Harjeet Singh @ Popy And Sudhadhar ... vs State
2002 Latest Caselaw 2168 Del

JUDGMENT

Dalveer Bhandari, J.

1. Both these appeals are directed against the judgment dated 9.1.2001 and order dated 10.1.2001 delivered by the learned Additional Sessions Judge in Sessions Case No. 39/98 arising out of FIR No. 599/97 of Police Station Shakarpur under Section 302/34 IPC, therefore, these appeals are being disposed of by this judgment.

2. The learned Additional Sessions Judge convicted the appellant Harjeet Singh @ Popy under Section 302 IPC and sentenced him to undergo life imprisonment and imposed a fine of Rs. 5,000/- failing which he has been directed to further undergo R.I for six months.

3. The appellant Sudhadhar @ Soft @ Sudhakar has been convicted under Section 326 IPC and has been sentenced to 7 year rigorous imprisonment. He has also been directed to pay a fine of Rs. 3,000/- failing which he shall under go R.I for six months.

4. Briefly stated, the prosecution story is that on 22nd November, 1997 P.W. 11, Chaman Singh, went to the house of his friend Yogender Kumar, bearing No. 17-B, Vijay Block, Laxmi Nagar, Delhi. Deceased Anil Mathur alias Patti was also present there. Yogender Kumar returned to his house after 15/20 minutes of arrival of Chaman Singh. At about 4.30 p.m. Sushil Sharma came there and watched the cricket on television with them up to 5.30 p.m. Thereafter they decided to visit the Trade Fair. In the meantime, Rajkumar @ Raju also came there. He asked them to play cards with the stakes. On his suggestion, they cancelled the programme of visiting the Trade Fair. Chaman Singh, Sunil Sharma and Anil Mathur came outside as they were not interested in playing cards with stakes (gambling). they went to Vikas Marg and purchased a bottle of liquor. They decided to take drinks in the room of Yogender. While they were returning from the government liquor shop, accused Harjeet Singh @ Poppy and Sudhakar @ Soft, who were the friends of Rajkumar, accompanied by a Sikh gentleman (who was introduced as Mama by Harjeet Singh) also arrived there on two scooters. They joined them in drinking at room of Yogender. They also started playing cards with stakes. Chaman Singh stopped playing cards after some time and Anil Mathur started playing on his behalf. The appellant, Harjeet Singh, had won a good amount of money in gambling. Thereafter, he wanted to call off the game, whereas Anil Mathur, main loser in the card game, wanted him (Harjeet Singh) to continue the game in the hope that he could recover his lost amount.

5. It is alleged that at that time there was an exchange of hot words between the deceased and the appellants. In the meantime, Yogender intervened and thereafter, the appellants Harjeet Singh, Sudhakar and Mama left the place. The remaining persons were left with one quarter of liquor. they went to Archies Gallery located at Vikas Marg. The said shop was closed. They sat on the stairs of that shop. They went to a shop nearby and brought Campa Cola and Started drinking in plastic glasses. After about 45 minutes, when they were about to leave that place, appellants Harjeet Singh, Sudhakar accompanied by one more boy came from the opposite direction of Vikas Marg. The appellant, Harjeet Singh started hurling epithets at Anil Mathur and thereafter he took out a knife from his back pocket; similarly the appellant, Sudhakar, also took out a knife. Chaman Singh caught hold of Sudhakar. However, in the meantime, the appellant, Harjeet Singh, plunged the knife into the left thigh of Anil Mathur. Admittedly, Sudhakar also took out a knife but did not cause any injury. The third person accompanying them tried to intervene but could not stop the appellant Harjeet from causing knife injury. The deceased Anil Mathur remained lying in the street (Gali) and blood was oozing out of his left thigh. P.W. 11 Chaman Singh along with other witnesses hired a TSR and left for G.T.B. Hospital along with Anil Mathur. In the hospital doctors declared Anil Mathur dead.

6. Constable Rishi Pal P.W. 9 was posted at the said hospital. He sent the information to the Police Station Shakarpur at 11.30 p.m. that a dead body of one unknown persons was got admitted in the hospital. Sub Inspector Jai Bhagwan, P.W. 19, left for the hospital at 11.55 p.m. He recorded the statement of Chaman Singh. He sent the rukka for registration of the case at 2.35 a.m. on 23.11.1997.

7. After six days of the incidental on 28.11.1997 the appellant Harjeet Singh was arrested from his house. He made a disclosure statement which led the police party to the ticket counter at Old Delhi Railway Station where the appellant Sudhakar was apprehended. They also recovered the clothes which they were wearing at the time of the commission of the alleged crime. Both the appellants were booked for an offence punishable under Section 302 I.P.C. read with Section 34 I.P.C.

