Delhi High Court
Kishan @ Raju vs The State (Govt. Of Nct) on 25 August, 2009
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : August 25, 2009
+ CRIMINAL APPEAL NO.418/2009
KISHAN @ RAJU ..... Appellant
Through: Mr.Sumeet Verma, Advocate.
Versus
THE STATE (GOVT OF NCT) ..... Respondent
Through: Mr.Sunil Sharma, APP.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to the Reporter or not ? No
3. Whether the judgment should be reported
in Digest ? No
SANJAY KISHAN KAUL, J.(ORAL)
1. A momentary fit of anger caused the unfortunate loss of life
of a 17 years old young boy and the incarceration of the appellant
for a period of eight years and five months who was also about
the same age.
2. One Sachin Tyagi and his friend Pawan Tyagi had boarded a
bus at about 8.45 a.m. on 7.2.2001 near Mont Fort School, Ashok
Vihar. Pawan Tyagi wanted to purchase a ticket for Rs.6/- and
gave the said amount to the appellant who was a helper in the
bus. The helper refused to do so and retorted that he was not
Pawan's father's servant. This resulted in an altercation. The
Crl. A. No. 418/2009 Page 1 of 8
appellant called out to the driver of the bus Vinod Kumar and the
bus was stopped. Vinod Kumar held Pawan by the collar and the
appellant took out an iron rod from under the seat of the
conductor and struck a single blow on his head which ultimately
resulted in his death after hospitalisation.
3. The appellant and Vinod Kumar were charged and pleaded
not guilty. On conclusion of trial, the appellant was convicted
under Section 302 of the IPC while Vinod Kumar was found not to
have a common intention which could be proved beyond
reasonable doubt and thus was accordingly acquitted. The
appellant has thereafter preferred the present appeal.
4. Learned counsel for the appellant has confined his
submissions to the offence being punishable under Section 304
Part II of the IPC and not under Section 302 of the IPC. The
appellant is present in the Court and the limited arguments have
been advanced on his instructions.
5. Learned counsel for the appellant has submitted that the
evidence led in respect to the aforesaid factual matrix shows that
a single blow with an iron rod was caused by the appellant on the
deceased Pawan Tyagi which resulted in the hospitalization of the
deceased and the death was a consequence after 17 days. The
case against the appellant was initially registered in the FIR under
Section 308 of the IPC (an attempt to commit culpable homicide
not amounting into murder) and not under Section 307 of the IPC
(an attempt to murder), but after the deceased passed away the
Crl. A. No. 418/2009 Page 2 of 8
same was converted into one under 302 IPC. Learned counsel
seeks to take benefit of Exception 4 of Section 300 of the IPC.
6. In order to appreciate the aforesaid plea, we consider it
necessary to extract the relevant Section.
"300. 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-
---
---
---
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 offenders having taken undue advantage or acted
in a cruel or unusual manner."
7. The submissions learned counsel for the appellant is that
the incident occurred without any pre-meditation in a sudden
fight in the heat of moment, when the appellant after taking six
rupees refused to assist the deceased in getting the tickets from
the conductor and also refused to refund the amount. This
resulted in stopping of bus by the driver, who came down and
caught hold of the deceased while the appellant struck him with
an iron rod taken out from under the seat of the conductor.
8. Learned counsel for the appellant in support of his plea has
referred to the judgments of the Apex Court. Learned Counsel
submitted by relying on Tholan Vs. State of Tamil Nadu, 1984
SCC(Criminal) 164, that where in a sudden fight a single blow
given with a knife was held to fall within Section 304 Part II of the
IPC, a sudden fight like the present one where a single blow is
given on the head would also invite the same provision. The
relevant observations are reproduced as under:-
"There arose a situation in which appellant probably misguide by his own
egocentric nature objected as to why Sampat should ask him to leave the
place and in this background he gave one blow with a knife which landed on
the right side chest of the deceased, which has proved fatal. Could the
appellant be said to have committed murder? In other words, whether Part I
or Part III of Section 300., I.P.C. would be attracted in the facts of this case.
