Tara Chand vs State Of Delhi
2017 Latest Caselaw 524 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
    +    Crl.Appeal No.436/2000

                                    Date of Decision: 30th January, 2017

         TARA CHAND                                           ..... Petitioner

                         Through           Mr.M.K.Vashisht, Adv.

                                  versus

         STATE OF DELHI                                    .....     Respondent
                         Through           Mr.Panna Lal Sharma, APP with SI
                                           Narender Kumar, PS: Prasad Nagar.

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

         P.S.TEJI, J.

1. The present appeal has been filed under Section 374

Cr.P.C. against judgment dated 06.07.2000 whereby the

appellant has been found guilty and convicted for an offence

punishable under Section 304 Part II IPC and order on

sentence dated 07.07.2000 whereby the appellant has been

sentenced to undergo rigorous imprisonment for two years and

to pay a fine of Rs.10,000/- and in default to payment of fine,

to undergo simple imprisonment for a period of six months.

The fine, if recovered, had been directed to be paid to the heirs

of the deceased as compensation.

2. The facts of the case, as per the case of the prosecution,

in a nutshell are that on 15.08.1992 at about 3 P.M. Vikrant @

Bunty with Des Raj was returning after changing a video

cassette and on the way back, Bunty and Des Raj were abusing

the owner of video cassette library who had supplied defective

video cassette. When they reached near house of accused Tara

Chand, Soma Devi w/o Bhim, the brother of accused, accosted

them and alleged that they were abusing her. Vikrant @ Bunty

refuted the allegation, but Soma Devi insisted that she had

been abused. In the mean time, Bhim, Ashok and

appellant/accused Tara Chand, the three brothers came and

started beating Vikrant @ Bunty and Des Raj. Accused Tara

Chand gave beatings to Vikrant. In the meantime, one Manak

Chand came there and tried to save Vikrant @ Bunty saying

'Kaya Tu Larke Ko Jaan Se Marega'. In the meantime, mother

of Vikrant @ Bunty came at the spot. The accused then

released Vikrant, picked a brick and gave blow on the head of

Manak Chand saying 'Sale Ab Bacha Le Bunty Ko'.

Thereafter blood oozed out of the head of Manak Chand and

accused left the spot. Mother of Vikrant @ Bunty asked Manak

Chand to go to the hospital, but he went to his house.

3. Manak Chand got private treatment, but on 20.08.1992,

his condition worsened so he was taken to RML Hospital. The

information about his admission was received at PS: Parsad

Nagar and recorded at Serial No. 13A in D.D.Registrer. Copy

of the same was handed over to SI Rajinder Singh who along

with Const. Manohar Lal reached the hospital. In the hospital,

MLC of Manak Chand was collected, but he was declared unfit

for treatment. No eye witness was found in the hospital so after

perusal of MLC SI Rajinder Singh made an endorsement and

got case registered under Section 308 IPC. Then SI Rajinder

Singh reached the spot and prepared site plan at the instance of

Om Wati, mother of Vikrant @ Bunty and recorded statements

of Om Wati and Vikrant.

4. On 25.08.1992, information was received from the

Hospital that Manak Chand had died and the information was

recorded at serial No.26A in DD Register so the case was

converted into one under Section 304 IPC and post mortem of

the dead body was conducted. The appellant/accused was

arrested, but weapon of offence could not be recovered. After

completion of investigation, challan was prepared, filed in the

court of M.M. and the case was committed to the court of

sessions for trial.

5. Charge under Section 304 IPC was framed against the

appellant/accused vide order dated 24.10.1994, to which

appellant/accused pleaded not guilty and claimed trial.

6. The prosecution examined fifteen witnesses in support

of their case i.e. PW-1 Jatinder Kumar, PW-2 Const. Nitter

Singh, PW-3 S. Mehto, PW-4 Des Raj, PW-5 Dr.L.T.Ramani,

PW-6 HC Prem Chand, PW-7 Raj Kumar, PW-8

Const.Manohar Lal, PW-9 Const.Raj Kumar, PW-10 Omwati,

PW-11 Vikrant, PW-12 Dr.Poonam Kapoor, PW-13 HC

Dharam Pal, PW-14 SI Rajinder Singh and PW-15 ASI

Rameshwar Dayal. Statement of accused under Section 313

Cr.P.C. was recorded and he examined DW-1 Bhim Singh in

his defence.

