Darshan Lal And Anr. vs State
1990 Latest Caselaw 99 Del

JUDGMENT

Malik Sharief-ud-Din, J.

(1) The appellants have. been convicted and sentenced to undergo imprisonment for life under section 302 of the Indian Penal Code. Manjit Singh and Amrik Lal two of them were convicted with the aid of section 34 Indian Penal Code .

(2) The incident in this case took place at Shardanand Market within the jurisdiction of police station Lahori Gate. Shop No. 1 situated on one side of street belongs to Lekh Raj (P.W. 9) and his deceased brother Davinder while shop No. 924/4 belongs to appellants Darshan Lal and Amrik Lal Both the parties sell brooms and the refused used to be dumped in a by-lane a portion of which, to the extent of three feet, had been allegedly encroached upon by the appellant party. The appellants used to object to the throwing of refuse on that place as a result of which both had taken to a hostile stance towards each other. According to the prosecution on 25th of April 1981 dispute arose between the parties on this issue regarding which police was informed. In that incident one Charan Dass and Amrik Lal had sustained simple injuries. The offence was, however, compounded by the parties. Evidence of this fact is provided by Om Dutt S.I (P.W. 14) which is based on official records.

(3) The present incident took place on 24th of June 1982. It was in this incident that Davinder deceased died consequent to the fatal injury he sustained at the hands of Darshan Lal appellant. The evidence as to how the incident took place is provided by Public Witness . 2 Ramji Lal and Public Witness 9 Lekh Raj; maternal uncle and the brother of the deceased respectively Ramji Lal (P.W. 2) runs shop No. 3 adjacent to shop No. 1.

(4) The evidence of these two eye witnesses is that at 10.15 5 Am 246.1982 on throwing of refuse by Amrik Lal and Darshan Lal which fell on Davinder deceased a quarrel took place between them. The quarrel was however, restricted to the raising of high pitched voice by the parties and on the intervention of Ramji Lal and Harish Chander, Secretary of the Shop- keepers Association, it was called off. On the same day at about 11.30 A..M. the appellants went to the shop of the deceased. Amrik Lal appellant caught hold of Davinder deceased from the back, Manjit Singh gave a gupti to Darshan Lal and exhorted him to kill Davinder and Darshan Lal thrust it in the abdomen of Davinder deceased. The witnesses have also stated that to save himself from the clutches of Amrik Lal, Davinder had given head kicks to Amrik Lal causing some injuries to him.

(5) Another witness Kuldeep Chand (P.W.11), also a relation of the deceased, having a shop in the same market states that he came to the shop after the incident and took the deceased to hospital in a three-wheeler scooter. He tells us that on his way to hospital he was told by the deceased the same story as unfolded by Public Witness . 2 and Public Witness .9. The only difference being that no mention was made by the deceased about that Sardar who provided the weapon, of having given any exhortations.

(6) Soon after the incident Lekh Raj, brother of the deceased also went to the hospital where he made the statement Ex. Public Witness 3/H which was made the basis of the F.I.R. in this case. On 25th June 1982 at 2.45 P.M. Davinder died due to the injury received by him in this incident. According to the post-mortem report and the testimony of the autopsy surgeon i.e. Dr. B.N. Reddy (P.W.3) the injury had penetrated through and through and was sufficient to cause death in the ordinary course of nature. In fact, the death was due to this injury.

(7) At this stage, we may notice the statement of Amrik Lal and Darshan Lal under section 313 Cr.P.C. Their stand is that the incident did take place and the fatal injury was caused by Darshan Lal in exercise of right of self defense. It is stated by Darshan Lal that on hearing alarm when he reached on the spot, he found his brother bleeding from injuries.-According to him, the deceased attacked him with knife from the back causing injuries and if he had not attacked in retaliation he and his brother would have been killed. Having admitted the incident, the onus to establish that they acted in exercise of right of self defense lies on them under section 105 of the Evidence Act. The stand of Manjit Singh appellant is that he only took Amrik Lal to hospital and had reached the spot after the incident. According to him, he has been falsely implicated.

