Delhi High Court
Latoori And Ors. vs State Of Delhi on 20 October, 2009
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: October 20, 2009
+ Crl.A No.145/1996
LATOORI AND ORS ..... Appellants
Through: Mr. K.B. Andley, Sr. Adv. with
Mr. M.L. Yadav, 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? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be
reported in Digest ? Yes
SANJAY KISHAN KAUL, J.(ORAL)
1. Latoori, Shyam Bihari, Dhan Pal and Raj Pal all being convicted in
Sessions Case No. 62/1996, arising out of FIR No. 301/92, under
Sections 302/34 IPC, P.S. Ambedkar Nagar, for having committed
murder of Radhey Shyam punishable under Section 302/34 IPC and
sentenced in terms of order dated 17th July, 1996 to undergo
imprisonment for life and also to pay fine of Rs.1,000/- each, in default
Crl.A.No.145/1996 Page 1 of 10
of payment of fine to undergo R.I. for further period of six months,
preferred the instant appeal against the impugned judgment of
conviction and order on sentence. During the pendency of appeal
appellant Dhan Pal, stated above, expired. Therefore the appeal so far
as the appellant Dhan Pal is concerned stands abated.
2. Briefly stated case of the prosecution is that on 12th June, 1992
Radhey Shyam (deceased) was brought to the hospital by his brother
Jai Dev and he was declared brought dead. Above information was
conveyed by duty Constable Sunil Kumar from Safdarjung Hospital to
P.S. Ambedkar Nagar, which was recorded as DD No. 11-A (Ex. PW-
5/C). Copy of the DD report was addressed to Inspector Bhim Singh,
who proceeded to Safdarjung Hospital, where he met PW1 Bhagwan
Swaroop. He recorded the statement of Bhagwan Swaroop (PW1),
wherein he stated that he along with his brother Radhey Shyam and Jai
Dev was residing at N-407, Gali No. 6, Sangam Vihar, New Delhi and his
brother Joginder was residing nearby with his wife Maya, daughter of
Dhan Pal (deceased appellant). On 11th June, 1992 because of a
quarrel with Joginder, Maya went to the house of her father Dhan Pal.
Radhey Shyam(deceased) and Joginder went to bring her back but
Dhan Pal refused to send her with Joginder. Thereafter on the
intervention of the complainant, Dhan Pal sent Maya to her
matrimonial home along with Joginder.
Crl.A.No.145/1996 Page 2 of 10
3. It is also the case of the prosecution that on 12th June, 1992 at
about 12.00 noon, complainant Bhagwan Swaroop and deceased
Radhey Shyam were sitting on a cot in their house. Appellant Latoori
came there and started dragging Radhey Shayam to the Gali. The
complainant tried to stop him but the appellant Latoori managed to
drag him in the Gali. In the meanwhile appellants Dhan Pal (since
deceased), his son Raj Pal and Shyam Bihari came there and started
abusing. Latoori and Shyam Bihari caught hold of Radhey
Shyam(deceased) and Dhan Pal (deceased appellant) gave slaps and
fist blows to him. Suddenly Raj Pal hit Radhey Shyam with a danda on
his head. As a result Radhey Shyam became unconscious. Complainant
thereafter took Radhey Shyam to the hospital where he was declared,
"brought dead". Inspector Bhim Singh sent the aforesaid statement
after appending his endorsement thereon to the P.S. Ambedkar Nagar
for registration of the case and an FIR under Sections 302/34 was
registered against the appellants.
4. S.I. Bhim Singh completed the formalities and submitted the
charge sheet against all the appellants.
5. The appellants were charged for the offence punishable under
Sections 302/34 IPC, to which they all pleaded not guilty and claimed to
be tried.
Crl.A.No.145/1996 Page 3 of 10
6. On completion of trial learned Trial Court relied upon the
testimonies of eye witnesses PW-1 Bhagwan Swaroop and PW-4 Raj
Kumar and convicted the appellants for the offences punishable under
Sections 302 read with Section 34 IPC and sentenced them vide
impugned order on sentence dated 17th July, 1996.
