Mukesh etc. Vs State of Hy.

The appel l ants namely Mukesh and Sanjeev assail judgment da t ed 14.01.2004 passed by the Additional Sess i ons Judge, Faridabad, vide wh i ch while acc u sed/appellant No.1 Mukesh h as been held guilty of having committed offence under Sections 302 a n d 323 read with Section 34 I P C, accused/ap p ellant No.2 Sanjeev has been held guilty of having commit t ed offence un d er Sections 302 & 323 IPC. T h e appellants have been senten c ed as under:

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Name convic of t	Offence	Imprisonment	Fine
Muke sh	302 read with Section 34 IPC 323 read with Section 34 IPC	Life imprisonment 6 months	Rs.2000/- Rs.500/-
Sanjee v	302 IPC 323IPC	Life imprisonment 6months	Rs.2000/- Rs.500/-

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The matter arises out of FIR No.75 date d 21.03.2000 registered at Pol i ce Station Ko t wali Fridabad, Faridabad under Sections 302, 323, 506, 34 IPC at the instanc e of Anju. The translated gist o f Anju’s statement (Ex.PA) on t he basis of wh i ch FIR (Ex.PA/1) was lodged r e ads as under:

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“I a m resident of New Press Colon y , Faridabad and am doing priv a te servi c e. Yesterday i.e. on 20.03.200 0 at about 11.00 AM, Mukesh a nd Sanjeev, who are residents of A-Block, New Press Colony, Faridabad ca m e to ou r house and asked my brother Sun i l to come out and play Holi, but m y broth e r refused to play Holi. In the m eantime, my other brother Prad e ep came out and Mukesh and Sanjeev trie d to forcibly make him play Holi. M y fathe r also came out and tried to reason out with Mukesh and Sanjeev no t to force them into playing Holi and told t h em to go home. However, Sanj e ev gave a blow with Bahi (wooden leg o f cot) on the head of my father R a m Vrik h , whereas co-accused Mukesh ga v e a blow with stick on the waist of my f a ther, as a result of which my father fell down and became unconscio u s. Muk e sh and Sanjeev also slapped an d punched me. Upon hearing noise com m otion, my fuffad (uncle) came ou t and so did out neighbourer Ka m la. My u ncle Rama Nand and Kamla s a ved us from Mukesh and Sanj e ev other w ise they would have given more b eatings to us. My brother Soni t o ok my f a ther to B.K.Hospital and got him a dmitted.”

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As per pro s ecution, pursuant to a telephoni c message having been received in the Police Post No.2 Kotwali from B. K . Hospital, Faridabad regarding admission of Ram Vrikh, PW-10 HC R ambir alongwith Constable O m Parkash w e nt to the hospital and sought p ermission (Ex.PK) of the Doc t or concerned as regards fitness of Ram Vri k h to make a statement, but t he Doctor dec l ared him unfit to make statem e nt and referred him to Safdarj a ng Hospital, D elhi. Thereafter, on 21.03.2 0 00, PW-10 HC Rambir went to Safdarjang Hospital, Delhi and sought opin i on of the Doctor regarding fitn e ss

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of Ram Vri k h, but the Doctor opined that h e was unfit to make any stateme n t. Since Anju, daughter of Ram Vrikh met H C Rambir, her statement (Ex.P A ) was record e d and sent to police station f or lodging FIR. Thereafter, H C Rambir Si n gh went to the spot and prepared a rough site plan. Statements of witnesses w ere recorded in terms of Sec t ion 161 Cr.P.C. However, R a m Vrikh cou l d not survive and succumbe d to his injuries on 22.03.20 0 0. Inquest rep o rt was prepared. Post-mortem e xamination was got conducted on the dead body of Ram Vrikh on 23.03.2000.

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Both the a ccused were arrested on 23. 0 3.2000. During the course of interrogati o n, accused Mukesh suffered a disclosure statement (Ex.PF) as regards co n cealment of a stick and got the same recovered, which was ta k en into possession vide recovery memo Ex.PG. During the course of interrogati o n, accused Sanjeev also suffer e d a disclosure statement (Ex.P H ) as regards concealment of a Bahi (wooden leg of cot) and got the sa m e recovered, w hich was taken into possessio n vide recovery memo Ex.PI.

