Crl. L. P. 133/2008 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Order : 2nd July, 2009. + CRL.L.P. 133/2008 STATE OF NCT OF DELHI ..... Petitioner Through: Mr.Vikas Pahwa Addl. Standing Counsel with Mr.Piyush Kr. Singh, Adv. versus NEERAJ & ORS ..... Respondent Through: Mr. Sanjiv K. Chaudhary, Adv. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes PRADEEP NANDRAJOG, J. (ORAL) 1. We have heard learned counsel for the State. 2. By the impugned judgment and order dated 25.2.2008, the respondents have been acquitted for the offence punishable under Section 304 IPC and Section 308 IPC. They have been convicted for the offence punishable under Section 323 IPC. Needless to state, since the number of accused were more than one and less than five, the learned Trial Judge has taken the aid of Section 34 IPC. Crl. L. P. 133/2008 Page 2 of 5 3. The genesis of the offence relates to past animosity between the family members of the respondents and the deceased as also the injured. 4. It appears that a daughter of the family got entangled in some kind of a dispute involving a boy of the opposite family resulting in acrimonious relationship between the family of the deceased and the injured as also the respondents who reside in the same vicinity. 5. In the intervening night of 12th and 13th, July 2001, at around 12.45 mid-night, the accused i.e. the respondents who are brothers alongwith their co-accused (since deceased), their mother, went to the house of Ram Sharan (deceased) and created a ruckus. Ram Sharan went out. Kailaswati, his wife, Chander Deep, son of Ram Sharan and Anita, wife of Chander Deep also came out of the house. 6. The respondents were armed with sticks and a hockey. 7. A fight ensued. 8. Ram Sharan died. As per post mortem report, as also the specific opinion by doctor Anil Aggarwal who was examined as a court witness, cause of death of Ram Sharan was a heart attack suffered by him when the fight took place. 9. Injuries noted on his person are fist blow on the scalp and a blow with a stick on the wrist. 10. It is not in dispute that Ram Sharan was aged 75 years. 11. Pertaining to the death of Ram Sharan in respect whereof charge for the offence punishable under Section 304 IPC was framed, it was debated before the learned Trial Judge whether the Crl. L. P. 133/2008 Page 3 of 5 act of the accused would attract Section 304 Part II IPC. 12. It was the case of the prosecution that where an old man aged 75 years is assaulted, knowledge has to be attributed to the accused that their acts can trigger the death of the old man. 13. Per contra, the accused urged that if the causa causaun is broken and cause of death is something which is not the direct consequences of the act, the offence cannot be made out. It was also the case of the defence that the injuries inflicted on the deceased, at best, evidence an intention to cause hurt and no more. 14. Learned Trial Judge has agreed with the defence. 15. Pertaining to said part of the impugned decision, learned Counsel for the State draws our attention to para 7 of the impugned decision and highlights the fact that the learned Trail Judge has noted the fact that the possibility of the heart attack being triggered due to injuries sustained by Ram Sharan on his brain could not be ruled out. Thus, counsel urges that this court should look into the evidence and grant leave to appeal to the State. 16. It is apparent that the learned Trial Judge has used a wrong expression while describing the injuries sustained by Ram Sharan while penning para 7 of the impugned decision. 17. Learned counsel for the State concedes that there is no evidence that any part of brain of Ram Sharan suffered an injury. It appears to be a case of use of a wrong expression i.e. injury on the scalp has been treated as an injury to the brain. 18. There is a distinction between the brain and the scalp. 19. We have perused the testimony of CW-1 Dr. Anil Aggarwal. Crl. L. P. 133/2008 Page 4 of 5 We have perused the post mortem report of the deceased. The injuries noted are fist blows on the scalp. No resultant internal injury has resulted to the brain. 20. There is no causal connection between the injury to the scalp (much less the brain) and the heart which was suffered by the deceased when the fight was on. 21. It is not in dispute that the deceased was a heart patient. 22. It is settled law that where the Trial Judge has correctly probablised the evidence and has drawn an inference therefrom, which can be labled as a perverse inference the Appellate Court would not upset such a finding returned by learned Trial Judge. Thus, we find no infirmity in the impugned judgment insofar the accused stand acquitted of the charge punishable under sections 304/34 IPC. 23. Pertaining to the charge for the offence punishable under Sections 308/34 IPC, suffice would it be to state that the said charge pertained to the injury caused on the person of Chander Deep. 24. Learned Trial Judge has convicted the accused for the offence punishable under Section 323/34 IPC for the injuries caused to Chander Deep. 25. Reasoning of the learned Trial Judge is that a single blow directed towards the skull of Chander Deep was inflicted with a mild force evidenced by the fact that a mild lacerated wound akin to an abrasion injury resulted from the attack. 26. Merely because the blow was directed towards the head of Chander Deep by itself would not make out an offence punishable Crl. L. P. 133/2008 Page 5 of 5 under Section 308 IPC. 27. The ferocity of the blow and the resultant nature of the injury is also an important facet to be taken note of. 28. We find no case made out to grant leave to appeal. 29. The application seeking leave to appeal is, accordingly, dismissed. PRADEEP NANDRAJOG, J. INDERMEET KAUR, J. JULY 02, 2009 nandan