Abdomen - stomach is full of blood, liver, spleen and kidney - pale.

Bladder and rectum - half filled."

On the question of cause of death, Dr. B.N. Acharya (PW-14) opined:

"Injury on the chest on the back is ante-mortem, and is caused by sharp edged weapon which is sufficient to cause death in the ordinary course of nature. Injury on head is ante-mortem and is caused by blunt object. Death is due to shock and haemorrhage consequent to injury to thoracic viscera."

6. A careful examination of PW-14‟s court deposition and Ex.PW-14/A reflect that the head injury caused by the iron pipe was not the cause of death. The post-mortem report (Ex.PW-14/A) and PW-14 have categorically stated that no clear lacerated wound (CLW) was found on the head. PW-14 has contradicted the MLC (Ex.PW-3/A) which records a lacerated wound on the head. We are inclined to accept the version and opinion of Dr. B.N. Acharya (PW-14) who had conducted the post-mortem to ascertain and accurately detect the cause of death. Thus, the FIR (Ex.PW-8/A), request letter (Ex.PW-13/H) and brief facts (Ex.PW-13/J) prepared and written before the post-mortem report do not refer to a deliberate and conscious attack and injury on the back side of the chest. They refer to the strike on the head with an iron pipe. Use of knife or any pointed weapon is not alleged and adverted to. The post-mortem report, on the other hand, indicates that the said strike by an iron pipe had not caused the death and, in fact, the cause of death was the chest injury which had penetrated the chest cavity and entered the left lower lobe in the lung. The cavity was full of blood. Depth of the said wound was 10 cm but the size of the wound was 2 cm x 1 cm only. It was a deep punctured wound.

7. It is in this context that the learned counsel for the appellants has pointed out the discrepancies, improvements and padding in the prosecution version, highlighting that the eye witnesses had not seen the appellants or Charan Singh (since expired) inflicting the injury causing the death. As per the CFSL reports (Ex.PW-13/N to Ex.PW-13/W), blood was detected on the knife (Ex.P-2) but the blood group could not be ascertained. Noticeably, the knife (Ex.P-2) was not shown to Dr. B.N. Acharya (PW-

14). He was not asked, whether the said knife could have caused the wound on the back side. As per the post-mortem report, the external injury

No.1 was only 2 cm x 1 cm but had a depth of about 10 cm, which it appears, could not have been caused by the knife (Ex.P-2). Therefore, we accept that the prosecution has not been able to pin-point and produce the weapon of offence which was used for commission of the offence in question. However, the appellants cannot be acquitted for this reason or even lapse in investigation on the said aspect for several reasons. We would only hold that the prosecution case in the charge-sheet that the appellant Sanjay had taken out a button actuated (buttondar) knife from his pant-pocket and struck Lakhpat on his back when he had fallen down is not proved and established.

8. Appellants Naresh and Sanjay were the perpetrators and the injuries were suffered by Lakhpat during the course of the free-fight. There was a quarrel in which the deceased Lakhpat, Bhagwan Dass (PW-2) and Mohan Dass (PW-6) as well as the appellants Naresh, Sanjay and their late father, Charan Singh were involved. Appellant Naresh had brought an iron pipe and had hit Lakhpat on his head. During the course of scuffle and grappling, Lakhpat had suffered a wound on the back side of his chest. The said wound injury was certainly sustained during the brawl in question. We are not inclined to accept the contention that this wound was accidentally caused when the deceased fell down and that a pointed object lying in the street may have caused the said punctured wound. No such suggestion was given to Bhagwan Dass (PW-2), Mohan Dass (PW-6), or to the police officials who had inspected the scene of crime immediately after the occurrence. As per the prosecution version, the punctured wound on the back side of the chest was a deep one but the object or weapon used was withdrawn and not embedded. No pointed object was found at the place of occurrence. At the same time, the eye witnesses, PW-2 and PW-6

did not realise seriousness of the injury as a result of the wound suffered on the back side of the chest. They did not notice and see when and how the injury was caused. This is the reason why in the FIR (Ex.PW-8/A), specific reference is made to the injury suffered by the deceased on the scalp with the iron pipe which was brought by Naresh from his house, but not a word is uttered about this injury.

9. In these circumstances, we are inclined to accept the alternative submission made by the counsel for the appellants that their conviction should be converted from Section 302 IPC to 304-II IPC. There was certainly a fight between the two sides. In this scuffle, the said injury was suffered to which no one paid attention as they did not realise that the injury could be a fatal one. It is not a case of multiple blows or attack by a sharp edged weapon. How and who was responsible for the said injury remains uncertain. This may not be relevant under Section 34 IPC but in the absence of cogent and reliable evidence, as to how the injury was caused, it cannot be said that the appellants had an intention to commit murder, or intention to cause the injury which was the cause of the death. It has not been established that the appellants had requisite intention for convicting them under Section 302 IPC. The manner and how the injury was caused would remain ambiguous and debatable. As per the prosecution version, there was a sudden fight between relatives. The fight was not pre-conceived or pre-meditated. It also appears that the appellants were not armed with a knife and the occurrence had in fact taken place outside the house of the appellants.

10. We thus convert the conviction from one under Section 302 to one under Section 304-II IPC.

11. The last question which arises for consideration is the quantum of sentence. It is pointed out to us that appellant Naresh has suffered incarceration of five years and the appellant Sanjay has suffered incarceration of more than four years. Normally, we would have asked the appellants to surrender and undergo further sentence. However, there are certain circumstances which have impelled us to accept the prayer of the appellants that they should not be asked to surrender and undergo further imprisonment. The offence in question was committed in the year 1990. It is stated that the appellants are not involved in any other case since 1990, a fact which is not disputed by the learned Addl. Public Prosecutor. In the case of Sanjay, it is stated that he has been suffering from Tuberculosis, a fact noted by the trial court, while granting interim bail. Papers have been shown to us that the appellant Sanjay is still undergoing treatment for the said ailment.

12. The appellants will pay a fine of ₹5,000/- each. We also direct that the appellants shall pay a compensation of ₹35,000/- each which would be paid to the widow of the deceased Lakhpat. Both the aforesaid fine as well as the compensation amount will be paid within six weeks from the date of pronouncement of this judgment.

13. If the appellants fail to pay the aforesaid compensation and fine within the stipulated period of six weeks, they shall undergo simple imprisonment for a period of one year each.

14. The fine and compensation will be deposited with the trial court.

15. We also sustain conviction of the appellants under Section 323 read with Section 34 IPC and the order on sentence.

16. Copy of this decision be sent to the trial court for necessary compliance.

                                               (SANJIV KHANNA)
                                                   Judge


                                                (R. K. GAUBA)         s
                                                     Judge

JULY 30, 2015
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