7. In support of the appeal, the appellant/accused has taken the

grounds that there is a delay in lodging of FIR in the instant case

inasmuch as the incident took place on 15.08.1992 at 3 PM while the

FIR was recorded on 20.08.1992 at 4.30 P.M; that the

appellant/accused had not been named in the proceedings nor in the

FIR; that the weapon of offence i.e. brick has not been recovered by

the IO and that there are material contradictions in the testimony of

the witnesses.

8. Per contra, learned Additional Public Prosecutor for the State

has vehemently opposed the aforesaid contentions raised on behalf of

the appellant and submitted that the judgment of conviction and

order on sentence as passed by learned Additional Sessions Judge do

not suffer from any irregularity or illegalities and is passed with a

reasoned order, therefore, the same is not liable to be interfered with.

9. Arguments advanced by the learned counsel for the appellant

as well as learned APP for the State were heard.

10. PW1 is Jatinder Kumar, who is the son of the deceased, has

deposed that when he came to his house, he saw his father having

head injury. He took his father to RML hospital and got him

admitted there.

11. PW11 is Vikrant @ Bunty. In his deposition, he stated that he

was running cable TV business and on 15.08.1992 while he along

with Des Raj was returning after taking a cassette from video library

and reached in front of the house of the appellant/accused, his mother

was found sitting on a cot in front of her house and his foot struck

with the cot whereupon she started abusing him. He told her that he

had said nothing against her. In the meanwhile, Shyama Devi also

came out of the house and started abusing. Tara Chand, the

appellant/accused, also came there and caught hold of Vikrant and

started abusing him. He fell down and appellant/accused started give

kick and fist blows to him. In the meanwhile, Manak Chand came

there and started saving Vikrant. He also asked the accused not to

beat Vikrant. The appellant/accused stated that 'you will save bunty'

and started abusing Manak Chand and picked up a brick and hit on

the head of Manak Chand as a result of which he sustained injuries

and fell down. The appellant/accused ran away.

12. PW10 Om wati is the mother of PW-11 Vikrant @ Bunty. She

has corroborated the testimony of PW-11. She has stated that on

15.08.1992 someone informed her that her son Vikrant @ Bunty was

having a quarrel. She rushed towards gali where quarrel was going

on. She saw that appellant Tara Chand was beating her son. Her son

Bunty was lying on the ground. She further stated that one Manak

Chand tried to save her son and in the meanwhile, the

appellant/accused took a piece of brick and gave its blow on the head

of Manak Chand. As a result of which blood started oozing out and

appellant ran away from the spot.

13. The testimony of PW-10 and PW-11 has been duly

corroborated by PW5 Dr.L.T.Ramani. PW-5 conducted post mortem

on the body of Manak Chand on 26.08.1992. He opined that the

deceased had sustained following injuries:

External Injuries:

Stitched wound C shape extending from right temporo parietal area to the vault of scalp and then continuing to right occipital area. On removing stitched wound margins were found united.

Partly healed up abrasions 1 ½" x 1" on the left fronto parietal area.

Internal Examination:

Haematoma in the scalp over right parietal region around craniotomy hold of 2" diameter on the right parietal bone. There was gele foam backing beneath. There was thick extra dual haemorrhage on the posterior half of right celebral hemisphere and generalized sub-dural haemorrhage. Brain was oveematous and there was necrosis of vasal part of

mid brain. Neck tissus were normal.

As per his opinion, the injuries were ante-mortem in nature

caused by blunt object. Injury to the brain was sufficient to cause

death in the ordinary course of nature. Death was due to coma

resulting from head injury.

14. PW2 is Constable Mittar Singh who was posted in RML

Hospital on 20.08.1992 and he had informed PS Parsad Nagar. PW12

is Doctor Poonam who was working as CMO on 20.08.1992 in this

hospital and she had examined Manak Chand and prepared MLC

Ex.PW12/A and thereafter Manak Chand was referred to surgical

emergency.

