* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 28.02.2011
PRONOUNCED ON: 09.03.2011
+ CRL.A. 45/1998
DEEPAK SHARMA ..... Appellant
Through: Mr. Sandeep Sethi, Sr. Advocate with
Mr. Anurag Jain, Advocate.
versus
STATE OF DELHI ..... Respondent
Through: Mr. Jaideep Malik, APP.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE G. P. MITTAL
1. Whether the Reporters of local papers YES
may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT
%
1. The appellant (hereafter called "Deepak") impugns the judgment and order dated 13.01.1998 in S.C. No. 414/1995 whereby he was convicted of the offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life with fine of ` 1000/- and in default further R.I. for one month. The learned Addl. Sessions Judge also convicted Deepak for the offence punishable under Section 307 IPC and sentenced him to undergo R.I. for five years and to pay ` 500/- as fine, in default of which he was to undergo R.I. for a period of 15 days. A CRL.A. 45/1998 Page 1 similar sentence was imposed, after conviction was recorded under Section 450 IPC.
2. The prosecution case was that on 19.07.1995, Deepak, in a stabbing incident, had attacked one Beermati with a knife and also stabbed Dinesh. The prosecution allegations were that Deepak was passing by the house of Beermati, (the deceased), around 04.00 pm on 19.07.1995. She, her son Ajay Choudhary along with Dinesh were watching television. Deepak was known to the deceased and her two sons as he was their neighbour, residing in the same street. It was alleged that Ajay, Dinesh and Beermati were laughing, upon which Deepak got enraged and called Ajay outside asking him the reason for their laughter. It was alleged that Deepak held Ajay by the neck, when he (Ajay) stated that the three were laughing over something that was being screened on TV. Deepak is alleged to have abused Ajay and told him that they were laughing and mocking him and that they were lying to him; it was alleged that he told Ajay "saale mujh par haste ho, mera mazak udate ho aur jhoot bolte ho". He slapped Ajay 3/4 times. At that time, Ajay's brother Dinesh came out and separated the two. Deepak allegedly left towards his house stating that he (Ajay) had been rescued but that he would not be left alive in future; the prosecution alleged that the actual words used were "ab to bach gaya hai, ise zinda nahi chodoonga". It was alleged that thereafter Ajay and Dinesh went inside their house. About 3/4 minutes later, Deepak came back with a knife in his hand. At that time Beermati was near the entrance of her house and on seeing Deepak armed with a knife, she asked him to stop, enquiring where was he going. Deepak allegedly told Beermati that she was shielding her sons and that he would first remove her from his way - allegedly stating "tu ladkon ke bahut himayat karti hai, pehle tujhe hi raste se hataa deta hoon". Thereafter Deepak stabbed her in the lower portion of the left breast resulting in her bleeding and Beermati's falling down. It was alleged that Dinesh tried to save his mother from Deepak but that the latter said that he too used to favour his brother and would not be left alive. The alleged words used by Deepak were "tu bhi bhai ka himayati banta hai, tujhe bhi zinda nahi choroonga". With these words he attacked Dinesh with the knife in the lower left side of his abdomen. This resulted in Dinesh's bleeding.
3. It was alleged that upon seeing this, Ajay got frightened and raised an alarm. On hearing the noise, many people, including Om Bir Singh reached the spot. On seeing them, Deepak ran away along with his knife. It was alleged that Ajay took Beermati and Dinesh to G.T.B. Hospital with a neighbour and others; Beermati was declared dead. The prosecution alleged that Ajay's CRL.A. 45/1998 Page 2 statement was recorded as Ex. PW-2/A by SI Yoginder Khokhar who was examined as PW-1. This was on account of his receiving DD No. 23, marked as Ex. PW-11/A. Subsequently, statements of other witnesses, including the injured Dinesh were recorded on the basis of which FIR was lodged in Bhajanpura Police Station, being FIR No. 390/1995. According to the prosecution version, Deepak was arrested on 20.07.1995 and on the basis of his interrogation, the recovery of a knife was made. It was alleged that a disclosure statement, Ex. PW-6/B was recorded. The knife was marked as Ex. PW-6/A; a blood-stained shirt was seized and marked as Ex.6/2.
