Surinder Pal @ Billoo vs State Of Delhi
2009 Latest Caselaw 4866 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment reserved on: October 27, 2009
                         Judgment delivered on : November 27, 2009

+      CRIMINAL APPEAL NO.235/1996

       SURINDER PAL @ BILLOO                       ..... Appellant
                         Through:        Mr. Chander Mohan Sanon,
                                         Advocate

                    Versus

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

       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?                        Yes

2.     To be referred to the Reporter or not ?                    Yes
3.     Whether the judgment should be
       reported in Digest ?                                       Yes


AJIT BHARIHOKE, J.

1. The appellant being convicted under Section 302 IPC in terms of

the impugned judgment dated 02.09.1996 in Sessions Case No.30/96,

FIR No.118/90, P.S. Sultan Puri and on being sentenced to undergo

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

of payment of fine, to undergo RI for further period of six months, has

preferred the instant appeal.

2. Briefly stated, case of the prosecution is that on 01.06.1990 at

about 6:12 p.m., an information was received at the police control

room about a quarrel at Budh Vihar, Phase-I. Said information was

conveyed by lady Constable Manju of PCR to the P. S. Sultan Puri,

which was recorded as DD No.16A (Ex.PW20/A) at 6:15 p.m. Copy of

the DD report was entrusted to Head Constable Jaswant Singh, who left

for the spot along with Constable Prahlad Singh(PW7). At 6:16 p.m.

another message was received at the Police Station that a person had

been stabbed with a knife by one Surender at the Nala of Budh Vihar.

It was recorded as DD No.17A(Ex.PW20/B) and the copy of the report

was forwarded to SI Dhan Singh, through Constable Ravinder Kumar.

3. That SI Dhan Singh on the receipt of DD report reached at Pushta

Ganda Nala near U-1 Block, Budh Vihar, Phase-I. Inspector Dharampal

Sharma(PW24), also on receipt of the information about stabbing of a

person by one Surender, reached at the spot and met the Police party

led by SI Dhan Singh. Dead body of Shri Omvir (deceased) was found

lying at the Pushta Nala having deep stab wounds on the neck and

chest. Complainant Dharamjit Singh (PW3) was present there and his

statement Ex.PW3/A was recorded by Inspector Dharampal

Sharma(PW24) and sent to the Police Station along with Rukka

Ex.PW24/A for the registration of case. On basis of the said Rukka,

formal FIR No.118/90 dated 01.06.90 was registered at P.S. Sultan Puri

under Section 302 IPC.

4. PW3 Dharamjit Singh (complainant) is stated to have disclosed in

his complaint Ex.PW3/A that on the day of occurrence, he was taking

tuition of children and Omvir (deceased) was sitting there. At about

5:30 p.m., Rajnish (PW9) son of the deceased came running and told

that Surender Pal @ Billoo and his family members would be beating

Sanjay S/o Omvir. On this, Omvir left along with his son Rajnish and he

(complainant) apprehending that quarrel may not flare up, followed

them, and when he reached near his house, he saw appellant Surender

Pal @ Billoo chasing Omvir (deceased) with an open knife. He then

picked up a "saria" (iron rod) lying in his house and ran after the

appellant Surender Pal @ Billoo in order to scare him. By that time,

Surender had pushed the deceased on the ground and he stabbed the

deceased on his neck and chest while saying "Aaj Tera Kaam Tamam

Hi Kar Dete Hun". Thereupon, he (complainant) and Sanjay challenged

the appellant with a view to save the deceased and he (complainant)

gave a "saria" blow on the head of the appellant, as a result whereof,

the appellant left Omvir and pounced upon Sanjay and tried to stab

him with the knife. Sanjay, in retaliation, gave danda blow to the

appellant, as a result of the impact, the knife broke and its blade fell

down. Since the deceased Omvir was bleeding profusely, they

attended to him and brought him to the Pushta, where he fell down and

succumbed to his injuries.

