Delhi High Court
Ramesh Kumar @ Maheshi & Anr. vs State Of Delhi on 31 August, 2009
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: July 21, 2009
Judgment delivered on : August 31, 2009
+ CRIMINAL APPEAL NO. 12/1997
RAMESH KUMAR @ MAHESHI & ANR. ..... Appellants
Through: Ms.Seema Gulati, Advocate for
Appellant No.1.
Ms. Meena Chaudhary Sharma,
Advocate for Appellant No.2
Versus
STATE OF DELHI ..... Respondent
Through: Mr. M.N. Dudeja, 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? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes
AJIT BHARIHOKE, J.
1. Appellants Ramesh Kumar @ Maheshi and Raj Kumar @ Raju
have been convicted under Section 302 IPC read with Section 34 IPC
for having committed the murder of the deceased Kamal and
sentenced to undergo imprisonment for life and also to pay fine of
Rs.2000/- each respectively, in default of payment of fine to suffer
rigorous imprisonment for the period of six months respectively.
2. Briefly stated, case of the prosecution is that on 30.04.1994 at
about 11.00 PM, deceased Kamal was having an argument with his
mother Shakuntala Devi on the issue of serving hot meals, in front of
the tent of the complainant Bablu. The appellant Ramesh Kumar @
Maheshi came out of his tent and reprimanded the deceased saying
"kya tune khap khana machaya hua hai". He also started hurling
abuses and made some indecent remarks against the character of wife
of the complainant. The deceased requested him to leave but the
appellant Ramesh kept on abusing. Raj Kumar @ Raju appellant also
joined the brawl and caught hold of the deceased from his hair. While
the complainant Bablu proceeded to save his brother, the appellant
Ramesh @ Maheshi fetched a bottle from his tent and after breaking it,
he stabbed the deceased Kamal with the broken bottle on the left side
below the chest. Both the appellants fled away from the spot of
occurrence. Injured Kamal was taken to the Agrasen Hospital in the
three-wheeler scooter of Narender, where he was declared brought
dead.
3. PW3 Baldev Raj conveyed the information to the Police. It was
recorded as DD No.27A dated 30.04.1994 at the Police Station Paschim
Vihar. Copy of the DD report was forwarded to SI Ram Chander for
verification. He went to C-256, Relief Camp, Peera Garhi belonging to
PW2 Ashwani Kumar and found that incident had taken place near C-
82, Relief Camp, Peera Garhi. Then, he went to the spot of occurrence
but no eye witness was available there. He came to know that the
injured had been removed to the Hospital. He went to the Agrasen
Hospital and found that the deceased had been declared dead. No eye
witness was available at the Hospital, therefore, he came back to the
spot of occurrence, where he met the complainant Bablu and recorded
his statement Ex.PW6/A and sent it to the Police Station for the
registration of formal FIR.
4. SI Ram Chander seized the blood stained earth and sample earth
from in front of tent of the complainant and also from in front of tent of
PW Narender vide respective Seizure Memos Ex.PW2/A and PW18/D.
He recorded the statement of the witnesses, arranged for sending dead
body for post mortem and collected the post mortem report Ex.PW9/A.
He also sent the seized material to CFSL and obtained the report of
CFSL Ex.PW18/P.
5. Appellant Ramesh Kumar was arrested on the same day by SI
Ram Chander from Mangolpuri flyover on the pointing of complainant
PW6 Bablu. Appellant Raju could not be traced till he surrendered in
court on 03.07.1994. On completion of investigation, appellants were
sent for trial for having committed the offence punishable under
Section 302 IPC read with Section 34 IPC.
6. Both the appellants were charged accordingly. They pleaded not
guilty and claimed to be tried.
7. On conclusion of trial, the learned trial Judge relying upon the
testimony of PW8 Shakuntala Devi held both the appellants guilty for
the offence punishable under Section 302 IPC read with Section 34 IPC
and convicted and sentenced them accordingly.
