Tilisra v. The State (Govt. of NCT) Delhi

11 The accused persons were arrested. Accused Telisra was airested vide m.emo Ex. PW-16/A at the pointing out of PW-5; her disclosure stateinerit Ex.PW-14/D was recorded. Accused Kamal Kishore was aiTested vide memo Ex. PW-14/F md his disclosure statement Ex. PW-.14/H was recorded. Subsequently accused Mumii Lai was apprehended aiid aiTested vide memo Ex. PW-14/I, his disclosure statement Ex. PW- 14/K was recorded. Pursuant to tliis disclosure statement he had got recovered the weapon of offence i.e. adandameasuring two feet which was seized and talcen into possession vide memo Ex. PW-14/2; it was sealed with the seal ofMKS; tlie place ofincident was also pointed oat • by him vide memo'Ex. PW-14/.N. CRL.A. Nos,791/2010, 1014/2010 &1239/2010 Page 8of27 12 The subsequent opinion of the doctor on the weapon of offence was obtained by Inspector M.S. (PW-18) vide opinion Ex. PW-18/C •who had opined that this weapon could have caused injuries upon the victim. •

13 On the basis of the aforenoted collected evidence the accused persons were charge sheeted and charges under Section 302 read with Section 120B (1) of the IPG were framed against all three of them. A sepai-ate charge under Section 452 IPG read with Section 34 IPG,was framed against accused Munni Lai and accused Tilisra.

14 The prosecution in support of its case had 'examined 19 witnesses. Statement of the accused persons were recorded under Section 313 ofthe Gode who pleaded innocence and stated that they have been falsely implicated inthe present case.

15. No evidence was led in defence.

16. The accused persons were convicted and sentenced vide the UTipugnedjudgment. Thisjudgment is the subject matter ofappeal.

17 On behalf of the appellant Munni Lai arguments have been CRL.A. Nos.791/2010,. 1014/2010 &1239/2010 y^^^1 addressed by Mi-.R.K.Anand, Advocate. Attention has been drawn to the testnnony of PW-4, the daughter of the victn-n; who has been projected as an eye-witness as also PW-8, the sister of the victim. Learned counsel for the appellant points out that there are discrepancies inthe aforenoted two versions and theprosecution hasfailed to establish that PW-4 was inliving with her mother attlie relevant time; ithas been ai'gued that the victim and her husband did not share coidial lelations and their daughter PW-4 was in fact living with her father in U.P.; she was not an eye-witness. Even otheiVise PW-4 and PW-8 both have stated that they had accompanied the victim to the hospital but this stand stood conti'overted by PW-15 who had removed the injured to the hospital and has categorically in his cross-examination admitted that the sister and the daughter of the victim had not accompanied him to the hospital. Attention has also been drawn to the medical report of the victim i.e. the MLC Ex.PW-l/A. It is pointed out that the versions of the PW-4 and PW-8 that the victim had been discharged after a prima facie check-up and appeai-ed to be nomial and it was only on her way home that she felt faint and was taken back to the hospital but this version of PW-4 and PW-8 is not borne out from Ex.PW-l/A which has neitlier CRl...A, Nos.791/2010, 1014/2010 & 1239/2010, noted any discharge nor has any re-admission been noted in the said MLC. The two versions cannot be reconciled. Learned comisel for tlie appellant submits that at best this could be a case of knowledge on the.part ofthe accused persons tliat by ttieii" act they could have caused such injmies upon the person of the victmi which had led to her death;' there was no premeditation and common intention on the part of the accused to cause murder ofthe victim; the conviction is liable to be set aside. To support this submission, learned counsel for the appellant has placed' reliance upon the judgments of tlie Supreme Court reported as (2011) 2see (prl.) 110 Satish Naravan Sawant i;. State of Goer. (2011) 1 SCC (Crh) 352 Dhan Sin^h v. State ofHarvana as also another judgment of the Apex Court report in (2005)'9 SCC 71 Shanker Naravan Bhadolkar Vs. State ofMaharashtra. Submission being in all these cases that even graver weapons of offence had been used and the injuries had been on vital paits ofthe body yet in all the aforenoted cases the Apex Court had thought it a fit case to reduce the offence ofmurder to an offence under •'^Section 304 Pait -II ofthe IPC. Learned counsel for the appellant thus submits that the conviction of the. appellant can at best be one under • Section 304 Part-II oftlie IPC. CRL.A. Nos.791/2010, 1014/20,10 &1239/2010 Page 11 of27 vj

18. On behalfof accused Tilisai-a arguments have been addressed b,y Advocate Mi\ Dandapani, He has adopted the stand talcen by counsel for the accused Munni Lai. It is pointed out that the role ascribed to Tilisai-a is even lesser that that ofMunni Lai as Munni Lai was.caiiying a danda whereas Tihsra was unaiined; even as per the version of the I prosecution she had hit the victnn only by fist Eind blows. Conspiracy has also not been established.

