Delhi High Court
Nirmal Singh & Ors. vs State on 9 March, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 21st February, 2011
Date of Decision: 09th March, 2011
+ CRL. A. 32/1998
NIRMAL SINGH & ORS. ... APPELLANTS
Through: Ms. Seema Gulati with
Mr. Sugam Puri and
Mr. Sachin Aneja, Advocate.
Versus
STATE ...RESPONDENT
Through: Mr. Lovkesh Sawhney, APP.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Order should be reported
in the Digest? Yes
JUDGMENT
G.P. MITTAL, J.
1. The appellants Nirmal Singh and Baldev Singh impugn the judgment
dated 12.01.1998 and the order on sentence dated 22.01.1998 whereby
they were convicted under Section 302/34 of the Indian Penal Code
(Code) and each of them was sentenced to undergo imprisonment for life
and to pay a fine of `2,000/- or in default to undergo SI for two months.
2. Facts of the case, bereft of unnecessary details, are that on receipt of DD
No.52-B recorded in Police Station (PS) Adarsh Nagar on 11.04.1993 at
10:50 P.M. to the effect that Kashmira Singh son of Gurbux Singh,
resident of Village Jora Singha, PS Batala, District Gurdaspur was brought
to Hindu Rao Hospital by one Nirmal Singh, son of Sohan Singh, resident
of A-35, Majlis Park. Kashmira Singh (the deceased) was declared
"brought dead" to the hospital. SI Nand Kishore (PW-14) along with
Constable Krishan Kumar reached the hospital and on inspection of the
dead body, PW-14 noticed that lot of blood had come out of the injury on
the back side of the head of the deceased, he tried to search for the said
Nirmal Singh in the hospital, but in vain.
3. He (SI Nand Kishore) therefore proceeded to A-35, Majlis Park
(residence) and then to A-20 Sarai Peepal Thala (office) of Nirmal Singh.
He was, however, not available.
4. SI Nand Kishore, met Mangal Pandey (PW-10), son of Moti Lal, resident
of A-366, New Subzi Mandi, Azadpur there, who made a statement to the
effect that on 11.04.1993 at about 9:00 P.M. after having his dinner at the
dhaba of Raju, he noticed that three Sikhs were taking liquor while sitting
on a takhat near A-20, Sarai Peepal Thala and were gossiping. An
altercation ensued amongst them. Thereupon, the deceased started hurling
filthy abuses at them. Nirmal Singh slapped the deceased resulting into
grappling between the two. Nirmal Singh caught hold of the deceased.
Baldev Singh picked up an iron rod lying there and hit on the head of the
deceased. Nirmal Singh exhorted Baldev Singh to give another blow so
that the deceased is finished and his account is finally settled. According
to the prosecution, Baldev Singh exclaimed that he had already given him
such a blow. The deceased fell down. Nirmal Singh and public persons
removed the deceased from the spot in a cycle rickshaw.
5. FIR No.82/1993 was registered in PS Adarsh Nagar and further
investigation of the case was taken up by Inspector Bir Singh (IO).
During the course of investigation, scene of the incident was
photographed, blood earth and control earth were lifted from the spot. The
IO recorded statements of Rattan Singh (PW-1) and Karnail Singh (PW-2)
(eye witnesses of the occurrence), arrested the appellants and held inquest
proceedings on the dead body. In pursuance of the disclosure statement
Ex.PW-14/D Baldev Singh got recovered a blood stained iron rod Ex.P-2.
Autopsy on the dead body of Kashmira Singh was conducted by PW-12,
i.e. Dr. L.K.Barua. Blood on the rod Ex.P-2 tallied with the blood group
„AB‟ of the deceased; the report of the serologist is Ex.PW-17/J.
6. On appellants pleading not guilty to the charge, prosecution examined 17
witnesses. PWs 1, 2 and 10 are the eye witnesses; PWs 3, 4 and 8 are
relations of the deceased who had identified the dead body and joined the
investigation; PW-14 SI Nand Kishore carried out initial investigation and
PW-17 Inspector Bir Singh, is the IO of the case.
