Tilisra v. State (Nct) of Delhi

KAUR, J. For order see Crl.M.A. No.791/2010. JULY 29, 2013 nandan INDERMEET KAUR, J KAILASH GAMBHIR, J \ JN THE HIGH COURT OF DELHI AT NEW % Judgment reserved on : 24.07.20]3 Judgmenl delivered cm: 29.07.2013 + CRL.A. 791/2010 ' KAMALKISHORE•SINGH@ PANDIT Appellant Thj-ougli: Mr.A.K.Trivedi, Advocate. versus THE STATE (GOVT. OF NCT) DELHI Respondent Thjcough: Mr.Sunil Slianna, .Addl. Public Prosecutor. + CRL.A. 1014/2010 MUNNI LAL Appellant Tlu'ough: Mr.R.K.Aiiand, AdA/oca.te. versus THE STATE.(GOA/T.OF NCT) DELHI Respondent Tln-ough: Mr.Sunil Shanna, Addl. Public Prosecutor. + CRL.A. 1239/2010 TILISRA Appellant Through: Mr.S.B.Dandapani,Advocate. • • versus THE STATE (GOVT. OF NCT) DELHI Respondent Through: IVh-.Sunil Shaima,. Addl. .Public Prosecutor: CRL.A. Nos.791/2010,1014/2010&1239/2010 Pa"e i or27 ! CORAM: HON'BLE MR.JUSTICE KAILASH GAMBHIR HON'BLE MS. JUSTICE INDERMEET KAUR P

MDERMEET KAVR, J.

¶1The appellants ai'e aggrieved by the impugned judgment dated

15.4.2010 vide which they had been convicted for the offence under Section 302 read with Section 120B (1) of the IPC. Accused Munni Lai and Tilisra had been farther convicted under Section read with Section 34 IPC. Vide order of sentence dated

15.4,2010 all the three convicts had been sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/-each in default of payment of fine to undergo R1 for two months for the offence under Section 302 read witli Section 120B

(i) of the IPC. Accused Munni Lal and Tilisra were.fluther sentenced to undergo RI for two years and fine of Rs.lOOO/- each in default of payment of fine RI for one month for the offence under Section 452 read with Section 34 IPC. All the sentences were to mn. concuiTentl}/.- Benefit'ofSection428 of the Code of CriminalProcedure(hereinafter refeijedto as the Code) had been grantedto theappellants. The version of the prosecution was unfolded on the statement of CRL.A. Nos.791/2010,.1014/2010& J239/2010 Page2of27 I IV Sanju Devi.(who' later on died) and the initial offence registered under Sections 323/324/452/34 IPG was converted to an offence under Section 302/120B(l)/452/34 IPG. Her statement was recorded by SI Jitender (PW-14) in the hospital after he had obtained a fitiiess.on his application (Ex.PW-14/A).Hie statement(Ex.PW-14/Al)is to the effectthatSanju Devi was living in her jhuggi at Nehru Nagai; Anand Paithat; at about

9.30 PM on22.7.2006wliileshe was preparinga mesil in herjhuggiher neighbour accused Muimi Lai and his wife accused Tilisra entered her jhuggi and told her that there was no one to save her; she had been saved eaiiier; they asked her to vacate the jhuggi; the victmi refused to vacate it; thereupon Tilisra caught hold'of the hair of the victim and staited beatingher with her legs and fists; her husbandMunni Lai who had a danda in his hand staited beating her witli the danda. The victim• receivedinjuries. ThereuponMunniLai took outasliaipedgedweapon fi-om his right pant pocket and attackedthe victim on her aims; her ' neighbour Vijay Laxmi (PW-5) rushed in. The accused persons ran away. . 3 Pursuant to this statement the initial FIR had been registered , CRL.A.Nos.791/2010,1014/2010&1239/2010 , Page3of27 SJ J5 undertlie aforesaidprovisionoflaw but afterthe'Adctimhad succumbed to her injuiieson'24,7.2006(two days afterthe incident)the offencewas convertedto tlie offence of murder. The name of the third accused Kamal.Kishorehad surfacedin' tlie disclosurestatementof the othertwo, accused,pui'suantto wliich the conspiracyhatchedby all three ofthem had emanated. Furtherversionof the prosecutionis that KumariSavitii(PW-8), daughterof the deceased(aged about 12 yeai's) had seen the incident; she was in the jhuggiat tliattime. She deposedtliat accusedMunni Lai was aimed with, a danda and his wife Tilisra both entered their jhuggi; Tilisracaughthold of hermotherwhereasMunni Lai startedbeatingher mother with tire danada. Accused Kamal Kishore was also present and he also