19 On behalf of the accused Kainal Kishore ai'guments have been addressed by Advocate Mi-.Tnvedi. It is pointed out that apart from the disclosuie statement ofthe co-accused no other evidence is forthcoming against him; even pursuant to the disclosure statement ofthe accused no lecovery has been effected. There is, thus, no evidence in tlie eye of • law. Attention has been drawn to the version of PW-4 and PW-8 who have been projected-as- star witnesses of tlie prosecution. Submission bemg that mthen- statements recorded under Section 161 oftlie Code no role ofbeating had been ascribed to Kamal @Baba His name has been reflected for the fu-st time only in tlieir depositions on oatli in court • which IS amatenal improvement qua theii- versions before the police, CRL.A.Nos.791/2010, 1014/2010 &1239/20]() ' V Zi No reliance can thus be placed upon such an evidence. Accused Kamal @ Baba is entitled to an acquittal.

20 Argun;ients have been rebutted by the prosecution. Learned Public i' Prosecutor points out that the testimony of PW-8'who is an eye-witness remain untarnished. Her statement was coiToborsLted by her mausi PW-4. The medical report also speaks volumes. The cause, of death was the result of injuries inflicted upon the victim by the accused person; the conviction call for no interference.

22 The information about the incident had been received by PW-15 H.C. Mahender Pal Singh who was on duty and In-charge of PGR at about 10.00 PM on the fateful day. He had on reaching the spot removed the injm-ed to the DDU Hospital. He conveyed this information to the local police stationwhich was recorded in DD No.54 B (EX.16/A) and which had noted the time as 10.12 PM. This information was to the effect that one Sanju Devi had received stab injuries and the information' had been conveyed by her daughter. CRL.A,Nos.791/2010, 1014/2010 &1239/2010 ' Page 13 of27 Ex.PW-16/A was marked to SI Jitender (PW-14) who was the mitial. investigating officer of this case. On reaching the spot he noted that injured has aheady been removed to the hospital by' PW-15; she had been admitted vide- MLC No.l8157. The time of admission was recorded as 11.25 PM by Dr.Rishi (PW-1). The MLC fhither notes a histoiy of assault on the victim. Patient, lioweA^er, appeai'ed to be conscious and well oriented at that tune. Her pulse was recorded at 78 beats per minute; her blood pressure was noted as 100/60. Three injuiies on local examination had been noted; i. Clear incised wound on left forearm 3x0.5x 0.[5] cm. ii. Clear mcised wound on left hand 2"''web space'2x0.4.>: 0.[4] cm. iii. Tenderness over left side oflower chest abrasion present. PW-1 has categorically deposed that no abnonxiality was detected clinically at that time; patient was kept under obsen/ation. It was at this point oftime that PW-14 had obtained afitness from concerned doctor vide his applioation Ex.PW-14/A; the statement of the injured Saitju Devi was recoi-ded as Ex. PW-l/Al. This statement had described the incident; victim had told the 10 that accused Tilisaia and accused Munn. Lai had entered her Jhuggi and wMe Tilisaia pinned her down on the CRL.A.Nos.791/2010, 1014/2010 & 123.9/2010 PageJ4of^7 floor by catching hold her hair and beat her with fists; Munni Lai had beaten her with a danda and had also attackedher on her foreaims ^vith a. shaip object; she started. ciying in pain. Her neighbour V]>y Laxmi (Pw-5) reached tlie spot No role had been attributed to Kamal Kishore. •It was on this statement that the FIR (Ex.PW-3/A) was registered; it was at 2.30 AM on 23.7.2006.

23 A fu'st infoimation report relates to a comnission of an offence gn^en to the police and recorded by it under Section 154 of the Code. Commenting on tlie object and value of afirst infonnation report; the Supreme Court in Sheikh Hasib Tabarak v. The State ofBihar AIR 1972 SC 283 has noted as under: The piincipaJ object ofthe first information report from the point of view-of the informant is to set the criminal law in motion and irom' the point of view of the mvestigating autliorities is to obtain information about the alleged criminal activity so as to be able to talve suitable-steps for tracing and •bringing to book®ie guilty pait^'. The first'information repoit ^^.e may point out does' not constitute substantive evidence though its importance as •conveying the eai'liest information regai'ding the occurrence cannot be ' doubted. It can, however, only be used as aprevious statement for the puipose of either corroborating its maker under Section 157 of the Indian Evidence Act or for contradicting him under Section 145 of that Act It --cUctm^otW •• 1 age.15 q[21 Vwitnesses."