4. On 02.05.1996, the court charged Deepak for offences punishable under Sections 302, 307 and 450 IPC. He entered the plea of not guilty and claimed trial. The prosecution examined 25 witnesses in support of its case; Deepak examined two defence witnesses. On the basis of the materials, depositions of witnesses and rival contentions, the Trial Court found the accused Deepak guilty as charged and sentenced him to undergo Rigorous Imprisonment for committing the concerned offences, in the manner indicated previously in the present judgment.
5. At the outset, learned counsel for the appellant submitted that having regard to the evidence, particularly the depositions of PW-2, the deceased's younger son Ajay, as well as PW- 4, the elder son of the deceased, who sustained injuries, the attack by Deepak stood established and could not be denied. It was, however, submitted that Deepak got enraged due to remarks made by PW-2 Ajay Pal and other members of his family. Learned senior counsel for the appellant submitted that even as per allegations of the prosecution, there was no history of enmity or malice and that there was no motive for Deepak to have attacked Beermati and Dinesh. In this context, it was argued that according to the line of questioning adopted during the cross- examination, there was hardly any time-gap between the first incident when all members of the family were laughing and when the attack took place. Therefore, the versions of PW-2 and 4 about the reason for Deepak's anger are to be seen in the context of the deposition of other witnesses. Even though PW-2 and PW-4 deposed that there was trivial provocation for the attack, a reading of PW-5's testimony clarifies that the reason for the attack was something else. The said witness had deposed very clearly having witnessed the incident and heard Deepak stating CRL.A. 45/1998 Page 3 "tere bache rozana jaghre karte hain, tu inki himayat karti hai, mere raste se hat jaa" and an altercation between Birmati and the accused had taken place."
6. It was submitted that even though PW-2 and PW-4 had stated that they were laughing due to a humorous or comic scene aired on the television, it was evident that there was some previous history of the appellant Deepak being teased or quarreled with. Learned counsel also pointed to the cross-examination of PW-4 to the following effect:
"It is incorrect to suggest that I and my brother were standing on the door of our house when the accused Deepak had passed through the gali clad in a white trouser and shirt and that upon seeing him, we passed a taunting remark by saying "look the black crow in a white dress is coming". It is further incorrect to suggest that the accused felt bad when he heard the remark and an altercation took place between the accused and us. It is further wrong that the accused told us that we should not taunt in this way to which we replied that if we behave the same manner, what harm he could do to them. It is further wrong to suggest that thereafter an altercation took place between us which resulted in fight between the accused on one side and both of us on the other side. It is further incorrect to suggest that meanwhile, our mother also joined us and all of us dragged the accused inside our house and started beating him and the accused got released himself and tried to run away from there but we all three again caught hold of him. It is further incorrect to suggest that our mother picked up a thapi (wooden stick) for washing clothes and started beating the accused with that thapi and that Deepak also started beating us with fists and slapped blows and that he slapped fist blows to me also. It is further incorrect to suggest that I got angered at the beating received by me and in the fit of anger I went inside the house and brought a knife and that on seeing the knife, the accused became nervous and he tried to snatch the knife and in that process of snatching the knife, which was snatched by the accused from me, my mother received injuries and in the same process, I also received the injuries. It is further correct that after the incident the accused ran away from the spot and I cannot say he ran away towards his house."
7. It was emphasized that the evidence of PW-2 made it clear that Deepak was the son of the deceased's neighbour and that they did not have any previous history of enmity. The entire facts revealed that an altercation took place on account of a trivial provocation which evidently had some previous history. Learned senior counsel highlighted that the post mortem report of the deceased suggested that she died on account of a single blow and the Court should take this aspect into consideration and hold that this was not a case of previous deliberation or premeditated action. On the other hand, the entire evidence pointed to a sudden fight, leading to an altercation and the resultant injuries to the deceased and PW-4. In these circumstances, submitted learned senior counsel, the appellant could not have been convicted for the offence under Section 302 but instead it could have been under Section 304 IPC. In support of the CRL.A. 45/1998 Page 4 submission, learned counsel relied upon the judgments reported as Sandhya Jadhav v. State of Maharashtra 2006 (4) SCC 653; Balbir Singh v. State of Punjab 1995 (Suppl) 3 SCC 472; Sharad vs. State of Maharashtra 2009 (14) Scale 179; Jeet Singh vs. State of Haryana 2005 (11) SCC 597; Ramjit v. State of U.P. 2009 (11) SCC 373; Sheetla Prasad v. Baba 1994 (SCC) (Cr.) 161 and Jagtar Singh v. State of Punjab 1983 Crl.L. 852.
