Delhi District Court
State vs . 1) Daljeet Kaur @ Rano on 17 November, 2018
IN THE COURT OF SH. AJAY GUPTA, ADDL.SESSIONS
JUDGE02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA
COURTS, DELHI
SC No.333/16
FIR No.46/09
PS Geeta Colony
U/s 304/323/34 IPC
State Vs. 1) Daljeet Kaur @ Rano
W/o Sh. Saranjeet Singh @ Rinku
R/o H.No.13/16 Rajgarh Colony,
Gali no.3, Gandhi Nagar, Delhi
2)Inderjeet Singh
S/o Late Sardar Daya Singh
R/o H.No. 15/105, Geeta Colony, Delhi
3)Amarjeet Singh
S/o Late Sardar Daya Singh
R/o H.No.14/85, Geeta Colony, Delhi
Date of institution: 14.09.2011
Arguments heard: 25.10.2018
Date of order: 17.11.2018
JUDGMENT
PROSECUTION CASE:
1. Brief facts as per prosecution case are as under:
(a) that on Dt. 03.03.09, at about 10.20pm, operator E56 via intercom gave information at Geeta Colony Police station regarding a quarrel at 15/105, Sethi Chowk, Geeta Colony. This information was recorded as DD No.34A and this DD was assigned to SI J.K. Singh, the first IO, who alongwith Ct.Satpal reached at H.No.15/105, Geeta Colony where one Lady Devi Rani was found in unconscious FIR No.46/09 State vs Daljeet Kaur etc 1 of 25 condition. SI J.K. Singh left Ct. Satpal at the spot and removed the said lady to SDN hospital where she was declared brought dead. After that he got shifted the dead body to the Subzi Mandi Mortuary for post mortem and he came back to spot where one Mr. Vijay Kumar S/o Chander Bhan gave a written application to him and he also handed over two persons namely Inderjeet and Rinku to SI J.K. Singh. From the contents of application and MLC of the deceased, IO found commission of offence u/s 304/34 IPC, accordingly, IO got registered a case through Ct. Satpal.
(b) Complainant Vijay Kumar stated in his written application that on 03.03.2009, at about 9.45 pm, he asked his tenant Inderjeet to pay the amount of electricity dues but he refused to pay the same and he hauled him. At that time his mother Smt.Devi Rani came to rescue him. The brother in law of Inderjeet, his brother Amarjeet, his nephew Sunny, his son Rinku and his daughter in law Rano, who were already present at the house of Inderjeet, also came there and they all started beating the complainant and his mother. Inderjeet, Rinku, Amarjeet and Rano beaten up his mother and Sunny beat him up. Inderjeet, Rinku, Amarjeet and Rano gave fist blow on the chest of his mother due to which she fell on the ground and seeing this they all fled from there but he apprehended Inderjeet and Rinku and latched the door of the house. Complainant stated that the said quarrel took place in the courtyard of his house.
(c) After registration of case, Inderjeet Singh, Saranjeet @ Rinku and Amarjeet were arrested while accused Daljeet Kaur @ Rano FIR No.46/09 State vs Daljeet Kaur etc 2 of 25 surrendered before the court. Accused Sunny@ Harjeet was granted anticipatory bail by Hon'ble High Court.
(d) After completion of investigation, accused Inderjeet Singh, Saranjeet @Rinku, Amarjeet Singh and Daljeet Kaur@ Rano were charge sheeted while accused Sunny @ Harjeet Singh was kept in colomn no.12 for want of sufficient incriminating material against him.
(e) After filing charge sheet, Ld. MM took cognizance and summoned the said four accused persons who were charge sheeted and after compliance of the provisions of section 207 Cr.P.C, the matter was committed to the sessions court.
2. Vide order dt 12.12.11, a charge U/s 304/34 IPC for committing culpable homicide of Smt. Devi Rani and u/s 323/34 IPC for causing simple hurt to complainant Vijay Kumar, was framed against the accused persons to which they pleaded not guilty and claimed trial.
FACT IN ISSUE:
3. Point which emerged for determination in this case are: Whether on 03.03.2009 at about 9.45 pm, the accused Daljeet Kaur@ Rano, Inderjeet Singh, Amarjeet Singh, Saranjeet Singh(now expired) in common intention with Harjeet Singh @ Sunny (not chargesheeted) committed culpable homicide of Devi Rani and caused simple injury to complainant Vijay Kumar.
