Shankar Lal & Anr. vs State
2011 Latest Caselaw 1459 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of Hearing & Decision : 14th March, 2011

+     CRL.A. 27/1998

      SHANKAR LAL & ANR                  ..... Appellants
                      Through : Ms.Jyoti Singh, Sr.Adv. with Mr.Amandeep
                                Joshi, Advocate.
               versus

      STATE                  ..... Respondent
                            Through : Mr.Jaideep Malik, APP for the State with SI
                                        Kamal Kohli, PS Moti Nagar.

           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

S. RAVINDRA BHAT, J (ORAL)

1. The status report in respect of appellant No.1-Shankar Lal has been placed on record along with a copy of the death certificate. It is evident that the appellant No.1-Shankar Lal died on 17.10.2008. The appeal therefore stands abated as regards appellant No.1 is concerned.

2. This appeal is directed against the judgment and order of the learned Additional District Judge dated 16.12.1997 whereby the two appellants Shankar Lal and Ajay (son of Shankar Lal) were convicted for the offence punishable under Sections 302/323/34 IPC. By the order dated 20.12.1997, they were sentenced to undergo life imprisonment and directed to pay a fine of Rs.500 and in default of which to undergo simple imprisonment for one month each. The appellants were already

sentenced to RI of three months in respect of offence punishable under Sections 323/34 IPC. Both substantive sentences were ordered to run concurrently. rRs

3. During the pendency of the appeal, Appellant No.1 Shankar Lal died on 17.10.2008. The court has noted this development and appeal so far as he is concerned, stands abated.

4. The prosecution case was that the deceased Kishan Kumar was resident of B-476 Sudarshan Park, Moti Nagar. He also used to run a Kirana Shop in the same premises. The appellants Ajay and Shankar Lal were residing in his neighbourhood in premises bearing No.B-467, Sudarshan Park. The further allegation was that on 23.6.1994 at about 11:30 AM. Shankar Lal went to purchase a bundle of biri from the deceased. After purchasing the bidi bundle he (Shankar Lal) allegedly took out one or two of them from the bundle and said that the biris were fake. The deceased (Kishan Kumar) allegedly protested at this and told Shankar Lal that since a new bundle had been opened, he could take any other bundle from other bundles placed before him. The prosecution further alleged that a verbal altercation ensued in which Shankar Lal used harsh words by saying "tum hame nakli biri pilate ho aur khud asli biri pete ho". Shankar Lal threatened Kishan Kumar that he would teach him a lesson. Thereafter Shankar Lal caught hold of Kishan Kumar by his hand and forcibly pulled him out of his shop and simultaneously shouted that "Aaj tumhe nakli biri pilane ka maja chakate hain."

5. The prosecution further alleged that Shankar Lal caught hold of Kishan Kumar upon which Ram Kumar brother of Kishan and Chet Ram father of Kishan who were apparently present at the site intervened and saved the deceased from the clutches of Shankar Lal. It is further alleged that the Appellants, i.e. Shankar Lal and Ajay, along with Shankar Lal's younger son Dhananjay, reached the spot; Ajay allegedly picked up a hammer lying in the premises; Dhananjay (who was a minor at that stage and was arrested as accused in the case and was later sent up for trial before the Juvenile Court) allegedly took a fan rod which was also lying in the premises. The prosecution case was that Ram Kumar was a trained

