Moti Chander Mandal vs The State
2009 Latest Caselaw 50 Del

*                   IN THE HIGH COURT OF DELHI

%                                  Date of Decision : January 12, 2009

+     CRL.A. 355/2002

      MOTI CHANDER MANDAL              ..... Appellant
                   Through: Ms.Charu Verma, Advocate.

                    versus

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

      CRL.A. 177/2005

      DEEPAK                                       ..... Appellant
                               Through: Ms.Charu Verma, Advocate.

                    versus
      THE 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?           Yes

3. Whether judgment should be reported in Digest?                Yes

: PRADEEP NANDRAJOG, J. (Oral)

1. Appeal of co-accused Moti Chander Mandal is listed

for hearing today along with the appeal of the accused Deepak.

The Amicus Curiae appointed for Moti Chander Mandal has

unfortunately not been appearing. Ms.Charu Verma, learned

counsel appearing as the Amicus Curiae in the appeal filed by

accused Deepak stated that she has comprehensively prepared

the matter and would be in a position to argue the appeal on

behalf of Moti Chander Mandal as well. By a separate order

passed today we appointed Ms.Charu Verma, Advocate, as

Amicus Curiae in the appeal filed by Moti Chander Mandal.

2. 17th January 1996 was the last day in the life of

Jyotish Mandal. He was stabbed. The stab wound was on his

back. As per the post mortem report, Ex.11/A, the exact nature

and location of the injury is as under:-

"5. Incised stab wound 5.5 x 2 cms margins cleanly and sharply cut present obliquely and vertically over left side of back of left abdomen, tailing of upper end present in an area of 1.5 cms. Lower end 3 cm away from mid line, upper end 5 cm from mid line, upper end 14 cms from interior angle of scapular, lower end 16 cms from iliacrest.

3. Four other injuries being abrasions were also noted

on the person of Jyotish Mandal as under:-

"Abrasion 1.5 x 1 cm over top of head 11 cm from medial end of left eye brow on left side just near the midline.

2. Abrasions 1 x 1 cm left side forehead, 2 cms from midline and 3 cms above medial end of left eyebrow.

3. Multiple small scattered abrasions in an area of 4 x 2.5 cms over lower front of right knee.

4. Mutliple abrasions in an area of 5.5 x 5 cm over lower

front of left knee."

4. It is relevant to note that due to injury No.5 the left

lung and the diaphragm suffered a cut due to which Jyotish

Mandal died.

5. Appellants were charged with the offence of

murdering Jyotish Mandal. Appellant Deepak, happens to be the

son-in-law of the deceased, being married to Kamla, the

daughter of the deceased. Accused Moti Mandal is stated to

have facilitated the marriage of the two.

6. As per the prosecution, Deepak had a grievance

against his in-laws because after his marriage with Kamla she

had returned to the house of her parents and in spite of his

repeatedly requesting his in-laws to send her back she was not

being sent to her matrimonial house.

7. Further, case of the prosecution is that Moti Mandal

and Jyotish Mandal used to vend eatables from hand-carts on

the street abutting their jhuggis in Amar Jyoti Camp.

8. On the day of the incident when Jyotish Mandal was

stabbed i.e. 17.1.1996, prosecution alleges that around 4.15

pm, Deepak had an altercation with his father-in-law i.e. Jyotish

Mandal near the place where Jyotish Mandal and Moti Mandal

had stationed their hand-carts. Moti Mandal facilitated the

commission of the crime by not only exhaulting Deepak but

even arming him with a knife and thereafter catching hold the

deceased so that Deepak could inflict the stab wound.

9. PW-1, Shakuntla, wife of the deceased, his daughter

Kamla, another daughter Anima and one Sushil Kumar were

stated to be the alleged eye-witnesses of the incident.

10. The weapon of offence i.e. the knife used to inflict the

wound was not recovered.

11. As per the testimony of Shakuntla, Kamla and Sushil

Kumar, Deepak wanted Jyotish Mandal to impress that Kamla

should return to her matrimonial house and that Moti Mandal

handed over a knife to Deepak and exhaulted him to attack his

father-in-law and that Moti Mandal caught hold of Jyotish

Mandal; thereafter Deepak inflicted a knife blow on the back of

Jyotish Mandal. Anima deposed at a slight variance by stating

that Deepak stabbed her father in the chest and that the

altercation took place between Moti Mandal and Jyotish Mandal

and at that point of time Deepak was in the jhuggi of Moti

Mandal and reached on being summoned by the wife of Moti

Mandal and thereafter at the exhaultation by Moti Mandal he

picked up the knife and stabbed her father.

12. Believing the wife and daughters of the deceased and

Sushil to be truthful witnesses, learned Trial Judge has held that

the prosecution has successfully established that with the

intention of causing death of Jyotish Mandal, Deepak inflicted

the stab wound and Moti Mandal shared the common intention

and facilitated the murder. The result is the conviction of both

under Section 302 read with Section 34 IPC.

13. At the hearing today, learned counsel for the

appellants has drawn our attention to the testimony of Anima,

PW-5 and the other eye-witnesses and has urged that there are

discrepancies in the testimony.