5. Inspector Dharampal Sharma (PW24) got the place of occurrence

photographed from various angles and prepared the rough site plan of

the place of occurrence. He conducted the inquest proceedings under

Section 164 Cr.P.C., took the "saria" (iron rod) and danda into

possession. He also took into possession the broken blade of knife,

after preparing its sketch and converting it into sealed packed. The

dead body of the deceased Omvir was sent for post mortem. Dr. J.K.

Bhardwaj (PW22) conducted the post mortem examination. He found

one incised wound on the left side of the neck of the deceased and an

incised wound over the right side of the chest. In his opinion, the

injuries were ante mortem and both the injuries were sufficient to

cause death individually and collectively in the ordinary course of

nature. Cause of death was opined as haemorrhage and shock

resulting from the injuries. He opined that injuries could be possible by

the said blade of knife. He sealed the clothes of the deceased and the

blood samples, which were handed over by him to the Police.

6. The accused was arrested. Since he had some injuries on his

person, he was got medically examined. Accused is stated to have

made a disclosure statement, but it did not lead to the recovery of the

handle of the knife. On completion of investigation, the appellant was

sent for trial for the offence under Section 302 IPC.

7. Appellant was charged under Section 302 IPC. He pleaded

innocence and claimed to be tried.

8. Prosecution cited five eye witnesses to prove the guilt of the

appellant. PW3 Dharamjit Singh (complainant), PW4 Sanjay Kumar,

son of the deceased, and PW5 Ms. Sudesh, wife of the deceased, have

supported the prosecution story given in complaint Ex.PW3/A.

However, the independent witnesses PW13 Suresh Chand and PW23 Sri

Pal turned hostile and they have not supported the case of the

prosecution. Relying upon the eye witness account given by PW3, PW4

and PW5 as also the testimony of PW9 Rajnish, who as per the case of

prosecution had gone to call his father Omvir Singh (deceased),

learned Trial Court has convicted the appellant under Section 302 IPC.

9. The appellant in his statement under Section 313 Cr.P.C. has

taken the plea of self-defence. He has explained that on the fateful

day, an altercation had taken place between his mother and PW5 Ms.

Sudesh in front of his house. His brother was attacked by PW4 Sanjay

Kumar and when he intervened to save his brother, Sanjay sustained

injury on his lips. Thereafter, complainant Dharamjit Singh (PW3),

Omvir (deceased) and Sanjay (PW4) respectively armed with a "saria"

(iron rod), a "balli" (wooden log) and a knife, attacked him. He, in

order to save himself ran towards a vacant plot of land and was chased

by all of them. He was surrounded by them and a "saria" blow was

given by PW4 Sanjay Kumar. Omvir then came forward to stab with a

knife and he somehow managed to snatch the knife from the hands of

Omvir and inflicted a knife blow on the person of the deceased. When

Omvir again tried to catch hold of him, he gave another knife blow on

the neck of Omvir in order to save his life. Thereafter, another blow of

"balli" landed on his hand, as a result of which the handle of the knife

was broken. He was also given further blows by them and, in order to

safe himself, he managed to escape from the spot. He further

explained that on the way, he came across some Policemen and

requested them to save him from Sanjay, Dharamjit Singh and Omvir.

He also told them that he was going to lodge a report at the Police

Station. The Police took him to the Police Station from where he was

sent to the hospital. Since Omvir expired due to the stab injuries, he

was falsely implicated in this case and his complaint was not

registered. In his defence, he has examined his mother Urmila, who

stated in the court that "three or four days prior to the occurrence,

PW4 Sanjay Kumar had asked her son Ved Prakash to bring liquor for

him and when Ved Prakash refused to oblige, Sanjay threatened him.

Ved Prakash narrated the incident to her and she went to lodge a

protest to the mother of Sanjay. On 29.05.90, Sanjay and Rajnish

again threatened her son that they would teach him a lesson for

complaining against Sanjay to his mother. On 01.06.90 at about 5:30

p.m., mother of PW4 Sanjay visited her house and enquired about the

above referred incident. When her son Ved Prakash narrated his

version, PW4 Sanjay got agitated and started beating Ved Prakash.

