Surinder Singh vs State
2010 Latest Caselaw 83 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Decision : 11th January, 2010

+                           CRL. A. No. 78/1997

        SURINDER SINGH                                       ..... Appellant
                     Through:                Ms. Ritu Gauba, Advocate

                       versus
        STATE                                              ..... Respondent
                                  Through:   Ms. Richa Kapoor, APP

+                           CRL. A. No. 102/1997

        RAJINDER @ RAJU                                      ..... Appellant
                      Through:               Ms. Ritu Gauba, Advocate

                       versus
        STATE                                              ..... Respondent
                                  Through:   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 Reporter or not?                          Yes
     3. Whether the judgment should be reported in the Digest?
                                                                    Yes

PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment and order dated 28.09.1996

the appellants have been convicted for an offence of having

murdered their real brother Rakesh.

2. Vide order 28.09.1996, the appellants have been

sentenced to undergo imprisonment for life and pay fine in

sum of Rs. 2000/-; in default of payment of fine they have

been directed to undergo further RI for six months.

3. Learned counsel for the appellant concedes that the

evidence on record establishes beyond reasonable doubt that

the appellants participated in the injuries which were inflicted

upon Rakesh, but contends that from the acts committed by

the appellants, there being no evidence of past motive, at best

the evidence makes out a case of culpable homicide not

amounting to murder, punishable under Section 304 Part I IPC.

4. We may note, at the outset, that the weapon of offence

Ex. P-5, a knife, has been pen profiled by the learned trial

Judge while recording the testimony of Sh.Niranjan PW-9 who

deposed on 12.08.1993, in the following words:-

"The knife Ex. P-5 produced in Court today is only a small CHHURI usually used in household for cutting vegetables etc., Its blade is 4.9 inches long and 1 inch wife with a wooden handle of 3.9 inches long attached with the blade."

5. The injuries on the person of Rakesh as noted in the post-

mortem report Ex. PW-15/A, which report has been proved by

author thereof; namely, Dr.L.K.Baruah PW-15 notes the

following four injuries on the person of Rakesh:-

"1. One incised wound on the front of chest place almost horizontally, 7 cm below the medial and of the left collar bone of size 3 cms. X 1.2 cms.

2. Once incised wound on the antero medial aspect on the right leg on its upper part in frond side. This injury was placed 7 cm below the lower bordered on the

right patela and the size of the injury was 2.5 cms X 1.5 cms. Mussle deep.

3. Abrasion of size 5 cms X 2.5 cms were seen on the back of right side abdomen on his lower part and the injury was placed vertically.

4. Abrasion of size 7 cms X 3 cms. was seen on the left side back of the abdomen in lumber area."

6. In respect of injuries found on the person of the

deceased, it may be noted that injury no. 1 proved fatal

inasmuch as the knife entered the chest cavity between the

second and the third rib and cut the right auricle of the heart.

Death was due to hemorrhagic shock resulting from excessive

bleeding.

7. It may be noted that injury no. 3 and 4 are simple

abrasion on the back of the right side abdomen. They appear

to be the results of fists and blows inflicted on the back. Injury

No. 2 is a muscle deep incised wound on the right leg. It is

apparent that the said injury is on a non-vital part of the body.

Only injury No. 1 is inflicted on a vital part of the body i.e.

chest and has resulted in the heart being punctured.

8. The circumstances under which the injuries were caused

have been narrated by PW-2 to WP-5. Let us briefly note the

testimony of the said four witnesses.

9. Rajbala PW-2, who is the neighbour of the appellants and

the deceased deposed that the appellants and deceased were

real brothers. They had a sister named Uma who wanted to

marry one Dalip. Whereas the deceased opposed the

marriage, other family members were in favour of the

marriage. On 21.8.1991 i.e. the date of the incident, at about

11 in the night she i.e. Rajbala, one Maya Devi, deceased

Rakesh along with two person named Raghubir and Shiv

Kumar were sitting outside house No. 1785 in the street.

Appellants Rajinder under the influence of liquor came. He

abused Rakesh and other persons of the street. Rakesh

requested Rajinder not to abuse other persons in the street

because it was a family matter. When abusing was going on,

Surinder came out of his house and both i.e. Rajinder and

Surinder started fighting with Rakesh. Some marpitai took

place. Rakesh entered house No. 1785 and bolted the door

from inside. Appellant Rajinder broke open the door. Both

Rajinder and Surinder entered the house. She heard sounds

like "HO HO" and "MARNE KI". Both accused left and she saw

Rakesh lying dead inside the house No. 1785 which belonged

to Maya Devi.

10. Maya Devi PW-3 deposed para materia with the

testimony of PW-2 but gave additional information, that the

mother of the appellants and the deceased, namely, Smt.

Sarla intervened.

11. Narangi Devi PW-4 deposed that when she was in the

street at around 10:30 PM on 21.08.1991 appellant Rajinder

came in a drunken state and picked up a quarrel with Rakesh.

He abused Rakesh. Their mother intervened. Accused

Surinder came from his house and rushed towards the place

where the fighting was going on. What happened thereafter

was not seen by her.

