1. Home
  2. /
  3. High Court Of Delhi
  4. /
  5. 2012
  6. /
  7. January


High Court Of Delhi|06 July, 2012


1. The two appeals, as per their priority position had reached for final hearing on November 03, 2011 on which date none appeared for the appellants and as recorded in the order sheet dated November 03, 2011 the two appellants appeared in person and stated that the Registry had not supplied the appeal paper book to them. Notwithstanding that it is the duty of the counsel concerned to make a visit to the Registry of this Court and obtain a copy of the appeal paper book, the same was supplied to the appellants, as recorded in the order dated November 03, 2011 and signatures obtained. Thereafter each Friday the matters reached and were not taken up for hearing because counsel for the appellants did not appear.
2. We cannot indefinitely wait for representation to be made by counsel.
3. Ms.Saahila Lamba, Advocate, a lawyer on the panel of the Delhi High Court Legal Services Committee is present in Court and has been requested to assist us on behalf of the appellants.
4. We fix fee of Ms.Saahila Lamba, Advocate in sum of `11,000/- (one set) which shall be paid by the Delhi High Court Legal Services Committee.
5. With assistance of Ms.Saahila Lamba, Advocate and Shri Pawan Sharma, Advocate who appears for the State we have perused the evidence.
6. The process of law was set into motion when DD No.10A, Ex.PW-24/A recorded at PS Delhi Cantt. was entrusted to Insp.Bishan Mohan PW-24 who proceeded to J-33, West Sagar Pur for the reason, Ex.PW-24/A had recorded information received at the police station that a quarrel was going on at said place.
7. As deposed to by PW-24, he recorded the statement Ex.PW-5/A made to him by Devender Nath Tiwari, a fact corroborated by Devender Nath Tiwari PW-5. Making an endorsement Ex.PW-24/B beneath the statement Ex.PW-5/A, PW-
24 got the FIR registered for offences punishable under Section 308/34 IPC for the reason Devender Nath Tiwari had stated that on account of being aggrieved by the fact, which was wrong, that he i.e. informant had teased the daughter of accused Om Prakash, to seek revenge, Om Prakash, Jagdish and Har Prasad came to his house at around 5:45 PM, which was under construction, and questioned him as to why he had teased the daughter of Om Prakash. He denied having teased the daughter of Om Prakash, at which the three persons got angry. Hearing abusing him, his brother Gyaneshwar (deceased) came out of his adjoining house and tried to pacify Om Prakash, Jagdish and Har Prasad, at which Om Prakash exhorted to kill him i.e. Devender Nath and his brother Gyaneshwar. Simultaneous with the exhortation, Om Prakash picked up a lathi lying nearby, so did Har Prasad picked up a lathi lying nearby and Jagdish picked up an iron pipeline lying nearby and assaulted Gyaneshwar. Firstly Om Prakash inflicted a lathi blow on the shoulder of Gyaneshwar followed by Jagdish inflicting a blow on his head with an iron pipeline upon which Gyaneshwar fell down. Then Har Prasad inflicted a lathi blow on his brother. As he rushed to save his brother, Ram Het and Pawan also reached there and started inflicting lathi blows on the person of his brother. To save his brother he tried to give physical cover to his brother and in the process even he received injuries. Hearing commotion, people from the neighbourhood gathered and rescued him and his brother.
8. Gyaneshwar was admitted to Ram Manohar Lohia Hospital, as recorded in the MLC Ex.PW-6/A, at 7.05 PM on the date of incident i.e. January 28, 1998. He was unconscious. Unfortunately he died the next date.
9. On the day of the incident, PW-5 Devender Nath Tiwari, was also got medically examined and as per MLC Ex.PW- 7/A he received a simple injury on his person.
10. On learning about the death of Gyaneshwar, the body was seized and sent for post-mortem, the post-mortem report Ex.PW-11/A, duly proved by the author thereof Dr.Hari Om Gupta, notes apart from a surgical incised stitched wound on the left parietal region, a contused lacerated wound on the left parietal region, a contused wound on the lower right back of the abdomen and a patterned wound having 5 serrated lines covering area 3 cm x 2 cm over the back of chest. The post-mortem report, with reference to the internal injuries, records that the blow on the left parietal region with a blunt object had resulted in a fracture of the bones of the scalp in the left parietal region. Contusion hemorrhage in the duramater of the brain had led to brain odema and death was the result of extravasation of the blood vessels in the duramater.
