Lalit Kumar vs State
2011 Latest Caselaw 1561 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           Crl. Appeal No.470 of 2006

%                          Date of Decision: 18.3.2011

Lalit Kumar                                                 .... Appellant

                          Through: Mr.Siddharth Luthra Sr. Advocate with
                                   Ms. Arundhati Katju Advocate.

                                    Versus

State                                                     .... Respondent

                 Through: Mr. M.N.Dudeja APP for the State.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE V.K.SHALI

1.      Whether reporters of Local papers may be              YES
        allowed to see the judgment?
2.      To be referred to the reporter or not?                NO
3.      Whether the judgment should be reported in            NO
        the Digest?


ANIL KUMAR, J.

*

1. The appellant, Lalit Kumar has challenged the order and

judgment of the Trial court dated 13th March, 2006 and 16th March,

2006 whereby he was convicted of the offence u/s 302 IPC and

sentenced to undergo rigorous imprisonment for life and to pay a fine of

Rs. 1000/- and in default of payment of fine, to further undergo

rigorous imprisonment for one month.

2. Relevant facts for the purpose of the present appeal are that on

26th February, 2003 a telephonic information was received from the

Duty Constable in AIIMS at P.S. Ambedkar Nagar about the admission

of one Shyam Bir Singh, s/o Ram Bir Singh, r/o B-3, Subash Camp,

Dakshin Puri aged 18 years, by his mother in an unconscious

condition. He was declared by the doctor as brought dead vide MLC No.

18350/03. This information was recorded as DD No. 18A at P.S.

Ambedkar Nagar at 11.35 PM and a copy of the same was handed over

to SI Balraj Singh, who reached the hospital along with Constable

Pratap Singh where he found one Bir Singh (PW1) present who made a

statement. On the basis of this statement SI Balraj Singh made an

endorsement for the registration of an FIR u/s 302 IPC, on the basis of

which FIR No. 87/03 was registered at P.S. Ambedkar Nagar.

3. In the meantime ASI Roshan Lal (PW 13), who had reached block

No.3, Dakshinpuri pursuant to a call regarding quarrel in that block,

came to know that some people had gathered near block No. 5 and 6,

Dakshinpuri and a quarrel had taken place and one injured had

already been removed and another injured was in his house. He went to

the house of the injured person and found that the injured was the

appellant/accused, Lalit Kumar. Thereafter the appellant was sent to

AIIMS hospital through Constable Ved Prakash. ASI Roshan Lal had

observed a pair of chappal and some blood lying at the spot and a blood

stained knife lying near the place of occurrence.

4. SI Balraj also reached the scene of the crime from AIIMS after

collecting the MLC of the deceased and took over the investigation of the

case. He prepared the site plan of the place of occurrence in Subash

Camp and got the scene photographed. Blood stained earth and a pair

of hawai chappal were lifted from the scene of the crime and were sent

to the FSL for expert opinion along with the clothes worn by the

deceased Shyam Bir and his blood sample. The clothes worn by the

accused, Lalit Kumar were also taken from him. The knife alleged to

have been used in the crime was also recovered from a khatta. The

CFSL report was submitted in Court and charges were framed against

the accused u/s 302 IPC to which the accused pleaded not guilty.

5. The case of the prosecution before the trial court was that on

26th February, 2003 the deceased Shyam Bir was present in his jhuggi

along with his mother Ramwati (PW-7) and Mausa (uncle) Bir Singh

(PW-1). At about 9.30 PM, the accused Lalit came to the jhuggi of

Ramwati and called the deceased out. The deceased then went with the

accused and after some time PW-1 and PW-7 were informed by one lady

that a quarrel was taking place on the road between the deceased and

the accused in which the accused stabbed the deceased, because of

which the deceased fell on the ground and the accused fled the scene

after throwing the knife in the nearby khatta. The prosecution examined

18 witnesses to prove the case against the accused.

6. In his statement u/s 313 Cr.P.C. the accused denied the

prosecution case and stated that on 26th February, 2003 he was

present in his house and when he came out of his house on hearing

some noise, someone threw stones on his head as a result of which he

fell down and sustained injuries. The accused examined two witnesses

in his defense. It was also contended by the accused before the trial

court that he was in his house when the deceased along with one of his

friends came to his house, as the deceased was having a grudge against

the accused and a scuffle took place between the two. When the

deceased took out a knife for inflicting injuries upon the accused, the

accused tried to snatch the knife from the deceased by twisting his arm

towards his back which resulted in the deceased receiving injuries from

the knife he was holding. It was also contended that the person

accompanying the deceased had hit the accused on his head with a

stick. So the version of the defense was that the incident had occurred

near the house of the accused and the deceased received stab injuries

when the accused tried to snatch the knife from the deceased for

defending himself.

