Parbat Singh @ Partap Singh vs The State, Delhi Administration
2001 Latest Caselaw 809 Del

ORDER

Mahmood Ali Khan, J.

1. An Addl. Sessions Judge has convicted the appellant Parbat Singh @Partap Singh for committing offence or murder of Mota and Ms. Dhapa under Section 302 IPC and has sentenced him to undergo imprisonment for life and to pay a fine of Rs. 3000/- and in default to further undergo rigorous imprisonment for one year. The appellant is aggrieved and has filed the present appeal.

2. The facts, as disclosed by the FIR and the evidence led by the prosecution, are that the complainant Ms. Meera along with her husband, father-in-law Mota (since deceased) and an aunt of her husband Ms. Dhapa (also deceased), was residing in a jhuggi in AG-Block, near DESU Sub-Station, in Shalimar Bagh. Her family was using a space adjoining that jhuggi for bathing and cleaning of clothes. On that space the appellant Parbat Singh @Partap Singh erected a jhuggi about two or three month before the occurrence which led to frequent quarrels between him and the family of the complainant. On the fateful day i.e. 9.1.1987 the husband of the complainant had gone to his native village and the complainant was making her child asleep inside the jhuggi. It was 9.00 PM. Her father-in-law Mota was sitting along with her husband's aunt Mr. Dhapa outside the jhuggi. She heard hurling of abuses on each other by the appellant Parbat Singh and her father-in-law and aunt of her husband outside. Thereafter she heard 'rolla' (commotion) outside. She came out and saw the appellant Parbat Singh @Partap Singh rushing into his jhuggi and marching out with an exe in his hand and giving blow of axe on the neck of Mota. Ms. Dhapa who was squatting on the ground near Mota went to the rescue of Mota and the appellant struck a blow of axe on her head as well. Both of them collapsed. The appellant upon seeing the complainant rushed towards her but the complainant fled and raced to the nearby market where she found two policemen namely Const. Sher Singh, PW17, and Const. Chotu Ram. She informed them of the assault on her father-in-law and the aunt of her husband and brought them to the place of occurrence. They were a little before the place of occurrence when the complainant pointed at the appellant Parbat Singh @Partap Singh who tried to flee with his axe but was overpowered. The policemen took away the axe from him and secured him. The PCR van and the I.O. SI Puran Chand with staff also reached there. The injured Mota and Ms. Dhapa were removed to the H.R. Hospital in an ambulance by SI Sohan Pal Singh where they were declared as brought dead. The IO seized the axe, prepared the site plan, picked up the broken pieces of bangles, chappals of two different colours, the plastic mat, blood samples from two places, earth control, the cot, a woollen cap, a quilt etc. from the place of occurrence; he got the photographs of scene of the occurrence; he completed all other formalities; deposited the case property in the malkhana of the police station; conducted inquest proceeding on the bodies of Mota, deceased and Ms. Dhapa, deceased; wrote other relevant papers; got the post-mortem examination conducted on both the bodies and handed over the bodies to the relatives. He collected the post-mortem examination report, and the report about blood sample etc., produced axe before the doctor for his examination, deposited the articles received from the mortuary in the malkhana and also sent them to the CFSL. He obtained the report of the CFSL. He also got a scale plan of the scene of the occurrence made. After the investigation was completed, he prepared challan and submitted to the court. The case was sent to the court of Sessions where the charge under Section 302 IPC was framed, to which the appellant Parbat Singh pleaded not guilty and claimed to be tried. The learned Addl. Sessions Judge believed the statement of PW4 Ms. Meera, the ocular witness of the occurrence, PW17 Const. Sher Singh, who reached the scene of occurrence and had apprehended the appellant with the weapon of offence i.e. axe in his hand and other evidence and material like post-mortem examination report of the deceased Mota and Ms. Dhapa and held the appellant guilty of the offence of murder of deceased Mota and Ms. Dhapa and convicted and awarded sentence to him under Section 302 IPC, as mentioned in para-I.

3. Mrs. Kamna Vohra amices Curiae has not challenged the finding of the Addl. Sessions Judge that the death of Mota and Ms. Dhapa was homicidal in nature and the appellant has caused their death but contended that the offence committed by the appellant will be covered by Section 304 IPC Part-I and not 302 IPC.

