Karan Singh vs State
1987 Latest Caselaw 30 Del

JUDGMENT

Aggarwal, J.

1. Karan Singh, the appellant herein, was charged with the murder of Janardhan. He was further charged along with Noor Mohd. for the offence under S. 307 read with S. 34 of the I.P.C. for having caused injuries to Kishori Lal. The appellant was found guilty of both the offences and he was sentenced to imprisonment for life on the first charge, and to imprisonment for five years and a fine of Rs. 100/- and in default of payment of fine to undergo rigorous imprisonment for six months on the second charge. The co-accused Noor Mohd. was given benefit of doubt and acquitted.

2. Against his convictions and sentences Karan Singh has come in appeal.

3. The case for the prosecution is this. The deceased, Kishori Lal and the appellant resided in Naniwala Bagh, Azadpur, Hira Lal, brother of P.W. 2 Kishori Lal (not real brother) was the Vice-President of the Panchayat of Naniwala Bagh. The appellant was the President of the said Panchayat. The appellant had collected some fund from the residents for some common utility. The residents were demanding the money from Hira Lal who in turn demanded the money from the appellant. But the appellant would put off Hira Lal on one pretext or the other.

4. On 22nd November, 1981 which was a Sunday, the prosecution case is, that the appellant went to the Jhuggi of Hira Lal and remonstrated with him for demanding the money from him and he also gave beating to Hira Lal. Mukh Ram, a neighbour, intervened and separated the two. This happened at about 6.15 p.m. The deceased Janardhan on coming to know of the above incident went to Hira Lal and enquired from him about the cause of the appellant beating him. Kishori Lal was also present there. Hira Lal told the deceased as to what had happened. Janardhan along with Kishori Lal went to the Jhuggi of the appellant and asked him the reason for his beating Hira Lal. It is alleged that Noor Mohd. was also present at the spot. The appellant retorted to Janardhan as to who he was to question him. Janardhan replied saying that he should not indulge in beatings.

5. The prosecution case further is that Kishori Lal and Janardhan and the appellant Karan Singh exchanged hot words and while doing so they moved to near the Jhuggi of Toofan. The prosecution case further is that Noor Mohd. shouted to Karan Singh "Maaro Saalon Ko" and on which Karan Singh who was carrying a Kirpan underneath his shirt took out the kirpan and assaulted Janardhan on his left side of the chest. Kishori Lal advanced to help Janardhan but he was caught by Noor Mohd and Karan Singh gave about 5-6 dagger blows to Janardhan on various parts of his body. Kishori Lal got himself released from the grip of Noor Mohd. but before he could reach to the help of Janardhan he was again caught by Noor Mohd. Karan Singh, it is alleged, gave a few blow with the Kirpan to Kishori Lal as well Karan Singh, is also further alleged, to have given Kirpan blow to have given Kirpa blow to Janardhan. Karan Singh thereafter is alleged to have gone to his Jhuggi. The injured Kishori Lal and Janardhan ran to their Jhuggis but they fell before the Jhuggi of Janardhan.

6. The occurrence is stated to have been witnessed by Mukh Ram, Risal and Subhash. Risal Singh lodged a report at the police station. Both the injured were removed to Hindu Rao hospital where they were examined by Dr. K. K. Gupta (P.W. 19). Dr. Gupta examined Janardhan at 8 p.m. and found the following injuries on his body :

"1. Incised wound on left side of lower chest 1" x 1/2" crepitus.

2. Incised wound on left side of the lower abdomen 1" x 1/2". Omentum coming out.

3. Incised wound on upper part of left thigh 1 1/2" x 1/2".

4. Incised wound on left axillary region lower part 1/2" x 1/4".

5. Incised wound on left side of the lower chest 3/4" x 1/2".

6. Incised wound on the left side of hip region 3/4" x 1/4".

7. Incised wound on the left side of hip joint 3/4" x 1/4".

8. Incised wound on the left posterior axillary region 3/4" x 1/4".

9. Incised would on left elbow joint on medial side 3/4" x 1/4".

10. Incised wound on left side of neck 3/4" x 1/4".

7. Kishori Lal was also examined by P.W. 19 and the following injuries were found on his body :

"1. Incised wound left iliac fossa measuring 1" x 1/4" Omentum coming out of the wound.

2. Incised wound 3/4" x 1/2" on left lumber region.

3. Incised wound left axilla 1" x 1/4".

4. Incised wound 1/2" x 1/4" on left elbow joint. Bleeding from the wounds present."

8. Janardhan was operated upon and multiple perforations were found in small intestines and a tear in the mesentery which was sutured. Ex. PW 19/A are the operation notes of Dr. Gupta. Janardhan succumbed to the injuries on 23rd November, 1981.

9. Dr. Bharat Singh performed the post-mortem on the dead body of Janardhan on 24th November, 1981. Dr. Bharat Singh gave the report that injury No. 3 (post mortem report) was sufficient to cause death in the ordinary course of nature. The doctor further stated that other injuries had not involved any vital organ of the body according to the report of Dr. Bharat Singh injury No. 3 had entered the left side of chest cavity in lower part and had cut the posterior part of the diaphragm. Dr. Bharat Singh in cross-examination stated that there was injury to the chest wall which had led to the collapse of the lung and that there was no evidence of a diseased process in the lungs. The doctor further stated that it was correct that massive collapse of even one lung many cause death.

