Jagat Ram @ Nanku vs State
2009 Latest Caselaw 2746 Del

R-47
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Decision : July 21, 2009

+                    CRL.APPEAL NO.288/2001

         JAGAT RAM @ NANKU               ..... Appellant.
                  Through: Ms.Ritu Gauba, Advocate

                                versus

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


         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MS. JUSTICE INDERMEET KAUR


         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 NANRAJOG, J. (Oral)

1. The aforesaid appeal has reached for hearing

today.

2. We note that the appeal was filed by a counsel

privately engaged by the appellant who stopped appearing

and in said circumstance the appellant sought legal aid.

Ms.Ritu Gauba, a lawyer on the panel of the Legal Aid

Committee was assigned the appeal to argue the application

filed by the appellant seeking suspension of sentence. Ms.Ritu

Gauba, learned Amicus appointed on behalf of the appellant,

successfully obtained bail for the appellant as directed vide

order dated 6.5.2003. We hereby formally appoint her as an

Amicus to assist the Court on behalf of the appellant and fix

her fee at Rs.3,500/-.

3. The nominal roll of the appellant shows that as of

20.12.2002, the appellant had served a jail sentence of 4

years, 10 months and 3 days. He had earned remissions of 7

months.

4. Being released on bail pursuant to the order dated

6.5.2003, taking 6.5.2003 as the date of release, it is apparent

that the appellant would have undergone actual imprisonment

for 5 years and 3 months.

5. With reference to the evidence on record and in

particular the defence evidence, we note that as per the

testimony of CW-1 and CW-2, being the Headmaster and Head

Mistress of 2 municipal primary schools, where appellant was

admitted as a student, it stands established that the appellant

was born on 10.6.1979.

6. The date of the incident is 9.2.1998. It is apparent

that as on the date of the incident, the appellant was aged 18

years and 8 months.

7. We have paraphrased our decision by recording

aforenoted facts to bring out the facet pertaining to the age of

the appellant, who, though not to be treated as a minor when

the offence was committed, was an immature person.

8. It is not in dispute that on 9.2.1998 Sonu received a

single stab wound on his neck. Unfortunately, the jugular vein

of Sonu got cut and as a result thereof he died.

9. The dimensions of the knife as noted in the sketch

Ex.PW-12/G may be noted. The knife has a blade 10 cms long.

Its width is 1.75 cms. The knife has a single cutting edge and

is rounded at the end. The pen picture of the knife reveals the

same to be an ordinary kitchen knife. It is not a button

actuated knife.

10. The eye witness to the incident is Pawan Singh Negi

PW-11. We note his testimony.

11. He deposed on 6.3.2000 and stated that in the year

1998 he was residing at Durga Park and was a student of

Government Boys Senior Secondary School No.2, C Block,

Janak Puri. He was a student of Class IX. On 10.2.1998

(should read 9.2.1998) he returned back from the school at

4:00 PM to his house. Sonu i.e. the deceased came to his

house and told him that the appellant had beaten him. At that

time another boy was accompanying Sonu. All three i.e. the

witness, Sonu and the other boy went to the house of the

appellant on cycles. Since his cycle had a locking problem, he

parked the same at some distance from the house of the

appellant. Sonu and the other boy went to the house of the

appellant and called him. Appellant came out. For the reason

what was further stated is very relevant, we prefer to quote.

He deposed: "when I was locking my cycle and I turned around

I saw that Sonu, Jagat Ram and the other boy were standing

outside the house. Jagat Ram was standing behind Sonu. I

saw that an altercation (chinaa jhapti) took place between

Sonu and Jagat Ram. I saw Jagat Ram attacking 3 times on

Sonu with a knife. Once he attacked Sonu on neck and twice

probably on chest."

12. Relevant would it be to note that during cross

examination Pawan Singh Negi deposed that the deceased and

the appellant had a dispute in the past regarding some ball.

13. It is urged by learned counsel for the appellant that

from the testimony of PW-11 it is apparent that Sony, one

more person and Pawan Singh Negi came to the house of the

appellant. It was not that the appellant went armed or with a

pre-determined mind to do something. Learned counsel

further urges that from the testimony of PW-11 and especially

with reference to the words "chinaa jhapti" it is apparent that

some altercation preceded the attack. Learned counsel urges

that the backdrop of there being a previous quarrel and the

deceased and the other boy along with Pawan Singh Negi

visiting the house of the appellant are suggestive of the fact

that Sonu, the other boy and Pawan Singh Negi had come to

the house of the appellant to teach him a lesson and that the

appellant acted in self-defence.

14. From the testimony of PW-11 it is apparent that the

act of stabbing was preceded by an altercation. It is thus

apparent that when the appellant came out of the house he

did not come out with any intention to start a quarrel. From

the testimony of PW-11 it is apparent that the appellant came

out of his house on being called by Sonu and the other boy.

15. The origin of what happened at the spot is not

clear. The past is clear, being a dispute between Sonu and the

appellant on the issue of some ball.

16. The post-mortem report of the deceased shows only

a single wound on the neck. The testimony of PW-11 that the

appellant attacked twice on the chest of the deceased is

incorrect.

17. We thus have on record the fact that everything

happened upon the spur of the moment and a single stab

injury was inflicted on the person of the deceased with a knife,

which is an ordinary kitchen knife.

18. In the decision reported as AIR 1968 SC 1390

Laxman Kalu Niklji Vs. State of Maharashtra a single stab blow

with a sharp edged object directed towards the right clavicle

i.e. the chest, resulting in the arteries inside being cut causing

excessive bleeding leading to haemorrhagic shock was opined

to be an act which attracts the offence punishable under

Section 304 Part II IPC and not the offence punishable under

Section 302 IPC or Section 304 Part I IPC.

19. In the decision reported as (2006) 13 SCALE 228

Saleem Sahab Vs. State of Madhya Pradesh an assault, upon a

sudden quarrel, with a pair of scissors directed towards the

abdomen and the chest was held to be an act attracting the

offence punishable under Section 304 Part II IPC.

20. The decision highlights the importance of taking

into account the size of the weapon of offence for the reason,

the nature of the weapon of offence is linked to the knowledge

or culpability. Small cutting weapons would attract a lesser

degree of knowledge and hence a lesser degree of culpability.

21. Under the circumstances we hold that the act

committed by the appellant attracts the offence of culpable

homicide not amounting to murder and punishable under

Section 304 Part II IPC.

22. Noting the young age of the appellant and

therefrom deducing the fact that the appellant was a fairly

immature person when he committed the act, noting further

that the appellant has already undergone an actual sentence

of 5 years and 3 months we are of the opinion that ends of

justice would be met to direct the conviction of the appellant

for the period already undergone.

23. The appeal is partially allowed. The conviction of

the appellant for having committed the offence punishable

under Section 302 IPC is modified, in that, the appellant is

convicted for the offence punishable under Section 304 Part II

IPC. As regards the sentence we direct that the appellant

stands sentenced to undergo imprisonment for the period

already undergone.

24. The appellant is on bail. In view of the sentence

imposed upon the appellant, the bail bond and surety bond

stand discharged.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

JULY 21, 2009 mm