Shatrughan vs State(Govt. Of Nct Of Delhi)
2010 Latest Caselaw 2050 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                    Date of Decision: 20th April, 2010


+      CRIMINAL APPEAL NO. 209/1997


       SHATRUGHAN                                  ..... APPELLANT
                        Through:    Ms. Charu Verma, Amicus Curiae/
                                    Advocate


                        Versus


       STATE (GOVT. OF NCT OF DELHI)         ..... RESPONDENT

Through: Mr. Pawan Sharma, Standing Counsel

CORAM:

HON'BLE MR. JUSTICE A.K. SIKRI 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 ?

AJIT BHARIHOKE, J (ORAL)

1. This appeal is directed against the impugned judgment dated 21st

March, 1997 in Sessions Case No. 99/1995, FIR No.546/1992, Police

Station Mangol Puri in terms of which the appellant has been convicted

under Section 302 IPC as also the consequent order on sentence of

even date.

2. Briefly stated, the case of the prosecution is that on 31 st August

1992 at about 11.20 a.m., on the receipt of information regarding a

quarrel near House No.449, J. K. Tent House, A-II, Sector-8, Rohini, DD

No. 14 was recorded at the Police Post Rohini which is Ex.PW12/B.

Copy of the DD report was entrusted to SI Vir Singh for verification. SI

Vir Singh alongwith Constable Ravinder Kumar went to the spot of

occurrence, where he found that the injured Daya Ram (hereinafter

referred to as „deceased‟) had already been removed to hospital.

Parag Madho (PW10) was present at the spot of occurrence who

produced the appellant before SI Vir Singh and got recorded his

statement Ex.PW10/A. SI Vir Singh appended his endorsement

Ex.PW12/C on the said statement and sent it to the police station for

the registration of the case.

3. From the spot of occurrence, SI Vir Singh went to Jaipur Golden

Hospital and collected the MLC of the deceased who was declared unfit

for statement and had been removed for surgery. The Investigating

Officer then returned back to the spot of occurrence. He prepared

rough Site Plan (Ex.PW12/D), got the spot of occurrence photographed

and recorded the statements of the witness Shankar Pandey and Raj

Pal Sharma. He found blood on the leaf of door lying at the spot which

was taken into possession. He also lifted blood stained earth as well as

sample earth from the spot of occurrence and seized the samples vide

memo Ex.PW10/E. „Chaursi' was also taken into possession after

preparing its sketch Ex.PW10/C and converted it into a sealed packet.

4. Complainant Parag Madho in his statement Ex.PW10/A stated

that Daya Ram had done some carpentry work for the appellant at

Sector 5, Rohini and the appellant owed him Rs.80/- for the said work.

Daya Ram demanded his dues several times but the appellant did not

pay. On 31.08.92 at about 11:05 am, he (complainant) and PW8 Raj

Pal Sharma accompanied Daya Ram to the house of the appellant to

demand payment of the dues of Daya Ram. There they came to know

that the appellant was working of door frames at House No.A-II/449,

Sector 8, Rohini. Accordingly, they came to Rohini at 11:15 am.

Appellant Shatrughan was making door frames under a tree near the

said house. When Daya Ram demanded payment of his dues, the

appellant started abusing him. He and Raj Pal Sharma tried to

persuade the appellant to make the payment, on this, the appellant,

while holding a „chaursi' (a wood peeling instrument) and shouting that

he would eliminate Daya Ram rushed towards him and struck him with

the „chaursi' on the abdomen and testicles resulting in injuries.

Appellant was over-powered by the public persons and the injured

Daya Ram was taken in a „rickshaw' to Jaipur Golden Hospital.

5. On completion of formalities of investigation, the appellant was

challaned and sent for trial. He was charged for the offence under

Section 302 IPC to which he pleaded not guilty and claimed to be tried.

6. In order to bring home the guilt of the appellant, the prosecution

has examined 16 witnesses including the eye witnesses PW2 Shankar

Pandey, PW8 Raj Pal Sharma and PW10 Parag Madho (complainant).

