Munni Lal v. The State (Govt. of NCT) Delhi

11 The accused persons were arrested. Accused Telisra was aiTested \} vide memo Ex. PW-16/A at the pointing out of PW-5; her disclosure statement Ex.PW-14/D was recorded. Accused Kamal Kishore was aiTested vide memo Ex. PW-14/F and his disclosure statement Ex. PW-:14/H was recorded. Subsequently accused Murmi Lai was apprehended and aiTested vide memo Ex. PW-14/I, his disclosure statement Ex. PW- 14/K was recorded. Pursuant to this disclosure statement he had got recovered the weapon-of offence i.e. adanda measuring two feet which was seized and talcen into possession vide memo Ex. PW-14/2; it was I sealed with the seal of MKS; the place of incident was also pointed out by him vide memo Ex. PW-14/N. CRL.A. Nos.791/2010, 1014/2010 & 1239/2010 Pagc8or27 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 IPC were framed against all tluee of them. A sepai-ate charge under Section 452 IPG read witli Section 34 IPC 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 of the Code who pleaded innocence and stated that they have been falsely unplicated in the present case.

15. No evidence was led in defence.

16. The accused persons were convicted and sentenced vide the ^ impugned judgment. This'judgment isthe subject matter ofappeal.

17 On behalf of the appellant Munni Lai arguments have been CRL.A, Nos.791/2010, 1014/2010 & 1239/2010 Page 9 of27 p addressed by Mi'.R.K.Anaiid, Advocate. Attention has been drawn to the testimony of PW-4, the daughter of the victim, who has been projected as an eye-witness as also PW-8, the sister of the victim. Leaimed counsel for the appellant points out that there are discrepancies in the aforenoted two versions and the prosecution has failed to establish tliat PW-4 was in living with her mother at the relevant time; it has been ai-gued that the victim and her husband did not share cordial relations and their daughter PW-4 was in fact living with her father in U.P.; she was not an eye-witness. Even otherwise PW-4 and PW-8 both have \J stated that they had accompanied the victim to the hospital but this stand stood controverted 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 tlie 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 dischai'ged after a prima facie check-up and appeared to be noraial 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 neither CRL.A. Nos.791/2010, 1014/2010 & 1239/20] 0 Paeel0of27 F noted any discharge nor has any re-adinission been noted in the said MLC. The two versions cannot be reconciled. Learned counsel for the appellant submits that at best this could be a case of laiowledge on the part of the accused persons that by then- act they could have caused such injuries upon the person of the victim which had led to her death; there was no premeditation and common intention on the part of the accused to cause murder of the victim; the conviction is liable to be set aside. To support this submission, learned counsel for the appellant has placed rehance upon the judgments of the Supreme Court reported as (2011) 2see (.Crl.) 110 Satish.Naravan Sawcmt v. State ofGoci: (2011) 1 SCO (Crl.) 352 Dhan Singh v. State ofHaryana as also another judgment of the Apex Court report in (2005) 9 SCC 71 Shanker Naravan Bhadolkar Kv. Stale ofMaharashtra. Submission being m all these cases that even graver weapons of offence had been used and the injuries had been on vital paits of tlie bodyyet in allthe aforenoted cases the Apex Court had thought it a fit case to reduce the offence of mui'der to an offence under • Section 304 Pait-II of the IPC. Learned counsel for the appellant thus submits that tlie conviction of the appellant can at best be one under Section 304 Part-II of the IPC. CRL.A. Nos.791/2010, 1014/20.10 &1239/2010 Page 11 of27 18 On behalf of accused Tilisai-a arguments have been addressed b,y Advocate Mr. 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 of Munni Lai as Mmmi Lai was.cariying a danda whereas Tilisra was unaiined; even as per the version of the ( • prosecution she had hit the victim only by fist and blows. Consphacy has also not been established.

19 On behalf of the accused Kamal Kishore arguments have been addressed by Advocate Mi-.Trivedi. It is pointed outthat apart from the disclosure statement ofthe co-accused no other evidence is forthcoming against him; even pursuant to the disclosure statement of the accused no recoveiy has been effected. There is, thus, no evidence in the 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 benig thatin their statements recorded under Section 161 of the Code no role ofbeating had been ascribed to Kamal @Baba. His name has been reflected for the fu'st time only in then depositions on oath m court which is a material improvement qua their versions before the police. CRL.A. Nos.791/2010, 1014/2010 &1239/2010 Page 12 of27 3^ No reliance can thus be placed upon such an evidence. Accused Kamal @ Baba is entitled to an acquittal.

