Balkeshwar v. State

12. The internal examination of skull and brain revealed the following: "Skull & brain: Sutural (diastatic) fracture of left parieto-temporal bone present at skull wall. Fracture of left orbital plate in left anterior cranial fossa present at the base of skull. Thick layer subdural hernatorna was present uniformly over right cerebral hemisphere (volume of SDH = 150 ml). Contusion-laceration of bilateral basifrontal and right basi-temporal lobes of cerebrum was present. Brain stem hemorrhage was also present. On cut section, petecheal hemorrhage was present in the white matter of frontal lobe of right cerebral hemisphere." The opinion as to the cause of death was "cranio-cerebral damage consequent upon blunt force trauma to the head". Subsequently, when the weapons were recovered, i.e. wooden clanda, metallic rod, and wooden stump, PW[9] opined that the injuries could be caused by those weapons. Framing of Charge and Trial Initially, a charge-sheet was filed on 19th June 2013. By an order dated iii 17 July 2013, the following charges were framed against the four accused: "That on 29th March 2013 at about 8.15 AM at Gali near Mazar Peer Baba Jailorwala Bagh, Delhi within the jurisdiction of PS Ashok Vihar you all accused in furtherance of your common intention committed murder of Shaukat Ali by giving iron rod blows on his head with intention to cause his death and thereby you all committed and offence punishable under Section 302/34 IPC and within my cognizance. Secondly on the above said date, time and place you all accused in furtherance of your common intention gave the iron rod and the wooden stump (wicket) blow on the head and upon the body of Qayuurn Khan with such intention or knowledge and under Cr!. Appeal A/os. 1279/2015,15/2016,41/2016 & 12/2016 such circumstances that if you by that act caused death of Qayuum Khan, you would be guilty of murder and thereby all committed an offence punishable under Section 307/34 IPC and within my cognizance. Thirdly, on the above said date, time and place, you all in furtherance of your common intention voluntarily caused hurt on the person of Jigar and thereby you all committed an offence punishable under Section 323/34 IPC and within my cognizance." The prosecution examined 32 witnesses. Interestingly, on 28°' October 2013, the date on which the supplementary charge sheet was filed, as many as 26 eye witnesses were examined. The counsel appearing for the Appellants in this Court pointed out that their counterpart in the trial Court, a legal aid counsel, was given no time to prepare and cross-examine several of the 26 witnesses who were examined on a single date, i.e. 8th October 2013. On 9th February 2014, the remaining six witnesses were examined. In their respective statements under Section 313 Cr PC, the Appellants denied their involvement in the commission of the offence. As far as Al was concerned, he claimed that the accused were pressurized to sell their house to the complainant. It is pointed out that the wife of A[3] was not even being allowed to stay in her house. As far as A[2] was concerned, he too maintained the same version. A[3] stated that he and his wife had called the police on 8th November 2012 when there was a quarrel during which the wife of A[3] was beaten up by the complainant. He claimed that they were forced to compromise the matter in the PS. On 261h April 2013, when the wife of A[3] went to the house to take some clothes, PW1O abused her and threatened her Cr!. Appeal /Vos.1279/2015,15/20l[6],4I/2016 & 12/2016 to go away and not live there. Even at the time of deposition in the trial Court, A[3] disclosed that his wife had been forced to reside in their native village. He apprehended that his house may have been trespassed and the household items may have also been stolen. The stand taken by A[4] was that on the date of the incident, he was not even present at the spot but was on duty in his factory, i.e. DD Gears Limited, A-34, G.T. Karnal Road, Industrial Area. According to A[4], he. worked in two shifts with the first shift from 10 pm on 128t[1] March 2013 to 6 am on 291h March 2013 and the second from 6 am to 2 pm on 29th March 2013. He claimed that after 2 pm on 29th March 2013, he left the factory when the relieving workman arrived. He then claims to have gone to the PS to know the whereabouts of his relatives and was made to sit there and implicated falsely in the present case. No witness was examined for the defence. Imp ugned judgment of the Trial Court S

