Ved Parkash @ Vedu vs The State
2009 Latest Caselaw 4458 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                            Judgment delivered on: November 04, 2009


+      Crl.A No.278/1994


       VED PARKASH @ VEDU                         ..... Appellant
                                 Through:   Mr.Thakur Virender Pratap
                                            Singh Charak, Advocate.

                       Versus


       THE STATE                                 ..... Respondent

Through: Mr.Sunil Sharma, APP.

CORAM:

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

SANJAY KISHAN KAUL, J.(ORAL)

1. The appellant is aggrieved by the judgment of the Trial Court

dated 28.11.94 convicting him under Section 302 IPC and as also

the order on sentence dated 29.11.94 sentencing him to undergo

life imprisonment and to pay a fine of Rs.2,000/-.

2. The order of sentence was suspended vide order dated

5.10.1999 and the appellant was granted bail. The appellant has

failed to join the present appeal proceedings despite warrants being

issued and is not traceable. We thus proceeded to appoint Amicus

Curiae to assist this Court and hear the appeal.

3. The incident in question occurred on 13.12.1990 at 8:45 p.m.

in Gali Ahiran, Bara Hindu Rao. The appellant along with co-accused

Shiv Nath and Sanjay are alleged to have accosted Ashok

(deceased). Shiv Nath and Sanjay are alleged to have held the

deceased while the appellant gave a single dagger blow on the right

side of the stomach of the deceased. The deceased was rushed to

the hospital and subsequently succumbed to the injuries. It is the

case of the prosecution that there was a long standing enmity

between the appellant and the deceased which was the motive for

the crime. The appellant as well as Shiv Nath and Sanjay was

charged under Section 302 IPC read with Section 34 IPC. The

appellant alone was convicted while the two co-accused were

acquitted, giving them the benefit of doubt.

4. The intimation of the crime is stated to have been received by

Constable Virender Singh, PW16, who was working as the Duty

Constable in Hindu Rao Hospital when the deceased was brought to

the hospital and he, in turn, informed the police station by

telephone. S.I. Brij Bhushan, PW21, on receipt of DD No.14A went to

the hospital from where he collected the MLC of the deceased who

was still alive but had been declared as unfit for making statement.

S.I. Brij Bhushan recorded the statement of Jagjit Singh, PW3,

brother of the deceased and sent the same to the police station for

registration of the case. He also went to the spot of occurrence and

prepared a site plan Ex.PW4/DA and took sample of the blood at site

along with the blood stained earth. The clothes of the deceased

were also taken into possession by the said S.I. Brij Bhushan apart

from the blood stained shawl of father of the deceased, Balbir Singh,

PW1. A report Ex.PW3/A with the endorsement of S.I. Brij Bhushan

was received by Head Constable Ali Ahmed Khan, PW6 and also

PW20 on the basis of which he recorded the FIR Ex.PW6/C. DD

No.16A was recorded giving the particulars of the FIR and special

report was sent to the Metropolitan Magistrate. At 12:40 a.m., on

14.12.1990, he received information about the demise of the

deceased from the Duty Constable at HR Hospital and consequently

an entry to that effect was made in the daily diary which is

Ex.PW6/E.

5. The appellant was apprehended on 30.12.1990 and is stated

to have made a disclosure statement Ex.PW2/B. He is also stated to

have got recovered the dagger which was used to cause injury to

the deceased. The other two accused were also arrested by him

and it is in pursuance to the disclosure statements of the said two

accused that the arrest of the appellant took place.

6. The case of the prosecution is based on ocular testimony of

the eye-witnesses Balbir Singh, PW1, father and Jagjit Singh, PW3,

the younger brother of the deceased. There is a third eye-witness

Balwan, PW4 who is stated to be a friend of the deceased and was

at the spot but during trial turned hostile.

7. PW1 has deposed that the deceased was brought to his house

in injured condition by Jagjit Singh, PW3 at 9:10 p.m., when the

deceased informed PW1 that the appellant had stabbed him and

that he should be removed immediately to the hospital. The

deceased wrapped himself in a shawl belonging to PW1 and then

the deceased was removed to the hospital in a two wheeler scooter

owned by PW1. The body of the deceased was identified by the said

PW1. The deceased had informed PW1 that the wound on the right

side of his abdomen had been caused by the appellant. PW3 is also

stated to have accompanied PW1 and the deceased.