4. In order to prove that the death of Mota and Ms. Dhapa was homicidal the prosecution based its case on the ocular statement of PW4 Ms. Meera, who is the daughter-in-law of the deceased, and it a witness to the crime. She was subjected to a lengthy and arduous cross-examination but she came out unscathed and has not yielded anything to make her statement unworthy belief. Her presence at the place of occurrence was natural as much as she was living in the jhuggi with her husband and the deceased were her father-in-law and aunt of her husband who were also living with them. The appellant has not challenged the presence of this witness at the place of occurrence when the offence was committed. The prosecution also placed reliance on the statement of PW17 House Const. Sher Singh whom PW4 Mr. Meera had approached soon after the occurrence. H.C. Sher Singh with Const. Chotu Ram came to the place of occurrence where appellant Parbat Singh @Partap Singh was found with the axe. He tried to run away, but was overpowered and the axe was taken away from his hand by H.C. Sher Singh. Both were later handed over to the IO, who had, by then, reached there.

5. The oral evidence of Ms. Meera PW4 and PW17 H.C. Sher Singh finds ample corroboration in the testimony of Dr. L.T. Ramani PW8. He is the autopsy surgeon who conducted the post-mortem examination on the bodies of Mota, deceased and Ms. Dhapa, deceased. His post-mortem reports are Ex.PW8/1 & 8/2. On external examination he found following injuries on the body of Mota, deceased:-

1. One clean lacerated wound 4cmX0.5cm X ?. present obliquely on the left parietal area.

2. One clean out wound 7.5cm X 3cm X Q obliquely present on the left side upper part of neck, up to the angle of Mandible. Outer end was actually cut and medial end showed splitting into tow lacerations. There was commuted fracture of mandible on the left side.

3. Cut throat injury 7cm.X20cm.XQ transversely present on the left side of neck extending for left side of thyroid cartilage to esternomastiod. Lower margin was regular and upper marginal lacerated.

4. Small lacerations 0.5cm. X0.3cm. into skin deep of the chin.

6. On internal examination,autopsy surgeon found a lienal cut 3cm. long on the left varietal wound. The interior end was radiating as fissiued fracture extending to the left temporal wound and posteriorly to the occipitial wound. There was patchy suberachnoid haemorrhage and there was extra vasation of blood in superficial and deeper neck tissues. Injury No. 2 on exploring was found to have cut muscles of the neck, left external carotid artery. There was a cut on the body of second cervical body vertebra of the left side. All major bloods vessels were cut below the injury No. 3. On the left side the neck injury also involved thyroid cartilage and first trachael ring, lower margin of body of third cervical vertebra and spinal cord. Oesophagus was found cut at tow places.

7. In the opinion of Dr. L.T.Ramani PW8 the injuries were antemortem and were caused by heavy sharp cutting weapon like the axe Ex.P1. The blade showed blood like stains on both sides when it was produced before him examination. In his view injuries No. 2 & 3 were individually sufficient to cause the death in ordinary course of nature and the death was due to shock and haemorrhage. Consequential cut throat injury; The time since death was 36 hours.

8. On external examination of the deceased Mr. Dhapa the autopsy surgeon found following injuries:-

1. Two clean cut wounds 7 and 5cm. long placed obliquely on the ocipital area of skull, making a V shape wound. There was a lenier cut impression on the ocipital bone. beneath.

2. Incised looking wound 6cm. long X into bone deep wit expulsion of lacerated brain matter.

3. Laceration 4cm. X 1cm. into bone deep on the medial aspect of right thumb.

4. Clean cut incised looking wound 2 cm. X 1 cm. into muscle deep on the palmer aspect of right index finger.

9. On internal examination of the deceased Ms. Dhapa the surgeon found multiple comminuted fractures of the ocipital wound on the right side. The brain was lacerated. There was cut on the first cervical vertebra and the was generalized subdural haemorrhage. The opinion of the autopsy surgeon was that these injuries were antemortem and were caused by a heavy sharp cutting weapon like axe Ex. P1 and the injuries over the skull were sufficient to cause death in the ordinary course of nature. The death was due to coma resulting from head injury and time since death was about 36 hours.

10. Dr. Ramani has proved his post-mortem report Ex.PW8/1 & PW8/2. He has not been cross-examined by the appellant.

11. Keeping in view of the eye witness account of the occurrence given by Ms. Mrrra Pw4 which with corroborative evidence of PW17 H.C. Sher Singh and the medical evidence in the shape of the autopsy reports Ex.PW8/1 & 8/2 it is established by cogent and reliable evidence that both Mota and Mr. Dhapa were done to death by the appellant by inflicting injuries with axe Ex. P1.

