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2014 DIGILAW 293 (DEL)

Raju @ Rajinder v. State of Delhi

2014-01-27

INDERMEET KAUR

body2014
Judgment : Indermeet Kaur, J. (Oral) 1 The appellants are aggrieved by the impugned judgment and order of sentence dated 19.01.2006 and 24.01.2006 respectively wherein the appellants Rajinder and Surender (brothers) had been convicted under Section 304 of the IPC and had been sentenced to undergo RI for a period of 4 years as also to pay a fine of Rs.25,000/- each; in default of payment of fine, to undergo RI for a period of 1 year. Out of the total fine of Rs.50,000/-, Rs.40,000/- was to be paid as compensation to the heirs of the deceased. Fine amount has since been paid. 2 The version of the prosecution was unfolded in the version of Ram Kumar (PW-7). He was an eye-witness and the brother-in-law of the victim. As per his version on 03.05.2002 at about 11:00-11:30 pm, he saw the accused persons quarrelling with his brother-in-law Bhim Singh (deceased). Surender had caught hold of the deceased and Rajinder was beating him. PW-7 intervened and saved Bhim singh. Further version being that the deceased and accused used to consume liquor daily; they also used to play cards; they often used to quarrel. Still further version being that in the morning of 04.05.2002 at about 03:00-03:15 pm, Ram Avtar Singh (PW-2) was awakened by Bhim Singh who told that he is suffering from severe pain in his stomach. He along with his nephews Devender and Arjun Singh had accompanied Bhim Singh to the Ram Lal Kundan Lal Nursing Home where an injection was administered to him. They thereafter returned home. 3 The emergency MLC of Bhim Singh conducted at the Ram Lal Kundan Lal Orthopaedic Hospital (Ex.PW-16/B) evidences that the patient had come into emergency at 04:45 am on 04.05.2002. He was smelling of alcohol. He was complaining of abdominal pain. He was otherwise conscious and his parameters were normal. He was administered an injection. He was advised admission for further investigation but the patient as also his attendants refused it. 4 Further case of the prosecution is that on 05.05.2002 at 12:05 pm, the deceased went to Lal Bahadur Shastri Hospital as he was complaining of abdominal pain and vomiting. He was otherwise conscious and his parameters were normal. He was administered an injection. He was advised admission for further investigation but the patient as also his attendants refused it. 4 Further case of the prosecution is that on 05.05.2002 at 12:05 pm, the deceased went to Lal Bahadur Shastri Hospital as he was complaining of abdominal pain and vomiting. His MLC (Ex.PW-1/A) of the Lal Bahadur Shastri Hospital on a naked examination noticed no further external injury; he was admitted in the hospital and thereafter at subsequent time i.e. at 02:00 pm and again at 07:20 pm, the patient was unfit for statement. 5 The patient succumbed to his death on 05.05.2002 at 09:15 pm. The post mortem report was proved as Ex.PW-9/A. The post mortem had noted 8 external injuries. Perusal of these injuries shows that there were largely abrasions and none of these injuries either individually or collectively could have led to the death of the victim. The stomach of the victim was found to be empty; peritoneal lining was inflamed; abdominal wall showed a reddish bruise in the epigastric region which appeared to be less than a day in age. The cause of death was opined to be as under:- “Shock due to peritonitis due to a perforated ulcer and acute pancreatitis and was sufficient to cause death in the ordinary course of nature. It could have been caused by a blunt trauma to the abdomen sustained about one day prior to death.” 6 Apart from oral version of PW-7, Ram Avtar (PW-2) the brother of the victim who had taken the deceased to the hospital and to whom an alleged dying declaration had been made by the victim had also been examined by the trial Judge as another piece of incriminating evidence against the appellants. Testimonies of Arjun Singh (PW-4), Kumari Radha (PW-5) and Sohan Singh (PW-6) were also noted; they had also corroborated the version of PW-2 qua the dying declaration made by the deceased. 7 It was in this aforenoted scenario keeping in view the said oral and documentary evidence that the appellants had been convicted under Section 304-II of the IPC. The sentence as noted supra was 4 years RI for each convict and a fine of Rs.25,000/- each. 8 At the outset, learned counsel for the appellants has assailed the impugned judgment on merits. The sentence as noted supra was 4 years RI for each convict and a fine of Rs.25,000/- each. 8 At the outset, learned counsel for the appellants has assailed the impugned judgment on merits. It is pointed out that the medical record of the patient clearly shows that he had gone to the hospital for the first time only at 04:45 am on 04.05.2002 when the incident was of 11:30 pm on the previous night of 03.05.2002. Even at that time he was administered an injection and he returned home which was against medical advice; the doctor had advised him to get admitted for further investigation but not only the deceased but also his relatives had refused admission. It is further pointed out that as per the post mortem report, 8 injuries had been suffered by the victim which were all abrasions and as per the report of the post mortem doctor Dr. Gaurav Jain (PW-9), they were not sufficient to cause death of the victim. The cause of death has been opined to be perforated duodenal ulcer and was clearly for the fact that the victim was a habitual drunkard; he had died probably due to haemorrhage in the pancreas and because of his already enlarged liver and spleen. It is pointed out that PW-2 and PW-7 have admitted that Bhim Singh used to drink daily and he along with the appellants used to play cards; they also often used to quarrel one another. The fact that the parties are living in the adjoining house is an admitted fact. It is further pointed out that cross-examination of PW-9 also answers this submission of the appellants who has in his cross-examination admitted that the victim could have died because of ulcer perforation because of his drinking habits. Even when he was taken in the emergency to the Ram Lal Kundan