Mukesh Singh @ Lichi vs State
2010 Latest Caselaw 2291 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Decision: 29th April, 2010

+                    CRL.A. 176/2010

       MUKESH SINGH @ LICHI                  ..... Appellant
                    Through:       Mr.Ajay Verma and Mr.Gaurav
                                   Bhattacharya, Advocates.
                versus
       STATE (NCT) OF DELHI             ..... Respondent

                      Through:     Mr.M.N.Dudeja and
                                   Ms.Richa Kapoor, APP.
       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

1. Whether the 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 the Digest?

PRADEEP NANDRAJOG, J.(Oral)

1. The weapon of offence, a knife Ex.P-1, sketch

whereof Ex.PW-6/D shows that the knife is an ordinary kitchen

knife having blade length of 9.5 cm and blade width of 1.5 cm.

The post-mortem report Ex.PW-13/A of the deceased evidences

that a single blow was inflicted with the knife. The blow was

directed at the left side of the chest and entered between the

4th and 5th intercostals space in mid clavicle line. Unfortunately,

left side of the ventricle got pierced resulting in death due to

hemorrhagic shock. As per the opinion Ex.PW-13/B of the

doctor who conducted the post-mortem, the injury in question

could have been caused by the knife Ex.P-1.

2. Believing the eye witness account of Bahori Lal PW-1

and Sonu PW-2, the learned trial Judge has held that the

appellant inflicted the solitary knife blow on the person of

deceased Satish and the appellant was assisted by his brother-

in-law Jaspal who had caught the deceased, thereby facilitating

the assault.

3. Vide impugned judgment and order dated

03.06.2009, the appellant has been convicted for the offence of

having murdered Satish. Holding that the probable intention of

Jaspal was to facilitate only an injury on the deceased, Jaspal

has been convicted for the offence punishable under Section

304 Part-II IPC. For the simple injuries inflicted upon Bahori Lal

PW-1, both appellant and Jaspal have been convicted for the

offence punishable under Section 323/34 IPC.

4. For the offence of murder, the appellant has been

sentenced to undergo imprisonment for life. For the offence

punishable under Section 323/34 IPC, the appellant has been

sentenced to undergo one year Rigorous Imprisonment.

5. We have checked up the status of appeal, if any,

filed by Jaspal not only from the Registry of this court but even

from the Superintendent Central Jail Tihar and have been

informed that Jaspal has not preferred any appeal probably for

the reason by the time order on sentence was pronounced he

had already undergone the sentence of imprisonment imposed

upon him and probably, since he earned his freedom when

verdict was announced, Jaspal had no problem with the stigma

of his conviction standing.

6. Only issue raised by learned counsel for the

appellant is, whether the act of the appellant constitutes the

offence of murder vis-à-vis the injury caused to Satish or

whether the offence is that of culpable homicide not amounting

to murder.

7. From the eye witness account of Bahori Lal and

Sonu, who we note are the father and the cousin of the

deceased, the deceased was earning his livelihood by plying a

TSR and so was the livelihood of appellant Mukesh. An

altercation took place between the two when appellant verbally

abused the deceased on the deceased stopping the TSR on the

street in a manner which obstructed the appellant in plying his

TSR. Appellant questioned from the deceased whether the

street was the personal property of his father. From the

testimony of Bahori Lal it is apparent that these kinds of

altercations were common between the appellant and the

deceased, probably for the reason the street where they resided

was narrow being Shiv Mandir Wali Gali in Block-A, Mandawali,

an unauthorized slum colony in Delhi.

8. 14.09.2003 was an unfortunate day in the life of the

appellant and the deceased. During one such altercation,

helped by his brother-in-law Jaspal, who had caught the

deceased and exhorted appellant: 'DEKHTA KYA HAI HIT HIM'

the appellant stabbed the deceased in the chest. In the process,

Bahori Lal who had intervened received fist blows from the

appellant and Jaspal.