10. The accused in his statement at the trial denied that he had collected any amount from the residents. The accused further stated that on 22nd November, at about 4 p.m. Hira Lal had come in drunken condition to his Jhuggi and he had tried to assault him but he had pacified him and sent him back. As regards the occurrence in question the accused stated that Janardhan and Kishori Lal come to his hut and a scuffle had ensued and while scuffling they had moved to near the Jhuggi of Toofani. The accused further stated that Kishori had caught him and Janardhan had attacked him with a dagger. The accused further stated that he had lost balance of mind and that he does not known how injuries were caused to Kishori and Janardhan. The accused stated that Janardhan was the aggressor and the had only tries to save himself.

11. We have with the help of the learned advocate for the appellant gone through the record. The fact that the occurrence took place on the evening of 22nd November, 1981 near the Jhuggi of the appellant in which Janardhan had died and P.W. 2 Kishori Lal had suffered incised injuries admits of no doubt. The occurrence is not disputed by the appellant. He has only put forward a counter-version. The crucial question is whether the occurrence took place as alleged to by the prosecution or it took place as put forward by the appellant.

12. The presence of P.W. 2 Kishori Lal injured cannot be doubted P.W. 3 Risal Singh, P.W. 4 Mukh Ram and P.W. 10 Zile Singh are the eye witnesses to the occurrence. P.W. 2 Kishori Lal has stated that there was exchange of hot words in front of the Jhuggi of the appellant. We have in the earlier part of the judgment narrated the details of the occurrence as deposed to by Kishori Lal and we need not repeat it. P.W. 3 gave evidence that there was grappling between Kishori Lal, Janardhan and Karan Singh in front of the Jhuggi of Karan Singh and while grappling all the three had moved in front of the Jhuggi of Toofani. The witness has further deposed that while grappling the injured party and the appellant had exchanged fist blows. P.W. 3 denied the suggestion that Janardhan had attacked Karan Singh with the dagger and Karan Singh had snatched the dagger from Janardhan and thereafter caused injuries to Kishori Lal and Janardhan P.W. 3 supported the prosecution case as regards the causing of the injuries to Janardhan and Kishori Lal by the appellant. P.W. 4 Mukh Ram gave evidence that there was exchange of hot words between Karan Singh, Janardhan and Kishori Lal outside the Jhuggi of Karan Singh and that while quarreling they had moved towards the Jhuggi of Toofani. He further testified that in his presence there was no exchange of blows or slaps but the injured party and the appellant had pushed each other. P.W. 10 Zile Singh in his further examination dt. 18th September, 1982 testified that he had seen the deceased Janardhan and Kishori Lal going to the Jhuggi of Karan Singh and they had pulled his beard.

13. On the evidence discussed above, there appears no doubt that earlier in the day of the occurrence there was some sort of altercation between the appellant and Hira Lal but there is no clear evidence regarding the cause for that altercation. There also is no doubt that the deceased Janardhan and Kishori Lal had gone to the Jhuggi of the appellant and heated arguments had developed between the two parties which ended up in injuries to the deceased Janardhan and Kishori Lal.

14. The defense of the appellant is that Janardhan was armed with a dagger and he had attacked him while Kishori Lal held him. The defense further is that the appellant had snatched the dagger from Janardhan and thereafter caused injuries to Janardhan and Kishori in self defense. The eye witnesses have refuted this part of the defense version. We have carefully perused the evidence and we also are not inclined to accept this part of the defense story. There is no evidence that the appellant had suffered any injury. If Janardhan was armed with a dagger it is just not possible to believe that the appellant would have escaped unhurt and the deceased and Kishori Lal would have received so many injuries.

15. We reject the defense versions that Janardhan was armed with a dagger and he had attacked the appellant.

16. We, however, are willing to agree with the learned advocate for the appellant that the occurrence was without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. The learned advocate contended that the exception 4 to S. 300 would be applicable. Exception 4 is in the following terms :

"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 is the first assault".

17. On the evidence produced we are of the view that it cannot be held that the appellant had caused the injuries without his having taken under advantage or acted in a cruel or unusual manner. The appellant, it seems, was carrying a small kurgan/dagger and he had caused as many as 10 incised injuries to the deceased Janardhan and 4 incised injuries to Kishori. There can be no doubt that the appellant had taken undue advantage and acted in an unusual manner. We find that Exception 4 is not applicable.

18. The learned advocate further contended that looking to the medical evidence and other circumstance it cannot be held that the appellant had intended to cause the death of Janardhan. The counsel contended that the case in any event would fall under S. 304 of the I.P.C. According to Dr. Bharat Singh it was injury No. 3 which had proved fatal. The doctor deposed that other injuries had not involved any vital organ of the body. According to the post-mortem report injury No. 3 was on the left side of chest in posterior axillary line 9" below the arm-pit. On cutting the suture, wound was found to be 1/4" and it was chest cavity deep. It has entered the left side of chest cavity in lower part and had cut the posterior part of the diaphragm.

19. On giving the case our very careful thought we are of the view that it is possible that during the scuffle when Janardhan and Kishori had pulled the beard of the appellant he had control over himself and he took out the kirpan and inflicted the injuries aimlessly. In the circumstances of this case we are of the view that it may not be safe to hold that the appellant intended to cause the death of Janardhan. It, however, could safely be held that the appellant had the knowledge that his act is likely to cause death or to cause such bodily injury as is likely to cause death.

20. We for the reasons recorded above set aside the conviction of the appellant under S. 302 of the I.P.C. and instead convict him under Part II of S. 304 of the I.P.C. and sentence him to rigorous imprisonment for 8 years. The conviction and sentence of the appellant on the charge under S. 307, IPC is affirmed. Both the sentences shall run concurrently. The appeal is allowed to the extent indicated above.

21. Order accordingly.