DELHI ADMINISTRATION Vs. MAHADEV JOHRI MAL

JUDGEMENT

(1.) THIS appeal is directed against the judgment of Additional Sessions Judge, Delhi, dated December 7, 1962, whereby he gave the respondents benefit of doubt and acquitted them of charges undersub-section304/34 and 323/34, Indian Penal Code.

(2.) THE occurrence in which Prahlad lost his life as a result of injuries inflicted by Mahadev and Jagdish respondents, took place on March 18, 1962, at about 7 p. m. The case of the prosecution as given in the first information report] and broadly disclosed fay the prosecution witnesses is, that Prahlad deceased had temporarily shifted his residence to Katra Neel Delhi, and entrusted his house No. 8/2547 and 2548 to Mahadev and Jagdish respondent and Ramesh and Manohar, his neighbours. Prahlad's efforts to get back the house, not having succeeded till 1959, he filed a suit for possession of the house against the respondents, Brij Lal Ramesh and Manohar, which was decreed on February 24, 1961. The prosecution has then brought on record some previous history of resistance in 1961 by the respondents when Prahlad accompanied bailiff for execution of the decree. Previous resistance and even beating of Prahlad is evidenced by warrant of possession dated July 17, 1961, issued by Shri K. L. Darshan, Subordinate Judge, 1st Class, Delhi, and the reports by Prahlad and the bailiff dated July 19, 1961, on the said warrant. Both the reports point out that when Prahlad tried to enter into house No. 2547 both the respondents along with some others save him beating and he thought that possession could be taken only with the police aid. The prosecution story then proceeds that on March 18, 1962, Prahlad accompanied by the bailiff and police went to the spot again to take possession of house No. 2547 only in pursuance of warrant of possession P. W. 8/a, dated March 17, 1982. This warrant for possession was only for one room in house No. 2547 because in respect of the portion bearing No. 2548 Mahadev's son had obtain-ed a temporary injunction against dispossession. The possession was delivered on that day between 3 and 4 p. m. There was, according to the prosecution, a khokha (a dilapidated wooden structure made with wooden planks) on the roof of portion No. 4547 and possession thereof was delivered by demolishing the same. The dismantled planks (Exs. P. 4 and P. 5) were thrown in the street.

(3.) AFTER delivery of possession, all, including the respondents went to the police station and a report was recorded that the possession had been delivered. The said report was got entered by Net Ram P. W. 9, Assistant Sub-Inspeetor Police, Jama Masjid, Delhi. The report was signed by the respondents, Prahlad, bailiff and some others. In the said report there is no mention that khokha was got dismantled. The explanation offered by Net Ram P. W. 9 is that a mention thereof was not considered necessary. The said report (Ex. P. K ) is recorded at 16-20 hours. At police post where the patties had gone for the delivery of possession being recorded it was settled that the planks will be handed over to the respondents. On way back from the police post the respondents are alleged to have remarked that Prahlad had taken possession of the house, but they would take his life. On this Prahlad and Hemraj P. W. bolted the door from inside and got on to the roof of house 2547 with a view to cleaning the same. The respondents also climbed up the roof of house No 2548 by placing a ladder against the wall of the house and insisted on replacing the planks from where those had been removed. Prahlad tried to dissuade them and thereupon Jagdish respondent lifted a plank (Ex. P-3) lying on the roof of house No. 2548 and struck the deceased on his left arm, Mahadev caught hold of a seru (a thick bamboo stick used as arm of a cot), Ex. P. 2, and struck it on Prahlad's head. The spectacles of Prahlad fell down and as he bent to pick them up both the respondents went on beating him. Prahlad fell unconscious and died in the hospital. Report of his death was received by Sub-Inspector Harphool Singh P. W. 19 at 4. 30 a. m. on March 19, 1962. First information report was made at 3/4 a. m. on March 19, 1962. It is necessary at this stage to set out the injuries on the person of Prahlad, Mahadev and Jagdish. Dr. G S. Mittal, Police Surgeon, Delhi, conducted the post-mortem examination on the body of Prahlad on March 19,1962, at 15-30 hrs. and found the following injuries: 1. Bruise 4 1/2" x 1" on outer aspect of right arm middle third; 2. Bruise with abrasions 3/4" x 1/2" on right side face 1" away from the eye; 3. Abrasion 1/2" x3/4" on right side fore-head half an inch above the eye;