7. PWs 1 and 2 supported the prosecution version, whereas PW-10 claimed
that he did not know anything about the case and the incident had not
taken place in his presence.
8. PW-1 deposed that he knew Kashmira Singh. He (the deceased) was
owner of a truck. He used to come in his truck to Subzi Mandi, Azadpur.
He also knew accused Nirmal Singh and Baldev Singh. He testified that
on 11.04.1993 he came to Delhi in truck No.PB-06-2104. Karnail Singh
was also with him as a co-driver of the truck. The truck was weighed
twice at a Dharam Kanta. They took their meals at a dhaba. In the
evening when they came out of the dhaba, they noticed the accused
persons and Kashmira Singh taking liquor near the dhaba. Some
altercation took place between Kashmira Singh on the one hand and
Baldev Singh and Nirmal Singh on the other. They abused each other.
Nirmal Singh slapped Kashmira Singh and they started grappling with
each other. The turban of Kashmira Singh fell down. Baldev Singh hit
Kashmira Singh with an iron rod on his head. Kashmira Singh fell down
on the ground and started bleeding. Nirmal Singh exhorted Baldev Singh
to hit Kashmira Singh again and finish him. Baldev Singh replied that he
had already given him such a blow that he would not survive.
9. Similarly, PW-2 Karnail Singh testified that in the year 1993 he was
employed as a driver with Shyam Golden Transport Company, Batala. He
used to drive truck No.PB-06-2104 with Rattan Singh as a co-driver. On
11.04.1993 they had brought some machines from Batala, which were
unloaded at Shalimar Bagh. After unloading the truck, they came to Sarai
Peepal Thala and parked the truck in front of Raju‟s hotel. They took their
meals and returned to their truck. They noticed Nirmal Singh, Baldev
Singh and Kashmira Singh sitting on a bench in front of B.G.R. Transport
Company. There was an exchange of hot words between them. Nirmal
Singh slapped Kashmira Singh. The turban of Kashmira Singh fell down.
Nirmal Singh caught hold of Kashmira Singh and exhorted Baldev Singh
to give him (the deceased) such a blow as to finish his accounts finally.
On hearing this, Baldev Singh gave a blow with an iron rod on the head of
Kashmira Singh. He (Kashmira Singh) started bleeding and fell down.
Nirmal Singh took Kashmira Singh to hospital. While leaving the spot he
asked his co-accused Baldev Singh to put earth on the blood lying on the
ground.
10. PW-14 SI Nand Kishore stated that on 11.04.1993 he was posted at PS
Adarsh Nagar when he received a copy of DD No.52-B for investigation
through Constable Badri Nath at Adarsh Nagar Chowk. He along with
Constable Krishan Kumar reached Hindu Rao Hospital and obtained MLC
of the deceased who had been declared brought dead by the doctor. Upon
examination of the dead body he noticed an injury on his head. Blood was
oozing out of that injury. No eye witness met him in the hospital. He
reached Majlis Park at the house of Nirmal Singh who had brought the
dead body of Kashmira Singh to the hospital. On not finding Nirmal
Singh there, he proceeded to his (Nirmal Singh‟s) office at A-20, Sarai
Peepal Thala, where he met Mangal Pandey (PW-10) and recorded his
statement Ex.PW-14/A. He made endorsement Ex.PW-14/B and sent the
same to the PS for registration of the case through Constable Krishan
Kumar. He deposed that further investigation of the case was conducted
by the SHO himself and he remained associated with the same.
11. PW-14 also deposed about the recovery of iron rod Ex.P-2 in pursuance of
the disclosure statement Ex.PW-14/D made by Baldev Singh.
