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RANJEET RAUT ..... Appellant Represented by: Mr. Abhinav Bajaj, Adv.
(DHCLSC) and Mr. Saksham Ojha, Adv.
SI Yogesh Dahiya, PS KNK Marg
HON'BLE MS. JUSTICE POONAM A. BAMBA POONAM A. BAMBA, J :-
1.0 Vide this appeal under Section 374 (2) Cr.P.C, the appellant is assailing the
JUDGMENT
Penal Code, 1860 („IPC‟ in short), in new Sessions Case No. 57390/2016, in
FIR no. 236/2014, Police Station K.N.Katju Marg ; and order on sentence dated 09.10.2019, whereby the appellant was sentenced to undergo rigorous imprisonment for life under Section 302 IPC with fine of Rs.25,000/-, in default to undergo simple imprisonment for three months.
2.0 Briefly stating, the case of the prosecution is that on 17.03.2014 information through Constable Pawan Dagar/PW-10 at PS K.N Katju Marg was received from BSA hospital regarding admission of one Vimal son of
Ram Bilas, R/o A-62, Shahbad Daulatpur, Delhi in injured condition by his friend Rajesh/PW-2, which was recorded vide DD no. 6A/Ex PW 21/A. On receipt of the same, ASI Sanjay Kumar/PW-28 was deputed and reached
BSA Hospital and found admitted, injured Vimal Paswan vide MLC No.
3530/14 Ex. PW-8/A. The injured was declared as unfit for statement. The eye witness Gunnu Kumar/PW-1 was found present at the hospital and got recorded his statement to the effect that he is working as JCB machine helper and is living on rent at House No. 62 Shahbad Daulatpur village. On
16.03.2014, injured Vimal Paswan from Azadpur and the appellant/accused
Ranjit Raut from Nathupura visited his place to celebrate Holi. When all three of them were consuming liquor, suddenly the appellant/accused told the injured ‘मैंने तुझे गाडी चलाना सिखाया था और अब तू मुझिे बड़ा उस्ताद बन
गया है। और अब तूने मेरे िे बातचीत करना ही बंद कर सदया है ; and on this account they got into scuffle with each other; he/PW-1 separated them and thereafter, came out of the room near the tap to clean utensils. Thereafter, the injured also came out and sat near him. At about 7:30 pm, the appellant/accused also came out holding a danda in his hand and hit the injured from behind two to four times and threatened to kill him as the injured did not listen to him though he had taught him driving. As a result, the injured Vimal Paswan fell unconscious and the appellant/accused ran away. He along with Rajesh/PW-2 took the injured Vimal to BSA hospital in an auto-rickshaw.
2.1. On the basis of PW-1‟s statement Ex. PW-1/A and MLC Ex. PW-8/A, ASI Sanjay Kumar/PW-28 prepared rukka and handed over the same to constable Pawan Dagar/PW-10 and got the FIR registered at PS K.N Katju
Marg. Thereafter, PW-28 proceeded to the spot along with the complainant
Gunnu Kumar/PW-1 and prepared rough site plan Ex. PW1/B at his instance. At the spot, he met Rajesh PW-2 who also informed himself to be the witness and his statement was recorded. The accused was searched.
Meanwhile, ASI Sanjay Kumar/PW-28 received information of the demise of the injured vide DD No. 25B/Ex. 11/A dated 17.03.2014 PS K.N Katju
Marg, which was assigned to Investigation Officer Inspector Mohar
Singh/PW-32.
2.2. During investigation, the IO recorded statement of the witnesses, arrested the appellant/accused vide arrest memo Ex. PW1/C, recorded his disclosure statement Ex. PW29/A whereby, he admitted his involvement in the incident. Pursuant to his disclosure, the appellant/accused got recovered the weapon of offence i.e., danda Ex. P-1 from A-62, Factory Main Gate, Shahbad Daulatpur, which was seized vide memo Ex.29/D. Clothes of the appellant/accused, which he was wearing at the time of incident were also taken into possession vide memo Ex. 29/B. IO Inspector Mohar Singh/PW-
32 got conducted the postmortem of the deceased vide postmortem report no.
194/2014/Ex.PW9/A and received the Exhibits/viscera of the deceased.
Clothes of the deceased, blood sample of the deceased in gauze piece and one sample seal were also handed over to the IO, which were taken into possession vide memo Ex.PW5/B. Dead body of the deceased was handed over to its claimants vide receipt/Ex.PW4/A.
