Ramdish Verma And Ors. vs State Of Delhi
2002 Latest Caselaw 1717 Del

JUDGMENT

Dalveer Bhandari, J.

1. This appeal is directed against the judgment and order passed by the learned Additional Sessions Judge in Sessions Case No. 5/91 dated 21.3.1997 and 22.3.1997 respectively.

2. The appellants have been convicted under Section 302, IPC read with Section 34, IPC and were sentenced to imprisonment for life and a fine of Rs. 200/- was also imposed on each one of them and in default of payment of fine, they were further directed to undergo rigorous imprisonment for 15 days each.

3. The brief facts necessary to dispose of this appeal are recapitulated as under. On 16.9.1990 at 9.20 p.m., Attar Singh, Pradhan of Village Nawacla informed the Police Station, Vikas Puri on telephone that one person namely, Mehtab Singh was quarrelling behind his house. On the basis of this information, DD No. 40 B was recorded and the inquiry was entrusted to Sub-Inspector Mahesh Kumar. Consequently SI Mahesh Kumar visited the spot and found no one except the blood lying in the room and some articles were found scattered all over. PW 1 Nirmala Devi, resident of nearby house (B-25) met SI Mahesh Kumar outside her house. She informed him about the occurrence. SI Mahesh Kumar recorded her statement (Exhibit PW 1/A) and thereafter he went to Din Dayal Upadhay Hospital and obtained the M.L.C. of the deceased Virender Kumar in which it is mentioned that the deceased was 'Brought Dead'.

4. The First Information Report is based on the statement of PW 1 Smt. Nirmala Devi and a case under Sections 302/34, IPC was registered against the appellants. According to her testimony, her son Lovelesh aged about five years used to play in the neighborhood. According to her statement, appellant Ramdish is her neighbour. About one week prior to the incident, Montu @ Suresh s/o Ramdish was seen by deceased Virender-brother of the husband of Smt. Nirmala Devi doing an act of sodomy with Lovelesh. He ran away immediately after the deceased had seen him. Mehtab Singh complained to the appellant Ramdish, father of Montu @ Suresh, but he paid no attention and appellant Montu @ Suresh continued wrongful activities. On this issue, there had been verbal altercations between Nirmdala's husband and the parents of Montu @ Suresh.

5. On 16.9.1990,at about 9.00 p.m., Mehtab Singh again complained against the appellant Montu @ Suresh. All the four appellants persons started abusing him. In the meantime, deceased Virender came to the house of his brother Mehtab Singh. PW 1 Nirmala Devi asked the deceased Virender to call back his brother Mehtab Singh. When the deceased Virender had gone to the house of the appellant Ramdish, Nirmala Devi heard someone shouting "MAAR D1YA - MAAR DIYA". She saw the appellants forcibly dragging the deceased Virender inside their house and Mehtab Singh was trying to stop them. By the time Nirmala Devi reached there, the appellants had already dragged Virender Kumar inside the house and stabbed him in the abdomen with a sharp edged weapon and thereafter the appellants ran away from the scene of occurrence. Nirmala Devi's younger brother-in-law (Dewar) Vijender and others took the injured to Deen Dayal Hospital where he was declared 'Brought Deed'. The appellant Ramdish was arrested on 17.9.1990 and on his disclosure statement, the knife, weapon of offence was recovered which he had concealed on the roof of the house.

6. The post mortem was conducted by Dr. L.T. Ramani. He found the following injuries:

(i)    Incised wound present transversly on the hypochondrium region of abdomen along the costal margin with expulsion of loops of bowels and omentum from the injury. The size of the injury was 17 cm. x 7.5 cm.
 

It was abdominal cavity deep. The outer part of the injury showed bifurcation of the ends 3 cms. apart.
 

(ii)   Linear abrasion 6 cms. long on left side of forehead.
 

(iii) Superficial incised wound 3 cms. x 0.5 cm. on the right forearm anterio aspect; and
 

(iv)   defense cut 2 cms. long. Skin deep on right index finger distal phalynx. 
 

7. According to the doctor's opinion, injury No. 1 caused to the deceased on the abdomen was sufficient to cause death in the ordinary course of nature. After completion of investigation, a challan under Section 302 read with Section 34 and under Section 27 of the Arms Act was filed against the appellants. The prosecution had examined 15 witnesses in support of its case and eight witnesses were examined by defense. The prosecution relied on the testimony of PW1 Smt. Nirmala Devi and PW 2 Mehtab Singh her husband and brother of the appellant. PW 5 Dr. Pratibha examined Mehtab Singh and he proved the MLC (Exhibit PW 5/A). PW 7 Dr. Deepak had examined the deceased Virender. He had proved MLC (Exhibit PW 7/ A). PW 6 Dr. L.T. Ramani had conducted the post mortem. On careful analysis of the evidence on record, it is revealed that the basic facts of this case are not in serious dispute.

8. It may be pertinent to mention that the appellant Ramdish Verma had lodged a report FIR No. 352/90 as a cross case under Sections 452, 506, 323 and 34, IPC in which it was mentioned that the deceased Virender Kumar Along with Mehtab Singh and other four/five members came to his house. They inflicted injuries on the wife of Ramdish with the iron rod (Sariya) by which her teeth broke and she sustained two lacerated wounds.