(8) At this stage, we may also notice that during trial of this case, it came to light on the basis of M.L.C. Ex. D.W. 1/A and Ex. D.W. 1/B that Amrik Lal and Darshan Lal had also sustained injuries. Amrik Lal had been taken to hospital on the same day at 12.15 P.M.: while Darshan Lal was taken to the hospital by his father at 2.15 P.M, Amrik Lal had two injuries, one on the left side of scalp and the second on the right upper arm. Darshan Lal had two stab injuries, one at the glottal region and the other at the back of chest. In support of their stand appellants have also examined D.W. 2 one Pradeep Gupta.

(9) The stand taken and the evidence led by both the sides thus clearly go to show that the incident took place and the fatal injury was caused by Darshan Lal. There is no controversy about it. It is also admitted that Amrik Lal appellant also sustained injuries in this incident. The stand of Darshan Lal also is that he sustained stab injuries in this very incident His defense in short is that fatal injury was caused in exercise of the right of self defense. We as such will have to examine if the case falls under any of the exceptions. In case, we find that the appellants had acted in exercise of right of self defense, that in that event only we need to examine the parameters of that right. The defense taken in this case in fact should clinch the issue and all that we need to consider is if the fatal injury was inflicted in exercise of right of self defense and if it was so, whether the violence used was commensurate with the situation that obtained. The next point naturally for consideration would be the nature of offence committed.

(10) But before dealing with these aspects of the case we may point out that the learned counsel insists that the prosecution has to stand on its own legs and since the witnesses examined in this case by the prosecution are interested and their testimony unreliable for many reasons we should refuse to act upon it. To advance their case on this aspect they have urged following contentions. In the first place it is urged that Charan Dass and Harish Chander were cited as witnesses but were given up, that the presence of Public Witness . 2 Ramji Lal and Public Witness . 9 Lekh Raj is doubtful due to absence of any injuries on the person of Lekh Raj and in not reporting the matter to police immediately event though police station is only 500 yards away from the scene of incident. That Ramji Lal did not come forward to depose before police when it visited the spot at 11.50 A.M. In our view, the learned Additional Sessions Judge has given very cogent reasons for brushing aside all these contentions and we completely share his view on these points. Moreover, these submissions became totally irrelevant in the context of the admitted facts. It is not the case of the appellants that incident did not take place. The testimony of Ramji Lal and Lekh Raj is otherwise satisfactory and consistent and cannot be simply brushed aside on the assumption that they ought to have behaved in a particular manner. Both have their shops at the scene of incident. How then can their presence be doubted.

(11) Kuldeep Chand (P.W.11) indeed is also related to the deceased. If the attempt was to cook up eye witnesses the prosecution could have conveniently asked Kuldeep Chand to be one. But Kuldeep Chand (P.W. 11) frankly admits not to have seen the incident. He tells us only as much as he was told about the facts by the deceased Davinder. It is clear that Davinder was conscious at that time and it was natural for Public Witness . 11 to ask him how the incident took place, our view, all that need to be examined is if there are any exaggerated facts in the version of the incident given by the eye-witnesses. We will advert to this aspect while dealing with the individual cases of the appellants. At this stage suffice it to say that there is no apparent reason to disbelieve the eye-witnesses account in so far the material particulars and broad substratum of the prosecution case is concerned.

(12) Having dealt with the submissions of the learned counsel for the appellants, it is now time for us to assess the merits of the prosecution case in relation to the defense set up. After the stand of the appellants that the fatal injury was inflicted on the person of the deceased in exercise of the right of self defense all that we have to examine is whether the incident took place in the manner as told to us by the prosecution or in the manner suggested by the appellants. Since the incident is admilted, let us now examine if the appellants have succeeded in discharging the onus as required by section 105 of the Evidence Act.