2.3 During further investigation, statement of complainant/eye-witness
Gunnu Kumar was got recorded u/s 164 Cr.P.C/Ex.PW1/E by the concerned
Ld. MM. Subsequent opinion/Ex.PW9/B on the weapon of offence was obtained. Scaled site plan/Ex.PW17/A of the place of occurrence was got prepared. Exhibits were sent to FSL Rohini. Call detail records of mobile phone no. 8373944156 of complainant Gunnu Kumar and of mobile phone numbers 9718384169 & 9250828284 allegedly used by the appellant/ accused and of mobile no. 9891716066 of the deceased were obtained, as per which, the location of all these phones was found to be of Shahbad
Daulatpur. On completion of investigation, charge-sheet u/s 302 IPC was filed against appellant/accused Ranjeet Raut.
2.4. After receipt of FSL result (Ex.PW22/A, Ex.PW23/A & Ex.PW24/A) on 03/09/2014, same were filed in the Court on 11/11/2014 & 28/01/2015 vide supplementary charge-sheets.
3.0 In order to prove its case, the prosecution examined 32 witnesses.
4.0 On incriminating evidence being put to the appellant/accused, he vide his statement under Section 313 Cr.P.C, denied the allegations and stated that he has been falsely implicated in this case. Appellant chose not to lead any evidence in his defence.
5.0 Learned counsel for the appellant/accused argued that the learned ASJ failed to properly appreciate the evidence and has convicted the appellant/accused on the basis of testimony of unreliable witnesses, which suffer from glaring discrepancies. It is submitted that as per PW-1‟s statement/complaint Ex. PW1/A and his statement under Section 164 Cr.P.C
Ex. PW1/E, there were three persons i.e., PW-1 Gunnu Kumar, the deceased and the appellant/accused present in his room consuming alcohol on the day of Holi ; and that he had seen the appellant/accused hit the deceased on the head. Whereas, in his deposition on 11.11.2014 before the court PW-1
Gunnu Kumar stated that there were four persons at the time of the alleged incident including PW-2 Rajesh. It clearly shows an attempt to introduce another eye witness PW-2 whose presence is highly doubtful. Further, PW-1 in his statement under Section 164 Cr.P.C recorded on 20.03.2014 stated that the appellant/accused had left the weapon of offence at the spot and ran away. Whereas before the court, PW-1 deposed that the appellant/accused had kept the danda in bundle of pipes. The weapon of offence/danda was recovered from the spot, i.e., the house of PW-1 and PW-2. Omission to mention about the location of the alleged danda in his statement under
Section 164 Cr.P.C and complaint renders PW-1‟s testimony unreliable.
5.1 Learned counsel for the appellant/accused also contented that PW-2 in his examination-in-chief did not mention that he had witnessed the alleged incident. Whereas during cross-examination, he stated that he was in his room when he heard the noise and saw the deceased in the injured condition.
Learned counsel for the appellant also argued that the appellant could not have been convicted merely on the basis of evidence of a solitary eye witness/PW-1 and in support placed reliance on the judgment of Hon‟ble
Supreme Court in Joseph vs. State of Kerala 2002 (9) Scale 9.
5.2 Learned counsel for the appellant/accused also argued that as per PW-
30 Inspector Mohar Singh blood stained clothes of the appellant/accused were seized vide Seizure Memo Ex. 29/B and were sent to FSL. As per FSL report Ex. 22/A, blood could not be detected on the clothes of the appellant. Same further substantiates the appellant‟s plea that he has been falsely implicated. 5.[3] Learned counsel for the appellant/accused further contended that finger prints were not lifted from the weapon of offence, danda Ex. P-1 and sent for analysis to demonstrate that the same was used by the appellant/accused. Nor were blood samples lifted from the danda for comparison with the blood of the deceased. 5.[4] Learned counsel for the appellant/accused also argued that the danda was recovered from an open space which was also known to PW-1 Gunnu Kumar as per his own statement. Therefore, it cannot be said to have been recovered at the instance of the appellant/accused pursuant to his disclosure.
