Rajesh @ Rakesh vs The State
2011 Latest Caselaw 2157 Del

              THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment reserved on: 19.01.2011
                                      Judgment delivered on: 25.04.2011

+            CRL.A. 327/1997

Rajesh @ Rakesh                                                     ..... Appellant

                             versus

THE STATE                                                         ..... Respondent

Advocates who appeared in this case:

For the Appellant        : Ms. Ritu Gaba, Adv.

For the Respondent       : Ms. Richa Kapoor, Addl. Standing Counsel for the State.



CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE MANMOHAN SINGH

1. Whether Reporters of local papers may be allowed to see the judgment ? YES.

2.     To be referred to the Reporter or not ?                                  YES.
3.     Whether the judgment should be reported in Digest ?                      YES.

MANMOHAN SINGH, J

1. This appeal is directed against the judgment and order on sentence

dated 05.07.1997 and 07.07.1997, respectively, passed by the Court of

Additional Sessions Judge, Shahdara, Delhi, in case No. 21/96, FIR No.

39/84 P.S. Seelampur, Delhi whereby the appellant was convicted under

Section 302 read with Section 34 of Indian Penal Code and was sentenced to

rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, and in default

thereof, to undergo rigorous imprisonment for six months. The appellant was

also convicted under Section 323 read with Section 34 IPC and ordered to

pay a fine of Rs. 500/- and in default of payment of fine to undergo rigorous

imprisonment for one month and was also convicted under Section 27 of the

Arms Act, 1959 and was sentenced to undergo rigorous imprisonment for

three years and to pay a fine of Rs. 500/- and in default thereof to undergo

rigorous imprisonment for one month.

2. If we synchronize the prosecution evidence and the story, the

following chronology of events emerges:-

a. That on 04.02.1984 at about 11:30 a.m./ 12:00 p.m. when PW-2

Kewal Krishan and the deceased Naresh Kumar were at the

„Akhara‟ across the Railway Line, Kailash Nagar, the appellant

along with Om Pal @ Baboo, Bijender and Kirpal went there

and demanded Rs. 25/- from PW-2 Kewal Krishan and the

deceased for liquor. On being refused they left the Akhara

saying they would see them. The deceased and PW-2 Kewal

Krishan also left for their houses.

b. Later in the day, at about 3-3:30 p.m., the deceased and PW-2

Kewal Krishan went to Om Pal‟s house to complain about him

to his father, but Om Pal‟s father told them that he had already

turned him out of the house.

c. When PW-2 Kewal Krishan and the deceased were returning

home via Railway Line near Shastri Park, Kirpal met them and

he called the appellant, Bijender and Om Pal saying that they

wanted to talk to PW-2 and the deceased. When Kirpal returned

there with the said three persons, all of them were armed with

lathis (dandas).

d. Om Pal exhorted his companions to teach the deceased and PW-

2 Kewal Krishan, a lesson for complaining against them.

e. The appellant and Bijender started beating PW-2 Kewal Krishan

and the deceased with dandas and thereafter, Om Pal caught the

deceased and the appellant stabbed the deceased in his abdomen

and his back and he died on the spot.

f. PW-2 Kewal Krishan ran from the spot as Kirpal and Bijender

were shouting that they would not let anyone rescue the

deceased. Thereafter, appellant and all the other accused persons

fled away.

g. PW-2 Kewal Krishan who had suffered injuries walked back to

the spot where a patrolling police party had already reached.

h. The date and hour of the discovery of the death was recorded as

04.02.1984 at 4.25 p.m. The dead body of Naresh Kumar S/o

Sh. Dhani Ram was identified by Jagdish Prasad Gupta as that

of the younger brother of his son-in-law on the same date.

i. In the ruqqa Ex. PW1/A, the statement of eye witness PW-2

Kewal Krishan was recorded by PW-13, S.I. S.K. Rathi of

Police Station Seelampur, Delhi, who sent the ruqqa to PW-1

ASI Suraj Bhan. Thereafter, an FIR No.39/1984 was registered

against the appellant and against three accused persons.