staited beating her mother with fists and kicks; they asked her motlier to vacate the jhuggi. PW-8 became alamied and rashed to the house of her aunt (mausi) who was living neaity and nairated the incident to her. The aunt of PW-8, Manju Devi has been examined as PW-4; she has coiToborated the version of PW-8. On hearing this incident from her CRL.A. Nos.791/2010, 1014/2010 & 1239/2010 Page 4 of27 V-niece she mshed to her sister's jhuggi where she found SanjiiDevi lying on tjie floor having injurieson her left aim and biife injuiy on her right forekiTi and she was ciying with pain. Sanju Devi disclosedto PW-4 that she had been injured by Munni Lai and Tilisra who had after attacldng her run away. She further disclosed that tliis incident had occuiTedat the behestofKaiiial @Babawho wantedthejhuggi. PGR was infonnedat 10.00 P.M. DD No.37A (Ex.PW-3/D)was recoi'dedon 22.7.2006at 10.12 PM notingthe informationabout Sanju Devi wife ofDinesh Rao had been attackediivherjhuggi. This DD was markedto PW-14, who on reachingthe spot had noted that the injured had alreadybeenremovedto tiiehospitalby H.C. MalienerPal (PW-15) who was on PGR duty at thattime. PW-14recordedthe statementofthe injuiedmthe hospital. The raldca was handed over to Gonst. Pawan (PW-7)pursuantto whichthe FIR (Ex.PW-3/A)was registered. ,? At the spot rough site plan Ex.PW^14/C was prepared and fliereafter tlie scaled site plan was prepared by SI Mahesh Kiiinar (PW-12) vide memo Ex. PW-12/A depicting the mcident having ocemxedmsidethejhuggiofthe victim. Statementofthe witnesseswas CRL.A. Nos.791/2010,r014/20]0&1239/2010 recorded. Crime team was summoned and photographs of the spot Avere talcen; the}' were however, not proved. The MLC (18157) of the victim was prepared on 22.7.2006; it has been proved as Ex.PW-l/A noting sharp injuries-witbi.a blunt weapon upon the person of the victim. Victim had been admitted to the surgical unit for surgeiy. She died two days later i.e on 24.7.2010. Post moitem on the deceased was conducted by Dr.S.Delia. The post moitem report Ex. PW-IO/B was proved by Rishi (PW-10); he had identified the signatures of Dr. Deha who had since left the hospital. Death summaiy of the victim was also proved by him as Ex. PW-10/A. 9 . Ex.PW-lO/B had noted 14 injuries upon the victim; they read as follows; "1. One surgical stitched wound Rt pai-amedianhnear wound of 21 crii and 25 nos of stoappler on it, on opening the wound the muscle, skin and •peritoneum areastitchedin la^'ers,abdominalcavitydeep (spleentoiydone), stump of spleentoiywound witli clot around it detected perineal cavit)' is filled with blood (liquid). On the drain outlet is seen on the left lumbere region of the abdomen, blood oozing out from it. CRL.A.Nos.791/2010,1014/2010& 1239/2010 Pa"e6or27

¶2• Stitchedwound OA'er the right foreaj-m^'erticallj'placedwith 4 (four) -silk threads, on opening 5 cm X .5 cm wound of muscle depth detected lacerated. Contusionover the right elbo^v, 3 cm verticallyof5 cm X2 cm bluish bro-wnish colour. Contusionoverthe rightforearm2 cm X1cm brownishblue colour 5 cm below-rightelbowon the dorsal aspect. , ^ • Contusionoverthe rightarm of5cm X3cm and 1-5 cm belowtip of the shoulder bluish brown colour. - . Contusionover the left artenorofthe chest 10 cm from the tip ofthe shoulderof5cm X2 cm and bluish blowiicolour, . Abrasion over the left knee joint lateral side of 1cm X1cm of broMiish black colour Abraded contusionot1cm X1cm over the left legjust belowthe left laiee of broATOcolour . 9, Abraded contusion over the right leg radish black in colour Post mediaJlyand 10 cm aboverightmedialmallevlo.us. • '0 detMedover the buttocicor. the rightside of20 cm X10 cm areaand 10 cm belowrightbackwardsfrom rightiliaccrest n P®™"™.3eontheleflbuttockofl5cmandl0cmtu-eaofl5cm V j°"c,r 0" ""'h bullocks 12 Con,us,on8c,". 