11. FIR, which was registered for an offence punishable under Section 308/34 IPC was converted to offences punishable under Section 302/34 IPC with respect to the death of Gyaneshwar and pertaining to the injuries caused to Devender Nath Tiwari for offence punishable under Section 323/34 IPC.
12. The Investigating Officer, during investigation, recorded the statement of Smt.Kunti, wife of the deceased, who we note was examined as PW-2 as also the statement of Birdi Nath Tiwari, the brother of the deceased examined as PW-4, who resided nearby. Both of them claimed to be eye-witnesses.
13. Suffice would it be to state that case of the prosecution, being based on eye-witness account would rest upon the testimony of the informant i.e. Devender Tiwari examined as PW-5, Smt.Kunti examined as PW-2 and Birdi Nath Tiwari examined as PW-4.
14. A perusal of the statement of the three witnesses would reveal that they have deposed in sync and as per Ex.PW- 5/A i.e. the statement made by PW-5 to PW-24 which had set into motion the criminal investigation i.e. the information on which FIR was registered.
15. Vide impugned judgment dated May 22, 1999, the learned Trial Judge has convicted the appellants for having murdered Gyaneshwar, and needless to state the reason for the conviction is the role attributed to Om Prakash of having given an exhortation and the role ascribed to Jagdish of using an iron rod and assaulting Gyaneshwar on the head; a vital part of the body. The learned Trial Judge has taken into account the ferocity of the blow, evidenced by the internal injuries as recorded in the post- mortem report of the deceased. With reference to the manner in which the incident took place and the manner in which the accused reached the place i.e. unarmed and with reference to the lathi blow attributed to Har Prasad, the learned Trial Judge has not found his involvement attracting Section 34 of the Indian Penal Code and thus he has been acquitted of the charge of having murdered Gyaneshwar but he has been convicted for the offence punishable under Section 323 IPC pertaining to the injuries inflicted upon PW-5.
16. With reference to the number of injuries on the person of the deceased and the informant PW-5, the learned Trial Judge has opined that it is apparently a case of an exaggerated version given, by ascribing roles to Ram Het and Pawan by PW-2, PW-4 and PW-5 who stated that the two reached subsequently and also participated in the assault. The learned Trial Judge has referred to the MLC of the informant to bring out the point that if indeed his version was correct i.e. he gave physical body cover to his brother when all the five accused were assaulting after accused Ram Het and Pawan also reached the scene of the crime, either number of injuries on the person of the deceased would be more or on the informant; and neither being the case, the benefit of doubt had to be extended to Ram Het and Pawan. The two have been acquitted. The State has not challenged the acquittal.
17. Har Prasad, being convicted for having committed the offence punishable under Section 323 IPC, has not challenged his conviction, probably for the reason vide order on sentence dated May 31, 1999 he was sentenced to undergo rigorous imprisonment for a period of six months; a period which he had already spent in jail during trial. This explains two criminal appeals before us; one filed by Om Prakash and the other by Jagdish.
18. Having perused the testimonies of Kunti PW-2, Birdi Nath Tiwari PW-4 and Devender Nath Tiwari PW-5, we find, as has been found by the learned Trial Judge, that all three witnesses have deposed consistently and in sync with each other; albeit with an exaggeration as found by the learned Trial Judge qua the involvement of Ram Het and Pawan, to whom a role of subsequently entering the place of incident and inflicting blows on the person of the deceased and Devender Nath Tiwari has been attributed.
19. With reference to the MLC of Devender Nath Tiwari, we may only bring out that the same is proof of he having been injured and thus his status is that of an injured eye-witness. That apart, he resides in the neighbourhood and would be a natural witness. Kunti PW-2, is the wife of the deceased. The incident took place in the adjoining house and thus even she is a natural witness. We may highlight the time of the incident is 5:45 PM when a housewife is expected to be in the house. Birdi Nath Tiwari, the brother of the deceased is also a natural eye-witness as he resides in the immediately neighbouring house where the incident took place.
20. The only issue which needs to be considered, which seems to have escaped the attention of the learned Trial Judge, is: Whether the attendant circumstances under which the assault took place brings out an intention on the part of the accused to cause the death of the deceased, or whether it would be a case where the intention was to teach a lesson to the deceased and his brother on account of grouse held that the brother of the deceased had teased the daughter of the accused Om Prakash and if it is the latter, whether the acts of the appellants were in concert and lastly, whether they constitute the offence of murder or culpable homicide not amounting to murder.