20 Arguments have been rebutted by the prosecution. Learned Public ( Prosecutor points out that the testimony of PW-8 who is an eye-witness remain untarnished. Her statement was coiToborated 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 infoniiation 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 injured to the DDU Hospital. He conveyed this information to the local police station which 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 initial investigating officer of this case. On reaching the spot he noted that injured has already been removed to the hospital by PW-I[5]; she had been admitted vide MLC No. 18157. The time of admission was recorded as 11.25 PM by Dr.Rishi (PW-1). The MLC further notes a histoiy of assault on the victim. Patient, however, appeared to be conscious and well, oriented at that time. Her pulse was recorded at 78 beats per minute; her blood pressure was noted as 100/60. Three injuries on local examination had been noted; i. Clear incised woimcl onleft forearm 3 x 0.5x 0.[5] cm, li. Clear incised wound on left hand 2"'' web space 2x0.4x 0.[4] cm. iii. Tenderness over left side oflower chest abrasion present. PW-1 has categorically deposed that no abnonnality was detected climcally 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 application Ex.PW-14/A; the statement of the injured Sanju Devi was recorded as Ex. PW-l/Al. This statement had described the incident; victim had told the 10 that accused Tilisara and accused Munni Lai had entered her Jhuggi and while Tilisai-a pinned her down on the CRL..A. Nos.791/2010, 1014/2010 &1239./2010 j[4],,^37 floor by catching hold her hair and beat her with fists; Munni Lai had beaten her with a danda and had also attacked her on her foreanns with a sharp object; she started. ciying in pain. Her neighbour Vijay Laxmi (Pw-5) reached the spot. No role had been attiibuted 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 inforaiation report relates to a coimnission of an offence given to the pohce and recorded by it under Section 154 of the Code. Conmienting on the object and value of a first infomiation report; the Supreme Court in Sheikh Hasib @ rabarak v. The State of Bihar AIR 1972 SC 283 has noted as under: "The principal object ofthe first information report from the point of viev\ofthe informant is to set the criminal law in motion and from the point of view of the im-estigating autliorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to bookihe guilty part}'. The first information report, we may point out, does not constitute substantive evidence though its importance as conve3ang the earliest information regarding the occurrence cannot be doubted. It can, however, only be used as a previous statement for the purpose of either corroborating its maker under Section 157 of the Indian Evidence Act or for contradicting him under Section 145 of that Act, It cannot be used for the purpose of corroborating or contradicting other CRL,A, Nos.791/2010, 1014/2010 &1239/2010 Page 15 or27 \ \J 3^ witnesses.'

24 Apart ft'om the fact that lodging of an infonnation under Section 154 Cr.P.C. keeps the District Magistrate and the Superintendent of Police infonned ofthe occuirence and when recorded, it in fact becomes the basis of the case set up by the infonnant andprovides material to the police to commence investigation. Its fundamental object is that it acts as a safeguard against embellishment, exaggeration and forgetfulness. It may not constitute a substantive piece of, evidence, but it is a conveyance of the infonnation at the earliest and cannot be doubted.