8. The learned APP argued that the findings and conviction recorded by the Trial Court are unassailable and ought not to be disturbed by this Court. It was submitted that the conduct of the appellant betrayed prior planning and premeditation. Reliance was placed in this regard upon the testimonies of PW-2 and 4 who had deposed that Deepak even upon being told that none of the deceased's family members were making fun of him, did not believe them and swore to finish Ajaypal, PW-3. To achieve this end, he went back home, returned armed with the knife, which was recovered subsequently during the investigation. PW-1/C, a drawing of the knife revealed that its total length was 32 cms, or 1 foot of which the blade was about 15 cm. Significantly, the knife was a "button-dar" one, i.e. the blade opening upon the press of a button. This was not a household article normally kept in residences. The appellant, going back in the first instance and returning with such a dangerous weapon and proceeding to use it without hesitation betrayed his real intention which was to inflict deadly injuries upon those who he was angry with or against whom he bore a grudge. The deceased Beermati came in the way and tried to protect her sons but unfortunately was brutally attacked. Not content, Deepak attacked Dinesh and caused serious injuries to him. It was submitted that even if the testimonies of PW-2 and PW-4 cannot be entirely relied upon, the independent deposition of PW-5 about how the events took place conclusively established Deepak's real intention to launch a murderous attack. In these circumstances, submitted the learned APP, the conviction and sentence recorded by the Trial Court are unimpeachable.
9. In this case, the MLC, Ex. 7/A and the Death Summary, Ex. 7/B reveals that Beermati was taken to hospital at 5.30 pm and declared brought dead. The MLC of Dinesh, PW-4, marked as Ex. PW-18/A, reveals that he too was examined at 5.30 PM on the date of the incident. The doctors declared him fit for statement. The observations in this document revealed that he had suffered a stab wound on the left side of the abdomen in mid-auxiliar line at the line of the last CRL.A. 45/1998 Page 5 rib to the extent of 1 inch into 1 into 6th of an inch. The postmortem report prepared by PW-12, Dr. A.K. Tyagi indicated the following injuries and cause of death:
"XXXXXX XXXXXX XXXXXX External Injury:- 1) Incised stab wound of 3.0x0.8 cm xcavity deep was present obliquely over middle outer front of left side chest. The upper inner angle was more acute than lower outer angle & upper angle is 10.0 cms horizontly out words & to left from the nipple. The injury entered the left side chest cavity by cutting the 4th rip and then went through and through the lower part of upper lobe of left lung near its inner margin it further entered the Heart i.e. left ventricle from its left wall by making a cut of 1.7x0.2 cms and ended by making small nick over inter-ventriculor septum. The depth in the heart is 04.00 cms and total depth of the injury was 11.5 cms. The direction of injury was from left to right obliquely downwords, inwards and slightly backwards.
Left side chest cavity contains blood about 600 cc. Injuries to left lung and heart as mentioned with external injuries.
Opinion - Death in this case was due to shock as a result of haemorrage caused by injury to chest. The Injury was antemortem, caused by sharp edged cutting stabing weapon and was sufficient to cause death in ordinary course of nature Blouse showd a cut mark corresponding to external injury.
The post mortem report No. 457/95 was prepared by me, i.e. in my own hand writing bears my signatures at point A. the same is exhibited PW. 12/A.
XXXXXX XXXXXX XXXXXX"
10. Since the appellant Deepak has not disputed having attacked the deceased and PW-4, it would be unnecessary to discuss the details with regard to depositions of various prosecution witnesses. In order to consider whether Deepak's conviction was correctly recorded under 302 IPC or it has to be altered as was submitted on his behalf, it is necessary to scrutinize the evidence PW-2, 4 and 5. These had claimed to be eye witnesses to the incident and were present when the attack took place.