She further stated that the appellant on hearing the noise, came out

and tried to rescue his brother Ved Prakash, which resulted in an

altercation between him and Sanjay. Sanjay received injury on his lips

and he went away threatening to teach a lesson to Surender. Few

minutes later, Sanjay armed with a "balli", complainant Dharambir

armed with a "saria" and Omvir armed with a knife came towards their

house and the appellant on seeing them ran towards the vacant plot,

but he was chased by all three of them. She immediately went to call

her husband. When she returned along with her husband, she saw a

huge crowd, but her son was not present. Omvir (deceased) was lying

near the Nala. In the cross-examination, she denied the suggestion

that her son Surender Pal chased Omvir and stabbed him after

throwing him on the ground. She also denied the suggestion that

thereafter, Dharamjit Singh (PW3) hit the appellant with an iron rod

and Sanjay hit him with a "balli", as a result of which the blade of the

knife got separated from the handle."

10. Before adverting to the submissions made on behalf of the

appellant, it would be useful to have a look on the eye witness account

of the occurrence given by PW3 Dharamjit Singh, who claims himself to

be a close friend and village brother of the deceased, PW4 Sanjay (son

of the deceased) and PW5 Smt. Sudesh (wife of the deceased).

11. PW3 Dharamjit Singh (complainant) has fully supported the case

of prosecution and in his testimony before the court he has endorsed

the facts narrated by him in his complainant Ex.PW3/A referred to

above. PW4, Sanjay, in his statement before the court deposed that 2/3

days prior to the incident, a quarrel had taken place between the

younger brother of the appellant and the youngest son of the

deceased. On 01.06.90 at around 4:30 pm, the mother of the appellant

started abusing them and when she continued with her abuses, his

mother Smt. Sudesh protested and asked her to refrain from hurling

abuses. The appellant then came out of his house with a brick in his

hand with a view to hit PW5 Smt. Sudesh. On this, he (PW4 Sanjay)

intervened to save his mother and the appellant threw the brick and

gave him fist blow on his face and a scuffle ensued between him and

the appellant. In the meanwhile, his younger brother Rajnish PW9

went to call his father. His father Omvir (deceased) reached at the

spot at about 5:15 pm and on seeing the deceased, the appellant ran

after him with an open knife, saying that he would finish him off and

threw the deceased down on the ground and stabbed him twice on the

neck and the chest respectively. In the meanwhile, PW3 Dharamjit

Singh came, who hit the appellant with an iron rod and on this the

appellant left the deceased and ran after him. He was carrying a

"balli" (a large piece of wood) in his hand and he gave a "balli" blow to

the appellant and as a result of the impact, the knife broke and its

blade got separated from the handle. He also gave two/three "balli"

blows to the appellant and thereafter the appellant ran away. His

mother Sudesh tried to stop the bleeding of the deceased by wrapping

her saree around the neck of the deceased, but he unfortunately died.

PW5 Smt. Sudesh has also corroborated the version of PW4 by

deposing in an almost similar manner. PW9 Rajnish, another son of the

deceased, has also supported the prosecution story by stating that

when the appellant started beating his brother Sanjay, he ran to call

his father from the shop of Ramphal Bania and thereafter his father

and PW3 Dharamjit ran towards the spot.

