Delhi High Court
Sunil vs State on 15 December, 2014
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, R.K.Gauba
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: December 15, 2015
+ CRL.A. 1318/2014
SUNIL ..... Appellant
Represented by: Ms.Saahila Lamba, Advocate
versus
STATE ..... Respondent
Represented by: Mr.Lovkesh Sawhney, APP
Insp.Sanjeev, PS Shahbad Dairy
CRL.A. 1271/2014
JAI KISHORE @ SHERU ..... Appellant
Represented by: Mr.Sunil Dahiya, Advocate
versus
THE STATE ..... Respondent
Represented by: Mr.Varun Goswami, Advocate
Insp.Sanjeev, PS Shahbad Dairy
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE R.K.GAUBA
PRADEEP NANDRAJOG, J. (Oral)
1. Believing the testimony of Sushila PW-1, her son Tinku PW-2 and her neighbour Rekha PW-4, vide impugned decision dated April 24, 2014 the learned Trial Judge has held that the prosecution has successfully proved the fact that appellants Jai Kishore @ Sheru and Sunil along with two absconding co-accused named Raju and Munna, in furtherance of their CRL.A. 1271/2014 & conn. matter Page 1 of 8 common intention, using the handle Ex.P-1 of a hand-pump and a wooden stick Ex.P-2 caused injuries to the deceased Vijay, which proved fatal resulting in Vijay's death and caused simple injuries to Rekha. The learned Trial Judge has further held that the prosecution has successfully proved that pursuant to his disclosure statement appellant Jai Kishore got recovered the handle Ex.P-1 of the hand-pump and the appellant Sunil got recovered the wooden stick Ex.P-2. Convicting the appellants for the offence punishable under Section 302/34 IPC for Vijay's death and for the offence punishable under Section 323/34 IPC for causing simple injuries to Rekha, vide order on sentence dated April 26, 2014 the appellants have been sentenced to undergo imprisonment for life and pay fine in sum of `10,000/- (Rupees Ten Thousand only), in default to undergo simple imprisonment for two years for the offence of murder. They have been sentenced to undergo rigorous imprisonment for six months and pay fine in sum of `3000/- (Rupees Three Thousand only), in default to undergo simple imprisonment for fifteen days for causing simple injuries to Rekha.
2. Making a feeble attempt to try and discredit the testimony of the three eye witnesses, learned counsel for the appellants would urge that believing the testimony of the three eye witnesses and keeping into account the post- mortem report Ex.PW-10/A of the deceased, case made out against the appellants pertaining to Vijay's death is not for the offence of murder but culpable homicide not amounting to murder punishable under Section 304 Part-I IPC.
3. Sushila PW-2 has deposed that the deceased was her brother and on the day of the incident around 12:00 noon, the day being May 24, 2010, she and her brother were sitting outside their house. Four persons, two of whom CRL.A. 1271/2014 & conn. matter Page 2 of 8 were the appellants and the other two who were named Raju and Munna came to their house. The four being residents of the same locality, she knew them from before. The four started quarrelling with her brother. Her brother and the four jostled. She intervened. The four started abusing her. There was a hand-pump in front of their house. Jai Kishore removed the handle of the hand-pump and hit her brother with the handle of the hand- pump Ex.P-1 on the head. Sunil picked up a wooden stick Ex.P-2. Munna picked up the pipe of an umbrella. Raju removed an iron rod from the stand of a cooler and the three started beating her brother. Her son Tinku and their neighbour Rekha were also present. When Rekha intervened, Raju hit her. The accused started beating Rekha. Two days prior to the incident her brother had a quarrel with Sunil.
4. Relevant would it be to note that during cross-examination she admitted that she was booked twice for having violated the Excise Act. She denied the suggestion that the accused persons were objecting to customer coming to their house where they used to sell liquor. She admitted that in the past she and her brother used to sell liquor but denied that currently they are selling liquor.
5. Tinku PW-2, the son of Sushila whose presence was spoken of by Sushila corroborated the testimony of Sushila. He spoke in sync with what his mother deposed. Rekha PW-4, the person whom Sushila spoke of as having intervened, and in the process received injuries deposed in sync with what was deposed to by Sushila.
6. From the testimony of the three eye witnesses it emerges that a day prior there was a quarrel between Sunil and the deceased. The appellants, along with the absconding co-accused named Raju and Munna came to the CRL.A. 1271/2014 & conn. matter Page 3 of 8 house where Sushila lived with her brother : the deceased. The four came unarmed. Neither witness has deposed as to what words were spoken of between the deceased and the four accused. The witnesses have simply stated that the four started quarrelling with the deceased, and by the word quarrelling, we understand the witnesses meant that there was an angry argument between the accused and her brother. The witnesses have said that the quarrel turned into 'hatha-pai' and by said word used by the witnesses, we understand that there was jostling. There were abuses hurled, as deposed to by the witnesses.
7. Reading the consistent testimony of the three eye witnesses till this stage of the drama enacted in the afternoon of May 23, 2010, it is apparent that the four accused, who came unarmed and did not launch an assault on the deceased, came with the intention to make the deceased understand something which the four accused wanted the deceased to understand. Till this stage of the drama the common intention was to quarrel and possibly intimidate the deceased into submission using force without any weapon of offence being used or an object being used to cause injuries. From the line of cross-examination adopted while cross-examining the witnesses it is apparent that liquor was being sold by the deceased from his house and because rowdy customers would visit the house creating nuisance in the locality, the accused had wanted the deceased to stop selling liquor. Remonstration turned ugly when Jai Kishore saw a hand-pump in front of the house with a loose handle. Stage two of the drama, having an aggravated form then took place. He picked up the handle Ex.P-1 and struck on the head of the deceased. Sunil picked up a danda (wooden stick) lying nearby. Munna picked up the support pipe of an umbrella and Raju picked CRL.A. 1271/2014 & conn. matter Page 4 of 8 up an iron rod from the cooler nearby. The four started hitting the deceased with the object in their hands and when Rekha intervened, they even hit Rekha.
