Dharambir & Anr. vs State
2009 Latest Caselaw 2919 Del

*                   IN THE HIGH COURT OF DELHI

%                                Date of Decision : 30.07.2009

+                     CRL. APPEAL No.286/2001

      DHARAMBIR & ANR.                 ...Appellants
              Through : Mr. Sumeet Verma, Advocate

                                 versus

      STATE                                  ...Respondent
                    Through : Mr. Pawan Sharma, Advocate

                    CRL. APPEAL No.528/2002

      MAHENDER SINGH & ANR.             ...Appellants
              Through : Mr. B.S.Mor, Advocate

                                 versus

      STATE                                  ...Respondent
                    Through : Mr. Pawan Sharma, 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 NANDRAJOG, J. (Oral)

1. Noting that none appears for the appellants in

Crl.A.No.286/2001 and further noting the fact that on a

previous occasion, Mr.Sumeet Verma Advocate had appeared

on behalf of appellant No.2 in said appeal, we appoint

Mr.Sumeet Verma Advocate as the Amicus Curiae to argue

Crl.A.No.286/2001 on behalf of the appellants therein.

2. We do so for the reason, Crl.A.No.286/2001 and

connected Crl.A.No.528/2002 have reached for hearing today.

Whereas Mr.B.S.Mor Advocate, appears for the appellants in

Crl.A.No.528/2002, counsel for the appellants in

Crl.A.No.286/2001 has not shown the courtesy to appear in

Court. Since both appeals challenge the same judgment and

order of conviction, they have to be heard together.

3. We fix the fee of Mr.Sumeet Verma Advocate at

Rs.3,500/-.

4. As Mr.B.S.Mor, learned counsel for the appellants in

Crl.A.No.582/2002 addressed arguments, Mr.Sumeet Verma

learned Amicus Curiae appointed went through the file to

ready himself in Crl.A.No.286/2001.

5. After attempting to demolish the testimony of PW-

2, PW-3 and PW-4, finding no success, and hardly being in a

position to urge any arguable point for consideration by this

Court, Mr.B.S.Mor, learned counsel for the appellants in

Crl.A.No.528/2002 stated that he has only one submission to

make.

6. The submission is, that at best, the evidence

establishes the commission of an offence punishable under

Section 304 Part II IPC.

7. Mr.Sumeet Verma learned Amicus Curiae appointed

for the co-appellants in the connected appeal also concedes to

the same position after having gone through the testimony of

PW-2, PW-3 and PW-4.

8. The reason why the learned counsel for the

appellants have conceded as aforesaid is the fact that PW-2,

PW-3 and PW-4 have corroborated each other and there is

good evidence to show their presence at the spot where

Chander Singh, brother of PW-3 was stabbed.

9. Case of the prosecution is that on 29.8.1998, a

municipal water tanker was stationed at G Block, Friends

Enclave, Rattan Vihar, Sultanpuri and the inhabitants of the

colony gathered at the spot to collect water in buckets and

containers brought by them. The four appellants were

present. Beena PW-3, came with a cooking vessel (patila) to

collect water from the tanker. The appellants misbehaved with

her. She hit appellant Mahender with the patila and he

grappled with her. The shirt (jhumper) Ex.P-2 of Beena got

torn. Her brother Chander Singh, the deceased, happened to

be present at the spot. The appellants and Chander Singh had

an altercation because Chander Singh intervened, on seeing

his sister being humiliated. The three appellants, Dharamveer

alias China, Surender alias Sunder and Jasbeer Singh alias

Jaggu caught Chander Singh and appellant Mahender gave one

stab blow directed towards the stomach of Chander Singh.

Thereafter, all fled. The FIR has been registered pursuant to

the statement Ex.PW-2/A made by Suresh Kumar PW-2.

10. Suresh Kumar PW-2 had removed the deceased to

the hospital along with Om Prakash PW-4. The MLC Ex.PW-6/A

shows that Chander Singh was got admitted at the hospital by

Om Prakash. The said two documents i.e. the MLC of the

deceased and the rukka show the presence of PW-2 and PW-4

with the deceased. Needless to state, PW-3 Beena was

present at the spot because the origin of the trouble was her

being eve-teased by the appellants.

11. Needless to state, PW-2, PW-3 and PW-4; namely

Suresh Kumar, Beena and Om Prakash have deposed the same

facts which have been disclosed in the statement Ex.PW-2/A

i.e. the First Information Report.

12. Deposing in Court, Beena identified her jhumper

Ex.P-2. The same was torn and thus said exhibit corroborates

the testimony of the three witnesses that Mahender tore the

jhumper worn by Beena when she hit him with the patila.

13. The submission made by learned counsel for the

appellants is that, it is not a case where the accused came

with any pre-determined intention to cause injury either to

Beena or her brother i.e. the deceased. Counsels urge that the

evidence establishes eve teasing by the appellants and Beena

retaliating by hitting Mahender with a cooking utensil and

inviting the counter reaction by Mahender who tugged at her

shirt, which unfortunately, got torn. Her brother, the

deceased, got infuriated and had a scuffle with the appellants.