12. Learned counsel for the appellant has assailed the impugned

judgment, firstly, on the ground that the learned Trial Court has erred

in placing reliance upon the testimony of PW3 Dharamjit Singh, PW4

Sanjay, PW5 Smt. Sudesh and PW9 Rajnish, completely ignoring the

fact that they are interested witnesses being closely related to the

deceased and that only two independent witnesses PW13 Suresh

Chand and PW23 Sri Pal, have not supported the case of the

prosecution. Learned counsel for the appellant has submitted that

PW3 Dharamjit Singh admittedly is a friend of the deceased and his

village brother, who is treated as an uncle by the sons of the deceased

and PW5 is the widow and PW4 and PW9 are sons of the deceased,

therefore, given the fact that the deceased died because of knife

injuries inflicted by the appellant, they had a motive to distort the facts

and conceal that actually it was the deceased Omvir, PW3 Dharamjit

Singh and PW4 Sanjay were the aggressors and they had chased the

appellant armed with knife, saria and balli respectively and the

appellant, in order to save his life, somehow managed to snatch the

knife from the deceased Omvir's hand and stabbed him. Learned

counsel for the appellant has further submitted that aforesaid defence

of the appellant finds support from the fact that he had actually

sustained injuries in the incident for which he was even sent for

medical examination by PW14 ASI Ram Chander. He has drawn our

attention to the testimony of PW14 Ram Chander in this regard and

pointed out that ASI Ram Chander in his cross-examination has

admitted that when he apprehended the appellant, he told that he was

going to the Police Station for lodging a report, but he (PW14) did not

record his report. Thus, learned counsel for the appellant has urged us

to infer that the appellant actually acted in self-defence in order to

save his life and as such he could not have been convicted under

Section 302 IPC. It was also argued that even if the Court comes to the

conclusion that the appellant has exceeded his right of self-defence,

then also his conviction under Section 302 IPC was unwarranted and in

view of Exception 2 to Section 300 IPC, his case would fall within the

purview of culpable homicide not amounting to murder punishable

under Section 304 Part II IPC.

13. At the first blush, the argument taken on behalf of the appellant

appears to be attractive. However, on careful scrutiny of the record, it

appears that the explanation of self-defence taken by the appellant is

an afterthought. Perusal of the Trial Court record reveals that the

appellant, during the pendency of the case, had moved applications for

grant of bail dated 13.09.90 and 16.08.94 respectively. In the said

two bail applications, the appellant took the plea of false implication

due to enmity and in neither of those applications had he set up the

plea of self-defence. This circumstance leads to an inference that the

plea of self-defence now set up by the appellant during the trial is an

afterthought. Even the independent witnesses PW13 Suresh Chand

and PW23 Sri Pal turning hostile and not supporting the case of the

prosecution regarding their having seen the occurrence does not help

the appellant because both the witnesses have claimed that they

reached the spot after the occurrence and they have not supported the

theory of self-defence propounded by the appellant. It is important to

note that PW23 Sri Pal has stated that when he reached at the spot,

the crowd was saying that Omvir has been killed by Billoo @ Surender.

The aforesaid utterance of the crowd implicating the appellant for

murder of the deceased is relevant, being the conduct immediately

after the occurrence and it corroborates the testimony of PW3, PW4

and PW5 to some extent. There is no law which prevents the court

from acting on the testimony of interested witnesses to base conviction

if the testimony of such witnesses is found reliable and trustworthy. In

the instant case, PW3 Dharamjit Singh, PW4 Sanjay and PW5 Ms.

Sudesh have fully supported the case of prosecution and learned

counsel for the appellant has not been able to point out any material

contradiction or discrepancy in their respective testimonies to render

the witnesses unreliable. The above witnesses in their testimony have

also explained the injuries on the person of the appellant by stating

that the after the appellant had stabbed Omvir deceased, they hit him

with saria and "balli" respectively. Thus, it cannot be said that the

appellant inflicted knife injuries to the deceased in self-defence with a

view to save his life. In view of the above, we are of the view that the

learned Trial Court has rightly discarded the theory of self-defence

propounded by the appellant and we do not find any infirmity in the

said finding.

14. The next plea advanced on behalf of the appellant is that even if

the testimony of the eye witnesses PW3, PW4 and PW5 is taken to be

correct, then also this is not a case to warrant conviction for murder

punishable under Section 300 IPC. Learned counsel or the appellant

has argued that the Trial Court has failed to appreciate that the

occurrence took place without any pre-meditation in a sudden quarrel,

which escalated because of the argument between the mother of the

appellant and PW5 Ms. Sudesh. Therefore, there could not have been

any intention on the part of the appellant to kill the deceased, who

reached at the spot on the calling of his son Rajnish, PW9. It was

argued that the appellant, as per the evidence, had acted in the heat of

moment, therefore, his case was squarely covered under the 4th

Exception to Section 300 IPC, as such he could only be held guilty for

culpable homicide not amounting to murder punishable under Section

304 IPC. Learned counsel for the State, on the other hand, has

canvassed in favour of the impugned conviction under Section 300 IPC

and submitted that the act committed by the appellant was intentional,

which is obvious from the fact that he inflicted two knife injuries on the

person of the deceased, which rules out the possibility of the appellant

having acted in the heat of passion, particularly when there was a past

history of enmity between the families.