PROSECUTION EVIDENCE:
4. In order to establish accusations against the accused persons, the prosecution has examined 21 witnesses. For the purpose discussion, the witness have been classified into the following categories: FIR No.46/09 State vs Daljeet Kaur etc 3 of 25 MATERIAL WITNESSES: PW6 Mr. Avtar is the neighbour of the complainant. He deposed that on 3.03.09 at about 9.3010 pm, he heard noise of quarrel from the H.No.15/105, Geeta Colony, Delhi (complainant' house) and when he reached there, he found that mother of landlord Vijay was lying on the floor and a quarrel was taking place between the landlord and the tenant inside the house. He again said that quarrel was taking place between the owner Vijay and accused who are present in the court. On making inquiry about the mother, Vijay told him that the tenants had pushed her on the ground due to which she became unconscious. He stated that he can only indentify accused Amarjeet by name and rest he can identify from their faces. This witness was declared a hostile witness and was cross examined by Ld. Addl.PP and in his cross examination he admitted the suggestion of Ld. Addl.PP that when he reached at the spot, he saw that the accused Inderjeet Singh, Saranjeet Singh, Amarjeet Singh and Smt. Daljeet Kaur were giving beatings to deceased Devi Rani and her son Vijay and during the scuffle and beating, Devi Rani fell down and became unconscious. He also stated that he forgot the said facts due to lapse of time.
PW7 Mr. Narender Wadhwa is another neighbour and eye witness to the incident. He deposed that on 3.03.09 at about 9.3010 pm he was present inside his house and at that time he heard noise of quarrel from the H.No.15/105, Geeta Colony, Delhi. He went there and found that a quarrel was taking place between Vijay and his tenants i.e. accused persons. He saw that during quarrel the mother of Vijay fell down and he lifted her and FIR No.46/09 State vs Daljeet Kaur etc 4 of 25 Vijay immediately took her to hospital where doctor declared her brought dead. This witness was also declared a hostile witness and was cross examined by Ld. Addl.PP and in cross examination he admitted the suggestion that when he entered the house of Vijay, he saw that a quarrel was taking place between Devi Rani & Vijay on one hand and accused Inderjeet, Amarjeet, Saranjeet and Smt. Daljeet on the other hand, on the issue of payment of electricity bill. He also admitted the suggestion that during quarrel accused persons pushed Devi Rani due to which she fell down on the ground and later on, she was declared brought dead by the doctor.
PW8 Mr. Vijay is the complainant and son of the deceased. He deposed that on 3.03.09 at about 9.30/9.45pm, he asked for the payment of electricity bill from his tenant Inderjeet but he refused to pay the same upon which an altercation took place between him and Inderjeet and at that time, the relatives of Inderjeet, namely accused Amarjeet Singh, Rano, Rinku (all the four accused who were put to trial) with his two more relatives came down from the first floor and started quarrelling with him. He deposed that the accused (the accused facing trial) gave beatings to him and his mother and they pushed his mother due to which she fell down and became unconscious. After seeing his mother unconscious the accused left the spot. He took his mother to lifeline hospital where she was declared brought dead. He also stated that two other relatives of the accused also gave beatings to him and his mother and he can identify them if produced before him.
FIR No.46/09 State vs Daljeet Kaur etc 5 of 25 PW11 Mr. Rakesh Aggarwal is another eye witness. As per prosecution case, at the time of incident he was residing in the same locality. He deposed that on 3.03.09, at about 9.3010pm, he was returning to his house after having some meal from Ramesh Dhaba, Geeta Colony and when he reached at the round about of 15/105, he found gathering of some public persons there. He saw that a quarrel was going on between Rinku & Inderjeet and their owner (old lady) on the point of amount of electricity bill. Accused Inderjeet is the brother of Amarjeet. He deposed that at that time Amarjeet was not present at the spot. In his further deposition, firstly, he deposed that he cannot tell about the presence of the accused Daljeet at the time of incident but subsequently, he stated that Daljeet Kaur was also present there but he doesn't know her name. He again changed his version and stated that accused Daljeet Kaur was not known to him prior to the incident and he cannot say whether she was present at the time of incident or not. He further stated that accused persons were known to him as they were the resident of Geeta Colony and accused Amarjeet was having a shop at Chandni Chowk near to his shop. He deposed that accused persons and their owner were abusing each other and he also saw dhaka mukki (scuffle) between them. The landlady fell on the ground due to pushing by the accused persons. Thereafter, he returned to his house. He identified all the accused except accused Daljeet Kaur and stated that he cannot say whether she was there or not.