Lal Nursing Home at 04:45 am on 04.05.2002, he was still reeking with the smell of liquor. Knowledge also cannot thus be attributed to the appellants that by their beatings, they had caused the death of the victim. As per the eye-witness account of PW-7, Surender had only caught hold of Bhim Singh whereas Rajender had given him beatings. These beatings were only with hand; there was no extraneous weapon. Knowledge also cannot thus be attributed to the appellants that by their beatings, they had caused the death of the victim. As per the eye-witness account of PW-7, Surender had only caught hold of Bhim Singh whereas Rajender had given him beatings. These beatings were only with hand; there was no extraneous weapon. In these circumstances, death of Bhim Singh has occurred not because of the act of the appellants but because of his medical condition as he was already suffering from ulcers which got perforated because of his daily drinking habits. 9 In the alternate, the second argument of the learned counsel for the appellants is on the point of sentence. His submission is that under Section 304-II of the IPC, the Legislature has prescribed a sentence of imprisonment up to 10 years or a fine and the intent of the Legislature can be gathered from the fact that punishment by way of fine in the alternative, keeping in view the facts and circumstances of each case, may be alone imposed. 10 These arguments had been refuted by the learned public prosecutor. It is pointed out that the version of the eye-witness (PW-7) is clear; the incident had occurred at 11:30 pm on 03.05.2002 and the patient had succumbed to his death within less than 48 hours i.e. at 09:00 pm on 05.05.2002. It is not the case of the appellants that the victim had suffered any other injury in this intervening period. The fact that the victim used to take liquor would not mean that his medical condition was otherwise so serious; it was his daily routine to take liquor. He had but obvious died for the reason that he was beaten and these beatings could have been on the abdominal cavity; the victim had been rushed to the hospital in the early morning hours of 04.05.2002; i.e. victim 5 hours after the incident and had again been rushed back in an emergency condition to the Lal Bahadur Shastri Hospital where on 05.05.2002 at noon; at 02:00 pm he had even become unfit for statement. The cause of death which was abdominal trauma was because of the acts of the appellants. On the point of sentence, learned public prosecutor submits that out of a sentence of 4 years, the appellants have undergone only 1 year and 2 months which includes the remissions earned by them. The cause of death which was abdominal trauma was because of the acts of the appellants. On the point of sentence, learned public prosecutor submits that out of a sentence of 4 years, the appellants have undergone only 1 year and 2 months which includes the remissions earned by them. 11 Arguments have been heard. In the course of the arguments, it has been pointed out by the Court that the conviction of the appellants would not call for an interference as apart from the testimonies of PW-7, PW-2, PW-4, PW-5 & PW-6 as also the medical record are all incriminating pieces of evidence. The dying declaration given to PW-2, PW-4, PW-5 & PW-6 was also a crucial piece of corroborative evidence against the appellants. 12 At this stage, learned counsel for the appellants under instructions from the appellants (who are present in Court today) states that he is not pressing the appeal on merits and his submission on the point of sentence alone be considered. Thus the submission on the point of sentence has accordingly been considered 13 Noting the background in which the incident had occurred, there being no malice attributed to the appellants; the fact that the appellants and the victim used to sit together every day and play cards; they also used to drink liquor in other’s company; they often used to quarrel. The appellants are also the real nephews of the victim. This Court has been informed that even as on date, the parties are living in their same respective residences; the appellants are still occupying the adjoining house where the legal heir i.e. son of Bhim Singh is now residing with his family. The wife of Bhim Singh has since expired. His daughter has been married. This Court has also been informed that the parties are on talking terms. 14 Record shows that out of total period of 4 years, the appellants have undergone a sentence of 1 year and 2 months which included the period of remission earned by them. They have no other criminal background. Their nominal roll shows that at the time of incarceration, their conduct was satisfactory. Since their grant of bail in the year 2006, they have not misused the process of bail; they have been regularly appearing in the matter. They have no other criminal background. Their nominal roll shows that at the time of incarceration, their conduct was satisfactory. Since their grant of bail in the year 2006, they have not misused the process of bail; they have been regularly appearing in the matter. 15 This Court is also conscious of the fact that Legislature has engrafted punishment of incarceration up to 10 years or fine for the offence under Section 304-II of the IPC for which the appellants have been convicted. Having noted the period of sentence already undergone by them and also the fact that they have already paid a fine of Rs.50,000/- (out of which Rs.40,000/- have been disbursed to the legal heirs of the victim), in the fitness of things and in the facts and circumstances, it would be appropriate that the period of incarceration already undergone by them is the sentence imposed upon them. However, the appellants are directed to pay an additional compensation amount of Rs.50,000/- i.e. Rs.25,000/- each which amount shall be paid to the two remaining legal heirs of Bhim Singh i.e. Kumari Radha (PW-5) (daughter) and Sohan Singh (PW-6) (son). This fine be deposited in two weeks. The Investigating Officer/ SHO of PS Trilok Puri will ensure that this sum of Rs.50,000/- is paid to each of the legal heirs i.e. Rs.25,000/- to Kumari Radha and Rs.25,000/- to Sohan Singh. 16 With these directions, the appeal stands disposed of.