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Sarvjeet vs State (Govt. Of Nct Of Delhi) on 8 July, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on: 16.04.2019
Judgment pronounced on: 08 .07.2019

+ CRL. A. 572/2011

SARVJEET ….. Appellant
Through: Mr. Murari Tiwari, Ms. Ankita Tiwari
and Mr. Rahul Kumar, Advocates.
Versus
STATE (GOVT. OF NCT OF DELHI) …..Respondent

Through: Mr. Amit Gupta, APP.

CORAM:

HON’BLE MS. JUSTICE HIMA KOHLI
HON’BLE MR. JUSTICE VINOD GOEL

VINOD GOEL, J:

1. The present criminal appeal has been filed against the impugned
judgment dated 26.02.2011 passed by the Court of Ld. Additional
Sessions Judge/ Special Judge (NDPS), West Delhi („ASJ‟) in Session
Case No.50/2010 vide FIR No.25/2010 u/s 302/304B/498A SectionIPC, PS
Moti Nagar, convicting the appellant for the offence under Section
302 of the Indian Penal Code, 1860 („SectionIPC‟) and order on sentence
dated 28.02.2011 sentencing him to undergo imprisonment for life
along with a fine of Rs.50,000/- and in default of fine, simple
imprisonment for two months. The Ld. ASJ however, by the
impugned judgment acquitted the appellant of the offence under
Sections 498A and Section304-B of the IPC.

CRL.A.572/2011 Page 1 of 20

2. As per the factual matrix, the appellant and the deceased got
married on 20.10.2004 as per the Arya Samaj rites and rituals. The
couple was blessed with a daughter named Prachi in June, 2006. On
30.01.2010, the appellant made a telephonic call to the deceased‟s
father, Mr. Shanti Prakash Sardana (PW-1), at about 1:45 AM and
informed him that she had fallen ill and has to be taken to a Hospital.
PW-1 along with the deceased‟s sister-in-law, Mrs.Shiksha Sardana
(PW-5) reached the appellant‟s house where they found the deceased
in an unconscious condition and took her to Khetrapal Hospital where
she was declared as „brought dead‟. PW-1 along with PW-5 and the
appellant then took the deceased to Acharya Bikshu Govt. Hospital,
Moti Nagar where after examination, she was declared as „brought
dead‟.

3. DD No.6A (Ex.PW11/A) was recorded on 30.01.2010 by HC
Mewa Ram (PW-20) posted at P.S. Moti Nagar after a call was
received from Acharya Bhikshu Hospital about the deceased being
brought to the Hospital by her father and husband and declared as
„brought dead‟. It was marked to ASI Krishan Chander (PW-11) who
accompanied Inspector Jagminder Malik (PW-21) to Acharya Bhikshu
Hospital on the intervening night of 29/30.01.2010. PW-1 refused to
give his statement to the Police Officials as he informed them that his
son had gone to London and his wife had gone to Kota and he would
give a statement only on their return. The dead body was taken to
DDU hospital for preservation by Constable Jai Prakash (PW-16). ASI
Jai Singh (PW-9), Incharge of the Mobile Crime Team (West) on

CRL.A.572/2011 Page 2 of 20
receiving information from P.S. Moti Nagar reached the house of the
appellant at WZ 81/1, Gali no.10, Ram Garh Colony at 5:30 AM and
inspected the house till 6:00 AM. He submitted his report, Ex.PW9/A.
He found that the injured was taken to the Hospital. He got the
photographs of the site taken from the photographer, Ct. Anil Kumar
(PW-19). PW-11 along with PW-21 also reached the appellant‟s house
and inspected the scene of crime. PW-19 proved the negatives of the
photographs, Ex.PW19/1 to Ex.PW19/5 and the positives, Ex.PW19/6
to Ex.PW1/10.

