Delhi High Court
Vinay Chaudhary vs The State on 23 February, 1989
Equivalent citations: 100(2002)DLT366, 2002(64)DRJ498
JUDGMENT Dalveer Bhandari, J.
1. This appeal is directed against the judgment and order passed by the learned Additional Sessions Judge in Sessions Case No. 11/96 dated 21.8.1997 and 27.8.1997 respectively.
2. The short question which arises for determination of this case is whether the offence under Section 302 or 304 Part II is made out or not in the facts and circumstances of this case?
3. The police station, Saraswati Vihar, received DD No. 18A on 6.9.1988 which was handed over to SI Deep Chand. He went to the spot, 15 Harsh Vihar, along with Constable Narender Kumar and Constable Bansi Lal where ASI Ranjeet Singh along with Constable Ram Singh and Harpool Singh were already present. He saw blood in the drawing room of the said house. The appellant Vinay Chaudhary was apprehended by the people of the locality.
4. PW-4 Smt. Nirmala Pandey, mother of the deceased-Nargita, stated that she has known the appellant since 1987. He was studying in Hindu College whereas Nargita was studying in Miranda House. The appellant was a relation of one of the friends of her daughter Nargita. He was rusticated from college for 3 years. The appellant told Nargita that he has been falsely involved by some people. Nargita became sympathetic towards the appellant and thereafter he visited her house frequently. Smt. Nirmala Pandey also stated that she was not aware of any love affair between the appellant and her daughter Nargita. The appellant came to her house at 3.30 p.m. on 6.9.1988. At that time Nargita and her servant PW-1 Vishnu Prashad were present in the house. The appellant was taken to the drawing room where he sat with Nargita. She kept sitting there whereas PW-1 Vishnu Prashad is stated to have served water and tea to both of them. At 5.15 p.m. she asked her servant to bring some household goods from the market. After 2-3 minutes of his departure she heard cries of Nargita "PAPA MUJHE BACHAYE VINAY KE HAATH ME GUN HAI YE MUJHE JAN SE MAR DEGA". On hearing this she rushed to the drawing room and she saw the appellant present. He had caught hold of Nargita by her hair. When she asked the appellant as to what he was doing, the reply of the appellant was since Nargita had refused to marry him he would not spare her. At that time the appellant was holding the hair of Nargita with one hand and in other hand he had revolver. She tried to paunch upon the appellant but she could not reach him. He fired his revolver which hit her daughter Nargita in her right cheek. Immediately thereafter Nargita slumped down and thereafter appellant hit Smt. Nirmala on her head with the revolver. The appellant thereafter tried to fix up something in his pistol. When Smt. Nirmala tried to get up the appellant hit her on her head with his pistol. The appellant tried to close the sliding door with the help of his leg but could not succeed. In the meantime, Smt. Nirmala managed to go out of the drawing room and on reaching the main gate, she raised an alarm. It is further mentioned in the statement that her head was profusely bleeding. On hearing her loud cries, many people from the neighborhood and some construction labourers reached with dandas and rods. Till then the appellant was inside the drawing room. She told people that the appellant had murdered Nargita. He came out and sat near the staircase. After sometime the police came and caught hold the appellant. The pistol was ceased and sealed in a parcel. Thereafter Nargita was taken to hospital. Smt. Nirmala was also taken to the hospital where stitches were given on her head. Smt. Nirmala was X-rayed and her left hand was plastered. In the cross-examination she stated that because of the injury on her head she was bleeding and her clothes were stained with her blood. She has seen blood coming out like a fountain from Nargita's face after the incident.
5. PW-1 Vishnu Prashad who was working as domestic servant stated that around 3.30 p.m. on 6.9.1988 Mrs. Nirmala Pandey and her daughter Nargita were present in the house. There was a knock at the door and he saw the appellant Vinay Chaudhary come there. He knew him because he had come there once or twice earlier. At 5.15 p.m. Mrs. Nirmala Pandey sent him to bring samosas and some other things from the market. He went to the Rani Bagh market. At about 6.15 p.m. when he came back he found that a crowd had assembled outside the house. The police was also there and he learnt that Nargita had bean killed. Mrs. Rupam Pandey, daughter-in-law of Smt. Nirmala Pandey told him that the appellant had killed Nargita.
6. Mrs. Rupam Pandey was examined as PW-2. She mentioned that the deceased Nargita was the sister of her husband. When she came back at 6.10 p.m. she saw a crowd outside her house including the police. She saw her mother-in-law profusely bleeding from her head and her clothes were blood stained. She told her that appellant had killed Nargita.
7. Nirupendra Pandey, brother of the deceased Nargita was examined as PW-3. PW-5 Prem Prakash, PW-6 Rakesh Sharma, PW-7 Vijay Shanker, PW-8 Kapil G. Kular, PW-9 Chander Shekhar, PW-10 Constable Anil Kumar, PW-11 Head Constable Sajjan Kumar, PW-12 Ramesh Chand Pandey were also examined.
8. PW-12 Ramesh Chand Pandey, father of the deceased Nargita, stated that he admitted Nargita in Batra Hospital in an injured condition on 6.9.1988 and she died on 6.11.1988.