5.5. Learned counsel further argued that even delay in taking the deceased to the hospital raises suspicion. It was submitted that as per prosecution case, the alleged incident took place at 7:30 pm on 16.03.2014 and PW-1 Gunnu Kumar and PW-2 Rajesh Khairar immediately took the deceased to the hospital where he was declared unfit for statement and later died at about 9:30 am on 17.03.2014. Whereas, the MLC Ex. PW8/A shows that the injured was brought by his friend Rajesh to the BSA Hospital at about 10:41 pm despite the fact that the said hospital is only about five kms from the place of occurrence. The prosecution has failed to explain the said delay. Further, as per DD entry no. 73/B Ex. 16/A, the same was recorded at 11:20 pm on 16.03.2014 on receipt of information regarding admission of the deceased injured which was shared with PW-27 SI Sukh Pal Singh. Further, the DD mentions about the deceased having been brought by PW-2 Rajesh and there is no mention of presence of complainant/eye witness PW-1. Another DD entry 6A Ex. PW21/A recorded at 2:50 am on 17.03.2014 also does not mention about the presence of the alleged eye witness/PW-1 Gunnu Kumar. Further, the statement of the complainant/PW-1 Gunnu Kumar was recorded at BSA Hospital at about 4:20 am on the next day i.e., 17.03.2014 whereas as per the prosecution case, the complainant/PW-1 Gunnu Kumar was in the hospital since deceased‟s admission in the hospital. Ld. Counsel pleaded that in view of these contradictions and discrepancies in the prosecution‟s main witnesses, the appellant/accused deserves acquittal. 5.[6] Learned counsel made an alternate prayer submitting that the appellant at best could be convicted under Section 304 as the act of the appellant is squarely covered under fourth exception to Section 300 IPC. It was submitted that even as per prosecution case, there was a sudden fight after verbal altercation between the appellant/accused and the deceased and there were no premeditation or preparation on the part of the appellant. Same is also evident from the weapon of offence used. There was complete absence of any motive or rivalry to kill the deceased. Further there is nothing on record to show that the appellant/accused took undue advantage or acted in a cruel manner. Thus, the conviction of the appellant/accused be altered from Section 302 IPC to part one of Section 304 IPC. It was argued that the appellant/accused has already undergone approximately ten years of imprisonment. Therefore, his sentence be modified to the period of incarceration already undergone by the appellant/accused. In support, learned counsel placed reliance upon the judgment of the Hon‟ble Supreme Court in Ravi Kumar vs. State of Punjab (2005) 9 SCC 315.
6.0 On the other hand, learned Prosecutor argued that it is a fit case for conviction under Section 302 IPC. She submitted that the appellant‟s/accused‟s presence at the spot on 16.03.2014 with PW-1 and PW-2 is admitted by the appellant/accused vide his response to Question NO. 1 in his statement under Section 313 Cr.P.C. Further, analysis of call details record of mobile phones of the appellant/accused and that of the deceased, shows the presence of the appellant with the deceased on 16.03.2014 around 6 to 7 pm at village Shahbad Daulatpur. Both PW-1 Gunnu Kumar and PW-
2 Rajesh are consistent in their testimonies. The quarrel between the appellant/accused took place as the appellant/accused thought that the deceased was not giving him importance though it was he who had taught him driving; and thereafter, the deceased came out where PW-1 was washing utensils and the appellant/accused followed him and hit him with danda on the head for about four times. Similar was the version of PW-1 in his statement under Section 164 Cr.P.C/PW1/E before the learned Magistrate. Both PW-1 and PW-2 have categorically stated that the appellant/accused assaulted the deceased and categorically denied in their cross examination that they did not see the appellant/accused causing any injury. She also submitted that vide testimony of PW-6, it has come on record that the deceased was a driver.
6.1. Learned Prosecutor also submitted that it has come in the testimony of PW-7 that mobile number 9718384169 was being used by the appellant/accused. CDR details of the said mobile number produced by PW- 12 along with location chart, show the location of said mobile number at Shahbad Extension on 16.03.2014 at 19:32:20 which further go to corroborate the testimonies of PW-1 and PW-2. 6.[2] Learned Prosecutor further argued that motive is also clearly made out from the testimonies of PW-1 and PW-2 that is, the appellant was jealous of the deceased.
6.3. Learned Prosecutor also argued that the appellant/accused‟s conduct of running away after hitting the deceased clearly shows his guilt. The appellant/accused could only be traced with the help of PW-1 Gunnu Kumar, who provided his address, as has come in the testimonies of PW-29, PW-31 and PW-32. Further, the appellant/accused pursuant to his disclosure even got recovered the weapon of offence i.e., danda from inside the pipe after leading them to the place of occurrence i.e., factory at Shahbad Daulatpur. 6.[4] Learned Prosecutor further argued that as per the post mortem report Ex. 9/A, the deceased died due to cranio cerebral damage consequent to injury to the head and that all injuries were ante mortem caused by blunt force and could be caused by multiple blows by a hard linear object like lathi/danda/rod etc. The injuries to the head are sufficient to cause death in the ordinary course of nature. Learned Prosecutor also submitted that vide subsequent opinion PW 9/B given by the doctor on recovered danda mentions that the injuries on the body of the deceased could be caused by the said danda.