8. Ms. Seema Gulati, learned counsel for appellant No.1 Ramesh
Kumar @ Maheshi and Ms. Meena Chaudhary Sharma, learned counsel
for appellant No.2 Raj Kumar @ Raju have argued almost on the similar
lines. Their submission is two-fold. Firstly, it is contended that the
learned Trial Court has fallen in error in relying upon uncorroborated
testimony of PW8 Shakuntala Devi whose credibility is suspect
because of various contradictions and infirmities discussed below.
Secondly, it is submitted that as per the case of prosecution, the
occurrence took place at the spur of moment without any pre-
meditation and the weapon of offence is a broken glass bottle,
therefore, neither there could have been any intention to kill the
deceased nor the appellant Ramesh Kumar @ Maheshi could have
known that his act was so imminently dangerous to cause death of the
deceased. Thus, it is submitted that even as per the prosecution case,
the offence committed by the accused Ramesh Kumar @ Maheshi
would attract Exception 4 to Section 300 IPC and fall within the
definition of culpable homicide not amounting to murder, punishable
under Section 304 Part II IPC. It is also submitted on behalf of the
accused Raj Kumar @ Raju that in the factual matrix of the case, the
common intention on the part of the accused Raj Kumar @ Raju to stab
the deceased cannot be inferred, as such his conviction under Section
302 with the help of Section 34 IPC is bad in law.
9. On the other hand, the learned counsel for the State has
submitted that PW8 Shakuntala Devi is a natural witness whose
presence at the spot cannot be doubted, as the incident started with
the heated exchange of arguments between her and the deceased
regarding serving of hot food and that there was no reason for her to
falsely implicate the appellants and let the real culprit goes scot free.
He has thus submitted that the learned trial Judge has rightly convicted
the appellants under Section 302 read with Section 34 IPC.
10. We have considered the submissions made by the respective
counsels for the parties and the material on record.
11. First challenge to the reliability of the testimony of PW8
Shakuntala Devi is that presence of PW8 Shakuntala Devi at the spot of
occurrence is highly doubtful because PW1 Narender Kumar who took
the deceased to the hospital in a three-wheeler scooter did not say that
PW8 Shakuntala Devi accompanied the deceased to the hospital. It is
also submitted that had Shakuntala Devi accompanied the deceased to
the hospital, her name should have been find mention in the MLC
Ex.PW11/A in the column of brought by, which is not so.
12. We are not impressed with above mentioned submission. So far
as first limb of argument is concerned, it is against the facts of the
case. Perusal of testimony of PW1 Narender Kumar reveals that he has
categorically stated in his cross-examination that the mother of the
injured Kamal along with his father and brother had requested him to
take the injured to the hospital and he has also stated that all of them
sat in a scooter with the injured for going to the hospital. From this, it
is apparent that PW8 Shakuntala Devi, mother of the deceased had
actually accompanied him to the hospital. PW5 Kishan Lal, father of
the deceased, has also confirmed this fact by stating in cross-
examination that his wife also accompanied them to the hospital. Non-
mention of name of Shakuntala Devi in the MLC is of no consequence.
While preparing the MLC, the concerned Doctor is not supposed to seek
information about each and every person who had accompanied the
deceased, it is suffice to mention the name of any one person who took
the deceased to the hospital. Thus, we do not find anything wrong if
the Doctor has mentioned the name of complainant Bablu only in the
MLC Ex.PW11/A in the column meant for the purpose. Thus, we find no
reason to suspect the presence of PW8 Shakuntala Devi at the spot.
