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2007 DIGILAW 1011 (DEL)

DEEN BANDHU v. STATE GOVT OF NCT OF DELHI

2007-05-14

H.R.MALHOTRA, R.S.SODHI

body2007
R. S. SODHI, J. ( 1 ) CRIMINAL Appeal No. 437 of 2006 seeks to challenge the judgment and order of Additional Sessions Judge, Karkardooma Court, Delhi in Sessions case No. 63 of 2001 arising out of F. I. R. No. 107 of 1997 registered at Police station Vivek Vihar, whereby the learned judge vide his judgment and order dated 25. 11. 2004 has held the appellant guilty for the offence under Section 302 IPC. Further by his order dated 7. 4. 2006, has imposed the sentence of life imprisonment together with a fine of Rs. 5,000/- (rupees five thousand) and in default of payment of fine to further undergo Rigorous Imprisonment for a period of three months for the offence under Section 302 IPC. ( 2 ) BRIEF facts of the case as have been noted by the learned additional Sessions Judge are as under :- "on 13. 03. 97, L/ct. Prabha posted in PCR received telephonic message from some public person about the stabbing of the Principal of Sarvodaya Senior Secondary school, Jhilmil Colony, Vivek Vihar, Delhi. DD No. 31b was recorded in this respect. This DD was handed over for investigation to SI Mahabir Singh. SI mahabir Singh alongwith Ct. Mahesh reached at the place of occurrence where he came to know that the injured had already been rushed to ESI hospital. SI mahabir Singh reached at ESI hospital. From there, he came to know that the injured had been sent to GTB hospital. SI Mahabir Singh alongwith Ct. Mahesh reached at GTB hospital and collected MLC of injured Avinash Chand Chadha. He was declared fit for statement. SI Mahabir Singh recorded his statement. He sent Ct. Mahesh to get the case registered U/s. 307 IPC after making his endorsement over the statement of injured and after preparing rukka, Ct. Mahesh got the case registered vide FIR No. 107/97 U/s. 307 IPC. The duty officer got send the report to the senior officers through special messenger. Further, case of the prosecution is that Dr. R. K. Nagar medically examined patient Avinash Chand Chadha on 13. 03. 97. Injuries were opined to have been caused by sharp edged weapon. The patient was referred to Senior Resident " surgery for further management. SI Mahabir Singh took Pradeep Arya who claimed himself to be an eye witness at the spot and prepared unscaled site plan. R. K. Nagar medically examined patient Avinash Chand Chadha on 13. 03. 97. Injuries were opined to have been caused by sharp edged weapon. The patient was referred to Senior Resident " surgery for further management. SI Mahabir Singh took Pradeep Arya who claimed himself to be an eye witness at the spot and prepared unscaled site plan. SI Mahabir Singh also recorded statement of Pradeep Arya. He got the scene of incident photographed. He seized the blood lying on the floor outside the room of the Principal and prepared necessary seizure memos. Further, case of the prosecution is that accused was apprehended on 14. 03. 97 at about 7. 30 PM while sitting inside the park near the gate of PS. He was interrogated and his disclosure statement was recorded. The accused led the police party to the place of incident. Thereafter, he took the police party to his house at 173, Pratasp Khand, Delhi and got recovered one dagger. SI Mahabir singh prepared sketch of the dagger. The dagger was put in a pulanda and was sealed with the seal of MS and seized vide seizure memo. The shirt which the accused was wearing was having blood stains. The same was also seized by the si. Further, case of the prosecution is that during investigation the IO got sent the exhibits to CFSL. The accused was got medically examined. His ossification test was also got conducted. On the night of 29/30. 03. 97, DD No. 22a was recorded on receipt of information about the death of injured Avinash Chand Chadha. SI Sunil who had taken over the investigation from SI Mahabir Singh, reached at GTB hospital and completed inquest proceedings. He prepared inquest papers and recorded the statements of the concerned witnesses regarding identification of the dead body. The postmortem on the dead body of the deceased was conducted by Dr. Anil Kohli on 30. 03. 97 at 10 AM. Cause of death was opined to be septicemic shock following antemortem stab injuries caused by sharp edged weapon. Injury No. 9 was opined sufficient to cause death in the ordinary course of nature both independently and collectively with other injuries. During investigation, the dagger got recovered by the accused was produced before Dr. Anil Kohli and his opinion was taken. The scaled site plan was got prepared. Injury No. 9 was opined sufficient to cause death in the ordinary course of nature both independently and collectively with other injuries. During investigation, the dagger got recovered by the accused was produced before Dr. Anil Kohli and his opinion was taken. The scaled site plan was got prepared. The IO recorded the statements of the concerned witnesses of different stages of investigation. The CFSL reports were collected and placed on record. After completion of investigation, the police of PS Vivek Vihar filed challan against the accused in the court of Ld. M. M. " ( 3 ) LEARNED counsel for the appellant submits that his challenge is primarily to the offence. He does not challenge the factum of death nor does he challenge his role in the death of the victim. He contends that the victim died after 17 days of the occurrence and that according to the Death Summary, the patient died as a result of contacting Jaundice in addition to Septicemia, which had developed on the surgical incised wound. He also contends that the appellant was about 17 years of age at the time of the occurrence and has already undergone more than 10 years of incarceration. In the facts and circumstances of this case, learned counsel submits that the offence would, at the highest, be covered under Section 304 IPC and not under Section 302 IPC. ( 4 ) LEARNED counsel for the State, after taking us through the medical record and taking into consideration the fact that the patient died after 17 days of the incident, submits that conviction under Section 302 IPC could be sustained. ( 5 ) WE have heard counsel for the parties and with their assistance have gone through the record of this case. It has come on record that the appellant, at the time of the incident, was 17 years of age and further that the victim died after 17 days on account of Septicemia having set in on the surgical wounds. It is also on record that subsequently the victim was suffering from jaundice and had developed an enlarged Liver as also Kidneys. There is, therefore, every likelihood that the injury caused by the appellant itself may not have been the sole cause of the death of Avinash Chand Chadha. It is also on record that subsequently the victim was suffering from jaundice and had developed an enlarged Liver as also Kidneys. There is, therefore, every likelihood that the injury caused by the appellant itself may not have been the sole cause of the death of Avinash Chand Chadha. ( 6 ) CONSEQUENTLY, taking the cumulative effect of the injuries as also septicemia of the surgical incisions and the enlargement of Liver and kidneys, which had contributed to the death of Avinash Chand Chadha, we feel that the offence would be covered under Section 304 IPC. Consequently, we modify the judgment dated 25. 11. 2004 and order on sentence dated 7. 4. 2006 to convict the appellant under Section 304 IPC, and also modify the sentence of imprisonment of the appellant to the period already undergone. Criminal Appeal no. 437 of 2006 stands disposed of in the above terms. Criminal M. B. No. 171 of 2007 also stands disposed of. The appellant, who is in custody, shall be released forthwith unless wanted in any other case.