6.5. Lastly, the learned Prosecutor submitted that the appellant has failed to place on record any defence in his statement under Section 313 Cr.P.C. He simply stated that he has been falsely implicated.
7.0 We have duly considered the submissions made by both the sides and have perused the record.
8.0 It is a case based on ocular evidence of PW-1 and PW-2. PW-1 Gunnu Kumar has testified that he is a helper by profession working on JCB vehicle. On 16.03.2014, deceased Vimal Paswan and the appellant/accused Ranjit Raut who are from his village came to his house at Shahbad, Daulatpur to celebrate Holi. At about 6 pm, he along with the deceased, PW-
2 Rajesh and the appellant/accused Ranjit Raut were consuming liquor in the room when the appellant/accused started quarreling with the deceased stating that he had learnt driving from him. He (PW-1) separated both of them and came out of the room and started cleaning the utensils. The deceased also followed him and sat there. Meanwhile, the appellant/accused also came out and was having danda in his hand and he hit on the head of the deceased with the same, four times; the appellant/accused then kept the danda in the bundle of pipes and ran away. He also testified that the deceased was bleeding from his head and had become unconscious. He called PW-2 Rajesh from his room and they took the deceased to BSA Hospital by TSR. Police also reached the hospital and recorded his statement Ex. PW1/A. He along with police officials reached the spot and the IO prepared site plan Ex. PW1/B at his instance. In the morning at about 9:30 am (on 17.3.2014), the doctor declared deceased Vimal Paswan as dead. 8.[1] PW-1 has also deposed that in the evening, he along with Inspector Mohar Singh PW-32 reached Nathupura where the appellant/accused used to drive the vehicle and at his pointing, the appellant/accused was arrested vide arrest memo Ex. PW1/C. He also stated that he had made a statement under Section 164 Cr.P.c, Ex. PW1/E. PW-1 also identified the weapon of offence/danda Ex. P[1] and the clothes of the deceased.
8.2. It is noteworthy that the appellant/accused himself suggested about his presence at the spot at the time of the incident to PW-1 and PW-2 in their cross examinations, to which PW-1 responded - “It is correct that we only on the occasion of Holi Festival, met four of us and consumed liquor…When the commotion started between us, there were no other person except us (four persons)….…It is correct that except us nobody had listen or seen the incident and nobody except Rajesh came there to help us.” PW-2 in his cross-examination stated that „…..at the time of incident, we were four persons present there….‟, which was not contested. Whereas in his statement under Section 313 Cr.P.C, the appellant/accused denied his presence at the spot and in response to Question no. 3 stated that „I was not present when the alleged incident had occurred‟. Same exposes the falsehood of the appellant/accused. 8.2.[1] Presence of the appellant/accused at the spot at the relevant time, is also established from call details record of the appellant/accused‟s mobile number 9718384169. PW-12 Pawan Singh, Nodal Officer, Idea Cellular Limited, testified that mobile number 9718384169 was allotted to Mohan Lal Jain S/o Sh. Jai Narain Jain, R/o 1193, Street No 10, New Sunday Market, Nathupura, Burari, Delhi, as per Customer Application Form PW12/A along with which was filed his Aadhar Card Ex PW12/B, which fact was not disputed by the appellant in view of his own suggestion to PW-
12. PW-12 also placed on record CDR of the said mobile number for the relevant period along with cell ID chart Ex. PW12/C and Ex. PW-12/H, respectively. PW-7‟s testimony and the documents placed on record by him remained uncontroverted as he was not cross-examined by the appellant/accused. PW-7 Mohan Lal Jain, in whose name the mobile number 9718384169 was issued, testified that the appellant/accused worked with him as a driver on his vehicle Mahendra Maxi bearing registration no, DL-1LM-3181 and was having two mobile phones bearing no. 9718384169 and 9250828284. As per CDR Ex. PW12/C of the said mobile number and cell ID chart Ex. PW-12/H, which have not been disputed, the location of said mobile number, which was in use by the appellant/accused, was at Shahbad Extension on 16.03.2014 at about 19:32:20.