7. PW8 Raj Pal Sharma has turned hostile. He deposed that he

came to know of the occurrence from his younger brother Krishan

Kumar and one Harpal at 1.30 p.m. He denied that he had

accompanied the deceased to Rohini or that he was present at the

time of occurrence.

8. PW10 Parag Madho has supported the prosecution version. He

testified that in the year 1992, deceased Daya Ram had worked with

the appellant for which a sum of Rs.80/- was due to him from the

appellant. On the fateful day, he had accompanied the deceased to

the appellant to demand payment of aforesaid dues. The appellant was

sharpening a 'chaursi' (Ex.P1). The deceased Daya Ram demanded his

money. On this, a heated exchange took place between the appellant

and the deceased. The deceased, on being abused by the appellant,

picked up a stick. Thereupon, the appellant stood up and inflicted an

injury on the person of the deceased with the „chaursi' and sat down at

the spot. Somebody informed the police. The police came and

arrested the appellant at the spot. He stated that the police recorded

his statement Ex.PW10/A. PW2 Shankar Pandey is another eye witness

of the occurrence. He has corroborated the version of PW10 on all

material aspects of the case.

9. On conclusion of prosecution evidence, the appellant was

examined under Section 313 Cr.P.C. to explain the incriminating

circumstances appearing against him in the evidence. The appellant

denied the prosecution evidence and claimed to be innocent. He,

however, has not come forward with any explanation as to why Parag

Madho (PW10) and Shankar Pandey (PW2) have deposed against him.

10. The learned Additional Sessions Judge, on consideration of

evidence, found the testimonies of Shankar Pandey (PW2) and Parag

Madho (PW10) reliable and on the strength of the eye witness account

of occurrence given by them, found the appellant guilty of murder of

Daya Ram and convicted him under Section 302 IPC.

11. Ms. Charu Verma, learned amicus curiae on behalf of the

appellant have assailed the impugned judgment on facts as well as

law.

12. On merits, learned amicus curiae submitted that the learned Trial

Court has committed a grave error in relying upon the testimony of

Parag Madho (PW10) and Shankar Pandey (PW2), particularly when

the other purported eye-witness Raj Pal Sharma (PW8) has not

supported the prosecution story. She submitted that Trial Court has

ignored the fact that the presence of Parag Madho (PW10) at the place

of occurrence is highly doubtful as the Investigating Officer has not

shown the position from where he saw the occurrence in the rough Site

Plan Ex.PW12/D prepared by him. She further submitted that even the

presence of Shankar Pandey (PW2) at the time of occurrence is

doubtful because his name does not find mention as a witness in the

FIR Ex.PW1/A or the complaint statement of Parag Madho (PW10)

Ex.PW10/A. From this, she has urged us to treat the testimony of

Shankar Pandey (PW2) as well as Parag Madho (PW10) unreliable and

extend benefit of doubt to the appellant.

13. We do not find merit in the above contention. Failure of the

Investigating Officer to mark the position of Parag Madho (PW10) from

where he saw the occurrence in the rough Site Plan (Ex.PW12/D) by

itself cannot be taken as a reason to doubt the presence of Parag

Madho (PW10) at the time of occurrence, particularly, when he is

categoric in his testimony that he had accompanied the deceased on

the fateful morning to the appellant and the occurrence took place in

his presence. From the record, it is apparent that the incident took

place on 31st August, 1992 at 11:15 a.m. The initial information about

the incident was received at Police Post Rohini vide DD No. 14

(Ex.PW12/B) within few minutes i.e. at 11:20 a.m. Immediately after

the recording of DD report, the Investigating Officer SI Vir Singh

(PW12) reached at the spot of occurrence. SI Vir Singh (PW12) had

deposed that on reaching the spot of occurrence, he met Parag Madho

(PW10), who produced the appellant before him and also gave his

statement Ex.PW10/A, which statement is the basis for the registration

of formal FIR. Perusal of the statement of PW10 Parag Madho

Ex.PW10/A reveals that it bears his signature and it was forwarded to

the police station at 12:30 a.m. i.e. within slightly more than one hour

after the occurrence. This sequence of events in itself is sufficient to

establish the presence of Parag Madho (PW10) at the spot.