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Upon conclusion of investigation, challa n was presented against both t he accused on 10.05.2000 in the Court of Ch i ef Judicial Magistrate, Faridab a d, who comm i tted the case to the Court of Se s sions vide order dated 01.06.20 0 0. Learned A d ditional Sessions Judge, Farid a bad, framed charges against b o th the accuse d for offences punishable under S ections 302, 323, 506 and 34 I P C on 07.09.2 0 00.

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The prosec u tion in order to establish its c a se examined as many as 11 P W s. The gist of t heir testimonies is being briefl y referred to herein under:-

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PW-1 Ins p ector Kehar Singh stated that o n 21.03.2000 while he was pos t ed as S I at Police Station Kotwali Far i dabad, a ruqa Ex.PA was recei v ed

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on the basis of which he recorde d formal FIR (Ex.PA/1) under h is sig n atures.

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PW-2 Dr. D.S.Rathi, Medicial Officer, B . K.Hospital, Faridabad, who at t he firs t instance medically examined Ram Vrikh, proved his MLR as Ex. P B, wherein he described the i njuries found on his person. H e sta t ed that after seeing the CT sca n report, he referred the patient to Sa fd arjang Hospital, New Delhi.

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PW-3 As h ok Kumar, Draftsman, stated t h at on 20.04.2000, he had prepa r ed a s c aled site plan of the place of occurrence and proved the same as Ex. P C.

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PW-4 An j u, who is the complainant, stat e d with regard to the occurrence in the same manner, as got recor d ed by her in the FIR. S he cat e gorically stated that on the da y of occurrence, both the accu s ed wh o were in inebriated state came t o her house and asked her brot h er to p lay Holi with them, but her b r other refused for the same. S he fur t her stated that when her father Ram Vrikh told the accused to go aw a y, they gave a blow with Bahi (wooden leg of cot) to her fat h er. She further stated that they had also inflicted some injuries in their s e lfdef e nce. She further stated that Sanjeev had also inflicted a blow to h er wit h stick hitting her foot.

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PW-5 Par d eep, brother of the compl a inant and son of Ram Vrikh (de c eased), stated that on 20.03.20 0 0 on the eve of Holi, Mukesh a nd Sa n jeev came to their house and c a lled for Sunil asking him to p l ay Ho l i with them, but his brother refused upon which they star t ed in qu a rrelling with his brother an d started abusing him being ine b riated state. Upon commotion having been raised, he as well as his father also came out and his fa t her told the accused to go back to the i r houses and that they do not w ant to play Holi with them wh i ch led to exchange of hot words and h ereafter Sanjeev gave a blow w i th stick on the head of his father. H e clarified the stick to be B a hi (w o oden leg of cot). He stated that Mukesh thereafter gave a blow w ith stic k hitting his arm pit. He stated t h at they also inflicted injuries to t he

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acc u sed in their self defence and that t hereafter, the accused ran away fr o m the spot.

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PW-6 Dr. Alexendar, Specialist and Head of Department, Foren s ic Me d icines Safdarjang Hospital, D elhi, who had conducted postmo r tem examination on the dead body of Ram Vrikh on 23.03.20 0 0, pro v ed the post-mortem report as Ex.PD, wherein he described t he inj u ries found on the dead body a n d opined that the cause of de a th wa s due to carnio-cerebral injuries c aused by blunt force impact.

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PW-7 AS I Krishan Kumar stated that on 2 2.03.2000 while he was posted as Inc h arge at Police Post No.2, NI T , Faridabad, Rama Nand son of Du r ga informed him that Ram V rikh, who had been admitted in Sa fd arjang Hospital, Delhi had expired. He further stated that he h ad got medical examination of Anju c onducted. He further stated t h at pur s uant to Mukesh having surre n dered before the Area Magistr a te on 23.03.2000, he was arrested. H e stated that Mukesh suffere d a dis c losure statement (Ex.PF) with respect to concealment of a sti c k, wh i ch he got recovered and was t a ken into possession vide recov e ry me m o Ex.PG. He further stated t h at on the same day even accu s ed Sa n jeev was arrested, who also m a de a disclosure statement (Ex.P H ) an d got recovered a Bahi (woode n leg of cot), which was taken i n to pos s ession vide recovery memo Ex. P I. He further stated with respect to inv e stigation conducted by him and the documents prepared during t he cou r se of the same and that upon co n clusion of investigation, challan w as pre s ented against the accused.

