Chiranji Lal vs State
2011 Latest Caselaw 6295 Del

       THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment delivered on: December 22, 2011

+      CRL.A. 391/1997

CHIRANJI LAL                                        ..... Appellant

                     Versus

STATE                                               ..... Respondent

Advocates who appeared in this case:-

For the Appellant : Mr Harsh Jaidka, Amicus Curiae

For the Respondent : Mr Pavan Narang, APP with Mr Anish Dhingra

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MS JUSTICE VEENA BIRBAL

BADAR DURREZ AHMED, J (oral)

1. This appeal is directed against the judgment dated 27.01.1997 passed by the learned Additional Sessions Judge, Delhi, in Sessions Case No. 126/1995 arising out of FIR No. 254/1993 of P.S. Sarai Rohella under Section 302/34 IPC. Initially, there were two accused in this matter, namely, the present appellant Chiranji Lal and one other, that is, Premi. By virtue of the impugned judgment, while Chiranji Lal (the present appellant) was convicted under Section 302 IPC, the co-accused Premi has been acquitted.

2. By virtue of the impugned order on sentence dated 29.01.1997, the appellant has been sentenced to life imprisonment and has also been

made liable to pay a fine of ` 500/- and, in default thereof, he was to undergo simple imprisonment for one month. The present appeal has been filed by the appellant, being aggrieved by the impugned judgment and the impugned order on sentence.

3. According to the prosecution, the appellant as also the victim and late Desraj, PW7 Lala Ram and PW9 Parkash were all labourers. Whereas the appellant and Premi worked for one contractor, the deceased Om Parkash, PW7 Lala Ram, late Desraj and PW9 Parkash worked for another contractor. It is the case of the prosecution that on 19.08.1993 at Inderlok Daya Basti, the deceased Om Parkash had confronted the appellant Chiranji Lal and asked him as to why he was under cutting him on labour charges. The apparent case of the prosecution is that Chiranji Lal and his group were offering their services to the contractors at lower rates than that of Om Parkash and his group. This had enraged Om Parkash and that is why Om Parkash had questioned Chiranji Lal as to why he was doing so. After some time, the altercation between the appellant Chiranji Lal and the deceased Om Parkash was quelled and, shortly thereafter, all the six persons, namely, Premi and Chiranji Lal on the one hand and Om Parkash, Lala Ram, Desraj and Parkash boarded the same bus at Inderlok for going to their respective homes. In the bus, again, hot words and abuses were exchanged between Om Parkash and Chiranji Lal. The driver and the conductor of the bus asked all of them to get down from the bus at Railway Colony, Kishan Ganj. It is the prosecution case that soon thereafter, Parkash caught hold of Om Parkash and exhorted Chiranji Lal to kill Om Parkash. On this, Chiranji Lal broke

open the liquor bottle which was in his possession and gave a blow with the same in the stomach of the deceased Om Parkash. He started bleeding profusely. Chiranji Lal and Premi are alleged to have run away from the scene. Thereafter, Om Parkash was taken to hospital by Desraj and Parkash. Lala Ram also accompanied. However, he got down in the way to inform the family members of the injured Om Parkash. Om Parkash, however, died in hospital after some time.

4. We have heard the learned counsel for the parties.

5. The learned counsel for the appellant, in the first instance, tried to argue for acquittal. However, he stressed upon the alternative argument of the case being covered under Exception 4 in Section 300 IPC and, as such, he submitted that the punishment ought not be awarded under Section 302 IPC but under Section 304 Part II.

6. The learned counsel for the State, however, submitted that the findings recorded by the trial court need not be disturbed and, therefore, the appeal ought to be dismissed.

7. We may point out, at this stage, that Desraj could not come to the witness box because he had passed away during the trial. Therefore, the only alleged eye witnesses are PW7 Lala Ram and PW9 Parkash. According to PW7, there was an altercation between Om Parkash and the accused persons with regard to the fixation of labour rates. People had gathered there and they were pacified. It is then stated by him that both Chiranji Lal and Parkash along with the deceased Om Parkash boarded the bus from Daya Basti. Inside the bus, the accused again picked up a

quarrel with Om Parkash and they exchanged hot words and also indulged in physical assault. The driver stopped the bus and all of them (including PW7 Lala Ram, PW9 Parkash and Desraj) were made to get down near the Railway quarters at Sarai Rohella. There, they, again, started quarreling. Accused Chiranji Lal had a half filled liquor bottle which was kept in the inner pocket of his pyjama. He took out the bottle and after breaking the same inflicted a blow in the stomach of the deceased Om Parkash. This witness, of course, stated that Premi did not inflict any injuries. Thereafter, the witness testified as to how Om Parkash was taken to hospital, etc.,.

