Vinod Kumar @ Dolly vs State Of Delhi
2009 Latest Caselaw 4178 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                         Judgment delivered on: October 15, 2009


+      Crl.A No.125/1996

       VINOD KUMAR @ DOLLY                         ..... Appellant
                         Through:        Ms.Meena Chaudhary Sharma,
                                         Advocate.

                    Versus

       STATE OF DELHI                              ..... 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.     One Bhagirath (deceased) was gainfully employed as a TSR

driver. On 20.6.1992, Bhagirath along with Uma Shankar (PW1) and

Kishan Lal (PW3) was standing near the Godbin Lodge at about 4.30

p.m. Since these persons wanted to have some water, they fetched

two empty tumblers from Raja Ram (PW2) who was a juice seller and

then he went to Godbin lodge to bring some water. The deceased met


Crl.A.No.125/1996                                            Page 1 of 7
 the appellant at the counter and asked for some water, which is stated

to have been declined by the appellant. This resulted in an altercation

and the deceased gave a slap to the appellant. The appellant feeling

humiliated left in anger and came back after 5-6 minutes, whipped out

a dagger from the dub of his pant and stabbed the deceased on the left

side of the chest whereafter the appellant ran away. The endeavour to

apprehend the appellant proved futile as it is alleged that he even

attacked PW1 in order to escape.


2.     The appellant was charged for offence under Section 302 IPC

read with Section 307 IPC and Section 27 of the Arms Act and was

found guilty for offences under Section 302 IPC and Section 27 of the

Arms Act while being acquitted of the charge under Section 307 IPC in

terms of judgment dated 29.6.1996 and was sentenced to undergo

rigorous imprisonment for life and to pay Rs.100/- as fine and in default

of fine, to undergo RI for a period of two months under Section 302 IPC

and was sentenced to undergo RI for 3 years under Section 27 of the

Arms Act, both sentences running concurrently.


3.     The case of the prosecution is that after the aforesaid incident,

PW1 went to the house of the deceased and brought his brother to the

spot and the deceased was taken to the LNJP Hospital where he was

declared brought dead.



Crl.A.No.125/1996                                             Page 2 of 7
 4.     The constable on duty in the hospital passed on the information

of the death of the deceased to P.S. Nabi Karim where DD No.18/A was

recorded and SI Jai Kishan was entrusted with the investigation, who

went to the place of occurrence first and thereafter proceeded to the

hospital where he recorded the statement of PW1. The Rukka was sent

through Constable Kulwant Singh, PW20 for registration of the case.

The blood samples were lifted from the site as also the glasses which

were lying broken at the site.     The appellant had left the chappals

behind, which were also taken into possession. The shirt of PW1, which

was stained with blood in the process of lifting the deceased was also

taken into possession by the IO.


5.     The appellant made no confession in the statement under Section

313 Cr.P.C. The appellant is produced in custody in Court and states

that he did inflict the injury on the deceased which caused his death

but the circumstances so developed in respect of the incident that the

appellant was enraged. The appellant claims that the provocation for

his conduct was the slapping by the deceased. The appellant claims

that he is from the Scheduled Caste community and it is the deceased

who objected to take water from him. Be that as it may, when the first

opportunity was available, the appellant did not plead any such

defence and come out with the truth. The appellant now confessed to

having inflicted the injury but learned counsel for the appellant pleads

Crl.A.No.125/1996                                             Page 3 of 7
 that the present case is not one for conviction under Section 302 IPC

but the 4th Exception to Section 300 IPC would come into play and as it

is not a case of culpable homicide with any pre-mediation but rather an

incident in a sudden fight in the heat of passion and thus would be

governed by Section 304 Part 1 of the IPC.


6.     The relevant provision of Section 300 is as under:-


             "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."

Section 304 reads as under:-

"Section 304. Punishment for culpable homicide not amounting to murder

Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,

Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

7. In order for the case of the appellant to fall within the 4th

Exception to Section 300 IPC, all the ingredients have to be satisfied:-

     (i)         Committed without pre-meditation

     (ii)        In a sudden fight in the heat of passion and upon a sudden
                 quarrel

     (iii)       Without the offender having taken undue advantage or
                 acted in a cruel or unusual manner

8. If the evidence is perused, it has come on record that there was a

hiatus period of about 5 to 6 minutes between the incident of slapping

by the deceased and the appellant rushing to his house picking up a

knife and using it to inflict the injury on the deceased. It is trite to say

that the time gap between the quarrel and the fight should be

minimum so as not to give enough time for passion to subside and the

accused to come to normalcy. We are fortified by the views expressed

by the Apex Court in Sukhbir Singh Vs. State of Haryana, AIR 2002

SC 1168 where such a view was taken in similar facts. The accused in

that case upon a sudden quarrel went home and came armed in the

company of others though without telling them his intention to commit

the ultimate crime of murder. There was a lapse of a few minutes but

it was found that there was no sufficient lapse of time between the

quarrel and the fight and the occurrence could be categorized as

'sudden' within the meaning of Exception 4 of Section 300 IPC.

9. On the same reasoning is the judgment of Shanmugam Vs.

State of Tamil Nadu, 2002 10 SCC 4 where the accused on being

questioned by his deceased brother as to why he was whistling at a

place frequented by ladies, all of a sudden entered his house and came

out with a spear and attacked the deceased, inflicting several injuries

which caused his death. The conviction and sentence was modified to

one under Section 304 Part 1 of the IPC instead of Section 302 IPC.

10. We are of the considered view that the present case is

paramateria to the factual matrix of above said two cases inasmuch as

the deceased slapped the appellant. The appellant was enraged and it

appears that the lifting of the hand by the deceased may have also

occurred on account of their being some quibble over caste allegations

as contended on behalf of the appellant. The appellant saw red and

rushed to his house and was back in a couple of minutes to inflict the

fatal blow. The lapse of time period was not sufficient to cool down the

temper of the appellant and the incident occurred in one sequence in a

sudden manner. We are thus inclined to accept the contention of

learned counsel for the appellant that though the finding of guilt under

the impugned judgment against the appellant is liable to be sustained,

the conviction is altered to one under Section 304 Part 1 IPC and not

Section 302 IPC.

11. Now coming to the issue of sentence, we feel that the sentence

of 8 years imprisonment would suffice apart from sustaining the fine of

Rs.100/-. The appellant is not sure whether he has paid the fine but in

any case if the sentence undergone by the appellant of 8 ½ years

which includes remission of about 9 to11 months is taken into account,

the period of sentence coupled with the period required to undergo on

account of default for payment of fine already stands served.

12. The appellant be thus released if he is not wanted in any other

case. The appeal is accordingly allowed.

13. Copy of the order be sent to the Superintendent Tihar Jail.

SANJAY KISHAN KAUL, J.

October 15, 2009                         AJIT BHARIHOKE, J.
gm