4. Dr. Naveen Tyagi, Junior Resident, ESI hospital, Delhi (PW-8)
testified that on 30.01.2010, the patient Chandni was brought dead to
the Hospital vide entry no.332/10. Dr. Munish (PW-12), Junior
Resident in Acharya Bhikshu Hospital, Moti Nagar deposed that on
30.01.2010, he had examined the deceased, Chandni who was brought
to the casualty. He declared her „brought dead‟ vide casualty card,
Ex.PW12/A. He stated that the police had reached there and shifted
the body to DDU Hospital. On 01.02.2010, at 1:15 PM Dr. B.N
Mishra, Medical Officer, Department of Forensic Medicine (PW-15)
conducted the post mortem on the dead body of the deceased aged 25
years.

5. PW-15 founds the following external injuries on the body of the
deceased:

“1. Fractured nasal bone with brusing of adjacent tissue
and collection of blood clots in the nasal cavity and torn
nasal Macosa with dark reddish in colour.

CRL.A.572/2011 Page 3 of 20

2. Two apartly places linear Bruise of size 03 x 1 cm and
2.5 cm x 1 cm respectively with vertical placement at
lower part of back over lumber spine with reddish brown
in colour.

3. Abrasion of size 4 x 2 cm present on the right lower
part of the back 5 cm apart from external injury no.2
with reddish brown in colour.

4. Abrasion of size 2 x 2 cm present on the left side of
cheek bone with reddish brown in colour.

5. Nails marks in cresentric shape presen on the right
side of cheek bone and 2 cm below from Laternal canthus
of right eye with reddish brown in colour.

6. Bruise of size 1 cm x 0.5 cm present on tip of the right
shoulder with reddish brown in colour.

7. Bruise of size 4 x 5 cm present on the thenier eminence
of right palm with dark reddish colour, blood cots on
secion.

HEAD: Subdural Haematoma present on the right
tampero parital region with thick layered and dark red in
colour. Whole brain oedematous with flattened gyri of
the brain with relatively congested meninges of the
brain.”

6. The statement of PW-1 (Ex.PW1/A) was recorded in the
presence of Shri R.K Saini, Executive Magistrate (PW-13). The Rukka
(Ex.PW21/A) was prepared by PW-21 on the basis of this statement
and FIR (Ex.PW7/A) was registered at P.S. Moti Nagar by HC Bricha
Singh (PW-7). On 01.02.2010, the viscera sample of the deceased was
deposited by PW-11 with MHCM, P.S. Moti Nagar HC Rajesh Kumar
(PW-13). On 25.02.2010, the viscera sample was sent to FSL through
Ct. Anil Kumar (PW-18), vide RC No.10/21. The appellant was
apprehended on 01.02.2010 from Moti Nagar Metro Station and

CRL.A.572/2011 Page 4 of 20
brought to P.S. Moti Nagar. He was interrogated and then arrested
vide arrest memo Ex.PW6/G.

7. As per the Post Mortem report dated 01.02.2010 (Ex.PW15/B),
the time since death was about two and a half days prior to the Post
Mortem examination. The cause of death was kept pending in the Post
Mortem Report (PMR) dated 01.02.2010 till the FSL and the
Histopathological Reports were received. Dr. B.N Mishra (PW-15)
mentioned in the PMR “However the association of assault on the
part of her death could not be ruled out. All injuries are ante-
mortem.” The FSL report (Ex.PW21/E and Ex.PW21/F) were
received on 30.06.2010. In the subsequent opinion (Ex.PW15/A) dated
25.10.2010, the cause of death was opined as “due to coma caused by
Cranio Cerebral injury (Head injury) by means of hard blunt and
forceful impact upon head. The possibility of homicide cannot be not
ruled out.”

8. On 19.05.2010, the Ld. ASJ framed charges against the
appellant under Section 498A/Section304B/Section302 IPC to which the appellant
pleaded not guilty and claimed trial. The prosecution examined 21
witnesses to bring home the guilt of the accused while the appellant
examined one witness in his defence.

9. Mr. Tiwari, ld. Counsel for the appellant had contended that the
impugned judgment is based on conjectures and surmises and hence
deserved to be set aside.