PW21 Vijay s/o Meghraj is the brother in law of the complainant Vijay. He deposed that on 3.03.09 he was present at his house and at about 9.30 pm, he got a telephone call from his brother in law and after receiving the said call he went the house of his brother in law where he saw that FIR No.46/09 State vs Daljeet Kaur etc 6 of 25 accused Daljeet Kaur, Inderjeet Singh, Saranjeet Singh and Amarjeet Singh alongwith their one associate were quarrelling with his brother in law Vijay and his mother in law Devi Rani on the issue of electricity bill. They were giving fist and leg blows to both of them. His mother in law fell down near the main gate of the house due to the beatings given by the accused persons. The accused persons vanished from the spot. He took his mother in law to the hospital where she was declared brought dead. He stated that his mother in law expired due to the injuries/hurt caused by the accused persons.
MEDICAL EVIDENCE: PW1 Dr. S. Lal has conducted the autopsy of the deceased Devi Rani and he brought on record the autopsy report as PW1/A. PW1 opined that cause of death was intracranial damage consequent upon blunt force impact and sufficient to cause death in ordinary course of nature.
PW3 Dr. Navjeevan Singh is the doctor concerned who had signed a report of Histopathology examination of pieces of tissues of brain, lung, heart, liver, spleen and kidney of deceased. He opined that the said tissues were within normal histological limits. He brought on record his the aforesaid report as ExPW3/A. FORMAL WITNESS: PW2 HC Birender Singh, is the DO who placed on record the copy of the FIR as Ex.PW2/B and his endorsement on rukka as ExPW2/A. FIR No.46/09 State vs Daljeet Kaur etc 7 of 25 PW15 HC Sushil is the police official who on 12.05.2009 had deposited the body organ pieces of the deceased with the hystopathological department of GTB hospital.
PW18 HC Hari Singh had deposited the viscera of the deceased with FSL.
MEMBERS OF INVESTIGATING TEAM: PW4 W/Ct. Neelam had joined investigation with Insp. Sham Singh on 02.08.11 and in her presence the accused Smt. Daljeet Kaur @ Rano was arrested.
PW5 Ct. Satender is another witness to the arrest of accused Smt. Daljeet Kaur @ Rano.
PW9 Retd. SI Harpal Singh is one of the IO's of this case. He took over the investigation on 17.02.10. He did not carry out much part of the investigation and he had only obtained the pathology report Ex PW3/A and after that he was transferred.
PW10 Insp. Asha Thakur is another IO of the present case. She was assigned the investigation on 22.11.10 and she could not conduct any substantial investigation as she was transferred to Women Cell.
PW12 Ct. Satpal is the police official who had initially visited the spot alongwith SI J K Singh and his testimony is not being repeated here as he has deposed more or less on the same lines as discussed in Para no.1.
PW13 HC Digvijay Singh is witness to the arrest of the accused Amarjeet.
FIR No.46/09 State vs Daljeet Kaur etc 8 of 25 PW14 Insp. J K Singh is the police official who was assigned the call
about the incident and he had visited the spot alongwith Ct. Satpal and he has also deposed on the same lines of Para no.1.
PW16 Ct. Virender is the police official who on 3.03.09 on the direction of SI J K Singh got conducted the medical examination of the complainant Vijay from SDN hospital.
PW17 SI Rajender Kumar is another IO who also conducted some part of the investigation. He took over the investigation on 30.03.09 and on 28.04.09, on the direction of SHO, he handed over the further investigation to SI J K Singh. During the said period he recorded the statement of witnesses and caused arrest of accused Amarjeet Singh.
PW 19 HC Jitender was deputed to assist the first IO SI J.K. Singh in the investigation. On the intervening night of 3/4.03.09, PW 18 on the asking of duty officer went to the SDN hospital where on the instructions of SI J K Singh, he got shifted the dead body to the Subzi Mandi Mortuary for post mortem and on 4.03.09, after post mortem doctor concerned handed over viscera peti and other articles which were seized by the IO.