8.3. Further during cross-examination of PW-1, the appellant/accused also suggested to him (PW-1) that taking advantage of the situation, he (PW-1) murdered the deceased Vimal by hitting him on head with danda as they had a common girlfriend over whom they had fight on several occasions, which was categorically denied by PW-1. PW-1 however admitted that he and the deceased were friendly with one girl namely „N‟ who was residing at their native village. He also admitted that he and the deceased used to exchange the phone numbers of „N‟ but he denied having ever had a fight with the deceased on this account. The admission of the PW-1 about having a common girlfriend shows his truthfulness. Further falsity of the appellant/accused is exposed as on one hand he suggested to PW-1 Gunnu Kumar that he had killed the deceased taking advantage of the situation and on the other hand he suggested to PW-2 in cross examination that a fight had actually taken place between PW-2 and the deceased. By virtue of said suggestion, presence of PW-2 Rajesh at the place of incident is not disputed by the appellant/accused. Same takes the wind out of the argument of the Ld. Counsel for the appellant/accused that the presence of PW-2 Rajesh at the place of incident was highly doubtful as PW-1/Gunnu Kumar did not mention about the same in his first statement/complaint Ex. PW-1/A, but introduced him (PW-2) as an eye witness later. 8.3.1. Even otherwise, it is the appellant/accused’s own case as put to PW-1 in cross examination, whereby the presence of PW-2 Rajesh at the spot at the time of incident was suggested. In response PW-1 stated „it is correct that we only on the occasion of Holi festival, met four of us and consumed liquor…the liquor…was purchased by Vimal (deceased). I and Rajesh used to reside there‟…… „on the day of incident, at first Ranjit came there and thereafter Vimal came there. I had invited Vimal come there to celebrate Holi festival by making a phone call.‟ 8.3.2. Further, the appellant/accused in his statement (in response to Q[1]) under Section 313 has not disputed the presence of PW-2 Rajesh at the time of incident. The relevant question and the appellant‟s/accused response reads as under: “Q[1]. It is in evidence against you that, on 16.03.2014, you alongwith deceased Vimal Paswan visited the house of PW[1] Gunnu Kumar situated at H. No. A-62, Village Shahbad Daulatpur to celebrate the function of Holi. PW[2] Rajesh Khairar was also present there. At about 5-6 pm you accused alongwith deceased Vimal Paswan, PW[1] Gunnu Kumar and PW[2] Rajesh Khairar were consuming the liquor in the room and you accused asked the deceased that he had learnt driving from you accused and both of you started quarreling with each other. What have you to say?- Ans. It is correct that I had visited the house of Gunnu Kumar but no quarrel had taken place between me and deceased Vimal Paswan.”
8.4. Further, the appellant/accused himself suggested to PW-1 Gunnu Kumar in cross examination that he (appellant/accused) had taught driving to the deceased Vimal and that a scuffle had taken place; and in that scuffle, the deceased had received injury on his head. PW-1 in response to the said suggestion stated that „…It is correct that Ranjeet (accused) is a good driver. It is also correct that accused Ranjeet had taught the driving to Vimal (deceased). When the commotion started between us, there were no other person except us (four persons). It is wrong to suggest that accused Ranjeet received injury on his eye due to the scuffle. When Vimal (deceased) received injury on his head, I did not call any doctor, however, I raised alarm and Rajesh came…It is correct that except us nobody had listen or seen the incident and nobody except Rajesh came there to help us.‟ Even to PW-2, the appellant/accused suggested in cross-examination that at the time of incident, there were four persons present and that initially there was a quarrel amongst them in the room on the issue of driving skill, though the same was denied by PW-2. 8.[5] Though denied by PW-1, the appellant‟s own suggestion to PW-1 in cross examination that he (appellant/accused) had received injury on his eye due to scuffle, corroborates the version of PW-1 and his statement under Section 164 Cr.P.C where he has stated that ‘सदनांक 16/03/2014 होली क े रोज़ मेरे कमरे पर Vimal & Ranjeet मुझिे समलने क े सलए आये थे। हम तीनो ने बैठकर शराब पी। उिक े बाद वो दोनों आपि में बात चीत करने लगे और उनमे छोटी-छोटी बातो (गाडी चलाने क े बात पर आपि में कहािुनी हो गई । सिर उनमे आपि में धक्का-मुक्की, हाथापाई मेरे कमरे में अंदर ही हो गई । और इिी बीच Ranjeet को आँख पर चोट लग गई और सिर मैंने बीच बचाउ कर क े दोनों को अलग-अलग कर सदया। ‟
8.6. Thus, as per the appellant/accused, he had taught driving to the deceased; the appellant/accused claimed that he was a good driver; and that a scuffle had taken place between them on that day on the issue of driving skills, thus admitting the prosecution version in this respect. The fact that the deceased was a driver has also come in the testimony of PW-6 Gama Prasad who stated that he had appointed deceased as his driver, which has remained uncontroverted as PW-6 was not cross examined.