12. PW-12, Dr. L.K. Barua deposed that on examination of the dead body (of
Kashmira Singh) he noticed five external injuries. On internal
examination, he found the big crack over occipital bone of length 4½"
along the line of external injury No.5. There was fracture and separation
of the parieto occipital bone. Brain showed laceration behind the fractured
side. There was generalized sub-dural hemorrhagic clot all over the brain.
He found injury No.5 to be caused by a hard object with narrow width.
The injury was opined to be sufficient to cause death in the ordinary
course of nature. He proved the postmortem report Ex.PW-12/A.
13. PW-17, Inspector Bir Singh deposed about the various steps taken by him
during investigation of the case
14. In their examination under Section 313 of the Code of Criminal Procedure,
both the appellants denied prosecution‟s allegation and pleaded false
implication. They took up the plea that they only heard noise of the
quarrel. They came out and found the deceased lying unconscious. They
took him to Hindu Rao Hospital where he (the deceased) was declared
brought dead. They did not produce any defence evidence.
15. While holding the appellants guilty, the learned Additional Sessions Judge
(ASJ) in Para 25 of the impugned judgment observed:-
"25. In nutshell, the result of the aforesaid discussion is
that the deceased Kashmira Singh had dispute with
accused Nirmal Singh on account of the payment for
which accused persons had quarreled with him and
accused Baldev Singh had given head injury with Ex. P.2
at the instance of accused Nirmal Singh with intention to
kill and the said blow on the head was sufficient to cause
death in the ordinary course of nature. Ld. defence
counsel has shown me nothing in the statement of PW 1
and 2 on which their statements may be rejected. On the
other hand, I find their statements corroborates each
other on the facts and circumstances of the case. Their
evidence is consistent supported by medical evidence.
There is nothing on the record which could doubt about
the truth of the prosecution case. I find truth in the
prosecution case."
16. Thus, the learned ASJ came to the conclusion that the case of the
prosecution under Section 302/34 of the Code was established against the
appellants; he accordingly convicted and sentenced the appellants, as
stated earlier.
17. We have heard Ms. Seema Gulati learned counsel for the appellants and
Mr. Lovkesh Sawhney, learned Additional Public Prosecutor (APP) for
the State and have perused the record.
18. It is urged by the learned counsel for the appellants that PW-10, Mangal
Pandey is readily available at the beck and call of the police. He did not
support the prosecution case, as he had not witnessed the incident. He
admitted in his examination-in-chief that he used to do small chores in
Police Post Subzi Mandi, Azadpur. It was, therefore, clear that Mangal
Pandey was introduced as a witness by the police to solve a blind murder.
PWs 1 and 2, who were known to the deceased, were introduced later on
to give strength to the prosecution case. The story put forward by these
witnesses regarding their presence at the spot is unbelievable. Receipt
Ex.P-1 of Dharam Kanta was procured to show presence of PWs 1 and 2
at the spot. If they knew the deceased, there was absolutely no reason for
them to leave him in the lurch in an injured condition and allow Nirmal
Singh, who was responsible for causing injuries to him (deceased), to
carry him to the hospital.
19. It is argued that the version given by the PWs 1 and 2 that after the
incident they had gone to Delhi-UP border and had then returned to the
spot in the morning is a make believe story to explain the absence of the
PWs 1 and 2 at the time of the visit of SI Nand Kishore and the IO
Inspector Bir Singh. As per their version, PWs 1 and 2 had to take the
goods from Delhi-UP border and thus there was no occasion for them to
have gone to Sarai Peepal Thala. Reliance is placed on a Division Bench
judgment of this Court in „Mohd. Rizwan v. State', 2010 (4) JCC 2474.
20. PWs 1 and 2 have given a detailed account of their presence at the spot.
They have disclosed that they had delivered machines at Shalimar Bagh.
