Prem Chand vs State
2009 Latest Caselaw 448 Del

i.5
*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+                                    CRL.A. 674/2007


%                                    Date of Order : February 09, 2009


        PREM CHAND                                     ..... Appellant
                Through:             Mr. Anil Soni, Advocate


                                     versus


        STATE                                         ..... Respondent
                          Through:   Ms. Richa Kapoor, Advocate


        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MS. JUSTICE ARUNA SURESH

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

        2. To be referred to the Reporter or not?

        3. Whether judgment should be reported in Digest?


: PRADEEP NANDRAJOG, J. (Oral)

1. Indeed, learned counsel for the appellant has, after

making very feverish submissions on merits, restricted

arguments on whether the appellant could be convicted for the

offence of murder and hence punishment awarded under

Section 302 IPC or whether the conviction has to be for the

offence of culpable homicide not amounting to murder and

hence punishment awarded under Section 304 IPC.

2. The reason why learned counsel for the appellant has

made restricted submissions is the fact that the dead body of

Smt. Sudershan Pahuja was recovered from the house of the

appellant. The body had been concealed in a trunk which was

placed in the kitchen of the house.

3. The recovery of the body has been proved by PW-7,

PW-11, PW-12, PW-13, PW-17, PW-19 and PW-21. Indeed, the

photographs taken by PW-7 being Ex.PW-7/A to Ex.PW-7/K

negatives whereof are PW-7/1 to Ex.PW-7/10 are indisputably

the kitchen of the house of the appellant.

4. That the deceased had gone to the house of the

appellant stands proved by the testimony of her son Harish

Pahuja PW-1, his wife Rubi Pahuja PW-5 as also Parminder Singh

PW-3 who have deposed that the deceased Smt. Sudershan Pal

had gone to the house of the appellant to collect Rs.20,000/-

which she had loaned to the mother of the appellant.

5. Case of the prosecution is that the deceased had

loaned Rs.20,000/- to Sumitra, the mother of the appellant, and

on 17.2.2001 had gone to the house of the appellant to receive

back the said money. Needless to state, the mother of the

appellant was residing with him. Since the deceased did not

return home till late afternoon, hence her son and her daughter-

in-law were naturally alarmed. Harish Pahuja the son of the

deceased and his friend Parminder Singh went to the house of

the appellant but found the same locked. Since the deceased

did not return home and could not be located even by late

evening, the son i.e. Harish Pahuja lodged a missing person's

complaint, Ex.PW-10/A, informing that his mother had gone to

the house of the appellant. This led the police to track down the

appellant and his mother. Since their house was locked, from

the neighbours they learnt that a daughter of the appellant was

married and was residing some where at Tughlak Road, New

Delhi. The police located the house of the daughter of the

appellant, where they met Deepa, the youngest daughter of the

appellant, then aged about 8-9 years, who informed the police

that the deceased had come to their house at 5628/78, Regar

Pura, Karol Bagh and had demanded Rs.20,000/- from her

grandmother. Her grandmother did not pay the money. The

deceased bit her grand-mother and on seeing this her father got

enraged and picked up an iron rod and repeatedly hit the

deceased on the face and the skull. That the deceased died.

That her father and her grand-mother cleaned the blood stains

from the floor and put the body inside a trunk and put the trunk

in the kitchen. She was sent to the house of her sister. Her

father and her grandmother went away.

6. On the basis of the said statement, Ex.PW-2/A, made

by Deepa, the police went to the house of the appellant.

Indeed, from the kitchen, a trunk was found and on it being

opened, the dead body of the deceased was recovered.

7. After the appellant was apprehended he made a

disclosure statement and got recovered the weapon of offence

which he had used to inflict injuries on the deceased.

8. We note that Deepa who was examined as PW-2

turned hostile and refused having made any statement to the

police.

9. The deposition of young Deepa in Court is belied from

the fact that when her grand-mother, who was also

apprehended, was sent for medical examination, as per MLC

Ex.PW-20/A the doctor noted that she had a bite mark on the

under-side of the left arm and bruises on the arm. Sumitra, the

grand-mother of Deepa has not explained the said bite mark

injury on her fore-arm and this gives credence to the statement

made by Deepa which ultimately led the police to recover the

dead body of the deceased from the house of the appellant.

10. Indeed, in view of the afore-noted over whelming

evidence, coupled with the fact that the injuries on the body of

the deceased being 12 in number, as per the MLC Ex.PW-8/A;

injuries being fatal and by no stretch of imagination can any one

argue that he who inflicts said injury does not intend to cause

the death of the victim, learned counsel did not venture much

into the evidence.