14. As regards Shankar Pandey (PW2), learned amicus curiae has

submitted that his presence at the spot is doubtful because his name

as a witness does not find mention in the FIR (Ex.PW1/A) or the

complaint statement of Parag Madho (Ex.PW10/A). We are not

convinced with this argument. First Information Report is basically an

information about the commission of offence to the police, with a view

to activate the Investigating Authorities for taking suitable steps for

collecting evidence and bring the guilty person/persons to book. It

need not be very elaborate to contain each and every minute detail

relating to the offence so committed. It is not necessary that the FIR

must detail the names of all the witnesses to the occurrence because it

may very often happen that the first informant may not even be

knowing the presence or the identity of the witnesses to the

occurrence. In the instant case also, Shankar Pandey (PW2), as per his

testimony, was not an acquaintance of the complainant Parag Madho

(PW10). He was an employee of J.K. Tent House, Sector 8, Pocket A-II,

Premises No. 458, Rohini. Parag Madho (PW10), obviously could not

have known him, as Parag Madho (PW10) was resident of Rithala, Delhi

and he had gone to the spot of occurrence per-chance with the

deceased for demanding the payment of the amount owed by the

appellant to the deceased. Thus, we do not find anything unusual or

suspicious in non-mention of the presence of Shankar Pandey (PW2) at

the time of occurrence in the FIR recorded on the basis of complaint of

PW10 Parag Madho. Otherwise also, as per the Investigating Officer SI

Vir Singh (PW12), he had prepared a rough Site Plan Ex.PW12/D at the

spot of occurrence. Marginal notes appended in the said Site Plan,

inter alia, reads "Point „D‟ shows the position of witness Shankar

Pandey at the time of occurrence". From this evidence, it is

established that Shankar Pandey (PW2) was present at the time of

occurrence. Thus, we do not find any substance in the criticism of

learned amicus curiae regarding his testimony.

15. Parag Madho (PW10) has fully supported the case of prosecution

and his version is corroborated on all material aspects by the

testimony of Shankar Pandey (PW2). Both these witnesses have been

cross-examined at length by the learned defence counsel but nothing

material to discredit the testimony has come out on record. Thus,

under the circumstances, we find that the learned Trial Court has

rightly relied upon the testimony of these two witnesses to conclude

that the appellant Shatrughan had inflicted the fatal stab injury with

„chaursi' on the person of the deceased.

16. Learned amicus has further submitted that conviction of the

appellant for the offence of murder punishable under Section 302 IPC

is bad in law. She submitted that learned Trial Court has failed to

appreciate that as per the testimony of PW10 Parag Madho, stabbing

of the deceased with 'chaursi' was preceded by heated arguments

and quarrel between the parties which enraged the appellant and in

the heat of passion, he inflicted 'chaursi' blows on the person of the

deceased, which proved to be fatal. She submitted that in view of the

aforesaid factual matrix, the learned Trial Court ought to have

considered that the case of the appellant falls squarely within

Exception 4 to Section 300 IPC which defines the offence of murder, as

such, at best, the act committed by the appellant amounted to an

offence of culpable homicide not amounting to murder punishable

under Section 304 IPC. Learned amicus curiae in support of this

contention has relied upon the judgment of the Supreme Court in

Tholan Vs. State of Tamil Nadu, 1984 SCC (Criminal) 164.

17. In the matter of Tholan Vs. State of Tamil Nadu (supra) which

was also a case of a single fatal blow given by the accused as a result

of sudden fight, the Hon‟ble Supreme Court while analysing the law on

the point, observed thus:

"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."