They were to get some goods from Bombay Benaras Transport Company
at Delhi-UP Border. The contention raised on behalf of the appellants that
Sarai Peepal Thala is not on the way from Shalimar Bagh to Delhi UP
Border is unacceptable. Though the Court can take a judicial notice of the
fact (geography of this Metropolitan City being) that Sarai Peepal Thala is
just on the way from Shalimar Bagh to Delhi-UP Border, yet it was for the
appellants to seek the explanation from PWs 1 and 2 that Sarai Peepal
Thala was not so situated. Moreover, any person, particularly, two drivers
may like to have their food at a particular dhaba even if, they have to
travel a few kms. here or there in their truck.
21. PW-1 has also produced a receipt Ex.P-1 of Maan Dharam Kanta to the
IO on 12.04.1993. PW-7 Rakesh Kumar‟s testimony that on 11.04.1993
truck No. PB-06-2104 came to their Dharam Kanta for weighment and
receipt No.9930 Ex.P-1 was prepared and issued by him to the truck
driver, was not challenged by putting any question in cross-examination.
We are, therefore, unable to agree with the contention raised on behalf of
the appellants that receipt Ex.P-1 was subsequently procured to show the
presence of PWs 1 and 2 at the spot. Otherwise also, there is neither any
reason nor any motive for PWs 1, 2 and 7 to create false evidence.
22. Coming to the unnatural conduct of the PWs 1 and 2 in not reporting the
matter to the police and leaving the spot for Delhi-UP Border, it shall be
fruitful to refer to the testimony of these witnesses. PW-1, when cross
examined on 12.08.1994, deposed that he did not inform about the
incident till 7:30 A.M. (on the next day) as he was told by the accused
persons that it was a matter of relation between the accused and the
deceased. Both PWs 1 and 2 also deposed that they had taken the truck
from the spot to Delhi- UP Border because they had to load the goods
from Bombay Benaras Transport Company situated at the Border. It was
further stated by them that they returned to the spot, as the goods were not
available. Of course, there is some discrepancy with regard to time by
which they returned from Delhi-UP Border. In this regard, PW-1 deposed
that after he had parked the truck by Raju‟s dhaba. He noticed a large
crowd and some police officials asking the people about the incident. He
told the police about the incident and his statement was recorded at 7:30
A.M. PW-2 on the other hand, on this aspect, testified that they returned
to Sarai Peepal Thala before 5:00 A.M. on that night. Some people are not
good at keeping mental record of the exact time in respect of any event.
This discrepancy, in our opinion, is not material once their presence at the
time of occurrence is established.
23. In view of the explanation which is quite plausible, it cannot be said that
the conduct of the PWs 1 and 2 was unnatural. Mohd. Rizwan (supra), in
our opinion, is not attracted to the facts of the case.
24. The learned counsel for the appellants pointed out improvements in the
testimony of PWs 1 and 2 regarding falling of deceased‟s turban during
the grappling; regarding how the information regarding death of Kashmira
Singh was received by his relations in Punjab; regarding the date of
identification of the dead body and presence of blood stains at the spot.
25. We have gone through the testimonies of the prosecution witnesses. We
are not inclined to attach much importance to these discrepancies. Of
course, in the statement Ex.PW-14/A made by Mangal Pandey, on the
basis of which instant case was registered, there was no mention of falling
of the turban of the deceased. As noticed earlier, PW-10 Mangal Pandey
has not supported the case of the prosecution and was declared hostile.
Both PWs 1 and 2 categorically stated about the falling of deceased‟s
turban during grappling. It was not pointed out during the cross-
examination of PWs 1 and 2 that they had made improvements to their
statements under Section 161 Cr.P.C. Under these circumstances, the
factum of falling of turban cannot be stated to be an improvement by these
witnesses during their statements in the Court.
26. We do not find much force even otherwise in the contention of the learned
counsel for the appellants that the story of the turban was introduced, on
the ground that such injuries leading to fracture and separation of the
parieto occipital bone is not possible when someone wears a turban. No
such question was put to PW-12 Dr. L.K. Barua during cross examination.
