Kuppa S/O Shri Kali Parmal vs State
2006 Latest Caselaw 1974 Del

JUDGMENT

Madan B. Lokur, J.

1. The Appellant is aggrieved by the judgment and order dated 13th November, 1996 passed by the learned Additional Sessions Judge in Sessions Case No. 80/1994. The Appellant was convicted of an offence punishable under Section 302 of the Indian Penal Code (for short the IPC). He was sentenced to undergo imprisonment for life and also payment of fine.

2. The broad facts of the case are that on 25th March, 1994, on the date of Holi festival, the Appellant threw some coloured water on Smt. Mariamma, wife of the deceased Kali Machhiwala. This was objected to by her and by Kali Machhiwala leading to an exchange of hot words between them and the Appellant. Thereafter, Kali Machhiwala slapped the Appellant who then went to his jhuggi which was about 20 paces away and brought a knife with which he stabbed Kali Machhiwala on the left side of his chest and shoulder. The victim started bleeding profusely and fell down. His wife, Smt. Mariamma tried to stop the bleeding with her saree but was unable to do so. She also tried to apprehend the Appellant but he pushed her and ran away. At that time, someone informed the police and the victim was then removed to the All India Institute of Medical Sciences in a police van. Smt. Mariamma accompanied the victim to the hospital where he was declared as brought dead.

3. The police conducted their investigations and it transpired that there was one eyewitness to the incident, that is one person by the name of Tinku but he could not be found out at all. On the basis of the investigations conducted by the police, a challan was filed and, thereafter, the following charge was framed against the Appellant:

That on 25.3.94 at about 2 P.M. opposite Pharmax & Co. near railway boundry wall of Okhla railway station, within the jurisdiction of PS Srinivas Puri, you did commit murder of Kali Machhli wala by stabbing twice on the left side of his chest with a chhuri and thereby committed an offence punishable Under Section 302 IPC and within the cognizance of this Court.

4. The charge was read over and explained to the Appellant and he pleaded not guilty and claimed trial.

5. Learned amices Curiae has very fairly pointed out that there were three circumstances against the Appellant. Firstly, the testimony of Smt. Mariamma, PW-2; secondly, an extra judicial confession made by the Appellant to constable Kapil, PW-6 and thirdly, the recovery of the knife at the instance of the Appellant.

6. In so far as the last two circumstances are concerned, it has been pointed by learned amices Curiae that the learned Trial Judge disbelieved the extra judicial confession and also did not accept the recovery of the knife at the instance of the Appellant. The learned Trial Judge found that no public witness was associated at the time of effecting recovery of the knife; it was recovered from a place accessible to anyone and more importantly the blood group on the knife could not be detected so as to match it with the blood group of the deceased. Consequently, the only material against the Appellant is the testimony of PW-2, Smt. Mariamma.

7. The broad facts that we have mentioned above have been extracted from the testimony of Smt. Mariamma and it was contended by learned amices Curiae that these facts suggest that it was not a case of murder but a case of culpable homicide under Section 300 of the IPC read with Exception 4 thereto. In this regard, it is necessary to reproduce Exception 4 which reads as follows:

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.

8. In Sukhdev Singh v. Delhi State (Govt. of NCT of Delhi) 2003 SCC (Cri) 1714, the Supreme Court noted that four requirements are to be satisfied to bring in the application of Exception 4 to Section 300 of the IPC. They are as follows:

1.It was a sudden fight;

2.There was no premeditation;

3.The act was in a heat of passion; and

4.The assailant had not taken any undue advantage or acted in a cruel manner.

We are of the view that the facts of the case suggest that all the four ingredients as mentioned by the Supreme Court are present in this case.

9. There is no doubt that there was a sudden fight between the Appellant and the deceased. This fight was the result of the Appellant throwing coloured water on Smt. Mariamma, wife of the deceased. Both Smt. Mariamma and the deceased had objected to this leading to an exchange of hot words, where after the deceased slapped the Appellant. In the heat of passion, it appears that the Appellant went to his jhuggi which was only about 20 paces away and brought a knife with which he attacked the deceased. At this stage, it may be noted that in her First Information Report, Smt. Mariamma stated that the Appellant took out a knife from a packet (potli) of goods. It is not clear whether the Appellant was carrying the potli with him or brought it from jhuggi. In any case, in the heat of passion he attacked the deceased and apparently struck two knife blows. There is nothing to suggest that the Appellant took advantage of the fact that the deceased was unarmed or that he acted in a cruel manner while inflicting the knife blows. Even assuming that he did, the fact of the matter is that the recovery of the knife was not believed by the learned Trial Judge.

10. The incident that occurred was a result of the sudden quarrel and given the facts of the case, it cannot be said that it was a case of premeditated murder punishable under Section 302 of IPC. We are satisfied, having regard to the evidence on record that the Appellant has committed an offence punishable under Section 302 of the IPC is not proper under the circumstances of the case. This case is squarely covered by Exception 4 to Section 300 of the IPC.

11. Accordingly while upholding the conviction of the Appellant, we convert the offence into one of culpable homicide not amounting to murder. The Appellant has been in custody since 26th March, 1994, the day after the incident. He has, therefore, been in custody for 12 1/2 years. The maximum punishment which can be awarded to the Appellant is imprisonment of either description for a term of ten years. Therefore, we modify the sentence from one of life to the sentence already undergone. The appeal is allowed in the above terms. The Appellant be released forthwith if not wanted in any other case.