Vinod Kumar vs State
2010 Latest Caselaw 923 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Decision: 17th February, 2010

+                           CRL.APPEAL NO.90/2010

       VINOD KUMAR                                 ..... Appellant
                Through:           Mr.Sachin Dev Sharma, Advocate
                                   and Mr.Hakikat Yadav, Advocate.

                                   versus

       STATE                                       ..... Respondent
                        Through:   Mr.M.N.Dudeja, Advocate

       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?          Yes

     3. Whether the judgment should be reported in the
        Digest?                                    Yes

PRADEEP NANDRAJOG, J. (Oral)

Crl.M.(Bail) No.104/2010

Since learned counsel for the appellant states that

he would be arguing the appeal today itself and learned

counsel for the State also states that he is prepared to argue

the appeal, instant application which seeks suspension of

sentence pending hearing of the appeal is dismissed.

Crl.Appeal No.90/2010

1. Notwithstanding the fact that Paras Ram PW-1 who

also received injuries simultaneously at the point of time and

at the same place where deceased Mukesh @Babloo was

stabbed, after fully supporting the case of the prosecution

when he appeared as a witness on 21.3.2007, turning turtle on

21.5.2008 when he was cross-examined, counsel for the

appellant concedes that there is sufficient evidence wherefrom

it is apparent that for unexplainable reasons Paras Ram PW-1

chose to resile from truth and that with reference to the

testimony of Const.Suresh PW-15 as also the MLC Ex.PW-7/A

and the testimony of Dr.Jatinder PW-7 who examined Paras

Ram soon after the incident, it stands established that it is the

appellant who had inflicted the knife injury on Mukesh

@Babloo as also caused the injury with a knife to Paras Ram

PW-1.

2. But, learned counsel for the appellants urges that in

the facts and circumstances of the instant case the offence

made out, with reference to the act of the appellant, is

culpable homicide not amounting to murder punishable under

Section 304 Part-I IPC.

3. Learned counsel points out that as per the case of

the prosecution and even the testimony of PW-1 in

examination-in-chief, the appellant had no animus against the

victim. The victim was unknown to him. A verbal altercation

took place when everybody was watching Ramlila.

Notwithstanding the fact that after the verbal altercation the

appellant went to his house and returned with a knife, but he

did nothing except stand at the same place to watch Ramlila.

Mukesh @Babloo who was working as a volunteer told the

appellant to sit down, at which something happened,

compelling the appellant to inflict a single knife blow in the

stomach of Mukesh @Babloo. Counsel urges that it was

obviously a case of the appellant wanting to cause an injury on

Mukesh @Babloo intending to cow down Mukesh to compel the

appellant not to stand at the place where the appellant was

standing to watch Ramlila.

4. Counsel states that if the intention of the appellant

was to cause the death of Mukesh, he had the opportunity to

strike more than one blow.

5. With reference to the post-mortem report of

Mukesh, learned counsel points out that the injury shows that

the knife was stabbed inside the stomach and pulled back in

the same position i.e. no attempt was made to rotate the knife

inside the stomach. Unfortunately, urges the counsel, the

knife cut the artery of the kidney and before that pierced

through the small intestines. Excessive bleeding resulted due

to the artery of the kidney being cut. This is as per the post-

mortem report.

6. Learned counsel cites the decision reported as AIR

1968 SC 1390 Laxman Kalu Nikalje vs. State of Maharashtra as

also 1981 SC 1441 Gokul Parashram Patil vs. State of

Maharashtra to urge that in said two cases noting that the

death was caused, in the first case due to the auxiliary artery

and vein being cut and in the latter the superior venecava

being cut, holding that it would be too much to assume that

the accused intended or even knew that the said arteries

would be cut, conviction for the offence punishable under

Section 302 IPC was converted to one under Section 304 Part-I

IPC.

7. A perusal of the testimony of Paras Ram shows that

it was a case of a chance encounter between the appellant and

the deceased. There was no previous enmity. It was

darkness, the time was around midnight in the intervening

night of 9th and 10th October 2005, a single stab blow has been

inflicted.

8. There are decisions where the stabbing took place

in twilight or in darkness and for said reason the Courts took

the view that under the circumstances it may be difficult to

even gather whether the accused intended to strike the part of

the body which he actually struck. Though, when a single blow

is inflicted, by itself may not be indicative of a particular

intention, as held in various cases, but authorities lean in

favour of ruling out an intention to cause murder if the blow

inflicted is a single blow and the encounter was a chance

encounter; there being no motive for the crime.

9. In the Special Report of the Indian Law

Commissioners presented on 19th November 1847 preceding

the enactment of the Penal Code, the authors of the Code,

while drawing distinction between what would be 'murder' and

'culpable homicide not amounting to murder' cautioned that a

'homicide' which is not the product of so much evil to the

community as 'murder' should be normally treated as an

offence of culpable homicide not amounting to murder. The

Commission noted that the reasons for homicide which are far

more respectable than those which are of a evil kind should be

taken account of and such acts should not be normally treated

as that of murder.

10. We accordingly dispose of the appeal by partially

allowing the same. The conviction of the appellant for the

offence punishable under Section 302 IPC for the death of

Mukesh @Babloo is set aside and the appellant is convicted for

the offence of culpable homicide not amounting to murder for

the death of Mukesh @Babloo and for the said offence

committed by the appellant we direct the appellant to undergo

rigorous imprisonment for ten years.

11. The conviction and the sentence of the appellant for

the offence punishable under Section 324 IPC pertaining to the

injury caused to Paras Ram is maintained.

12. It is directed that both sentences shall run

concurrently.

13. Needless to state, the appellant would be entitled

to the benefit of Section 428 Cr.P.C. as also such remissions

which he may have earned as per the policy of the Executive

for good conduct in jail.

14. We express our gratitude to learned counsel for the

appellant and the State who has assisted this Court in disposal

of an appeal which was filed in late January 2010. The appeal

was listed for preliminary hearing i.e. for admission on

29.1.2010 and is being disposed of on the 19th day of its

admission.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE February 17, 2010 dkb