7. Learned counsel, on instructions of the appellants, has conceded
the involvement of all the appellants in the unfortunate incident. He
has confined his submission on legal aspect of the case and the limited
argument advanced by him is that the conviction of the appellants
under section 302 IPC with the aid of Section 34 IPC was uncalled for.
8. Learned counsel for the appellants has submitted that PW1
Bhagwan Swaroop has stated on oath that on 11.6.1992 Maya,
daughter of Dhan Pal, had a quarrel with her husband Joginder and
because of that she left her matrimonial home and went to the house
of her father Dhan Pal(deceased appellant). Radhey Shyam (deceased)
and Joginder went to the house of Dhan Pal to bring Maya back but he
refused to send her with Joginder. However, on the request of witness
(Bhagwan Swaroop), Dhan Pal sent his daughter Maya to her
matrimonial home. PW1 further stated that on 12.6.1992 at about
12.00 noon, he was sitting with his brother Radhey Shyam in his house.
Appellant Latoori came there and abused Radhey Shyam. Thereafter
he dragged Radhey Shyam into the Gali. In the meanwhile, appellants
Crl.A.No.145/1996 Page 4 of 10
Raj Pal, Shyam Bihari and Dhan Pal (since deceased) also came there
and they started abusing and beating Radhey Shyam with fists and
slaps. Appellant Raj Pal gave a danda blow on the head of Radhey
Shayam and he lost consciousness. He further stated that he took his
injured brother to the hospital where he was declared dead. PW4 Raj
Kumar, the other eye-witness has also deposed to a similar effect.
From the aforesaid evidence, it is apparent that none of the appellants
except Raj Pal were armed with a weapon and they only abused the
deceased, slapped him and gave fist blows to him. From the aforesaid
conduct, we find it difficult to infer that the appellants Latoori and
Shyam Bihari shared common intention with Raj Pal to cause death of
the deceased Radhey Shyam. From their conduct, the only inference
which could be drawn is that the intention of the appellants i.e. Latoori
and Shyam Bihari was to cause simple hurt to the deceased by
slapping him and giving him fist blows. Therefore, we find ourselves
unable to sustain their conviction under Section 302 with the aid of
Section 34 IPC.
9. Coming to the role of the appellant Raj Pal, learned counsel for
the appellants has submitted that the case of the prosecution as
evident from the testimony of the witnesses is that appellant Latoori
dragged the deceased outside his house and thereafter appellants
started abusing, slapping and giving fist blows to him. While the
Crl.A.No.145/1996 Page 5 of 10
assault on the deceased was going on, appellant Raj Pal in the heat of
moment gave a single danda blow on the head of the deceased, which
unfortunately prove to be fatal. He has submitted that from the
aforesaid testimony, it is apparent that there was no intention on the
part of the appellants including Raj Pal to cause death of the deceased
and the single blow was given by the appellant on the head of the
deceased without any pre-meditation in the heat of passion and he had
not taken undue advantage or acted in a cruel manner, as is apparent
from the fact that only one danda blow was given by the appellant Raj
Pal. Thus, he has submitted that the case of appellant Raj Pal squarely
falls within the four corners of Exception 4 of Section 300 IPC and at
best, he is guilty of the offence of culpable homicide not amounting to
murder, punishable under Section 304 Part II IPC.
10. In order to appreciate the aforesaid plea, we consider it
necessary to extract the relevant Section.
"Section 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-
2ndly
If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is
caused, or-
3rdly
If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course of
nature to cause death, or-
4thly
Crl.A.No.145/1996 Page 6 of 10
If the person committing the act knows that it is so imminently dangerous that
it must, in all probability, cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.
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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."