3. After the investigation challan was filed under Section 302

readwith Section 34 of the IPC against Om Pal @ Baboo, appellant Rakesh

@ Rajesh and Bijender. Another charge under Section 27 of the Arms Act,

1959, was filed against the appellant Rakesh. A separate challan was filed

against Kirpal in the children‟s Court, as he was under age at that time. The

accused persons pleaded not guilty and claimed trial.

4. Subsequently the Learned ASJ by his order dated 11.09.1985 sent

Bijender also to the children‟s jail. Thus the trial continued only against the

appellant and Om Pal.

5. The appellant in his statement recorded under Section 313 Cr.P.C.

stated that he was falsely implicated by the police and neither he committed

any murder nor gave beatings to any person. However, he did not adduce

any evidence in his defence. After examination of the prosecution witnesses

the trial court held the prosecution case fully established from the evidence of

injured eye witness PW-2 and accordingly, convicted the appellant and the

other accused Om Pal under Section 302 IPC read with Section 34 IPC. The

appellants were also convicted under Section 323 read with Section 34 IPC

and the appellant Rakesh was also convicted under Section 27 of the Arms

Act, 1959.

6. The appellant, being aggrieved by the said judgment dated

05.07.1997 and order on sentence dated 07.07.1997, filed the present appeal.

Similarly, Om Pal, the co-convict also challenged the same by preferring the

separate appeal being Crl. A. No. 289/1997. However, during the pendency

of his appeal he passed away and his appeal was disposed of in view thereof.

7. The learned counsel for the appellant did not dispute before us the

fact that the deceased Naresh Kumar had met with a homicidal death. This

fact is even otherwise duly established from the postmortem report of the

deceased which was conducted on 05.02.1984 by PW-8 Dr. L.T. Ramani,

Civil Hospital, Delhi, which establishes the nature and time of death. In his

report, it is stated that all injuries were ante-mortem and injury nos. 1 and 11

were caused by sharp edged weapon and all other injuries were caused by

blunt weapon. Injury no.11 was sufficient in the ordinary course to cause

death. The report Ex. PW-8/A was prepared in his own handwriting and it

bears his signature. The death was due to haemorrhagic shock. These

observations leave no doubt that nature of death was homicidal.

8. PW-10 SI Subash Chand, who was posted at Police Station

Seelampur as constable on that date, identified the appellant Rajesh @

Rakesh in the court. He deposed that during interrogation, accused Rajesh @

Rakesh made a disclosure statement, which was recorded by SI and the same

is Ex.PW2/B which also bears his signatures. The appellant and other

accused led the Police Party to the Railway Lines, on the front side of

Gurudwara, New Seelampur, where the appellant pointed out the place as

being the scene of occurrence. The pointing out memo is Ex.PW-10/A.

Thereafter, the appellant led the Police party to his house No.4233, Ajit

Nagar, and got recovered one shirt, which was hanging on a „Khunti‟ in the

front room of his house. He also got recovered a „knife‟ and a „danda‟ from

the same room. The shirt Ex.P2 had blood stains on it. The „knife‟ Ex. P1

and one „danda‟/stick Ex.P3 also had blood stains on them.

9. PW-3 Dr. V.K. Goel, Senior Scientific Officer, CFSL, New Delhi,

carried out blood examination and prepared his reports and has proved the

same as Ex.PW-3/A and PW-3/B. PW-4 Sh. C.K. Jain, Sr. Scientific Officer,

Physics CFSL, was also examined and he deposed that on 22.02.1984, he

received two sealed parcels through biology division, sealed with the seal of

biology division, which were deposited with him in the Malkhana wherefrom

these were sent to CFSL. As per the report, blood was detected on Ex. P-1

Knife, Ex.P-2 Shirt and Ex. P-3 danda/stick recovered from the appellant.

