Harish Kumar Vs. State (Delhi Administration) - Court Judgment

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criminal - murder - sections 302 and 304 of indian penal code, 1860 - appellant on some dispute inflicted fatal injury on neck of deceased with a 'gupti' resulting in death of deceased - appellant charged for offence of murder - trial court acquitted him of charge - on appeal high court reversed acquittal and convicted him for offence under section 302 and sentenced him to life imprisonment - hence, present appeal - injuries sufficient in ordinary course of nature to cause death - witness gave a very convincing description of the happening of occurrence - no material contradictions brought about to doubt veracity of witnesses - no compelling reason to differ with the assessment of evidence by high court - evidence of witnesses was natural and inspires confidence to be acceptable - facts revealed that appellant returned after one hour of heated exchanges which proved that there was intention to kill him - held, though injury had resulted in death of deceased it cannot be said that it was sufficient to cause death - appellant liable to be convicted for offence under section 304 part ii and conviction for offence under section 302 set aside - indian penal code, 1890.section 375 & 376 & 417: [tarun chatterjee & v.s. sirpurkar, jj] rape inference as to consent of prosecutrix - prosecutrix admitting absence of a major injury promise of marriage to secure consent before rape offence committed on three/four different occasions first forcibly, when prosecutrix declined to marry appellant-accused later, on appellant promising to marry prosecutrix report by prosecutrix to family members and police only after appellant refused to marry her held, the evidence about the cheating is of slipshod nature and not believable. it is also self-effacing. after all, the first act of the sexual intercourse was without the consent and the accused had thereby committed rape. however, the version that he gave a marriage promise would really go against the prosecution whereby it would mean that the subsequent acts were done with the consent of the girl on account of the promise of marriage. but this can not be the approach. if the promise of marriage was given and girl had succumbed on that account, this by itself may not amount to cheating. besides this, the girl has very specifically stated that even subsequently she was ravished against her wishes. therefore, the theory of promise of marriage and the consent for sexual intercourse will wither away. the accused is therefore acquitted of the offence under section 417 ipc. section 376: rape accused was after prosecutrix, requesting her to marry him - prosecutrix deposed that on her refusal accused committed forcible sexual intercourse with her - subsequently also for 2-3 days she was ravished against her wishes - no love affair between her and accused - no reason to falsely implicate accused other evidence on record corroborating the fact of immediate disclosure of rape by victim her version of being raped by accused totally unchallenged - corroborated by medical evidence delay in lodging fir and medical examination explained held, shabby investigation and discrepancies therein, is not sufficient to discard truthful version of prosecutrix. conviction of accused under section 376 is not liable to be interfered with. as incident took place about 6 years back and accused was behind bars for last about 5 years, as also poverty stricken, sentence already suffered held, would be sufficient. sections 417 & 376: cheating accused wanted to marry prosecutrix - on her refusal committed forcible sexual intercourse with her -prosecutrix specifically deposed that subsequently also she was ravished against her wishes held, therefore, theory of promise of marriage and consent for sexual intercourse will wither away and accused not liable to be convicted under section 417. - 5. on a totality of the facts and the circumstances, we are satisfied that the evidence of p.1. the appellant was charged for the offence of murder of sudhir on march 19,1973 at 12 noon. the trial court acquitted him of the charge, but on appeal the high court reversed the acquittal and convicted him under section 302, i.p.c. and sentenced him to imprisonment for life. thus this appeal under section 2 of the supreme court enlargement of criminal jurisdiction act, 1970.2. the facts in brief are that on march 19, 1973 being the holiday, the appellant and one rajan mani went to the shop of the deceased bearing no. 1259/a/b situated at balbir nagar, shahdara, new delhi and requested him to close the tea shop which he was vending and asked him to take part in playing holi. thereon the deceased refused to accede to their request. thereafter, in a huff the appellant and rajan mani went away with a dire threat to the deceased and his father, ved prakash, p.w. 1, who remonstrated against the threat. one hour thereafter the appellant came holding a gupti (sharp edged weapon) in his right hand to the shop by which time the deceased was closing the shop. rajan mani took the deceased in his arms and held him back. the appellant inflicted a fatal blow near the neck and also gave other minor injuries. p.w. 1 and p.w. 3 have seen the occurrence. the deceased was made to walk for a distance of 25-30 feet and thereafter he fell down at the house of p.w. 4. then he was taken to the hospital. the deceased died two days thereafter, namely, on march 21, 1973. p.w. 12, the doctor, conducted the autopsy and found that there were as many as nine injuries and injury no. 2 was found to be