10. He argued that the deceased‟s family members had concocted a
false story to falsely implicate the appellant which is clear from the

CRL.A.572/2011 Page 5 of 20
fact that PW-1, who had accompanied the appellant to the Hospital on
the fateful night, had refused to give his statement on the same day i.e.
30.01.2010 and had waited for two days till 01.02.2010, to give his
statement. He further argued that since the Trial Court had disbelieved
the testimony of the deceased‟s father (PW-1), brother, Atul Sardana
(PW-6) and the appellant‟s landlady of the house, Ms. Rajani Kapoor
(PW-2) with respect to the alleged demand of dowry and causing
cruelty to the deceased by the appellant and acquitted the appellant
under Section 498A and Section304B, the testimony of PW-1 and PW-6 on
the other aspects is under serious doubt.

11. He contended that the Police did not recover any weapon from
the appellant‟s home to connect him to the incident and no motive has
been imputed to the appellant by the prosecution. He further argued
that the casualty card of the deceased does not mention any injury on
the deceased‟s body and this fact assumes great importance in the light
of the fact that no one was deputed to guard the dead body while it
was in the mortuary for two days before the autopsy was conducted on
01.02.2010.

12. He argued that the injuries were well explained by the appellant
in his statement under Section 313 of the Code of Criminal Procedure,
1973 („SectionCr.P.C.‟) and in any case, these injuries were not sufficient in
the ordinary course to cause death and hence the ingredients of
Section 300 of the Indian Penal Code, 1860 („SectionIPC‟) were not fulfilled.

CRL.A.572/2011 Page 6 of 20

13. Per contra, Mr.Amit Gupta, the ld. APP for State argued that
the impugned judgment suffered from no perversity or illegality and
hence does not merit any interference.

14. We have heard the ld. Counsel for the appellant and the ld. APP
for the State.

15. Admittedly, the appellant was present with his deceased wife in
their house on the intervening night of 29/30.01.2010. It is not in
dispute that the appellant had telephoned his father-in-law (PW-1) at
1:45 AM on the fateful night subsequent to which PW-1 along with
PW-5 came to the appellant‟s house and had taken the deceased to
Khetrapal Hospital where they were informed that she had died but
this was not believed by PW-1. The deceased was then taken to
Acharya Bhikshu Hopital where she was declared as brought dead by
PW-12. The appellant has given different versions of what had
transpired on the fateful night in his statement under Section 313 of
the Cr.P.C. It would be necessary to analyse his version of the events
here, hence the relevant questions and answers in the statement under
Section 313 are being reproduced herein below: –

“1. Question: It is in evidence against you that on
30/1/10 at about 3:15am an information was received in
Police Station Moti Nagar from Acharya Bhikshu
Hospital telephonically that Chandni w/o Sarbjit R/o WZ
81/1 Gali no.10 Ram Gard Colony was brought in the
hospital by her father and husband and was declared
brought dead. What do you have to say?

Ans: It is correct as my wife was sick, I called my father
in law and along with him took her to the hospital as
she had fallen from the bed.”

CRL.A.572/2011 Page 7 of 20

“16. Question: It is in evidence against you that the fact
regarding death of Chandni was disclosed to PW6 by his
wife by saying that you had telephoned her and asked her
to come immediately to your residence as there was a
fight between you and chandani and at that time you
were with her on which PW6 also talked with you and
inquired from you on this you told him that there was a
fight between you and Chandani and you had given her a
push on her neck and thereafter she was not getting up.
What do you say?

Ans: It is incorrect. I never had any fight with my wife
Chandani. However, she was sick and was lying on the
bed because of weakness she could not even go to
natural calls and she fell down from the bed I
immediately called my father in law and her brother.
My father in law came to my house and alongwith me
went to the hospital. I made several calls and had also
received several calls to my father in law and brother in
law.”

“28. Question: It is in evidence against you that no
documents regarding the medical treatment of deceased
Chandani were found from your house by PW1. What do
you say?

Ans: My wife was anemic and required good food which
she avoided. She was given proper medical treatment
and all the goods and papers were removed by the
police and my father-in-law from the house.”

“38. Question: It is evidence against you that on the
night of 29/1/2010 at 1:45am PW1 received a call which
was made by you and told to him to come soon as
Chandani fell ill and you have to go to hospital for
treatment of Chandani. What do you say?
Ans: Since my wife had developed uneasiness because
of fall from her bed I immediately made a call to my
father in law for help and also to inform him about the
CRL.A.572/2011 Page 8 of 20
illness and took him alongwith him to the hospital my
immediate neighbours were also called and they also
helped me in taking my wife to the hospital.”