18. Learned amicus curiae 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"

19. Learned Standing Counsel, on the other hand, has supported the

impugned conviction of the appellant under Section 302 IPC. He

submitted that considering the weapon offence used i.e. 'chaursi' ,

which is a sharp wood peeling instrument and the fact that the injury

inflicted by the appellant was on the fatal parts of the body of the

deceased i.e. abdomen and testicles, it can be safely infer that there

was a clear intention on the part of the appellant to cause death of the

deceased. Thus, he argued that the learned Trial Court has rightly

convicted the appellant under Section 302 IPC.

20. On careful consideration of the rival contentions on this issue, we

find merit in the plea of learned amicus curiae. From the statement of

PW10 Parag Madho (complainant), it is apparent that it was not the

appellant who approached the deceased with intention to cause injury

but the deceased alongwith Parag Madho (PW10) had approached the

appellant at his work place at Rohini for demanding payment of his due

of Rs. 80/-. PW10 Parag Madho has stated that when the deceased

Daya Ram demanded payment of his dues from the appellant, heated

arguments took place and the appellant abused the deceased. On this,

the deceased picked up a stick and in response to that, the appellant

got up and struck the deceased with the „chaursi', an instrument of his

trade, which he was sharpening at the relevant time.

21. From the aforesaid sequence of events, we find it difficult to infer

intention on the part of the appellant to cause death of the deceased

or cause such injury which, in the ordinary course would result in the

death. From the aforesaid factual matrix, it is apparent that the act of

stabbing by the appellant was a result of the heated exchange

between the parties, which had raised passions. The weapon offence,

admittedly, is not a conventional weapon like knife, dagger or 'lathi'

etc. but it is a „chaursi', which is an instrument used for peeling of

wood and which, as per evidence, was handy at the spot as the

appellant was sharpening it. Therefore, in our considered view,

Exception 4 to Section 300 IPC is attracted in this case, which is

reproduced thus:

"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-

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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."

22. Since the act of inflicting injury on the person of Daya Ram

(deceased) committed by the appellant falls within the purview of

Exception 4 to Section 300 IPC, his conviction for the offence of murder

punishable under Section 302 IPC cannot be sustained and in our

considered view, the appellant is guilty of culpable homicide not

amounting to murder punishable under Section 304 Part II IPC. In our

aforesaid view, we draw strength from the judgment of the Supreme

Court in the matter of Pappu Vs. State of M.P., 2009 (4) Scale 521.

It was a case of the accused firing a single shot on the chest of the

deceased as a consequence of the exchange of hot words and the

Supreme Court on consideration of the facts of that case converted the

conviction of the appellant from the offence punishable under Section

300 IPC to the conviction for the offence of culpable homicide not

amounting to murder punishable under Section 304 Part II IPC with a

custodial sentence of 8 years.

23. In view of the above, we partly accept the appeal. While holding

the appellant guilty, we convert the conviction of the appellant for the

offence of murder punishable under Section 302 IPC to conviction

under Section 304 Part II IPC for having committed the offence of

culpable homicide not amounting to murder and convert the sentence

of life imprisonment imposed upon him to sentence of rigorous

imprisonment for a period of 7 years while maintaining the fine of Rs.

1000/-, in default of payment of which, the appellant shall undergo

rigorous imprisonment for further period of six months.

24. The appeal is, therefore, partly allowed and the impugned

judgment, as well as the order on sentence are modified to that extent.

As per the latest nominal roll of the appellant placed on record,

appellant has already undergone actual imprisonment for a period of 7

years, 3 months and 14 days before his release on bail and has also

earned the remission in sentence for a period of 9 months and 6 days.

Bail was granted to the appellant vide order dated 31st March, 2000

which means that actual period of imprisonment undergone by the

appellant is at least 7 years, 5 months and 18 days, to which if the

remission period is added, the appellant has already undergone the

period of sentence awarded to him including the period of further

sentence in default of payment of fine. Therefore, we do not deem it

necessary to issue directions for arrest of the appellant who is

absconding.

25. The appeal is disposed of accordingly.

26. The personal bond cum surety bond stands discharged.

A.K. SIKRI, J.

AJIT BHARIHOKE, J.

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