8. This part of the testimony of the three witnesses that all four repeatedly hit the deceased and also Rekha is an obvious exaggerated version for the reason the dead body of Vijay speaks through the post- mortem report Ex.PW-10/A authored by Dr.V.K.Jha PW-10, who conducted the post-mortem on the dead body of Vijay on June 02, 2010. The MLC Ex.PW-19/A of Rekha proved by Dr.Vandana PW-19 who examined her on the day of the incident records that she had two small lacerations above the left eye and one small laceration on the left upper arm. It is apparent that Rekha was not beaten repeatedly with the respective objects held in their hands by the four accused. The post-mortem report Ex.PW-10/A authored by Dr.V.K.Jha records the following five external injuries:-
1. Multiple reddish brown healed bruise on back of chest and left arm.
2. Sutured operative wound on mid line extending from Epigastrium to hypogastrium about 20 cm in length.
3. Multiple healed scratch abrasion on left side of abdomen.
4. Healed wound on right forearm and right leg.
5. Multiple healed wound on scalp.
9. The injury No.2 is a surgical injury and thus it is apparent that the deceased had four external injuries. It does not mean that the deceased was hit only four times for the reason injury No.1 and 3 are an evidence of the deceased being hit with blunt objects repeatedly on the back of the chest and in the abdomen.
CRL.A. 1271/2014 & conn. matter Page 5 of 810. Internal examination evinced a sub-scalp hematoma present on the right frontal region. The report records the cause of death attributable to septicaemia, which had set in as a result of the injuries. The post-mortem report does not give any opinion as to whether any one injury individually or the injuries cumulatively were capable of causing death in the ordinary course of nature or were likely to cause death.
11. Unfortunately for us the prosecution has not proved the papers concerning medical treatment given to the deceased who survived for eleven days : injured on May 23, 2010, Vijay expired on June 02, 2010. But the death summary Ex.PW-22/G guides us that an exploratory laprotomy was done to find out whether there was bleeding in the liver.
12. It appears that because Vijay's health was not improving and there was some malfunctioning in the liver which was detected by the doctors, a decision was taken to do exploratory laprotomy to access the liver and find out whether there was internal bleeding. The death summary does not throw any light on the issue whether the doctors found any artery or vein injured or cut and hence required to be repaired.
13. But the histopathology report Ex.PW-18/A gives a clue. Dr.V.K.Jha who conducted the post-mortem of the dead body of Vijay could not opine the proximate cause of the death and the inquest papers guided him that explorative laprotomy was done to access the liver and thus after the post- mortem Dr.V.K.Jha handed over pieces of liver to the investigating officer. The histopathology report records that the micro sections from the piece of liver tissue handed over by Dr.V.K.Jha to the investigating officer revealed extensive fatty change of liver along with dilated blood vessels, foci of spillage of blood. It is apparent that the deceased who was selling illicit CRL.A. 1271/2014 & conn. matter Page 6 of 8 liquor was consuming a few pegs thereof himself and in the process had damaged the liver.
14. It is apparent that the result of the assault on the deceased, was a damage to the already damaged liver. But for the fact that the liver of the deceased was having fatty tissues probably due to the reason he was consuming a peg or two of liquor in excess which he used to sell each day, death would not have ensued.
15. The post-mortem report would show that save and except the injury on the scalp, which was grievous, but not life threatening, the deceased was hit on the forearm, the right leg, the abdomen and the back of the chest. Multiple healed scratch abrasions on the left side of the abdomen evince that the blunt object used : the handle of the hand-pump, the wooden stick, the support pipe of an umbrella and a thin iron rod from the stand of the cooler, were used to hit the deceased on the abdomen.
16. When he was examined in Court as PW-10, no opinion was solicited from him as to, in view of the histopathology report, what could be the possible cause of the death other than septicaemia.
17. Common intention can spring at the spur of the moment. The evidence of the common intention springing at the spur of the moment in the instant case is that from the initial common intention to somehow or the other make the deceased understand the logic and reason for not selling liquor from his house and create nuisance in the colony when people visit the house, on the deceased refusing to make mends the common intention turned to anger against the deceased and handy objects lying nearby were picked up to assault the deceased. Knowledge has thus to be attributed to the appellants that four people hitting a person repeatedly, though on the CRL.A. 1271/2014 & conn. matter Page 7 of 8 non-vital part of the body, could cause such injuries which were likely to cause the death of the deceased. We reiterate that the injury on the skull, though serious, is not life threatening. No bone of the skull was fractured. The duramater was not injured. Sub-scalp hematoma on the right frontal region was detected. This was obviously the result of extravasation of the arteries supplying blood to the outer portion of the brain.
18. The appeals are disposed of convicting the appellants, for the death of Vijay, holding that the offence committed by the appellants is culpable homicide not amounting to murder punishable under Section 304 Part-II IPC and for which we sentence the appellants to undergo rigorous imprisonment for a period of seven years and pay fine in sum of `1000/- (Rupees One Thousand only), in default of payment of fine to undergo simple imprisonment for a period of one month. The sentence imposed for causing simple hurt to Rekha is maintained.
19. TCR be returned.
(PRADEEP NANDRAJOG) JUDGE (R.K.GAUTA) JUDGE DECEMBER 15, 2014 skb CRL.A. 1271/2014 & conn. matter Page 8 of 8