24 Apart &om tlie fact that lodging of an mfonnation under Section; 154 Cr.P.C. keeps tlie District Magistrate and the Superintendent of ^Police infonned oftheoccuiTence and when recorded, it infact becomes the basis oftlie case set up by tlie iiifonnant and provides material to the police to commence mvestigation. Its fundamental'object is that it, acts as a safeguard against embellishiiient; exaggeration and'fbrgetfulness. It may not constitute a substantive piece of. evidence, but it is a conveyance of the iiiforaiation at tlie earliest and cannotbe doubted,

25 In the instant case the sequence of eAddence shows that the incident having occmxed at 9.30 PM arid the PGR having reached the spot at about 10.00 PM. Attar Singh (PW-2) owner ofthe STD booth from where the PGR call was made between 9-10 PjM- by ayoung girl aged 11-12 years is also coiToborative. DD eiitiy in the local police station having been recorded at 10.12 PM and thereafter the^ mjured having been brought fi-om her residence at Anatid Parbhat to the DDU Hospital (which itselfmight have talcen 40-45 minutes); the MLG (Ex. PW-l/A) mentions the time of anival at 11.25 PM at Avliich time the CRL.A. Nos.791/2010, 1014/2010 &1239/2010 pg„g patient also appeai'ed to be conscious and well oriented. It was in this • inteiTening period tliat PW-14 recorded tlie statement of Saiiju Devi which hadthen become the basis of the FIR. This seqaence of events as detailed in tlie oculai- testimoii)/ of the witnesses (PW-4, PW-8, PW-14 and PW-15) matched the recorded infomation, both in the DD entiy as also in the MLC. 26 PW-8 is an eye-witness. She is tlie daughter of the victim; she was aged less than 12 yeai's at tlie time ofincident aaid approximately 12 years at the time of deposition in tlie Court. Her statement recorded before the Magisfate as also on oath in Court was after apreliminaiy round of questions put to her to enable the Coiut to draw a conclusion •that she was able to intelligently and rationally understand the sai'd queries. She had matched her statement on oath witli her statement recorded before the police. She categorically stated that on 22"'' day of the month at about 9.30 PM while she was in the 'Chapper' in front of hei jhuggi (being apait ofthe jhuggi) she saw both the accused Tilisai'a and Munni Lai come inside their jhuggi; Mumii Lai was anned with a danda. Tilisara caught hold ofher mother from her hair and pinned her CRL.A. Nos.791/2010.. 1014/2010 &J239/2010 down- to the ground; Munni Lai started beating her mother with danda blows. Her mother raised alam and Baba (third accused), thereafter started beating her mother with fists and kick blows; they were all asldng her mother to vacate the jhuggi as Baba @Kamal had atent shop adjacent to theii" jhuggi. Pohce was called. Her ma,usi Manju Devi (PW-4) living closeby wasinfonned. Wien PW-8 returned back to her jhuggi along with PW-4 she saw her mother lying unconscious. Her motlier was removed to tlie hospital. In her cross-examination she has stuck to her stand. She denied the suggestion that she was not an eye witness. She admitted that in her statement under Section 161 of the. Code she had not mentioned that Baba @ Kamal had attacked her mother; she has also admitted that initially the doctor has discharged her mothei but thereafter she was re-admitted because after her discharge she had fainted; she had Ihither admitted that she had gone to hospital witli her mother and mausi. 27 PW-4, the mausi ofPW-8, has couoborated this version ofher niece. Her deposition is to the effect that at 9.30 PM her neice came to her jhuggi infonnmg her that her mother has been attacked by Munni CR1„A. Nos,791/2010, 1014/2010 &1239/2010 18 of27 Lai and Tilisara. Onher reaching thejhuggi of her sister she found her sister lying in a pitiable condition; her sister infomied her that she had been beaten by danda blows by Munni Lai and Tilisra had given her fists and kick blows; they had both entered her jhuggi asking her to vacate it. In her cross-examination she had stated that she had accompanied hersister and niece to the hospital. She admitted that after the t-eatment was given to her sister, she was discharged and when they were on the way back since her sister became unconscious she was tal^en back to the hospital re-admited; She was advised X-ray and 'ultrasound; blood was also administered to her as she had undergone a surgeiy; she died on tlie following day because ofaspleen ruptured..

