Babbloo & Pappu vs The State (Nct Of Delhi)
2016 Latest Caselaw 333 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Date of Decision: January 15, 2016

+                        CRL.APPEAL 358/2000

      BABBLOO & PAPPU                                 ..... Appellant
              Represented by:        Ms.Saahila Lamba, Advocate

                                     versus

      THE STATE (N.C.T. OF DELHI)             ..... Respondent
               Represented by: Mr.Varun Goswami, APP

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J. (Oral)

1. On October 20, 1996, the duty officer of PS Sunder Nagri recorded DD No.15A, Ex.PW-13/A at 7:33 PM to the effect that a fight was taking place on a street in H-Block, Sunder Nagri. SI Amar Singh PW-13 was handed over a copy of the DD Entry and a company by HC Ramesh Kumar (PW-4) he left for the spot, and as deposed to by SI Amar Singh and HC Ramesh Kumar they saw two lathis and stones scattered at the spot with blood staining the street. HC Ramesh Kumar stayed at the spot to secure it and SI Amar Singh proceeded to the hospital because the people at the spot informed that the injured had been removed to Guru Teg Bahadur Hospital. The injured, named Yaseen, had been brought to the casualty by Intizar and was examined by Dr.R.K.Nagar PW-12 who declared him brought dead as recorded in the MLC Ex.PW-12/A. Around same time Abdul Majid PW-2,

Hamida Begum PW-6 and Rasheed PW-1 were given medical aid at Guru Teg Bahadur Hospital for simple injuries as recorded in the MLC Ex.PW- 11/A, Ex.PW-11/K and Ex.PW-11/B respectively. SI Amar Singh recorded the statement Ex.PW-2/A of Abdul Majid who disclosed that one Hira, in a drunken state, came to his tea shop situated at H Block, Sunder Nagri and demanded a bidi. He objected to Hira's behaviour, who left for his house abusing him. At that time his mother Hamida and son Rasheed were at his shop. Hira returned after 5 minutes and was accompanied by Babloo (appellant), one Pappu and Raju (the latter being a juvenile). Babloo and Raju has dandas in their hand and they hit him. Yaseen (the deceased) who was taking tea at his shop intervened to stop the accused persons and all of a sudden Babloo took out a knife and inflicted one knife blow on his chest as a result of which Yaseen fell down. He and several other persons took him to the hospital. While fleeing from the spot, Hira, Babloo, Pappu and Raju threw stones. Making the endorsement Ex.Pw-13/B beneath Majid's statement Ex.PW-2/A SI Amar Singh got the FIR Ex.PW-16/A recorded for offences under Section 302/323/34 IPC. He returned to the spot and lifted two dandas, two bricks stained with blood. He drew the rough site plan.

2. Names of four accused being disclosed to SI Amar Singh by Abdul Majid, the police started looking for the four accused. Hira could not be apprehended and was declared a proclaimed offender.

3. Raju, being a juvenile was sent to trial before the Juvenile Court.

4. Appellant Babloo and Pappu were committed to trial for offence punishable under Section 302/323/34 IPC.

5. Vide impugned judgment dated December 15, 1999, whereas Babloo has been convicted for the offence punishable under Section 302 as also

Section 323 IPC, Pappu has been convicted for the offence punishable under Section 323 IPC. Babloo has been sentenced to undergo imprisonment for life and pay fine in sum of `2,000/- and in default to undergo RI for one year for the offence of murder. He has been sentenced to undergo RI for one year for the offence punishable under Section 323 IPC.

6. Only Babloo has filed the appeal.

7. At the trial whereas Rasheed PW-1 supported the prosecution as regards the incident and participation of four persons but turned hostile on the involvement of the four persons who took part in the assault by claiming that he could not identify them; Abdul Majid PW-2 and Intizar PW-3 as also Hamida Begum PW-6 have fully supported the case of the prosecution, which we note as per the charge-sheet filed was in terms of Abdul Majid's statement Ex.PW-2/A.

8. Weapon of offence could not be recovered. Forensic opinion as per Ex.PW-13 concerning exhibits seized simply show that at the spot where the incident took place human blood was detected.

9. It all turns therefore upon the testimony of PW-2 and PW-3 and PW-

6.

10. Having perused their testimony we find that each has corroborated each other. Informant PW-2 has stood by his statement made to SI Amar Singh soon after the incident. The three have withstood the test of cross- examination.

11. The incident has been graphically noted by us while narrating the facts hereinabove. Acquitting Pappu, the learned Additional Sessions Judge has rightly found no common intention shared by anyone. This is the reason why Pappu has not been convicted with the aid of Section 34 of the Penal

Code.

12. The learned Additional Sessions Judge has rightly observed that in view of the testimony of the witnesses it is apparent that Hira, Babloo, Pappu and Raju came to the spot to beat Abdul Majid and the deceased became a victim when he intervened. No commonality of intention has been found qua Babloo suddenly taking out a knife and stabbing the deceased.

13. Argument advanced by learned counsel for the appellant is that since a single stab wound blow was inflicted upon the deceased against whom there was no motive nor animosity, and in the jostling the injury got inflicted, the conviction of the appellant has to be based on the knowledge that while using the knife and targeting the blow towards the deceased he could possible cause death of the deceased. Learned counsel submits that it is not that the knife blow was intentionally targeted towards the chest of the deceased, it was unfortunate that the blow struck the chest of the deceased. Learned counsel would submit that the knowledge would be that by the act the appellant was likely to cause death and not the knowledge of the crime contemplated by Section 300 fourthly, a plea which merits acceptance for the logic of the plea flows from the testimony of the witnesses of the prosecution.

14. We accordingly dispose of the appeal convicting appellant for the offence of culpable homicide not amounting to murder. Conviction and sentence for the offence punishable under Section 323 IPC is maintained. We note that by the time the appellant was admitted to bail by this Court, as recorded in the order dated September 27, 2005 he had undergone incarceration for 8 years and 9 months. We accordingly impose the sentence upon the appellant to undergo the sentence already undergone.

15. The bail bond and surety bond furnished by the appellant are discharged.

16. Copy of this order be sent to the Superintendent Central Jail Tihar for updation of the jail record.

17. TCR be returned.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE JANUARY 15, 2016 mamta