“40. Question: It is in evidence against you that when
PW1 reached at the residence of his daughter she had
already died as PW1 checked her pulse to verify whether
she was dead or live. What do you say?

Ans. It is incorrect. I do not know at what time she had
died but she was responding at the time she was taken
the hospital.”

“49. Question: It is in evidence against you that
Chandani was at the residence of PW1 Shanti Prakash
Sardana till about 3pm. What do you say?
Ans. As soon as my wife fell from the bed I had informed
my father in law and brother in law of the incident on
telephone and they immediately came to my residence I
alongwith my father in law and brother in law went to the
hospital but before that my father in law took my wife to
his house to pick up my mother in law at that time my
wife was alive and responding.”

“53. Question: It is in evidence against you that on
receiving the call from you PW1 had reached initially in
the house no.81/1 gali no.10 Ram Garh Colony where
Chandani was lying unconscious consition and she was
taken to the hospital. What do you say?
Ans. It is correct. However, my wife was not unconscious
and was responding.”

“56. Question: It is evidence against you that on the date
of the incident i.e. 29/1/2010 you had not reached so
Chandani was perturbed you reached at room of PW2
Rajni Kapoor by knocking her door and called her. What
do you say?

CRL.A.572/2011 Page 9 of 20

Ans. It is correct. Since my wife was not responding to
the door because of her weakness I called Rajni Kapoor
so that she could open the door from inside.”

“92. Question: Do you want to say anything else?
Ans. My wife was suffering from high blood pressure
for which she was taking medicines and had become
anemic. On the day of incident she fell from the bed
and suffered injuries. Immediately I called my father in
law and brother in law.”

16. There is yet another version of the injuries sustained by the
deceased that was suggested by the appellant to PW-15:

“I suggest to you that the injury no.1 to 7 had been
sustained by the deceased when she was coming to the
bed in darkness and had struck with something on the
floor due to which she lost balance and had a free fall
on the edge of the bed?”

17. In his cross-examination, PW-15 has well explained the
questions of the appellant giving all answers to meet out all the
defences which are reproduced below:

“There are many reasons for the development of the
stage of coma but not similar in this case. In general
condition the injury is possible on the nose when person
fallen on the wooden part of the bed by forcefully
thrusting upon it. But regarding this case in the view of
the other association of injuries it is not possible that the
injury on the nose could have been caused because of
falling on wooden bed. The brain odema is also
associated is also associated with many brain infections
or any other space occupying lesions. However, in this
case the cause of odema and flattened gyri (units of
cerebrum) were developed due to traumatic reason. It is
not possible that the injury as were found in this case
CRL.A.572/2011 Page 10 of 20
could have been caused during the transportation of the
body through stairs of the house. The colour of the
injuries does not change significantly after the death of
the person except in case of set up of putrefaction.

Question: The photograph on which no.171 (Ex.PW19/8)
is written is shown to the witness and asked, is it possible
if a person have sudden fall which face towards the
ground and hits the edge as shown in pt-A on the
photograph, the said person may get nasal bone
fractured?

Ans: It is possible, Vol. Stated but in this case there are
many other associated injuries which are not consistent
with above mentioned fact.

Question: Whether injury no.2 is possible to be sustained
in case the person falls to the ground and got struck with
any toy or any other wooden article like stool/chair?
Ans: The objects lying on the ground should bear two
edges with a partlyplaced could cause such injury like
injury no.2

Court question: whether injury no.2 is possible to be
caused by getting struck with stool/chair?
Ans: No.
The injury no.5 is not possible to be caused by getting
struck with nails protruding from the edge of the wooden
bed.

Question: There is a beading on the edge of the bed and
if a head of the person hits the edge there is the
possibility that the nails of the beading could cause
injury no.5?

Ans: The detail of the beading is not reflected on the
photograph hence I cannot make any such comments in
that regard.