PW20 Retd. Insp. Shyam Singh is the last IO of the case. He took over the investigation of this case on 10.05.11. On 02.08.11, he arrested the accused Daljeet Kaur @ Rano. He also collected the opinion of the doctor given about the cause of death of deceased Devi Rani. After completion of investigation he filed the charge sheet.
STATEMENT OF ACCUSED: FIR No.46/09 State vs Daljeet Kaur etc 9 of 25
5. After examination of aforesaid witnesses, the prosecution evidence was closed and the statement of accused 313 Cr.P.C was recorded. Accused denied the allegations made against them and claimed false implication. Accused Inderjeet Singh stated that he was a tenant and had gone to settle the electricity bill and he did not beat deceased Devi Rani. He stated that hot words were exchanged. Deceased starting shouting and out of anger, she lost her balance and fell down. Accused Daljeet Kaur is the daughter in law of accused Inderjeet Singh and she stated that she has been falsely implicated in this case. She further stated that her father in law had gone alone to talk about the bill and no scuffle took place between them. Deceased Accused Saranjeet also took the similar defence. While accused Amarjeet Singh stated in his defence that he was not residing in the said house and his brother Inderjeet Singh was a tenant there. He stated that he reached there at about 11 pm and came to know about the happening of quarrel between his brother and landlord.
6. Accused persons examined two defence witness. DW1 Sudhir Sachdev is the resident of the same locality. He deposed that in the month of March, 2009, at about 9/9.30 pm, he had gone to temple and after offering his prayer, when he came out of the temple, saw that some public persons had gathered outside the temple. The accused present in the court was having hot discussions with someone. In the meantime one lady came and pushed him and after pushing him she lost balance and fell down. After sometime police came there and thereafter he left for his house.
FIR No.46/09 State vs Daljeet Kaur etc 10 of 25
7. DW2 Harpreet Singh is the relative of the accused. He stated that on 3.03.09, at about 8 pm, he went to the house of his maternal uncle at 14/85, Geeta colony, Delhi. At about 10.30 pm, Rinku called Amarjeet Singh, his maternal uncle, from his house no. 15/105, Geeta Colony and told that some quarrel had taken place and police had come there. He alongwith his maternal uncle Amarjeet Singh reached there and saw that many public persons were present there and police was also there. Rinku @ Saranjeet Singh and his father Inderjeet Singh were being taken by the police in govt. gypsy. After that he came back to his house.
SUBMISSIONS ADVANCED:
8. I have heard Ld. Addl. P.P as well as Ld. defence counsel and gone through the record of the case. Ld. Addl. PP submitted that the prosecution has proved its case against the accused persons with the testimony of complainant Mr. Vijay (PW7) who is the son of deceased Devi Rani as well as with the testimonioes of other public/eye witnesses who were also present at the time of incident. Ld. Addl. PP further submitted that the said witnesses have very well proved that accused persons had beaten up the complainant as well as the deceased and they also pushed the deceased due to which she fell down and sufferred intra cranial injuries in her head and passed away. Thus, Ld. Addl. P.P. submitted that accused persons may be convicted for the offences charged with.
9. On the other hand Ld. Defence Counsel submitted that prosecution has miserably failed to prove its case. He submitted that the testimony of complainant/PW7 is not reliable as there are several material FIR No.46/09 State vs Daljeet Kaur etc 11 of 25 contradictions in his testimony. He submitted that the complainant has not specififed as to who had pushed his mother. He also submitted that there are material contradictions in the testimony of complainant as well as other public witnesses examined by the prosecution which makes the prosecution case highly doubtful. He submitted that the complainant had alleged that accused Inderjeet along with his other five relatives had beaten him and his mother, however, even as per prosecution case no incriminating material was found against two accused persons and they were not chargesheeted in the instant case. Therefore, the version of the complainant is not reliable. Ld. Defence counsel further argued that even if the prosecution case is believed that the deceased died as she was pushed by the accused persons yet no case u/s 304 IPC would be made out against the accused persons and in view of the settled law at the most, a case u/s 323 IPC would be made out. Thus, he submitted that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt, therefore, they may be acquitted. Ld. Defence Counsel also relied upon the following case laws in support of his contentions:
(a) Jani Gulab Shaikh vs State of Maharashtra, 1969 (2) UJ 598 SC
(b) Pirthi vs State of Haryana 1994 AIR 1582
(c) Satya Prakash vs State 2011 [1] JCC 115
(d) Satnam Singh vs State of Punjab 2004 (2) Crimes 144 LEGAL POSITION:
10. In the present case the accused persons have been charged for the offence 304 IPC for causing culpable homicide of deceased Devi Rani as well as 323 IPC for causing hurt to the complainant Vijay. Thus, FIR No.46/09 State vs Daljeet Kaur etc 12 of 25 before analysing the prosecution evidence led in the instant case, the law related to the term culpable homicide is required to be noted.
