Gurmukh Singh vs State
2009 Latest Caselaw 636 Del

i.12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CRL.A. 212/2007

%                              Date of Order: February 25, 2009

       GURMUKH SINGH                            ..... Appellant
               Through:        Ms. Rakhi Dubey, Advocate

                               versus

       STATE OF NCT OF DELHI              ..... Respondent
                 Through: Mr. Pawan Sharma, 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. A short issue arises for consideration.

2. Whether on the evidence on record, the conviction of

the appellant has to be sustained for the offence punishable

under Section 302 IPC or whether the offence made out is

punishable under Section 304 IPC. Further if the conviction has

to be for the offence punishable under Section 304 IPC, whether

part I or part II thereof is attracted.

3. The eye witnesses to the incident are PW-2 and PW-4.

4. Briefly noted case of the prosecution is that the

deceased Jaspal Singh had a doubt whether sum of Rs.1,800/-

which was collected by him as a taxi fare was removed by a

person called Bobby who used to reside near a public toilet at

Hanuman mandir, Baba Kharag Singh Marg.

5. It was New Year's Eve: 31.12.2003. At around

10:30/11 PM accompanied by his friend Inder Mohan PW-4 the

deceased reached Cannaught Place. The place was crowded as

people were swarming all over celebrating New Year's Eve.

Jaspal Singh handed over his taxi to Inder Mohan requesting him

to park the same at a suitable parking place and reached the

toilet and enquired from a lady about Bobby. The appellant

came near the toilet and joined the talks.

6. What happened thereafter may be noted in the

language of Inder Mohan PW-4, who deposed as under:-

"Jaspal was inquiring from them about a person namely Bobby. While these talks were going on, a Sardar came out from a nearby bathroom and joined the talks. Jaspal Singh also inquired from that sardar who came out from the bathroom about Bobby. That Sardar told that some articles of Bobby were lying in

the bathroom but he was not able to tell about the time of visit of Bobby. As soon as Jaspal Singh told about his money a heated argument took place between Jaspal Singh and that Sardar. Thereafter that Sardar took out a knife like object and gave a blow of the same towards the heart side portion on the chest of Jaspal Singh. Accused present in the Court today is the same Sardar who gave knife blow to Jaspal Singh in my presence (witness points out towards accused Gurmukh Singh)."

7. Information of the deceased being stabbed was

conveyed to the police and entered in the daily diary vide DD

No.41A. SI Rakesh PW-22 accompanied by Const.Virender PW-

11 went to the spot and therefrom to R.M.L.Hospital where the

injured Jaspal was found admitted. His statement Ex.PW-22/B

was recorded by SI Rakesh; endorsement Ex.PW-22/C was made

thereon and forwarded for registration of a FIR. At PS

Connaught Place HC Sukhbir Singh PW-6 registered the FIR

Ex.PW-6/A.

8. Jaspal Singh the deceased had a single stab wound

having an entry on the left side of the abdomen placed 14 cms

below the left nipple and 11 cms from the midline.

9. The wound was opined to be not dangerous to life.

The wound was sutured and Jaspal was discharged from the

hospital. Unfortunately the doctor had mis-read the injury and

probably discharged Jaspal a little prematurely, evidenced by

the fact that Jaspal Singh had to be re-admitted in the hospital

due to continued abdominal pain. He died on 4.1.2004 at 6:05

AM.

10. The body was sent for post-mortem. Dr.Amit Kochhar

PW-8, conducted the post-mortem on 4.1.2004 and noted a stab

wound 5 cm deep in the abdominal cavity. Internal examination

reveals that the stab wound had pierced the spleen which had a

tear of the size 1 cm x 0.2 cm. He penned the report Ex.PW-8/A.

11. Learned Trial Judge has believed the testimony of

Inder Mohan PW-4 and has returned a finding that the same

evidences that the appellant caused the fatal stab wound

resulting in the death of Jaspal Singh. The learned Trial Judge

has accordingly opined that the offence squarely fell within the

purview of Section 300 IPC.

12. We may note that the weapon of offence is a kirpan

and the one which was seized pursuant to the disclosure

statement of the appellant was opined by the doctor concerned

to be the possible weapon of offence.