The nail marks as seen in injury no.5 cannot be caused
by slapping or hitting fast.

CRL.A.572/2011 Page 11 of 20

Question: Whether there is any fist mark/abrasion is seen
on neck, chest and stomach of the deceased?
Ans: There is an abrasion present on the lower part of
the back. However, the causative weapon cannot be
specified for the said mark in respect of fist. However,
same may be caused by getting hit with blunt object.

Question: For the 7 external injuries as mentioned in
the postmortem report Ex.PW15/B either the person be
hit with some solid edged object like danda or a person
may have a free fall on some solid edged object like
bed?

The injury noted in PM report are not possible to be
inflicted on the body during the single episode as above
mentioned modes. Vol. stated as the above mentioned
injuries are variable in their nature and the distribution
on the body, the above suggested conditions cannot
caused these injuries.

Question: How many hits are necessary for causing the
injury no.1 to 7?

Ans: The injury present on the body of the deceased
cannot be caused only due to falling on the hard
surface/blunt object. The same may have been caused
by different means of causing injuries.

Question: I suggest to you that the injury no.1 to 7 had
been sustained by the deceased when she was coming to
the bed in darkness and had struck with something on
the floor due to which she lost balance and had a free
fall on the edge of the bed?

Ans: These injuries no.1 to 7 are not possible only in
the above manner and the same are not possible to have
been sustained only by one fall as above mentioned.”

CRL.A.572/2011 Page 12 of 20

18. When it is established that the deceased was last seen alive with
the accused and the time of death is so proximate to the appellant
having been last seen with the deceased, the onus of proof shifts upon
him to furnish an explanation which should appear to be probable and
satisfactory. This principle was elaborated upon by the Supreme Court
in SectionState of Rajasthan v. Kashi Ram, (2006) 12 SCC 254, where it was
held that:

“23. It is not necessary to multiply with authorities. The
principle is well settled. The provisions of Section 106 of
the Evidence Act itself are unambiguous and categoric in
laying down that when any fact is especially within the
knowledge of a person, the burden of proving that fact is
upon him. Thus, if a person is last seen with the
deceased, he must offer an explanation as to how and
when he parted company. He must furnish an
explanation which appears to the court to be probable
and satisfactory. If he does so he must be held to have
discharged his burden. If he fails to offer an
explanation on the basis of facts within his special
knowledge, he fails to discharge the burden cast upon
him by Section 106 of the Evidence Act. In a case
resting on circumstantial evidence if the accused fails to
offer a reasonable explanation in discharge of the
burden placed on him, that itself provides an additional
link in the chain of circumstances proved against him.
Section 106 does not shift the burden of proof in a
criminal trial, which is always upon the prosecution. It
lays down the rule that when the accused does not throw
any light upon facts which are specially within his
knowledge and which could not support any theory or
hypothesis compatible with his innocence, the court can
consider his failure to adduce any explanation, as an
additional link which completes the chain.”

(Emphasis supplied)
CRL.A.572/2011 Page 13 of 20

19. SectionIn State of U.P. v. Satish, (2005) 3 SCC 114, the last seen
principle was summed up by the Supreme Court as under:

“22. The last-seen theory comes into play where the
time-gap between the point of time when the accused and
the deceased were last seen alive and when the deceased
is found dead is so small that possibility of any person
other than the accused being the author of the crime
becomes impossible.”

20. SectionIn Sathya Narayanan v. State, (2012) 12 SCC 627 following
the ratio in Kashi Ram’s case (supra), the Supreme Court held that:

“34. The appellant-accused having been seen last with
the deceased, the burden of proof rests upon them to
prove what had happened thereafter since those facts
were within their special knowledge. In the absence of
any explanation, it must be held that they failed to
discharge the burden cast upon them by Section 106 of
the Evidence Act, 1872. Admittedly, none of the
appellants explained what had happened to the deceased
even in their statements under Section 313 of the Code.”