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PW-8 Ra m a Nand stated that he knew Ram Vrikh (deceased) who w as rel a ted to him being his wife’s bro t her. He stated that on 20.03.2000 it w as Holi and he was present in the house of his Sala (brother- i n- la w ) situated in Press Colony, Fa r idabad. He stated that at ab o ut 11. 0 0 AM, Sanjeev and one more person whose name he does n ot rec o llect came there, while they w ere under the influence of liqu o r. Ra m Vrikh told them that they will not play Holi upon which the s a id tw o persons started quarreling with Ram Vrikh and thereafter Sanj e ev

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ga v e a blow with Paya (wooden le g of cot) on the head of Ram Vrikh and Mukesh also gave a blow with st i ck to Ram Vrikh. He further sta t ed tha t Sunil and Pardeep also caused i njuries to the accused in their s e lfdef e nce in his presence and in the pr e sence of Kamla. He stated that R a m Vri k h was taken to B.K.Hospital f r om where he was further taken to Saf d arjang Hospital, Delhi.

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PW-9 SI R amesh Chander stated that on 2 2.03.2000, when he was posted in Pol i ce Post Safdarjang Hospital, D elhi, a patient namely Ram Vrikh ex p ired and that he had prepared i n quest report in respect of the sa m e an d had also got post-mortem exa m ination conducted.

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PW-10 HC Rambir Singh stated that on 2 1 .03.2000, he was posted as H e ad Co n stable at Police Post No.2 K otwali and that upon receipt of tel e phonic message from B.K.Hos p ital as regards admission of R a m Vri k h in an injured condition, he alongwith Constable Om Park a sh we n t there, but since Ram Vrikh w as declared unfit for making a ny sta t ement, he recorded the statem e nt of his daughter Anju (Ex.P A ), wh o had met him and the said s tatement was sent to the Pol i ce Sta t ion for registration of FIR. H e further stated that during t he co u rse of investigation, he had also recorded the statements of Ka m la, Ra m a Nand, Sunil and Pardeep in terms of Section 161 Cr.P.C. and ha d prepared a rough site plan Ex. P L.

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PW-11 Dr. S.K.Mittal, B.K.Hospital, F aridabad, who had medica l ly ex a mined Anju on 22.03.2000, pr o ved her MLR as Ex.PM, wher e in he d escribed the injuries found on h er person.

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Upon clos u re of the prosecution evidenc e , statements of both the accu s ed were recor d ed in terms of Section 313 Cr.P.C., wherein they denied the ent i re case of prosecution and pleaded false imp l ication. However, the accused in their defe n ce examined 3 DWs. DW-1 Pawan Kumar stated that on 20.03.2000 , there was a festival of Holi a n d about 50-60 persons including himself we r e playing Holi. Ram Vrikh (de c eased) came there carrying a st i ck

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and was dr u nk. He asked Mukesh and San j eev to play Holi with him, but t he said perso n s were not willing for the sa m e upon which Ram Vrikh gav e a blow with s tick to both Mukesh and Sanjeev and the said two persons in their self-defenc e snatched the stick from Ram V rikh and waived the same hitting Ram Vrikh on his head and that neither the complainant nor any of the son of Ram Vrikh was present at the spot. DW-2 Ashok Kumar stated that on t he day of Holi on 20.03.2000 at about 10.00/11.00 AM, 60/70 persons including DW-1 Pa w an Kumar were playing Holi. Ram Vrikh (deceased), who w as carrying a lathi (stick) insisted that Muk e sh and Sanjeev should also p l ay Holi, but S a njeev and Mukesh refused for the same upon which Ram Vrikh inflicted bl o ws with lathi (stick) to them and that Sanjeev and Mukesh, in their self-d e fence, snatched the lathi (stic k ) and gave a blow on the head of the deceas e d and that neither Anju nor an y of her brother was present at t he spot. DW-3 Surendar Kumar, Senior Sto r e Keeper (Record), B.K.Hospi t al, Faridabad, who had brought the summ o ned record pertaining to M L R No.92/AS/ B KH/2000 and MLR No.86 / AS/BKH/2000, stated that he identified t he hand-writing and signatur e s of Dr. Anupama Seth on t he aforesaid M LRs and proved the same as Ex.DA and Ex.DB respectively.