19. By the impugned judgment dated 23rd September 2015, the trial Court held the Appellants guilty of the aforementioned offences under Sections 302/326/323/34 IPC and in that process, came to the following conclusions:

(i) It was proved that the accused had the motive to inflict injuries on

PWIO. It was also proved that they had made preparations for causing hurt to PWIO by means of dandas, stump and iron rod. The opinion regarding the weapons of offence revealed that the injuries sustained by PW1O had been caused by blunt-force and were possible by the weapons examined by PW[9]. Although the injuries to Cr!. Appeal Nos. /279/2015,15/2016,41/2016 & /2/2016 Page 9 o/ 17 PW 10 were of grievous nature on account of fracture of shaft of the right clavical and fracture of distal end of fourth metacarpal bone of PW1O, the prosecution failed to prove that the injuries sustained by PW1O were on his vital part. Consequently, it was held that the ingredients of Section 307 IPC qua PWIO were not fulfilled. The offence committed was held to be one under Section 326 IPC and, therefore, all accused were held guilty under Section 3 26/34 IPC. The trial Court noted that there was no instigation on the part of PW22 or the deceased. It had to, therefore, be held that the Appellants had the intention to commit the offences charged with. It was held that all the six injuries on the body of the deceased were on vital parts and all proved fatal to his life. There was no instigation on the part of the deceased whereas the four accused left him in an unconscious condition at the spot and ran away from there. Consequently, all of them were held guilty under Section 3 02/34 IPC AnaIsis and Reasons