10. PW-13 Inspector S.K. Rathi, Investigating Officer of the case, had

deposed that on 04.02.1984 he was posted at Police Station Seelampur as S.I.

and at about 4 to 4:30 p.m., he and constable Roshan Lal went to Railway

Lines, New Seelampur, on patrolling duty. They saw some persons standing

on the Railway Lines and when they went there, they found that one dead

body of a person, whose name was later on revealed as Naresh Kumar, was

lying near Railway Lines. He further deposed that PW-2 Kewal Krishan was

also present in that crowd. On inquiry, he gave him the detail of incident and

he recorded his statement and after making his endorsement, he sent the same

to the Police Station through Constable Roshan Lal and then initiated

proceedings of inquest and prepared the inquest report Ex.PW-13/A which

was in his handwriting and bears his signature. He also recorded the

statements of Jagdish Prasad and Kailash Chander as Ex.PW13/B and

Ex.PW-13/C, respectively. He further deposed that PW-2 Kewal Krishan

was in an injured condition and was sent for medical examination. The body

of Naresh Kumar was sent to Subzi Mandi mortuary through Constable

Roshan Lal and Kashmira Singh. PW-14 Satbir Singh, Record Clerk, Civil

Hospital, Delhi, was also examined by the prosecution who proved the MLC

Ex.PW-14/A relating to the medical examination of injured eye-witness PW-2

Kewal Krishan.

11. We have heard the learned counsel for the appellant and the

learned additional public prosecutor for the State and have also gone through

the evidence of material witnesses examined by the prosecution.

12. The learned counsel for the appellant, during the course of hearing

of the appeal, has pointed out few contradictions in the testimony of eye

witness PW-2 and in the statements of the recovery witnesses. It is further

submitted on behalf of the learned counsel for the appellant that the testimony

of PW-2 be rejected as his statement has not been supported by the other eye-

witness PW-12 Bal Krishan who did not support the prosecution case.

Therefore, the present appeal is liable to be allowed.

13. The first contradiction referred by the learned counsel for the

appellant is that the testimony of PW-2 Kewal Krishan is not trustworthy and

cannot be relied upon as, in his examination-in-chief, he deposed that he ran

away from the spot but came back when the accused persons had fled away

from there and thereafter Police Party came there and he informed

accordingly about the incident and made a statement to the Police who

prepared the ruqqa and sent the same to the Police Station at 6 p.m. on

04.02.1984 but in his cross-examination he deposed that after the incident he

had left the spot and had come to his house wherefrom he went to a private

doctor and then again came back to house when he was informed by his

family members about the death of deceased Naresh Kumar. Thereafter he

went to the Police Station and made a statement to the Police about 7-8 p.m.

and by that time the ruqqa had already been received in the Police Station.

Therefore, it was not proved beyond doubt as to whether he was personally

present when the ruqqa was prepared at the spot or not. Thus, his testimony

cannot be believed.

14. The ruqqa in the present case was prepared and the same was sent

to the Police Station prior to 6 p.m. on the same day when the incident took

place. Thus, it confirms that PW-2 Kewal Krishan was definitely present at

the spot at the time when Police Party arrived there. His statement was

recorded at the spot which also corroborates the version of the incident with

the statement of Bal Kishan Ex. PW-12/A. We find no force in the

submission of the learned counsel for the appellant and are in agreement with

the finding of the trial court on this aspect that the said discrepancy has

occurred due to the reason that cross-examination of PW-2 was conducted

after a gap of thirteen years from the date of incident, therefore, he was

unable to retain in his mind the details of sequence after such a long period.

The ruqqa was prepared after recording his statement which also bears his

signature.

15. No doubt, PW-2 gave a slightly deviated version about the

knowledge of the death of the deceased since a time period of about thirteen

years had elapsed when his cross-examination was recorded and it is very

difficult to keep in mind all minor details of the incident. However, he did not

forget the main incident even after the expiry of thirteen years as in the

statement made in the ruqqa on 04.02.1984 as well as before the Court he

stated that the appellant took out a knife from the right pocket of his pant and

inflicted a knife blow to the deceased Naresh Kumar.