(13) M.L.C. Ex. D.W.I/B provides evidence that Darshan Lal appellant had sustained stab injuries but he was removed to hospital late at 2.15 P.M., almost 2 hours and 45 minutes after the incident. If he had sustained injuries in the same incident he would in normal course be removed to hospital immediately if not simultaneously with Amrik Lal. There is no explanation as to where he was and what was he doing for 2 hours and 45 minutes. Ex Public Witness 1/B M.L.C. also provides evidence that though the injuries were by stabbing, these were so superficial that even their depth could not be determined. If the version of the defense that they were in imminent. danger of being killed were true, the injuries if inflicted by deceased by knife would have been of serious nature. Ex. Public Witness . 1/B M.L.C. also provides evidence that at the time of his admission at2.15P.M.Darshan Lal was conscious but the history given to the doctor is that he was stabbed by someone 1" hours back i.e. at about 12.45 P.M.; more than 1" hours of the incident The injuries on his person were simple and he was discharged from the hospital on the same day.

(14) It is in this context that we have to examine if the defense has succeeded in discharging the onus. On the basis of what is stated above we firmly believe that Darshan Lal has not sustained these injuries in this incident. It cannot as such be said that the fatal injury was inflicted by him in exercise of right of self defense. On the basis of the story put forward by the appellants it can neither be said that the act was done by him in defense of his brother. Even otherwise the story of self defense advocated dose not appeal to reason. Davinder deceased while quarrelling with Amrik Lal was not armed with knife. It is inconceivable that he would have followed them with knife while Amrik Lal was being escorted by Darshan Lal to their shop.

(15) Now adverting to the injuries sustained by the Amrik Lal their is an attempt on the part of prosecution to explain these by stating that these were caused by head kicks of the deceased while he was being held from the back by Amrik Lal. To our mind, this explanation is far from satisfactory. This we say in view of the seats of injuries sustained by Amrik Lal. One injury he sustained was over the left side of scalp 2" from above left ear, and the second one over the right upper arm, over the lateral aspect 5" above the lateral epecondyle. If the prosecution story that Amrik Lal was holding the deceased from the back were true, these injuries possibly could not be caused by head kicks. It seems to us that a quarrel took place due to the background high-lighted by the prosecution, in which the deceased inflicted injuries on Amrik Lal and in retaliation Darshan Lal appellant inflicted fatal injury on the deceased with a sharp edged weapon. It also seems to us that Amrik Lal was beaten first as after receiving the fatal blow the deceased could have been a position into cause these injuries. In any case, the injuries inflicted on Amrik Lal could not be said to be such as to put him in imminent danger of death. There was no justification for Darshan Lal to inflicted fatal injury with a sharp edged weapon on the facts and circumstances of this case. In our opinion, Darshan Lal's act is not only malicious but highly vindictive.

(16) However, on the facts of this case it will be unfair to say that the accused had a motive to kill. Believing in that would mean believing that they had premeditated that in case an occasion arises they will kill their adversary. Of course, the relations of the parties on the question of throwing refused were strained but it was there for long and never had any party entertained the idea to kill his opponent. At the most it was resulting in minor quarrels. In all probability after 10.30 A.M. event on that day, on intervention of some people the parties were separated at 11.30 AM. something seems to have suddenly happened giving rise to a further quarrel in which some injuries simple in nature were received by Amrik Lal which provoked Darshan Lal to take the extreme step of causing fatal injury on the deceased.

