Sohan Lal @ Sonu vs State
2009 Latest Caselaw 5279 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                       Date of decision: 17.12.2009


+                       CRL. A. No.218 of 1996


SOHAN LAL @ SONU                                        ...APPELLANT

                        Through:    Mr.Navin Chawla, Amicus Curiae with
                                    Mr.Rakesh Pandey, Advocate.

                                   Versus


STATE                                                  ...RESPONDENT

                        Through:    Mr. Sunil Sharma, APP.



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 appellant has preferred this appeal against his conviction under

Section 302 IPC vide judgment of the learned Additional Sessions Judge

dated 30.7.1996 and the order of sentence dated 31.7.1996 for the

murder of Khub Ram, whereby he has been sentenced to imprisonment

for life and to pay a fine of Rs.500/-, in default of which to undergo SI for

one month.

2. The case of the prosecution is based on the testimony of Vinod

Kumar, PW3, who has deposed that the deceased was his childhood

friend. Some altercation had taken place between the deceased and the

appellant about a year back when the deceased had joked with a girl

named Baby living in the J.J. Colony, which led to some quarrel between

the appellant and the deceased. In subsequent meetings also there was

some quarrel on this account. On the fateful day of 26.4.1992, when the

deceased and PW3 were going to the dhobi to get their clothes ironed,

they met the appellant on the way and there was exchange of abuses

between the deceased and the appellant whereupon the deceased

slapped the appellant. The intervention of PW3 cooled down the situation.

However, when the deceased and PW3 were returning after getting their

clothes ironed and reached near house No.376, J.J. Colony, Madipur at

about 5.15 p.m., the appellant again came out of the gali and the

appellant and the deceased started abusing each other. The brother of

the deceased also reached there and inquired about the matter. It was at

that time in the altercation, the appellant took out a kirpan like churri

from the right side of his pant and gave a blow on the left side of the ribs

of the deceased and ran away. The deceased was rushed to DDU

hospital, where he was declared as brought dead.

2. Nand Kishore has appeared as PW2 and partly supported the case of

the prosecution, though he on some aspects resiled from his statement

recorded under Section 161 Cr.P.C. The post mortem has been conducted

by Dr.L.T. Ramani, PW20, who has opined that the injury was caused by a

sharp edged weapon and was sufficient in the ordinary course of nature to

cause death.

3. In the course of hearing, learned counsel stated, on instructions

from the appellant, who has been produced in the Court, that the

appellant admits his guilt of having caused the fatal injury which resulted

in the death of the deceased and does not dispute the facts in that behalf.

The only plea to be advanced is that the learned Additional Sessions Judge

fell into an error while convicting the appellant under Section 302 IPC, as

the case was one which is covered under Section 304 IPC.

4. The prosecution case rests mainly on the eye witness account given

by PW2 Nand Kishore, brother of the deceased and PW3, Vinod Kumar

complainant. Though in the complaint Ex.PW3/A, an averment was made

that there was acrimony between the appellant and the deceased

because of a year old incident which took place when the deceased joked

with a girl named Baby. But no evidence in this regard has been led by

the prosecution to prove said motive. The narration of facts given by PW2

and PW3 in the evidence in Court itself shows that on the fateful day,

there was an earlier quarrel between the appellant and the deceased

when the deceased slapped the appellant. Even at the time of the

incident, as per the testimony of the above witnesses, an exchange of

abuses took place between the appellant and the deceased before the

knife wound was inflicted by the appellant. Even the brother of the

deceased PW2, Nand Kishore, as per the testimony of PW3 had intervened

and it was at that time, the appellant suddenly took out the churri and

inflicted a single blow on the person of the deceased, which unfortunately

fell on the left side of the chest and proved to be fatal. It is thus, obvious

that the fatal injury was a result of a sudden fight between the appellant

and the deceased with no principal motive on the part of the appellant to

cause death of the deceased. It is not a case in which the appellant had

come prepared to assault the appellant. It was just a chance meeting

between the parties which resulted in the exchange of abuses and during

altercation the appellant on seeing the brother of the deceased

intervening in the fit of anger suddenly took out the churri and inflicted a

single fatal blow on the deceased. Thus, in our view, this is not a case in

which it can be safely concluded that the incriminating act of the

appellant was a result of principal motive. It appears that the knife blow

was inflicted by the appellant in a sudden fight in the heat of passion

without the offender having taken undue advantage or acting in a cruel or

unusual manner, which is apparent from the fact that only single knife

blow was given which unfortunately fell on a vital part of the body of the

deceased and proved to be fatal. Thus, the case clearly falls within the

ambit of 4th Exception to Section 300 IPC which is reproduced below:-

"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-

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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."

5. In our view, we find support from the judgment of Supreme

Court in the matter of Ravindra Shalik Naik & Ors. Vs. State of

Maharashtra, 2009 (2) SCALE 354, wherein it was observed thus:

"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"

6. We thus find force in the contention of learned counsel for the

appellant that the appellant is liable to be convicted under Section 304

Part I of the IPC. In the given facts of the case, we sentence the appellant

to nine years imprisonment while maintaining the fine. Needless to say

that the appellant shall be entitled to the benefit of Section 428 Cr.P.C.

The appeal is accordingly partially allowed with the modification of

conviction under Section 304 Part I of the IPC with the modified sentence.

7. A copy of this order be sent expeditiously to the Superintendent

Tihar Jail.

SANJAY KISHAN KAUL, J.

December 17, 2009                         AJIT BHARIHOKE, J.
gm