16. It is settled law that discrepancies do creep in when a witness

deposes in a natural manner after a lapse of some time and when the

discrepancies are comparatively of a minor nature and do not go to the root of

the prosecution story then the same may not be given undue importance. In

the present case, PW-2, who is the eye-witness, despite of a long gap did not

forget the scene of crime that the appellant took out a knife from the right

pocket of his pant and inflicted a knife blow in the abdomen towards right

side of the deceased Naresh Kumar and inflicted another knife blow in the

waist of the deceased, as a result of which the deceased fell down. The

contradictions pointed out by the learned counsel for the appellant are

insignificant and no benefit can be given to the defence if the main incident

was remembered by the eye-witness which would go the root of the case.

17. As already stated by us, and after considering the facts in the

matter, we are of the view that these contradictions are not very material as

PW-2, the eye-witness, has supported the case of the prosecution and has

stated that the appellant has given two knife blows to the deceased Naresh

Kumar coupled with the evidence of PW-8 Dr. L.T. Ramani who conducted

the post-mortem examination on the body of the deceased Naresh Kumar.

PW-8 opined that the injuries nos. 1 and 11 have been caused by sharp edged

weapon and injury no.11 was sufficient in the ordinary course of nature to

cause the death of a person.

18. We feel, that the contradictions referred to by the counsel for the

appellant are not very material, thus no undue importance can be given to the

minor contradictions as the main incident was remembered by the eye witness

which goes to the root of the prosecution case.

19. The next reason, put forth by the learned counsel for the appellant,

for rejecting the prosecution case was that the prosecution had sought to rely

upon the recovery of the weapon of offence that is the Knife, Ex. P-1, blood

stained shirt Ex.P-2 and danda/stick Ex. P-3 but there are many contradictions

and discrepancies in the statement of recovery witnesses. Further no efforts

whatsoever were made by the Investigating Officer to make the public

witnesses from the neighborhood of the accused persons join the proceedings.

According to the learned counsel for the appellant, in fact, nothing was

recovered from the possession of the appellant and all the recoveries were

manipulated and proceedings in this regard were fabricated in the Police

Station and forged documents were prepared as even in normal course,

nobody would keep the blood stained articles and weapon of offence with

him for so many days, as the date of incident was 04.02.1984 and the alleged

recovery was made on 08.02.1984.

20. The appellant in the present case, was arrested on 08.02.1984 and

the recovery was made on the same day. The recovery memos were duly

signed by the appellant. There were apparently few contradictions in the

evidence of the recovery witnesses. However, the fact of the matter is that

the evidence of PW-10 was recorded after the expiry of more than thirteen

years. Therefore, we agree with the finding of the trial court that it is very

difficult to keep in mind all the minor details after a lapse of such a long

period. We are of the view, that in any event, non-recovery of any

incriminating material from an accused cannot be taken as a ground to

exonerate the accused when his participation in the crime is unfolded in the

ocular account of the occurrence given by the witnesses whose evidence is

found to be unimpeachable.

21. Considering the overall facts and circumstances of the matter, as

also the long gap for recording the evidence of the witnesses, we cannot

accept the contentions of the learned counsel for the appellant on these

contradictions.

22. The next submission of the learned counsel for the appellant is that

the date of incident is 04.02.1984 and the Police did not initiate any action

against any of the accused persons before 08.02.1984 and the benefit of this

gap be given to the accused persons as it creates suspicion. We feel, that this

argument has no force as the accused persons except Om Pal were arrested

on 08.02.1984 since the Police carried out search for the accused persons and

could not lay its hand on them before 08.02.1984 and, therefore, no arrest of

the accused persons were made prior to the said date. Therefore, it does not

become a plus point in favour of the defence. Merely because the arrest of

accused persons took place after a couple of days, would not give any benefit

to the defence. Thus, the said submission of the appellant is also rejected.