13. Learned counsel for the appellant has urged that

believing the testimony of PW-4 at its face value, it is apparent

that the appellant had no enmity or a cause to inflict the injury

on Jaspal Singh. That Jaspal Singh went to the place to meet

Bobby. That Bobby appears to be residing at a place nearby

where appellant was residing and that in respect of the charge

made by Jaspal Singh against Bobby of misappropriating his

money, some altercation ensued between the appellant and the

deceased and during heated arguments, the appellant inflicted a

single stab blow.

14. Learned counsel urges that Exception 4 to Section

300 is clearly attracted inasmuch as the act was committed

without pre-meditation and in a sudden fight in the heat of

passion upon a sudden quarrel and that the appellant has not

acted in a cruel or an unusual manner.

15. A perusal of the testimony of PW-4, as noted

hereinabove, shows that when the deceased Jaspal Singh was

enquiring about Bobby and was in a dialogue with a lady and

another person (it happens to be Ashok Kumar Banerjee PW-2),

the appellant came out from a nearby bathroom and joined the

talks. The deceased enquired from the appellant about Bobby.

The appellant told the deceased that some articles of Bobby

were lying in a bathroom but he was not able to tell about the

time of the visit of Bobby. All of a sudden heated arguments

ensued.

16. It is relevant to note that PW-4 has not disclosed as

to what were the words exchanged between the appellant and

the deceased. He has simply stated that there were some

heated arguments and that thereafter the appellant took out a

knife like object and inflicted a blow on the person of Jaspal

Singh.

17. Obviously, some words must have been used by the

deceased which provoked the appellant.

18. What is important to be noted is that the appellant

did not attack the deceased at the first instance. He had a

dialogue with the deceased pertaining to the where abouts of

Bobby. The dialogue flared into a heated argument resulting in

the offending act being committed.

19. A kirpan is a religious object kept by those who

profess the sikh religion. It is a revered object. What we mean

to convey is that, though capable of causing an injury, a kirpan

is not treated as a weapon of offence in India. Thus, it cannot

be said that the appellant was armed with a deadly weapon as

conventionally understood.

20. Unfortunately, the learned Trial Judge has not

considered whether Exception 4 to Section 300 was attracted in

the facts and circumstances of the instant case. The learned

Trial Judge has not microscopically examined the legal impact of

the deposition of Inder Mohan PW-4.

21. It is clearly a case of culpable homicide not

amounting to murder.

22. Pertaining to whether part I or part II of Section 304 is

attracted, suffice would it be to state that where the act done is

with the knowledge that it is likely to cause death but without

any intention to cause death or to cause such bodily injury as is

likely to cause death, part II of Section 304 IPC is attracted.

23. The distinction between part I and part II of IPC is the

degree of knowledge which can be attributed to the offender by

the wanton act of the offender.

24. While attributing knowledge, which vital part of the

body is the target becomes important and needs to be

considered while deciding whether Part I or Part II of Section 304

is attracted.

25. The injury on the deceased is a 5 cm deep cut

directed towards the lower left side of the abdomen. But for the

spleen being cut, the deceased would have survived.

26. Indeed, the doctor concerned was convinced that the

injury is not fatal to life evidenced by the fact that after suturing

the wound Jaspal Singh was discharged from the hospital.

Unfortunately for him, the internal injury was not detected by

the doctor. Internal bleeding continued resulting in his death.

27. This gives us a clue to the knowledge which could be

attributed to the assailant.

28. We are of the opinion that the offence committed by

the appellant is that of culpable homicide not amounting to

murder and punishable under Section 304 Part II IPC.

29. The appeal is partially allowed. Impugned judgment

dated 1.2.2007 is set aside. Conviction of the appellant under

Section 302 IPC is set aside. The appellant is convicted for the

offence of culpable homicide not amounting to murder

punishable under Section 304 Part II IPC. The appellant is

sentenced to undergo rigorous imprisonment for a period of 7

years and to pay a fine of Rs.1,000; in default to undergo simple

imprisonment for one month.

30. Copy of this order be transmitted to the

Superintendent Central Jail Tihar for necessary action.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

FEBRUARY 25, 2009 mm