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The learne d trial Court, upon considering t he evidence brought on record by the prosec u tion and also by the accused, h e ld that the charges framed agai n st the accuse d for offences punishable under S ections 302, 323 & 34 IPC stood duly prove d and accordingly sentenced the m as mentioned above.

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Learned co u nsel for the appellants, while assailing the impugned judgme n t, submitted t hat it is a case where Ram V rikh (deceased) himself was t he aggressor, who while in inebriated stat e , inflicted injuries to both t he

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accused/ap p ellants in order to force them t o play Holi with him and that t he accused be i ng attacked by the deceased act e d in self-defence and snatched t he lathi (stick ) and had inflicted a single blow to him which unfortunately led to his death. Learned counsel in this regar d have drawn the attention of t h is Court to th e MLRs (Ex.DA and Ex.DB) to h ammer forth their contention t h at in fact it is Ram Vrikh (deceased), who h a d attacked the accused/appella n ts. Learned c o unsel further submitted that under these circumstances, it is apparent t h at the accused/appellants had a cted in their self-defence and as such, cann o t be held guilt of having murde r ed the deceased.

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Opposing t h e appeal, learned State counse l submitted that it is a case wh e re the case of prosecution stands duly established from the testimony of P W -4 Anju (com p lainant), wherein she categori c ally stated that both the accu s ed had come t o their house and were insisting t hat the brother of the complain a nt should also play Holi with them and when o ther brother of the complainant as well as her father objected to the same, bot h the accused gave beatings to h er father leadi n g to his death. It has been sub m itted that the aforesaid testimony of Anju sta n ds corroborated from the testi m ony of PW-5 Pardeep Kumar and that the medical evidence is also in tune w ith the ocular version and that t he plea of se l f-defence set up by the accu s ed does not inspire confiden c e. Learned St a te counsel, thus, prayed for dis m issal of the instant appeal.

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We have considered rival submissions ad d ressed before this Court and w i th the assistance of learned counsel have also p erused the record of the case.

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Since it is a case where the prosecution all e ges that the accused had inflic t ed injuries wi t h the help of Bahi (wooden leg of cot) and a stick on his h e ad

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leading to h is death, it is apposite to first o f all refer to the medical evide n ce in this reg a rd. The occurrence had taken place on 20.03.2000. As per t he case of pr o secution immediately after t h e occurrence, the deceased w as initially ta k en to B.K.Hospital, Faridabad. The prosecution has exami n ed PW-2 Dr. D .S.Rathi, Medicial Officer, B. K .Hospital, Faridabad, who at t he first instan c e medically examined Ram V r ikh on 20.03.2000 and descri b ed the followi n g injuries found on his person:

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“1. Ther e was a left black eye was prese n t. Advised X-ray skull lateral a nd A.P. view.

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Ther e was an abrasion 25x.5 cm siz e was present over the left side of fore h ead. 1 cm above the left eyebr o w.”

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However, R am Vrikh was referred to the Safdarjang Hospital, New Del h i, where he b r eathed his last on 22.03.2000. T he prosecution has also exami n ed PW-6 Dr. A lexendar, who had conducted t h e post mortem examination on t he dead body o f Ram Vrikh on 23.03.2000. H e proved the post-mortem rep o rt as Ex.PD a n d described the injuries found o n the dead body as under:

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“1. Black e y e on the left side.

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Abrassi o n on the left side of forehead an d lateral aspect of left eye. Size w as 5cm x 3 c m.”