12. Hori Lal PW-5 deposed that it was about 11 PM on

21.08.1991 when Rajinder came from somewhere and started

hurling abuses. Rakesh objected. Rajinder and Rakesh started

quarrelling, Surinder joined them. Their mother also came

there. During the course of altercation and abusing, Surinder

went inside his house and came out with something. Rakesh

entered the house of Maya Devi and bolted the door from

inside. Both accused broke the door and entered. They came

out after 2-3 minutes. He saw Rakesh dead.

13. Smt. Sarla, mother of the appellants and deceased

appeared as PW-11 but disclaimed any knowledge of how her

son Rakesh died. She was declared hostile and was cross-

examined by the learned APP. She denied having told police

the facts which were sustainably recorded in her statement

under Section 161 Cr. P.C.

14. With reference to the testimony of PW-2 and PW-5, it is

apparent that the appellants did not come together to assault

Rakesh. It is apparent that appellant Rajinder came to the

street. He was drunk at that point of time. He picked up a

quarrel with Rakesh. The reason for the quarrel was not any

personal enmity but the fact that the Rakesh was opposed to

the proposed matrimonial alliance of the Uma with a boy to

which other family members were agreeable to. It is apparent

that Rajinder was angry with Rakesh for opposing the marriage

of Uma with a boy who was to the liking of the rest of the

family members. Abuses between the two turned into a

scuffle. Their mother Sarla intervened. Probably, she was

slapped. At that point of time Surinder joined the fight which

was already taking place between Rajinder and Rakesh.

15. It is not clear from the testimony of the witness Surinder

came armed with a knife, for the reason two witnesses

deposed that he went back and returned with a knife in his

hand. Two witnesses did not state that Surinder went to his

house and returned with a knife.

16. All witnesses speak in harmony that when Rakesh

entered the house of Maya Devi and bolted the same from

inside Rajinder broke the door and he and Surinder went

inside. What happened inside is not deposed to by any

witness.

17. There is thus probability that either Surinder or Rajinder

picked up a knife inside the house of Maya Devi and inflicted

two incised injuries on the person of the deceased.

18. It assumes significance to note that when Rakesh

entered the house of Maya Devi followed soon thereafter by

Surinder and Rajinder, all other eye-witness continue to stand

on the street outside. The appellants who were 2 in number

could have, if they had desired to kill the deceased, inflicted as

many stab injuries as they desired. The fact that only two stab

injuries were inflicted and only one of them is on the vital part

of the body suggests that intention of the appellants was to

simply injure Rakesh and do no more.

19. It is settled law that if it is established that the accused

intended to cause the injuries which were actually inflicted and

if the injuries inflicted are opined to be sufficient in the

ordinary course of nature to cause death, whatever be the

intention, the act would be that of murder.

20. It is equally settled law that to attract the third part of

Section 300 IPC, Section 313 Cr.P.C. the prosecution must lead

evidence that the accused intended to cause the injuries which

were actually caused.

21. When incidents take place in night or in darkness and

witnesses did not speak with clarity with reference to the boy

part injured, Courts have been hesitant to hold that in said

cases Section 300 thirdly IPC. is attracted. The reason is

obvious. When it is dark it becomes difficult for anyone to

speak with certainty that the blow was directed on that part of

the body where it actually fell.

22. It assumes importance that Rajinder came in drunken

condition. He was unarmed. A verbal dual took place between

Rakesh and Rajinder. The verbal dual resulted into physical

fighting with each other. Surinder joined little later. Thus prior

meeting of the minds is completely ruled out.

23. Whatever happened; happened at the spur of the

moment.

24. Noting that the appellants had an opportunity to inflict

more than two injuries; noting that knife was used only twice;

nothing that the incident took place at around 11 PM in the

dark, we hold that the evidence on record probablizes the

commission of an offence punishable under Section 304 Part I

IPC and not to offence punishable under Section 302 IPC.

25. A perusal of the case law would show that unless

extremely aggravated circumstances are found for offence

punishable under Section 304 Part I IPC, the normal sentence

imposed is to undergo RI for 10 years.

26. We intend to make a departure in the peculiar facts of

the instant case. The reason for our departure is that the

appeals filed in the year 1997 are being disposed of after

nearly 13 years. Save and except the instant incident, the

appellants have no history of being involved in any other

offence. When admitted to bail, Rajinder had undergone an

actual sentence of 7 years and 11 months. He had earned

remission of sentence of 8 months and 11 days. If we impose

the sentence to undergo 10 years RI, Rajinder would have to

surrender and suffer a remaining sentence of about 1 year. As

regards Surinder, when admitted to bail he had suffered an

actual sentence of 7 years, 7 months and 19 days. He had

earned remission for a period of 7 years and 7 months and 3

days. If we impose the sentence to undergo RI for 10 years,

Surinder would have to suffer a remaining sentence of

approximately 14 months.

27. There is no evidence that after they were admitted to

bail the appellants have committed any other offence.

28. In our opinion ends of justice would be met if we direct

that the appellants shall undergo sentence for the period

already undergone.

29. The appeals are partially allowed. The conviction of the

appellants for the offence punishable under Section 302/34 IPC

is set aside. The appellants are convicted for the offence

punishable under Section304 Part I IPC, for which offence we

direct that the appellants shall undergo imprisonment for the

period they have already spent in jail.

30. In view of the sentence imposed upon the appellants, we

discharge the bail bond and surety bonds furnished by the

appellants.

PRADEEP NANDRAJOG, J

SURESH KAIT, J JANUARY 11, 2010 'mr'