During the scuffle, appellants Dharambir, Surender and Jasbir

caught the deceased and appellant Mahender inflicted a single

stab blow. Counsel urges that being numerically superior in

the ratio 4:1, had the intention of the appellants been to kill

Chander Singh they could have easily inflicted more than one

stab blow. Drawing attention to the sketch Ex.PW-9/B of the

knife which was got recovered by Mahender Singh counsel

point out that knife is an ordinary kitchen knife. With

reference to the post-mortem report Ex.PW-9/A, counsel urge

that the same shows a single stab blow in the abdomen of the

deceased. Counsel further urge that no vital organ of the

deceased has been cut and that the cause of death is

haemorrhagic shock due to excessive bleeding. It is urged

that the deceased had excessive bleeding because he was first

taken to Hari Hospital as deposed to by PW-4, which hospital

was not equipped to deal with serious cases; requiring the

deceased to be shifted to Jaipur Golden Hospital, and in the

process, valuable time was lost. Bleeding continued and

ultimately excessive bleeding proved fatal.

14. Learned counsel for the State urges that merely

because a single stab blow is inflicted, does not lead to the

conclusion that the intention was not to murder the deceased.

15. Circumstances under which an act is committed by

an accused is very relevant at a criminal trial. More often than

not, the surrounding circumstances under which an act has

been committed throws much light on the intention of the

accused.

16. In the instant case, the appellants did not gather at

spot with an intention to cause any injury much less the death

of Chander Singh. What led to the stabbing of Chander Singh

is an act of misbehaviour by the appellants and the

misbehaviour was directed towards PW-3 who retaliated by

hitting Mahender with a cooking utensil. In turn, Mahender

retaliated by pulling her shirt. The shirt got torn. The

deceased who was the brother of PW-3 could not digest the

insult of his sister. He grappled with the accused. Mahender

stabbed him once when he was in the grip of the other

accused.

17. It is apparent that an incident of eve teasing went

out of hand, resulting in a brawl, followed by stabbing.

18. Intention to cause death of the deceased is clearly

ruled out.

19. The circumstances show that it was not even an

intention to cause such bodily injury as was caused for the

reason from the evidence on record it cannot be said that all

the accused had an intention that an injury should be caused

on the stomach of the deceased so that the deceased should

die.

20. Knowledge that death could be caused by striking a

knife in the stomach of the deceased can certainly be

attributed. But, whether the knowledge is of a lesser degree

or a higher degree i.e. is it a knowledge contemplated by the

3rd limb of Section 299 IPC or is it knowledge which is

contemplated by Section 300 fourthly would determined the

dead lock whether the offence is one of murder or of a lesser

magnitude.

21. In so doing, we take guidance from past

precedents. The third limb of Section 299 IPC uses the

expression: with the knowledge that the act is likely to cause

death. Section 300 fourthly of the IPC uses the expression:

with the knowledge that the act is so imminently dangerous

that it must in all probability cause death. Thus, the difference

is one of the degree of probability of death which determines

whether a culpable homicide is of the gravest, medium or the

lowest degree.

22. In the decision reported as AIR 1968 SC 1390

Laxman Kalu Nikalje Vs. State of Maharashtra a single stab

blow which cut the auxiliary artery and veins resulting in

haemorrhagic shock and consequent death, was held to be

attracting the offence punishable under Section 304 Part II IPC.

In the decision reported as AIR 1981 SC 1441 Gokul Parashram

Patil Vs. State of Maharashtra a single stab wound with a knife

on the left clavicle resulting in the superior vencava being cut

and consequent death due to haemorrhagic shock was held

attracting the offence punishable under Section 304 Part II. In

the decision reported as AIR 1984 SC 759 Tholan Vs. State of

Tamilnadu a single stab wound on the right side of the chest

piercing the heart and the lung was held to be an act

attracting the offence punishable under Section 304 Part II IPC.

23. The most important circumstances in each case

was that either the presence of the accused or the deceased

at the spot was accidental and there was no pre-meditation by

the accused to even injure the deceased, much less cause

death.

24. In the instant case the fact that the deceased lost

excessive blood due to being shifted from Hari Hospital to

Jaipur Golden Hospital has also to be kept in view. We may

hasten to add that merely because a person dies due to

inadequate medical aid does not lessen the gravity of the

offence. What we intent to convey is that no vital organ of the

deceased was affected by the assault and the death is due to

excessive bleeding, meaning thereby, the knowledge

attributable to the appellants by their wanton act is of a lesser

degree and not a higher degree.

25. The appeals are partially allowed.

26. The conviction of the appellants for the offence

punishable under Section 302 IPC is set aside. The appellants

are convicted for the offence punishable under Section 304

Part II IPC.

27. We note that by the time they were released on

bail, the appellants had undergone actual imprisonment for

periods ranging between 5 years and 5 years and 6 months.

They had earned remissions for periods ranging between 8

months to 10 months.

28. We feel that the ends of justice would be met if we

sentence the appellants to undergo imprisonment for the

period already undergone.

29. In view of the sentence imposed upon the

appellants, bail bonds and surety bonds furnished by the

appellants are discharged.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE JULY 30, 2009 mm