electrician and therefore instruments were lying there to repair the house fan. It was alleged that appellant Ajay gave a hammer blow to Kishan Kumar on the back of the head and the third accused Dhananjay inflicted blows with the iron rod. The prosecution further stated that Dhananjay's blows did not hit Kishan Kumar and it struck on the head of Shankar Lal (his own father). Thereupon an attempt to assault Kishan Kumar was made; at that stage the deceased father Chet Ram pushed Dhananjay as a result of which the latter's head struck the cement floor near the spot. Dhananjay started bleeding from the injury on his head. Ram Kumar in the meanwhile received an iron rod blow on his head just above his left eye brow. Kishan Kumar also received blows from the iron rod. Chet Ram received rod blows on his left knee and started bleeding. The prosecution stated that thereafter accused Ajay and Dhananjay started pulling Kishan Kumar towards their house and on the way accused Ajay again gave a hammer blow on Kishan Kumar's head as a result of which he (Kishan Kumar) fell down in front of House No.B-545. At that stage, the accused i.e. Ajay, Dhananjay and Shankar Lal noticing the serious condition of Kishan Kumar fled from the spot, throwing the iron rod and hammer in the drain. Ram Kumar and Chet Ram removed injured Kishan Kumar to RSI hospital where Kishan Kumar was declared brought dead by the doctor concerned.

6. In order to prove its case the prosecution relied upon the testimony of 20 witnesses. The defence examined 2 witnesses. After considering the evidence and material brought on the record, the trial court recorded the conviction and handed down the sentences noticed in the preceding part of this judgment. During the pendency of the appeal, the court had suspended the sentences of the Appellants after noticing that they had undergone a substantial portion of it.

7. Ms. Jyoti Singh learned senior counsel for the Appellant stated that before the trial court Ajay (the sole surviving Appellant) had disputed his presence, no attempt would be made to pursue that line and instead her endeavour would be to

satisfy the court that the facts and circumstances do not warrant conviction under Section 302 and the same ought to be substituted with conviction under Section 304 Part I of the Indian Penal Code. It was pointed out that the trial court had primarily rested its conclusion on the testimony of the eye witness Ram Kumar PW-4 who had received some injuries, as well as of Chet Ram PW-7 his father (as well as father of the deceased) who too had received injuries on his knee. Learned counsel emphasized that both these witnesses clearly mentioned the nature of the fight i.e. Shankar Lal having purchased bidis from the deceased, his taking out a couple of them and alleging them to be fake; the ensuing verbal altercation leading to Shankar Lal allegedly pulling out the deceased from there and other members of the rival parties reaching the spot escalating into the physical fight. Great emphasis was placed on the circumstances that weapon of offence i.e. the iron rod and the hammer rod were lying in the deceased premises where Ram Kumar was expected to repair the ceiling fan. It was also submitted that the trial court appears to have overlooked two crucial circumstances i.e. the injury that one of the accused party (Dhananjay) received upon being pulled onto the floor and his head striking on the cement floor. The other point submitted by the Appellant's learned counsel was that the injury received by Shankar Lal was made the subject matter of a criminal complaint. Learned counsel for the Appellant also relied on a portion of the cross-examination of PW-4 and PW-7 in which this line of inquiry was pursued. It was contended that this clearly mentioned about the knife blow received by Shankar Lal, by Ex.16/B.

8. Learned counsel relied upon the decision reported as Sukhdev Singh v. State, 2002 (97) DLT 969, a Division Bench ruling. In that case the court had converted the conviction recorded by the learned trial court from Section 304 Part I to 308 IPC. The facts were that the appellant was provoked by a three wheeler scooter driver with whom he had no previous animosity. The altercation ensued as the three wheeler driver was not even ready to take the appellant to the police station which provided provocation which was grave and sudden to the appellant leading to infliction of the fatal injuries. The appellant had taken out his pistol

and fired at the driver. The bullet hit the thigh of someone else standing nearby. The Court held that injuries were not caused intentionally. The second decision was relied upon in the case titled as Gurdeep Singh v. State 1994 (31) DRJ (DB). In this case a quarrel which appears to have been in progress when the appellant along with someone else reached the spot. The other party made effort to pacify those involved in quarrelling. The appellant rival party continued to quarrel and the appellant in the course of the quarrel was caught hold by the deceased who started abusing him asking as to who he was to intervene and help in getting the deceased released. The appellant in this case landed eleven blows on different parts of the body of the deceased. The trial court had convicted the appellant for the offence punishable under Section 302 IPC. On appreciation of the evidence, this court was of the opinion that the facts of the case justified the conclusion that Exception 2 to Section 300 of the Indian Penal Code was attracted and accordingly converted the conviction to one under Section 304 Part I IPC. The last decision cited was in the case of Om Parkash v. State 1996 (64) DLT 689 where the incident occurred in the course of a sudden quarrel without pre- mediation where the appellant interestingly picked up the knife and stabbed the deceased. The Court held as under:

"About the alleged recovery of the weapon of offence, the learned counsel for the appellant has submitted two things. First he submits that the personal search of the appellant vide memo Ex.Public Witness-18-H showed he had in his possession one small knife. The argument proceeds that the appellant had taken to Sikhism and was working as a sewadar in Gurudwara. The small knife is the kirpan which he used to carry as a Sikh. On this basis it is submitted that the appellant did not have to pick up a kitchen knife to commit the crime. Secondly, it is submitted that the alleged disclosure statement of the appellant Ex.Public Witness-18/J and alleged recovery memo regarding recovery of knife Ex.Public Witness-18/L do not have any independent witness supporting the same. The disclosure memo is witnessed only by the police officials and Pradeep Kumar son of the appellant who had appeard as a prosecution witness to support the prosecution case against the appellant, his own father. Similarly recovery memo is witnesses only by the police officials and Pradeep Kumar, the son of the

appellant. The recovery memo is not even signed by the appellant. Janakpur is a busy area and non-association of any public witness casts a doubt on the prosecution case about the recovery of the alleged knife at the instance of the appellant. The doubt gets stronger in the background of the fact that the appellant is shown to be already possessing a knife as pointed out hereinbefore. In the peculiar facts of the case have strong doubts about the alleged recovery of the weapon of offence at the instance of the appellant."

9. Mr. Jaideep Malik, the learned Additional Public Prosecutor for the State strongly opposes the submissions made on behalf of the appellant and contended that the trial court findings should not be disturbed and ought to be affirmed. He argues that this is not a case of single blow that the deceased received. Several injuries on a vital part of his body i.e. the head, had led to his demise. It is also submitted that use of an iron rod and hammer, with the kind of force deployed by the appellant Ajay, clearly demonstrated the intention to cause such an injury as would result in death or at the least could have caused injuries which in the natural course of nature would result in the death of the deceased, which in fact happened. He relied upon the post mortem report for this purpose and stated that whether the weapon was found in the premises of the deceased or was brought to the site is immaterial; what is necessary for the court is to gauge the mental intention and to look at the intensity of the injury inflicted.

10. The essential facts of the prosecution case are not in dispute. There are various elements to it i.e. (i) Shankar Lal purchasing bundle of bidis from the deceased who used to run a Kirana shop; (ii) his opening the bidi bundle and alleging that it contained fake bidies; (iii) protest by deceased about the fact that such allegations were untrue and would result in loss of confidence of his; (iv) Shankar Lal's customers ensuing verbal altercation leading to his (Shankar Lal) pulling out Kishan Kumar threatening him with dire consequences and giving blows and (v) intervention of deceased's relatives i.e. brother and father Ram Kumar and Chet Ram respectively. The appellant Ajay and his younger brother Dhananjay reached the spot.

11. Dhanajay had allegedly inflicted a blow at Kishan Kumar which unintentionally landed on his father Shankar Lal; Ajay hit the deceased with a hammer; both the hammer and the rod used by the appellant Ajay and Dhananjay were picked up from the premises of the deceased; Dhananjay was pushed on to the floor and received head injuries; this was done by Chet Ram PW-7 ( this has been spoken to by both the prosecution witnesses PW-4 and PW-7); the deceased was dragged out of the premises and the accused inflicted injuries, on the deceased.