It would always depend upon the nature of weapon and the force applied,
in spite of someone wearing a turban, a serious blow can result in skull
fracture.
27. We cannot attach much importance to the contradiction in regard to
receipt of information (by the relatives) about the injury sustained by
Kashmira Singh resulting in his death. It is a fact that Kashmira Singh had
died and PW-3, Swaran Singh, PW-4 Jagir Singh (brother of the deceased)
and PW-8 Gurbux Singh (father of the deceased) reached Delhi on
12.04.1993. PW-3 Swaran Singh in this regard deposed that on
11.04.1993 Jaswant Singh, brother of the appellant Nirmal Singh had
telephoned Batala that Kashmira Singh was injured and that he should
reach Delhi. He then deposed having gone to village Jora Singha to see
father of the deceased. After receiving information, he along with father
and brother of the deceased reached Delhi in a truck. PW-4 in this regard
deposed that a telephonic message was received by Gurbachan Singh
Kalgha, which he conveyed to Swaran Singh, who in turn informed them.
This, in our opinion, cannot be termed a discrepancy.
28. Learned counsel for the appellants argue that PWs 4 and 8, claim to have
identified the dead body of Kashmira Singh on 12.04.1993 whereas PW-
17, IO stated that the dead body was identified by them on 13.04.1993.
This contention is misconceived. According to PW-17, the earth control
and bloodstains were lifted from the spot by the IO on the night
intervening 11-12.04.93. Of course, the IO stated that on the next day he
again reached the spot and then returned to the PS at 1:00 P.M. He then
went to Hindu Rao Hospital along with Jagir Singh and Gurbux Singh and
held the inquest proceedings. Obviously, PW-17 was referring 12.04.93
as the next day and not 13.04.93.
29. It is urged by the learned counsel for the appellants that the iron rod Ex.P-
2 is a tyre lever. PW-2 in his cross examination admitted that Ex.P-2 is a
tyre lever. Thus, if they had already seen the incident, they would have
stated that the injury was inflicted with a tyre lever. They would not have
described the weapon as an iron rod. This contention, in our opinion, is
unmerited. Firstly, PWs 1 and 2 were not confronted with their statements
under Section 161 Cr.P.C. as they may have described the iron rod as a
tyre lever. Secondly, PW-2 was frank enough to describe the tyre lever, in
answer to the query by the defence counsel. He stated that a tyre lever is
used to separate the tyre from the rim. The lever is in the shape of a flat
iron patta having curvature at one end. The description shows that the
tyre lever can be described as an iron rod by any person including a driver.
Thus, there is nothing unusual if Ex.P-2 was described as a rod by PWs 1
and 2 in their examination-in-chief.
30. Similarly, there is no merit in the contention of the learned counsel for the
appellants that PW-17 could not lift bloodstained earth when PW-14 did
not find any blood stains at the spot, (as per rukka Ex.PW-14/A sent by
him to the PS). An answer to this contradiction can be found in the
testimony of PW-2. In this regard, he deposed that while leaving (for the
hospital), Nirmal Singh asked his co-accused Baldev Singh to keep the
earth on the blood lying on the ground. Moreover, no explanation was
sought either from PW-2 or from PW-14 or PW-17 in this regard. Thus,
we do not consider this as a discrepancy in the testimonies of PWs 14 and
17.
