Jarnail Singh vs State (Nct Of Delhi)
2010 Latest Caselaw 432 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI



                    CRL. APPEAL NO. 132 OF 1997

%                            Date of Decision: 27th January, 2010

JARNAIL SINGH                               ...APPELLANT
                        Through:       Mr. Atul Verma, Advocate

                            VERSUS

STATE (NCT OF DELHI)                        ...RESPONDENT
                 Through:              Mr. Manoj Ohri, Advocate

CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI
    HON'BLE MR. JUSTICE AJIT BHARIHOKE

      1.     Whether Reporters of Local newspapers
             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?


AJIT BHARIHOKE, J. (ORAL)

1. Briefly stated, the case of the prosecution is that on 9th March

1994 at around 11.00 PM, complainant Balraj (PW-1), his brother-in-

law Mahipal (hereinafter referred to as `deceased') and their friend

Madan (PW-2) were standing in front of the house of Balraj near DDA

Market, Khyala, New Delhi. A few boys, including the appellant Jarnail

Singh, passed through the house of PW-1 and went towards the school

building. The appellant returned back after reaching near the school

and when he came near the house of PW-1 Balraj, the deceased

Mahipal asked him about the reason for his roaming around there,

whereupon the appellant got enraged and asked as to how the

deceased was concerned, whereupon the deceased explained that he

was simply enquiring. But the appellant, in the fit of rage, took out a

knife from the right side of belt of his pant and inflicted a knife blow

on the person of the deceased, which unfortunately fell on his chest

and proved to be fatal. When PW-1 Balraj tried to support the

deceased, the appellant tried to inflict a knife blow on him, which

resulted in a scuffle and both of them fell down. Thereafter, the

appellant gave a knife blow on the waist of PW-1 and ran away.

2. The deceased as well as PW-1 Balraj were taken to the hospital

where their respective MLCs were prepared and the deceased was

declared brought dead. The information regarding the incident was

conveyed to the police station on the basis of which DD No.28A was

recorded and entrusted to S.I. O.D.Yadav, who visited the hospital and

collected the MLC of PW-1 Balraj as well as the deceased. He

recorded the statement of PW-1 Balraj Ex.PW-1/A, on the basis of

which the formal FIR was registered. On completion of the necessary

formalities of the investigation, the appellant was challaned for

offences punishable under Sections 302 IPC, 324 IPC and Section 25 of

the Arms Act and sent for trial.

3. On being charged for the above offences, the appellant pleaded

innocence and claimed to be tried.

4. The learned trial Court, on conclusion of trial, relying upon the

ocular testimony, found the appellant guilty of offences under

Sections 302 IPC, 324 IPC and Section 25 of the Arms Act and

convicted him on all the three counts.

5. We have heard learned counsel for the parties at length.

Learned counsel for the appellant, on instructions from the appellant,

has submitted that the appellant admits having inflicted knife blows

on the person of the deceased Mahipal as well as PW1 Balraj. He has

not challenged his conviction for the offences punishable under

Section 324 IPC as also under Section 25 of the Arms Act. The

appellant however, submitted that as far as the fatal injury caused to

the deceased Mahipal is concerned, the offence committed by the

appellant should not be under Section 302 IPC but he ought to have

been convicted only for the offence of culpable homicide not

amounting to murder under Section 304 IPC.

6. 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."

7. 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"

8. Learned APP, on the other hand, has supported the impugned

conviction of the appellant under Section 302 IPC. Also, he submits

that the injury was inflicted by the appellant on the vital part of the

body of the deceased i.e. the chest, therefore, it can be safely inferred

that there was a clear intention on the part of the appellant to cause

death of the deceased or to cause him such injury which in ordinary

course would have resulted in his death.

9. On careful consideration of the rival contentions and the

background of facts, we find merit in the plea of learned counsel for

the appellant. There is nothing on record to suggest that there was

any enmity or motive on the part of the appellant to cause death of

the deceased or to cause such injury which in ordinary course was

sufficient to cause death. Therefore, the possibility of the intention to

kill is ruled out. The case of the prosecution is that on the relevant

night at about 11.00 PM, the deceased along with PW-1 and PW-2 was

standing in the `gali' in front of his house. On seeing the appellant

coming back from the direction of the school, the deceased enquired

from him about the reason for his roaming around in the area. This

enraged the appellant, who retorted that it was not of any concern of

the deceased. This resulted in exchange of hot words and in the

sudden rush of blood, the appellant took out the knife from right side

of the belt of his pant and inflicted a blow on the deceased, which

blow unfortunately fell on the chest of the deceased and proved to be

fatal. When PW-1 Balraj tried to help the deceased, the appellant

gave him a knife blow on his waist resulting in a simple injury to him.

From the aforesaid factual matrix, it is clear that this is not a case of

intention to kill and actually the fatal blow suffered by the deceased

was a result of a sudden fight in the heat of passion without any pre-

meditation. It cannot be said that the appellant had taken any undue

advantage or acted in a cruel or unusual manner as he had given only

a single knife blow which unfortunately fell on a vital part of the body

and proved to be fatal. Thus, in our view, the case of the appellant

squarely falls within the Exception 4 to Section 300 IPC 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."

10. Since the case of the appellant falls within the purview of

Exception 4 to Section 300 IPC, he cannot be held guilty of the offence

of culpable homicide amounting to murder and the offence committed

by him falls within the category of culpable homicide not amounting to

murder under Section 304 Part II IPC. In our aforesaid view, we draw

strength from the judgment of Supreme Court in the matter of Pappu

Vs. State of MP., 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.

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

maintaining the conviction of the appellant for the offence under

Section 324 IPC and Section 25 of the Arms Act, we convert the

conviction of the appellant for the offence of murder punishable under

Section 302 to conviction under Section 304 Part II IPC for committing

the offence of culpable homicide not amounting to murder and

convert the life imprisonment imposed upon the appellant to sentence

rigorous imprisonment for a period of 8 years while maintaining the

fine of Rs.2000/-, in default of which the appellant shall undergo

rigorous imprisonment for further period of six months. All the three

sentences shall run concurrently.

12. 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 nominal roll of the appellant placed on record, he

had already undergone imprisonment for life of 6 years, 3 months and

23 days as on 19.9.2000. As per the Court record the appellant was

directed to be released on furnishing a personal bond in the sum of

Rs.10,000/- with two sureties in the like amount vide order dated

04.03.2003. Assuming that the appellant was released immediately

thereafter on bail, then also he has undergone incarceration for a

period of 8 years and 9 months, which is more than the period of

sentence awarded to the appellant. Therefore, we do not deem it

necessary to send him into custody.

13. The appeal is disposed of accordingly.

14. The personal bond cum surety bond stands discharged.

A.K. SIKRI, J.

AJIT BHARIHOKE, J.

JANUARY 27, 2010 gm/pst