7. The trial court after perusing the evidence of the witnesses and

considering the submissions of the counsel for the state as well as the

counsel for the accused came to the conclusion that the testimony of

the eyewitnesses, PW-1 and PW-2 are reliable and trustworthy and that

the testimonies of DW-1 and DW-2 does not create any doubt on the

prosecution case. The trial court opined that the three stab wounds

inflicted by the accused were of such a nature so as to show that the

accused inflicted the wounds with an intention to cause death.

Accordingly, the trial court held that the prosecution had proved

beyond reasonable doubt that the accused/appellant committed the

murder of the deceased Shyam Bir.

8. Mr.Siddharth Luthra, Sr.Advocate, learned counsel for the

appellant has relied on (2005) 9 SCC 71, Shankar Narayan Bhadolkar

v. State of Maharashtra; (2004) 11 SCC 395 Sridhar Bhuyan v. State

of Orissa; (2006) 10 SCC 524, Lachman Singh v. State of Harayan; AIR

1958 SC 465, Virsa Singh v. State of Punjab ; AIR 2008 SC 462, Gali

Venkataiah v. State Andhra Pradesh and (2002) 1 SCC 351, Munshi

Prasad and Others v. State of Bihar in support of pleas and contentions

on behalf of the appellant.

9. In Munshi Prasad & Ors (Supra) the Supreme Court had held

that the evidence tendered by the defense witnesses cannot always be

termed to be a tainted one by reason of the factum of the witnesses

being examined by the defense. The defense witnesses are entitled to

equal respect and treatment as that of the prosecution‟s and the issue

of credibility and the trustworthiness ought also to be attributed to the

defense witnesses at par with that of the prosecution‟s. It was further

held that a lapse on the part of the defense witness cannot be

differentiated and be treated differently than that of the prosecution‟s

witnesses.

10. The learned counsel for the appellant has also relied on Virsa

Singh (Supra) which had laid down the applicability of Clause "Thirdly"

of Section 300. Under the said section, culpable homicide is murder if

both the conditions are satisfied i.e. the act which causes death is done

with the intention of causing death or is done with the intention of

causing a bodily injury and the injury intended to be inflicted is

sufficient in the ordinary course of nature to cause death. It was held

that it must be proved that there was an intention to inflict that

particular bodily injury which, in the ordinary course of nature, was

sufficient to cause death viz. that the injury found to be present was the

injury that was intended to be inflicted.

11. The plea of the learned counsel for the appellant is that the

injuries were sustained by the deceased as well as appellant on account

of scuffle between the appellant and the deceased. In the circumstances

it has to be ascertained whether there was an intention to strike at a

vital or a dangerous spot with sufficient force to cause the kind of injury

found to have been inflicted. Taking the entire evidence into

consideration the inevitable conclusion is that there was no intention to

inflict the injury which was sustained by the deceased and the injury to

the deceased was accidental or unintentional. In the circumstances it is

submitted that the conviction of the appellant could not be under

Section 302 of the Indian Penal Code.

12. In Virsa Singh (Supra), it was held by the Supreme Court that

once it is proved that there was a bodily injury, then nature of injury

must be proved. Thereafter it must be proved that there was an

intention to inflict that particular bodily injury, that is to say it was not

accidental or unintentional or that some other kind of injury was

intended. Once these three factors are established then it is to be

established that injury intended to be inflicted was sufficient to cause

death in the ordinary course of nature and once these elements are

established by the prosecution, the offence is murder under Section 300

"thirdly". It would not matter that there was no intention to cause death

or that there was no intention even to cause injury of a kind that is

sufficient to cause death in the ordinary course of nature. In this case

cited by the learned counsel for the appellant, the accused had stabbed

a spear into the abdomen of the deceased with such forces that it

penetrated the bowels and three coils of intestines came out of the

wound and the digested food came oozing out from the cut in three

places. In the circumstances, it was held that it would be perverse to

conclude that he did not intend to inflict injury that he did and whether

the intention was there or not was one of fact and not of law. The

Supreme Court had also clarified that in given circumstances if it can

be proved that the accused only intended a superficial scratch and that

by accident his victim stumbled and fell on the sword or spear that was

used, then the offence would not be murder. This is not because the

prisoner did not intend the injury that he intended to inflict to be as

serious as it turned out to be but because he did not intend to inflict

the injury in question at all.