11. The circumstances under which the accused will be guilty of murder or culpable homicide have been explained in section 300 IPC. The definition of culpable homicide is detailed in section 299 IPC. Both these provisions of IPC read as under:
299. Culpable homicide. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
&
300. Murder: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death: Exception 1. When culpable homicide is not murder. Culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos: (Firstly) That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
(Secondly) That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
(Thirdly) That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation. Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2. Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the FIR No.46/09 State vs Daljeet Kaur etc 13 of 25 death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.
Exception 3. Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without illwill towards the person whose death is caused.
Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation. It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5. Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. Illustration A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder.
12. The circumstances under which an offence would be covered under section 302, 304 Part I and 304 part II IPC have been described by Hon'ble Supreme Court in the case reported as Rampal Singh Vs State of U.P. reported as 2012(8) SCC 289. The relevant paras of this judgment where the said circumstances have been discussed reads as under: FIR No.46/09 State vs Daljeet Kaur etc 14 of 25
20. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed.
21. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section 304 is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. It is neither advisable nor possible to state any straight jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused.
22. A Bench of this Court in the case of Mohinder Pal Jolly v. State of Punjab [1979 AIR SC 577], stating this distinction with some clarity, held as under :
"11. A question arises whether the appellant was guilty under Part I of Section 304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I. On the other hand if before the application of any of the Exceptions of Section 300 it is found that he was guilty of murder within the meaning of clause "4thly", then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to FIR No.46/09 State vs Daljeet Kaur etc 15 of 25 cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part II of Section 304 and not Part I."
23. As we have already discussed, classification of an offence into either Part of Section 304 is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of premeditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view, i.e., by applying the 'principle of exclusion'. This principle could be applied while taking recourse to a twostage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, 'culpable homicide amounting to murder'. Then secondly, it may proceed to examine if the case fell in any of the exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused.
13. Thus, for section 304 IPC (part I or part II) the act must be done either with the intention of causing death or with the knowledge that the act done will lead to the death of the victim. Thus, in the present case, it is to be seen from the evidence lead by the prosecution that whether the FIR No.46/09 State vs Daljeet Kaur etc 16 of 25 accused persons had given a fist blow on the chest of the deceased or pushed her, if so, then whether that was with the intention of the causing her death or whether the accused were aware that the pushing the deceased would lead to her the death.