12. Since the learned amices Curiae Ms. Kamna Vohra has not challenged the finding of the learned Addl. Sessions Judge regarding guilt of the appellant, we need not minutely go through the Statements of other witnesses including the IO, which are more or less of formal nature.

13. Ms. Kamna Vohra, learned amices Curiae has stated that according to the statement of Ms. Meera PW4 she heard the abuses being exchanged between the appellant and the deceased Mota and Ms. Dhapa and When she came out she saw the appellant going into his jhuggi and coming out with the axe, which he immediately struck on the neck of her father-in-law deceased Mota and when Ms. Dhapa went to his rescue, he struck the axe on the head of deceased Ms. Dhapa. The post-mortem examination report and the statement of Dr. Ramani PW8 has proved that the bodily injuries caused to Mota and Ms. Dhapa were sufficient in the ordinary course of nature to cause death and they were possible to be caused by the axe Ex. P1. Ms. Vohra submitted that the erection of the jhuggi on the land adjoining the jhuggi of the deceased which was being used for bathing and cleaning of clothes and utensils by the family of the deceased was the apple of discord between the appellant and the family of the deceased for the past three or four months. She further submitted that it is in the statement of PW4 Ms. Meera that there was frequent exchange of abuses and verbal duel between the two families over it. However Ms. Meera has deposed that on the day of occurrence she heard first hurling of abuses by both the sides, the appellant on one hand and the deceased Mota and Ms. Dhapa on the other and thereafter she heard a 'rolla'. 'Rolla' is not a mere louder exchange of abuses but is a commotion caused by something more that the verbal duel and includes in it the scuffle or the exchange of blows. It is stated that the appellant who was a young man of 28 years when the offence was committed, would not have been provoked by a mere hurling of simple abuses by a man of 40 years deceased Mota or a woman of 35 years old deceased Ms. Dhapa. It was contended by her that the prosecution did not produce any evidence that the appellant had at time extended threats to the life of the deceased or any other member of the family for the ongoing and dispute in respect of the jhuggi erected by the appellant over the piece of land in use by the family of the deceased. She has stated that there must be a very grave provocation in the shape of vulgar and filthy abuses coupled with use of physical force that could have been provoked and to lose self-control and commit the heinous crime. She stated that the appellant took no time in fetching the axe Ex. P1 and inflicting blows on the two deceased persons with it and causing their death. It was not a premeditated and preplanned assault. It is, therefore, argued by Ms.Vohra that the offence which the appellant has committed will fall only under Part-I of Section 304 IPC and was not murder. She sought support to her argument from the judgment of this court in Shamshad Ali Versus State, 1998 (1) CC Cases 492 (HC) and Gurdeep Singh Vs. State 1995 Vol. I AD (Delhi) 41.

14. The learned counsel for the State, conversely, argued that there was exchange of abuses and the appellant brought the axe from his jhuggi and inflicted blows with a heavy hand and with such force to the neck of deceased Mota and the head of Ms. Dhapa which leads to the only inference that he intended to cause death of these two persons and the injury inflicted by him have been proved fully to be sufficient in the ordinary course of the nature to cause death. Therefore, the appellant is guilty of murder as defined in Section 300 IPC and which is punishable under Section 302 IPC. He urged that there was no infirmity and embellishment in the finding of the learned Add1. Sessions Judge and the conviction and sentence order passed by him which are, impugned in this appeal. He cited State of Gujarat Vs. Mochi Raju @ Balwant Popat 2000(2) Crimes 259 in support of his submission.

15. Now we advert to the crucial question which is raid by Ms. Vohra, amices Curiae that the prosecution evidence has proved that the appellant has committed culpable homicide not amounting to murder and is guilty of an offence under Section 304 Part-I IPC and not 302 IPC which is the finding of the learned trial court. This leads us to the consideration of the provision of Section 300 IPC which defines murder and its Exception No. 1 which provides for the circumstances when a culpable homicide is not murder. Section 300 is reproduced below:-

Murder:- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

Secondly,- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

Thirdly,- If it 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, or_

Fourthly,_ If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception 1 _When culpable homicide is not murder_Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of nay other person by mistake or accident.