13. In Lachman Singh (Supra), the Supreme Court had laid down the

difference between Section 300, exceptions 1 and 4. It was held that for

bringing the applicability of Exception 4 to Section 300 of Indian Penal

Code, it is to be established that the act was committed without

premeditation, in a sudden fight, in the heat of passion upon a sudden

quarrel without the offender having taken undue advantage and not

having acted in a cruel or unusual manner. The Supreme Court held

that Section 300, 4th Exception, covers acts done in a sudden fight.

Exception 4 deals with a case of prosecution not covered by the 1st

exception. It was further held that the said exception is founded upon

the same principle i.e there is absence of premeditation. Whereas in the

case of exception 1, there is a total deprivation of self control but in

case of exception 4, there is only that heat of passion which clouds

men‟s sober reason and urges him to deeds which he would not

otherwise do. The difference in exception 4 and 1 of Section 300 was

enunciated by the Court in para 11 of the said judgment at page 528

which is as under.

11. 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 reason 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 IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passion 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. In this case, on account of issue of flow of water, accused Dev

Singh had got infuriated and had asked his son Lachman Singh to

bring the revolver from inside, which was brought and accused Dev

Singh asked his son Lachman Singh to shoot whereupon Lachman

Singh fired and the shot hit the deceased whereafter the accused Dev

Singh took the revolver from his son Lachman Singh and started firing

shots which hit other persons. The Supreme Court had held that the

Court has to see whether the act, irrespective of its result, was done

with the intention or knowledge and under circumstances mentioned in

the Section. An attempt in order to be criminal need not be the

penultimate act. It is sufficient in law, if there is present an intent

coupled with some overt act in execution thereof. After analyzing the

evidence in this case, the conviction of Lachman Singh who had fired

from the revolver at the instance of his father, was altered from Section

302 of IPC to Section 304 part I IPC in order to meet the ends of justice,

and custodial sentence of 10 years with a fine of Rs.1000/- was

imposed.

15. It was thus held that a sudden fight implies mutual provocation

and blows on each side. In the circumstances, 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 no. 1. A

fight which suddenly takes place, for which both the parties are more or

less to be blamed, then there is a mutual provocation and aggravation

and in the circumstances, it will be difficult to apportion the share of

blame which attaches to each fighter.

16. Defining the scope of Exception 4 to Section 300 in Sridhar

Bhuyan (Supra), the Apex Court had held that the said exception covers

acts done without premeditation, in a sudden fight in the heat of

passion upon a sudden quarrel with the deceased without the offender

having taken undue advantage and not having acted in a cruel or

unusual manner. For applicability of exception 4, it was held that all

the ingredients of exception 4 must be satisfied. In this case Umakanta,

brother of Sridhar Bhuyan had teased Jayanti on 21st August, 1988. On

22nd August, 1988, deceased‟s son complained about the previous

incident and in the evening when Jayanti‟s father returned, the

deceased along with Jayanti‟s father went to the house of Sridhar

Bhuyan, however, nothing could be decided as Umakanta was absent.

On 23rd August, 1988 the deceased again went to the house of Sridhar

Bhuyan and insisted that he should come with his brother Umakanta to

settle the matter regarding teasing of Jayanti and on refusal a quarrel

ensued in which Sridhar Bhuyan went inside and came out with the

knife and inflicted blows with knife on the back of the deceased and

when the deceased turned his face, the knife was also inflicted into the

chest of the deceased. Two persons present tried to save the deceased

but could not succeed. Thereafter, deceased fell down and he was taken

to the village library where he succumbed to his injuries. In these

circumstances, it was held that the act was committed without

premeditation in a sudden fight in the heat of passion upon a sudden

quarrel without the offender having taken undue advantage and not

having acted in cruel or unusual manner. Therefore, the act of Sridhar

Bhuyan was held to be covered under the 4th exception to Section 300

of Indian Penal Code and the case was not covered under Section 302 of

the Indian Penal Code and in the circumstances, the conviction was

altered to Section 304 Part-I of the Indian Penal Code and custodial

sentence of 10 years was awarded in place of life imprisonment awarded

by the lower court.

