Satbir vs State
2011 Latest Caselaw 2222 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                             PRONOUNCED ON:27.04.2011
                                     CRL.A.116/1998
       SATBIR                                                  ...... APPELLANT
                      Through : Mr. K.B. Andley, Sr. Advocate with Mr. M.L. Yadav,
                                Advocates
                                            VS.

       STATE                                                  ....... RESPONDENT

Through : Mr. Lovkesh Sawhney, APP for the State.

CORAM:

MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE G.P. MITTAL

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

2.     To be referred to Reporter or not?          YES

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

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

%

1. In this appeal, the judgment and decree of learned Addl. Sessions Judge dated 23.02.1998 in the case arising out of FIR No. 393/1994, Police Station Dabri, has been challenged. The appellant was convicted for having committed offence punishable under Section 302 IPC, and sentenced to undergo life imprisonment.

2. The prosecution allegations were that on a strip of land near the Pankha Road pavement between a "patri" and the "nala" (the drain), by the side of the road, buffaloes used to be tethered and cow dung was being prepared by the accused, including the appellant as well as the complainant Dhanpati, and her other family members. It is alleged that on 01.11.1994, Dhanpati went to prepare cow dung cakes at 10.00 am when she saw Satbir, Ranbir and Jailal. All of them were armed with a lath. Dhanpati was given a lath blow on the head by Satbir. When she cried

Crl.A.116/1998 Page 1 aloud, Moola Ram, her father-in-law rushed to save her. Jailal, the co-accused then caught hold of him. The appellant gave Moola Ram a blow on the head. Dhanpati's brother-in-law, Sher Singh had, by then, reached there. He too was beaten by Satbir and Ranbir. Sher Singh received injuries on his head. Dhanpati's husband, Jagdish too reached there and was given lath blows. The prosecution had also divulged that one day prior to the incident, i.e. on 31.10.1994, Satbir's wife had insisted that she would tether her buffalos at the spot where Dhanpati used to prepare cow dung cakes, which led to quarrel between the two of them. The police registered the First Information Report (FIR) and conducted investigation after which the accused were charged with having committed offences under Section 302 IPC. They all denied the charges and claimed trial. The prosecution relied upon the testimonies of 13 witnesses and also produced several exhibits in support of this case. Upon consideration of the materials and evidence, the Trial Court acquitted the co-accused but convicted the present appellant Satbir.

3. Learned senior counsel for the appellant, Sh. K.B. Andlay argued that at the outset, the essential facts, such as the quarrel, the attack and the nature of injuries inflicted upon the complainant party, and received by the accused were not in dispute. He stated that the facts were not in dispute and the appellant would be arguing for alteration of the conviction to one under Section 304. In order to substantiate his argument, the appellant's counsel relied upon the following findings:

"XXXXXX XXXXXX XXXXXX

The submissions of the State before me is that even accused Jailal is liable for an offence U/S 302 IPC as accused Jailal facilitated for the commission of crime of murder by accused Satbir. As per the FIR, accused Jailal is not possessed with lath. Accused Jailal has not participated in causing injuries on the person of Sher Singh. There is nothing to suggest in the testimony of either of the witness and particularly of PW Dhanpati that the accused expressed any intention to cause the death of deceased Moola Ram. There is nothing to suggest that accused Jailal by expressed words or otherwise intended that the death of Moola Ram be caused. The question is, if accused Jailal caught hold of Moola Ram in order to facilitate the injuries by accused Satbir. Admittedly, a quarrel had taken place between the two groups. Injuries have been caused one after the other. Accused Jailal was a man of aged 65 years, while deceased Moola Ram was an aged man of 85 years. The possibility cannot be ruled out that Jailal intervened in the matter to separate the two groups so that crime may not be there. The possibility would also be that Jailal facilitated in the crime by the accused Satbir. The basic fundamental principle of criminal jursprence is that when two views are

Crl.A.116/1998 Page 2 possible then one which favors the accused should be accepted by the court. The principle of beyond reasonable doubt, also directs that if there is doubt with regard to the role of the accused Jailal, the accused Jailal should not be held responsible for the commission of crime which has been committed by his co- accused Satbir. This aspect of the matter leads me that merely because the witnesses deposed that accused Jailal caught hold of deceased Moola Ram will not load me to hold that accused Jailal had intention to commit the crime of murder.