21. The appellant has failed to offer a consistent explanation as to
what had transpired on the fateful night and kept on changing his
stand. The appellant did not summon any witness in his defence to
prove his contention that his wife was anaemic and was bed ridden
due to this ailment. DW-1 has also not testified about the condition or
sickness of the deceased. The testimony of PW-15 clearly shows that
the injuries were not sustained due to one single fall as sought to be
explained by the appellant in his statement u/s 313 SectionCr.P.C. or
suggested to PW-15 by the defence counsel, but were a result of

CRL.A.572/2011 Page 14 of 20
several impacts. The head injury was the result of forceful impact with
a hard blunt object on the head and due to this injury, the deceased
had become unconscious which ultimately resulted in her death as per
the subsequent opinion regarding the final cause of death
(Ex.PW15/A).

22. The contention of the learned defence counsel that the
Treatment Card of the deceased, Ex.PW12/A does not mention any
injuries on the deceased‟s body as were mentioned in the PMR
(Ex.PW15/B), was not put to PW-12 in his cross-examination. The ld.
counsel for the appellant has also contended that the MLC of the
deceased conducted at Khetrapal Hospital was not brought on record
by the prosecution as that would have established that there were no
injuries on the deceased‟s body. The incident is of the night
intervening 30/31.01.2010 and as per the PMR, the time since death is
about two and a half days prior to the PM examination done on
01.02.2010 which is proximate to the appellant having been last seen
with the deceased. Hence the appellant cannot be heard to urge that
the deceased did not suffer the said injuries. While it is true that this
MLC was not brought on record, it is also equally true that this
contention was not put to any witness in their cross-examination
particularly, PW-8, PW-12 and PW-15; nor was this plea taken by the
appellant in his statement under Section 313. The appellant failed to
summon any witness in his defence to prove this contention even
though he did examine one defence witness i.e. Ms. Meenu (DW1)

CRL.A.572/2011 Page 15 of 20
who deposed to the extent that the appellant and the deceased were
living happily and the appellant did not mistreat his wife.

23. The contention that there was no one guarding the dead body in
the mortuary and there was a possibility that the injuries were post-
mortem and not ante-mortem in nature was also not put to PW-15 who
conducted the deceased‟s post mortem, in his cross-examination. PW-
15 had in fact specifically deposed in his examination in chief that
“all injuries were antemortem”. Noticeably, the version of PW-15
that the injuries were ante-mortem in nature was neither challenged
nor rebutted in his cross-examination. The law in this regard is well
settled. The Supreme Court in SectionSarwan Singh v. State of Punjab,
(2003) 1 SCC 240 has held “It is a rule of essential justice that
whenever the opponent has declined to avail himself of the
opportunity to put his case in cross-examination it must follow that
the evidence tendered on that issue ought to be accepted. A decision
of the Calcutta High Court lends support to the observation as
above.” The suggestion that was in fact given to PW-15 as
reproduced above was that the injuries could have been caused after
the deceased lost balance and had a free fall on the edge of the bed
and not that these injuries were caused after the deceased had died.
The appellant has also nowhere in his statement under Section 313
taken the stand that the injury on the deceased‟s body were post-
mortem in nature. The vacillation in the appellant‟s stand regarding
the injuries on the deceased‟s body renders his version devoid of any

CRL.A.572/2011 Page 16 of 20
credibility and in these circumstances, the Trial Court has rightly
disbelieved his version.

24. Coming next to the contention of the counsel for the appellant
that the prosecution has failed to prove any motive on the appellant‟s
part to commit the alleged crime, the law in this regard is well settled
and it has been held that not proving of the motive is not fatal to the
prosecution‟s case. This principle was re-iterated by the Supreme
Court in SectionRanganayaki v. State, (2004) 12 SCC 521 where it was held
that:

“10……………….. In some cases it may be difficult to
establish motive through direct evidence, while in some
other cases inferences from circumstances may help in
discerning the mental propensity of the person
concerned. There may also be cases in which it is not
possible to disinter the mental transaction of the accused
which would have impelled him to act. No proof can be
expected in all cases as to how the mind of the accused
worked in a particular situation. Sometimes it may
appear that the motive established is a weak one. That by
itself is insufficient to lead to an inference adverse to the
prosecution. Absence of motive, even if it is accepted,
does not come to the aid of the accused. These principles
have to be tested on the background of factual scenario.”