13. Next submission on behalf of the appellants is that testimony of
PW8 does not inspire confidence as she has contradicted herself on all
important aspects of the prosecution case and her statement made in
the court is contradictory to her own statement made under Section
161 Cr.P.C. during the investigation of the case. Expanding on the
argument, it is pointed out that PW8 Shakuntala Devi has deposed in
the court that when her son Kamal was hit by the appellant Ramesh
Kumar @ Maheshi, she ran to the house of PW3 Baldev Raj and told
him that her son has been hit by Maheshi with a broken glass bottle
and requested him to call the Police, which is an improvement upon
her statement under Section 161 Cr.P.C, that she told Baldev Raj that a
fight was going on at her house and requested him to call the Police. It
is further pointed out that witness in her cross-examination had initially
stated that her son Bablu and daughter-in-law Beena had not seen the
occurrence as they were inside the tent, whereas in later part of cross-
examination she had admitted that she stated to the Police in her
statement under Section 161 Cr.P.C. that after the appellant assaulting
the deceased, the appellant tried to attack Bablu who managed to save
himself by moving backwards and she has also deposed that she had
stated to the Police during investigation that Bablu had come to save
Kamal. It is also pointed out that the witness in her examination-in-
chief has stated that the appellant Raj Kumar caught hold of her son
Kamal by hair and the appellant Maheshi, after breaking a glass bottle,
stabbed her son with the broken bottle, whereas in her cross-
examination she changed her version and stated that appellant
Maheshi had brought broken bottle from his tent. Learned counsels for
the appellants have urged us to infer on the basis of aforesaid
contradiction that PW8 Shakuntala Devi has not seen the occurrence or
at least her version is not reliable.
14. We do not find any merit in this contention. The contradictions
pointed out by the learned counsel for the appellants are
inconsequential. The law on appreciation of evidence is well-settled.
The Court while appreciating the evidence, is not supposed to do hair
splitting and give meaning to each and every word uttered by the
witness. The testimony of a witness is to be appreciated as a whole in
overall context of facts and circumstances of the case and if, on
analysis the testimony appears to be natural and truthful, it cannot be
given a go bye merely because of some minor contradictions here and
there, which are bound to occur in the testimony of a truthful witness
because of failure of memory due to lapse of time. On overall
consideration of the testimony of PW8 Shakuntala Devi, it appears to
be truthful. Thus, we do not find any merit in the contention of the
appellants.
15. Next submission on behalf of the appellant is that PW8
Shakuntala Devi has categorically stated that the deceased had been
served food by her and he was eating it at the time when the incident
took place. As per the testimony of PW8 Shakuntala, Rukka Ex.PW7/A
as also the MLC Ex.PW11/A, deceased Kamal reached at Agrasen
Hospital at 11.55 PM and he was declared dead. Death Certificate
Ex.PW11/C issued by the Hospital also gives the time of death as 11.55
PM. It is pointed out that Dr. K.L. Barua (PW9) in his testimony has
stated that on post-mortem examination, he found semi-digested food
in the stomach of deceased and he also stated that it takes about one
to four hours normally for the food to be digested partly. Thus, it is
argued that as per medical evidence, if the deceased was eating food
at the time of incident i.e. 11.00 PM and he died sometime between
11.00 PM to 11.55 PM, the food which he was taking could not have
been partly digested, therefore, the version of PW8 regarding the
reason which prompted the incident is doubtful and the entire
foundation of the prosecution face collapses. The Learned counsels
for the appellants have, therefore, urged us to infer that PW8
Shakuntala is a planted witness.
16. The argument, in our view, is mis-conceived and based upon the
wrong reading of the evidence. PW8 Shakuntala Devi has nowhere
stated in her testimony that her son was eating meals at the time of
incident.
17. Learned counsel for the appellant has further submitted that the
investigation in this case has been unfair and tainted. Firstly, it is
submitted that perusal of the post mortem report Ex.PW9/A would
show that the Doctor concerned has not mentioned the description of
document along with the post mortem report. It is further submitted
that neither the Doctor concerned nor the Investigating Officer has
given any clarification in this case. Even perusal of the death report
Ex.PW18/M would show that in the report, no description of the
appellant or the witness to the occurrence have been mentioned. We
are not impressed with this contention. Perusal of the death report
Ex.PW18/M would show that it is typed on a printed performa wherein
all important columns have been filled and there is no column in this
performa about the name of the assailant or the witness. It may be
pointed out that name of the persons who identified the dead body,
namely, PW6 Bablu, PW7 Beena are mentioned in the report. Further,
in our view, the Doctor concerned has proved the post mortem report.