28 This testhnony of PW-4 mfact discloses diat Saiiju Devi had made adying declaration to her, which statement had then become the basis of the FIR. Not only can the FIR which is arecorded document (witliin less than five houi's fi'om the time ofmcident) be disbelieved but tlie statement of PW-4 which is in coixoboration of the testimony of PW-8 also shows no reason as to why tlie aforenoted accused persons would be'implicated falsely. In fact no suggestion has also been given CRL.A.,.Nos,791/2010, 1014/20]0&1239/2010 ' p,g, jc; V 3/ to.either PW-4 or PW-8 on tliis count tliat they'were deposing' falsely and against the acpused persons for any ulterior motive. • 29 The medical record which is the MLC and the post mortem report also substantiates the A/ersion of the prosecution. The MLC (Ex. PW-l/A) shows that mitially when tlie patient had been, brought ui she appeai-ed to be conscious and well oriented; there W3§ no clinical abnoimality. Thereafter within a span ofless than a few hours she was admitted to tlie surgical unit of the hospital where she was operated upon. Dr. Sanjay Singh; Senior Resident Sui-geiy, of tlie DDU Hospital has clarified tliat the patient remained in the Hospital and vvas not re admitted after discharge. Testimony ofPW-4 and PW-8 on this count can be reconciled by the fact tliat the patient'was never foimally dischai-ged even though the doctor who had prepared'her MLC had noted that she was clinic^ly nonnal. She had in fact been kept under obsei-vation. PW-4 and PW-8 at that pomt decided to take the patient home when on the way patient had fainted and was then in an emergent, condition admitted in the surgical unit. The death summaiy report' (Ex.PW-10/A) evidences that the patient had been operated upon^on CRL.A.Nos.791/20]0, 1014/20J0 &1239/2010. • Page20or2'' V 23.7.2006 for a spleen mptnre; at 6.25 P.M. while in the post operative cai-e mfoiiiiation was receiA/ed that she needed urgent medical attention; she was shifted to the ICU but in spite of best efforts she could not be saved: She was declared dead at 7.30 P.M. on 24.7.20Q.6. Cause of ' death had been opined as abdominal trauma, with spleen rapture (post OP) and cai'diac aixest. This medical record clearly establishes that it was because of the injuries suffered by the victim at the hands of the accused persons that her death had occuiTed.

30 Reliance by the learned counsel for the appellant on medical opinion about a ruptui'ed spleen would not really assist his case because tliis was not acase ofasingle injuiy i.e. of only aspleen rupture alone; it is acase of 14 injui'ies upon the victim ofwhich the first injuiy was a deep abdominal injuiy which had led to the raptured spleen.

31 Pursuant to the' disclosure statement of accused Munni Lai, the danda was recovered (Ex.PW-14/E). The subsequent opimon' of the doctor on this weapon ofoffence.(Ex. PW-19/A and Ex. PW-18/C) also ' establishes that this weapon could have mfact caused the injuries upon the victrni and which had led to her death. CRL.A. Nos.791/2010, 1014/2010 &1239/2010 2j of27 5:^ 32 The motive of the crime has been ehcited in the version of the aforenoted two PWs i.e. PW-4 and PW-8. Both of them have deposed that accused Munni Lai and TiHsra wanted to get the victim evicted from her jhuggi at the behest of Kama! @ Baba who was running a tent house and was storing his tents in the place adjacent to the jhuggi of •SanjuDevi.

33 The sum total of the evidence thus establishes that both the accused Munni Lai and Tilisra had in unison entered thejhuggi of the victim and had given her fist and kick blow which were followed by danda blows; which in turn caused her death in the next one and half days. It was a concerted act; each one Icnew the mind of the other Avhen •they entered the jhuggi of the victim. Their conspiracy to commit- the act stands established.