11. PW-2 and PW-4 are consistent by and large, in stating the details and origins of the attack. It was deposed that on the day of the incident, both of them, along with the deceased were watching television around 4.00 PM. Deepak was passing by. Simultaneously, he heard them laugh. Thinking that they were laughing or mocking at him, he called out Ajaypal, PW-2 and asked him the reason for the laughter. PW-2 informed him that the laughter was on account of some comic incident in the television programme or film. The two eyewitnesses PW-2 and PW-4 CRL.A. 45/1998 Page 6 were extensively cross-examined whether the film ANDAAZ APNA APNA was screened at that time and who were the lead actors in that film. Deepak was unsatisfied with PW-3's explanation and tried to attack Ajaypal upon which PW-4 Dinesh interceded and separated the two of them from a scuffle. The latter part is spoken to by PW-4. Thereupon, according to both the witnesses, Deepak left the scene, threatening to return and finish Ajaypal. Barely three-four minutes later, he came back and tried to enter the house of PW-2, 4 and the deceased. According to the two witnesses, Beermati tried to stop him but was fatally stabbed. When Dinesh, PW-4 intervened, he too received stab injuries in the abdomen. It would thus be apparent that the cause for the attack, as made out by these two witnesses, was quite trivial.
12. PW-5, who apparently saw the later part of the occurrence and is an independent witness, had stated that when the deceased sought to intervene, Deepak remarked that she was always protecting her sons even though they were quarreling with him frequently (jhagra karte hain). The appellant Deepak in PW-4's cross-examination, suggested that he and PW-2 had remarked on that day that he was wearing a white pant and apparently looking like a black crow, which was the immediate cause of provocation. The suggestion was, however, denied.
13. It would be necessary to see if the attack was homicidal, and did not amount to murder. The appellant's counsel had urged that the present case fell under fourth exception to Section 300, IPC, which reads as follows:
"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 offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault.."
In Sandhya Jadhav (supra) relied on by the appellant, the Supreme Court held that:
"9. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals CRL.A. 45/1998 Page 7 with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
14. In Balbir Singh (supra) relied on by the appellant, it was held that:
"6. It was next contended that in any case it was not proper to convict the appellant under Section 302 IPC. The contention deserves to be accepted. This was not a case of premeditation as the accused and the deceased met by chance and the appellant had given only one blow. The evidence regarding raising of a lalkara by the other accused has not been believed by the trial court. On the basis of the evidence led in this case it is not possible to say with certainty under which circumstances the appellant gave a kirpan blow to Amrik Singh. No attempt was made by him to give another blow. The injury caused on the head of Amrik Singh does not appear to have been caused intentionally. Therefore, in view of the facts and circumstances of this case we are of the opinion that the lower court committed an error in convicting the appellant under Section 302. He should have been convicted under Section 304 Part I. Therefore, we alter the conviction of the appellant from Section 302 IPC to Section 304 Part I IPC. The sentence of RI for life is set aside and instead he is ordered to suffer RI for 10 years. This appeal is allowed to the aforesaid extent. As the appellant has been released on bail he is ordered to surrender to his bail bond, so as to serve out the sentence imposed upon him..."
CRL.A. 45/1998 Page 8 The relevant observations in Jeet Singh (supra) relied on by the appellant, to say that the attack was not with the intention of causing death, are as follows:
"It is pointed out that there was no previous quarrel or enmity between the appellant and the deceased and the quarrel had suddenly taken place due to the fact that the deceased Bawa Singh drove the tractor through his field and the sudden quarrel ensued because of the conduct of the deceased. It is also pointed out that the appellant was having a weapon with him and he gave only one blow which unfortunately had resulted in the death of the deceased. It is contended by the appellant's counsel that the offence would come within the ambit of Section 304 Part I IPC. It is true that there is only one fatal injury on the head of the deceased. The appellant must have inflicted a blow on the head of the deceased because of the quarrel between the two. The appellant certainly would have knowledge that his act would result in the death of the deceased. Hence, the offence comes under the purview of Section 304 Part I of the Indian Penal Code and hence we set aside the conviction of the appellant for the offence under Section 302 IPC and hold him guilty of the offence under Section 304 Part I IPC and sentence him to undergo imprisonment for a period of 8 years. The appeal is disposed of as above."
15. Stating that merely because an assailant goes away for a short while, after the initial altercation, but soon returns, to launch an attack, there need not necessarily be an inference that the assailant intended to cause death, punishable under Section 302, the appellant in this case had relied on Ramjit (supra). The court had observed, in that case that:
"12. It is submitted by learned counsel for the State that this cannot be stated to be a case of sudden quarrel because the accused persons after the quarrel went inside and came back with arms. In the instant case though the witnesses stated that after initial exchange of hot words and quarrel the accused persons went inside and came back, it is to be noted that they have fairly accepted that while the exchange of hot words, quarrel was continuing and immediately i.e. in less than two and three minutes they came back.