If at all the appellants wanted to have some clarification about the time
of receipt of dead body and accompanying documents, they could have
sought clarification in the cross-examination by PW9 Dr. L.K.Barua or
the Investigation Officer. They have not opted to do so, therefore, now
the appellants cannot be permitted to make an issue out of this minor
discrepancy.
18. It is further argued that this is a case of delayed FIR. The learned
counsel for the appellants have submitted that the Police endorsement
on the Rukka Ex.PW7/A would show that the incident took place on
30.04.1994 at 11.00 PM and the time of sending the Rukka to the
Police Station is 2.50 AM on 01.05.1994. FIR was registered after a
lapse of four hours from the time of incident at 3.10 PM. It is submitted
that there is no reasonable explanation for such a long delay,
therefore, a possibility of manipulation cannot be ruled out. We do not
find merit in this contention. The delay of four hours in recording of FIR
is of no consequence, particularly when, in the initial information
received at the Police Station, place of occurrence was incorrectly
described and thereafter, when the Investigating Officer reached at the
place of occurrence on the place mentioned in DD No.27A, he could not
find any witness as they had gone to the Hospital along with the
injured, when he had reached at the Hospital, the witnesses had left
from their and he had to come back to the spot of occurrence where he
recorded the statement of PW7 Bablu. The above exercise obviously
must have consumed some time, therefore, the delay is properly
explained and do not provide a reason for doubting the testimony of
PW8 Shakuntala.
19. The learned counsels for the appellants have submitted that PW8
Shakuntala Devi in her cross-examination has admitted that the tent of
her son Bablu is distinct from her tent. They have submitted that in
the examination-in-chief, PW8 Shakuntala Devi while deposing about
the incident had inter alia stated "my son was sitting on the cot
outside our tent..........I gave him food and asked Kamal to take food. I
was sitting with him on the cot. Ramesh came out of his tent as he
used to live near our neighbourhood", which imply that the incident
took place in front of her tent as distinct from the tent of her son Bablu
which version is belied by the rough site plan Ex.PW18/C and the
scaled site plan Ex.PW12/A, wherein the place of occurrence is shown
in front of the tent of Bablu. From this, appellants have urged us to
infer that presence of PW8 Shakuntala Devi at the spot is highly
doubtful and her version is not reliable. We are not impressed with this
contention. The words used by the witness to describe the place of
incident were "in front of our tent". It is not unnatural for a mother to
refer to house of her sons as "our house" despite of the fact that the
mother is living in a different house in the locality. Therefore, in our
view, this discrepancy is not so material to discard the otherwise
reliable testimony of the witness.
20. It is further submitted that as per the post mortem report, there
was a baniyan lying on the body of the deceased which has not been
seized by the Police and non-production of said baniyan has prejudiced
the appellants in their defence as the corresponding cut marks in
baniyan could have thrown light on the correctness or otherwise of the
prosecution case. Ideally, the Investigating Officer should have seized
the baniyan, but this lapse on the part of the Investigating Officer by
no means can be basis to discard the otherwise reliable and
trustworthy ocular version of PW8 Shakuntala Devi.
21. The learned counsel for the appellant Raj Kumar @ Raju has
submitted that even if the prosecution story is taken to be true, then
also there is nothing on the record to suggest that the appellant Raj
Kumar @ Raju shared common intention with his brother Ramesh
Kumar @ Maheshi to cause injury to the deceased with the broken
bottle. Thus, her submission is that the learned Trial Court has wrongly
invoked Section 34 IPC to convict appellant Raj Kumar @ Raju under
Section 302 IPC read with Section 34 IPC.
22. To appreciate the contention of the learned counsel for the
appellant Raj Kumar @ Raju, it would be useful to reproduce Section 34
IPC, which reads thus:
"34.Acts done by several persons in
furtherance of common intention.- When a
criminal act is done by several persons in furtherance
of the common intention of all, each of such persons
is liable for that act in the same manner as if it were
done by him alone".