17. In Shanker Narayan Bhadolkar (Supra), the Supreme Court had

dealt with the difference between culpable homicide and murder. It was

held that every murder is culpable homicide but vice versa is not true.

Generally speaking, it was held that culpable homicide without special

characteristic of murder is culpable homicide not amounting to murder.

In para 24 of the judgment, the Supreme Court had tabulated the

distinction between the Section 299 and Section 300 of Indian Penal

Code which is as under:

Section 299                                           Section 300


A   person    commits    culpable Subject to certain exceptions

homicide if the act by which the culpable homicide is murder if the death is caused is done- act by which the death is caused is done-

INTENTION

(a)with the intention of causing (1)with the intention of causing death; or death; or

(b)with the intention of causing (2) with the intention of causing such bodily injury as is likely to such bodily injury as the offender cause death; or knows to be likely to cause the death of the person to whom the harm is caused; or

(3)with the intention of causing bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

KNOWLEDGE

(c)with the knowledge that the act (4) with the knowledge that the act is likely to cause death is so imminently dangerous that it

must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

18. In this case, deceased and some other persons were invited by the

appellant Shankar Narayan Bhadolkar to attend dinner at his house

and after finishing meal, the deceased was standing on the threshold of

the house. Appellant lifted the gun, unlocked it, loaded it with cartridge

and shot the gun from a close range aiming at the chest of the

deceased. The version of the appellant was that the deceased was

heavily drunk and was not paying any heed to what was being said to

him and, therefore, in order to scare him appellant had picked up a

gun, loaded with blank cartridges which only created noises, but in the

scuffle the said gun got fired and the deceased sustained injuries. In the

circumstances, analyzing the evidence it was held that there was no

element of culpability to bring home accusations of Section 302 and at

the most it was covered by Section 304A. It was further held that

Section 304A applies to cases where death is caused by doing a rash or

negligent act and is not applicable where the act is done with the

intention or knowledge to cause death.

19. In Gali Venkataiah (Supra), relied by the learned counsel for the

appellant, the accused was convicted by the trial court for committing

offence under Section 302 of Indian Penal Code and the appeal filed by

the accused was dismissed. The Supreme Court considering the facts

that the relation between the accused and the deceased were strained

and that there was exchange of heated words before the assault and

that they quarreled with each other, held that murder was committed

without premeditation in the heat of passion upon a sudden quarrel

and without the accused taking undue advantage and not having acted

in a cruel or unusual manner. Consequently, ingredients of exception 4

to Section 300 of Indian Penal Code were established and the accused

was held liable for conviction under Section 304 Part-I of Indian Penal

Code and not Section 302 of Indian Penal Code.

20. Learned counsel for the appellant has also contended that the

evidence of the defense witnesses requires consideration which has

been ignored by the trial court without any rationale. In Munshi Prasad

and others (Supra), the Supreme Court had held that the evidence

tendered by the defense witnesses cannot always be termed to be a

tainted one, by reasons of the factum of the witnesses being examined

by the defense. It was held that the defense witnesses are entitled to

equal respect and treatment as that of the prosecution and the

credibility and trustworthiness should also be considered in respect of

defense witnesses at par with that of prosecution before rejecting their

testimony. It is more so because a lapse on the part of defense

witnesses cannot be differentiated and be treated differently than that

of prosecution witnesses.

21. Per contra, the learned counsel for the respondent/State, Mr.

Dudeja has relied on AIR 2000 SC 160, Rajesh Govind Jagesha v. State

of Maharashtra; AIR 1983 SC 680, Rana Pratap and others v. State of

Haryana; AIR 2003 SC 1074, State of Karanataka v. Shariif; 2002 (1)

Crimes 322, Allarakha K. Mansuri v. State of Gujarat; 2002 IV AD (SC)

203, Dharamendrasinh @ Mansing Ratansinh v. State of Gujarat; AIR

2004 SC 1264, State of Rajasthan v. Dhool Singh; (2003) 12 SCC 792,

Badam Singh v. State of Madhya Pradesh and (2003) 12 SCC 241, Hem

Raj and another v. State of Punjab, in respect of his contention.