34 Role of the co-accused Kamal @ Baba is,, however, not clear. Prosecution has no evidence against him. Apart from his disclosure V' • statement there is no other evidence to nail him.. No recovery has- also been effected pursuant to his disclosure statement. That apart even in the first version recorded of PW-4 (star witness of the prosecution) she CRL.A.Nos.791/2010, 1014/2010 &1239/2010 ' Page22of27 has not named Kamal @ Baba as an assailant; his role has been elicited. for the first time only in her version in Court. Even.on confrontation she had admitted this stand. Sanju Devi in her statement had also not named him. There, thus, being no evidence against accused Kamal @Baba, he; is entitled to anacquittal; he is accordingly acquitted.. 35, The last submissionmade by the learned counsel for the accused Mumii Lai and Tilisra however needs attention. Learned counsel for the appellant has argued that even presuming that death had occurred at the hands ofthe aforenoted accused persons; this was not acase of any premeditation or intent to commit murder. The weapon ofoffence was only a danda; that apart accused Tilisra was unarmed; the injuries bad.. also not been caused on any vital part of the body; apart from injury no.l which Avas in the abdominal cavity all other injuries were mere bruises; the conviction should be altered to one under Section 304 Part- II of the IPG. \J Relevant would it be to extract the provisions of Section 304 of the IPG,which read as under:.304. Punishment- for culpable homicide not amounting to murder- CRL.A.Nos.791/2010, 1014/2010 &1239/2010' Page23of27 Wlioever comiTiits culpable homicide not amounting to murder sliall be punished with imprisonment for life, or imprisonment of either "description for a term which may extend to ten years, and shall also be liable to fine, if' the act by which the death is caused is done with the intention ofcausing death, orofcausing such bodily injuiy as islikely to cause death; or with imprisonment ofeither description for a term ^vhich may eKtend to. ten years, or ^vith fine, or with both, if the act is' done with the knowledoe that it is likely to cause death, butwithout any intention to cause death, ortocausesuch bodily injury' as is likely to causedeath. 37 men a person is killed, it is not always a case of murder. The intention to commit the act is relevant to decide Under which pena] provision the case ofthe accused would fall. If the easeof the accused falls in any ofthe exceptions contained in Section 300 ofthe IPG his offence would be punishable under Section 304 IPG. The line of distmction between offences falling in Pait-I and those fallhig in part- II ofSection 304 ofthe IPG may be thin but nevertheless distinct. Th first pait connotes an mtention and second pait attributes aknowledge to the accused. e, V 38 It is on this touchstone that the act ofthe accused persons has to be analyzed. CRL.A.Nos.791/2010, 1014/2010 &1239/2010 ' Pag,..-74 of27 V- 39 Accused Munni Lai was aimed witli a danda; it- was two feet long. The accused Tilisra (wife of the accused Munni LaJ) was unamied; she had attacked the victim with her legs and fists.

40 In this background, keepmg in view the nature of the weapon of offence; the fact that the second accused was unanned; as also the fact that the injunes were not on any vital part ofthe body it cannot be said the accused persons had any pre-design to coimnit the murder ofthe victim. The degree ofseriousness ofthe injuries has also been noted. The version ofthe victim that stab injuries were also inflicted upon her IS neither bome out fi'om the medical record nor any such weapon has been recovered..

41 Accused persons caii ftus be ateibuted witli aImowldge tliat by then- act they could cause such bodily injlmes upon the victim as is likely to cause her death.

42 In asnnilai- situation in tlie case ofSalish Narrjwm (sup,a) where there was only one/injury caused by stabbing on tlie bapk of the deceased and had proved to.be fatal and hitially the accused was CRL.A. Nos.791/2010. 1014/2010 &1239/2010 unaimed and later on he had taken a kitchen Icaife the offence under Section 302 was converted to an offence under Section.304 Part-II of the IPC. In Dhan Sinsh (supra) the Apex Court had noted that no sti-aightjacket fomiula can be adopted m- such like cases; it depends upon facts and circumstances of each case. In this case also accused persons had entered.the house of the victims and opened attack upon the victim; the offence was altered from 302 to.304 Part-II of the IPC. In Shanker Narayan fsupra) a gun was used; it was fired upon the deceased pursuant to which he sustained injuries; offence under Section 302 was converted to an offence under Section 304 Part-II of the IPC.

43 Both the accused persons (Munni Lai and Tilisra) are accordingly convicted under Section 304 Part II of the IPC. Accused Munni Lai has suffered incai-ceration for about eight years. Accused Tilisra ha.d been gipted bail vide order dated 17.10.2011. At that time she had already undeigone a sentence of about more than four years and six months. She had ayoung daughter aged four at that tune; she would be less than SIX years as on date. Tlie offence has'been committed more than seven yeais ago. Tlie fact that Tihsra was unanned also cannot be lost sight of CBL.A. Nos.791/20.10, 1014/2010 &1239/2010 pag^ 26 of27 \ 3/ In this background, this Court is of the ^aew that ends of justice would be met if tlie accused persons ai'e sentenced to undergo impnsonment for tlie period aheady undergone by each ofthem.

44. The appeal is modified in the aforenoted temis and disposed of accordmgly. Accused Munni Lai be released forthwith if not required in any other case. Bail bond and surety bond of accused Tilisra be cancelled.

45 A copy of this order be sent to the Jail Superintendent for intumation and compliance. JULY 29, 2013 nandan INDERMEET KAIJJR, J / CRL.A.Nos.791/2010, 1014/2010 & 1239/2010 Page27or27