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PW-6 Dr. A lexendar opined that cause of d eath in this case was due to car n io cerebral in j uries caused by blunt force i m pact. PW-6 Dr. Alexendar w as briefly cross-examined on behalf of the acc u sed, but nothing substantial co u ld be elicited d uring the course of his cross-e x amination so as to either doubt h is veracity or h is opinion.

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Coming to the statement of PW-4 Anju (c o mplainant), she has categorica l ly stated that o n the day of occurrence i.e. 20.03.2000 at about 11.00 AM, b o th the accuse d Mukesh and Sanjeev had com e to their house and started forcing her brother Sunil to play Holi, but her brot h er refused to play Holi and that in the meanti m e, her other brother as well a s her father also came there a nd when her f a ther tried to reason out and told Mukesh and Sanjeev to go to their houses, Sa n jeev took a Bahi (wooden leg of cot) and gave a blow with t he same to he r father. PW-4 further stated t h at Sanjeev thereafter gave anot h er blow whic h hit on his (Ram Vrikh) arm pit.

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To a simila r effect is the statement of her b rother PW-5 Pardeep Kumar, who categorical l y stated that both the accused while being drunk had come to th e ir house and w ere forcing his brother to play Holi and when his brother refu s ed for the sam e , they started quarrelling with h is brother. PW-5 stated that in t he meantime h e and his father came out and objected for the same and when h is father told t he accused to go back to their h ouses, there was exchange of h ot words upo n which Sanjeev gave a blow w i th stick on the head of his father. He also cla r ified that the said stick was in t h e nature of a Bahi (wooden leg of cot). He fu r ther stated that another blow w a s given with a stick on the arm p it of his fat h er. The existence of injuries on the person of Ram Vrikh (deceased) stands fully established fro m the medical evidence. Ap a rt therefrom, the complainant (PW-4 An j u) herself was injured in t he occurrence as is also borne out from the m edical evidence, as she was fo u nd to have su s tained one abrasion on her an k le joint as specifically stated by PW-11 Dr. S.K.Mittal.

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Although t h e accused have tried to paint a d ifferent picture about the incid e nt by stating t h at it was the deceased, who in a n inebriated state, insisted upon to play Holi w ith the accused, but the said de f ence neither appeals to reason n or is borne o u t from the medical evidence in a smuch as the post-mortem rep o rt does not s h ow that the deceased had con s umed liquor. Neither PW-2 D r. D.S.Rathi h as recorded any such observat i on regarding the deceased having consumed l iquor and nor PW-6 Dr. Ale x endar, who had conducted postmortem ex a mination on the dead body of R am Vrikh, found anything in t h is regard. As such, the defence plea taken b y the accused/appellants cannot be accepted. T he accused/appellants cannot even derive any benefit from t he factum of e xistence of some minor injurie s on their person inasmuch as their medical w a s got conducted on 23.03.2000, whereas the occurrence had ta k en place on 2 0 .03.2000. As such, the findings of the trial Court to the effect t h at Ram Vrik h (deceased) lost his life on account of injuries inflicted by t he accused do e s not suffer from any infirmity a nd the same are hereby affirme d .

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The materi a l question that would still surv i ves is as to whether in the pres e nt case where the accused are alleged to hav e inflicted two injuries with bl u nt edged wea p on would constitute an offence punishable under Section 302 I P C or as to w h ether it is the provisions of S ection 304 IPC, which would be attracted.

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Admittedly, it is not a case where there w a s any prior enmity of the accu s ed with the d e ceased. It cannot even be said that they had gone with any p r e- meditation or with an intention of killing a nybody. Though it goes with o ut saying tha t the accused/appellants themselves are responsible for having

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created the circumstances leading to dea t h of Ram Vrikh (deceased), b ut having reg a rd to the fact that the weapo n s used are in the nature of B a hi (wooden leg of cot) which one of the acc u sed had picked up from the s p ot and the oth e r co-accused was carrying a sti c k and the entire development w as instantaneo u s inasmuch as a quarrel app a rently ensued when the decea s ed tried to rea s on out with the accused and t o ld them not to force them to p l ay Holi and to go away, which apparently di d not go well with the accused a nd they attacked the father of the complain a nt i.e. Ram Vrikh (deceased), it cannot be s aid that the accused intended to murder the deceased. At t h is stage, it is a pposite to refer to definition o f Section 300 IPC, which reads as under:

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300. Murder. - Except in the cases here i nafter excepted, culpable homicide is murder, if the act by which the death is cau s ed is done with the intention of caus i ng death, o r –

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Second ly . - It is done with intention of cau s ing such bodily injury as the offen d er knows t o be likely to cause the death of the person to whom the harm is caused, or – Thirdly. - If it is done with the intention of c ausing bodily injury to any person a nd the bod i ly injury intended to be inflicted is s u fficient in the ordinary course of nat u re to caus e death, or –

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Fourthl y . - If the person committing the act k nows that it is so imminently danger o us that it m ust, in all probability, cause death o r such bodily injury as is likely to ca u se death, a nd commits such act without any excuse for incurring the risk of caus i ng death o r such injury as aforesaid.

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Exception 1. - When culpable homicide is not mur d er. - Culpable homicide is not murde r if t h e offender, whilst deprived of the p o wer of self-control by grave and sud d en provocation, causes the death of th e person who gave the provocation or c a uses the death of any other person b y mistake or accident. T he above exception is subject to the fo llowing provisos:-

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First. - That the provocation is no t sought or voluntarily provoked by t he offender as an excuse for killing or d oing harm to any person.

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Secondly. - That the provocation is n ot given by anything done in obedie n ce to the law, or by a public servant i n the lawful exercise of the powers of such public servant.

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Thirdly. - That the provocation is n ot given by anything done in the la w ful exercise of the right of private defe n ce.

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Explanation. - Whether the provo c ation was grave and sudden enough to prevent the offence from amountin g to murder is a question of fact.

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Exception 2. - Culpable homicide is not murder i f the offender, in the exercise in g o od f aith of the right of private defence of person or property, exceeds the po w er g iven to him by law and causes the d eath of the person against whom h e is e xercising such right of defence without premeditation, and without a ny i ntention of doing more harm that in necessary for the purpose of s u ch d efence.

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Exception 3. - Culpable homicide is not murder i f the offender, being a public servan t or a iding a public servant acting for the advancement of public justice, exce e ds t he powers given to him by law, and causes death by doing an act which h e, i n good faith, believes to be lawful a n d necessary for the due discharge of his d uty as such public servant and wit h out ill-will towards the person wh o se d eath is caused.

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Exception 4. - Culpable homicide is not murder if i t is committed without premeditatio n in a sudden fight in the heat of passion upon a sudden quarrel and without t he o ffenders having taken undue adv a ntage or acted in a cruel or unus u al m anner. E xplanation. - It is immaterial i n such cases which party offers t he p rovocation or commits the first assa u lt.

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Exception 5. - Culpable homicide is not murder w hen the person whose death is caused, b eing above the age of eighteen year s , suffers death or takes the risk of death w ith his own consent.

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The facts o f the present case, as enumer a ted above, would fall within t he ambit of E x ception 4 inasmuch as there w a s no premeditation on the part of the accuse d and it was a sudden developm e nt leading to a fight wherein b o th the accuse d inflicted one injury each t o the deceased with blunt ed g ed weapon in the nature of Bahi (wooden le g of cot) and stick. As such, t he accused/ap p ellants are guilty of having co m mitted offence punishable un d er Section 30 4 Part II IPC. Consequently, t h e conviction of the appellants is altered fro m Section 302 IPC to Section 30 4 Part II IPC.

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Further ha v ing regard to the facts under w h ich the occurrence took place a nd keeping in view the fact that both the accused/appellants have alre a dy undergone s ubstantial period of imprisonm e nt inasmuch as accused/appell a nt No.1 – M u kesh had undergone more t h an 06 years & 08 months a nd

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accused/ap p ellant No.2 – Sanjeev had un d ergone more than 05 years & 02 months, th e sentence as imposed by the trial Court is reduced to the o ne already un d ergone. However, the fine shal l remain unaltered.

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