22. This Court has heard the learned counsel for the appellant and

the learned Additional Public Prosecutor. In Rana Pratap (Supra) relied

on by the learned Additional Public Prosecutor, the Supreme Court had

held that in a murder trial by describing an independent witness as

chance witnesses it cannot be implied that their evidence is suspicious

and his presence at the scene shall be doubtful. It was further held that

every person who witnesses the murder reacts in his own way. Some

are stunned, become speechless and stand rooted to the spot. Some

become hysteric and start wailing. There is no such rule of natural

reaction. To discard the evidence of witnesses on the ground that he did

not react in any particular manner is to appreciate evidence in a wholly

unrealistic and unimaginative way.

23. The other precedent, State of Karnataka v. Shariff (Supra) is not

relevant for the present case. In the precedent relied on by the

Additional Public Prosecutor, the matter pertained to the evidence of the

witnesses to whom the deceased had made statement regarding her

husband tying her hands and legs and thereafter pouring kerosene on

her and setting her on fire. Whether that can be construed as dying

declaration or not was under consideration, which is not the dispute in

the present case.

24. In Allarakha K.Mansuri (Supra) it was held that where a view

taken by the trial Court was uncalled for, not based upon the facts of

the case or legal evidence tendered in the case and was a result of

conjectures, imagination and hypothesis, in such a case High Court

would be justified in re-examining the whole evidence and convicting

the accused. It was further held that defective investigation by itself

cannot be made a ground for acquitting the accused. In

Dharmendrasinh (Supra) the wife of the accused was herself an eye

witness and her testimony had contradictions as to the nature of

weapon used, axe or dhari. It was held that such minor contradictions

are insignificant and on the basis of minor discrepancies an accused

cannot seek acquittal. Minor contradictions only entail close and careful

examination.

25. In Dhool Singh (Supra) it was held by the Supreme Court that a

single blow will not always be determinative of intention. In this case

the accused had inflicted cut wound on the neck of the deceased which

had caused excessive bleeding and heart failure. It was held that the

injury though solitary, exhibits intention and knowledge of the attacker

to cause death. Under Section 300, words "likely to cause death"

indicates such facts where miraculous survival is not contemplated.

Such an injury on the neck which led to excessive bleeding and heart

failure would rather reflect intention and knowledge of the accused. In

Hemraj & Anr (Supra) the Supreme Court had rejected the observation

of the High Court that unless the manner in which the occurrence took

place is stated in the report, the same cannot be treated as FIR. In

Badam Singh (Supra) referred to by the learned Additional Public

Prosecutor it was held that the existence of motive loses significance

when there is reliable ocular testimony but where the ocular testimony

appears to be suspect, the existence or absence of motive acquires some

significance regarding the probability of the prosecution case. The

precedents relied on by the learned Additional Public Prosecutor

appears to be not very relevant for the decision of present appeal.

26. The learned counsel, Sh.Luthra has contended that there are

major contradictions and discrepancies in the statements of the

prosecution witnesses, PW-1, Bir Singh; PW-2 Shanti Lal and PW-7

Ramwati. According to him the recovery of weapon was not at the

instance or attributable to the appellant and there are contradictions in

the statement of PW-1 & PW-2 who had deposed that the weapon was

thrown in Kuredaan (dustbin) whereas PW-7 & PW-13 stated that it was

thrown in khatta. No finger prints of the appellant were found on the

alleged weapon of offence and the blood on the weapon could not be

connected to the blood group of the deceased. The learned counsel also

emphasized that FSL report had not been proved as no FSL witness was

examined rather it is apparent from the evidence that the knife was

rusted. Referring to Exhibit 2/A it is asserted that the knife sketch does

not mark any blood on it nor could PW-14 say that he had noticed

blood stains at the initial stage. The learned counsel has also pointed

out the discrepancies between the statements of ASI Roshan Lal PW-13

and Bir Singh PW-1, about the time of recovery. It is contended that the

recovery of weapon was not made in the appellant‟s presence and the

weapon was allegedly recovered from an open plot underneath bricks

and not from a dustbin (Kuredaan). In the circumstances it is

emphasized that the recovery cannot be attributed to the appellant and

it has not been established that the weapon recovered was the weapon

of offence.

27. The contradictions in the statements of PW-1 Bir Singh; PW-2

Shanti Lal and PW-7 Ramwati cannot be construed to be major

contradictions so as to disbelieve the entire prosecution version. The

plea of the appellant that recovery of weapon was not attributable to

him also cannot be accepted in the facts and circumstances on account

of alleged contradictions in the statements of PW-1 and PW-2 on the

ground that PW1 & 2 had deposed that the weapon was thrown in

kuredaan (dustbin) whereas PW7 & 13 had stated that it was thrown in

khatta. Photographs of PW 12/8 to PW 12/10 are the photographs of

the Khatta from where the knife used by the appellant was recovered.