In view of the above findings, the result comes to this that a fight took place on account of the occupation of the land of the Government attached at Pankha Road which at the relevant time was used by the complainant party for preparation of the cow-dung cakes and accused claimed to use the same for tethering the buffaloes and in this quarrel accused Satbir caused injuries on the person of Dhanpati which have been held by the doctor to be simple caused by blunt object, injury on the person of Moola Ram which resulted in the death of Moola Ram which injury was sufficient in the ordinary course of nature to cause death. Accused Satbir also caused injuries on the person of Sher Singh on his scalp and back along with the accused Ranbir, which injury was held by the doctor to be simple caused by the blunt object. Accused Ranbir did not participate in the matter of causing injuries on the person of Moola Ram, deceased. In absence of any express word or other circumstances leading to the inference of common intention on his part, accused Ranbir cannot be held to responsible for the death of Moola Ram. The results comes to this that accused Ranbir is held guilty for the offence of causing simple injuries and n the person of Sher Singh under Section 323 IPC. Accused Jailal gets acquittal. Accused Satbir is liable for causing injury on the person of Dhanpati U/S 323 IPC, on the person of Sher Singh U/S 323 IPC and on the person of Moola Ram deceased U/S 302 IPC.

XXXXXX XXXXXX XXXXXX"

4. It is contended that the facts, as found, further disclosed that the incident was not a pre- planned attack but a fight between two contesting parties. In the course of that fight, some of the accused also received injuries, as was apparent from the Medico Legal Reports and Certificates produced during the trial. These were in fact given credence by the Trial Court, while concluding that two co-accused were not guilty, and thereby resulting in their acquittal.

5. Having regard to these circumstances, and the previous day quarrel, which concededly took place between Dhanpati and Satbir's wife, it could not be said that the injury received by the deceased Moola Ram was the result of a pre-meditated or calculated attack or the consequence of a blow which was intended to kill him. Learned counsel submitted that having regard to the authorities, the present case does not warrant a conviction under Section 302 IPC.

Crl.A.116/1998 Page 3

6. Learned APP argued that the findings of the Trial Court are ought not to be interfered with. He submitted that having regard to the location of the injury and its consequence, the case falls under Section 300(2) IPC read with the Illustration (c).

7. Since the appellant is not disputing the surrounding circumstances but is confining the appellate challenge to only the finding regarding conviction under Section 302, it would be essential to recapitulate the finding as regards the nature of the injury. The Trial Court held on this aspect as follows:-

"XXXXXX XXXXXX XXXXXX .................As far as the complainant party is concerned, Moola Ram, deceased had received as per medical report of Dr. Barua depressed facture of 4" in length and two inches in width, radiating to front and ocipital region of scalp. The brain underneath the fractured area was found to be contused. The injuries were also noted by Dr. Yudhvir Singh in the MLC Ex. PW6/A. Dr. Yudhvir Singh also noted would on the scalp (clear) lacerated, parital region, measuring 5.5 cms x 3 cms pieces of bone were also present. Peribital swelling on the left side and abrasion on the right leg enterierly. On the person of Sher Singh clean lacerated wound on the scalp right parital region 3 cms along with bruise on the back 20 cms x 1 cms. This was disclosed in the MLC Ex. PW6/8. On the person of Dhanpati w/o Jagdish a clean lacerated wound on the scalp parital region 5 cms long and a clean lacerated wound on the scalp accipital region 5 cms long and a clean lacerated wound on the right infroorbital area 1 cms long were noted. On the other hand the injury on the person of accused are as follows: as per exhibits PW11/A and Ex. PW13/3. The injury on the person of Ranbir is superficial CLW below the right little toe and injury on the person of Jailal, deceased is CLW measuring 1 inches over the temporial region of scalp, bleeding etc. From the injury, it would be seen that there are scalp injury on the three persons namely Dhanpati, Moola Ram and Sher Singh. While on the side of the accused there is only one CLW measuring 1 inches on the temporal region on the scalp of accused Jailal.