DISCUSSIONS ON THE PROSECUTION EVIDENCE:
14. In the present case, the complainant Vijay (PW8) is the most material witness as allegedly a quarrel ensued when he demanded electricity dues from his tenant i.e. accused Inderjeet Singh. He deposed that at the time when altercation was going on between him and his tenant, the five other relatives of his tenant came there and they started quarrelling with him and they beaten him and his mother and during quarrel they pushed his mother due to which she fell down and became unconscious and seeing that accused persons left the spot. Complainant was cross examined, however, nothing material surfaced to have a doubt about the veracity of the version of the complainant regarding the quarrel and beating and pushing done by the accused persons. Ld. Counsel for accused submitted that during quarrel the deceased had pushed the accused persons and after pushing the accused she lost her balance and fell down. He also submitted that the testimony of the complainant that accused had pushed his mother is not trustworthy as during cross examination complainant could not specify as to which accused had pushed his mother. He also submitted that version of complainant cannot be relied as he failed to show the injuries suffered by him as a result of alleged beatings given by the accused persons. It is clear from the testimony of the complainant that a sudden quarrel had taken place FIR No.46/09 State vs Daljeet Kaur etc 17 of 25 between complainant and accused Inderjeet Singh where other accused persons also joined the accused Inderjeet Singh and accused persons had beaten the complainant and pushed his mother due to which she fell on the floor and suffered injuries on her head and passed away. The defence taken by the accused persons that the deceased fell as she lost her balance is untrustworthy as during evidence of complainant, accused endeavoured to show that the deceased lost her balance and fell down and on the other hand during their defence evidence, the accused portrayed that deceased had pushed the accused persons and then she lost her balance and fell down. No such suggestion was put to the complainant that deceased fell down when she had pushed the accused. Thus, this defence is not reliable. It is clear from the evidence of the complainant that all the accused shared a common intention while beating the complainant and his mother and while pushing her, as such they all are liable for the offences committed by them qua the complainant and deceased even if one of them had pushed the mother of the complainant. Ld. Defence Counsel also submitted that complainant has failed to show the injuries suffered by him thus, his testimony regarding beating is not reliable. It is clear from the testimony of the complainant that accused persons had beaten him and his mother and beatings are covered within the definition of simple hurt and therefore, the version of the complainant cannot be discarded merely because he did not suffer any apparent injury in the incident. It is also the submission of ld. Defence Counsel that complainant has failed to specify the name of the accused who had pushed his mother. It is clear from the testimony of the complainant that a sudden quarrel had FIR No.46/09 State vs Daljeet Kaur etc 18 of 25 taken place where other accused had also joined them and they beaten him and his mother and they also pushed his mother. The testimony of the complainant seems to be natural and reliable as he stood by his first version and properly spelled out the details of the incident. There is no reason to doubt the evidence of the complainant as neither it suffers from any material improvement not contradiction. Further, it is clear that there is no previous enmity between them which could be the possible reason for the false implication of the accused persons. In view of these discussions, it is held that in the sudden quarrel the accused persons had beaten the complainant and his mother and they also pushed the deceased (mother of complainant).
15. It is clear from the testimony of the complainant that after the accused persons had pushed his mother she fell on the ground and became unconscious and when she was taken to the hospital she was declared brought dead. PW1 Dr. S. Lal had conducted the autopsy of the deceased Devi Rani and he opined that her cause of death was intra cranial damage consequent upon blunt force impact which was sufficient to cause death in ordinary course of nature. As such, if the testimony of complainant is read alongwith the medical opinion regarding the death of the mother of the complainant, it is clear that after she fell down, her head struck against the floor which caused intra cranial damage which resulted into her death. It is clear from the evidence on record that a sudden quarrel had taken place where accused had beaten the complainant and during quarrel they pushed his mother due to which she fell down and became unconscious and passed away. It is also clear that the complainant has not suffered any FIR No.46/09 State vs Daljeet Kaur etc 19 of 25 apparent external or internal injury due to the beatings given by the accused. Thus, as far as complainant is concerned, the accused are guilty of causing simple hurt to him and now it is to be seen as to which offence accused have committed qua the deceased.
16. The accused persons have been charged u/s 304 IPC for causing culpable homicide of Devi Rani. It is clear from the well settled law that for constituting an offence either u/s 304 IPC Part I or Part II, the act must be done either with the intention of causing death or with the knowledge that the act done or the injury caused will lead to the death of the victim. So in the instant case, it is to be seen whether the accused had done any act of causing death of the deceased or caused any bodily injury to her which accused were aware of that it would lead to her death. Admittedly, during a sudden quarrel, accused had pushed the deceased when they were present on the ground floor of their house. Thus, the act of the accused persons is not covered in the first part of the definition of the culpable homicide as it is clear that their act of pushing the deceased while standing on the ground floor cannot be said to be done with an intention to kill her. It is further clear that they had pushed her and had not caused such nature of injury where such a knowledge can be imputed to them that they were aware that it will lead to her death. Thus, in the instant case, the act of pushing is not covered in any part of the definition of culpable homicide.
