* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. A. No. 33/1997
% Date of Decision : 07.12.2009
1.RAJ KUMAR @ PAPPU ........APPELLANT
Through : Mr.Parag Chawla, Advocate/
Amicus Curiae
-VERSUS-
STATE ......RESPONDENT
Through : Mr. Pawan Sharma, Advocate.
AND
Crl. A. No. 34/1997
2.BHARAT BHUSHAN @ TILLU .....APPELLANT
Through : Mr.Parag Chawla, Advocate/
Amicus Curiae
-VERSUS-
STATE .....RESPONDENT
Through : Mr. Pawan Sharma, Advocate.
AND
Crl. A. No. 280/1996
3.GAJRAJ SINGH & ANR. .....APPELLANTS
Through : Mr.S.K. Pandey, Advocate
-VERSUS-
STATE .....RESPONDENT
Through : Mr. Pawan Sharma, Advocate.
Crl. A. Nos.33 /1997, 34/1997 & 280/1996 Page 1 of 6
CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
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?
SANJAY KISHAN KAUL, J. (ORAL)
1. The deceased, Narain, unfortunately lost his life on account of the assault by the appellants arising from a minor issue of the deceased's foot having fallen in the Nali due to which some muddy water was splashed on one of the appellants - Gaj Raj Singh resulting in the conviction of the appellants under Section 302 read with Section 34 of the IPC in terms of impugned judgment dated 20.5.1996. The appellants were sentenced to undergo life sentence along with fines as per the impugned order of sentence dated 24.10.1996.
2. The case of the prosecution is that Pratap PW-3, Ashok Kumar PW-9 and the deceased had come from the marriage of his friend's sister Sohan Lal at Gaushala Road for purchasing cigarette for the deceased. The three persons reached Vijay Tea Stall where all the four appellants were standing. The deceased's foot fell into a Nali due to which muddy water got splashed on Gaj Raj Singh one of the appellants. On this Gaj Raj Crl. A. Nos.33 /1997, 34/1997 & 280/1996 Page 2 of 6 Singh stated "Dekh Kar Nahi Chal Sakta". This resulted in hot words being exchanged inter se the parties at which Chattarpal, one of the appellants, incited other co-apellants to teach a lesson to the deceased. PW-3, PW-9 and the deceased had barely moved four paces when all the four appellants attacked the deceased. The appellant Raj Kumar was wielding a Kirpan, Gajraj a hockey, Chattarpal Singh a Saria while Bharat Bhushan attacked the deceased with Soda Bottle. PW-3 told PW-9 to rush to the marriage spot and call persons. But by the time PW-9 returned, the appellants had run away from the spot. The deceased was taken to the hospital where the doctor declared him brought dead.
3. The prosecution case has been proved primarily by the two eye-witnesses, PW-3 and PW-9, coupled with the medical evidence of Dr. P.C.Dixit, PW-20, who conducted postmortem on the dead body and proved his report PW-20/A. In the opinion of the PW-20, injury No.10 caused with Kirpan was sufficient in the ordinary course of nature to cause death. The recovery of the weapons, being the Kirpan and hockey stick, was effected at the behest of Gaj Raj.
4. Learned counsel for the appellants state that they have obtained instructions from the appellants and the appellants admit their guilt insofar as the incident is concerned and do not seek to challenge the findings in the judgment on that behalf. The short submission advanced by learned counsels for the Crl. A. Nos.33 /1997, 34/1997 & 280/1996 Page 3 of 6 appellants is that the incident was without any premeditation and in a sudden fight in an innocuous matter, thus case of the appellants is covered under Exception IV to Section 300 IPC and the conviction should have been under Section 304, Part I of the IPC and not under Section 302.
5. Learned APP has opposed above submission, though he does not dispute that there is nothing on record to show that there was any pre-animosity between the two groups or the incident was a consequence of any premeditation. His only submission is that the number of injuries have been inflicted on the deceased, which has sufficient indication of the intent of the appellants to cause death of the deceased.
6. In order to properly appreciate the submissions made on behalf of the parties, it would be useful to have a look of Exception IV to Section 300:
"Section 300. Murder
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Exception 4-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner."
7. On examination of the evidence of the ocular witnesses and the finding in the impugned judgment, it is apparent that the unfortunate incident is a consequence of unnecessary over- reaction of the appellants. The incident occurred as a result of hot words being exchanged between the two groups when one Crl. A. Nos.33 /1997, 34/1997 & 280/1996 Page 4 of 6 of the appellants Gajraj asked the deceased as to why he was not careful?
8. We are, thus, of the view that the case is covered by Exception IV of Section 300 of the IPC as undisputedly there is no evidence of premeditation. The incident occurred in the heat of passion in a sudden quarrel on account of the hot words being exchanged between the parties. There is nothing on the record to suggest that the appellants took undue advantage or acted in an unusual manner. The result of the aforesaid is that while upholding the conviction of the appellants, we modify the same to one under Section 304 Part I of the IPC as against the order of the trial court convicting them under Section 302 of the IPC.
9. Now on the question of sentence. Considering the facts and circumstances of the case, we sentence all the four appellants to undergo RI for 10 years each with appropriate enhancement of fine. The appellants Gajraj Singh, Bharat Bhushan and Chattarpal are directed to pay a fine of Rs.15,000/- each, failing which the defaulting appellant shall undergo RI for the period of six month. So far as appellant Raj Kumar, who inflicted the Kirpal wound which proved to be fatal is concerned, he is directed to pay a fine of Rs.60,000/-, in default of payment of fine he shall undergo RI for a further period of one and a half year. It is further directed that out of fine realized from the appellants, a sum of Rs.1,00,000/- shall be paid as compensation to the closed legal heirs of the deceased.
Crl. A. Nos.33 /1997, 34/1997 & 280/1996 Page 5 of 6
10. Learned counsel for the appellants seek 15 days time to deposit the fines within which period the appellants undertake to deposit the fines with the trial court.
11. The nominal rolls of the appellants, other than Raj Kumar, show that the appellants have already served the sentence of 10 years. In Raj Kumar's case it is not clear whether he has served 10 years sentence. He should surrender before the Superintendent, Tihar Jail, Delhi within 15 days and in case there is any remaining sentence to be served, he shall do so.
12. The appeals are accordingly allowed to the aforesaid extent modifying the order of conviction and sentence.
13. Copy of the judgment be given dasti to the parties.
SANJAY KISHAN KAUL, J.
December 07, 2009 AJIT BHARIHOKE, J.
Aj/pst
Crl. A. Nos.33 /1997, 34/1997 & 280/1996 Page 6 of 6