2cm de,ec,edover the rightrenal angle on secoo haemotomaOfunderlying detected. CRL.A.Nos.79-1/2010,1014/2010&1239/2010 Page 7 of27 v.. V p ^ Abrasion over the left to web space of 2x0,5 cm brownish blue colour. •, Abraded contusion over left sub postal region of 2 cm x 1 cm and 24 cm above left iliac crest and 17 cm below left nipple radish bro^l^'ncolour," The cause of death was recorded as shock and haemoiihage consequent to the mjuries sustained. All the injunes were ante mortem and consequent to the blunt force; except injuiy no,l all injuries could have collectiA^elycaused the death of the victun. The accused persons were arrested. Accused Telisra was airested vide m.emo Ex. PW-16/A at the pointing out of PW-5; her disclosure stateinerit Ex.PW-14/D was recorded. Accused Kamal Kishore was aiTested vide memo Ex. PW-14/F md his disclosure statement Ex. PW- .14/Hwas recorded. SubsequentlyaccusedMumii Lai was apprehended aiid aiTestedvide memo Ex. PW-14/I, his disclosure statement Ex. PW-14/K was recorded. Pursuantto tliis disclosurestatementhe had got recoveredthe weapon of offencei.e. adandameasuringtwo feet which was seized and talcen into possessionvide memo Ex. PW-14/2;it was sealedwith the seal ofMKS; tlie placeofincidentwas also pointedoat • by him vide memo'Ex. PW-14/.N. CRL.A.Nos,791/2010,1014/2010&1239/2010 Page8of27 The subsequentopinion of the doctor on the weapon of offence was obtained by Inspector M.S. (PW-18) vide opinion Ex. PW-18/C •who had opined that this weapon could have caused injuriesupon the victim. • On the basis of the aforenoted collected evidence the accused persons were charge sheeted and charges under Section 302 read with Section 120B (1) of the IPG were framed against all three of them. A sepai-ate charge under Section 452 IPG read with Section 34 IPG,was framed against accused Munni Lai and accused Tilisra. The prosecution in support of its case had 'examined 19 witnesses. Statement of the accused persons were recorded under Section 313 of the Gode who pleaded innocenceand stated that they havebeen falselyimplicatedinthe presentcase.

¶15No evidence was led in defence.

¶16The accused persons were convicted and sentenced vide the UTipugnedjudgment. Thisjudgmentis the subjectmatterofappeal. On behalf of the appellant Munni Lai arguments have been CRL.A.Nos.791/2010,.1014/2010&1239/2010 y^^^1 addressedby Mi-.R.K.Anand,Advocate. Attentionhas been drawn to the testnnony of PW-4, the daughter of the victn-n; who has been projected as an eye-witness as also PW-8, the sister of the victim. Learnedcounselfor the appellantpointsout that there are discrepancies inthe aforenotedtwo versionsand theprosecutionhasfailedto establish that PW-4 was inlivingwithher motherattlierelevanttime; it has been ai'guedthat the victim and her husband did not share coidiallelations and their daughterPW-4 was in fact living with her father in U.P.; she was not an eye-witness. Even otheiVisePW-4 and PW-8 both have statedthattheyhad accompaniedthe victimto the hospitalbut this stand stood conti'overtedby PW-15 who had removed the injured to the hospitaland has categoricallyin his cross-examinationadmittedthat the sister and the daughterof the victim had not accompaniedhim to the hospital. Attentionhas also been drawn to the medical report of the victim i.e. the MLC Ex.PW-l/A. It is pointed out that the versions of the PW-4 and PW-8 that the victim had been discharged after a prima facie check-up and appeai-edto be nomial and it was only on her way home that she felt faint and was taken back to the hospital but this version of PW-4 and PW-8 is not borne out from Ex.PW-l/A which has neitlier CRl...A, Nos.791/2010, 1014/2010 & 1239/2010 , noted any discharge nor has any re-admission been noted in the said MLC. The two versions cannot be reconciled. Learned comisel for tlie appellant submits that at best this could be a case of knowledge on the .part of the accused persons tliat by ttieii"act they could have caused such injmies upon the person of the victmi which had led to her death;'there was no premeditation and common intention on the part of the accused to cause murder of the victim; the conviction is liable to be set aside. To support this submission, learned counsel for the appellanthas placed' relianceupon the judgmentsof tlie SupremeCourtreportedas (2011) 2-see (prl.) 110 SatishNaravanSawanti;. State of Goer. (2011) 1 SCC