8.7. PW-1 has testified that he (PW-1) separated the appellant/accused and the deceased, and then came out of the room and started cleaning the utensils. The deceased also followed him and sat there. Meanwhile, the appellant/accused also came out and was having danda in his hand and he hit on the head of the deceased with the same, four times; the appellant/accused then kept the danda in the bundle of pipes and ran away. PW-1 stood by his version in his cross-examination, and stated that „…..when the commotion started between us, there were no other person except us (four persons). …. I raised alarm and Rajesh came there…… It is correct that except us, nobody had listen or seen the incident and nobody except Rajesh came there to help us. I heard a noise of Khat-Khat…… then I saw towards Vimal and I saw that accused Ranjeet was hitting with danda on the head of Vimal. Vimal was at a distance of 4-5 feet from me. It is correct that there were so many dandas lying in the godown. …. Accused Ranjeet hit danda on the head of Vimal four times. Accused Ranjeet hit danda on the middle (parietal) region of the head of Vimal..” Same remained uncontroverted.
8.8. The fact that after the scuffle, PW-1/Gunnu Kumar came out and was washing utensils and the deceased had also come out and was with PW-1 at the time of incident, has also come on record by virtue of suggestion put to PW-2 in cross examination by the appellant/accused which was responded as „it is correct that Gunnu was washing the utensils outside the godown in the open area and we all three were sitting in the room‟ PW-1 also stated that „Gunnu did not come inside the room rather Vimal had gone to him‟. 8.8.1. Though PW-2 also testified on the same lines as PW-1 and stated that the appellant/accused came from behind the room and was having a danda in his hand and hit on the head of deceased four times, who started bleeding from his head and became unconscious and the accused ran away from there; and denied in his cross-examination that he had not seen the appellant/accused causing injury on the person of deceased and that he was told about the same by PW-1. It is however seen that PW-2 in his crossexamination stated that after hearing the noise, when he came outside from the room, he noticed the injury on the person of the deceased. On reading the testimony of PW-2 in entirety and in conjunction with that of PW-1, it is apparent that though PW-2 was present there but was inside the room, when the appellant/accused assaulted the deceased. He apparently had only seen the deceased in injured condition and had not seen the appellant/accused causing danda blows on the head of the deceased.
9.0. In view of the above, as per the appellant himself, he is a good driver and had taught driving to the deceased. It is also admitted that on 16.03.2014, the appellant/accused had visited the place of PW-1 Gunnu Kumar at House no. 62, Shahbad Daulatpur village on the occasion of Holi, where four of them i.e. the appellant/accused, PW-1 Gunnu Kumar, PW-2 Rajesh & the deceased were present and were consuming liquor; a quarrel between the appellant/accused and the deceased took place on account of driving skills. It has also come on record that PW-1 Gunnu Kumar separated both, the appellant/accused and the deceased. The appellant/accused himself suggested to PW-1 that after this quarrel, PW-1 Gunnu Kumar went out in the open area to wash utensils while rest three i.e. PW-2, deceased and the appellant/accused were inside the room. But soon thereafter, the deceased also came out of the room and sat near PW-1, where he was washing utensils; and that the deceased was hit on head by danda and he subsequently died because of the same. Ld. Counsel for the appellant/accused argued that even though the above facts have remained unchallenged, the prosecution has utterly failed to connect the appellant/accused with the crime. The prosecution case is based on the sole testimony of eye witness PW-1 Gunnu Kumar, which cannot be relied upon in view of discrepancies. Moreso, as blood was not found on the appellant/accused‟s clothes, much less match with that of the deceased as per the FSL report Ex.PW22/A.