14. We note that PW-1, the wife of the deceased, his

daughter Kamla, PW-2 as also Sushil Kumar, PW-6, have

corroborated each other with respect to the origin of the fight

and the manner in which the deceased was injured. We note

that PW-5, Anima, aged 13 years when she deposed on

23.9.1997, being less than 12 years when the incident took

place, on account of her immaturity may have fantasized certain

facts while speaking about the incident which she claims to have

witnessed. We note that PW-5, Anima has deposed about the

presence of her mother and her sister which lends assurance to

the testimony of the two of being present and having witnessed

the incident. She has also corroborated the two with respect to

Moti exhaulting Deepak to assault her father and arming him

with a knife as also catching hold hand of her father upon which

Deepak inflicted the knife blow. To put it pithily, on material

aspects she has spoken in harmony with her mother, her sister

and Sushil. The discrepancy pertains to the stage at which

Deepak reached the site. The variation which she has made in

her testimony is that when Moti Mandal and Jyotish Mandal had

an altercation, wife of Moti summoned Deepak and thereafter

Deepak took the knife from the hand-cart of Moti to inflict the

wound on the person of Jyotish Mandal.

15. Having perused the testimony of PW-1, PW-2, PW-5

and PW-6; noting the consistency in the testimony of PW-1, PW-

2 and PW-6 we are satisfied that the variations, as noted above,

is not fatal to the case of the prosecution.

16. We thus concur with the finding of fact recorded by

the learned Trial Judge as to the incident and the manner in

which the deceased suffered the stab wound at the hands of

Deepak; facilitated by Moti; both sharing the common intention

to injure the deceased.

17. However, the question which needs to be considered

more deeply is whether the evidence establishes the intention of

both to cause the death of Jyotish Mandal.

18. The difference between culpable homicide

amounting to murder and culpable homicide not amounting to

murder is relatable to the degree and extent of intention or

knowledge viewed in the light of the facts and circumstances of

each case. The distinction between culpable homicide

amounting to murder and culpable homicide not amounting to

murder has been repeatedly shown with the help of the

following table first drawn in the case of State of Andhra Pradesh

v. Rayavarapu Punnayya and Anr. AIR 1977 SC 45

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.

19. If we peruse the testimony of PW-1, PW-2 and PW-6

we note that an altercation took place when Deepak wanted the

deceased, his father-in-law, to pressurize Kamla to return to her

matrimonial home. It is relevant to note that Deepak did not

come armed. As per the prosecution, during the course of

altercation, Moti exhaulted Deepak "Maar Saale ko". It be noted

that the exhaultation was not "Mar de jaan se saale ko". Now,

"Maar saale ko" could well mean, "Give a beating to the fellow".

It could well mean, "Kill the fellow".

20. In the absence of any other further exhaultation it

would be unsafe to impute the exhaultation to mean to finish off

the deceased.

21. The fact that a solitary stab wound was inflicted on

the deceased is also relevant to gather the intention of the

assailant.

22. As per the prosecution, the deceased was held by

Moti Mandal. This gave more than ample chance to Deepak to

inflict more than one stab wound if indeed the intention was to

finish off the deceased.

23. Looking further, we find that the stab blow, as

evidenced from the post mortem report of the deceased,

contents whereof have been noted in paras 2 and 3 above, has

been directed to a non-vital part of the body. The blow has

been directed at the back; that too towards the lower portion of

the back. Unfortunately, evidenced from the wound resulting

from the stab, there was a cut in the left lung and the

diaphragm in continuation to the injury No.5 i.e. the stab wound.

24. In the decision reported as Laxman Kalu Nikalje Vs.

The State of Maharashtra AIR 1968 SC 1390, one blow was given

with a knife on the shoulder of the deceased. Death was caused

because the auxiliary artery and veins got cut, causing shock

and hemorrhage leading to death. It was held that it could not

be presumed from the given facts that the accused came with

the intention of causing death or wanted to cause the specific

injury i.e. cut the auxiliary artery and veins. In the decision

reported as Gokul Parashram Patil Vs. State of Maharashtra

AIR1981 SC 1441 a single blow was given with a knife on the left

clavicle - a non vital part of the body- as a result the superior

vencava was cut, the damage so caused was sufficient to cause

death in the ordinary course of nature. The Supreme Court

observed that it would be too much to say that the accused

knew that the superior vencava would be cut as a result of that

wound. In the decision reported as Smt. Sandhya Jadhav Vs.

State of Maharashtra (2006) 4 SCC 653, a single blow was

inflicted with a knife on the back of the deceased while he

interfered in a fight between the accused and another person.

The Court held that the case was covered by Exception 4 to

Section 300 IPC and that the offence established was under

Section 304 Part-II IPC.

25. In the instant case, as noted above, the injury which

has caused the death of the deceased is not directed towards

any vital part of the body. There is no evidence on record that

Deepak intended to cause the specific injury which has been

caused. In that view of the matter case is made out for

conviction of the appellants under Section 304 Part-II.

26. Appellant Moti Mandal has already under-gone jail

term of 7 years and 8 months. Appellant Deepak has under-

gone a jail term of 6 years and 8 months.

27. We dispose of both the appeals by partially allowing

the same. We alter the conviction of the appellants from under

Section 302/34 IPC to Section 304 Part-II read with Section 34

IPC.

28. We sentence the appellants to under-go

imprisonment for the term they have already under-gone.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

JANUARY 12, 2009 dk