Even Mr. Rangam learned Counsel for the State of Tamil Nadu could not
very seriously contend that the appellant intended to commit murder of
Sampat. His submission was that at any rate appellant when he wielded a
weapon like a knife and gave a blow on the chest, a vital part of the body,
must have intended to cause that particular injury and this injury is
objectively found by the medical evidence to be fatal and therefore Part III of
Section 300 would be attracted. On this aspect, the decisions are legion and it
is not necessary to recapitulate them here merely to cover idle parade of
familiar knowledge. One can profitably refer to Jagrup Singh v. State of
Haryana, Randhir Singh v. State of Punjab ,; Kulwant Rai v. State of Punjab
and Hari Ram v. State of Haryana. To this list two more cases can be added
Jagtar Singh v. State of Punjab and Ram Sunder v. State of U.P. Having
regard to the ratio of each of these decisions, we are satisfied that even if
Exception I is not attracted the requisite intention cannot be attributed to the
appellant. But in the circumstances herein discussed he wielded a weapon like
a knife and therefore he can be attributed with the knowledge that he was
likely to cause an injury which was likely to cause death. In such a situation,
he would be guilty of committing an offence under Section 304 Part II of the
Indian Penal Code. Having regard to the circumstances of the case a sentence
of 5 years would be quite adequate."
9. Learned counsel also referred to the elucidation in respect
of the 4th exception of Section 300 of the IPC made in Ravindra
Shalik Naik & Ors. Vs. State of Maharashtra, 2009 (2) Scale
354 in para 6 as under:-
"6. The Fourth Exception of Section 300, IPC covers acts done in a sudden
fight. The said exception deals with a case of prosecution not covered by the
first exception, after which its place would have been more appropriate. The
exception is founded upon the same principle, for in both there is absence of
premeditation. But, while in the case of Exception 1 there is total deprivation
of self-control, in case of Exception 4, there is only that heat of passion which
clouds men's sober reasons and urges them to deeds which they would not
otherwise do. There is provocation in Exception 4 as in Exception 1; but the
injury done is not the direct consequence of that provocation. In fact
Exception 4 deals with cases in which notwithstanding that a blow may have
been struck, or some provocation given in the origin of the dispute or in
whatever way the quarrel may have originated, yet the subsequent conduct of
both parties puts them in respect of guilt upon equal footing. A 'sudden fight'
implies mutual provocation and blows on each side. The homicide committed
is then clearly not traceable to unilateral provocation, nor in such cases could
the whole blame be placed on one side. For if it were so, the Exception more
appropriately applicable would be Exception 1. There is no previous
deliberation or determination to fight. A fight suddenly takes place, for which
both parties are more or less to be blamed. It may be that one of them starts it,
but if the other had not aggravated it by his own conduct it would not have
taken the serious turn it did. There is then mutual provocation and
aggravation, and it is difficult to apportion the share of blame which attaches
to each fighter. The help of Exception 4 can be invoked if death is caused (a)
without premeditation, (b) in a sudden fight; (c) without the offender's having
taken undue advantage or acting in a cruel or unusual manner; and (d) the
fight must have been with the person killed. To bring a case within Exception
4 all the ingredients mentioned in it must be found. It is to be noted that the
'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC.
It takes two to make a fight. Heat of passion requires that there must be no
time for the passions to cool down and in this case, the parties have worked
themselves into a fury on account of the verbal altercation in the beginning. A
fight is a combat between two and more persons whether with or without
weapons. It is not possible to enunciate any general rule as to what shall be
deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the proved facts of each case.
