Dewan Chand And Anr. vs State
1983 Latest Caselaw 152 Del

JUDGMENT

G.R. Luthra, J.

(1) On August 28, 1980, an Additional Sessions Judge, Delhi (Shri S.C. Jain), convicted each of the appellants, Dewan Chand and Gopal for offence of murder of Dwarka Parshad punishable under Section 302 read with Section 34 Indian Penal Code and sentenced each of them to undergo imprisonment for life. Dewan Chand appellant was further found guilty of and convicted in respect of offence punishable under Section 27 of the Arms Act for unlawfully using a knife for the commission of the murder of Dwarka Parshad.

(2) The first information report against the appellants was registered on the basis of a statement of Daulat Ram, resident of house No.9/21-A, Vijay Nagar Double Storey Quarters, Kingsway Camp, Delhi. He is father of Dwarka Parshad. The statement was briefly as follows. On September 18, 1979 at about 9 20 p m. he heard a noise of a quarrel coming from outside the house. Daulat Ram came out of the house and found that the appellants were beating his son Dwarka Parshad. He raised an alarm in order to get help. On hearing that alarm, Vinod Kumar (PW 7) and Subhash (PW 9), both sons of Daulat Ram and many persons of the locality collected. The appellant, Dewan Chand gave a knife blow to Dwarka Parshad which fell on the left thigh of the latter. Vinod Kumar (PW 7) tried to over power Dewan Chand but the latter gave a knife blow to the former also. Vinod also in that way sustained injuries on his left hand. On finding that a large number of persons had gathered, both the appellants made good their escape. Dwarka Parshad after receiving knife blow entered house No. 9/20 with a view to save himself. He was, thereafter taken in a three wheeler scooter by his brothers Vinod Kumar (PW 7) and Subhash (PW 9) to the hospital.

(3) There was quarrel between the appellants on the one side and Dwarka Parshad on the other side two or three days prior to the aforesaid occurrence but at that time Dwarka Parshad was able to escape unharmed and succeeded in running away. Both the appellants thereafter conspired with each other and it was on account of that conspiracy that Dwarka Parshad was injured.

(4) After the aforesaid statement was recorded by Si Mahesh Chander (PW 22), the same was sent by the said police officer to the police station for the recording of the formal first information report. That statement was dispatched from the spot at about 10.30 p m. and the first information report on the basis of the same was recorded at 10.45 p.m.

(5) Dwarka Parshad was taken to Hindu Rao Hospital by his brothers Vinod Kumar and Subhash. In the said Hospital Dr. Jayanti Gupta (PW 1) examined Dwarka Parshad and found that an incised wound of the size of 1.5 cm x 0.5 cm x ? was present on the upper and medial part of left knee and that profuse bleeding was going on from the said wound. Dr. Jayanti Gupta (PW 1), as he says, took all measures to save the life of Dwarka Parshad but the latter succumbed to the injury at 10.05 p.m. 6. On September 19, 1979 at about 1 p m. Dr. Bharat Singh (PW 8), Police Surgeon, Police Hospital, Delhi conducted the post mortem examination on the dead body of Dwarka Parshad aged about 27 years and found the following injury : "Incised stab wound over the left thigh on its medial size 3" above the knee joint. Wound was placed obliquely. Size of the wound was 1" x " x ? Both the angles of the wound were equally pointed. Wound was covered by a clotted blood. There was no other external injury on the body." On further exploration of the injury he found that the wound was going deep in the soft tissues of the thigh and that the femoral artery was cut before its entry between the adductor magnum and vastus media lies muscles. Dr. Bharat Singh expressed an opinion that the death was due to haemorrhage resulting from the aforesaid injury and the injury could have been caused by the dagger Ex. P1.

(6) Investigation was carried out by Si Mahesh Chander (PW 22) of police station Kingsway Camp, Delhi. He took into possession the dagger Ex. P/1 from a distance of about 10 paces from the place of occurrence. He also took into possession sample blood etc. from, the spot and after recording statements of the witnesses, completed the investigation.