(Crh) 352 Dhan Sin^h v. State ofHarvana as also anotherjudgmentof the Apex Court report in (2005)'9 SCC 71 Shanker Naravan Bhadolkar Vs. State ofMaharashtra. Submissionbeing in all these casesthat even graver weapons of offencehad been used and the injurieshad been on vitalpaits ofthe bodyyet in all the aforenotedcasesthe Apex Courthad thoughtit a fit case to reducethe offenceofmurderto an offence under •'^Section304 Pait-II ofthe IPC. Learnedcounsel for the appellantthus submits that the convictionof the.appellantcan at best be one under • Section 304 Part-II of tlie IPC. CRL.A.Nos.791/2010,1014/20,10&1239/2010 Page 11 of27 vj . On behalfof accusedTilisai-aargumentshave been addressedb,y AdvocateMi\ Dandapani, He has adoptedthe stand talcen by counsel for the accused Munni Lai. It is pointed out that the role ascribedto Tilisai-ais evenlesserthat thatofMunni Lai as MunniLai was.caiiying a danda whereas Tihsra was unaiined; even as per the version of the I prosecutionshe had hit the victnn only by fist Eind blows. Conspiracy has also not been established. On behalfof the accused Kainal Kishore ai'gumentshave been addressedby AdvocateMi-.Tnvedi. It is pointedoutthat apartfrom the disclosuiestatementofthe co-accusedno otherevidenceis forthcoming againsthim; evenpursuantto the disclosurestatementofthe accusedno lecoveryhas been effected. There is, thus, no evidencein tlie eye of • law. Attentionhas been drawn to the versionof PW-4 and PW-8 who have been projected-as-star witnessesof tlie prosecution. Submission bemgthatmthen-statementsrecordedunderSection161 oftlie Codeno roleofbeatinghadbeen ascribedto Kamal@Baba Hisnamehas been reflectedfor the fu-st time only in tlieir depositionson oatli in court • which IS amatenalimprovementqua theii-versionsbeforethe police, CRL.A.Nos.791/2010,1014/2010&1239/20]() ' V Zi No reliance can thus be placed upon such an evidence. Accused Kamal @ Baba is entitled to an acquittal. Argun;ients have been rebutted by the prosecution. Learned Public i' Prosecutor points out that the testimony of PW-8'who is an eye-witness remain untarnished. Her statement was coiToborsLted by her mausi PW-4. The medical report also speaks volumes. The cause, of death was the result of injuries inflicted upon the victim by the accused person; the conviction call for no interference. Record has been perused. The informationabout the incidenthad been receivedby PW-15 H.C. MahenderPal Singh who was on duty and In-charge of PGR at about10.00PM on the fatefulday. He had on reaching the spot removed the injm-ed to the DDU Hospital. He conveyed this informationto the local police stationwhich was recorded in DD No.54 B (EX.16/A) and which had noted the time as 10.12 PM. This informationwas to the effect that one Sanju Devi had received stab injuries and the information'had been conveyed by her daughter. CRL.A,Nos.791/2010,1014/2010&1239/2010 ' Page 13 of27 Ex.PW-16/Awas marked to SI Jitender (PW-14) who was the mitial. investigatingofficerof this case. On reaching the spot he noted that injuredhas aheady been removed to the hospital by' PW-15; she had been admitted vide-MLC No.l8157. The time of admission was recorded as 11.25 PM by Dr.Rishi(PW-1). The MLC fhither notes a histoiy of assault on the victim. Patient, lioweA^er, appeai'ed to be consciousand well orientedat that tune. Her pulse was recordedat 78 beats per minute; her blood pressure was noted as 100/60. Three injuiieson local examinationhad beennoted; i. Clearincisedwoundon left forearm3x0.5x 0.5 cm. ii. Clearmcisedwoundon lefthand 2"''webspace'2x0.4.