25. Coming next to the final contention of the counsel for the
appellant that the Cranio-Cerebral injury (Head injury) suffered by the
deceased which had resulted in her death was not sufficient in the
ordinary course to cause death and did not fulfill the parameters as set
out under Section 300 of the IPC. The ingredients to be fulfilled
before a case can be brought under Clause 3 of Section 300 of the IPC

CRL.A.572/2011 Page 17 of 20
were elaborated by the Supreme Court in the seminal judgment on this
issue in SectionVirsa Singh v. State of Punjab, 1958 SCR 1495 where it was
held that: –

“14. To put it shortly, the prosecution must prove the
following facts before it can bring a case under Section
300 “thirdly”.

15. First, it must establish, quite objectively, that a bodily
injury is present.

16. Secondly, the nature of the injury must be proved;
These are purely objective investigations.

17. Thirdly, it must be proved that there was an intention
to inflict that particular bodily injury, that is to say, that
it was not accidental or unintentional, or that some
other kind of injury was intended.

19. Fourthly, it must be proved that the injury of the type
just described made up of the three elements set out
above is sufficient to cause death in the ordinary course
of nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the
offender.”

26. In the subsequent opinion regarding final cause of death
(Ex.PW15/A), PW-15 had opined that “Cause of death was due to
Coma caused by Cranio-Cerebral Injury (Head Injury) by the means
of hard Blunt and forceful impact upon head. The possibility of
homicide cannot be ruled out.” This opinion fulfills the first and
second criteria as set out in Virsa Singh’s case (supra) as there is a
bodily injury and its‟ nature has been proved by PW-15. This opinion
also clearly shows that the head injury was inflicted by using a blunt
weapon with excessive force resulting in death thereby fulfilling the
fourth criteria. As already discussed above, the appellant has not

CRL.A.572/2011 Page 18 of 20
denied that he was in the same room with the deceased when she was
last seen alive but he kept on changing his stand while explaining the
cause of this injury. His explanations do not inspire any confidence.
Rather, it brings out his intention to conceal the true version of what
had actually transpired on the fateful night. There is no force in the
argument of the ld. Counsel for the appellant that it was a sudden
reaction on a fight between the deceased and the appellant and the
appellant had only pushed the deceased from the bed and hence only
an offence under Section 304 Part I of the IPC is made out. Notably,
no such defence/explanation was offered by the appellant in his
statement under Section 313 of the Cr.P.C.

27. In view of the facts and circumstances of the present case, this
court does not find any reason to interfere with the impugned
judgment and order on sentence. The bail bond and surety bond
furnished by the appellant are hereby cancelled. He shall surrender
before the trial Court within one week, failing which the IO concerned
shall immediately take steps to have him arrested and sent to custody
for serving out the remainder of the sentence awarded to him. The
Trial Court record be returned together with a certified copy of this
judgment.

28. We find that the learned ASJ has not awarded any
compensation to the minor daughter (aged about 3 ½ years on the date
of incident) of the deceased under Section 357 of the Cr.P.C.
Meanwhile, Section 357A Cr.P.C. has been incorporated w.e.f.
31.12.2009 and pursuant thereto, Government of NCT of Delhi has

CRL.A.572/2011 Page 19 of 20
framed the Victim Compensation Scheme. Therefore, we direct the
Delhi State Legal Services Authority („DLSA‟) in terms of Section
357A (5) of the SectionCr.P.C. to forthwith undertake an inquiry and within
two months, award and ensure disbursal of appropriate compensation
to the victim‟s daughter in terms thereof. For this purpose, a certified
copy of this judgment shall also be delivered forthwith to the
Secretary, DLSA with a further direction to submit a compliance
report to this Court within three months from the date of receipt of the
certified copy of this judgment. If no such compliance is forthcoming
within the stipulated time, the Registry will place the matter before
Roster Bench for further directions.

29. The appeal is dismissed on the above terms.

(VINOD GOEL)
JUDGE

(HIMA KOHLI)
JUDGE
JULY 08, 2019

CRL.A.572/2011 Page 20 of 20

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