31. It is contended on behalf of the appellants that the IO did not join any
independent public witness at the time of recording disclosure statement
Ex.PW-14/D of Baldev Singh or the recovery of the rod Ex.P-2 in
pursuance thereof. A perusal of the disclosure statement Ex.PW-14/D
shows that the same was recorded in presence of PW-3 Swaran Singh
apart from SI Nand Kishore. The recovery of the blood stained rod Ex.P-2
was also effected in the presence of these witnesses vide memo Ex.PW-
3/A. It is a known fact that the persons of the public are reluctant to join
the police in the investigation of any case as they do not want to undertake
unpleasant task of attending the Police Station and the Court for giving
evidence. In State, Govt. of NCT of Delhi v. Sunil & Anr., (2001) 1 SCC
652, it was held by the Supreme Court that the legal obligation to call
independent and respectable inhabitants of the locality to attend and
witness the exercise made by the police is cast on a police officer when
searches are made under Chapter VII of the Code of Criminal Procedure
and not for discovery under Section 27 of the Indian Evidence Act. In
para 20, the Supreme Court observed as under:-
"20............. It is a fallacious impression that when
recovery is effected pursuant to any statement made by the
accused the document prepared by the investigating officer
contemporaneous with such recovery must necessarily be
attested by the independent witnesses. Of course, if any
such statement leads to recovery of any article it is open to
the investigating officer to take the signature of any person
present at that time, on the document prepared for such
recovery. But if no witness was present or it no person had
agreed to affix his signature on the document, it is difficult
to lay down, as a proposition of law, that the document so
prepared by the police officer must be treated as tainted
and the recovery evidence unreliable. The court has to
consider the evidence of the investigating officer who
deposed to the fact of recovery based on the statement
elicited from the accused on its own worth."
32. The discrepancy with regard to the role assigned to the appellant Nirmal
Singh appears to be quite material. PW-1 testified that Baldev Singh hit
Kashmira Singh with an iron rod on the head, upon which he fell down
and started bleeding. Nirmal Singh exhorted Baldev Singh to hit
Kashmira Singh again and finish him. PW-2 on the other hand deposed
that Nirmal Singh caught hold of Kashmira Singh and exhorted Baldev
Singh to give Kashmira Singh a fatal blow saying, "Aisi Chot Maar Ki Aaj
Iska Hisab Kitab Chukta Kar do." On hearing this, Baldev Singh gave a
blow on the head of Kashmira Singh with an iron rod.
33. A reference can be made to Idrish Bhai Daudbhai v. State of Gujarat,
2005 (3) SCC 277, relied upon by learned counsel for the appellant where
the Supreme Court observed that since the prosecution had failed to bring
any material on record to show that there had been pre-concert or pre-
arranged plan between the accused who had stabbed the deceased and the
accused who had exhorted the stabber by uttering the words
"beat.....beat" and since it was found that the accused had exhorted the
co-accused after the infliction of injuries, benefit of doubt was given to the
accused who had simply exhorted his co-accused.
34. In this case appellant Nirmal Singh shall be entitled to the benefit of
doubt.
35. Learned counsel for the appellants has pointed out that the alleged motive
to inflict fatal injury on the person of the deceased was that Nirmal Singh
owed certain money to Kashmira Singh which was not being returned by
him. It is argued that there is contradiction in the testimony of PW-4 Jagir
Singh who had deposed that Nirmal Singh owed a sum of `4300/- and that
he had come to Delhi along with the deceased 7-8 days prior to the
occurrence to demand the money; whereas PW-8 Gurbux Singh gave the
amount owed by Nirmal Singh to be `3000/- and the visit of PW-4 to
Delhi just 3-4 days prior to the occurrence. In our view, this is not a
material contradiction. There is always some motive for commission of
the crime. However, motive loses significance whenever there is ocular
evidence connecting the accused with commission of the crime. It would
be apposite to extract the observations of the Supreme Court in State of
U.P. v. Babu Ram, 2000 (4) SCC 515; the Supreme Court observed as
under:-
"Motive is a relevant factor in all criminal cases whether
based on the testimony of eye witnesses or circumstantial
evidence. The question in this regard is whether the
prosecution must fail because it failed to prove the motive
or even whether inability to prove motive would weaken the
prosecution to any perceptible limit. No doubt, if the
prosecution proves the existence of a motive it would be
well and good for it, particularly in a case depending on
circumstantial evidence, for such motive could then be
counted as one of the circumstances. However, it is
generally a difficult area for any prosecution to bring on
record what was in the mind of the respondent."