>:0.4 cm. iii. Tendernessoverleftside oflowerchestabrasionpresent. PW-1 has categoricallydeposed that no abnonxialitywas detected clinicallyat thattime;patientwas keptunderobsen/ation. It was at this pointoftime that PW-14 had obtainedafitnessfrom concerneddoctor vide his applioationEx.PW-14/A;the statement of the injured Saitju Devi was recoi-dedas Ex. PW-l/Al. This statementhad describedthe incident;victimhad toldthe10 thataccusedTilisaiaand accusedMunn. Lai had enteredher Jhuggi and wMe Tilisaiapinned her down on the CRL.A.Nos.791/2010,1014/2010&123.9/2010 PageJ4of^7 floor by catchinghold her hair and beat her with fists; Munni Lai had beaten her with a danda and had also attackedher on her foreaims ^vith a. shaip object; she started.ciying in pain. Her neighbourV]>y Laxmi (Pw-5) reachedtlie spot No role had been attributedto Kamal Kishore. •It was on this statementthat the FIR (Ex.PW-3/A)was registered;it was at 2.30 AM on 23.7.2006. A fu'st infoimationreport relates to a comnissionof an offence gn^en to the police and recordedby it under Section 154 of the Code. Commentingon tlie object and value of afirst infonnationreport; the SupremeCourt in SheikhHasib Tabarakv. The State ofBihar AIR 1972 SC 283 has noted as under: The piincipaJobjectofthe first informationreportfrom the point of view-- of the informantis to set the criminallaw in motion and irom' the point of view of the mvestigating autliorities is to obtain information about the allegedcriminalactivityso as to be ableto talvesuitable-stepsfor tracingand •bringingto book®ie guiltypait^'.The first'informationrepoit^^.e may point out does' not constitute substantive evidence though its importance as •conveying the eai'liest information regai'ding the occurrence cannot be ' doubted. It can, however, only be used as a previous statement for the puipose of either corroboratingits maker under Section 157 of the Indian Evidence Act or for contradictinghim under Section 145 of that Act It --cUctm^otW •• 1 age .15 q[21 V-witnesses." Apart &om tlie fact that lodging of an mfonnation under Section ; 154 Cr.P.C. keeps tlie District Magistrate and the Superintendentof ^PoliceinfonnedoftheoccuiTenceand whenrecorded,it infact becomes the basis oftlie case set up by tlie iiifonnantand providesmaterialto the policeto commencemvestigation.Its fundamental'objectis that it,acts as a safeguardagainstembellishiiient;exaggerationand'fbrgetfulness.It may not constitute a substantive piece of. evidence, but it is a conveyanceof the iiiforaiationat tlie earliestand cannotbe doubted, In the instant case the sequence of eAddence shows that the incidenthaving occmxed at 9.30 PM arid the PGR having reachedthe spot at about 10.00 PM. Attar Singh (PW-2) ownerofthe STD booth from where the PGR call was made between9-10 PjM-by ayoung girl aged 11-12 years is also coiToborative.DD eiitiy in the local police station having been recorded at 10.12 PM and thereafterthe^ mjured having been broughtfi-om her residenceat AnatidParbhatto the DDU Hospital(whichitselfmighthave talcen40-45 minutes); the MLG (Ex. PW-l/A) mentionsthe time of anival at 11.25 PM at Avliich time the CRL.A.Nos.791/2010,1014/2010&1239/2010 pg"g patient also appeai'ed to be conscious and well oriented. It was in this • inteiTeningperiod tliat PW-14 recorded tlie statement of Saiiju Devi whichhadthen becomethe basis of the FIR. This seqaenceof events as detailedin tlie oculai-testimoii)/of the witnesses(PW-4, PW-8, PW-14 and PW-15)matchedthe recordedinfomation,both in the DD entiy as also in the MLC. PW-8 is an eye-witness. She is tlie daughterof the victim; she was agedlessthan 12 yeai'sat tlietimeofincidentaaid approximately12 years at the time of depositionin tlie Court. Her statementrecorded beforethe Magisfateas also on oath in Court was after apreliminaiy round of questionsput to her to enable the Coiut to draw a conclusion •that she was able to intelligentlyand rationally understand the sai'd queries. She had matched her statementon oath witli her statement recordedbeforethe police. She categoricallystatedthat on 22"'' day of the month at about 9.30 PM while she was in the 'Chapper'in front of hei jhuggi(beingapaitofthejhuggi)she saw both