9.1. As discussed above it is evident that not only the PW-1 has been consistent in his version vide his statement/complaint made to the police PW1/A, in his statement before the Magistrate under Section 164 Cr.P.C Ex. PW-1/E and in his deposition before the court. It is significant note that PW- 1 was not cross examined with respect to/confronted with his version under Section 164 Cr.P.C, so as to point out any discrepancy or contradiction except with respect to injury suffered by the appellant/accused on his eye. Whereas, interestingly to PW-32 IO Inspector Mohar Singh it was suggested that he had tutored the complainant/PW-1 before recording of his statement under Section 164 Cr.P.C though no such suggestion was put to PW-1 himself in cross-examination. Rather, as noted above, by virtue of uncontroverted testimonies of PW-1 and PW-2 and also by way of suggestions put to these witnesses in cross examination by the appellant/accused himself, the foundational facts as per prosecution case have remained uncontested. Thus, it hardly lies in the mouth of the appellant/accused to plead that the testimonies of PW-1 and PW-2 are unbelievable as they suffer from glaring discrepancies. The fact that PW- 28 ASI Sanjay Kumar had visited the spot was suggested by the appellant/accused himself in cross examination to PW-28, who stated that „it is correct that when I had reached at the place of occurrence no police official were present there…’ 9.[2] The appellant has admitted that deceased died on being assaulted on his head with danda. PW-1‟s testimony that it was the appellant/accused, who had hit the deceased on his head with danda four times, could not be shaken and inspires confidence. Moreso, in view of the falsity of the appellant/accused‟s own defence in the light of his contradictory stands. To PW-1 in cross-examination, he suggested that it was he (PW-1) who murdered the deceased by hitting him on the head with the danda; and on the other hand, it was suggested to PW-2 that fight had actually taken place between him and the deceased, which was categorically denied by PW-2. Further, the appellant/accused even took false plea of alibi. On one hand, he denied his presence at the spot and on the other hand, the appellant/accused himself suggested to PW-1 & PW-2 in crossexamination, his presence with the deceased, PW-1 and PW-2 on the occasion of Holi and that a scuffle had taken place between him and the deceased. 9.[3] In view of the cogent testimony of PW-1 Gunnu Kumar, which inspires confidence more particularly in view of admission of other foundational facts by the appellant/accused as discussed above, judgment in Joseph’s case (supra) relied upon by the learned counsel for the appellant/accused is of no assistance to the appellant. Rather, in para 13 of its judgment, the Hon‟ble Supreme Court observed that a conviction can be based on the testimony of a solitary eye witness, if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. In the instant case, the testimony of PW-1 an eyewitness inspires confidence. Merely because no blood could be detected on the appellant/accused‟s shirt and pants Ex. 1 (a) and Ex. 1 (b), respectively, though they were having faint stains, same does not exonerate the appellant/accused, in light of the above evidence.
10.0. In view of the above, it stood established beyond reasonable doubt that the appellant/accused had assaulted the deceased on his head with danda Ex.P-1 four times because of which he later passed away.
11.0 PW-9 Dr. Mukesh Kumar testified that he had conducted the postmortem examination of the deceased on 19.03.2014 and had given his report Ex.PW9/A. Relevant portion of post-mortem report Ex.PW9/A reads as under: “……..
X. INTERNAL EXAMINATION a. Head
On reflection of the Scalp, effusion of blood was present under surface of whole scalp. Depressed fracture of left parietal bone present. Linear fracture of left frontoparieto-temporo-occipital bone present. Transverse fracture of middle cranial fossa and fracture of left orbital, plate with underlying eye tissues protruded out. Meninges was torn with underlying depressed fracture with brain matter oozes out. Thin layer of subdural hemorrhage present in both parietal and left occipital area. Diffuse subarachnoid hemorrhage present in both cerebral hemisphere. Laceration of brain of lower pole of frontal area of left side and parietal area of right side present. Patechial hemorrhage present in the brain parenchyma. Brain was contused on both parietal area. Brain was edematous and weighed 1297 grams. b. Neck No extravasation of blood was seen in the soft tissues of neck. The Larynx and pharynx were unremarkable. Tracheal mucosa was congested. Thyroid gland, strap muscles of neck and vessels of neck were unremarkable. Mucosa of esophagus was congested. Hyoid Bone and Thyroid Cartilage were intact. c. Chest Extravasation of blood was present on reflection of chest wall on upper side of chest on both side. Collar bones, sternum and ribs were intact. Both side pleura were intact. Both pleural cavity were unremarkable. Lungs were congested and edematous. Lungs weighed 880 grams and 743 grams on the right and left side respectively. On cut section, blood tinz froth oozes out. …………
XI. OPINION:
Death is due to cranio cerebral damage consequent to injury to the head. All injuries are ante-mortem, caused by blunt force and could be caused by multiple blows by a hard linear object like lathi/danda/rod etc. The injuries to the head are sufficient to cause death in the ordinary course of nature.”