13. That being so, in the peculiar facts of the case we are of the considered view that appropriate conviction would be under Section 304 Part I read with Section 149 IPC. The conviction is accordingly altered. The other convictions remain unaltered. Custodial sentence of 10 years in respect of offence punishable under Section 304 Part I IPC would suffice. The sentences in respect of other offences remain unaltered. All the sentences shall run concurrently..."
In much the same vein, as in the cases cited by the appellant, the Supreme Court, in Shitla Prasad v. State of U.P.,1994 SCC (Cri) 1161, held that:
"The next question is whether the offence committed by the appellant amounts to murder? The evidence of all the four eyewitnesses shows that it was a sudden affair. PW 1 objected to the accused diverting the water and when he did not pay any heed PW 1 called the deceased in his presence to intervene in the quarrel that took place. It was also stated that the matter could be settled by the Panchayat. As a matter of fact PW 2 in the cross-examination admitted that because of the incident of diverting water, the quarrel CRL.A. 45/1998 Page 9 took place and the accused inflicted the single injury. In the circumstances it cannot be held that clause 1 of Section 300 applies. Then we have to consider whether clause 3 is attracted. Having regard to the nature of the injury and to the fact that the appellant did not inflict any more injuries it is difficult to hold that he intended to inflict that particular injury which the doctor opined to be fatal. However, the fact remains that the deceased died because of this injury. The High Court however failed to note that the prosecution has to prove that the appellant intended to cause that particular injury. In this process of enquiry the question arises whether he had intention to cause that particular injury. This ingredient is not established beyond doubt. However, it must be held that the appellant had knowledge that by inflicting such injury he was likely to cause death. In the result the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life are set aside. Instead he is convicted under Section 304 II IPC. The appellant has already undergone a period of seven years. Therefore the sentence is reduced to the period already undergone.."
In Jagtar Singh the facts were that the accused had inflicted a single knife injury which proved fatal. The court held that though death ensued, the prosecution did not establish that the offence was one under Section 302, IPC:
"The next question is what offence the appellant is shown to have committed? In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. Therefore, the appellant is shown to have committed an offence under Section 304 Part II of the IPC and a sentence of imprisonment for five years will meet the ends of justice."
16. It is apparent from the above, that the Supreme Court has held that where the incident leading to the fatal attack, is preceded by a trivial quarrel, and the assault is limited to a single, though fatal blow, without any history of malice, or previous ill well between the deceased and the assailant, even a short while, i.e a few minutes elapse between the quarrel, the accused leaving the scene, and returning armed, the attack may not amount to murder, but would be covered by Section 304. In the present case too, the quarrel between the appellant and the deceased's sons, was due to a trivial reason. Although PW-2 and PW-4 denied having teased or laughed at the appellant, refusing his suggestion, the independent testimony of PW-5 somewhat supports his (the appellant's) version about some irritant or provocation, particularly the allusion to the two boys (PW-2 and PW-4) always quarrelling with him. The appellant is consistently shown to have used the word "Himayat" to PW-4 and the deceased. There is no reason to disbelieve PW-5. In fact, this version is closer to that of the line of questioning, on behalf of the CRL.A. 45/1998 Page 10 appellant, that the boys had teased him. He, therefore, went home, and returned within about 3-4 minutes. He tried to assault Ajaypal; the deceased tried to prevent him; he attacked her. PW-4 thereafter tried to intervene; he too was attacked. All these facts do not suggest pre-meditation, or a previous history of ill will between Deepak and the deceased's family. He launched an attack on the deceased, when he thought that she would prevent him from assaulting Ajaypal.
Both she and PW-4 were given single blows, when they tried to prevent his attack. These facts, viewed cumulatively do call for the applicability of Exception 4 to Section 300, IPC, as to amount to culpable homicide, covered by the first part of Section 304.
17. In view of the above findings, the court is of the opinion that the appellant's conviction under Section 302 IPC needs to be altered to one under Section 304, first Part. The conviction for the other offences is, however, undisturbed. Having regard to the facts of this case, the appellant's sentence is modified to seven years RI, for the offence punishable under Section 304, Part I, IPC. The sentence in respect of the other offences, are however, left unaffected. All sentences shall run concurrently. Crl. Appeal No. 45 of 1998 is partly allowed to this extent.
S. RAVINDRA BHAT (JUDGE) G. P. MITTAL (JUDGE) MARCH 09, 2011 CRL.A. 45/1998 Page 11