Bhurey Lal vs State
2010 Latest Caselaw 216 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Decision: 15th January, 2010

+                    CRL.APPEAL NO.578/2005

       BHUREY LAL                                  ......Appellant
                            Through:   Mr.Bhupesh Narula, Advocate.

                                  Versus

       STATE                                     ......Respondent
                            Through:   Ms.Richa Kapoor, A.P.P.


                     CRL.APPEAL NO.304/2005

       CHHOTE LAL                                    ......Appellant
                            Through:   Mr.Bhupesh Narula, Advocate.

                                  Versus

       STATE                                     ......Respondent
                            Through:   Ms.Richa Kapoor, A.P.P.


       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)

1. Appellant Bhurey Lal and Chhote Lal have filed the

two captioned appeals challenging their conviction vide

impugned judgment and order dated 14.3.2005. Both of them

have been convicted for the offence punishable under Section

302/34 IPC. Bhurey Lal has additionally been convicted for the

offence punishable under Section 323 IPC.

2. Vide order on sentence dated 16.3.2005, the

appellants have been sentenced to undergo imprisonment for

life pertaining to the offence of murder. Bhurey Lal has been

further sentenced to undergo imprisonment for 3 months in

respect of the offence punishable under Section 323 IPC.

3. Learned counsel for the parties i.e. the appellant

and the State concede that the fate of the appellants needs to

be decided with reference to the testimony of PW-1 and PW-2.

Both of them claim to be eye-witness. PW-4 is the one in

respect of whom, for the injury caused to him, Bhurey Lal has

been found guilty of the offence punishable under Section 323

IPC. Counsel further states that with respect to the acts of the

appellants, if held established through the testimony of PW-1

and PW-4, the testimony of PW-10 and the post-mortem report

Ex.PW-10/A would not be considered.

4. As per Dr.R.K.Punia PW-10 who prepared the post-

mortem report Ex.PW-10/A after he conducted the post-

mortem on the dead body of the deceased Om Prakash, he

found a single stab wound over back of right side chest. The

wound was a penetrating incised wound. It had entered the

back of the deceased at the 7th inter-costal space. The track of

the wound was 4.6 cm in length and was directed back to

front, right to left and slightly upwards.

5. As a result of the weapon of offence entering the

body of the deceased at the back perforating the 7th inter-

costal space, the same went 4.6 cm deep and punctured the

right lung of the deceased. This resulted in excessive bleeding

and before medical aid could be given to the deceased he died

at the hospital at 6:15 PM.

6. We may highlight that the sketch of the weapon of

offence as pen profiled shows that the same is a dagger. The

length of the blade is about 28 cm. It tapers at the tip. The

length segment of the tip is 4.6 cm.

7. Panna Lal PW-1 has deposed that 19.3.2003 was

when the festival of Holi was being celebrated, he was passing

by the jhuggis, when he saw the accused Chhote Lal and

Bhurey Lal exchanging abuses with the deceased Om Prakash

and Brijesh (PW-4). He deposed that accused Bhurey Lal was

excited and said that he will beat Om Prakash. We may note

that the expression used by Panna Lal is "maarenge". He

went on to depose that Chhote Lal caught the hand of Om

Prakash and Bhurey Lal stabbed Om Prakash with a knife on

the side. When Brijesh tried to rescue Om Prakash, Bhurey Lal

picked up a brick and hit him i.e. Brijesh on the head and

thereafter both the accused ran away. He deposed that he

and Brijesh along with other persons removed the deceased to

the hospital.

8. Brijesh PW-4 deposed that on 19.3.2003 the festival

of Holi was being celebrated. At around 2/2:30 PM he was

sitting in his jhuggi along with Om Prakash. Bhurey Lal and

Chhote Lal came to the jhuggi. An altercation between the

accused and Om Prakash pertaining to the repair of a jhuggi

had taken place a week ago. The accused started abusing Om

Prakash. Accused Bhurey Lal brought a chhura from his

jhuggi. Chhote Lal caught Om Prakash and Bhurey Lal inflicted

a knife blow in his arm-pit. He started crying. Bhurey Lal gave

a brick blow on his forehead and thereafter both the accused

fled. He and Panna Lal got Om Prakash admitted in the

hospital.

9. On being cross-examined Brijesh Kumar stated that

Chhote Lal had caught the deceased Om Prakash from behind

and at that time both arms of Om Prakash were taken into grip

from behind.

10. With reference to the post-mortem report of the

deceased, it is apparent that Chhote Lal could not have caught

Om Prakash from behind as claimed by Brijesh Kumar for the

reason if this was so, it is impossible that the knife blow could

be inflicted on the back. It is apparent that Brijesh Kumar had

made some embellishments while deposing, but the said

embellishments in his testimony is not of a kind where from his

testimony in its entirety needs to be rejected.