9. The learned Additional Sessions Judge carefully examined the entire evidence and came to the definite conclusion that the appellant Ramdish had caused the knife injury to Virender which proved fatal. The defense version has not been accepted by the learned Additional Sessions Judge. The learned Additional Sessions Judge has observed that the quarrel ensued between the parties over the alleged offence of sodomy committed by the appellant Montu @ Suresh. It is proved that all the appellants had dragged the deceased Virender inside their house where he was held by appellants Pramod, Suresh and Montu @ Suresh and was stabbed by the appellant Ramdish. The Additional Sessions Judge came to the conclusion that the prosecution has proved its case against the appellants beyond any reasonable doubt and convicted them tinder Section 302 read with Section 34, IPC. A charge under Section 27of the Arms Act against the appellant Ramdish was not proved and he was consequently acquitted of the said charge.

10. The appellants aggrieved by the said judgment have preferred this appeal. According to the submissions of Mr. P.R. Thakur, learned Counsel for the appellants, conviction under Section 302, IPC read with Section 34, IPC is wholly untenable. According to him the appellants, at most could be convicted under Section 304 Part II, IPC. He submitted that the learned Additional Sessions Judge has not appreciated the facts and circumstances of the case in the correct perspective. In this case the deceased had come to the house of the appellant where the alleged incident had taken place. This indeed is the most material circumstance which the Court failed to appreciate in the true perspective. Admittedly, there was no serious enmity between the parties. There had been no exhortation or pre-meditation. The entire incident took place in the spur of the moment. Appellant-Ramdish who was a meat seller had a knife in his house. On sudden provocation he picked up the knife and caused the injury. Mr. Thakur also submitted that it was a case of single injury and caused in the spur of the moment. Therefore, by no stretch of imagination, the conviction under Section 302, IPC read with Section 34, IPC is tenable.

11. He supported his arguments by various decided cases. Mr. Thakur placed reliance on the judgment of the Apex Court Sasi @ Chalil Sasi v. State of Kerala, reported as 2000 SCC (Criminal) 695. In this case, the Additional Sessions Judge of Ernakulam had convicted the accused under Section 302, IPC. On appeal the High Court converted the conviction from Section 302, IPC to Section 304 Part II, IPC and sentenced the accused to R.I. for five years. The cause of death has been because of single blow given on the vital part of the body. Their Lordships of the Supreme Court converted the conviction from Section 304 Part I, IPC to Section 304 Part II, IPC and sentenced the appellant to undergo R.I. for four years.

12. Mr. Thakur, the learned Counsel for the appellant, also placed reliance on Tholan v. State of Tamil Nadu, reported as 1984 SCC (Criminal) 164. Facts of this case are quite akin to the facts of the case in hand. In this case a single knife blow was inflicted on the chest of the deceased in the spur of the moment. The Supreme Court convicted the accused under Section 304 Part II, IPC and sentenced to five years' R.I.

13. Mr. Thakur also placed reliance on a Division Bench judgment of the Orissa High Court, i.e., Sarbeswar Malik v. The State, reported as 1996 Criminal Law Journal 1721. In this case also, all of a sudden a quarrel took place in which the accused suddenly picked up a crow-bar from the spot and pierced into the chest resulting into the death of the deceased. The conviction was altered to Section 304 Part II, IPC from Section 302, IPC and accused was sentenced to four years of imprisonment.

14. Mr. Thakur, the learned Counsel for the appellant also relied on the judgment of a Division Bench of this Court in Surender Kumar @ Happy v. State, reported as 88 (2000) DLT12 (DB). In this case also death was caused by a single blow. The Division Bench of this Court converted the conviction from Section 302, IPC to Section 304 Part II, IPC and sentenced the accused to eight years' R.I.

15. In another judgment, Krushna Chandra Sahu v. State of Orissa, reported as 1994 (2) Crimes 400, the accident happened all of a sudden. In a fit of anger the accused brought out tenta from inside the house and pierced it into the chest of the deceased. Their Lordships converted the conviction from Section 302, IPC to Section 304 Part II, IPC and sentenced the appellant to four years of imprisonment.

16. We have heard learned Counsel for the appellants and the learned Counsel for the State at length. Admittedly, the deceased had gone to the house of the appellant where the alleged incident had taken place. Admittedly, there was no serious enmity. There has been no exhortation or pre-meditation on the part of the appellant. The entire incident had happened in the spur of the moment at the house of the appellant.

17. On consideration of the entire facts and circumstances of this case and while taking all the decided cases in consideration, in our opinion, it is a fit case in which the appellants be convicted under Section 304 Part II, IPC. Consequently the conviction of the appellants is converted from Sections 302/34, IPC to Section 304 Part 11/34, IPC. All other appellants have already undergone about nine years of imprisonment except Suresh @ Montu who had undergone five years of imprisonment. The ends of justice could meet if the appellants are released on the sentences already undergone by them. We order accordingly. The appeal is partly allowed and disposed of.