Crl.A.No.287/2004 Page 1 of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : 20th April, 2010 + CRL.A. 287/2004 VIJAY @ KALE ..... Appellant Through: Mr.Naveen Gaur, Advocate versus THE STATE (NCT OF DELHI) ..... Respondent Through: Mr.M.N.Dudeja, APP CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest?Yes PRADEEP NANDRAJOG, J. (Oral) 1. Conceding that the testimony of PW-3 and PW-6, brother and father respectively of the deceased established the dying declaration made by the deceased Kailash pertaining to the cause of his death and naming the appellant as the assailant; further conceding that the testimony of PW-5 who saw the incident establishes that the appellant struck two blows with a knife on the person of the deceased Kailash; learned counsel for the appellant has made a short submission, being that, the offence committed by the Crl.A.No.287/2004 Page 2 of 4 appellant is culpable homicide not amounting to murder. 2. To make good the argument aforenoted, learned counsel for the appellant draws our attention to the post- mortem report Ex.PW-9/A of the deceased which evidences that two blows with a knife were inflicted on the person of the deceased. Both blows were directed on the upper part of the chest towards the shoulder. The first stab wound is on the right side of the chest at the point 11 cm from mid-line and 4 cm above the right nipple. Unfortunately, the upper right lobe of the lung got cut. The other stab wound is on the opposite side i.e. left chest somewhere around the same region as the first was not fatal inasmuch as the wound only cut the subcutaneous tissue, ending into inter lobe septum. The left lung was not damaged. 3. We note that as per the solitary eye-witness PW-5 he has simply stated that the appellant stabbed the deceased, but why did the appellant do so, had not been deposed to by the witness. 4. We note that the deceased was admitted at Lady Harding Medical College where he was declared brought dead at 11:15 AM as per MLC Ex.PW-10/A. The MLC Ex.PW-10/B shows that at 11:30 AM the appellant himself reached the same hospital with a head injury and collapsed. As recorded Crl.A.No.287/2004 Page 3 of 4 on the MLC, the appellant had a 10 cm contused lacerated wound on the left parietal region. 5. It is unfortunate that the appellant did not have the benefit of a proper legal advise, for the reason, when examined under Section 313 Cr.P.C., the appellant did not explain as to how he received the injury as recorded on his MLC Ex.PW-10/B. 6. The MLC Ex.PW-10/B shows that after he reached the hospital, the appellant became unconscious and his pulse was feeble. BP was high being 140/100 mm Hg. It is apparent that the injury received by appellant around same time was a grievous injury. 7. It assumes importance that the deceased was admitted at the hospital at 11:15 AM and the appellant reached hospital at 11:30 AM and then became unconscious. There is thus a probability of there being a sudden quarrel between the two i.e. deceased and the appellant, the origin whereof has remained shrouded in mystery. 8. Under the circumstances, we hold that it would be safe to conclude that the offence committed by the appellant would be culpable homicide not amounting to murder punishable under Section 304 Part I IPC. 9. For the offence committed by the appellant we Crl.A.No.287/2004 Page 4 of 4 sentence the appellant to undergo RI for a period of 10 years. Needless to state that the appellant would be given benefit of Section 428 Cr.P.C. and remission as per policy of the executive. 10. Since the appellant is still in jail, we direct that a copy of this order be sent to the Superintendent Central Jail, Tihar for necessary action. PRADEEP NANDRAJOG, J SURESH KAIT, J APRIL 20, 2010 ‘mr’