Gulshan Kumar @ Budha vs State
2009 Latest Caselaw 4697 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                         Judgment delivered on : November 18, 2009


+      CRIMINAL APPEAL NO.151/1995

       GULSHAN KUMAR @ BUDHA                         .... Appellant
                       Through:          Mr.Sanjiv K.Chaudhry with
                                         Mr.Ravinder Aggarwal,
                                         Advocates
                                         Appellant in judicial custody.


                    Versus

       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 appeal is directed against the impugned judgment dated 10th

May 1995 convicting the appellant under Section 302 IPC and the order

on sentence dated 12th May 1995 sentencing the appellant to undergo

imprisonment for life and to pay a fine of Rs.5,000/-, in default to which

to further undergo RI for one year.

Crl.A.No.151/1995

2. The case of the prosecution is that the appellant worked in a

factory of one Harbans Lal located at Sultan Puri. The factory was for

manufacture of knives, sharpening and polishing the same. The

appellant is stated to have owed a sum of Rs.450/- to Parveen Kumar

(deceased) who along with his brother Ashwani Kumar(complainant)

were engaged in the supply of spare parts. On 2nd September 1990,

the deceased and the complainant are stated to have gone to the

appellant to demand the repayment of the amount owed, but the

appellant expressed his disinclination to make the payment at that

stage. The father of the deceased also reached at the site and pressed

for payment and some hot words were exchanged between the parties

on that account. The matter escalated to such an extent that the

appellant rushed inside the factory and came back with a "chhuri"

(kitchen knife) and stabbed the deceased on the left side of the chest,

whereafter the appellant ran away despite the efforts of the

complainant to apprehend him. The deceased was rushed to the DDU

Hospital, where he was declared brought dead.

3. That ASI Tota Singh, Duty Officer, received the telephonic

message about a quarrel going on near House No.81/253, Sultan Puri

at 9:30 pm from an unknown person. Message was recorded in DD

No.25A and copy of the DD report was entrusted to SI Girriraj Singh for

verification. SI Girriraj Singh along with Constables Ravinder Kumar

and Virender Kumar reached at spot of occurrence and came to know

that the injured Parveen Kumar had been removed to DDU Hospital.

Crl.A.No.151/1995 He left Constable Virender Kumar at the place of occurrence and

reached DDU Hospital where he found that Parveen Kumar had been

declared dead. He collected the MLC of Parveen Kumar and also

recorded the statement of complainant Ashwani Kumar (Ex.PW1/A),

brother of the deceased and sent that statement to the Police Station

along with his endorsement for the registration of formal FIR. The

Investigating Officer completed the formalities of investigation and

filed challan against the appellant under Section 302 IPC.

4. The appellant on being charged under Section 302 IPC pleaded

not guilty and claimed trial.

5. The conviction of the appellant is based primarily on the eye

witness account of occurrence given by the complainant Ashwani

Kumar, PW1 and Jagdish Chander, PW5.

6. The appellant is present in Court and learned counsel for the

appellant, on instructions from the appellant, submits that the

appellant admits his guilt of having caused the injury which resulted in

the death of the deceased. The only plea sought to be advanced is

that the injury was the result of a sudden altercation when the

appellant rushed into the small factory where knives were

manufactured, picked up a knife and stabbed the deceased. It is, thus,

submitted that the present case falls within the Fourth Exception to

Section 300 of the IPC and the conviction of the appellant should have

Crl.A.No.151/1995 been under Section 304 of the IPC and not under Section 302 of the

IPC. This plea is opposed by learned APP.

7. We are inclined to accept the plea of the learned counsel for the

appellant. The appellant did not know that the deceased along with his

brother was coming to the factory to recover the money. On their

demanding money, the appellant found himself unable to repay the

amount at that stage. On the father of the deceased (PW5) arriving

and persisting with demand, an altercation ensued and the appellant

used the "churri" (kitchen knife) which he fetched from the knife

factory where the appellant worked. The knife is actually a kitchen

knife as is apparent from the sketch thereof available in the records.

From the facts, it is obvious that there was no intention on the part of

the appellant to cause death of the deceased and he inflicted a single

knife blow on the person of the deceased in the heat of moment, which

blow, unfortunately, fell on the chest of the deceased and proved to be

fatal. There is no evidence of any pre-meditation on the part of the

appellant to do away with the life of the deceased. The fact that only

one knife blow was inflicted also indicates that the appellant did not

take any undue advantage of the situation or acted in a cruel or

unusual manner. He was not even carrying the knife at the relevant

time, but in the heat of moment he picked up the knife easily available

in the vicinity within the factory premises.

Crl.A.No.151/1995

8. In view of the aforesaid circumstances, we are of the considered

view that the case of the appellant is not covered under Section 300

IPC, but it falls within Exception 4 to Section 300 IPC. Thus, in our

considered view, the learned Trial Court has erred in convicting the

appellant under Section 302 IPC instead of Section 304 Part I IPC.

9. We are fortified by the observations of the Hon'ble Supreme

Court in Ravindra Shalik Naik & Ors. Vs. State of Maharashtra,

2009 (2) SCALE 354, wherein in para 6, it is observed 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

Crl.A.No.151/1995 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"

10. We are of the view that the appellant ought to be convicted

under Section 304 Part I of the IPC. We find that in the given facts of

the case, a sentence of 10 years imprisonment would suffice while

sustaining the fine imposed by the Trial Court.

11. The appeal is accordingly allowed to the aforesaid extent and the

order on conviction and sentence stand modified to that extent.

12. Needless to say that the appellant is entitled to benefit under

Section 428 Cr.P.C.

13. A copy of the order be forwarded to the Superintendent, Tihar

Jail.

SANJAY KISHAN KAUL, J.

NOVEMBER 18, 2009                                       AJIT BHARIHOKE, J.
Ks/pst





Crl.A.No.151/1995