36. Learned counsel for the appellants places reliance on Sonu Arora v. State,
2010 (3) JCC 2354 and Nadeem v. State, 2010 (4) JCC 2842. In support
of the contention that when there are contradictions or improvements in
the evidence of witnesses on the material or core aspect of the case, the
testimony has to be discarded. There cannot be any quarrel about the
proposition of law laid down by the Division Benches of this Court in
those cases. If the discrepancies are attributable to loss of memory with
the passage of time or they relate to matters which are peripheral or trivial,
the testimony of the prosecution witnesses cannot be rejected on account
of such minor variations or infirmities. However, if the contradictions are
on material aspects, they cannot be ignored.
37. It is the duty of the Court to separate grain from chaff. From the
substratum of the testimony of the PWs 1 and 2, we do not suspect their
presence at the spot at the time of the incident.
38. All the contradictions pointed out except on the role assigned to Nirmal
Singh are of a trivial nature and have to be ignored. However, if Nirmal
Singh had exhorted Baldev Singh to give another blow to the deceased,
after the first one had been given, Nirmal Singh cannot be said to have
shared the common intention with the appellant Baldev Singh as far as
infliction of the injury on the person of Kashmira Singh is concerned.
Otherwise too, mere exhortation by itself may not be sufficient to draw an
inference that the person shared the common intention.
39. Of course, common intention can well develop at the spot. However, in
this case, no material has been placed on record by the prosecution to
show that there was any common intention to cause injuries on the person
of the deceased except the alleged disclosure statement Ex.PW-14/D
which except to the extent of recovery of the iron rod Ex.P-2 is in the form
of confessional statement and is not admissible in evidence.
40. In view of the contradiction regarding the role of appellant Nirmal Singh
in the testimony of PWs 1 and 2, we are inclined to give benefit of doubt
to Nirmal Singh and, therefore, allow the appeal to this extent.
41. By impugned judgment appellant Baldev Singh was held guilty for the
offence punishable under Section 302/34 of the Code. It has emerged
from the evidence of PWs 1 and 2 that only a single blow with an iron rod
was given to the deceased on the head, which obviously is a vital part of
the body. We have to analyze the testimonies of PWs 1 and 2 to infer the
intention whether the case would fall under Exception IV to Section 300
of the Code. As per PW-1 appellants Nirmal Singh, Baldev Singh and the
deceased Kashmira Singh were taking liquor near the dhaba. Some
altercation took place with Kashmira Singh on one side and Baldev Singh
and Nirmal Singh on the other side. They abused each other. Nirmal
Singh slapped Kashmira Singh resulting into their grappling with each
other. The deceased‟s turban fell down. Thereupon, Baldev Singh hit
Kashmira Singh with an iron rod on his head. The testimony of PW-2 is
almost identical except that, he deposed that Nirmal Singh had held
Kashmira Singh before the blow was given. That part of the version had
already been disbelieved by us earlier.
42. PM report Ex.PW-12/A shows that injury No.5 was the fatal blow which
was a fracture and separation of the parieto occipital bone. It was caused
by a hard object with narrow width and was sufficient to cause death in the
ordinary course of nature. Obviously, this injury was caused by iron rod
Ex.P-2. Rests of the injuries were abrasions which, as per PW-12 Dr. L.K.
Barua were possible by friction against hard surface. Thus, it can be
assumed that these injuries were by fall on the ground.
43. To invoke exception IV to Section 300 of the Code, the accused has to
show that "(i) it was a sudden fight; (ii) there was no premeditation; (iii)
the act was done in a heat of passion; and (iv) the assailant had not taken
any undue advantage or acted in a cruel manner."
44. The cause of quarrel is not relevant nor is it relevant who offered the
provocation or started the assault. The number of wounds caused during
the occurrence is also not a decisive factor but what is important is that the
occurrence must have been sudden and unpremeditated and the offender
must have acted in a fit of anger. Of course, the offender must not have
taken any undue advantage or acted in a cruel manner.