For the application of Exception 4, it is not sufficient to show that there was a
sudden quarrel and there was no premeditation. It must further be shown that
the offender has not taken undue advantage or acted in cruel or unusual
manner. The expression 'undue advantage' as used in the provision means
'unfair advantage'. These aspects have been highlighted in Dhirajbhai
Gorakhbhai Nayak v. State of Gujrat, (2003) (5) Supreme 223, Parkash
Chand v. State of H.P. (2004) (11) SCC 381,; Byvarapu Raju v. State of A.P.
and Anr., (2007) (11) SCC 218 and Buddu Khan v. State of Uttarakhand SLP
(Crl.) No. 6109/08 disposed of on 12.1.2009"
10. Lastly, learned counsel has referred to Pappu Vs. State of
M.P., 2009 (4) Scale 521 to make out a distinction between the
offence of murder as against culpable homicide not amounting to
murder as defined under Section 300 of the IPC in the following
terms:-
"7. This brings us to the crucial question as to which was the appropriate provision
to be applied. In the scheme of the IPC culpable homicide is genus and `murder' its
specie. All `murder' is `culpable homicide' but not vice-versa. Speaking generally,
`culpable homicide' sans `special characteristics of murder is culpable homicide not
amounting to murder'. For the purpose of fixing punishment, proportionate to the
gravity of the generic offence, the IPC practically recognizes three degrees of
culpable homicide. The first is, what may be called, `culpable homicide of the first
degree'. This is the gravest form of culpable homicide, which is defined in Section
300 as `murder'. The second may be termed as `culpable homicide of the second
degree'. This is punishable under the first part of Section 304. Then, there is
`culpable homicide of the third degree'. This is the lowest type of culpable homicide
and the punishment provided for it is also the lowest among the punishments
provided for the three grades. Culpable homicide of this degree is punishable under
the second part of Section 304.
8. The academic distinction between `murder' and `culpable homicide not
amounting to murder' has always vexed the Courts. The confusion is caused, if
Courts losing sight of the true scope and meaning of the terms used by the
legislature in these sections, allow themselves to be drawn into minute abstractions.
The safest way of approach to the interpretation and application of these provisions
seems to be to keep in focus the keywords used in the various clauses of Sections
299 and 300. The following comparative table will be helpful in appreciating the
points of distinction between the two offences.
Section 299 Section 300
A person commits culpable homicide Subject to certain exceptions
if the act by which the death is culpable homicide is murder
caused is done - if the act by which the
death is caused is done -
INTENTION
(a) with the intention of causing (1) with the intention of
death; or causing death; or
(b) with the intention of causing (2) with the intention of
such bodily injury as is likely causing such bodily injury
to cause death; or as the offender knows to be
likely to cause the death of
the person to whom the harm
is caused; or
(3) 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
KNOWLEDGE
****
(c) with the knowledge that the act 4) with the knowledge that
is likely to cause death. the act is so imminently
dangerous that it must in all
probability cause death or
such bodily injury as is
likely to cause death, and
without any excuse for
incurring the risk of causing
death or such injury as is mentioned
above.
11. In the above referred case, the exchange of hot words
between the accused and the deceased resulted in a shot being
fired resulting in an injury on the chest of the deceased which was
held to be a fit case for conviction under Section 304 Part II of the
IPC with a custodial sentence of eight years.
12. The legal principles enunciated aforesaid, in our considered
view, would squarely apply to the facts of the present case which
is a case of a single blow at the heat of the moment. There was
no previous rivalry or altercation between the appellant and the
deceased. The parties are not known to each other. The
deceased was travelling in public transport where the appellant
was a helper. The demand by the deceased for the helper to
assist him in getting the ticket resulted in an altercation and the
appellant calling for help from the driver. The bus was stopped
and the deceased was collared by the driver when the appellant
gave him a single blow with the iron rod which was already lying
under the seat of the conductor. There was no pre-meditated act.
13. The case thus, squarely, falls within the 4th exception to
Section 300 IPC and thus the appellant is liable to be convicted
under Part II of Section 304 of the IPC and not under Section 302
IPC. We imposed a sentence of 8 years which would suffice in the
given facts of the case and the sentence and the fine imposed in
terms of the impugned judgment accordingly stands modified.
14. The appeal is allowed to the aforesaid extent and the
appellant be released forthwith if not wanted in any other case as
he has already completed that period of incarceration as per the
nominal roll.
15. A copy of the order be sent expeditiously to the
Superintendent, Tihar Jail.
SANJAY KISHAN KAUL, J.
AUGUST 25, 2009 AJIT BHARIHOKE, J.
gm
