CIVIL APPEAL None on 29 July 1999

1. Whether Reporters of local papers may be allowed to see thejudgment? judgment?

2. To be referred to the Reporters or not?

3. Whether the judgment should be reported in the Digest?

HEMANT GUPTA, J.

The present appeal is preferred by Mohd. Jahangir, Mohd.Islam, Mohd. Ishak, Mohd. Azad, sons of Mohd. Kalim and Mohd.Kalim son of Altaf Khan against the judgment passed by the learnedAdditional Sessions Judge (Ad hoc), Faridabad on 28.08.2002,convicting the appellants for an offence punishable under Section 302read with Section 34 IPC and sentencing them to undergo lifeimprisonment and to pay a fine of Rs.5000/- each. In default ofpayment of fine, they shall further undergo rigorous imprisonment forsix months. The appellants were further convicted for an offence punishable under Sections 323 read with Section 34 IPC and sentencedto undergo rigorous imprisonment for a period of six months.

The prosecution case was set in motion on the statement ofJaipal son of Nain Singh, uncle of the deceased-Sunder, made to SI AjitSingh on 29.07.1999 at about 8.30pm. In his statement (Ex.PD), Jaipalstated that his nephew Bijender is running a grocer’s shop. He statedthat today i.e. 29.07.2009 in the morning at about 6.30 am, Bijenderwent to Perhlad Pur for taking the bags of milk from Mother Dairy.After some time, Raju son of Sukan,who is residing in theirneighbourhood came to their house and told him that near ganda nalacycles of Bijender and Mohd. Ishak son of Mohd. Kalim have struckwith each other and Mohd. Kalim along with his sons Mohd.Ishak andMohd. Islam are beating Bijender. On hearing this, he along with hisnephew Sunder and Raju, who came to told them, rushed to the place ofoccurrence and saw that Bijender is being given beatings by Mohd.Kalim and his sons Mohd. Islam and Mohd. Ishak with sticks (dandas).They tried to rescue them, upon which Mohd. Kalim, Mohd. Islam andMohd. Ishak threatened them that they will also see them. Thereafter,after they intervened, then Mohd. Islam gave a blow with lathi, in hishand, on the head of Sunder. In the meantime, two other sons of Mohd.Kalim namely Azad Anwar and Jahangir came there and gave brickblows on the head of Sunder. As a result thereof, Sunder becameunconscious. They raised alarm, then Dharamvir son of Hari Singh andIshwar reached the spot and rescued them. Thereafter, he along withRaju, Dharmvir and Ishwar removed Bijender and Sunder toB.K.Hospital, Faridabad, where Bijender was discharged after giving first aid, whereas Sunder was referred to Safdarjang Hospital for furthertreatment. On way, the condition of Sunder deteriorated, therefore,they admitted Sunder in Batra Hospital, Delhi. On the basis of suchstatement, ruqa (Ex.PD/1) was sent to the police station for registrationof an FIR. On receipt of ruqa, FIR (Ex.PD/2) was recorded at about10.05 pm on the same day.

On 31.07.1999, Sunder succumbed to the injuries at about1.50 pm. The post-mortem examination on the dead body of Sunderwas conducted by the board consisting of Dr. A. Lohan and Dr.N.K.Sharma. In their opinion, the cause of death was due to comma asa result of brain injury.

After arresting the accused and on completion of necessaryformalities, all the accused were made to stand trial for an offencepunishable under Section 302 and 323 read with Section 34 IPC. To prove its case, the prosecution has examined PW-2 Dr.A. Lohan, who conducted post-mortem examination on the dead bodyof Sunder on 31.07.1999 alongwith Dr. N.K.Sharma.

PW-3 Dr. Sudhir Khurana, Medical Officer, B.K.Hospital,who medico-legally examined Bijender Singh and Sunder on29.07.1999. He found as many as 12 injuries on the person of Bijender,whereas on the person of Sunder, he found lacerated injury on thefrontal region of scalp. He also proved medico legal reports Ex.PB andPC in respect of Bijender and Sunder respectively.

PW-9 is Dr. R.K.Mathur, from Batra Hospital, New Delhi,who radiologically examined Sunder on 29.07.1999. He deposed that on C.T. scan of the head of Sunder, he found that there was generalizedlow attenuation with obliteration of sulcal pattern in the right cerebralhemisphere. There was subgaleal Haemotama in the right temporal andparietal region and there was a thin subdural haemotama in the righttemo-parietal region.

PW-6 Jaipal, author of FIR and the eye-witness, hasdeposed that he accompanied Raju and Sunder to the place ofoccurrence and when they tried to rescue Bijender, Islam gave a lathiblow on the head of Sunder, whereas Azad and Jahangir gave brickblows to Sunder. In his cross-examination, he stated that sunder isliving with him in the same house and is his nephew. He further statedthat they reached the place of occurrence within 4/5 minutes and whenthey reached there, the accused were beating Bijender. He stated thatthey reached B.K.Hospital in three wheeler at about 9.00 am.

PW-7 Bijender, injured, deposed that on 29.07.1999 atabout 6.30 am, his cycle struck with the cycle of Ishak. Subsequently,Mohd. Kalim and his son Islam came there and started beating him withlathis and dandas. Thereafter, his brother Sunder and uncle Jai Palcame there and tried to rescue him, but Islam gave a lathi blow on thehead of Sunder. In the meantime, two sons of Mohd. Kalim namelyAzad and Jahangir came at the spot and gave brick blows to Sunder.Thereafter, Sunder fell down and became unconscious. He deposedthat on hearing alarm, Dharambir and Ishwar came at the spot. In hiscross-examination, he stated that his house is at a distance of 2 housesaway from the house of Jai Pal and he received injuries on his left handand face. He stated that he was given beatings by danda, lathis, bricks, fist and slaps blow and that all the five accused have given beatings tohim.