17. In the case titled as Jani Gulab Shaikh vs The State Of Maharashtra 1969 (2) UJ 598 SC, the facts were of similar nature. In this case, the accused had given blows to the deceased due to which he fell on the FIR No.46/09 State vs Daljeet Kaur etc 20 of 25 street as a result of which his head got struck against the hard surface of the street and he got fractured his occipital region of his head and died. In this case, the Hon'ble Supreme Court has observed that under these circumstances, no knowledge can be imputed to the accused that he was aware that his action would lead to the death of the deceased. Thus, Hon'ble Supreme Court held that the case is not covered even in the part II of the section 304 IPC and his conviction was converted from 304 Part II IPC to sec 323 IPC. The relevant para of this judgement read as follows: The question that arises is whether the accused is guilty under Section 304, part II, Section 325 or Section 323 I.P.C, In our opinion the High Court erred in holding that Section 304, part II, applied, The High Court observed : "We are of the opinion that the accused must be deemed to know that as a result of such forcible push death could have been the likely result. The accused must be deemed to know that the deceased was likely to fall on the cement concrete road and that the force which he was actually using was likely to result in fatal injuries to the deceased. Therefore, though the accused did not intend to cause the death of the deceased and did not intend to cause him injuries sufficient in the ordinary course of nature to cause his death and did not intend to cause him injuries which were likely to cause death, at any rate, he must be posted with the knowledge that death was likely to result in the circumstances in which the injuries were caused by him to the deceased." We are unable to agree with High Court that the accused must be posted with the knowledge that death was likely to result in the circumstances the injuries were caused by him to the deceased. It is very rarely that if a man is pushed and he falls on the road the occipital bone gets fractured. Here it is perhaps due to the drunken condition of the deceased that while falling he could not avoid his skull falling on the road At any rate, in our opinion it is difficult to impute knowledge to the accused that death was likely to result by the push he is FIR No.46/09 State vs Daljeet Kaur etc 21 of 25 alleged to have given. 9. If he is not guilty under Section 304, part II, he cannot be convicted under Section 325, because no grievous injury has been inflicted by the accused. There is no evidence to show that injury no. (iii) in column 19 was grievous. 10. The learned counsel for the appellant also tried to show that the accused was justified in pushing him and giving him blows. We are unable to agree with him on this matter. The accused could very well have gone away and ignored the deceased who was obviously not behaving normally. In our view the accused is guilty under Section 323, I. P. C. In the result the appeal is partly allowed the conviction entered and sentence given by the High Court altered and the accused convicted under Section 323, I. P. C., instead of Section 304 part II.
18. In the case titled as Satya Prakash Vs State (Crl.A 220/2001) the accused had given a fist blow on the chest of the deceased due to which he fell down and became unconscious and doctor opined that deceased died due to heart attack. It was proved that deceased had a heart attack due to the fist blow given by the accused. The Ld. Trial court had convicted the accused for the offence 304 Part II. The Hon'ble Delhi High Court observed that under these circumstances neither any intention nor knowledge can be imputed to the accused, thus, he was held to be guilty of the offence u/s 323 IPC. The relevant paras of this judgment reads as under:
5. I have heard the learned counsel for the parties. The testimony of PW 8, the complainant who is the wife of the deceased and PW9 Hansraj, son of the deceased proves that there was a quarrel on the 31st December, 1996 at about 10:30 p.m. between the Appellant and PW9. When the deceased intervened the Appellant gave a fist blow on the chest of the deceased, due to which he fell down and became unconscious. Nothing contrary has been elicited in the crossexamination of these witnesses on this count.
FIR No.46/09 State vs Daljeet Kaur etc 22 of 25
6. The moot issue would however be whether in such a case, the Appellant can be convicted for an offence punishable under Section 304 Part(II) Indian Penal Code. As per the opinion of the PW 6, the doctor who conducted the postmortem, the deceased died due to "Acute Myocardial Ischaemia(heart attack) subsequent to Aortic Valve Stenosis & Fresh Blood Clots present in the Right Coronary Artery". The mode of death is opined as natural death process. Moreover, PW8 Dilip Kaur in her crossexamination has admitted that her husband was a heart patient. This court in Mohammad Sharif v. State, Crl. Appeal 468 of 1999 has dealt with the issue whether on such facts the offence would fall within the ambit of 304 or 325 or 323 Indian Penal Code.
7. On the facts of the present case, the Appellant cannot be attributed with any intention or knowledge to cause an injury that is likely to cause death. The death in the present case has been opined to be natural due to disease process. Moreover, one single blow on the chest region which is covered with ribcage in the attending circumstances, cannot be said to be with the intention or knowledge of causing grievous hurt.