8. The appellant, Harjeet Singh, in his statement under Section 313 Cr.P.C. stated that Chaman Singh and deceased Anil Mathur had altercation and Yogender tried to intervene. He attributed the injury to Chaman Singh.

9. The appellant, Sudhakar, in his statement under Section 313 Cr.P.C. admitted gambling and drinking at Yogender's room. He stated that since the deceased Anil Mathur was playing cards on behalf of Chaman Singh and had lost substantial amount of money, therefore, an altercation took place between Chaman Singh and Anil Mathur. Thereafter, he asked Harjeet to leave the place and not to poke his nose in their affair. They left the place. He started that the crime had been committed in their absence.

10. P.W. 4 Yogender Kumar and P.W. 11 Chaman Singh, both the eye witnesses supported the prosecution version. P.W. 8 Sunil Sharma did not fully support the prosecution version. P.W. 7 corroborated the prosecution version on material particulars. P.W. 12 Dr. S.K. Sharma conducted the post mortem on the dead body of Anil Mathur and the relevant portion of the report regarding injuries is reproduced as under:-

1. "Incised stabbed wound of size 6 x 0.5 x 10 cm present over left thigh anteriorly placed 28.5 cm below the left anterior, superior iliac spine (its part of pelvic bone) and 16.5 cm above the superior border of patella with one angle acute and another blunt. The track was going upwards, medially and backwards, conical in shape and cutting the skin muscles and the femoral artery. Blood clot was present in the track.

Internal examination

All internal visceral organs were pale. Stomach contains yellowish white fluid about 20 CC with smell of alcohol. The blood sample was preserved Along with clothings. Time since death was about one and a half day and cause of death was shock

produced by a sharp edged weapon and is sufficient to cause death in ordinary course of nature."

11. Brothers of the deceased, Mukesh Kumar and Ashok Kumar, P.Ws 2 & 3 respectively, identified and received the dead body. P.W. 9 Constable Rishi Pal posted at GTB Hospital handed over the articles belonging to the deceased to the Investigating Officer.

12. Head Constable Kanwar Pal, P.W. 5 received the information regarding the dead body in the hospital. He recorded the DD entry and proved its copy as Ex. PW 5/A. He sent the copy of DD entry to SI Jai Bhagwan through a Constable Mangtu Ram. Head Constable Hari Singh P.W. 6 received ruqqa through a Constable Mangtu Ram, sent by Sub Inspector Jai Bhagwan and recorded a formal FIR. Constable Phool Chand P.W. 10 went to mortuary Along with Sub Inspector Jai Bhagwan on 22.11.1997. The doctor handed over the clothes of the deceased, sealed pulandahs, blood samples and one receipt which were seized vide recovery memo Ex.P.W. 10/A. Constable Satpal P.W. 13 took a copy of the FIR as a special messenger and handed over the same to the Metropolitan Magistrate and higher officials on 23.11.1997.

13. The learned Additional Sessions Judge carefully considered the entire evidence and the documents on record. He has also carefully examined the minor contradictions which were highlighted by the learned counsel for the appellant and came to the definite conclusion that the appellant, Harjeet Singh alias poppy caused the injury which resulted in the death of the deceased. The learned Additional Sessions Judge also held that the appellant Sudhakar alias Soft was guilty of the offence under Section 326 IPC and sentenced him to undergo 7 years of imprisonment. Both the appellants aggreived by the said judgment have preferred these appeals.

14. The learned counsel for the appellants submitted that except Yogender Kumar P.W. 4 and Chaman Singh P.W. 11 others have not supported the prosecution version and it would not be safe to base conviction only on their testimony. The learned counsel for the appellants also submitted that there are many lacunas even in the testimony of P.W. 4 and P.W. 11 and the learned Additional Sessions Judge has erred in convicting the appellants.

15. The learned counsel for the appellants submitted that two witnesses P.W. 8 and P.W. 11 took the deceased to the hospital, whom they claimed to have known for 6 to 7 years, but both these witnesses deliberately did not tell the name of the deceased to the doctor. These witnesses did not inform the parents or brothers of the deceased, Anil Kumar Mathur. This is indeed an unusual and unnatural conduct which reflects the credibility of the prosecution version.

16. The learned counsel for the appellants submitted that when Walia Nursing Home was nearby, then why did the deceased was not taken there by the P.W. 8 and P.W. 11 and why the deceased was taken to GTB Hospital which was about 8 kms away on a scooter. It was also pointed out that there was no recovery of any weapon and the public witnesses were not examined by the prosecution. The learned counsel for the appellants also submitted that the prosecution had failed to prove the motive of the crime.

