Jai Singh vs The State
1986 Latest Caselaw 111 Del

JUDGMENT

Aggarwal, J.

1. Jai Singh son of Mani Lal and Suraj Prakash son of Prem Raj along with Gurbachan Singh (since acquitted) were charged with the offences under S. 302 read with S. 34 of the Penal Code and S. 307 read with S. 34 of the Penal Code. The first accused in addition to the above charges was also charged under S. 27 of the Arms Act. Shri V. B. Bansal, Addl. Sessions Judge, who tried the case found Jai Singh and Suraj Prakash guilty of the charges under S. 302 read with S. 34 of the Penal Code and S. 324 read with S. 34 of the Penal Code and sentenced each of them to imprisonment for life on the first charge and to rigorous imprisonment for 2 years on the second charge. Jai Singh was further found guilty of the charge under the Arms Act and sentenced to rigorous imprisonment for 3 years. The sentences were ordered to run concurrently. Gurbachan Singh was given benefit of doubt and acquitted.

2. Girdhari Lal (P.W. 4) along with his brother Nanu Lal and a cousin Kamodhar (P.W. 3) resided at Sayedwali Street, Azadpur, Delhi, Girdhari Lal was in the service of the Corporation. Nanu Lal and Kamodhar did cycle repairing job in front of Vijay Cinema. The case for the prosecution as unfolded by Kamodhar is that about 15 or 16 days prior to the occurrence Jai Singh, Suraj and Gurbachan Singh left a bicycle for over hauling. Nanu and Kamodhar over hauled the bicycle and in the evening Jai Singh collected the bicycle promising to pay the charges at his house. Suraj and Gurbachan were also accompanying Jai Singh when he collected the bicycle.

3. On 3rd July 1980 at about 7 a.m. Nanu Lal and Kamodhar were going to their place of work by the side of the railway line. They met Jai Singh, Suraj and Gurbachan. Nanu Lal asked Jai Singh for the cycle repairing charges. Jai Singh, it is alleged, caught Nanu by his hand and twisted his arm. Thereafter, Suraj said that they should take him to his house where they would make the payment. All the three dragged Nanu towards Mandir Lali gali. Kamodhar ran home and informed Girdhari Lal of what had happened. Girdhari Lal accompanied by Kamodhar rushed to Mandir Wali gali and near the house of Mangli he saw all the accused catching Nanu Lal. Girdhari Lal asked them as to why they were catching Nanu Lal and told them to leave him. Jai Singh, it is alleged, took out a knife from the right side dub of his pant and inflicted a blow with it on the chest of Nanu Lal saying "Iska Hisab Chukta Kar Doonga". It is alleged that Suraj and Gurbachan were holding the deceased when the knife blow was given by Jai Singh. After inflicting the knife blow Jai Singh and his companions tried to escape. Girdhari Lal went forward to stop them and it is alleged that Gurbachan and Suraj caught Girdhari Lal and Jai Singh gave knife blows in the stomach and on the hip of Girdhari. After inflicting the blows on Girdhari Lal the accused ran away from the spot.

4. On receiving copy of daily diary entry No. 2A, Sub-Inspector Dhan Singh (P.W. 12) with a few constables reached the spot of occurrence. He found Nanu lying dead near the house of Mangli. Girdhari Lal was also found there in an injured condition. P.W. 12 sent Girdhari Lal to Hindu Rao hospital. He further recorded the statement Ex. PW2/A of Kamodhar and sent the same to the police station for the registration of the case. The crime team was summoned and the scene of crime was inspected and photographed. Three pairs of Chappals and belt were found at the spot of crime. P.W. 12 seized the said articles.

5. Dr. Bharat Singh performed post-mortem on the dead body of Nanu and he found the following injuries on the dead body :

"1. One incised stab wound over the front of right side chest, placed obliquely 3" medical and below the right nipple with tapering and on the right side, size 1 1/2" x 1/2" x ? Wound is covered by clotted blood.

2. One abrasion on right shoulder, size 2" x 1" red.

6. The doctor on internal examination found that injury No. 1 had entered the chest through fifth intercostal space and had cut the lower lob of right lung through and through and then the track of the wound was continuous on the right ventricle of heart. The total depth of injury No. 1 was found to be 4 1/2". The doctor opined that injury No. 1 was caused by a sharp edged weapon and was sufficient to cause death in the ordinary course of nature. As regards injury No. 2 the doctor stated that it was possible by a fall on a hard surface. Girdhari Lal was examined by Dr. V. Khanna (PW14) and he found the following injuries on his person :

"1. Sharp edged wound (stab wound) around 2" x 1/2" Part of omentum coming out of the wound. Around 3" lateral to umbilicus to the right.

2. Another sharp edged wound 1/2" x 1/4" right iliac crest.

3. Contused lacerated wound left forefinger lateral aspect 1/4" long."

7. P.W. 15 Dr. R. N. Bansal gave evidence on the basis of the case sheet of Girdhari Lal that the injuries were grievous.