23. The last submission of the learned counsel for the appellant is that

in any event, the present case does not fall within Section 302 of the IPC but

the same would fall under the Exception IV to Section 300 of the IPC and the

appellant be given benefit of Section 304 of the IPC as there was no motive

on the part of the appellant to kill the deceased. Even as per the prosecution

the appellant and other accused persons had taken lathis and alleged lalkara

was given by Om Pal was to teach the deceased and PW-2 a lesson and, in

fact, it was a fight which was free for all. Further, there was no plan of

anybody to kill anyone and the appellant had no animosity with the deceased.

The incident took place because of sudden altercation and the present case is

not such in which it can be said that the appellant had inflicted injuries on the

deceased with the intention to kill him or he had the intention to cause such

bodily injuries to the deceased which would be sufficient to cause death in the

ordinary course of nature and, therefore, the case is covered under Exception

IV to Section 300 of the Indian Penal Code.

24. To invoke the Exception IV of Section 300 IPC, four requirements

must be satisfied by the accused; he must show that (i) there was a sudden

fight; (ii) there was no premeditation on the part of the accused; (iii) the act of

the accused resulting in the death of the victim was done in the heat of

passion; and (iv) the assailant should not have taken any undue advantage of

the situation and should not have acted in a cruel manner. Unless all these

requirements are fulfilled an accused cannot get the benefit of exception IV to

Section 300 IPC.

25. In order to consider the contention of learned counsel for the

appellant, it would be fruitful to have a look at the law relating to culpable

homicide. The distinction between two types of culpable homicide that is,

murder and culpable homicide not amounting to murder has been analysed by

the Supreme Court in leading case titled as State of A.P. v. Rayavarappu

Punnayya: AIR 1977 SC 45. The relevant portion of the judgment is

reproduced as under:

"In the scheme of the Penal Code, „culpable homicide‟ is genus and „murder‟ its specie. All „murder‟ is „culpable homicide‟ but not vice-versa. Speaking generally, „culpable homicide‟ sans „special characteristics of murder‟, is „culpable homicide not amounting to murder‟. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the code practically recognizes three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in Section 300 as „murder‟. The second may be termed as „culpable homicide‟ of the second degree‟. This is punishable under the 1st part of Section 304. Then, there is „culpable homicide of the third degree‟. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304."

26. In Virsa Singh v. The State of Punjab: AIR 1958 SC 465, the

Supreme Court, after a detailed analyses of the provisions of Section 299 and

300 of the Indian Penal Code, held that:

"The prosecution must prove the following facts before it can bring a case under Section 300, 3rdly‟. First, it must establish, quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of

nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

Thus according to the law laid down in Virsa Singh's case (supra)

even if the intention of accused was limited to the infliction of a bodily injury

sufficient to cause death in the ordinary course of nature and did not extend to

the intention of causing death, the offence would be murder. Illustration (c)

appended to Section 300 clearly brings out this point.

27. Let us now examine the present case in the light of

abovementioned settled law. The incident in the present case occurred on

04.02.1984 at about 11.30 a.m. / 12 noon when PW-2 Kewal krishan and the

deceased were sitting in the Akhara. The relevant extract of the statement of

PW-2 Kewal Krishan reads as under:

"At about 3 or 3.30 P.M. I & Naresh went to the house of accused Ompal to make a complaint to his father. His father told us that they had already turned Om Pal out of the house. When we were returning home via the railway lines, near Shastri Park, Kirpal met us and called accused OmPal, Rakesh & Bajinder Saying us that they would talk to us. All the three accused came with Kirpal. All the four were armed with sticks (dandas). Accused OmPal then exhorted his companions to teach us a lesson for complaining against him. Then accused Rakesh & Bajinder gave me beating with sticks. I received injuries on my left hand and head. Accused Om Pal and Kirpal gave danda blows to Naresh on his legs and hands. Then Om Pal caught hold of Naresh and Rakesh accused stabbed Naresh in his abdomen and on his back. Then I ran away from the spot. Kirpal & Bajinder armed with dandas were shouting that they would not allow any one to rescue Naresh. All the four accused then ran away, slowly I walked to the spot near the railway lines (between two railway tracks). I found Naresh was already dead. Police reached there. I had

given my statement EX. PW1/A which is signed by me at point A."

