DEEPAK @ D.K. Vs. STATE

JUDGEMENT

(1.) These three appeals are directed against the impugned judgment dated 23rd July 2008 passed by the learned Additional Sessions Judge (" SJ") in SC No.83 of 2006 holding the Appellants guilty of the offences under Section 304 Part-II/34 of the Indian Penal Code ("IPC") while acquitting them of the offence under Section 302/34 IPC, and the order on sentence dated 24th July 2008 whereby each of them was sentenced to undergo seven years rigorous imprisonment ("RI") with a fine of Rs.5,000 each and in default to undergo additional RI for three months for the aforementioned offence.

(2.) The case of the prosecution is that Sunny (PW-2) son of Radhey Shyam (PW-1) was working as helper/scooter mechanic in the shop of his uncle Banwari Lal (PW-3A) at Roshnara Road, Delhi. PW-2 along with the deceased Deepak, son of PW-3A, and PW-3A used to sit at the said shop. According to PW-2 on 23rd May 2005 at around 11.30 am, he and his cousin Deepak (deceased) were working at the shop and washing the goods of the vehicles. According to PW-2 at that time Deepak, son of Ramesh Chand, Accused No.1 (A-1) [the Appellant in Criminal Appeal No.664 of 2008] came there and started talking with Deepak, the cousin of PW-2 in a "joyful manner". Along with A-1 were Surender @ Jeetu (A-2) [the Appellant in Crl.A.No.806/2008] and Kapil @ Dayal (A-3) [the Appellant in Crl. A. No.665 of 2008]. Deepak, the cousin of PW-2, was busy in work so he asked A-1 to go away from there since he apprehended that if his father (PW-3A) came there he would scold them. According to PW-2, in the meantime A-1 pushed cousin Deepak and the latter objected. He then was caught hold by A-2 and A-3. A-1 then gave a cricket bat blow on the head of the cousin Deepak who fell down on the floor. Blood started oozing from his head. According to PW-2, both A-2 and A-3 exhorted A-1 to give the blow.

(3.) PW-2 took his cousin Deepak to Hindu Rao Hospital ("HRH") in a three wheeler scooter rickshaw. Sub Inspector Vijay Kumar (PW-18), who was the initial Investigating Officer ("IO"), stated that on 23rd May 2005 he was posted at Police Station ("PS") Sabzi Mandi on emergency duty. He received Daily Diary (DD) No.15-A (Ex. PW-20/E) which noted that Constable Ganga Ram had given information that in an auto repair shop near Ramayan Bhawan Temple at Roshnara Road there was a fracas going on and one injured boy was being taken to HRH. On receiving the said DD, PW-18 along with Constable Kiran Pal (PW-10) reached the HRH where he collected the MLC of the injured Deepak (Ex. PW4/A). The MLC showed that the injured was brought there at 12.10 pm, by PW-2 with the alleged history of physical assault. The remarks were "CLW (contused lacerated wound) over forehead approximate 3 inches in length". The injury was categorized as a blunt injury. There were two consecutive remarks one at 1.30 pm, and the other at 2.50 pm, that the patient was unfit for statement. Deepak was shifted to Sushruta Trauma Centre ("STC") at 3.25 pm on 23rd May 2005. He, however, died at around 11.30 am, on 26th May 2005 as per the death summary (Ex.PW-8/A) issued by the STC. The post mortem report (Ex.PW-7/A) prepared by Dr. Kulbhushan Goel (PW-7) gave the cause of death "brain compression as a result of cerebral injury caused by some hard blunt flat object, diverted upon left side of head". Injury No. 2 which was "stitched wound 3.5cm long transversally placed over right frontal region just right to midline" was stated to have been caused by "blunt force impact". In the opinion it was categorically stated "head injury is sufficient to cause death in ordinary course of nature".