17. Undoubtedly, there are some minor contradictions in the testimony of the prosecution witnesses. If the normal human conduct is examined in correct perspective, minor contradictions in the testimony of witnesses are bound to occur because there is a big time gap between the time of the incident and the recording of the statements of these witnesses in the courts. In this case also it has taken more than 18 months before the statements of the prosecution witnesses were recorded. It has come on record that P.W. 8 and P.W. 11 took the deceased to the GTB Hospital because of their acquaintance with a doctor in that Hospital. This is the norman human conduct. The incident had taken place on 22.11.1997. and the accused were apprehended on 28.11.1997. In a case where there is substantial time lag between the date of the incident and the date of arrest of the accused, it is not always very easy for the prosecution to recover the weapon of offence.

18. The motive for committing the crime is not absent. The deceased pressed the appellant Harjeet Singh to continue gambling and his declining to gamble any more led to the verbal altercation which culminated into this unfortunate incident. The human mind is very complex. It is difficult to predict how people behave and react in different circumstances and there is no set pattern of human behavior. The learned Additional Sessions Judge after analizing the evidence in the case correctly came to the conclusion that the appellants were guilty of committing this crime.

19. Yogender Kumar, P.W. 4 vividly described the entire incident. He was an eye witness of the entire incident. He categorically stated that the accused Harjeet Singh wanted to leave the place of gambling around 9.15 p.m. At that time Anil Mathur insisted them to play for some more time. On that some altercation took place between the appellant Harjeet Singh @ Popy and deceased Anil Mathur. He stated that when he along with deceased Anil Mathur and Chaman Singh were sitting on the stairs of Archies Gallery, accused Harjeet Singh @ Popy uttered to Anil Mathur "TU BAHUT JYADA BANTA HAI" and took out a knife. Sudhakar also took out some knife type of object. Chaman Singh held the hand of Sudhakar @ Sophy, but in the meanwhile Harjeet Singh gave a knife blow on the left thigh of the deceased, Anil Mathur. After sustaining the injury Anil Mathur ran away, but after some time he fell down in the next Gali. Yogender Kumar rushed and told Sunil about the incident. Thereafter, Yogender Kumar and Chaman Singh took the deceased to the hospital. Despite a gruelling cross examination, his testimony could not be shaken.

20. The testimony of PW4 is fully corroborated by the testimony of Chaman Singh, PW11. He also stated that the appellant Harjeet Singh uttered to Anil Mathur "TU BAHUT JYADA BANTA HAI" and took out a knife. Sudhakar @ Soft also took out a knife. PW4 caught hold of Sophy, but Harjeet Singh gave a knife blow on the left thigh of deceased Anil Mathur. Thereafter, Chaman Singh, Yogender Kumar and Sunil took the deceased to the GTB Hospital where the doctor declared him dead. He was also cross examined at length, but his testimony also could not be shaken by the defense. The learned Additional Judge was justified in placing reliance on the testimony of P.W.4 and P.W.11 and convicting the appellants. The learned Additional Sessions Judge rightly discarded the defense version in this case which is wholly untenable.

21. Now the question arises whether the learned Additional Sessions Judge was justified in convicting Harjeet Singh @ Popy under Section 302/34 IPC and Sudhakar @ Soft under Section 326 IPC. The learned counsel for the appellants submitted that injury was on the left thigh which is not a vital part of the body and it is a case of single injury. The conviction ought not to have been under Section 302/34 IPC, but under Section 304 Part II so far as the appellant Harjeet Singh is concerned. A number of reported cases have been relied upon in support of the contention that in cases of this nature the appropriate conviction ought to be under Section 304 Part II. Similarly, according to the learned counsel for the appellant the conviction of Sudhakar @ Sophy is wholly untenable. Admittedly, the deceased had received only one injury on the left thigh which is specifically attributed to the appellant Harjeet Singh. In this view of the matter, according to the appellant the conviction of Sudhakar under Section 326 IPC is untenable.

22. The learned counsel for the appellant has relied on the judgment of the Supreme Court in Mochi Raju v. State of Gujarat JT 2001 (10) SC 398. In this case the accused appellant and the deceased started fighting and during the quarrel the appellant took out the knife from the pocket and gave one blow to the deceased on his chest. The Apex Court while convicting the appellant for an offence under Section 304 Part II IPC and Section 37(1) red with Section 135 of the Bombay Police Act, 1951 sentenced him to 5 years R.I.