28. PW-12 Bal Krishan, another eye witness, did not support the

prosecution case. His evidence was discarded by the Trial Court. In his

testimony, he had stated that he did see some persons near railway lines

grappling with each other having dandas and lathis with them. Though his

evidence confirmed the happening of the incident. He was cross-examined

by the APP on the ground of suppressing the truth. In his cross examinatioin,

he denied his earlier statement Ex. PW 12/A recorded before the police. He

stated that the police had not recorded his statement as per his narration and

the same was not read over after recording the same.

29. It is well settled, that the question with regard to the nature of

offence has to be determined on the facts and in the circumstances of each

case. The nature of the injury, whether it is on the vital or non-vital part of

the body, the weapon used, the circumstances in which the injury is caused

and the manner in which the injury is inflicted are all relevant factors which

may go to determine the required intention or knowledge of the offender and

the offence committed by him.

30. In the present caese, the prosecution has adduced evidence of

PW-8, Dr. L.T. Ramani who opined that injuries (external) Nos. 1 and 11

have been sufficient to cause death, the same reads as under:

1. An incised stabbed wound spindal shape placed/wound on the left side front of chest; 10 cm below the nipple. Size of the injury was 1.5 cm x 1 cm. Depth to be ascertained. Margins were regular.

11. Incise stab wound 2.5 cm X 1.5 cm obliquely placed in the right side back of the chest. Margins were regular and both ends were equally tapered.

31. The weapon of offence is pocket button knife, as per the seizure

memo Ex. PW-2/D, the length of the blade is 10.5 cms., length of handle is

13.5 cms. and the total length of the knife is 24 cms.

32. The prosecution has relied upon the weapon of offence i.e. knife

Ex.P-1, the blood stained shirt of the accsued Ex. P-2, which he was wearing

at the time of commission of offence, and the danda Ex. P-3 recovered from

the house of the appellant. However, there was no reaction on the grouping of

the blood which had been detected on Ex.P-1, P-2 and P-3.

33. Om Pal, one of the accused and the appellant left the „Akhara‟ by

saying that they would see them. The prosecution has not placed any material

on record with regard to any previous grudge or any enmity, pre-planning by

the appellant pre-meditation or motive in causing death of deceased Naresh.

In fact, it has not come on record that the deceased and the appellant were

even known to each other before this incident took place. It was unfortunate

that a life has been lost. The origin of blood found on the knife, shirt and

danda could not be ascertained. Though, it has come in evidence that the

appellant was carrying a knife with him and he was responsible for causing

bodily injury to the deceased which is sufficient in the ordinary course of

nature to cause death but with no intention of causing death.

34. It cannot be laid down that whenever death occurs, Section 302

IPC is attracted. Each case would depend upon its own facts, the weapon

used, the size of it, the force with which the blow was given as also the part

of the body where it was given. In this case what has been elicited in the

testimony of the eye-witness is that the initial dispute had arisen when all the

accused went to Akhara and the appellant demanded Rs. 25/- from PW-2 and

the deceased for liquor and they refused.

35. In Krishna Tiwary and Anr. v. State of Bihar : AIR 2001 SC

2410 where the accused inflicted knife blows in the heat of passion without

any premeditation and without any intention that he would cause that injury,

his case was covered within Exception 4 to Section 300 IPC and he was

convicted by the Supreme Court under Section 304 IPC.

In Prakash Chand v. State of H.P. : 2004 (11) SCC 381, there

was a quarrel between the deceased and the accused when the dogs of the

accused entered the kitchen of the deceased. Consequent to the verbal

altercation that ensued, the accused went to his room, took out his gun and

fired a gun shot at the deceased, as a result of which pellets of the gun shot

pierced the chest of the deceased, resulting in his death. It was held by the

Supreme Court that proper conviction of the accused would be under Section

304 Part I of IPC and not under Section 302 thereof.

In Posuram Deshmukh v. State of Chhatisgarh : AIR 2009 SC

2482, the deceased had blocked the water course to the field of the accused

and he refused to remove the blockade despite request from the accused and

some altercation took place between them. The accused persons, one of

whom was carrying a square iron plate fitted at the one end of a stick and the

other who was carrying lathi attacked the deceased with the weapons they

were carrying, causing his death. It was held by the Supreme Court that

appropriate conviction of the appellant/accused would be under Section 304

Part I of IPC.