the accusedTilisai'a and Munni Lai come inside theirjhuggi; Mumii Lai was anned with a danda. Tilisaracaughthold ofher motherfrom her hair and pinnedher CRL.A. Nos.791/2010..1014/2010&J239/2010 down-to the ground; Munni Lai started beating her mother with danda blows. Her mother raised alam and Baba (third accused),thereafter started beating her mother with fists and kick blows; they were all asldngher motherto vacatethejhuggias Baba@Kamalhad atent shop adjacentto theii" jhuggi. Pohce was called. Her ma,usi Manju Devi (PW-4) livingcloseby wasinfonned. Wien PW-8 returnedback to her jhuggi along with PW-4 she saw her mother lying unconscious. Her motlierwas removedto tlie hospital. In her cross-examinationshe has stuck to her stand. She deniedthe suggestionthat she was not an eye witness. She admittedthat in her statementunder Section 161 of the. Code she had not mentioned that Baba @ Kamal had attacked her mother;she has also admittedthatinitiallythe doctorhas dischargedher mothei but thereaftershe was re-admittedbecause after her discharge she had fainted; she had Ihitheradmittedthat she had gone to hospital witli her mother and mausi. PW-4, the mausi of PW-8, has couoboratedthis version ofher niece. Her depositionis to the effectthat at 9.30 PM her neice came to her jhuggi infonnmgher that her motherhas been attackedby Munni CR1"A.Nos,791/2010,1014/2010&1239/2010 18 of27 Lai and Tilisara. Onher reachingthejhuggiof her sistershe found her sister lying in a pitiable condition;her sister infomied her that she had been beaten by danda blows by Munni Lai and Tilisra had given her fists and kick blows; they had both entered her jhuggi asking her to vacate it. In her cross-examination she had stated that she had accompaniedhersisterand nieceto the hospital. She admittedthat after the t-eatmentwas givento her sister,she was dischargedand when they were on the way back since her sister became unconsciousshe was tal^en back to the hospital re-admited; She was advised X-ray and 'ultrasound;blood was also administeredto her as shehad undergonea surgeiy;she died on tliefollowingday becauseofaspleenruptured.. This testhnonyof PW-4 mfact discloses diat Saiiju Devi had made a dying declarationto her, which statementhad then becomethe basis of the FIR. Not only can the FIR which is arecordeddocument (witliinless than five houi'sfi'om the timeofmcident)be disbelievedbut tlie statementof PW-4 which is in coixoborationof the testimony of PW-8 also shows no reason as to why tlie aforenotedaccusedpersons wouldbe'implicatedfalsely. In fact no suggestionhas also been given CRL.A.,.Nos,791/2010,1014/20]0&1239/2010 ' p,g,jc; V 3/ to.eitherPW-4 or PW-8 on tliis count tliat they'weredeposing'falsely and againstthe acpusedpersonsfor anyulteriormotive. • 29 The medicalrecordwhichis the MLC and the postmortemreport also substantiates the A/ersion of the prosecution. The MLC (Ex. PW-l/A)shows thatmitiallywhen tlie patienthad been,broughtui she appeai-edto be conscious and well oriented; there W3§ no clinical abnoimality.Thereafterwithin a span ofless than a few hours she was admitted to tlie surgical unit of the hospital where she was operated upon. Dr. SanjaySingh; SeniorResidentSui-geiy,of tlie DDU Hospital has clarifiedtliat the patientremainedin the Hospital and vvas not re admittedafter discharge. TestimonyofPW-4 and PW-8 on this count can be reconciled by the fact tliat the patient'wasnever foimally dischai-gedeven though the doctor who had prepared'herMLC had noted that she was clinic^lynonnal. She had in fact been kept under obsei-vation. PW-4 and PW-8 at that pomt decidedto take the patient home when on the way patienthad faintedand was thenin an emergent, condition admitted in the surgical unit. The death summaiy report' (Ex.PW-10/A)evidencesthat the patient had been operated upon^on CRL.A.Nos.791/20]0,1014/20J0&1239/2010 . • Page20or2'' V