9. Having spent 16 months on the Criminal Division, we

have been privy to many appeals being decided, most of which

relate to the offence of murder. If not more, at least 50% of

cases decided by us pertained to trivial incidents in slum

colonies in Delhi, where for no apparent reason (from the point

of view of a reasonable person) the crime was committed on

the impulse of anger; the act being of stupidity of assaulting

using a knife making liable the accused for being punished for

the offence of murder.

10. Indeed, solitary stab injuries have troubled the courts

in determinatively recording findings with reasonable certainty

as to what degree of bodily injury was intended to be inflicted

by the offender.

11. The most fundamental difference between a human

and animal consists in the human power of reflection. Animals

feel pain and pleasure. Even they are moved by anger and joy.

They exercise cunning in achieving their ends e.g. when

pursuing games. But, their notions, desires and acts, spring

directly from their emotions or from their associations by

memory.

12. But with a human it is different. Even a human is

subject to the direct impulses of his emotional nature, but by

the side of this direct driving apparatus in the mind of the

human there is the consciousness of an entirely different mental

process, in which process, the consciousness of the human

holds up the mirror to his/her emotions, ideas and resolves and

as a result the human lives through the events and action not

only in their direct sequence but also as through a reflected

series.

13. Ms.Richa Kapoor, learned counsel for the State

contributes that criminalization is the consequence, not of

genetic or inherit wickedness, but is generally caused by

frustration, provocation, humiliation, unfulfilled desires and

unresolved conflicts and so on; the common denominator being

mal-adapted stress.

14. Thanking the learned counsel, we further pen down,

that in an unequal society where the under privileged are

denied even the right of basic sustenance what else would be

expected from them, other than animal behavior. What we

mean to say is that those, who are denied the opportunity of

education and an opportunity of achieving their full potential

would act upon their sudden impulse and emotions as animals

do, without using the mirror of their consciousness to foresee

the result of their impulsive action. These humble human

beings find that the connecting links of their reflection hardly

reaches beyond the immediate needs and promptings of their

rudimentary life.

15. It is in this scenario that we are compelled and called

upon to decide the instant appeal of Mukesh whose nominal role

shows that except for the instant solitary stray incident in his

life when he deviated from the path of rectitude, Mukesh has

lived life as a law abiding citizen and has only come to brush

with criminal law only once.

16. We take guidance from a few decisions where the

weapon of offence was either a knife or a small dagger akin to a

knife; the blade length whereof was less than 5 inches, death

resulting on account of either an important artery or the heart

or a lung being punctured, said acts being held to be an offence

of culpable homicide not amounting to murder. The said

decisions are: i) 1976 SCC 1519 Jaya Raj vs. State of

T.Nadu; ii) 1968 SC 1390 Laxman Kalu Nikalje vs. State of

Maharastra; iii) AIR 1981 SC 1441 Gokul Parasharam Patil vs.

State of Maharastra and iv) AIR 1984 SC 759 Tholan vs.

State of T.Nadu.

17. Noting that the blade of the knife used as a weapon

of offence in the instant case is having length of 9.5 cm i.e. a

little less than 4 inches and the width of the blade is 1.5 cm; the

knife being an ordinary kitchen knife, considering the cause of

the attack, we bring the curtains down on the fate of the

appellant by partially allowing the appeal and modifying the

conviction of the appellant to having committed the offence of

culpable homicide not amounting to murder pertaining to the

death of Satish, for which offence, we sentence the appellant to

undergo RI for a period of 10 years.

18. Sustaining the conviction of the appellant for the

offence punishable under Section 323/34 IPC and the sentence

thereto, we direct that both the sentences shall run concurrently

and the appellant shall be entitled to the benefit of Section 428

Cr.P.C.

19. The appeal stands disposed of.

20. Since the appellant is still in Jail, we direct that a

copy of this decision be sent to Superintendent Central Jail Tihar

for necessary correction in the Jail record pertaining to the

sentence to be undergone by the appellant and also for being

supplied to the appellant thereafter.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

APRIL 29, 2010/'nks'