In Shaikh Azim v. State of Maharashtra : 2008 (11) SCC 695,

the deceased and his son were present at their house along with other family

members. They noticed some filth thrown in the backyard of their house from

the side of the house of the accused and expressed their displeasure in this

regard. The family members of the accsued also abused them. One of the

accused holding a stick, the other holding an iron rod and the third accused

holding a stick, came out of their house and gave blows on the head of the

deceased. When his son rushed to his rescue, the accused also gave injuries

to him with iron rod and sticks. The deceased succumbed to the injuries

caused to him. It was held that the appropriate coviction of the

appellant/accused would be under Section 304 Part I of IPC.

In Sekar v. State: 2002 (8) SCC 354, there was exchange of hot

words between the deceased and accused on release of a sheep which was

destroying the crops of the deceased. The accused and others got the sheep

untied which led to exchange of hot words between the parties. When the

deceased fell down after the accsued had given injuries on his head and left

shoulder, the accsued again inflicted another blow on his neck. It was held

that the case was covered by Exception IV to Section 300 of IPC.

In Surinder Kumar v. Union Territory, Chandigarh: AIR 1989

SC 1094, there was a heated argument between the parties followed by

uttering of filthy abuses. The appellant/accused got enraged, picked up a

knife from the kitchen and gave one blow on the neck of the witness and

three knife blows, one on the shoulder, the second on the elbow and the third

on the chest of the deceased. The Supreme Court convicted the appellant

under Section 304 of IPC.

36. We feel that, in the present case, the weapon of offence does not

strictly qualify as a weapon of offence, as actually it was a pocket knife

which was presumably in the pocket of the appellant. If the appellant had the

intention at the initial stage to commit the murder of the deceased, then, why

he would have first inflicted danda blows to the eye-witness rather, he would

have given the knife blows to the deceased straight away, thus it appears that

the stabbing have taken place out of heat of passion or grappling with each

other. The trial court ought not to have wholly discarded the evidence of

PW-12 hostile witness. From the evidence on record, it cannot be said that

the appellant had the intention to cause the death or such bodily injury to

the deceased which was sufficient in the ordinary course of nature to cause

death of the deceased.

37. In the facts and circumstances of the case, we are of the view that

there was no premeditation or preplanning, there was no previous enmity

between the deceased and the appellant, the appellant had no motive to

commit murder of the deceased and the injuries were caused to the deceased

during the course of grappling and in a heat of passion on a very small issue

involving only Twenty Five Rupees, the case is clearly covered under

Exception IV to Section 300 of IPC. We accordingly alter the conviction of

the appellant from Section 302 to 304 Part II of IPC.

38. In the result, we set aside the conviction of the accused made

under Section 302 IPC. We find the accused guilty of the offence punishable

under Section 304 IPC as well as under Section 27 of the Arms Act.

39. After verifying from the record, it appears that the appellant has

already spent more than eight years and five months in jail excluding the

remission earned by him during the period when he was in jail. Further, the

appellant was just above 18 years of age on the date of incident which

occurred more than 27 years ago. One of the accused, Om Pal passed away

during the pendency of his appeal. The other two accused Kirpal and

Bijender were tried by the juvenile court in the year 1985. In view of the

background of the present case and taking into consideration all the facts and

circumstances of the case, we alter the sentence to the period already

undergone by the accused / appellant. The punishment of fine also stands set

aside. He is already on bail. The bail bonds stand cancelled and the sureties

are discharged.

40. The appeal stands partly allowed accordingly.

MANMOHAN SINGH, J

BADAR DURREZ AHMED, J APRIL 25, 2011 dp