20. This Court has heard the submissions of Mr. Harsh Prabhakar, learned counsel appearing for A[2] (appellant in Crl.A.No.41/2016); Mr. M.L. Yadav, learned counsel appearing for A[3] (appellant in Crl.A.No.1279/2015); Mr. Sitab All Chaudhary, learned counsel appearing for Al (appellant in Crl.A.No.15/2016); and Mr. Nitish Chaudhary, Advocate who is appearing on behalf of Mr. Chetan Lokur, learned counsel for A[4] (appellant in Crl.A.No.12/2016). Ms. Radhika Kolluru and Ms. Kusum Dhalla, learned APPs, have made submissions on behalf of the State. Cr!. Appe'iI Nos. 1279/20/5,15/2016,41/20/6 & 12/2016 At the outset, it requires to be noticed that Parmod Kumar (Al) was declared a juvenile on the date of the commission of the offence by this Court vide its order dated 20 th December2016 in Crl.ANo.15/2016. With Al having already served out the three years of his sentence in terms of the Juvenile Justice (Care and Protection) Act (JJ Act'), his appeal is only relevant as regards his conviction. The second factor to be noted is that the other Appellants have completed slightly over five years of imprisonment (inclusive of remissions). If the rukka is to be taken to be the correct depiction of the events, particularly since it was on the statement of the injured eye-witness PWIO, and if it is seen in the context of the scaled site plan, it is seen that the houses of A[3] and his two sons and the house of the deceased were opposite each other in the jhuggi-jhopri cluster (JJ cluster'). The house of PWIO, where he also had a repair shop (and where PW22 also stayed), was not adjoining the house of the deceased. That shop was at a crossing at a distance of around 200m from the house of the deceased. It would not have been clearly visible from the house of the deceased. It was pointed out by learned counsel for the Appellants, and not effectively countered by learned APPs for the State, that in the supplementary statement recorded of PWIO the major improvement was to the effect that all the accused were beating the deceased. Indeed, both the statements of PWIO and PW13 made in the first instance to the police under Section 161 Cr PC do not say that all the accused were beating up the deceased. There were specific acts attributed to Cr!. Appeal Nos.1279/2015,15/20I[6],4J/2O16 & 12/2016 Page 1/ at 17 each of them. A[3] was having a clanda in his hand and was beating PWIO. A[2] was having a cricket stump was beating up PW22. Al who has having an iron rod (saria) was inflicting blows on the head of the deceased who was being held from behind by A[4]. Thus, the improvements sought to be made in the supplementary statement and thereafter in the Court, cannot be said to be immaterial or insignificant. Having carefully perused the evidence of PWIO, PW13, and PW22, the Court is of the view that the three witnesses have consistently and cogently spoken about the sequence of events reflected in the rukka which finally led to the registration of the FIR. What the prosecution has not been able to prove is that all the four accused assembled in front of the shop of PW1O three of them, i.e. Al to A[3], being armed and A[4] being unarmed. Therefore, the question of the attack on him being as a result of 'a sudden fight', in the heat of passion in a sudden quarrel, as mentioned in Exception 4 to Section 300 IPC cannot said to be applicable. The attack was pre-planned. All the four accused shared a common intention which is why three of them at least came armed and assembled in front of the shop of PW1O without any provocation whatsoever. The trigger to the above aggression by the accused was an incident of 2211d[1] March 2013 where the young child of the deceased was urinating in front of the house of the accused to which the accused objected. This led to some quarrel and beatings being subjected to the deceased by A[3] which was stopped by the intervention of PW1O. Even otherwise, the accused CrL tlppeul lVos. 12 79/2015,15/2016,41/2016 & 1212016 Page 12 Hf 17 themselves in the cross-examination of the aforesaid eye witnesses, have accepted that several quarrels had taken place between the families of A[3] and the deceased. Consequently, the conviction of the four accused for the offences under Sections 326/34 IPC for inflicting grievous hurt on the person of PW1O and the conviction for the offence under Section 323/34 IPC for injuries caused to other victims, including the sentences and fine amounts awarded, do not call for any interference whatsoever. Turning now to the offence under Section 302/34 IPC, the question is whether there was any pre-planning or pre-meditation on the part of the four accused to inflict such serious injuries on the deceased as would likely to cause his death. In this context, if the sequence of events is carefully perused, it is plain that only when the deceased sought to rescue PW1O that Al started attacking him on his head with an iron rod with A[4] holding him from behind. This part of the event, therefore, appears to be on the spur of the moment, without any premeditation. Secondly, it cannot be said that all the accused then and there shared a common intention to kill the deceased. Although in the subsequent statement under Section 161 Cr PC, certain exhortations were attributed to some of the accused, the Court is not prepared to accept such improvements, particularly when the supplementary statement under Section 161 Cr PC was recorded after a considerable gap. Ms. Radhika Kolluru and Ms. Kusum Dhalla, learned APPs for the State, Cr!. Appeal IVos. 1279/2015,15/2016,41/2016 & 12/2016 Page 13 u/I 7 sought to point out that it is only on account of the two lOs preceding PW31 not taking effective steps in recording the statements of the eye-witnesses did the need arise to record a supplementary statement under Section 161 Cr PC. Further, due to these lapses the statement implicating all the four accused in the killing of the deceased victim could not be taken at the earliest point in time. It was argued that it cannot be said that the police has deliberately tried to distort the actual events by getting the supplementary statement recorded. The Court is of the view that the statements of these very witnesses made to the police in the first instance and their deposition in the trial Court are so vastly different that it cannot escape the attention of any person reading the evidence that there are material improvements made by these eye-witnesses through their subsequent statements. This cannot be accepted as being truthful or reliable. Turning now to the killing of the deceased, the fatal injuries on his skull were obviously attributable to the blows inflicted by Al using an iron rod. If one keeps aside the exaggerations of the eye-witnesses, it is evident that it was only Al and A[4] who were involved in the killing of the deceased, i.e. A[4] was holding the deceased from behind and Al was attacking him with an iron rod. Qua the deceased, therefore, it has to be seen whether Al and A[4] can take advantage of Exception 4 to Section 300 IPC. Exception 4 uses the expression 'sudden fight in a heat of passion in a sudden quarrel'. As far as the first part is concerned, it could be said that qua the deceased, there was Cr!. Appeal iVüs.1279/2015,15/2016,4I/2OI[6] & 12/2016 Page 14 ot 17 no premeditation of all the accused and even on the spot, it could not be said that all of them shared their common intention. While A[4], who was holding the deceased, and Al, who was attacking him, could be said to have shared a common intention qua PWIO, the same cannot be said of either A[3] (who was attacking PW1O) or A[2] (who attacked PW22 with a cricket stump). The Court is satisfied that qua Al and A[4], the offence cannot be said to be outside the scope of Exception 4 to Section 300 IPC. In other words, it should not be viewed as murder punishable under Section 302 IPC but culpable homicide not amounting to murder punishable under Section 304 Part I IPC. This is because the attack on the deceased by Al and A[4] was not premeditated and happened at the spur of the moment. Consequently, the Court is inclined to modify the impugned judgment of the trial Court convicting Al and A[4] for the offence under Section 302/34 IPC to a conviction for the offence under Section 304 Part-I/34 IPC. The Court accordingly acquits A[2] and A[3] for the offence under Section 302/34 IPC. Sentence As regards the sentence to be awarded to Al and A[4] for the offence under Section 304 Part-I/34 IPC, the Court need not consider the case of Al since he has been declared a juvenile at the time of the commission of the offence and has already served out the maximum sentence that he could be given in terms of the JJ Act. Turning to A[4], it is seen that the offence is punishable either with CrL Appeal Nos.1279/2015,15/2016,4I/20l[6] & 12/2016 Page 150/17 rigorous imprisonment ('RI') for life or, in the alternative, for a term which may extend to ten years. The Court notes that A[4] himself was not an immediate relative of Al, A[2] and A[3]. He was perhaps an acquaintance. He, therefore, could not have shared the same motive vis-â-vIS the deceased as Al might have. In fact, A[4] had no previous quarrel with the deceased. Secondly, A[4] was unarmed and his role was to hold the deceased from behind while Al attacked the deceased. Keeping all these facts and the fact that his nominal roll shows that there is no other pending case and his conduct in jail has been satisfactory, the Court sentences A[4] to RI for a period of six years with the fine amount being maintained at Rs.20,000/- and the default sentence in case of failure to pay fine as SI for six months. Irregularities in Trial Procedure The Court is constrained to note that 26 prosecution witnesses, including eye witnesses, were examined by the trial Court on a single day and that too on the very same day that a supplementary charge sheet was filed. This gave no time to the defence counsel to prepare and properly cross-examine the. witnesses. This has prejudiced the accused persons as they were denied a proper and effective opportunity to put forth an adequate defence. Conclusion The result of the above discussion is as under:

(i) The conviction of all the accused for the offences under Sections

326/34 and 3213/34 IPC and the sentences and fine amounts awarded to them for those offences are hereby confirmed. The Appellants - Balkeshwar (A[3]) and Jitender (A[2]) - are acquitted Cr!. /lppeaINos.1279/2015,15/20I[6],4I/2016 & 12/2016 Page /6 of 17 of the offence under Section 302/34 IPC and to that extent, the impugned judgment of the trial Court and the corresponding order on sentence stands set aside. The impugned judgment of the trial Court stands modified qua Al (Prarnod) and A[4] (Vishnu) inasmuch as their conviction for the offence under Section 302/34 IPC is converted into conviction under Section 304 Part-I/34 IPC. Since Al has been declared to be a juvenile and has served out the 40 maximum possible sentence for the aforementioned offence, as far as he is concerned, no further orders are called for. As far as A[4] is concerned, the order on sentence for the offence under Section 302/34 IPC is set aside and he is sentenced for the offence under Section 304 Part-I/34 IPC to RI for six years together with fine of Rs.20,000/- and upon failure to pay the fine, to undergo SI for a further six months. It is clarified that the impugned judgment of the trial Court regarding compensation to be paid to the family of the victim from the fine amount stands undisturbed.

41. The appeals are disposed of in the above terms. The trial Court record be returned forthwith along with a certified copy of this

S. MURALIDHAR, J.

EHTA,J. JANUARY 30, 2018 rd