11. Learned counsel for the appellant in support of his plea has
referred to the judgments of the Apex Court. Learned Counsel
submitted by relying on Tholan Vs. State of Tamil Nadu, 1984
SCC(Criminal) 164, that where in a sudden fight a single blow given
with a knife was held to fall within Section 304 Part II of the IPC, a
sudden fight like the present one where a single blow is given on the
head would also invite the same provision. The relevant observations
are reproduced as under:-
"There arose a situation in which appellant probably misguide by his own egocentric
nature objected as to why Sampat should ask him to leave the place and in this
background he gave one blow with a knife which landed on the right side chest of the
deceased, which has proved fatal. Could the appellant be said to have committed
murder? In other words, whether Part I or Part III of Section 300., I.P.C. would be
attracted in the facts of this case. Even Mr. Rangam learned Counsel for the State of
Tamil Nadu could not very seriously contend that the appellant intended to commit
murder of Sampat. His submission was that at any rate appellant when he wielded a
weapon like a knife and gave a blow on the chest, a vital part of the body, must have
intended to cause that particular injury and this injury is objectively found by the
medical evidence to be fatal and therefore Part III of Section 300 would be attracted.
On this aspect, the decisions are legion and it is not necessary to recapitulate them
here merely to cover idle parade of familiar knowledge. One can profitably refer to
Jagrup Singh v. State of Haryana, Randhir Singh v. State of Punjab ,; Kulwant Rai v.
State of Punjab and Hari Ram v. State of Haryana. To this list two more cases can be
added Jagtar Singh v. State of Punjab and Ram Sunder v. State of U.P. Having
regard to the ratio of each of these decisions, we are satisfied that even if Exception I
is not attracted the requisite intention cannot be attributed to the appellant. But in the
circumstances herein discussed he wielded a weapon like a knife and therefore he can
be attributed with the knowledge that he was likely to cause an injury which was
likely to cause death. In such a situation, he would be guilty of committing an offence
under Section 304 Part II of the Indian Penal Code. Having regard to the
circumstances of the case a sentence of 5 years would be quite adequate."
12. Learned counsel also referred to the elucidation in respect of the
4th exception of Section 300 of the IPC made 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"
13. Lastly, learned counsel has referred to Pappu Vs. State of
M.P., 2009 (4) Scale 52. 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, which
was held to be a fit case for conviction under Section 304 Part II of the
IPC with a custodial sentence of eight years.
14. The legal principles enunciated aforesaid, in our considered view,
would squarely apply to the case of appellant Raj Pal. In the instant
case, there was no enmity between the appellant Raj Pal and the
deceased. He had no motive whatsoever to cause his death and this is
a case of a single blow given to the deceased in the heat of moment.
There being no pre-meditated act with a view to cause death of the
deceased and the appellant Raj Pal having acted in the heat of passion,
during quarrel without having taken undue advantage or acted in a
cruel or unusual manner is entitled to the benefit of 4th Exception of
Section 300 IPC. Thus, in our view, appellant is liable to be convicted
under Part II of Section 304 of the IPC and not under Section 302 IPC.
15. In view of the discussion above, appeal is partly accepted. The
conviction of the appellants under Section 302 IPC is set aside and
appellant Raj Pal is convicted for the offence of culpable homicide not
amounting to murder punishable under Part II of Section 304 IPC and
the other appellants Latoori and Shyam Bihari are convicted under
Section 323/34 IPC.
16. Coming to the sentence, appellants Latoori and Shyam Bihari are
hereby sentenced to undergo imprisonment for a period of one year for
the offence punishable under Section 323/34 IPC. Appellant Raj Pal is
sentenced to undergo RI for a period of 7 years for the offence
punishable under Section 304 Part II IPC. Besides, the sentence of fine
imposed on appellant Raj Pal is maintained. The impugned judgment
accordingly stands modified.
17. The appeal is allowed to the aforesaid extent. As per the nominal
roll available on record, all the three appellants have already
undergone detention for a period more than the imprisonment awarded
to them. Therefore, we find no need to take them into custody for
undergoing the sentence awarded to them.
18. The bail cum surety bonds stand discharged.
SANJAY KISHAN KAUL, J.
October 20, 2009 AJIT BHARIHOKE, J.
hl/gm