Bare reading of Section 34 suggests that this Section does not create a
substantive offence. It lays down a principle of law when two or more
persons joined hands in an assault on a third person they become
responsible for the injury caused to such person to the extent to which
they had common intention to cause those injuries irrespective of
whether or not injury has been caused by the person concerned or his
associate. The common intention can be proved either by the direct
evidence or it can be gathered from the facts and circumstances of the
case.
23. In the instant case, the facts which emerge from the evidence are
that the cause of altercation was loud arguments between the
deceased and his mother regarding food, which annoyed the appellant
Ramesh Kumar @ Maheshi and resulted in altercation. Appellant Raj
Kumar @ Raju, who is brother of appellant Ramesh Kumar also came
and joined the altercation and he caught hold of the deceased by his
hair. In the meanwhile, appellant Ramesh Kumar @ Maheshi suddenly
fetched a glass bottle, broke it, and stabbed the deceased. From these
facts, when there is no evidence of any previous enmity between the
appellant Raj Kumar @ Raju and the deceased, we find it difficult to
infer that the appellant Raj Kumar @ Raju also shared common
intention with his brother to stab the deceased with a broken bottle.
The fact, that the incident occurred at a spur of moment, rules out any
possibility of development of common intention between the appellant
Raj Kumar @ Raju and the assailant Ramesh Kumar @ Maheshi at the
spot. We are, therefore, of the view that conviction of the appellant Raj
Kumar @ Raju under Section 302 with the help of Section 34 IPC for the
act of stabbing by the appellant Ramesh Kumar @ Maheshi cannot be
sustained.
24. The learned counsel for the appellants have submitted that the
evidence led by the prosecution shows that the deceased was stabbed
by the appellant Ramesh Kumar @ Maheshi with a broken glass bottle
in a sudden altercation. Therefore, it is submitted that the instant
case falls within Exception 4 of Section 300 of the IPC, as such the
conviction under Section 302 IPC is bad in law.
25. 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."
26. 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."
27. 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"
28. 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."
29. 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.
30. The legal principle enunciated aforesaid, in our view, would
squarely apply to the facts of the present case, which is a case of
single blow given with a broken glass bottle in the heat of the moment.
There is no evidence of previous rivalry or enmity between the
appellants and the deceased. The altercation took place because of a
trivial reason i.e. annoyance caused to the appellant Ramesh Kumar @
Maheshi because of loud argument between the appellant and his
mother, as a result of which he fetched a bottle, broke it and stabbed
the deceased in the heat of moment. Since there is no evidence of any
pre-meditation or motive on the part of the appellant, the case
squarely falls within the 4th Exception to Section 300 IPC. Thus, the
appellant Ramesh Kumar @ Maheshi is liable to be convicted under
Part II of Section 304 of the IPC and not under Section 302 IPC.
Regarding the accused Raj Kumar @ Raju, we have already concluded
that he cannot be held guilty for the act committed by the appellant
Ramesh Kumar @ Maheshi with the help of Section 34 IPC.
31. In view of the circumstances aforementioned, we set aside the
conviction of the appellant Raj Kumar @ Raju under Section 302 read
with Section 34 IPC. He is, accordingly, acquitted.
32. So far as appellant Ramesh Kumar @ Maheshi is concerned, his
conviction under Section 302 read with Section 34 IPC is converted into
conviction under Section 304 Part II IPC and we impose a sentence of
five years rigorous imprisonment on appellant Ramesh Kumar @
Maheshi which would be suffice in the given facts of the case. The
sentence and fine imposed by the learned Trial Court in terms of the
impugned judgment and order on sentence, accordingly, stand
modified.
33. The appeal is allowed to the aforesaid extent. As per the nominal
roll submitted on record, appellant Ramesh Kumar @ Maheshi has
already undergone imprisonment for a period of 04 years 10 months
and 11 days, besides he has earned total remission for a period of 08
months and 07 days. Thus, he has completed the period of sentence
awarded to him.
34. Both the appellants are on bail. Their respective bail bonds and
surety bonds are cancelled and discharged.
AJIT BHARIHOKE, J.
AUGUST 31, 2009 SANJAY KISHAN KAUL, J.
pst