XXXXXX XXXXXX XXXXXX"

8. This Court has already noticed the findings of the Trial Court as regards the quarrel, which erupted between the two parties, i.e. the complainants and the accused over the patch of land on which cow dung cakes used to be prepared and kept. In Smt. Sandhya Jadhav v. State of Maharashtra (2006) 4 SCC 653, the Court held as under:

               "XXXXXX                        XXXXXX                       XXXXXX



Crl.A.116/1998                                                                               Page 4

9. 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 acted 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.

XXXXXX XXXXXX XXXXXX"

9. The aforesaid aspects have been highlighted in Sridhar Bhuyan v. State of Orissa 2004 Crl. LJ 3875; Parkash Chand v. State of H.P. 2004 (11) SCC 381 and Sachchey Lal Tiwari v. State of Uttar Pradesh 2004 Crl. L.J. 4660. In Balbir Singh v. State of Punjab 1995 Supp. (3) SCC 472, the Court held that:

Crl.A.116/1998                                                                                 Page 5
                 "XXXXXX                        XXXXXX                         XXXXXX

6. It was next contended that in any case it was not proper to convict the appellant under Section 302 IPC. The contention deserves to be accepted. This was not a case of premeditation as the accused and the deceased met by chance and the appellant had given only one blow. The evidence regarding raising of a lalkara by the other accused has not been believed by the trial court. On the basis of the evidence led in this case it is not possible to say with certainty under which circumstances the appellant gave a kirpan blow to Amrik Singh. No attempt was made by him to give another blow. The injury caused on the head of Amrik Singh does not appear to have been caused intentionally. Therefore, in view of the facts and circumstances of this case we are of the opinion that the lower court committed an error in convicting the appellant under Section 302. He should have been convicted under Section 304 Part I. Therefore, we alter the conviction of the appellant from Section 302 IPC to Section 304 Part I IPC. The sentence of RI for life is set aside and instead he is ordered to suffer RI for 10 years. This appeal is allowed to the aforesaid extent. As the appellant has been released on bail he is ordered to surrender to his bail bond, so as to serve out the sentence imposed upon him.

XXXXXX XXXXXX XXXXXX"

10. In the case titled as Jeet Singh v. State of Haryana 2005 (11) SCC 597, the Court held as under:

"XXXXXX XXXXXX XXXXXX It is pointed out that there was no previous quarrel or enmity between the appellant and the deceased and the quarrel had suddenly taken place due to the fact that the deceased Bawa Singh drove the tractor through his field and the sudden quarrel ensued because of the conduct of the deceased. It is also pointed out that the appellant was having a weapon with him and he gave only one blow which unfortunately had resulted in the death of the deceased. It is contended by the appellant‟s counsel that the offence would come within the ambit of Section 304 Part I IPC. It is true that there is only one fatal injury on the head of the deceased. The appellant must have inflicted a blow on the head of the deceased because of the quarrel between the two. The appellant certainly would have knowledge that his act would result in the death of the deceased. Hence, the offence comes under the purview of Section 304 Part I of the Indian Penal Code and hence we set aside the conviction of the appellant for the offence under Section 302 IPC and hold him guilty of the offence under Section 304 Part I IPC and sentence him to undergo imprisonment for a period of 8 years. The appeal is disposed of as above.

         XXXXXX                        XXXXXX                         XXXXXX"



Crl.A.116/1998                                                                                   Page 6

11. The above decisions, in this Court's opinion, are apt to guide this Court for a correct determination as to whether the nature of injuries in this case would justifiably be covered by the offence under Section 302 or 304. The weapon of offence was not a deadly one but a "lath", about 2 ½ feet long. Furthermore, the complainant and the accused parties had an altercation the previous day and were apparently prepared to fight each other - as can be seen by the Trial Court findings which clearly noticed injuries on some of the accused and held that they could not be convicted.

12. Having regard to these facts, this Court is of the opinion that the circumstances of the case warrant an alteration of the conviction from one under Section 302 to Section 304 Part-I. The record would indicate that the appellant has already undergone a sentence for 6 years and 9 months. Having regard to these facts, the appeal has to succeed partly. Accordingly, the conviction of the appellant is altered to one under Section 304 (Part-I) IPC, and his sentence is reduced to the period undergone by him. The appeal is allowed in the above terms.

                                                            (S.RAVINDRA BHAT)
                                                                            JUDGE




27th APRIL, 2011                                                       (G.P. MITTAL)

                                                                            JUDGE




Crl.A.116/1998                                                                              Page 7