8. PW3 in his testimony has deposed about there being some

animosity between the appellant and the deceased and earlier they

had quarreled about 8 to 10 years ago. On the fateful day at about

8:45 p.m., PW3 met Balwan, PW4 and while the said two persons

were standing near the "Chowk" (crossing), they saw the appellant

along with the other two co-accused proceeding towards Gali

Ahiran at a fast pace. Thereafter he saw them accosting the

deceased and while Sanjay and Shiv Nath caught hold of the

deceased, the appellant inflicted the stab injuries. On PW3 and PW4

running to the spot, they found that the assailants had disappeared

and thereafter PW3 took the deceased to the residence from where

they went to the hospital. He deposed that I.O. recorded his

statement Ex.PW3/A. The I.O. lifted blood and concrete samples

from the place of occurrence. The witness had met the police for

the first time in the hospital. It may be noticed that though PW4

had turned hostile, he deposed to the fact of 3 people running

towards Gali Ahiran and the deceased having stab injury in the

stomach but resiled from his earlier statement under Section 161

Cr.P.C. about identifying the accused who had inflicted the injury.

9. The post mortem was carried out by Dr.L.T. Ramani, PW7 who

found an incised stab wound placed vertically, deep in the

abdominal cavity. The injury was found to be ante-mortem, caused

by a sharp weapon and was sufficient to cause death in the ordinary

course of nature. The death was due to haemorrhagic shock, as a

result of injury to the abdominal vicera. The doctor proved the post-

mortem report as Ex.PW7/A and opined that the injury could have

been caused by the dagger Ex.P4.

10. The benefit of doubt has been given to the two co-accused as

inter-alia the deceased himself while making his extra-judicial

confession to his father PW1 had only mentioned the name of the

appellant. It is in view thereof that only the appellant has been

convicted. The State preferred no appeal against acquittal of the

co-accused.

11. Learned Amicus Curiae seeks to make the following

submissions in respect of what he perceives to be the infirmities in

the impugned judgment:-

       (i)         The complainant PW3 could not have seen the

                   incident from where he was standing.

       (ii)        The distance between the place where PW3 was

standing and the scene of crime was such that PW3

could not have heard any alleged conversation

between the appellant and the deceased.

(iii) There was a motive on part of PW3 to implicate the

appellant in view of what he perceived to be a past

animosity between the appellant and the deceased,

(iv) The testimony of PW3 suffers from contradictions as

exact description of the weapon of offence is not

available as the weapon has been called knife in part

of the deposition while at other places it has been

referred to as a dagger.

(v) PW3 has deposed to have taken the deceased to the

hospital in a TSR while the testimony of PW1 shows

that the vehicle was a scooter.

(vi) The testimony of PW1 should not be believed insofar

as the extra judicial confession made by the

deceased to him is concerned because of the motive

of perceived past animosity.

(vii) In case the prosecution is to be believed, there is no

case made out for conviction under Section 302 IPC

and it can at best be a case under Section 304 IPC,

there being only one injury caused to the deceased

that too of the depth of 4.5 cm with a dagger having

blade length of 26.9 cm.

12. Learned APP for the state, on the other hand seeks to support

the judgment on the basis of the ocular testimony of the eye-

witnesses PW3 and PW4, the testimony having emerged as

unscathed in cross examination. The recovery of the weapon being

a dagger from the bushes at the behest of the appellant and the

testimony of PW7 Dr.L.T.Ramani shows that the injury causing death

was inflicted from the weapon of offence. The motive of the crime is

stated to be the past animosity between the appellant and the

deceased as established by the testimony of PW3 and PW4.

13. We have examined the submissions of learned counsel for the

parties. We have also perused the scaled site plan Ex.PW22/A which

has been made at the instance of PW3 as deposed by the draftsman

PW22. The site plan shows that if the exact place where PW3 and

PW4 were standing is taken into account, there is a possibility of

obstruction by a corner of the building to the view where the

incident occurred. However, the location is such that a small

difference in the positioning, placement or angle could make the

scene visible. PW3 could have given the place of his location but

not by exact precision and it cannot be said that the location is such

where the view is absolutely blocked. Similarly the plea about

incapacity to hear on account of distance would depend on the

volume of noise in the place. Undoubtedly there is some distance

and the only value to be attached to what was the conversation

exchanged between the appellant and the deceased is a statement

attributed to the appellant that the appellant had been looking for

the deceased for many days and would not spare him on that date.