15. PW3 is the Medical Record Clerk who proved death report

and death summary of the deceased Manak Chand.

16. PW14 SI Rajinder Singh is the IO of the case. On 20.08.1992

he was handed over copy of DD No.13A which is Ex.PW14/A. He

along with Const. Manohar Lal reached RML Hospital. He collected

MLC of Manak Chand who was declared unfit for statement. Since

no witness was found at the hospital, he made endorsement on the

DD and sent the same through Const. Manohar Lal to the police

station for registration of the case. He returned to the spot at Pershad

Nagar where occurrence had taken place. He prepared the site plan

Ex.PW14/C on the pointing of Om Wati and recorded the statement

of Om wati. He also recorded the statement of Vikrant. On

25.08.1992, he received a copy of DD No.26A (Ex.PW6/A) that

Manak Chand had died. He conducted the inquest proceedings and

got the dead body identified by Jitender and Raj Kumar and recorded

their statements. With the help of Const. Raj Kumar, he brought the

dead body to Subzi Mandi mortuary for post mortem. After post

mortem, he handed over the dead body to relatives of the deceased.

17. Indisputably, the quarrel had taken place between the

appellant and Vikrant @ Bunty and in the said quarrel, the appellant

first gave kick and fist blows to Vikrant @ Bunty and when Manak

Chand intervened, the appellant/accused stated 'you will save Bunty'

and started abusing the deceased and picked up a brick and hit on the

head of Manak Chand due to which he sustained injuries on his head

and fell down.

18. From the testimony of eye witness PW11 Vikrant @ Bunty, it

has been duly established that on the day of the incident, while he

along with Desh Raj was returning to his house and reached in front

of the house of accused Tara Chand, mother of appellant/accused

was found sitting on a cot in front of her house. His foot struck

against her cot and mother of accused started abusing him. In the

mean time, the accused/appellant came there and caught hold of him

and started abusing. Vikrant @ Bunty fell down and

accused/appellant gave kick and fist blows to him. In the mean time,

the deceased came there and started saving him. He also asked the

accused not to beat him. The accused stated that 'you will save

Bunty'. He started abusing the deceased who sustained injuries on

his head and fell down. The accused ran away. When the blow was

given by the accused/appellant, the mother of the witness was about

to reach there. In the cross examination, this witness stated that

when he saw his mother, he was standing near Manak Chand and

the accused had run away from the spot. The brick with which injury

was caused was lying near the nali.

19. In the considered opinion of this Court, the testimony of the

eye witness Vikrant @ Bunty (PW11) is reliable and trustworthy.

Even otherwise, his testimony has duly been corroborated by public

witnesses Om Wati (PW10) whose testimony was also found to be

credible.

20. It is apparent from the testimony of prosecution witnesses that

there are discrepancies with regard to date and time of incident and

the manner of investigation conducted by the police. But the fact

remains that the said contradictions or discrepancies are not material

enough, which could have gone to the root of the matter. Such

discrepancies are bound to occur in normal course. It is a fact that

the incident had taken place on 15.08.1992, deceased received

private treatment, got admitted in hospital on 20.08.1992 and

succumbed to the injuries on 25.08.1992. Such contradictions and

discrepancies are bound to occur due to such a lapse of time and after

a careful reading of their testimony, this Court does not find the same

to be material which could discard the case of prosecution in toto.

21. A cumulative effect of the above discussion leaves no room of

doubt that on the day of incident, the appellant committed culpable

homicide not amounting to murder of the deceased Manak Chand

and the same has duly been established from the evidence produced

on record by the prosecution.

22. Consequently, the judgment of conviction and order on

sentence passed by the Court below are upheld.

23. The personal bond and surety bond of the appellant stands

cancelled. Appellant, on bail, is directed to surrender within a period

of 15 days before the trial court concerned to serve the remainder of

the sentence.

24. With the above observations, the present appeal stands

disposed of. Pending application, if any, is also disposed of.

(P.S.TEJI) JUDGE JANUARY 30, 2017