(7) The appellants in their statements under Section 313 Cr. P.C. denied the entire prosecution version and stated that they were innocent.

(8) The prosecution examined in all 22 witnesses out of whom Daulat Ram (PW3), Vinod Kumar (PW 7), Subhash (PW 9) and Kuldip Raj (PW 20) are the eye witnesses. Pw 3, Pw 7 and Pw 9 supported the entire prosecution version. Kuldip Raj (PW 20), however, stated that on September 18, 1979 at about 8.30 or 9 p.m. he was coming from the side of Gur Mandi to Double Storey Quarters, Vijay Nagar, that when he reached block No. 10, he saw some crowd in front of quarter No. 20, Double Storey Quarters, Vijay Nagar, that two to four persons were grappling with each other and that people were shouting that Dewan and Gopal had stabbed Dwarka. At the instance of the public prosecutor such questions as could be asked in cross-examination were allowed to be put to him. But he denied the making of any statement before the police to the effect that he had seen the occurrence.

(9) There is no reason to disbelieve Pw 3, Pw 7 and Pw 9. Statement of Daulat Ram was recorded and on the basis of the same, first information report was recorded with promptness. However, the case against Gopal is not free from doubt. Daulat Ram in his statement merely stated that Gopal had conspired with Dewan Chand. No overt act showing his common intention was alleged. During evidence, however, some improvement had been made and it has been stated by Pw 3, Pw 7 and Pw 9 that he caught hold of Dwarka Prasad and exhorted Dewan by saying "Maro Sale Ko". In view of the fact that the aforesaid was not mentioned in the statement of Daulat Ram casts doubt about the making of the exhortation and catching hold of Dwarka by Gopal. So that there should be a common intention there must be meeting of minds to commit a particular offence. There should be some pre-arranged plan even though the said plan is formed all of a sudden or at the spur of the moment. Existence of such pre-arranged plan does not stand established and, therefore, it cannot be said that the injury to Dwarka Parshad was caused in furtherance of common intention of the appellants. That being so, Gopal must be given benefit of doubt. 11. Then we are confronted with the question as to what offence was committed by Dewan Chand, appellant. Definition of murder is given in Section 300 IPC. The first clause of that definition says that culpable homicide is murder if the act by which the death is caused is done with the intention of causing death. In the present case there is no circumstance leading to the conclusion that Dewan Chand wanted to cause the death of Dwarka Parshad. It is only clause 3rdly which can have the possibility of application and that clause reads that culpable homicide is murder if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In the present case, cutting of femoral artery was sufficient in the ordinary course to have caused death but it cannot be said that the appellant Dewan Chand had the intention to inflict the particular injury of cutting of femoral artery. He only inflicted knife blow on thigh which is not vital part and it was only co-incidence that the aforesaid artery was cut. In a similar case in Paramjit Singh and another v. The State, , we held that the offence committed was one punishable under second part of Section 304 IPC.

(10) We, therefore, accept the appeal of Gopal, give him benefit of doubt, set aside the conviction and sentence and acquit him. The conviction of appellant Dewan Chand is altered from 302 Ipc to the second part of Section 304 IPC.

(11) The appellant Dewan Chand was aged little more than 16 years at the time of the commission of the offence. According to Section 6(1) of the Probation of Offenders Act, 1958, when a person under 21 years of age is found guilty of having committed an offence punishable with imprisonment but not with imprisonment for life, he shall be given the benefit of being released on probation of good conduct unless the court, for reasons to be recorded, is of the opinion that course should not be adopted. For the purpose of forming the opinion, as Sub-section (2) of Section 6 of the said Act says, it is necessary to call for the report of the probation officer. Therefore, the report of the probation officer should be obtained within ten days and the matter of either releasing Dewan Chand on probation of good conduct or sending him to imprisonment will be considered on May 26, 1983.