Raj Kumar @ Pappu vs State
2009 Latest Caselaw 5023 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI


+                             Crl. A. No. 33/1997

%                                          Date of Decision : 07.12.2009

1.RAJ KUMAR @ PAPPU             ........APPELLANT
                 Through : Mr.Parag Chawla, Advocate/
                           Amicus Curiae


                                 -VERSUS-

STATE                                         ......RESPONDENT
                              Through : Mr. Pawan Sharma, Advocate.

                              AND

                      Crl. A. No. 34/1997


2.BHARAT BHUSHAN @ TILLU       .....APPELLANT
                Through : Mr.Parag Chawla, Advocate/
                          Amicus Curiae


                                 -VERSUS-

STATE                                         .....RESPONDENT
                              Through : Mr. Pawan Sharma, Advocate.



                              AND

                      Crl. A. No. 280/1996


3.GAJRAJ SINGH & ANR.             .....APPELLANTS
                  Through : Mr.S.K. Pandey, Advocate


                                 -VERSUS-

STATE                                         .....RESPONDENT
                              Through : Mr. Pawan Sharma, Advocate.




Crl. A. Nos.33 /1997, 34/1997 & 280/1996                     Page 1 of 6
 CORAM :


HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?

3.     Whether the judgment should be
       reported in the Digest?


SANJAY KISHAN KAUL, J. (ORAL)

1. The deceased, Narain, unfortunately lost his life on account

of the assault by the appellants arising from a minor issue of the

deceased's foot having fallen in the Nali due to which some

muddy water was splashed on one of the appellants - Gaj Raj

Singh resulting in the conviction of the appellants under Section

302 read with Section 34 of the IPC in terms of impugned

judgment dated 20.5.1996. The appellants were sentenced to

undergo life sentence along with fines as per the impugned

order of sentence dated 24.10.1996.

2. The case of the prosecution is that Pratap PW-3, Ashok

Kumar PW-9 and the deceased had come from the marriage of

his friend's sister Sohan Lal at Gaushala Road for purchasing

cigarette for the deceased. The three persons reached Vijay

Tea Stall where all the four appellants were standing. The

deceased's foot fell into a Nali due to which muddy water got

splashed on Gaj Raj Singh one of the appellants. On this Gaj Raj

Singh stated "Dekh Kar Nahi Chal Sakta". This resulted in hot

words being exchanged inter se the parties at which Chattarpal,

one of the appellants, incited other co-apellants to teach a

lesson to the deceased. PW-3, PW-9 and the deceased had

barely moved four paces when all the four appellants attacked

the deceased. The appellant Raj Kumar was wielding a Kirpan,

Gajraj a hockey, Chattarpal Singh a Saria while Bharat Bhushan

attacked the deceased with Soda Bottle. PW-3 told PW-9 to rush

to the marriage spot and call persons. But by the time PW-9

returned, the appellants had run away from the spot. The

deceased was taken to the hospital where the doctor declared

him brought dead.

3. The prosecution case has been proved primarily by the two

eye-witnesses, PW-3 and PW-9, coupled with the medical

evidence of Dr. P.C.Dixit, PW-20, who conducted postmortem

on the dead body and proved his report PW-20/A. In the opinion

of the PW-20, injury No.10 caused with Kirpan was sufficient in

the ordinary course of nature to cause death. The recovery of

the weapons, being the Kirpan and hockey stick, was effected

at the behest of Gaj Raj.

4. Learned counsel for the appellants state that they have

obtained instructions from the appellants and the appellants

admit their guilt insofar as the incident is concerned and do not

seek to challenge the findings in the judgment on that behalf.

The short submission advanced by learned counsels for the

appellants is that the incident was without any premeditation

and in a sudden fight in an innocuous matter, thus case of the

appellants is covered under Exception IV to Section 300 IPC and

the conviction should have been under Section 304, Part I of the

IPC and not under Section 302.

5. Learned APP has opposed above submission, though he

does not dispute that there is nothing on record to show that

there was any pre-animosity between the two groups or the

incident was a consequence of any premeditation. His only

submission is that the number of injuries have been inflicted on

the deceased, which has sufficient indication of the intent of the

appellants to cause death of the deceased.

6. In order to properly appreciate the submissions made on

behalf of the parties, it would be useful to have a look of

Exception IV to Section 300:

"Section 300. Murder

-----

-----

-----

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. On examination of the evidence of the ocular witnesses

and the finding in the impugned judgment, it is apparent that

the unfortunate incident is a consequence of unnecessary over-

reaction of the appellants. The incident occurred as a result of

hot words being exchanged between the two groups when one

of the appellants Gajraj asked the deceased as to why he was

not careful?

8. We are, thus, of the view that the case is covered by

Exception IV of Section 300 of the IPC as undisputedly there is

no evidence of premeditation. The incident occurred in the heat

of passion in a sudden quarrel on account of the hot words being

exchanged between the parties. There is nothing on the record

to suggest that the appellants took undue advantage or acted in

an unusual manner. The result of the aforesaid is that while

upholding the conviction of the appellants, we modify the same

to one under Section 304 Part I of the IPC as against the order of

the trial court convicting them under Section 302 of the IPC.

9. Now on the question of sentence. Considering the facts

and circumstances of the case, we sentence all the four

appellants to undergo RI for 10 years each with appropriate

enhancement of fine. The appellants Gajraj Singh, Bharat

Bhushan and Chattarpal are directed to pay a fine of Rs.15,000/-

each, failing which the defaulting appellant shall undergo RI for

the period of six month. So far as appellant Raj Kumar, who

inflicted the Kirpal wound which proved to be fatal is concerned,

he is directed to pay a fine of Rs.60,000/-, in default of payment

of fine he shall undergo RI for a further period of one and a half

year. It is further directed that out of fine realized from the

appellants, a sum of Rs.1,00,000/- shall be paid as compensation

to the closed legal heirs of the deceased.

10. Learned counsel for the appellants seek 15 days time to

deposit the fines within which period the appellants undertake to

deposit the fines with the trial court.

11. The nominal rolls of the appellants, other than Raj Kumar,

show that the appellants have already served the sentence of

10 years. In Raj Kumar's case it is not clear whether he has

served 10 years sentence. He should surrender before the

Superintendent, Tihar Jail, Delhi within 15 days and in case there

is any remaining sentence to be served, he shall do so.

12. The appeals are accordingly allowed to the aforesaid

extent modifying the order of conviction and sentence.

13. Copy of the judgment be given dasti to the parties.

SANJAY KISHAN KAUL, J.

December 07, 2009                          AJIT BHARIHOKE, J.
Aj/pst