11.1. PW-9 further testified that on 16.04.2014, on an application being moved by PW-32 IO Insp. Mohar Singh for providing subsequent opinion with regard to the weapon of offence/danda (Ex.P[1]), which was produced, he gave subsequent opinion no. 38/14 dated 16.04.2014/Ex.PW9/B. Relevant portion of subsequent report Ex.PW9/B reads as under: “……….. Opinion has been sought as to whether the injuries to the injured person was sustained by the Danda recovered. One sealed parcel with 4 intact seals of MSM submitted along with the request. The same was opened and found to contain a wooden danda. The danda was taken out and examined. Schematic Diagram of the weapon (not to scale)…… Opinion: The injuries on the body of the deceased could be caused by the “danda” examined. …….” 11.[2] Thus, it is established that the injuries caused by the appellant/accused by giving danda blows on the head of the deceased were sufficient to cause death in ordinary course of nature.
12.0. Ld. Counsel for the appellant/accused has contended that even if the case of the prosecution is admitted, as per the same it was a sudden fight which ensued verbal altercation between the appellant/accused and the deceased. Admittedly, there was no pre-meditation or preparation on the part of the appellant/accused, which is also evident from the weapon of offence/danda by which the injury was caused. Further, there is no evidence on record to suggest that the appellant/accused took advantage or acted in a cruel manner. Thus, the case of the appellant/accused is squarely covered by 4th Exception to Section 300 IPC, which attracts conviction under Part 1 of Section 304 IPC. It was argued that the appellant/accused has already undergone approximately 10 years of imprisonment; his conviction be modified from Section 302 IPC to Part 1 of Section 304 IPC; he be released on the period already undergone. On the other hand, Ld. Prosecutor submitted that the deceased died due to multiple blows with danda on his head and the injuries have been opined to be sufficient to cause death in ordinary course of nature. Thus, the appellant/accused has been rightly convicted u/S. 302 IPC. 12.[1] It is prosecution‟s own case and as has come in the testimony of prosecution witnesses that the appellant/accused and the deceased had come to PW-1 Gunnu Kumar‟s house on 16.03.2014 to celebrate Holi. While they were consuming liquor, the appellant/accused commented to the deceased that it is he (appellant/accused), who taught him driving and now he (deceased) is becoming a bigger ustad than the appellant/accused and had stopped talking to the appellant/accused. On which, scuffle took place between them. The PW-1/Gunnu Kumar separated both of them and went out to clean utensils. Deceased also followed PW-1 and thereafter, the appellant/accused also came out and hit the deceased on his head with danda four times on the middle of his head. PW-1 / Gunnu Kumar in his crossexamination has stated that the place where he was residing, is a godown. He also admitted in his cross-examination that there were many dandas lying in the godown. It is not the case of the prosecution that the appellant/accused had brought danda from home, when he visited PW-1‟s place to join in Holi celebration. It is evident that pursuant to a scuffle between the appellant/accused and the deceased on account of driving skills, the appellant/accused followed the deceased outside the room and assaulted him apparently by one of the dandas lying there. Same shows that all this happened in quick succession and the assault by the appellant/accused on the head of the deceased was not pre-meditated. In light of the same and considering other facts and circumstances and taking into account the weapon of offence i.e. danda Ex. P-1, the case of the appellant/accused falls in Exception 4th of Section 300 IPC and not under Section 302 IPC. 12.[2] However, as per post-mortem report/Ex.PW9/A, the deceased suffered four fractures on his head i.e. – (i) Depressed fracture of left parietal bone;
(ii) Linear fracture of left fronto-parieto-temporo-occipital bone; (iii)
Transverse fracture of middle cranial fossa, and (iv) fracture of left orbital plate with underlying eye tissues protruded out. The post mortem report also mentions that meninges was torn with underlying depressed fracture with brain matter oozed out. From these injuries, it is evident that the appellant/accused had not hit the deceased once but had given multiple blows on his head. Considering the same, the conviction of the appellant is modified from Section 302 IPC to Part 1 of Section 304, IPC.
13.0 As per the nominal roll dated 14th October, 2022, the appellant/accused has already undergone sentence of 07 years, 11 months and 21 days till 02nd August, 2021, that is, the date of suspension of the appellant‟s sentence by the Hon‟ble Supreme Court vide order dated 23.07.2021 in SLP (Crl.) no. 5317/2021. In the facts and circumstances of the case, we are of the considered opinion that the period of sentence already undergone by the appellant/accused shall meet the ends of justice. Accordingly, sentence of the appellant is reduced from life imprisonment to the period already undergone by him.
14.0 Appeal is disposed of, accordingly.
15.0. Copy of the judgment be uploaded on the website and be also sent to the Superintendent Jail for updation of record.
(POONAM A. BAMBA) JUDGE (MUKTA GUPTA)
JUDGE FEBRUARY 28, 2023