PW-8 is Raju, who reported the fact of beatings beinggiven to Bijender to Jai Pal. He deposed that Islam gave lathi blow toSunder at his head, when he came to the spot and thereafter Jahangirand Azad gave brick blows to Sunder. In his cross-examination, hestated that police recorded his statement at about 8.30/9.00 pm on thesame day at Batra Hospital.

PW-10 is SI Ajeet Singh, the Investigating Officer, whodeposed in respect of investigations carried out by him. He deposedthat on 01.08.1999, he arrested accused Mohd. Kalim, Mohd. Azad,Mohd. Ishak and Mohd. Islam. He deposed that on 02.08.1999, heinterrogated accused Mohd. Kalim, Mohd. Azad, Mohd. Ishak andMohd. Islam, who suffered disclosure statements Exs.PP, PQ, PR andPS respectively. He deposed that accused Jahangir was arrested fromthe Court, where he surrendered, on 15.10.1999 and duringinterrogation, he suffered a disclosure statement Ex.PT.

Arguments

Apart from examining the above witnesses, theprosecution has also examined other witnesses, who are formal innature, to complete the chain of circumstances. The incriminatingcircumstances appearing in the prosecution evidence were put to theaccused in their statements recorded under Section 313 Cr.P.C. Theyimpleaded false implication. After going through the evidence onrecord, the learned trial Court convicted and sentenced the appellants,as mentioned above.

Learned counsel for the appellants has vehemently arguedthat the FIR has been lodged after gross delay, as the occurrence is saidto be of morning i.e. at about 6.30 am, whereas first statement is madeto the Police at about 8.30 pm. Such delay has been utilized by theprosecution to rope in all the male members of the family of Mohd.Kalim. It is contended that Bijender has received simple injuries,whereas Mohd. Islam is attributed single dang blow on the head ofSunder-deceased. Such dang blow was not with the intention ofcausing death and was result of sudden provocation without anypremeditated mind. Thus, the conviction of the appellants is notsustainable except that of Islam in respect of whom the commission ofoffence under Section 304 Part-II alone is said to be disclosed.

Having heard learned counsel for the parties, we find thatthe argument that there is delay in lodging of FIR is not material to theprosecution case. Sunder has received grievous injuries and wasserious and the Doctor at B.K.Hospital, Faridabad has referred him toSafdarjang Hospital, New Delhi. The attendants have taken him toBatra Hospital, to provide medical assistance, so as to save the life ofcritically injured patient. In view of the said fact, delay in lodging ofFIR, does not affect the prosecution case. It is first priority of thefamily members to save life.

The occurrence has taken place all of a sudden, as a resultof accident of two cyclists i.e. Bijender and Mohd. Ishak. PW 6 Jaipalalong with Sunder and Raju reached at the place of occurrence later on.As per prosecution case, as deposed by PW 6 Jai Pal, PW-7 Bijenderand PW-8 Raju, brick blows are attributed to Mohd. Azad and Mohd.

Jahangir. There are only two injuries on the head of the deceased, oneof them was with lathi given by Islam. The prosecution has notexplained that which of the two accused have given brick blow on thehead of the deceased, the second injury. Therefore, the prosecution hasfailed to prove the inflicting of second injury by the aforesaid accused.Therefore, such accused are entitled to benefit of doubt in causing deathof Sunder.

Mohd. Islam is attributed single lathi blow on the head ofSunder. Such injury on the head was the cause of death, therefore,Mohd. Islam has been rightly convicted and sentenced. He came to thespot armed with danda after the fight ensued. He gave blow with suchintensity, which led to the death of Sunder. Therefore, though theoccurrence has started suddenly, but the accused came to the spotarmed with lathi with an intention to cause harm to the victim party.Thus, inflicting of fatal blow on the head of Sunder by Mohd. Islamdoes not fall within any of the exceptions of Section 300 and he hasbeen rightly convicted and sentenced for an offence punishable underSection 302 IPC.

From the testimony of PW-7 Bijender-injured, PW-6 Jaipaland PW-8 Raju, it stands proved that the accused were given beatingsto Bijender and have caused as many as 12 injuries to Bijender, butfortunately none of them is grievous. Inflicting of large number ofinjuries have been rightly taken into consideration by the learned trialCourt to convict the appellants for an offence punishable under Section323 read with 34 IPC. We do not find that such findings of convictionand sentence are suffering from any illegality. The prosecution has neither alleged or proved any fatal blow by accused Mohd. Kalim andMohd. Ishak on the person of the deceased. They have been chargedwith the aid of Section 34 of IPC. Since all the accused have came tothe spot at the spur of the movement, it cannot be said that they shared acommon intention to cause death of Sunder. But the fact that they cameto the spot to save Mohd. Islam, who had scuffle with Bijender, theyhave been rightly convicted for an offence punishable under Section323 read with 34 IPC.

In view of the above, the appeal qua Mohd. Islam isdismissed, whereas the appeal of Mohd. Jahangir, Mohd. Ishak, Mohd.Azad and Mohd. Kalim is partly allowed. They are acquitted of thecharges for an offence punishable under Section 302 read with 34 IPCby granting them benefit of doubt, but their conviction for an offencepunishable under Section 323 read with 34 IPC is maintained.

(HEMANT GUPTA)JUDGE

20.05.2011Vimal

(A.N.JINDAL)JUDGE