12. The trial court noticed that injuries were received by Dhananjay the youngest brother of the accused Ajay and younger son of deceased Shankar Lal. It also noticed that a complaint had been filed by Shankar Lal as regards the injury received by him by the knife blow inflicted by Chet Ram PW 7, yet, while analyzing the entirety of the circumstances no importance was given to it. Perhaps trial court did not find that necessary or overlooked this aspect since Ajay at that stage disputed his presence from the spot. The trial court of course correctly concluded that the injuries were of a such nature as would be resulted and did cause death of Kishan. Therefore, it proceeded to convict the accused for the offence punishable under Section 302/323 read with Section 34 IPC.

13. While agreeing with the decision of the trial court, this court is of the opinion that facts of this case as noticed previously do not warrant the affirmation as regards the conviction of the appellant under Section 302 IPC. The two vital circumstances which have emerged during submissions- and not disputed by the prosecution are that the weapons were not brought by the members of the accused party i.e. appellant; crucially Dhananjay one of the accused too had received on injury on being pushed down to the floor. Likewise Shankar Lal also received a knife blow on the head. The prosecution did not make an attempt to turn its investigation towards this aspect. However, this emerges on a fair reading of the evidence. Particularly Ex.PW 16/A Ajay categorically records that Shankar Lal had received a knife blow. Furthermore PW-4 and PW-7 admitted that Dhananjay had been pushed by Chet Ram. All these, in the opinion of this court clearly points out to the occurrence of a sudden and unpremeditated incriminated

quarrel. The further element that injuries were inflicted with an iron weapon which was facilitated by the hammer and iron rod lying in the deceased premises itself is a significant factor. Learned APP for the State had argued that use of such weapon would indication intention to kill. Having regard to the ferocity of the blow as it is manifest from the post mortem report- we are not in agreement with the submission. This is because the appellant did not come prepared of such quarrel; the same appears to have escalated and snow balled into a physical fight from a verbal quarrel in which both parties inflicted injuries upon each other. It is a matter on record that appellant-accused parties also received two fairly serious injuries; however the intensity of these injuries is unknown because there is no medical record on this aspect. In the case titled as Smt. Sandhya Jadhav v. State of Maharashtra, (2006) 4 SCC 653 the Court held as under:

"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".

14. The aforesaid aspects have been highlighted in Sridhar Bhuyan v. State of Orissa, 2004 Cri LJ 3875; Parkash Chand v. State of H.P. (2004)11SCC381 , and Sachchey Lal Tiwari v. State of Uttar Pradesh 2004 Cri LJ 4660; In Balbir Singh v. State of Punjab, 1995 Supp (3) SCC 472, the Court held that:

"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 I.P.C. 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."

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

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.

16. The decision relied on by the Appellant also fortifies the conclusions of this Court because in those cases too in the course of sudden quarrel a house hold article lying in the premises was used to inflict injuries on the person of the deceased. The court held that circumstances surrounding the attack were sufficient to conclude that the offence under Section 304 Part I IPC had been committed. In the Division Bench decision leading in Sukhdev Singh (supra) where no less

than twelve injuries were inflicted on the person of the deceased, the Court concluded that the offence of Section 304 Part I IPC was made and substituted with the one recorded by the trial court under Section 302 IPC.

17. In view of the above discussion, this court is of the opinion that the appeal has to succeed partly. The findings and order of the trial court as regards the conviction of the surviving appellant Ajay are substituted, instead of offence under Section 302 IPC, it is held that the Appellant-Ajay was guilty of the offence punishable under Section 304 Part I IPC. The record indicates that by order dated 17.8.2001 it was noted that the appellant had undergone the sentence to the extent of six years nine months and three days. This is a little less than seven years. Having regard to these circumstances, this Court directs that the sentence of the appellant- Ajay to be reduced to the period undergone.

18. The appeal is accordingly allowed in terms indicated above. Bail bonds and surety bonds are ordered to be discharged.

S. RAVINDRA BHAT, J.

G. P. MITTAL, J.

MARCH 14, 2011 sa