23.7.2006for a spleenmptnre; at 6.25 P.M. whilein the post operative cai-e mfoiiiiationwas receiA/edthat she neededurgentmedical attention; she was shifted to the ICU but in spite of best effortsshe could not be saved: She was declared dead at 7.30 P.M. on 24.7.20Q.6. Cause of ' death had been opined as abdominaltrauma,with spleen rapture (post OP) and cai'diacaixest. This medicalrecord clearly establishesthat it was because of the injuries sufferedby the victim at the hands of the accused persons that her death had occuiTed. Reliance by the learned counsel for the appellant on medical opinionabouta ruptui'edspleen wouldnot really assisthis case because tliis was not acase ofasingleinjuiyi.e. ofonly aspleen rupturealone; it is acase of 14 injui'iesuponthe victimofwhich the firstinjuiy was a deep abdominalinjuiywhichhad led to therapturedspleen. Pursuantto the' disclosurestatementof accused Munni Lai, the danda was recovered (Ex.PW-14/E). The subsequent opimon'of the doctoron this weaponofoffence.(Ex.PW-19/Aand Ex. PW-18/C)also ' establishesthat this weapon couldhavemfact causedthe injuriesupon the victrniand whichhad led to her death. CRL.A.Nos.791/2010,1014/2010&1239/2010 2j of27 5:^ The motive of the crime has been ehcited in the version of the aforenotedtwo PWs i.e. PW-4 and PW-8. Both of them have deposed that accused Munni Lai and TiHsra wanted to get the victim evicted from her jhuggi at the behest of Kama! @ Baba who was runninga tent house and was storing his tents in the place adjacent to the jhuggi of •SanjuDevi. The sum total of the evidence thus establishes that both the accused Munni Lai and Tilisrahad in unison enteredthejhuggi of the victim and had given her fist and kick blow which were followed by danda blows; which in turn caused her death in the next one and half days. It was a concerted act; each one Icnew the mind of the other Avhen •they enteredthe jhuggi of the victim. Their conspiracyto commit-the act stands established. Role of the co-accusedKamal @ Baba is,, however, not clear. Prosecutionhas no evidence against him. Apart from his disclosure V' • statementthere is no other evidenceto nail him.. No recoveryhas-also been effectedpursuantto his disclosurestatement. That apart even in the first versionrecordedofPW-4 (starwitness ofthe prosecution)she CRL.A.Nos.791/2010,1014/2010&1239/2010 ' Page22of27 has not named Kamal @ Baba as an assailant; his role has been elicited . for the first time only in her version in Court. Even.on confrontation she had admitted this stand. Sanju Devi in her statement had also not named him. There,thus, beingno evidenceagainstaccusedKamal @Baba, he ; is entitledto anacquittal;he is accordinglyacquitted. . 35, The last submissionmade by the learned counsel for the accused Mumii Lai and Tilisra however needs attention. Learned counsel for the appellanthas arguedthat even presumingthat death had occurredat the hands ofthe aforenotedaccusedpersons;this was not a case of any premeditationor intentto commitmurder. The weapon ofoffence was only a danda; that apart accused Tilisrawas unarmed; the injuriesbad . . also not been caused on any vital part of the body; apart from injury no.l which Avas in the abdominal cavity all other injuries were mere bruises;the convictionshouldbe alteredto one under Section304 Part-II of the IPG. \J Relevantwould it be to extractthe provisionsof Section304 of the IPG,which read as under: .304. Punishment-for culpable homicide not amounting to murder-CRL.A.Nos.791/2010,1014/2010&1239/2010' Page23of27 Wlioever comiTiits culpable homicide not amounting to murder sliall be punishedwith imprisonmentfor life, or imprisonmentof either "description for a term which may extend to ten years, and shall also be liable to fine, if' the act by which the death is caused is done with the intentionofcausing death, orofcausingsuch bodilyinjuiyas is likelyto causedeath; or with imprisonmentofeither descriptionfor a term ^vhich may eKtend to . ten years, or ^vith fine, or with both, if the act is' done with the knowledoe that it is likelyto cause death, butwithoutany intentionto causedeath, or