Crl. A.No.498/08 Page 1 of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : 19th April, 2010 + Crl. A. No. 498/2008 ASHOK KUMAR ..... Appellant Through: Mr.Mukesh Kalia, Ms.Sumita Kapil and Ms.Mitika Sharma, Advocates versus STATE ..... Respondent Through: Mr.M.N.Dudeja, A.P.P. 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. Learned counsel for the appellant urges a short point; that there is every possibility of a single blow being struck on the right side of the face of the deceased with the half brick which is alleged to be the weapon of offence and hence the offence committed by the appellant would be culpable homicide not amounting to murder punishable under Section 304 Part-II IPC. 2. We note the injuries on the person of the deceased as recorded in the post mortem report Ex.PW-14/A. The author of the report Dr.V.K. Jha PW-14 has proved the report. As per the post mortem report, following four external injuries were noted on the dead body of deceased Ram Kumar aged 52 years:- Crl. A.No.498/08 Page 2 of 4 i) Lacerated wound on ® forehead 2 cm above, supraciliary margin, extending from lateral angle of eye to midline size about 10 cm x 2 cm x bone deep with fracture of underline bone. ii) Crush injury of upper and lower lip. iii) Right face, right eye bruised; right face deformed with fracture underlying maxillary and zygomotic bone. iv) ® side body and rami of mandible fractured. 3. It is apparent that there is every possibility that a half sized brick, if struck with considerable force only once could have caused the afore-noted four injuries. 4. We note that the weapon of offence recovered by the police from near where the dead body of the deceased was recovered is a half size brick and as per the eye-witnesses, the appellant hit the deceased with the said half-size brick. 5. It assumes importance that the two eye witnesses Pawan PW-2 and Ram Chander PW-10 have not deposed that they saw the appellant repeatedly strike the deceased with a half brick. The two witnesses have simply deposed that they saw the appellant beating the deceased with a brick. 6. With reference to the post mortem report, it may be noted that apart from the three bones which were fractured corresponding to injury Nos.1,3 and 4, subarachnoid hemorrhage resulted. Obviously, the cause of death opined was Cranio Crl. A.No.498/08 Page 3 of 4 Cerebral Injury and Medullary Suboxla consequent to blunt injuries inflicted upon the face of the deceased. 7. The motive for the crime has not appeared with certainty. One set of witnesses have referred to a quarrel which had taken place about a week ago at which the deceased had apparently slapped the appellant. The other is a probable fight over the consumption of liquor. 8. There is every possibility that a single blow with a half brick was struck on the right side of the face of the deceased; unfortunately the result was a Cranio Cerebral injuries as afore- noted. 9. Keeping in view the two possible reasons which led the appellant to pick up the half brick and inflict possibly a solitary blow on the right side of the face of the deceased, it cannot be said that there is evidence to show that the appellant intended to murder the deceased or intended to cause any particular injury with intention of causing death. It cannot also be said that knowledge of the kind contemplated by Section 300 Fourthly can be attributed to the appellant of the consequences of his act. 10. But, it can safely be said that he who picks up a half brick and strikes a full blow at the face of a person would have knowledge of likely to know that his act may result in the death. Thus, we hold that Section 299(C) IPC is attracted. Hence, the Crl. A.No.498/08 Page 4 of 4 offence committed by the appellant would be culpable homicide not amounting to murder punishable under Section 304 Part-II IPC. 11. The appellant was apprehended on 17.10.2003 and since then has remained in custody. Thus, the appellant has suffered incarceration for a period of 6 years and 5 months, besides earning some remissions. There is no history of the appellant being involved in any other criminal activity. 12. Accordingly, we opine that the ends of justice would be secured if the appellant is directed to suffer imprisonment for the period already undergone. 13. The appeal stands disposed of by converting the conviction of the appellant from the offence punishable under Section 302 IPC to having committed an offence punishable under Section 304 Part-II IPC. 14. Setting aside the sentence imposed upon the appellant to undergo imprisonment for life, we direct that for the offence committed by the appellant he shall suffer sentence for the period already undergone. 15. Copy of this order be supplied dasti to learned counsel for the appellant. PRADEEP NANDRAJOG, J. SURESH KAIT, J. APRIL 19, 2010 ‘nks’