45. In „Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217;
it was observed that, "where, on a sudden quarrel, a person in the heat of
the moment picks up a weapon which is handy and causes injuries, one of
which proves fatal, he would be entitled to the benefit of this exception
provided he has not acted cruelly."
46. In „Surinder Kumar, the deceased and PW2 had entered the room
occupied by Sikander Lal and his family members and had demanded
vacant possession of the kitchen. When they found that the appellant was
disinclined to handover possession of the Kitchen, PW2 quarreled and
uttered filthy abuses in presence of the appellant‟s sister. Upon being
asked by the appellant to desist he threatened to lock up the kitchen by
removing the utensils, etc., and that led to a heated argument between the
appellant on the one side and PW2 and his deceased brother on the other.
In the course of this heated argument PW2 took out a knife from his
trousers. When the appellant found that PW2 had taken out a pen knife
from his pocket he went into the adjoining kitchen and returned with a
knife. Thereafter a scuffle must have ensued on Nitya Nand intervening to
help his brother PW2 in which two minor injuries were suffered by the
deceased on the left arm before the fatal blow was inflicted on the left
flank at the level of the 5th rib about 2‟ below the nipple. The accused was
convicted under Section 304, Part I, IPC.
47. 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 room 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.
48. In Shaikh Azim v. State of Maharashtra, 2008 (11) SCC 695, the
deceased and his son were present at their house alongwith 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 accused also abused them. One
of the accused holding a stick, the other holding an iron rod and the third
accused holding the 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 conviction of
the appellant/accused would be under Section 304 Part I of the IPC.
49. To bring his case under Exception IV to Section 300 of the Code, it is not
necessary that the accused must produce evidence or put up his case by
giving suggestions to the prosecution witnesses. An accused can always
point out to the circumstances in the prosecution evidence to show that he
is entitled to the benefit under exception IV to Section 300 of the Code.
50. It is established on record that the appellants and the deceased were taking
liquor and an altercation had taken place amongst the three. We do not
know whether the cause for the altercation was the payment of the money
to the deceased. The same is immaterial. After the altercation, Nirmal
Singh had slapped the deceased resulting into some grappling. It was at
this moment that appellant Baldev Singh had picked up an iron rod which
was lying nearby and in the heat of passion had given the fatal blow on the
head of the deceased. It is also borne out from the record that only one
injury was given which clearly shows that appellant Baldev Singh had not
taken any undue advantage nor had he acted in a cruel manner. The case
of the appellant therefore clearly falls under exception IV to Section 300
of the Code. The conviction of the appellant Baldev Singh has, therefore,
to be altered from Section 302/34 of the Code to Section 304, Part I of the
Code.
51. In view of the foregoing discussions, the appeal is partly allowed.
Appellant Nirmal Singh is acquitted of the charge framed against him. As
regards, appellant Baldev Singh, the conviction under Section 302/34 of
the Code is converted to section 304, Part I of the Code.
52. In the circumstances, of the case, the punishment of imprisonment for life
is also altered to the Rigorous Imprisonment for seven years. Thus, the
appellant Baldev Singh is sentenced to undergo Rigorous Imprisonment
for seven years and to pay fine of ` 2,000/- or in default of payment of
fine to undergo Simple Imprisonment for six months.
53. It goes without saying that the appellant Baldev Singh is entitled to the
benefit under Section 428 Cr.P.C.
54. Appellant Baldev Singh is directed to surrender before the Trial Court on
22.03.2011 to serve the remaining sentence.
55. Appellant Nirmal Singh is already on bail; his Personal Bond and Surety
Bond are discharged.
56. A copy of the order be sent to the Trial Court for information and
necessary action.
(G.P. MITTAL)
JUDGE
(S. RAVINDRA BHAT)
JUDGE
MARCH 09, 2011
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