23. In Kunhayippu v. State of Kerala 2000 SCC (Cri) 1374 the accused appellant gave a stab blow in the abdomen of the deceased. The accused after giving the blow ran away from the place of occurrence with the knife. Their Lordships of the Supreme Court while setting aside the conviction of the appellant under Section 302 IPC, convicted him under Section 304 Part II IPC and sentenced him to imprisonment for 5 years.

24. In Bhera v. State of Rajasthan 2000 SCC (Cri) 1230 the accused and the deceased quarreled and while quarelling the accused in anger suddenly took out the knife and gave knife blow on the chest of the deceased which resulted in his death. Their Lordships of the Supreme Court set aside the conviction of the appellant under Section 302 IPC and instead convicted him under Section 304 Part II IPC and sentenced him to 5 years imprisonment.

25. In Masumsha Hasansha Musalman v. State of Maharashtra AIR 2000 SC 1876 the appellant gave one blow by a sharp edged weapon which resulted in the death of the deceased. Their Lordships of the Supreme Court set aside the conviction under Section 302 IPC and convicted the accused under Section 304 Part II IPC and sentenced him to 5 years imprisonment.

26. In K. Ramakrishnan Unnithan v. State of Kerala Ii (1999) CCR 41 (SC) the accused caught hold of the deceased and stabbed him with knife which resulted in his death. His conviction under Section 302 IPC was set aside by the Supreme Court and converted to Section 304 Part II IPC and he was released after he had undergone the sentenced of 4 years of imprisonment.

27. In Tholan v. State of Tamil Nadu 1984 SCC (Cri) 164 the sentence of the appellant under Section 302 IPC was set aside and he was convicted for an offence under Section 304 Part II IPC and was sentenced to suffer R.I of 5 years by the Apex Court.

28. In Gokul Parashram Patil v. State of Maharashtra 1981 SCC (Cri) 731 their Lordship of the Supreme Court in a case of similar facts set aside the conviction under Section 302 IPC and convicted the appellant under Part II of Section 304 IPC and sentenced the accused to 5 years R.I.

29. In a case decided by High Court of Delhi, the allegations were that the accused during the course of an altercation took out the gupti (knife) and dealt with one blow on the back of the deceased resulting into his death. The conviction of the accused under Section 302 IPC was altered to one under Section 304 Part II IPC by the Division Bench of this Court in the case of Prithvey Singh v. State II (2002) CCR 36 (DB).

30. In Bhagwan Dass v. State IV 1995(2) Crimes 96 another Division Bench of this Court in a murder case observed as under:-

"Only one blow inflicted which punctured popliteal resulting in death of deceased. Appellant can not be said to have intended death or intended that particular injury. Conviction is liable to be altered Under Section 304 Part II. Sentence reduced to period already undergone as appellant had been in jail for six years."

The conviction of the appellant was set aside under Section 302 IPC and instead the accused appellant was convicted under Section 304 Part II IPC.

31. A Division Bench judgment of this Court in yet another case titled Dewan Chand and Anr. v. State 24 (1983) DLT 152 also converted the sentence from 302 IPC to 304 Part II IPC. The facts of this case are quite akin to the facts of the case in hand. The accused gave injury on the thigh of the deceased with knife. The accused inflicted a blow on the thigh which is not a vital part. The accused was little more than 16 years of age at the time of occurrence, therefore, the court extended the benefit of Protection of Offenders Act, 1958.

32. We have carefully considered the decided cases of the Supreme Court and the High Courts, including the judgments of this court. While keeping in view the facts, circumstances and evidence on record the conviction of the appellant Harjeet Singh @ Popy is converted from 302 IPC to 304 Part II IPC and he is directed to undergo the sentence of five years R.I.

33. The appellant Sudhakar has been convicted under Section 326 IPC. In our considered opinion, Sudhakar's conviction under Section 326 IPC is untenable because he did not inflict any injury on the deceased. He also cannot be convicted with the aid of Section 34 because Harjeet Singh has not been convicted under Section 326 IPC. His role was that the took out a knife but Chaman Singh caught hold of him. Infact he did not inflict any injury. Both Harjeet Singh and Sudhakar were charged under Section 302/34 IPC. According to the role of Sudhakar he ought to have been convicted under Section 304 Part II IPC read with Section 34 IPC because he shared the common intention with the appellant Harjeet Singh of causing injuries. The only distinguishing feature in the role of Harjeet Singh and Sudhakar is that Harjeet Singh infact inflicted the injury whereas Sudhakar was prevented from inflicting the injury. His conviction is converted from Section 326 IPC to Section 304 Part II IPC and since he did not inflict any injury on the deceased he is directed to undergo the sentence of three years R.I.

34. Both these appeals are partly allowed and disposed of.