21. With reference to the testimony of the three eye-
witnesses it needs to be highlighted that the two appellants had reached the house of PW-5 unarmed. The testimony brings out that the accused, in an angry state of mind, had reached the house of PW-5 to settle, in all probability, a verbal score on account of they having a grouse that PW-5 had teased the daughter of accused Om Prakash. It brings out that there was probably some exchange of hot words; and obviously every informant would play down or under play his role while giving the information and his relations would also suppress the offending role of the informant. But the exchange of hot words before the assault is evidenced by the fact that PW-2 and PW-4 i.e. the wife and the brother of the deceased speak about reaching the scene of the crime upon hearing shouts. The statement of the three witnesses i.e. PW-2, PW-4 and PW-5, brings out that at the spur of the moment, upon Om Prakash giving an exhortation accused Jagdish picked up an iron rod lying nearby and accused Om Prakash picked up a lathi. So did Har Prasad. The post-mortem report of the deceased evidences one hefty blow on the left parietal region, and two, somewhat mild blows, on the lower right back of the abdomen and the back of the chest of the deceased. We have already referred to the MLC of PW-5 to bring home the point that he had received simple injuries.
22. It brings out the intention of the accused: to give a beating to Gyaneshwar i.e. the deceased for having intervened when the accused were having a verbal duel with Devender. It needs to be highlighted that the visit of the accused was to the house of Devender and the intention was to settle a score with Devender and none with Gyaneshwar, who unfortunately intervened and became a target of the ire of the accused. The accused were unarmed when they reached the place and statedly armed themselves with lathis and an iron rod at the spot; and though the deceased was assaulted but not very aggressively i.e. repeated blows were not inflicted, which could be since the three accused were armed and the target was one person.
23. We take recourse to precedents as Judges always do.
24. We note two decisions of the Supreme Court reported as 2007 (6) SCALE 649 Sunder Lal v. State of Rajasthan and 2008 (10) SCALE 315 Kandaswamy v. State of Tamil Nadu. In the former, two accused, armed with a gandasi and a lathi respectively had inflicted one blow on the head of the deceased with the gandasi and several injuries on the hands and the legs with the gandasi and the stick; the circumstance was such that an intention to kill the deceased was found wanting, and under the circumstances the Supreme Court held that the attack being at the spur of the moment and indiscriminate, the acts constituted an offence of culpable homicide not amounting to murder punishable under Section 304 Part-I IPC. In the latter decision, a knife was indiscriminately used as a weapon of offence causing a large number of incised wounds. The Supreme Court noted that the deceased was not the target. He had intervened in a fight between a father and a son on the one side and the accused on the other, and in the process, aggrieved by the deceased trying to rescue the persons who were the target of the assault, Kandaswamy attacked the deceased. The Supreme Court held that the offence committed was culpable homicide not amounting to murder, punishable under Section 304 Part-I IPC.
25. The facts of the instant case as noted by us rule out an intention to kill either Devender or Gyaneshwar. The evidence establishes that out of anger, when Gyaneshwar intervened, he was assaulted by the accused. It was upon the exhortation made by accused Om Prakash which led accused Jagdish to inflict a vital and fatal blow on the left parietal region of the deceased. It is settled law that a common intention can spring even at the spur of the moment. The intention was to injure the deceased and no more and thus we conclude that the acts committed by the appellants constitute the offence of culpable homicide not amounting to murder.
26. On the issue of sentence to be inflicted upon the accused i.e. the appellants, we note that both have undergone a sentence of about 5 years and 4 months, when the two were admitted to bail.
27. The nominal rolls do not evidence their involvement in any other offence. The date of incident is January 28, 1988. 24 years have gone by. Under the circumstances we hold that it would be sufficient sentence to impose upon the appellants by restricting the same to the period already undergone.
28. The appeals stand disposed of modifying the conviction of the appellants from that of having committed the offence of murder to that of having committed the offence of culpable homicide not amounting to murder. The sentence to undergo imprisonment for life is set aside and the two appellants are sentenced to undergo imprisonment for the period already undergone.
29. In view of the appeals being partially allowed and the sentence imposed, the bail bonds and the surety bonds furnished by the appellants are discharged.
30. We place on record our gratitude to Ms.Saahila Lamba who took the paper book in Court and readied herself for arguments in Court itself and drew our attention to the finer nuances of the evidence in spite of the short time available with her.
Disclaimer: Above Judgment displayed here are taken straight from the court; Vakilsearch has no ownership interest in, reservation over, or other connection to them.



High Court Of Delhi

06 July, 2012
  • Pradeep Nandrajog