11. The 12 injuries on the deceased are as under:-

"1. CLW 11 x 2 x bone deep cms over left side forehead starting from the outer end of the left eyebrow going upwards, outwards and backwards upto a point 4 cms above the top of left ear pinna.

2. CLW stellate shape shaped 3 x 1.5 x bone deep cm over middle of forehead, 0.5 cm above the root of the nose.

3. CLW 5.1.8 x bone deep cm obliquely placed over right side forehead 1.2 cm above the right eyebrow.

4. CLW 3 x 1.5 x bone deep cm over middle of forehead 1 cm above the injury no.3.

5. CLW 3.8 x 0.8 x bone deep cm over left side forehead 2 cm above and lateral to injury no.4.

6. CLW 2.5 x 0.7 x bone deep cm over right side face 2 cm left in front of right ear.

7. CLW 1 x 0.3 x bone deep cm over left side chin 1 cm left to mid line.

8. CLW 7 x 6 x bone deep cm stellate cells over right side tempero parietal region 2 cm above the top of right ear pinna and 3 cm above and outer to injury no.3. Flapping of the skin margin present.

9. CLW 11 x 2.8 x bone deep cm over right tempro parietal region 1.5 cm below injury no.8. Flapping of the skin margin present.

10. CLW 5 x 0.8 x bone deep cm over right tempro parietal region 3 cm behind injury no.9.

11. CLW 3.6 x 0.8 x bone deep cm over right tempro parietal region below injury no.10.

12. CLW 6.8 x 1.9 x bone deep cm over right temporal region 4 cm behind the lower end of injury no.9."

12. Indeed, the weapon of offence has been recovered

pursuant to the disclosure statement of the appellant and on his

pointing out.

13. Learned counsel for the appellant urges that the

evidence establishes that the deceased bit the mother of the

appellant who was aged 85 years. At that, the appellant

attacked the victim. Submission made is that Exception 1 to

Section 300 is attracted, for the reason, a son who sees his 85

year old mother being attacked is bound to get provoked. Thus,

counsel urges that it is a case of a sudden and a grave

provocation.

14. Learned counsel draws our attention to the fact that

the deceased was aged 60 years. Counsel does so to bring

home the point that where a 60 year old woman attacks a

woman aged 85 years in the presence of the son of the latter, it

would not be a simple case of an old woman attacking another

old woman. It would be a case of an old woman attacking a very

old woman and hence would provoke the son of the latter.

15. Learned counsel for the State does not dispute that a

son who sees his 85 year old mother being attacked, and in fact

bitten, by a woman aged 60 years, would get provoked, but

urges that this would not justify 12 blows directed towards the

head and the face of the deceased.

16. Exception 1 to Section 300 of the Indian Penal Code

reduced the culpability of a homicide which otherwise is murder

if the offender is deprived of the power of self-control due to a

grave and a sudden provocation. Thus, it is apparent that a

person who loses self-control on a sudden and grave

provocation would be presumed to be a person without an

intention to murder, because of the reason, the condition

precedent for a person to form an intention to cause murder is a

mind capable of taking decisions.

17. This in turn means that the intensity of the acts done

by such a person i.e. a person who is deprived of the power of

self-control due to a grave and a sudden provocation would be

irrelevant save and except to determine whether the acts

attract the first part or the second part of Section 304 IPC.

18. Indeed, in the decision reported as 1998 (4) SCC 336

State of U.P. Vs. Lakhmi where blows with a phalli (a spade-like

agricultural implement) were inflicted on the head of the

deceased and the skull was smashed; noting that there was a

sudden and a grave provocation, the Supreme Court converted

the conviction from under Section 302 to Section 304 Part 1 IPC.

19. We accordingly allow the appeal in part.

20. The impugned judgment dated 24.1.2006 and the

order of sentence dated 6.2.2006, in so far it has convicted the

appellant for the offence of murder, are set aside and the

appellant is held guilty of the offence punishable under Section

304 Part 1 IPC.

21. The appellant is directed to undergo rigorous

imprisonment for a period of 10 years and to pay a fine of

Rs.5,000/- and in default to undergo further rigorous

imprisonment for a period of 3 months.

22. The conviction of the appellant and the sentence for

the offence punishable under Section 201 IPC is maintained;

with a clarification that both sentences shall run concurrently.

23. Before concluding we may note that the mother of

the appellant was acquitted of the charge of murder but has

been convicted for the offence punishable under Section 201

IPC. She has not filed any appeal; probably for the reason by

the time the sentence was awarded she had already under gone

the period of incarceration.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

FEBRUARY 09, 2009 mm