25 In the instant case the sequence of evidence shows that the incident having occmxed at 9.30 PM and the PGR having reached the spot at about 10.00 PM. Attai" Singh (PW-2) ownerof the STD booth fiom wheie the PGR call was made between 9-10 PM by ayoung girl aged 11-12 yeai's is also con'oborative. DD entiy m the local police, station having been recorded at 10.12 PM and thereafter the-injured havmg been brought from her residence at Anand Paithat 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 which time the CRL.A. Nos.791/2010, 1014/2010 &1239/2010 PaoelO of27 3^ patient also appealed to be conscious and well oriented. It was in this inteiTening period that PW-14 recorded the statement of Sanju Devi whichhad then become the basis of the FIR. This sequence of events as detailed in the oculai" testimony of the witnesses (PW-4, PW-8, PW-14 and PW-15) matched the recorded inforaiation, both in the DD entiy as also in the MLC. 26 PW-8 is an eye-witness. She is the daughter of the victim; she was aged lesstlian 12 yeai's at thetimeof incident and approximately 12 yeai's at the time of deposition in the Court. Her statement recorded before the Magisti'ate as also on oath in Court was after a prelinunaiy round of questions put to her to enable the Court to draw a conclusion that she was able to intelligently and rationally understand the said queries. She had matched her statement on oath with 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 herjhuggi (being a part of thejhuggi) she saw both the accused Tilisara and Munni Lai come inside their jhuggi; Munni Lai was arnied with a danda. Tilisara caught hold ofher mother fi'om her hair and pinned lier CR[1]..A. Nos.791/2010, 1014/2010 &1239/2010 Page 17 of27 3^ down to tlie ground; Munni Lai'started beating her mother with danda blows. Her mother raised alann and Baba (third accused) thereafter started beating her mother witli fists and kick blows; they were all asking her mother to vacate the jhuggi as Baba @ Kamal had a tent shop adjacent to theii- jhuggi. Police was called. Her mausi Manju Devi (PW-4) living close by was infonned. Vy^ien PW-8 retiuiied back to her jhuggi along with PW-4 she saw her mother lying unconscious. Her mother was removed to the liospital. In her cross-examination she has stuck to her stand. She denied the suggestion that she was not an eye- \j 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 mother but thereafter she was re-admitted because after her discharge she had fainted; she had flirther admitted that she had gone to hospital with her mother and mausi. 27 PW-4, the mausi of PW-8, has coiToborated this version of her niece. Her deposition is to the effect that at 9.30 PM her neice came to her jhuggi infonning her that her mother has been attacked by Munni CR[1],.A. Nos,791/2010, 1014/2010 & 1239/2010 Page 18 of27 Lai and Tilisai-a. On her reaching the jhuggi of her sister she found her sister lying in a pitiable condition; her sister informed 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 her sister and niece to the hospital. She admitted that after the ti-eatment was given to her sister, she was discharged and when they were on the way back since her sister became unconscious she was talcen back to the hospital re-admited; She was advised X-ray and \J ultrasound; blood was also administered to her as she had undergone a surgeiy; she died onthefollowing day because of a spleen ruptured.

28 This testimony of PW-4 in fact discloses that Saiiju Devi had made a dying declai-ation to her, which statement had then become the basis of the FIR. Not only can the FIR which is a recorded document (within less than five hours fi'om the time ofincident) be disbelieved but the statement of PW-4 which is in coiToboration ofthe testimony of PW-8 also shows no reason as to why the aforenoted accused persons would be implicated falsely. In fact no suggestion has also been given CRL.A.-.N0S.79I/2OIO, 1014/20] 0&1239/2010 PageJ9of27 \J to either PW-4 or PW-8 on this count tliat they were deposing falsely and against the acpused persons for any ulterior motive.

29 The medical record whichis the MLC and the post mortem report also substantiates the version of the prosecution. The MLC (Ex. PW-l/A) shows that initially when the patient had been brought in she appeai-ed to be conscious and well oriented; there was no clinical abnonnality. Thereafter within a span of less than a few hours she was admitted to the surgical unit of the hospital where she was operated upon. Dr. Sanjay Singh; Senior Resident Surgeiy, of the DDU Hospital has clarified that the patient remained in the hospital and was not re admitted after discharge. Testimony of PW-4 and PW-8 on this count can be reconciled by the fact that the patient was never fomially dischar-ged even though the doctor who had prepared-her MLC had noted that she was clinically noiinal. She had in fact been kept under obsei-vation. PW-4 and PW-8 at that point 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-lO/A) evidences that the patient had been operated upon on CRL.A. Nos.791/2010, 1014/2010 &1239/2010 ' Pgoe 20 of27 f 23.7.2006 for a spleen rupture; at 6.25 P.M. while in the post operative care infonnation was received 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 24.7.2006. Cause of death had been opined as abdominal trauma with spleen nipture (post OP) and car-diac aiTest. 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 occuued.

30 Reliance by the learned counsel for the appellant on medical opinion about a rupmred spleen would not really assist his case because this was not a case of a single injmy i.e. of only a spleen rupture alone; it is a case of 14 injuries upon the victnn 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 opniion of the doctor on this weapon ofoffence (Ex. PW-19/A and Ex. PW-18/C) also establishes that tliis weapon could have in fact caused the injuries upon the victim and which had led to her death. CRL.A. Nos.791/2010, 1014/2010 &1239/2010 Page 21 of27 32 The motive of the crime has been elicited in the version of the aforenoted two PWs i.e. PW-4 and PW-8. Both of them have deposed that accused Mumii 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 •Sanju Devi.