The above exception is subject to the following provisos:-

First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defense.

Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is question of fact.

Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defense of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defense.

Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

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 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.

Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

16. In this case we are concerned with the clause 'thirdly' which is produced above. In Virsa Singh Vs. State of Punjab , The Supreme Court after analysing the clause 'thirdly' held that the prosecution must prove:-

"First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further, and

Fourthly, it must be proved that the injury of the type just described made up of three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

17. It was further held by the Apex Court in the cited case that ode these four elements were established by the prosecution, the offence committed was murder as defined by Section 300 IPC.

18. In order to bring his case in Exception No. 1, the appellant will have to prove that he caused death (1) while he was deprived of the power of self-control by grave and sudden provocation; (2) caused the death of the person who gave the provocation; or; (3) caused death of any other person by mistake or accident. At the same time he has to establish by reliable evidence that the appellant had intention to cause such bodily injury an the injury caused was sufficient in the ordinary course of the nature to cause death. In the famous case of K.M. Nanavati Vs. State of Maharashtra , the Supreme Court considered as to what should be the test of 'grave and sudden' provocation for bringing the case within the four corner of Exception No.1. It has been laid down:-

"The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, plaoed in the situation in which the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code. (3) The metal background created by eth previous act of the victim may be taken into consideration in ascertaining whether the subsequent act cause grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising form that provocation and not after passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."

19. Whether the bodily injury caused was intentional and that it was caused on account of the offender loosing power of self-control on account of grave and sudden provocation on the part of the person whose death was caused or some other person by mistake or accident has to be decided to the facts and circumstances of each case.

20. We may pause here to note that even when the intention and knowledge of the accused may fall within clauses 1 to 4 of Section 300 IPC the act of the accused which would otherwise be murder will be taken out of the purview of murder if the act of the accused attracts any one of the exceptions enumerated in that Section. In the event of those exceptions, the offence would be culpable homicide not amounting to murder, falling within part-I of Section 304 IPC if the case in such as to fall within clauses 1 to 3 of this Section. If it falls in clause 4 then it will attract punishable in Section 304 part-II IPC.

21. It is indeed primarily the duty of the accused to make out a case for claiming benefit of any of the exceptions of Section 300 IPC. Onus is on him to plead in his own statement and to produce evidence and material on record to prove that his case falls within the ambit of Exception. But this onus may be deemed to have been discharged by him once he is able to succeed in drawing of an inference in favor of his case from the evidence and circumstances adduced by the prosecution. In State of U.P. Vs. Lakhmi JI 1998 (1) SC 679 the Apex Court on this issue observed as under:-

"The law is that burden of proving such an exception is on the accused. But the mere fact that accused adopted another alternative defense during his examination under Section 313 of the Cr.P.C. without referring to Exception No. 1 of Section 300 IPC is not enough to deny him of the benefit of the Exception, if the court can cull out materials from evidence pointing to the existence of circumstances leading to that exception. It is not the law that failure to set up such a defense would foreclose the right to rely on the exception once and for all. It is axiomatic that burden on the accused to prove any fact can be discharged either through defense evidence or even through persecution evidence by showing a preponderance of probability".

22. In the instant case though the appellant neither in his statement recorded under Section 313 Cr. P.C. nor examining any witness or producing other material in defense has claimed advantage of Exceptio enumerated in Section 300 IPC, yet as laid down by Supreme Court in the above cited case he can still be given benefit of Exception by showing preponderance of probability inferred form the evidence of the prosecution.

23. Let, us now carefully examine the prosecution evidence to see whether the appellant's case in fact falls in Exception 1 of Section 300 IPC. A close examination of the statement of PW4, who is the only eye witness of the occurrence, proves that before the appellant caused bodily injuries on the neck and the head of the deceased Mota and Ms. Dhapa by his axe, there was not a mere exchange of abuses. The abuses were hurled by the parties on each other on earlier occasions also. But on 15.1.1987 at 9.00 PM when this occurrence took place there was not only hot exchange of words and abuses but there something more than that. There was a 'rolla', a commotion, which indicated the use of physical force like blows, scuffle or grappling between the appellant who was about 28 years old and the deceased Mota who was 40 years old man. The appellant could not have been so enraged as to be deprived of restrain and self-control that he went into the jhuggi, rushed out and gave the fatal blows of axe on the deceased persons. The provocation has to be very grave and sudden. The assault was certainly not a result of premeditation and preplanning.