15. From the testimony of PW4 Sanjay and PW5 Ms. Sudesh, it is

apparent that the occurrence in question was an extension of the

quarrel between the appellant and PW4 Sanjay, which started as a

result of exchange of hot words between the mother of the appellant

and PW5 Ms. Sudesh. From the testimony of PW4 Sanjay and PW5 Ms.

Sudesh, it transpires that just before the main occurrence there was

some altercation between PW4 Sanjay and the appellant in which the

appellant, who admittedly was threatening to hit the mother of PW4

Sanjay with a brick, threw the said brick and gave fist blows to PW4

Sanjay, which circumstance clearly indicates that till that time there

was no intention on the part of the appellant to cause a serious injury

to PW4 Sanjay or PW5 Ms. Sudesh or any member of the family. It is

only when the younger son of the deceased Rajnish PW9 went and

called his father Omvir (deceased), the unfortunate occurrence took

place. It has also come in evidence that when the deceased rushed to

the spot, he was followed by PW3 Dharamjit Singh, complainant, who

was carrying a saria in his hand and even PW4 Sanjay had admittedly

brought a "balli" (a wooden log) and rushed towards the appellant.

Only thereafter, the appellant had inflicted two knife blows to the

deceased. From the said sequence of events, it is apparent that the

appellant was not the aggressor and it was the deceased Omvir who

came running to the spot to intervene in the fight. Therefore, there

was no possibility of the appellant having planned to kill the deceased.

It has not come in evidence from where the knife came, but it is

apparent from the record that the deceased had stabbed the appellant

because of the aforesaid sudden quarrel, which started with the

exchange of abuses and hot words between the mother of the

appellant and PW5 Ms. Sudesh, in the heat of moment. Indeed, the

appellant inflicted two knife blows on the person of the deceased,

which unfortunately proved to be fatal, however, from the

circumstances detailed above the intention to kill on the part of the

appellant cannot be inferred and, in our considered view, the offence

committed by the appellant squarely falls within Fourth Exception to

Section 300 IPC, which reads thus:

"300. Murder

---

---

---

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."

16. As such, the Trial Court, in our view, has erred in holding the

appellant guilty of offence of murder punishable Section 300 IPC

instead of culpable homicide not amounting to murder punishable

under Section 304 Part I IPC. In our aforesaid view, we find support

from the judgment of Supreme Court in the matter of Ravindra Shalik

Naik & Ors. Vs. State of Maharashtra, 2009 (2) SCALE 354,

wherein it was, inter alia, 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 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. The result of the above discussion is that the appellant is guilty of

culpable homicide not amounting to murder punishable under Section

304 Part I IPC and not of the offence punishable under Section 300 IPC.

The appeal is partially accepted and the conviction of the appellant for

the charge under Section 300 IPC is converted to one under Section

304 Part I IPC.

18. Coming to the sentence. In our considered view, having regard

to the facts and circumstances of the case, we find that rigorous

imprisonment for a period of eight years would meet the ends of

justice. Accordingly, we sentence the appellant to undergo rigorous

imprisonment for a period of eight years and to pay a fine of Rs.5000/-,

in default of payment of fine to undergo rigorous imprisonment for a

period of six months.

19. The appellant is on bail. As per the nominal roll placed on record,

he had undergone incarceration for a period of seven years, one month

and seventeen days, besides the remission awarded to him for a period

of eight months and seven days. It is not clear from the record if the

appellant has deposited the fine imposed upon him. The appellant be

taken into custody and sent to Tihar Jail for undergoing remaining

period of sentence awarded to him. Needless to say that he shall get

benefit of Section 428 Cr.P.C.

20. Appeal is disposed of accordingly.

AJIT BHARIHOKE, J.

NOVEMBER 27, 2009                           SANJAY KISHAN KAUL, J.
pst