33 The sum total of the evidence thus establishes that both the accused Mumii Lai and Tilisra had in unison entered the jhuggi 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 loiew the mind of the other when 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 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 ofthe prosecution) she CRL.A.Nos.791/2010, ]014/2010 &1239/2010 Page 22 of27 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 an acquittal; he is accordingly acquitted.

35 The last submission made by the learned counsel for the accused Munni Lai and Tilisra however needs attention. Learned counsel for the appellanthas argued that even presuming that death had occurred at the hands of the aforenoted accused persons; this was not a case of any premeditation or intent to commit murder. The weapon of offence was only a danda; that apart accused Tilisra was unarmed; the injuries had also not been caused on any vital part of the body; apart from injury no.l which was 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.

36 Relevant would it be to extract the provisions of Section 304 of the IPC which read as under: "304. Punishment for culpable homicide not amounting to murder.- CRL.A.Nos.791/2010, 1014/2010 &1239/2010 Paae23of27 Whoever commits culpable homicide not amounting to murder shall 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 lo fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injur}' as is likely to cause death; or with imprisonment of either description for a term which may eKtend to. ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injur}' as is likely to cause death.

37 When a person is killed, it is not always a case of murder. The intention to commit the act is relevant to decide under which petial provision the case of the accused would fall. If the case'of the accused falls in any of the exceptions contained m Section 300 of the IPG his offence would be punishable under Section 304 IPG. The line of distinction between offences falling inPait-I and those falling in part - II of Section 304 of the IPG may be thin but nevertheless distinct. The first partconnotes anintention and second partattributes a knowledge to the accused.

38 It is on this touchstone that the act of the accused persons has to be analyzed. CRL.A. Nos.791/2010, 1014/2010 &1239/2010 Page 24 oF27 c 39 Accused Munni Lai was aimed with a danda; it was two feet long. The accused Tilisra (wife of the accused Muimi Lai) was unanned; she had attacked the victimwithher legs and fists.

40 In tliis background, keeping in view the nature of the weapon of offence; the fact that the second accused was unaimed; as also the fact that tlie injuries were not on any vital part of the body it cannot be said the accused persons had any pre-design to commit the murder of the victim. The degree of seriousness of the injuries has also been noted. The version ofthe victim that stab injuries were also inflicted upon her is neither borne out fi-om the medical record nor any such weapon has been recovered.

41 Accused persons can thus be attiibuted with aIcnowldge that by their act they could cause such bodily injuries upon the victim as is likely to cause her death.

42 In asmiilar situation in the case ofSatish Naravcm (supra) where there was only one. injury caused by stabbing on the back of the deceased and had proved to. be fatal and initially the accused was CRL.A. Nos':791/2010, 1014/2010 &1239/2010 - Pa„e 25 of27 r ^5 unamied and later on he had talcen a kitchen Imife the. offence under Section 302 was converted to an offence under Section-304 Pait-11 of the IPG. In Dhcm Sinsh (supra) the Apex Court had noted that no st'aightjacket foraiula can be adopted in- such like cases; it depends upon facts and circumstances of each case. In this case also accused persons had entered the house of the victnns and opened attack upon the victim; the offence was altered from 302 to. 304 Pait-II of the IPG. In Shanker Narayan ("supra) a gun was used; it was fired upon the deceased pursuant to which he sustained injuiies; offence under Section 302 was converted to an offence under Section 304 Part-II of the IPG.

43 Both the accused persons (Munni Lai and Tilisra) are accordinglyconvicted under Section 304 Pait II of the IPG. Accused Munni Lai has suffered incai'ceration for about eight years. Accused Tilisra had been grpited bail vide order dated 17.10.2011. At that time she had already undergone a sentence of about more than four years and six months. She had a young daughter aged four at that time; she would be less than six years as on date. The offence has been committed more than seven years ago. The fact that Tilisra was unaniied also cannot be lost sight of CRL.A. Nos.791/20,10, 1014/2010 & 1239/2010 f In this background, this Court is of the view that ends ofjustice would be met if the accused persons ai'e sentenced to undergo impiisoninent for theperiod akeady undergone by each ofthem.

44 The appeal is modified in the aforenoted tenns and disposed of accordingly. Accused Munni Lai bereleased forthwith if not required in t 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 intimation and compliance. JULY 29, 2013 nandan /V INDERMEET KAIIR, J CRL.A. Nos.791/2010, lOJ4/2010 & 1239/2010 Page 27 0127