Sant Ram vs The State (Nct Of Delhi)
2015 Latest Caselaw 7211 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                            RESERVED ON : 10th SEPTEMBER, 2015
                             DECIDED ON : 22nd SEPTEMBER, 2015

+                         CRL.A.118/2007

      SANT RAM                                         ..... Appellant

                          Through :    Mr.Arun Sharma, Advocate.


                          versus



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

                          Through :    Mr.Amit Ahlawat, APP.


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

S.P.GARG, J.

1. This appeal has been filed by the appellant - Sant Ram

against a judgment dated 29.01.2007 of learned Addl. Sessions Judge in

Sessions Case No.107/05 arising out of FIR No.23/05 PS I.P.Estate by

which he was held guilty for committing offence under Section 325 IPC.

By an order dated 12.02.2007, he was sentenced to undergo RI for three

and a half years with fine `1,000/-.

2. Concisely stated, the case of the prosecution leading to the

trial of the appellant for commission of offence under Section 304 IPC

was that on 13.01.2005 at about 08.30 p.m. at Public Street, opposite

Railway Office, Tilak Bridge, ITO, Delhi, he gave a violent push to the

victim - Ganga, as a result of which, her head struck against the road and

she sustained internal head injuries. She expired on 16.01.2005 in the

hospital. Police machinery swung into action on receiving information

about the occurrence vide Daily Diary (DD) No.56B (Ex.PW-8/A) at

08.47 p.m. at PS I.P.Estate. The investigation was assigned to ASI Ram

Niwas who with Const.Vikrant went to the spot. After recording statement

of the complainant - Suraj (Ex.PW7/D), the Investigating Officer lodged

First Information Report. On 16.01.2005, information was received vide

DD No.22A (Ex.PW-8/C) that the victim had succumbed to the injuries.

Post-mortem examination on the body was conducted. Statements of the

witnesses conversant with the facts were recorded. The accused was

arrested. Upon completion of investigation, a charge-sheet was filed

against the appellant for committing offence under Section 304 IPC. The

prosecution examined eight witnesses to substantiate its case. In 313

Cr.P.C. statement, the appellant pleaded false implication and denied his

involvement in the crime. He examined DW-1 (Rambir) in defence. After

considering the rival contentions of the parties and on appreciation of the

evidence, the Trial Court, by the impugned judgment, convicted the

appellant under Section 325 IPC. It is pertinent to note that State did not

challenge the acquittal under Section 304 IPC. Being aggrieved and

dissatisfied, the appellant has preferred the present appeal.

3. I have heard the learned counsel for the parties and have

examined the file. It is not in dispute that on 13.01.2005, the appellant had

gone at the residence of complainant - Suraj to demand money borrowed

by him. When the complainant expressed inability to pay the borrowed

amount that time, a quarrel ensued between them. In the scuffle, both PW-

7 (Suraj) and the appellant came out in the street. Victim Ganga -

complainant's wife rushed outside to intervene. It is alleged that the

appellant gave a forceful push to her as a result of which, she sustained

head injuries. The victim was taken to J.P.N.Hospital immediately and

was medically examined vide MLC (Ex.PW-5/A) at around 09.00 p.m.

The alleged history records that the victim assaulted approximately half an

hour ago at Sanjay Amar Colony had suffered swelling over occipital

region approximately 3 cm x 1 cm. She was unfit to make statement.

Finally, she succumbed to the injuries and expired in the hospital on

16.01.2005. PW-6 (Dr.Sunil) conducted post-mortem examination on the

body and proved report (Ex.PW-6/A). Injury No.1 i.e. Contusion 7 cm x 3

cm present over right temporal occipital region of head was found

sufficient to cause death in the ordinary course of nature. Cause of death

was due to cranio cerebral damage consequent upon blunt force impact to

the head. All the injuries were opined ante-mortem in nature. In 313

Cr.P.C. statement the appellant did not deny the injuries sustained by the

victim in the occurrence. His defence is that when she rushed out of the

house on seeing them quarrelling, she stumbled against the pavement and

got injuries after fall.

4. Crucial testimony to prove that victim Ganga sustained

injuries due to push given by the appellant is of PW-7 (Suraj). In his

statement (Ex.PW-7/D) to the police at first instance, he gave detailed

account as to how and under what circumstances, a quarrel had taken

place with the accused over demand of money. He further informed that

when his wife Ganga intervened to save him, she was also beaten. The

appellant gave her a forceful push as a result of which she fell down on

the road and sustained head injuries. Immediately, she was taken to

hospital by her mother-in-law. In Court statement as PW-7, he proved the

version given to the police without major variations. He deposed that

when he expressed inability to pay `1,700/- demanded by the appellant

from him, the appellant started abusing him. He dragged him out from the

house and started beating him. When his wife came out to save him, the

accused gave beatings to her; caught hold her from her hair and struck her

head on the road. In the cross-examination, he was confronted with the

statement (Ex.PW-7/D) where certain facts mentioned by him in

examination-in-chief were omitted to be recorded. He denied the

suggestion that the victim had sustained injuries on her head as she struck

against the pavement.