8. Jai Singh and Suraj Prakash were arrested on 18th July 1980. On a disclosure made by Jai Singh a knife and a bush-shirt stained with blood were recovered from a small jhuggi behind Azad Market. Similarly, on a disclosure made by Suraj Prakash an open shirt having blood stains was recovered from a jhuggi behind Azad market. The aforementioned articles were sent to the Central Forensic Science Laboratory for examination and the report is that the shirts and the dagger are stained with human blood of 'B' group. This also is the blood group of the deceased.

9. The accused in their statements at the trial denied the prosecution case. Both Jai Singh and Suraj Prakash stated that the case against them is false.

10. We have carefully gone through the statements of P.Ws. 3 and 4 and we are of the view that the version of the occurrence given by them is substantially true. The appellants were named in the first report which was recorded at about 8.30 a.m. The formal report was recorded at 8.40 a.m. The record shows that the copy of the formal report was received by the Metropolitan Magistrate at 10.35 a.m. (Ex. PW2/A). The occurrence took place at about 7 a.m. Ex. PW2/A leaves no doubt that the first report was recorded at the time and the place it purports to have been recorded. There is hardly any time lag between the occurrence and the first report within which a thought out version of the occurrence could be given.

11. There is no doubt that in the first report the name of the third accused given is Jagdish but actually it turned out that the third person accompanying the appellants was not Jagdish but Gurbachan. There has been some bungling in this respect. Girdhari Lal has named the appellants as his assailants and we find no reason at all for Girdhari Lal to shield the real culprits and name the appellants falsely as his assailants. The presence of Girdhari Lal at the spot cannot be doubted at all.

12. The appellants were arrested on 18th July 1980 and blood stained clothes and the weapon of offence were recovered at their instance. The clothes and the dagger were found to be stained with human blood of 'B' group and which is the blood group of the deceased.

13. The above evidence, in our view, establishes beyond doubt the presence and the participation of the appellants in the assault.

14. The crucial question that arises for determination is what is the role played by the two appellants in the assault, Both P.Ws. 3 and 4 have testified that while Suraj and Gurbachan were holding Nanu, Jai Singh had pulled out a knife from the right side dub of his pant and inflicted a blow with it on the chest of Nanu. Thereafter, according to P.W. 4 when he tried to prevent Jai Singh and his companion from escaping Gurbachan and Suraj had caught him and Jai Singh had given a knife blow in is stomach and another blow on his hip.

15. The pictures of the scene of crime show the deceased lying near a pole with his feet in the drain. One piece of chapal is lying by the side of the deceased and another piece of the chappal is lying in the drain. Another two pairs of chappals and a belt were found lying at some distance from the dead body. From the photographs of the scene of crime, it seems, that there was a scuffle between the accused and the deceased before the deceased was assaulted with the knife.

16. On the facts and in the circumstances of this case we do not feel it safe to hold that there was any common intention between Jai Singh and Suraj Prakash in the giving of the knife blow by Jai Singh to Nanu. It seems that Jai Singh had suddenly pulled out the knife from the dub or pocket of his pant and inflicted a blow in the chest of Nanu. But as regards the infliction of the injuries to Girdhari the case may be different. The evidence is that after inflicting the knife blow to Nanu, Jai Singh and his companions tries to escape, Girdhari Lal tries to prevent them from escaping. It is at that time that Suraj and Gurbachan are alleged to have caught Girdhari Lal and Jai Singh gave one knife blow in the abdomen and one blow on the hip of Girdhari. On these facts it could be said that a common intention had come into existence between the accused in the infliction of the injuries to Girdhari.

17. In the above view of the evidence we would set aside the conviction of Suraj Prakash on the charge under S. 302 read with S. 34 of the Penal Code and acquit him of the said charge. We maintain his conviction on the charge under S. 324 read with S. 34 of the Penal Code but reduce his sentence of imprisonment to the period already undergone.

18. Learned counsel for Jai Singh contended that the attack on the deceased was not premeditated and that it seems in a sudden fight in the heat of passion upon a sudden quarrel and without Jai Singh having taken any undue advantage or acted in a cruel or unusual manner he had given a single blow with a knife to Nanu which unfortunately proved fatal and that the case would fall within Exception 4 of S. 300 of the Penal Code.

19. There is no clear evidence as to how the occurrence originated. We have no doubt that the meeting of the deceased and the appellants on that fateful morning of the occurrence in Mandir Wali gali was a chance meeting. Also the assault on the deceased was not premeditated. The occurrence appears to be sudden and preceded by a quarrel and grappling. A demand for the cycle repairing charges could be the cause of the quarrel. The photographs of the scene of crime support our conclusion that there was a quarrel and grappling between the two parties. It seems during the quarrel the appellant Jai Singh took out a knife and dealt a blow which unfortunately landed on a vital part and proved fatal. There is nothing in the evidence to show that Jai Singh had taken any undue advantage or acted in a cruel or unusual manner. We are of the view that the case of Jai Singh would fall under Exception 4 of S. 300 of the Penal Code. We would set aside the conviction of the appellant Jai Singh on the charge under S. 302 of the Penal Code and instead convict him under Part I of S. 304 of the Penal Code and sentence him to rigorous imprisonment for ten years. His convictions and sentences on the other charges are also affirmed. The sentences, however, shall run concurrently. The appeal is disposed of accordingly.

20. Order accordingly.