The photographs show garbage of building material lying there. It

appears khatta is an open place where garbage is thrown and

accumulates. In the circumstances, the description of the same place

by two sets of witnesses in different words will not result into major

contradictions as has been contended by the learned counsel for the

appellant. Similarly on the ground that the knife which was recovered

at the instance of the appellant did not have the finger prints will not

negate the recovery of the knife at the instance of the appellant. The

sketch of knife exhibit PW2/A also reveals that the blade of the knife

was only 9.3 cm which is less than 4 inches and the handle was 11.7

cm which is also less than 5 inches. The knife did not have any spring

and appears to be an ordinary knife which could be carried by anyone.

The knife was also identified by PW-2 Shri Shanti Lal when it was

shown to him during his testimony and he had identified the knife as

the one that was used by the appellant. The Bombay High Court in a

case reported as 1993 Crl.Law Journal 1957, Machindra Namdeo

Deokar v. State of Maharashtra in which case the deceased had picked

up a quarrel with the accused by unlawfully demanding money from

him and attempting to search his pockets. When he was stopped no

money was found, he had stabbed with a knife. It was held that the

knife was not carried with the intention of murder, rather slapping of

the accused was held to be grave and sudden provocation and accused

was held guilty under Section 304 Part II and not under Section 302. In

the circumstances, the plea of the learned counsel for the appellant that

the knife was not the weapon of offence and was not recovered at the

instance of appellant cannot be accepted. Also the FSL report can be

tendered into evidence and not producing any witness from the Forensic

Science Laboratory will not lead to rejecting the said report.

28. The learned counsel has also pointed out that there are

discrepancies in respect of the place of arrest and time of arrest.

Whereas PW-6 had stated that the accused was arrested from his

house. PW-1 did not depose anything about it whereas Exhibit PW6/H,

arrest memo of the appellant reflects that he was arrested at the spot.

Regarding the time of arrest also there are discrepancies in as much as

PW-1 stated that the appellant was arrested after he returned from the

hospital whereas according to PW-2 appellant was already arrested

when he returned from the hospital. The time of arrest has been shown

as 5.30 A.M however, Constable Pratap Singh, PW-6 stated that the

appellant was arrested at 4.30 A.M. A different version is given by PW-

13 and PW-16. According to them appellant was found injured at his

house and was taken to the hospital and was brought back and handed

over by PW-16 to PW-13.

29. Regarding the time of quarrel also certain inconsistencies have

been pointed out by contending that as per PW-2 the incident took

place at 9.00 P.M whereas according to PW-1 Bir Singh the incident

took place at 9.30 P.M. Constable Ved Prakash gave the time of incident

as 9.05 P.M and the rukka stipulates 9 P.M. ASI Roshan Lal, PW-13

deposed that the quarrel took place at 8.30 P.M however, he did not

specify as to for how long the altercation between the deceased and the

appellant continued whereas PW-2 Shanti Lal‟s version is that the

quarrel/altercation continued for 3-4 minutes after he reached the spot.

In the circumstances, the plea of the learned counsel for the appellant

is that the place of arrest, time of arrest and duration of altercation has

not been established beyond reasonable doubt and in the

circumstances it cannot be held that the incident was pre meditated so

as to convict the appellant under Section 302 of IPC and this casts a

grave doubt about the veracity of the prosecution case.

30. Regarding the contradictions in the statements of PW-1, PW-2

and PW-7 on behalf of appellant it is pointed out that PW-1 is related to

the deceased being the mausa (mother‟s sister‟s husband) and,

therefore, his testimony has to be viewed with caution. Though he was

related and reached the spot when altercation was going on but he did

not endeavour to stop the quarrel or to extricate the deceased. Referring

to the testimony of PW-1, the learned senior counsel has pointed out

that he is silent about the presence of PW-2 Shanti Lal although the site

plan, Exhibit PW11/A reflects that Bir Singh was standing adjacent to

Shanti Lal. PW-1 Sh.Bir Singh rather stated that he was not aware as to

when Shanti Lal came to the spot. The learned counsel has also pointed

out that PW1 Bir Singh had stated that the appellant had caught hold

of the collar of Shyam Bir and stabbed him whereas PW-2 Shanti Lal

had stated that the appellant was holding his head after being hit by

the brick. PW-1 Bir Singh also deposed that he did not intervene in the

quarrel to save the deceased whereas Ramwati, PW-7 had deposed that

Bir Singh had chased the appellant.