(17) This brings us to the question as to what offence if any has been committed by the appellants. Taking the case of Manjit Singh, the only role assigned to him is that he gave the weapon to Darshan Lal and exhorted him to kill. This the court is told by Public Witness . 2 and Public Witness . 9. In his dying declaration before Kuldeep Chand (P.W. 11) the deceased has not named Manjit Singh nor has he imputed any exhortations to the Sardar who provided the weapon of offence. Manjit Singh's name was as such not known to the deceased. Manjit Singh had taken Amrik Lal to hospital on the same day at 12.15 P.M. If be had any guilty conscience he would make himself scarce rather than he available. He is percent in the hospital but is not arrested. It seems to us that even his identity was in doubt and that is why an attempt was made to put him on test identification parade, in which he refused to participate on the plea that he has been seen by the witnesses. The admitted case of the prosecution is that he was taken to the court in an unruffled face. This was in all probability done to parade him. He was therefore justified to refuse to join the parade and no presumption can be raised against him. With this state of evidence against him, we are not satisfied that he has played any role in the commission of this crime.

(18) Adverting to the case of Amrik Lal we may at once point out that Davinder deceased was in no position to inflict the injuries on him after having been stabbed. Obviously, he received the injuries before the deceased was stabbed. The role assigned to Amrik Lal is in catching hold of the deceased from the back. Amrik Lal is not armed, does not give any exhortations. Considering the seat of injuries received by him we have concluded that these could not be the result of head kicks while in that position. He could not be said to be possessed of the knowledge that Darshan Lal, his brother, will pick up a weapon to inflict the fatal injury to the deceased. This we say on the reconstruction of the manner in which, according to us, the incident seems to have happened. The reconstruction of the scene by us became necessary as the incident is admitted by both the parties. The grain as such had to be separated from the chaff. The doctrine that the prosecution must prove the very story it relies upon. on the facts and circumstances of this case is irrelevant. Amrik Lal, in our view, cannot be said to be possessed of any intention to kill.

(19) This brings us to the case of Darshan Lal. We have already stated that even if he, Darshan Lal, had a reason to intervene, there was no reason for him to resort to the extreme step of picking up a sharp edged weapon and inflicting the fatal injury. The injury was inflicted on one of the sensitive parts of the body. By his own showing he acted long after Amrik Lal had sustained injuries. In our view, Darshan Lal did not sustain injuries in this incident. His plea that he acted in exercise of right of self defense, to our mind, is not correct.

(20) Having found that Darshan Lal appellant was the author of the fatal injury resulting in the death of Davinder, we now proceed to find out the nature of the offence committed by him. We have already pointed out that he has not acted in exercise of the right of self defense, nor did he sustain the injuries in this incident. The learned counsel for the appellant submit that it is a case of one injury. Indeed, it is so. But, to our mind, on the facts of this case this fact by itself is not decisive in determining the nature of offence, Whether it mitigates the offence of not will depend on many other factors. The other relevant considerations are the nature of weapon used, the seat of injury, the impact used in inflicting the injury. There was hardly any need to use a sharp edged weapon. The injury is on sensitive part, and the force used is so great that the injury travelled from front part of abdomen to the back. Dr. B.N. Reddy, autopsy surgeon, while describing the injury has stated that after cutting the skin it entered the abdomen and made through and through cut in the colon of large intestines, then made cut in the duodenum part of small intestines, then made a cut in inferior evincive and finished in right poses muscles. The total depth of injury was 13 c.ms. and it was sufficient in the ordinary course of nature to result in death.

(21) These observations of the autopsy surgeon show that the injury has been caused with very great force, which in our view, can only be attributed to extreme vindictiveness. The intention to kill can also be developed at the spur of the moment and this inference can be reasonably drawn from the facts of the case. The force with which the injury was caused, the weapon used and the seat of the injury lead to the only just inference that he intended to kill. The injury, according to the medical opinion was sufficient to cause death in the ordinary course of nature. To our mined, Darshan Lal appellant has inflicted the fatal injury with the intention to commit murder of Davinder and the fact that he only inflicted one injury does not mitigate the nature of his act.

(22) The result is we allow the appeal of Manjit Singh and Amrik Lal and set aside their conviction and sentence and acquit them. Their bail bonds are discharged. The appeal of Darshan Lal is dismissed and his conviction and sentence confirmed.