5. No valid reason exists to disbelieve the statement of PW-7

(Suraj). It was not uncommon to push the victim on her intervention to

save her husband by the appellant as quarrel was going on between the

two and both of them had suffered superficial injuries. It was victim's

anxiety to pacify both of them. Since the FIR was lodged without

inordinate delay, there was least possibility of the complainant to have

concocted a false story in such a short interval. Statement of the

complainant coupled with medical evidence establishes beyond doubt that

the appellant gave a push to the victim as a result of which, she fell down

and sustained injuries.

6. Trial Court did not commit any error when it came to the

conclusion that offence under Section 304 IPC was not proved as the

appellant had no intention or knowledge that the injuries so sustained by

the victim would be fatal. Neither the State nor the victim has challenged

the findings of the Trial Court in this regard.

7. Moot point is that even if the incident is accepted to have

taken place in the manner as deposed by the prosecution witnesses,

whether the appellant could be convicted under Section 325 IPC. The

Trial Court was of the view that the appellant was guilty under Section

325 IPC as the victim had sustained fracture of right temporal bone

extending to right middle cranial fossa of the skull and it was grievous in

nature. Undeniably, relations between the appellant and the complainant

were cordial before the incident and in good faith certain sum was

borrowed by the complainant from him. On the day of occurrence, the

appellant had gone to the complainant's house only to demand the loaned

amount. An altercation took place between the appellant and the

complainant on refusal to pay the amount. Both the parties came out of the

house while quarrelling. The victim - complainant's wife, present in the

house rushed out to pacify the parties. At this juncture, she was given a

push by the appellant to prevent her intervention as a result of which, she

fell down and sustained injuries. Obviously, the appellant, who was not

armed with any weapon whatsoever had no intention to pick up quarrel

with the complainant or his wife. His only motive to visit the house was to

get back his money. In the altercation, both the complainant and the

appellant suffered superficial injuries. It was a sudden quarrel that took

place on a trivial issue at the spur of the moment. The victim was not the

target and her arrival on the spot to intervene was not in appellant's

anticipation. From the attendant circumstances, it cannot be inferred that

the appellant had intention or knowledge that the push given to the victim

would result in severe internal injuries causing her death. He himself had

not caused any 'fracture' or grievous hurt on the victim's body

voluntarily. Obviously, it was due to fall on the ground due to the said

push. For the 'fracture' suffered by the victim, the appellant, in my

considered view, cannot be held liable. The offence proved by the

prosecution falls only under Section 323 IPC.

8. In 'Jani Gulab Shaikh vs. The State of Maharashtra', 1970

(1) SCC (Cri) 532, in similar circumstances the accused therein had given

blows to the deceased who fell down with his face towards the sky.

Immediately, he became unconscious and his mouth and ear started

bleeding. High Court convicted him under Section 304 part-II IPC. In the

post-mortem examination, number of injuries were found on the head and

it included fracture of occipital; laceration to brain underneath; subdural

hematoma right temporo parietal region 4"x 3"; Contusion 3.2/3"x3" over

the occipital region; Contusion at temporoparietal region 2"x1". Hon'ble

Supreme Court was of the view that it was difficult to impute knowledge

to the accused that death was likely to result by the push he is alleged to

have given. The accused therein was convicted under Section 323 IPC.

9. In the light of above discussion, conviction under Section

325 IPC is modified to Section 323 IPC.

10. Nominal roll dated 05.05.2007 reveals that the appellant has

already suffered incarceration for nine months and fourteen days besides

remission for ten days as on 04.05.2007. Custody period increased to

fifteen months including remission period as substantive sentence was

suspended by this Court by an order dated 26.09.2007. The Trial Court

has awarded reasonable compensation to the LRs of the victim as detailed

in the sentence order. The appellant who has suffered agony of trial /

appeal for about ten years is not involved in any other criminal case and is

not a previous convict. Considering all these facts and circumstances, the

period already undergone by the appellant in this case shall be taken as

substantive sentence under Section 323 IPC. The appellant shall, however,

deposit fine of `1,000/- (if not paid) and the compensation amount (if not

deposited) within two weeks before the Trial Court.

11. The appeal stands disposed of in the above terms. Trial Court

record be sent back forthwith with the copy of the order. A copy of the

order be sent to the Superintendent Jail for information.

(S.P.GARG) JUDGE SEPTEMBER 22, 2015 / tr