fatal which in the opinion of the doctor was sufficient to cause death in the ordinary course of nature. p.w. 1 is the father of the deceased. p.w. 3 is another independent witness, who happened to come over to the area to his sister's house to play holi.3. the trial court disbelieved the evidence of p.w. 3 on the ground that p.w. 1 did not disclose the name of the p.w. 3 either in his initial statement under section 181 or in his supplementary statement. the name of p.w. 3 was also not disclosed in the fir. the statement under section 164 of cr.p.c. was not recorded. as a result, his evidence was suspect. the evidence of p.w. 1 was also disbelieved. the high court considered the evidence afresh and found that p.w. 3 is an independent witness. p.w. 1 being the father of the deceased is not interested to exclude the real offender and implicate an innocent person as the assailant of his son and that, therefore, their evidence was found acceptable. the high court accordingly convicted the appellant and confirmed the acquittal of the co-accused, rajan mani.4. shri das bahl, learned counsel for the appellant has reiterated the contentions which were found acceptable to the trial court, but on consideration of the evidence we find no justifiable reason to differ from the high court. it is seen that in the cross-examination of p.w. 3 he has graphically explained the attack mounted by the appellant on the deceased, but for the fact that he was an eye witness, it would be difficult to give such a graphic description of the happening of the occurrence. absolutely p.w. 3 has no axe to grind against the appellant. no material contradictions have been brought out to doubt his veracity except stating that he was speaking falsely. p.w. 3 being an independent witness, his evidence cannot become suspect merely because the statement under section 164, cr.p.c. was got recorded by the police. perhaps with a view to see that he cannot be gained over, the police in its usual precaution has got the statement of p.w. 3 recorded under section 164, cr.p.c. it might be that there is an attempt to pressurise p.w. 3 by getting the statement under section 164 and the prosecution attempted to pin him down to the statement given to them. but that ground should be taken as a caution to scrutinise the evidence of p.w. 3 and subject it to critical examination. we have carefully scanned his evidence keeping these factors in view and we find that absolutely there are no compelling reasons to differ from the assessment of the evidence by the high court to disbelieve his evidence. that apart, we have the evidence of p.w. 1, ved prakash, father of the deceased, which is sufficient to hold that the appellant alone has inflicted the injury which resulted in the death of sudhir. it is not disputed that p.w. 1 was present at the time when the shop was being closed. even at the first instance also, the father was present when the threat was administered by the appellant to the father himself, when he remonstrated against the obstruction to his son continuing the tea business in his shop. p.w. 1 being the father is interested to bring to book the real culprit and he does not exclude the real culprit and inculpate an innocent person. considered from this perspective, we find that the evidence of p.w. 1 also is natural. it is consistent though there are some discrepancies in his evidence vis-a-vis the statement under section 161 which are not on material particulars of the prosecution case.5. on a totality of the facts and the circumstances, we are satisfied that the evidence of p.w. 1 and p.w. 3 inspires confidence to be acceptable. accordingly, we accept their evidence. from their evidence, it is clear that the prosecution has established that the appellant alone has inflicted the injury no. 2 which resulted in the death of sudhir.6. the next question is what is the offence the appellant had committed. we have seen the evidence. mr. v.c. mahajan, learned counsel for the state contended that the: appellant came one hour after the initial exchange of words; he came with sharp edged weapon and without any provocation he inflicted the injury on the deceased when he was held back by the acquitted co-accused that would show that there is an intention to kill him, and as per the doctor the injury was sufficient in the ordinary course of nature to cause the death coming within clause thirdly of section 300, i.p.c. it is no doubt true, as rightly contended, that if read in isolation by itself the offence may be murder, but when closely scrutinised the evidence in this behalf, we find that the evidence cannot conclusively show that the offence can be brought within clause thirdly of section 300, i.p.c.7. we have seen the nature of the injuries and also the time gap between the time of infliction of the injury till the date of death which was two days after the injury was inflicted. we have no sufficient material as to the nature of the treatment given to the deceased during those two days.8. under these circumstances, though the injury had resulted in the death of the deceased, we cannot conclusively say that it was sufficient to cause his death. accordingly, the offence would be one falling under section 304, part ii of i.p.c. in the result, we set aside the conviction under section 302, i.p.c. and sentence of life imprisonment and convict the appellant under section 304, part ii of i.p.c. and impose a sentence of imprisonment for a period of seven years rigorous imprisonment. the appeal is accordingly allowed to the above extent and the appellant shall undergo rigorous imprisonment for a period of seven years.