24. It is not a case where the appellant, who is the assailant, had enough time to ponder over his impending action and keep restrain. According to Ms. Meera PW4 as soon as she came out she saw the appellant running into his jhuggi and coming out with an axe and inflicting blows one after the other on the two deceased persons. It is not her case that the appellant gave repeated blows of axe on the persons of the deceased for some time. It is also not a case that the appellant went into the jhuggi, brought out the axe and there was further exchange of abuse between the two parties and thereafter without a provocation the appellant gave blows of the axe and caused death of Mota and Ms. dhapa. Therefore, reliance of the 1d. counsel for the State on the judgment of State of Gujarat Vs. Mochi Raju @Balwant Popat 2000(2) Crimes 259 is misplaced. The facts of the cited case reveal that initially the incident had taken place between the accused and the victim party at about 6.00 PM when there was no scuffle between them. After an hour of the first incident, the deceased was seen waling and the accused was seen running after him. There was exchange of words between them and then the accused took out a knife and delivered a blow. The accused had a knife in his pocket which indicated that he was moving with a weapon, which indicated that he was moving with a weapon, which is prohibited. It was in these circumstances the court held that it was not a case that some altercation had taken place and the accused was provoked as a result of which he took up something lying nearby and used it i delivering the blow. Rather, accused had run after deceased and had delivered the blow with a knife which he had kept in his pocket indicating his intention. On this fact it was held that it was a case of murder and did not fall in any of the exceptions of Section 300 IPC.

25. It is also pertinent to note that the appellant had not run away from the scene of occurrence immediately after inflicting injuries on the deceased persons. In accordance with the statement of Meera PW4 she ran away to the market place at a distance of about one furlong where she found the policemen PW17 Head Const. Sher Singh and his companion Const. Chotu Ram who came with her and saw the appellant coming from the direction of the place of occurrence with an axe in his hand and the appellant started fiddling with the axe when he was over-powered. Meera PW4 must have taken quite a long time to return with the policemen to the scene of crime which had given enough time for the appellant to escape from the scene or dispose of the weapon of offence. He did not do any such thing.

26. It is interesting to note that the trial court while passing order o sentence on accused itself observed that this offence was committed by the appellant under grave and sudden provocation and was not premedicated or preplanned.

27. In the totality of the facts and the attending circumstances of the cause the irresistible conclusion clearly spells out that in all probability the appellant caused injury to the deceased persons on account of sudden and grave provocation after loosing self-control, as such, we are of the considered view that the offence committed by the appellant was culpable and homicide not amounting to murder as defined in Exception No. 1 of Section 300 IPC. The case law cited by leaned amices Curiae does lend support to her case. We need not elaborately discuss it in view of the view taken by us.

28. The punishment for the offence of culpable homicide not amounting to murder is provided in Section 304 IPC which is given below:-

Punishment for culpable homicide not amounting to murder. --Whoever commits culpable homicide not amounting to murder shall be punished with (imprisonment for life), or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, but without any intention to cause death, or the cause such bodily injury as is likely to cause death.

29. Having regard to the above discussion, we hold that the offence committed by the appellant would be covered by Section 304 IPC Part-I as urged by the 1d. amices Curiae, Ms. Kamna Vohra and not under 302 IPC as argued by the 1d. counsel representing the State. Hence, we set aside the conviction under Section 302 IPC and the sentence of life imprisonment imposed therefore by the 1d.Addl.Sessions Judge by the impugned order and alter the conviction of the appellant under Section 304 IPC Part-I.

30. It is stated at the bar by Ms. Kamna Vohra, amices Curiae for the appellant that the appellant had been in jail since the date of his arrest over 14 years ago and that now his incarceration is running in 15th year. We feel that the appellant has already suffered imprisonment of more than 10 years which is sufficient to serve the ends of the justice in the present case.

31. Consequently, the appeal is partly accepted. The appellant Parbat Singh @Partap Singh is convicted under Section 304 IPC Part-I in place of Section 302 IPC. He is sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 3000/- and in default to further undergo rigourous imprisonment for one year. The appellant shall be released form custody and set liberty forthwith unless required to be detained in connection with any other case. The parties shall bear their own costs.

32. Before parting with the case, we record our appreciation to the valuable given by Ms. Vohra, learned amices Curiae in deciding this case.