8. The conviction of the Appellant is thus altered to one for an offence punishable under Section 323 Indian Penal Code. The sentence that can be awarded for an offence punishable under Section 323 Indian Penal Code is rigorous imprisonment up to one year or with fine or both. The Appellant has already undergone a sentence of more than one month. As the Appellant is not involved in any other case and considering that the incident is 14 years old, it would be appropriate to modify the sentence of the Appellant to the period already undergone.
19. In the case of Satnam Singh v. State of Punjab 2004 (2) Crimes 144, also the Hon'ble Punjab and Haryana High Court has held that where the act of the accused is without any intention or knowledge of causing death, the accused will be guilty only for the hurt and not for culpable homicide. The relevant paras of this case reads as under: FIR No.46/09 State vs Daljeet Kaur etc 23 of 25
20. Admittedly, the case of the prosecution as emerges from the statement Ex.PG is that when grand sons of Jatto Bai had told her that they were returning from the school they were beaten by the sons of Nain Singh. Thereafter Jatto Bai left for the house of Nain Singh for remonstration. Incidently Kartaro Bai met on the way. Two ladies exchanged abuses. In the meantime, the present appellant and his two brothers allegedly reached there and then the present appellant also gave fist blow on the amblicus of Jatto Bai. In my view the appellant acted on a sudden impulse when two ladies were abusing each other and thereafter giving fist blow. This is my view, would not amount to culpable homicide amounting to murder or not to murder punishable under section 302 or 304 PartII Indian Penal Code. The present appellant cannot be posted with the knowledge that the death was likely to result in the present set of circumstances on account of injury caused by him to Jatto Bai. So the conviction under section 304 Indian Penal Code as recorded by the trial Court is unsustainable and the present offence would fall under section 323 Indian Penal Code. In the Jani Qulab Shaikh 's case (supra), the conviction of the appellant under section 304 PartII Indian Penal Code was altered to section 323 Indian Penal Code almost in the same set of circumstances as in that case the deceased who was in a drunken condition was given a push and he consequently fell on the road resulting into fracture of occipital bone.
21. My observation to the effect that the present case falls within the ambit of section 323 Indian Penal Code is strengthened by another judgment rendered by the Hon'ble Apex Court in State of Karnataka v. Shivalingaiah, 1988 Crl. L.J. 394. In the said case conviction was ultimately maintained by their Lordships under section 325 Indian Penal Code on the ground that the act of the accused in squeezing the testicles of a person would be an offence of voluntarily causing grievous just under section 325 Indian Penal Code. In the said case there was a categorical statement of the doctor that the act was dangerous to human life and had led to cardiac arrest of the deceased which was instantaneous. In the present case the factual position is that the appellant had given fist blow to the deceased causing contusion falling within the ambit of section 323 Indian Penal Code.
FIR No.46/09 State vs Daljeet Kaur etc 24 of 25 The net result is that the present appellant stands acquitted of the offence punishable under section 304 Indian Penal Code and is hereby convicted under section 304 Indian Penal Code. The sentence already undergone by the appellant shall be considered as substantive sentence for section 323 Indian Penal Code as the maximum sentence for this offence is one year and the said period of sentence, a stated by learned counsel for the appellant and not disputed by the State counsel, has already been consumed.
CONCLUSION:
20. The facts of the present case are fully covered within the cases mentioned hereinabove. In the instant case, the accused had pushed the deceased due to which she fell down and sufferd intra cranial damage and died, however, it is clear that during a sudden quarrel the accused had pushed the mother of the complainant but it is clear that neither the assault was with the intention to cause death nor any knowledge can be imputed that they were aware that due to pushing deceased would die. Thus, under these circumstances, the present case would not fall in any part of section 304 IPC and the accused persons can be held liable only for causing simple hurt to the deceased. In view of these discussions, the accused are held guilty for causing simple hurt to the complainant as well as to his mother and accordingly they are acquitted of the charges u/s 304/34 IPC and convicted u/s 323/34 IPC. Digitally signed by AJAY GUPTA AJAY Location: Delhi GUPTA Date: (Ajay Gupta) 2018.11.17 15:50:28 +0530 ASJ02/East/KKD/Delhi.
Announced in the open court on 17.11.2018 FIR No.46/09 State vs Daljeet Kaur etc 25 of 25