Delhi High Court
Rajesh vs State on 12 February, 2016
Author: Pradeep Nandrajog
$~R-21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : February 12, 2016
+ Crl.A.509/2000
RAJESH ..... Appellant
Represented by: Mr.Harsh Prabhakar, Advocate
versus
STATE ..... Respondent
Represented by: Mr.Varun Goswami, APP with SI
Sandeep Panwar, P.S.K.M.Pur
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J. (Oral)
1. Having heard learned counsel for the parties, for the facts noted
hereinafter followed by the reasons, it is apparent that the learned Trial
Judge has grossly erred in overlooking clinical features of the evidence
which warrants the conviction of the appellant to be converted from having
committed an offence punishable under Section 302 IPC to one under
Section 304-II, IPC.
2. We believe the presence of Dhan Singh PW-7 and Vijay Pal PW-6 at
the place where Jagdish (the deceased) was fatally injured.
3. Dhan Singh is the informant and his statement recorded soon after the
incident shows that he along with his cousin Vijay Pal and Jagdish, who
were real brothers, were going to meet one Gandhi Ram at around 1.45
P.M. on March 11, 1990, the day when the festival of Holi was being
celebrated and as they reached Gupta Store at Aliganj, Kotla they some
boys playing holi and smearing cow dung and on this issue Dhan Singh,
Vijay Pal and the deceased had an arguments with the boy. Two boys who
were celebrating holi in a rowdy manner suddenly took out knives and
stabbed Jagdish on his chest, stomach and arm and thereafter the boys fled.
Passers-by told them that the offenders were Rajesh - the appellant; and
Raju who has since died and appeal filed by him disposed of as abated.
4. The post mortem report of the deceased is suggestive of only one
weapon of offence used to inflict one fatal stab wound and five non-fatal
incised wounds.
5. This became the compulsion of Dhan Singh and Vijay Pal to give a
twist to the assault. As per the two, co-accused Raju started the assault by
taking out a knife and inflicted a blow on the stomach of the deceased, and
which injury we note as per the opinion of the doctor who conducted the
post mortem i.e. Dr.R.K.Sharma PW-5, was the one which was opined to
be fatal and sufficient in ordinary course of nature to cause death because
the wound present in right iliact fossa traversed into the intestines. The
other five injuries, not opined individually or collectively sufficient to cause
death, were attributed to Rajesh by Dhan Singh and Vijay Pal who stated
that after Raju inflicted one blow on the stomach of the deceased,
appellant Rajesh took the knife from his hand and inflicted the other blows.
Only one knife was possibly used.
6. This shifting of the version is not innocuous for the reason the
prosecution has filed the MLC of appellant Rajesh along with the charge-
sheet, but has not proved the same. Filed by the prosecution, Rajesh can
take full benefit of the MLC which records that after he was arrested a day
after the incident and taken the next day to AIIMS, the doctor found that
he had a two days old clean lacerated wound between right index finger and
thumb. This shows that the two eye witnesses have withheld the fact that
a scuffle took place in which appellant was also injured and the place of
the injury shows it to be possibly a defence injury.
7. It does happen that when a protest turns into remonstration and the
remonstration takes the ugly form of jostling followed by an assault, the
injured party underplays its role, and this has happened in this case.
8. Going back to the incident as disclosed by Vijay Pal soon after the
incident, it all commenced when a group of boys celebrating holi
boisterously threw cow dung and some fell on the deceased, Dhan Singh
and Vijay Pal, who naturally protested. The two eye witnesses have their
after blurred what happened. But the injury suffered by the appellant throws
light that there was a scuffle. The scuffle turned into an assault in which
the probability of either the deceased or Vijay Pal and Dhan Singh also
using a sharp edged weapon cannot be ruled out. It is thus a case where
what was the final spark which triggered of the use of the knives is not
emerging with clarity. It is a case where the witnesses of the prosecution
have weaved lies into truth, compelling the Court to sieve the chaff from the
grain. There is no pre-meditation and everything happened on the spur of
the moment. No witness has spoken of any exhortation or catching hold.
The fatal injury has been attributable to co-accused Raju, who has since
died.
9. It is a case where the act committed by the appellant leads to he being
held guilty for having committed the offence of culpable homicide not
amounting to murder punishable under Section 304-II IPC.
10. We note that the appellant has undergone sentence of five years and
eleven months.
11. We dispose of the appeal altering appellant's conviction from having
committed an offence punishable under Section 302 IPC to having
committed an offence punishable under Section 304-II IPC and for which
we sentence him to undergo imprisonment for the period already
undergone.
12. In view of the sentence imposed the bail bond and surety bond
furnished by the appellant are discharged.
13. Copy of this order be sent to the Superintendent, Central Jail Tihar for
his record.
14. TCR be returned.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
FEBRUARY 12, 2016
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