11. Ignoring some variations in the testimony of the

two witnesses, from the testimony of Panna Lal it is apparent

that some exchange of hard words preceded the assault. The

hard words i.e. abuses, as per Panna Lal were being

exchanged between the accused on the one hand and the

deceased and Brijesh on the other. The testimony of Panna Lal

shows that during verbal duel which resulted in exchange of

abuses, Bhurey Lal inflicted a knife blow and at that point of

time Chhote Lal had caught the hand of Om Prakash. Thus,

what happened took place at the spur of the moment. From

the testimony of Panna Lal it is apparent that the accused

persons did not come with the intention to kill Om Prakash for

the reason if the purpose of their arrival was to kill Om

Prakash, they would have not engaged themselves in any

verbal duel with Om Prakash. They would have given effect to

their pre-planned intention of murdering Om Prakash.

12. We do not intend to copy the much copied chart of

comparing and contrasting Section 299 IPC and Section 300

IPC, where Section 299 IPC is shown as having 3 limbs and

Section 300 IPC as having 4 limbs.

13. Suffice would it be to state that in the instant case,

intention to kill Om Prakash is ruled out when we read the

testimony of PW-1 and PW-4.

14. With respect to the injury caused to Om Prakash

the question would arise whether the injury in question is of a

kind where Section 300 thirdly or Section 300 fourthly of the

Indian Penal Code would be attracted or is it a case where the

offence made out would be attracting the third limb of Section

299 IPC.

15. The injury on Om Prakash is a solitary injury. The

appellants who had a chance to inflict much more than one

injury were satisfied by causing a single injury. This has to be

factored in while evaluating the facts. The situs of the injury is

the 7th inter-costal space at the back. Notwithstanding the fact

that the weapon of offence is a dagger having a blade of

length segment 28 cm but the blow with the dagger has not

been inflicted with ferocity evidenced by the fact that the

dagger has traversed only 4.6 cm into the body of Om

Prakash. It is apparent that the force used was in the mid

segment i.e. neither too excessive nor too little. It is

unfortunate for Om Prakash that the injury which pierced only

4.6 cm into his body resulted in his death.

16. In the decision reported as 1984 SC 759 Tholan vs.

State of Tamil Nadu, the weapon of offence was a knife. The

place where it was struck was the right side of the chest.

Injury was only one. Death was due to haemorrhagic shock on

account of the stab injury which had pierced the lung; the

stabbing incident being preceded by an altercation and

everything happening on the spur of the moment, conviction

rendered by the Court of Session and upheld by the High Court

for the offence punishable under Section 302 IPC was altered

to one under Section 304 Part-II IPC.

17. In the decision reported as 1982 SC 1466 Gurmail

Singh & Ors. vs. State of Punjab, the weapon of offence was a

spear. Injury was only one. The situs of the injury was the

chest cavity. Death was due to internal organs being

damaged, resulting in excessive bleeding. The deceased not

being the target of the assault but being the one who

intervened in an existing fight, it was held that the offence

made out is attracting Section 304 Part-II IPC. Conviction

rendered by the Court of Sessions upheld by the High Court for

the offence punishable under Section 302 IPC was altered.

18. The facts of the instant case show that the accused

cannot be attributed with any pre-meeting of the minds. They

had a verbal altercation with the deceased and PW-4. The

verbal altercation resulted in a scuffle and one of the accused

caught the hand of the deceased. The other inflicted a single

stab blow. The said facts preceding the assault coupled with

the situs of the injury and the injury being only one, taking

guidance from the decisions in Thoran's case (supra) and

Gurmail's case (supra), we hold that pertaining to the death of

Om Prakash, the acts of the appellants make out a case for

punishment under Section 304 Part-II IPC.

19. Noting that the appellant Bhurey Lal is still in

custody i.e. has remained in prison for 6 years and 10 months

and that appellant Chhote Lal was admitted to bail after he

had undergone a sentence of 3 years 4 months and 24 days

and by then had earned a remission of 4 months and 5 days,

considering further the fact that appellant Bhurey Lal was the

one who stabbed and Chhote Lal had a lesser role i.e. of

catching hold, we feel that the ends of justice would be met if

the appellants are directed to undergo a sentence for the

period already undergone. In respect of Bhurey Lal's

conviction and sentence for the offence punishable under

Section 323 IPC we direct that the same shall run concurrently.

20. The appeals stand partially allowed. The conviction

of the appellants for the offence punishable under Section 302

IPC is set aside. The appellants are convicted for the offence

punishable under Section 304 Part-II/34 IPC for which they are

directed to undergo imprisonment for the period already

undergone. Appellant Bhurey Lal's conviction for the offence

punishable under Section 323 IPC and the sentence is

maintained but with a direction that both sentences imposed

upon Bhurey Lal shall run concurrently.

21. In view of the sentence imposed upon Chhote Lal,

the bail bond and the surety bonds furnished by him are

discharged.

22. Since Bhurey Lal is in jail we direct that a copy of

this order be sent to the Superintendent, Central Jail, Tihar for

necessary action and to be made available to Bhurey Lal who

shall be set free forthwith if not required in custody in any

other case.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE JANUARY 15, 2010 dk