to-causesuch bodily injury'as is likelyto cause death. men a person is killed, it is not always a case of murder. The intention to commit the act is relevant to decideUnder which pena] provisionthe case of the accusedwould fall. If the easeof the accused falls in any of the exceptionscontainedin Section 300 of the IPG his offence would be punishable under Section 304 IPG. The line of distmctionbetweenoffencesfallingin Pait-Iand thosefallhigin part-II ofSection304 ofthe IPG may be thin but neverthelessdistinct. Th firstpaitconnotesan mtentionand secondpaitattributesaknowledgeto the accused. e, V It is on this touchstonethatthe act ofthe accusedpersonshas to be analyzed. CRL.A.Nos.791/2010,1014/2010&1239/2010 ' Pag,..-74of27 V-Accused Munni Lai was aimed witli a danda; it-was two feet long. The accused Tilisra (wife of the accused Munni LaJ) was unamied;she had attackedthe victimwith her legs and fists. In this background,keepmg in view the nature of the weapon of offence;the fact that the second accusedwas unanned;as also the fact that the injuneswere not on any vital part ofthe body it cannotbe said the accusedpersons had any pre-designto coimnit the murder of the victim. The degree ofseriousnessofthe injurieshas also been noted. The versionofthe victimthat stab injurieswere also inflictedupon her IS neitherbome out fi'om the medicalrecordnor any such weapon has been recovered. . Accusedpersonscaii ftus be ateibutedwitli aImowldgetliat by then-act they could cause such bodily injlmes upon the victim as is likely to cause her death. In asnnilai-situationin tlie case ofSalishNarrjwm(sup,a) where there was only one/injurycaused by stabbing on tlie bapk of the deceased and had proved to.be fatal and hitially the accused was CRL.A. Nos.791/2010.1014/2010&1239/2010 unaimed and later on he had taken a kitchen Icaife the offence under Section 302 was converted to an offence under Section.304 Part-II of the IPC. In Dhan Sinsh (supra) the Apex Court had noted that no sti-aightjacketfomiulacan be adoptedm-such like cases;it dependsupon facts and circumstancesof each case. In this case also accusedpersons had entered.thehouse of the victimsand openedattackupon the victim; the offence was altered from 302 to.304 Part-II of the IPC. In Shanker Narayan fsupra) a gun was used; it was fired upon the deceased pursuant to which he sustained injuries; offence under Section 302 was converted to an offence under Section 304 Part-II of the IPC. Boththe accusedpersons(Munni Lai and Tilisra)are accordingly convictedunder Section304 Part II of the IPC. AccusedMunni Lai has sufferedincai-cerationfor about eight years. Accused Tilisra ha.d been giptedbail vide order dated 17.10.2011.At that time she had already undeigonea sentence of about more than four years and six months. She had ayoung daughteraged four at thattune; she wouldbe less than SIX years as on date. Tlie offencehas'beencommittedmore than seven yeaisago. TliefactthatTihsrawas unannedalso cannotbe lostsightof CBL.A.Nos.791/20.10,1014/2010&1239/2010 pag^26 of27 \ 3/ In this background,this Court is of the ^aew that ends of justicewould be met if tlie accusedpersons ai'e sentencedto undergo impnsonment for tlie periodaheadyundergoneby each ofthem.

¶44The appeal is modifiedin the aforenotedtemis and disposed of accordmgly.AccusedMunni Lai be releasedforthwithif not requiredin any other case. Bail bond and surety bond of accused Tilisra be cancelled. A copy of this order be sent to the Jail Superintendentfor intumation and compliance. JULY 29, 2013 nandan INDERMEET KAIJJR, J / CRL.A.Nos.791/2010, 1014/2010& 1239/2010 Page27or27

// * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgmenl reserved on : 24.07.2013 Judgment delivered on: 29.07.2013 + CRL.A. 1239/2010 TILISRA Appellant Thiough: Mr.S.B.Dandapani, Advocate. versus THE STATE (GOVT. OF NCT) DELHI Respondent Thiough; Mr.Sunil Shaima, Addl. Public Prosecutor. CORAM: HON'BLE MR.JUSTICE KAILASH GAMBHIR HON'BLE MS. JUSTICE INDERMEET KAUR INDERMEET