Raj Kumar @ Raju vs The State
2009 Latest Caselaw 4626 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                         Judgment delivered on : November 12, 2009


+      CRIMINAL APPEAL NO.53/1996

       RAJ KUMAR @ RAJU                              ..... Appellant
                              Through:   Ms.Nilofar Qureshi, Amicus
                                         Curiae/Advocate

                    Versus

       THE STATE                                   ..... Respondent
                              Through:   Mr. Pawan 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 impugned judgment dated

03.02.1996 convicting the appellant under Section 302 of the IPC for

murder of one Kirpal (deceased) and the order of even date sentencing

him to life imprisonment and a fine of Rs.2000/-, in case of default of



Crl.A. No.53/1996                                                Page 1 of 6
 payment of fine, to further undergo simple imprisonment for a period of

four months.


2.     The case of the prosecution as established by the testimony of the

eye witness Satish Kumar (PW3) is that the said PW3 and the deceased

went to the shop of kerosene dealer along with the PW2 Chander Pal,

where one Nandu and Balli met them. After purchasing the oil, there was

some altercation between Balli and the deceased, which resulted in the

deceased slapping the Balli. On this occurrence, Nandu, (who is brother

of the appellant) reprimanded the deceased, but the deceased told him to

bring whoever he wanted in support of himself.      Balli went away and

brought the appellant along with him who enquired from the deceased as

to why he had slapped Balli. The deceased responded by stating that he

would do what he liked and challenged the appellant to fight at the lake

side. Thereafter, the two parties went to the lake side where there was

exchange of hot words between the appellant and the deceased, and the

deceased also slapped Nandu, the brother of the appellant.         On his

brother being slapped, the appellant took out kirpan and stabbed

deceased in his abdomen twice.      The said PW3 rushed forward to save

the deceased and claimed that the appellant also tried to stab him, but he

hit with belt and the appellant ran away.




Crl.A. No.53/1996                                              Page 2 of 6
 3.     The deceased was rushed to a general hospital Shahdara, from

where he was referred to JPN Hospital.           The statement of PW3 was

recorded by the Police on his return to his home. On the basis of said

statement Ex.PW3/A, FIR was registered. The deceased succumbed to his

injuries the same night.         The appellant made disclosure statement

(Ex.PW3/G) pursuant to which the weapon of offence Ex.P-3 was

recovered.          We may notice that as per the testimony of PW3, the

deceased was in a fit medical condition to speak and his statement was

recorded by the Police, but the Investigating Officer, SI Hoshiyar Singh

(PW15) of the case does not support this version.


4.     The appellant is present in Court. Though prosecution has failed to

prove the post mortem report by producing the Doctor concerned,

learned counsel for the appellant, on instructions, submits that the

appellant accepts his participation in the incident and the infliction of the

wound on the person of the deceased. He, however, submitted that there

was no intention to kill. As per the story of the prosecution, the incident

arose on account of sudden fight in which the appellant was provoked on

account of the deceased slapping the brother of the appellant. It is thus

pleaded that the present case is not fit for conviction under Section 302 of

the IPC, but under Section 304 of the IPC, the Exception 4 to Section 300

of the IPC applying to the facts of this case.


Crl.A. No.53/1996                                                 Page 3 of 6
 5.     Learned APP, however, supports the impugned judgment and

submits that since the injuries were inflicted in the area of abdomen by

the appellant on the deceased, the conviction under Section 302 of the

IPC is liable to sustained.


6.     We find merit in the plea of learned counsel for the appellant that

the incident is one where the background was the altercation between

Balli and the deceased. The appellant questioned the deceased as to why

he had slapped Balli, whereafter the deceased exhorted the appellant to

bring whoever he wants and settle the score near the lake. The parties

went near the lake, where also verbal altercation took place.           The

deceased slapped Nandu, brother of the appellant, which provoked the

appellant to take out the knife and inflict injury on the deceased. These

facts show that there was no premeditation to murder the deceased, but

in the sudden fight and heat of passion upon the sudden quarrel, on

account of the brother of the appellant being slapped by the deceased,

the injuries were inflicted by the appellant on the deceased. The incident

occurred suddenly and the appellant did not take any undue advantage or

act in any cruel manner and thus the case is one of culpable homicide not

amounting to murder in view of the Fourth Exception to Section 300 of

the IPC, which reads as under:

Crl.A. No.53/1996                                              Page 4 of 6
        "300. Murder

       Except in the cases hereinafter excepted, culpable homicide is murder, if the act by
       which the death is caused is done with the intention of causing death, or-
       ---

       ---

       ---

       Exception 4-Culpable homicide is not murder if it is committed without
       premeditation in a sudden fight in the heat of passion upon a sudden quarrel and
       without the offenders having taken undue advantage or acted in a cruel or unusual
       manner."



7.     We may note that the prosecution has proved the post mortem

report Ex.PW16/A by examining the record clerk from the hospital. The

prosecution has failed to prove the post mortem report by the Doctor

concerned. In absence of his testimony, it is difficult to conclude that the

intention of causing such bodily injuries were likely to cause his death.

However, the fact remains that the deceased did die because of the

injuries.    There being no evidence of any motive on the part of the

appellant to kill the deceased, in our considered view, in view of the

circumstances discussed above, the case falls within the Fourth Exception

to Section 300 Part I IPC.


8.     We, thus modify the conviction of the appellant to one under

Section 304 Part I of the IPC and given the facts of the case, sentence the

appellant to 8 years RI while sustaining the fine. The nominal roll shows

that the incarceration period of the appellant taking into consideration the

Crl.A. No.53/1996                                                                       Page 5 of 6
 remission would be more than 8 years and thus he has already undergone

the sentence. The appellant present in Court undertakes to deposit a fine

of Rs.2000/- within 15 days from today with the Trial Court.


9.     The appeal is allowed to the aforesaid extent.




                                         SANJAY KISHAN KAUL, J.

NOVEMBER 12, 2009 AJIT BHARIHOKE, J. pst