9. Dr. Reena Garg of Deen Dayal Upadhyay Hospital was examined as PW-13. She stated in her examination that she had examined Smt. Nirmala Pandey and she found injury on left parieto-occipital region CLW 3" in size. She was suspecting fracture on the base of index finger. She advised X-ray on left hand and also referred to her to Orthopedic department. After an examination of the X-ray she gave an opinion that the injury was grievous in nature.
10. PW-14 ASI Mohan Chander, PW-15 Constable Naresh Kumar, PW-16 Constable Lajpat Rai, PW-17 SI Ranjit Singh, PW-18 Head Constable Neeru were also examined. These are all formal witnesses and no elaborate discussion is warranted.
11. PW-19 Dr. Bharat Mittal, Escort Heart Institute stated that on 6.9.1988 he was posted as a Consultant Neuro Surgeon when Nargita was brought to the causality at 10.15 p.m. She had been treated at another hospital with a gun shot injury on the head. The patient was in deep comatose with a profusely bleeding wound in the right cheek. Emergency blood transfusions was administered and emergency C.T. Scan of the head was done after explaining the prognosis to the family. The patient was prepared for an emergency brain operation. During the operation, there was a fall in the blood pressure and momentary cessation of heart. After administering 11 bottles of blood she was revived and her B.P. was brought to normal. She was kept in Intensive Care Unit and treated with ventilator, anti-convulsants, anti-biotics and dehydration therapy. After 20 days she had to be operated again on the right side of brain because of the recollection of blood. She had several post operative complications such as respiratory arrest, acute distension of abdomen, septicaemia, hepatitis, pneumonia, etc. She died due to respiratory distress leading to respiratory failure on 6.11.1988 despite all resuscitative measures.
12. PW-20 Head Constable Mani Rao, PW-21 Head Constable Raja Ali were also examined.
13. Inspector Dinesh Kumar was examined as PW-22. He mentioned that deceased Nargita was first admitted in ESI Hospital, Moti Nagar. When they reached there at 7.20 p.m. they came to know that she had been shifted to AIIMS. Dr. Praveen told him that no bed was available in the hospital, therefore, she was shifted to Safdarjung Hospital.
14. PW-23 Constable Narender Kumar, PW-24 Dr. Anil Sabhani, PW-25 Rewat Ram, PW-26 Dr. S.K. Garg, PW-27 Dr. Ashok Kumar, PW-28 Dr. C.S. Jaiswal, PW-29 H.C. Ram Phool, PW-30 H.C. Balbir Singh were also examined. It is not necessary to deal with their statements in detail because learned counsel for the appellant himself fairly stated that he is not disputing that the deceased was shot by the appellant Vinay Chaudhary. He submitted that on consideration of the totality of facts and circumstances of this case, the offence of appellant does not fall within the ambit of Section 302 IPC. The appellant could have been convicted only under Section 304 Part II and not under Section 302 IPC.
15. In view of the submissions of the learned counsel for the appellant the scope of inquiry and adjudication is rather limited. Because of overwhelming evidence on record counsel for the appellant did not dispute the fact that the appellant had fired a shot at Nargita and that has been the cause of her death.
16. Section 299 of the Indian Penal Code reads as under:
"299. Culpable homicide.- Whoever causes death by doing an act with the intention of causing death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
17. The main submission of learned counsel for the appellant has been that no offence under Section 302 IPC is made out and the appellant is guilty of committing an offence under Section 304 Part II I.P.C. If all the circumstances in this case are examined in proper perspective, in our considered opinion, the offence under Section 302 IPC is clearly made out. The appellant had gone to the house of the deceased with sindoor and a loaded revolver belonging to someone else. He wanted to marry the deceased but he had gone with the clear intention that in case she resists then he would eliminate her. Otherwise, where was the occasion for him to carry a loaded revolver registered in the name of someone else and then firing on a vital part. His intention was not to scare her and compel her to marry him. He did not fire in the air or even on any non-vital part of the body to scare the deceased.
18. The appellant had gone to the house of the deceased with the loaded revolver with full preparation and in fact firing the same on her vital part after she declined to marry him clearly demonstrates his intention to cause death. The case, in our considered opinion, squarely falls within the four corners of Section 299 IPC punishable under Section 302 IPC. Even this is not the case of the appellant that he was a license holder of the revolver which he used to carry with him whenever he went out. He had obtained the revolver and thereafter fired on the vital part of the body of the deceased clearly goes to show that the appellant had the intention to cause death and with this intention had fired at the deceased.
19. In our considered opinion, the appellant is clearly guilty of the offence committed under Section 299 IPC and is punishable under Section 302 IPC in view of the judgment which has clearly analysed the entire evidence on record and found the appellant was guilty of the offence under Section 302 IPC. In our considered opinion, no interference is called for with the well-reasoned judgment of the trial court.
20. The appeal is accordingly dismissed. The bail bonds executed by the appellant is cancelled. The appellant who is on bail shall be taken into custody forthwith to serve the remaining part of the sentence.