8. PW9 Parkash stated that a quarrel had taken place between Om Parkash, Premi and Chiranji Lal with regard to the labour rates. With the intervention of PW9 Parkash, Desraj, Lala Ram and other persons, they were separated and, thereafter, they were made to board the bus. He stated that Desraj was also with them and that they had boarded the bus which was plying on route No. 817 en route to Azad Market. He further stated that both Chiranji Lal and Premi as well as the deceased Om Parkash, himself (PW9 Parkash), Lala Ram and Desraj were in the bus. Premi and Chiranji Lal again started quarreling with Om Parkash inside the bus and, as such, the conductor had asked all six of them to get down at the Railway Colony at Sarai Rohella. After getting down, Premi, Chiranji Lal and Om Parkash started grappling and quarreling with each other. Chiranji Lal had a liquor bottle with him which he took out and struck against the ground and with the broken part of the bottle he inflicted "blows" on the stomach of Om Parkash. He then stated that

Premi and Chiranji Lal ran away. Thereafter, the witness stated as to how Om Parkash was taken to hospital.

9. Exception 4 to Section 300 IPC reads as under:-

"Section 300. 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 offender having taken undue advantage or acted in a cruel or unusual manner."

10. The following five circumstances have to be established before the said Exception no. 4 can be invoked:-

The homicide must have been committed -

       (1)        without premeditation;

       (2)        in a sudden fight;

       (3)        in the heat of passion;

       (4)        upon a sudden quarrel; and

       (5)        without the offender having taken undue advantage or acted

                  in a cruel or unusual manner.

11. Insofar as condition 1 is concerned, it clearly stands established that the homicide was committed without premeditation. This is clear from the fact that the witnesses have testified that the quarrel, in the first instance, was initiated by the deceased Om Parkash. Had there been any

premeditation, the appellant would have straightaway assaulted the deceased. It is only on the basis of the quarrel that the incident took place. Had there been no quarrel, it is unlikely that the incident would have taken place. There is no evidence that there was any previous enimity between the rival groups. Therefore, we are clear that insofar as the first ingredient is concerned, i.e., that the culpable homicide was committed without premeditation, the same stands satisfied. We also note from the post-mortem report as well as the MLC Ex.PW1/A that there was only one injury. The said injury has been described by PW1 Dr Umesh Verma, who is the author of the MLC as "sharp incised wound on his epigastrium/ oblique in direction and about 2½" x1" x1" incised exposing part of the gastro intestinal tract." Thus, we are of the opinion that even condition 5 which requires the offender to have not taken undue advantage or acted in a cruel or unusual manner also stands satisfied.

12. Now, the only question that remains for us to consider is whether the culpable homicide took place in a sudden fight in the heat of passion and upon a sudden quarrel. It is clear that there was an exchange of words at Daya Basti which was momentarily stalled and, immediately thereupon, all the parties to the incident boarded the very same bus for their respective homes. Immediately, on boarding the bus, the exchange of words again ensued. The heated exchange of words was to such an extent that it caused inconvenience which led the bus conductor and the driver of the bus to stop the bus and to ask the six persons involved in the dispute to get down of the bus near Railway quarters at Sarai Rohella. Immediately thereafter, the incident of breaking of the bottle and of

inflicting the injury on Om Parkash took place. To our minds, this would amount to a sudden fight in the heat of passion and upon a sudden quarrel. There is no evidence that the heat of passion ever died down. There was no cooling off, as such, which could be said to have taken place. The fight continued from Daya Basti, on to the bus and after getting down from the bus. In all the three places i.e., at Daya Basti, in the bus as also after getting down from the bus, the fight continued and the exchange of words continued. The parties had no time or opportunity to cool off. As such, we feel that this is a case which would clearly fall within Exception 4 of Section 300 IPC.

13. Section 304 IPC reads as under:-

"Section 304. Punishment for culpable homicide not amounting to murder.---

Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

14. We feel that although the present case is of culpable homicide not amounting to murder, the punishment that is to be awarded to appellant would fall under section 304 Part I and not Part II, inasmuch as, although we have held that the appellant did not have the intention of causing death, there is enough evidence on record to show that he did have the intention of causing such bodily injury as was likely to cause death. Consequently, the impugned judgment and order on sentence are modified to the extent that instead of being found, guilty of murder, the appellant Chiranji Lal is held to be guilty of committing culpable homicide not amounting to murder and his sentence is to be awarded under Section 304 Part I. In view of the fact that the appellant has already undergone approximately 8 years and 3 months in custody, we feel that the period undergone is sufficient sentence in order to meet the ends of justice.

The appeal is allowed to the aforesaid extent.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J DECEMBER 22, 2011 kks