31. On behalf of the appellant the emphasis is also laid on the fact

that PW-2, Shanti Lal had neither revealed that he was living in the

house of deceased nor did he disclosed his relationship with the mother

of the deceased. However, the fact that he was living in the house of the

deceased and that he is the brother of the mother of the deceased has

been established from the statement of Smt. Ramwati, PW-7. Thus PW-

2, Shanti Lal is also a related witness and much reliance cannot be

placed on his deposition in view of the inconsistencies between these

three witnesses. PW-2 Shanti Lal had claimed that he was present

during the argument preceding the incident for 3/4minutes but

surprisingly he did not intercede. In his cross examination he had

stated that the quarrel started on the issue of the deceased‟s sister,

however, he could not depose as to which sister. Impeaching the

testimony of PW-2 it has been argued that though he is a resident of the

same area and the incident had occurred at the market place, but still

he could not tell as to who had the shops in the area near the place of

incident.

32. Doubt is also cast on the testimony of PW-7 on the ground that

she is not an eye witness as she had only seen the accused running

after the incident and she therefore, could not depose as to what

happened during the alleged altercation. She did not name the

appellant at the time of admission to the hospital, in the MLC Exhibit

PW4/A which is the first record by the said witness of the incident.

Inconsistency in her statement has also been pointed out to the fact

that she stated that she met the appellant at the hospital but PW-6

Pratap Singh stated that he met her at the spot at 3-4 A.M. Even PW-1

Bir Singh and PW-2 Shanti Lal had mentioned the presence of PW-7,

Ramwati during the investigation at the spot. In the circumstances, it is

contended that on the conjoint reading of the statements of these three

witnesses culpability of the appellant is not made out. The learned

counsel for the appellant has also pointed out that from the testimonies

of PWs 1, 2, 13 & 16 and from the MLC of the appellant (Exhibit

PW4/D) the injury on the head of the appellant has been established,

however, no explanation is offered by the prosecution as to who had

caused the injuries. The brick which caused the injury on the head of

the appellant was not recovered. Sh.Shanti Lal had confirmed that there

was blood on the cloth of the appellant, however, neither PW-6 noticed

the same nor was it incorporated in the seizure memo of clothes of the

accused (Exhibit PW6/C). The emphasis is also laid by the learned

counsel in the delay in filing the FIR as according to him the delay of 5

hours has not been satisfactorily explained.

33. On behalf of appellant it is also contended that material witnesses

have not been examined. According to the learned counsel Gauri, sister

of the deceased who was allegedly teased by the accused was a material

witness who had not been examined nor was any explanation given for

the same. The woman who had informed Ramwati regarding the

incident pursuant to which she had gone towards the spot and had

seen the appellant running away has not been named nor examined.

The said woman might have witnessed the quarrel and her testimony

would have been very material in the circumstances. Also none of the

public persons who were in the crowd at the time of the altercation have

been examined. It has been contended that the statements of 4-5 public

persons were recorded but none of these witnesses were examined nor

were their statements under Section 161 of the Criminal Procedure

Code placed on record. No effort was made to locate the person from the

crowd who threw the stone at the appellant nor was the owner of khatta

from where the knife was recovered been examined. The learned

counsel has contended that since FSL expert Srivastava was not

examined, reliance could not be placed on the report of FSL.

34. Regarding the chappals it is submitted that if these were left by

the accused/appellant and he had ran 10 steps to his house, they could

have been connected with the appellant to show his presence and the

role attributed to him. Though the chappals were recovered and were

covered with blood, however, from the FSL report it cannot be

established that the blood on the chappals was that of the appellant.

PW-2 Sh.Shanti Lal had not identified the chappals as that of appellant

and even Bir Singh, PW-1 is silent about the identity of the chappals.

Consequently, it is contended that the prosecution has not been able to

establish its case and the conviction of the appellant is liable to be set

aside.

35. The learned counsel has also pointed out contradictions in the

statement of PW-3 ASI Roshan Lal who stated that he received a call

regarding the quarrel at 8.30 PM whereas PW-16 Constable Ved

Prakash had stated that the call was received at 9.05 P.M.