We may also notice at this stage that there are no specific details

given of the past animosity between the appellant and the deceased

other than to state that there were some quarrel 8 to 10 years ago

which is quite a long time back. There thus seems to be some

doubt over the motive on the part of the appellant to have inflicted

the injury on the deceased.

14. In our considered view, the absence of motive itself would not

suffice if the testimony of the ocular witnesses had withstood cross-

examination. PW3 has clearly deposed to the infliction of the wound

by the appellant to the deceased, which finds corroboration from the

extra-judicial confession of the deceased made to PW1. The two

witnesses being PW1 and PW3 have in all other respects withstood

the cross-examination to establish the guilt of the appellant.

Otherwise also there is no reason as to why PW1 and PW3 would

falsely implicate the appellant and allow the real assailant to go scot

free.

15. We thus find no reason to upset the judgment of the trial

Court insofar as the conviction of the appellant for causing death of

the deceased is concerned, but we find that the aspect whether the

incident is one of murder or culpable homicide not amounting to

murder needs to be examined more minutely. We have already

observed that no past animosity has been established. There is

some doubt about the alleged statement of the appellant made to

the deceased before inflicting the wound in view of the distance

from the scene of crime and the area being a busy one. Thus what

could be proved by the ocular testimony of the eye-witnesses does

not necessarily imply that the hearing would also be so accurate at

a distance as to decipher the sentence spoken by the appellant to

the deceased just prior to the infliction of the wound. We also find

that the weapon of offence is a dagger. We have perused the

sketch of the dagger which is Ex.PW2/A. The length of the blade of

the dagger is 26.9 cms and the testimony of PW7, the doctor,

establishes that the depth of the wound is only 4.5 cms albeit the

same has damaged the liver being on the right side of the stomach.

Thus only a small part of the blade has been thrust into the

deceased which would show that the dagger has not been thrust

with full force. The injury would be caused by a jab of the dagger

rather than a full thrust of the dagger taking into consideration the

size of the wound and the length of the dagger. The dagger has

been inflicted in the stomach. This would belie the pre-meditated

mind of the appellant to cause death of the deceased.

16. The injury which caused the death was in a chance meeting

between the appellant and the deceased in the Mandirwali Gali.

Since the dagger has been used to inflict the injury, which as per

opinion of Dr.L.T.Ramani PW7 was sufficient to cause injury, but in

the given factual matrix of the case neither the intention to cause

death nor the knowledge that such injury was likely to cause death

of the deceased, could be attributed to the appellant. It is a single

injury case in the heat of the moment in a public place covered by

the Fourth exception to Section 300 IPC and thus we are of the

considered view that the same is covered under Section 304 Part II

IPC and not Section 302 IPC. We are fortified in our conclusion, in

view of the pronouncement of the Supreme Court in Ravindra

Shalik Naik & Ors. Vs. State of Maharashtra, 2009 (2) Scale

354 in para 6 as under:-

"6. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would

not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acting in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat, (2003) (5) Supreme 223, Parkash Chand v. State of H.P. (2004) (11) SCC 381,; Byvarapu Raju v. State of A.P. and Anr., (2007) (11) SCC 218 and Buddu Khan v. State of Uttarakhand SLP (Crl.) No. 6109/08 disposed of on 12.1.2009"

17. We may add that in Pappu Vs. State of M.P., 2009 (4)

SCALE 521, a distinction has been carved out between the offence

of murder as against culpable homicide not amounting to murder as

defined under Section 300 of IPC. In the above referred case, the

exchange of hot words between the accused and the deceased

resulted in a shot being fired resulting in an injury on the chest of

the deceased was held to be a fit case for conviction under Section

304 Part II of the IPC with a custodial sentence of eight years.

18. In the given facts of the case, we find it difficult to sustain the

conviction of appellant under Section 302 IPC. Accordingly

conviction under Section 302 IPC is set aside and converted into

conviction for culpable homicide not amounting to murder under

Section 304 Part II IPC. Considering the overall facts and

circumstance of the case, we find that a sentence of 8 years

imprisonment while sustaining the fine would suffice. We find from

the nominal roll that the appellant has undergone incarceration of

almost 8 ½ years and if the remission period is added, it would be a

little less than 10 years. In view thereof, the appellant need not be

taken into custody and the bail bond and surety stand discharged.

19. The appeal is allowed to the aforesaid extent.

SANJAY KISHAN KAUL, J.

November 04, 2009                                   AJIT BHARIHOKE, J.
gm