Inconsistencies in the statements of PW-6 and PW-11 has also been

referred to in as much as PW-6 had deposed that SI Balraj Singh

(deceased) Investigating Officer had prepared the site plan at the spot

whereas PW-11 SI Mahesh had stated that he had visited the spot on

7th April, 2003 and prepared the site plan on being pointed out by PW-1

Sh. Bir Singh. Setting aside the order of conviction is also sought on the

ground that the testimony of the witnesses DW-1 Awdesh Kumar and

DW-2 Ghanshyam has not at all been considered though equal

credence must be given to the testimonies of the defence witnesses. In

the circumstances, the plea is that the prosecution has failed to make

out the charge against the appellant beyond reasonable doubt and

consequently the conviction and sentence of the appellant is liable to

set aside.

36. The inconsistencies pointed out regarding the time of arrest

would also not belie the prosecution version. As has been pointed out

PW-2 had deposed that the incident took place at 9 PM whereas PW-1

gave the time of incident as 9.30 PM. Constable Ved Prakash had given

the time of incident as 9.05 PM and the rukka stipulates 9 PM. From

the testimony of these witnesses it is apparent that the time of incident

is about 9 PM. Variation about the time of incident in minutes in the

present facts and circumstances of the case cannot be construed to be

such major contradictions as to disbelieve all these witnesses. This

cannot be disputed in the facts and circumstances that the incident

had taken place and the weapon is the knife that caused the injuries on

the deceased. Similarly, variation in respect of place of arrest would also

not discredit the entire prosecution version. PW-6 Constable Pratap

Singh had deposed that the appellant was arrested by IO and he was

present when the appellant was arrested from gali just in front of his

house. The plea of the learned counsel for the appellant that according

to PW-6 appellant was arrested from his house is not in consonance

with the deposition of PW-6. Perusal of exhibit PW-6/H arrest memo

reflects that the appellant was arrested from the spot. From the plan

exhibit PW-11/A reveals the house of the accused at point H whereas

the Jhuggi of the deceased is at point B3 and their Jhuggi and houses

are almost opposite to each other. The place of incident where the

appellant is alleged to have stabbed the deceased is also about 3

jhuggis away. In the circumstances PW-6 had deposed that the accused

was arrested from the gali just in front of his house and arrest memo

discloses that the appellant was arrested from the spot, hence there is

no major contradiction or such contradiction which will not be

reconcilable. The place of incident, the jhuggi of the deceased and the

house of the appellant are in the vicinity of each other and in the

circumstances the appellant cannot discredit the prosecution version

on these minor variations. On behalf of appellant the testimony of PW-1

is attempted to be discredited on the ground that he being the mausa

(mother‟s sister husband) did not even endeavour to stop the quarrel or

to extricate the deceased though he had reached the spot when the

altercation was going on. The plea of the learned counsel for the

appellant is based on an assumption that every person who witnesses

the murder would react in a similar way. This assumption cannot be

countenanced as every persons who witnesses murder reacts in a

different way as some are stunned and become speechless and stand

rooted to the spot whereas some become hysteric and start wailing.

There is no such rule of natural reaction and the testimony of a witness

cannot be discarded on the ground that the particular witness did not

react in a particular manner. Discrediting the testimony of PW-1 Mausa

of the deceased (mother‟s sister husband) would be wholly unrealistic

and unimaginative on this ground. The testimony of PW-1 also cannot

be discredited on the ground that he did not depose about the presence

of Sh.Shanti Lal although the site plan exhibit PW-11/A shows that he

was standing adjacent to Shanti Lal. Sh.Bir Singh PW-1 in his

deposition had stated that he was not aware as to when Shanti Lal

came to the spot. This deposition in our opinion will not discredit his

testimony in any manner as at the time he was witnessing the scuffle

which had taken place between the deceased and the appellant and the

stabbing of the deceased. Being related to the deceased if his attention

was solely on the incident of stabbing, that he had not noticed as to

when Shanti Lal came there, on this ground it cannot be inferred that

his deposition suffers from such material inadequacy or would be so

unnatural so as to be unreliable. According to the testimony of PW-7

Smt.Ramwati, Bir Singh, PW-1 after the incident was chasing the

appellant and in the circumstances if he had not noticed as to when

Shanti Lal came at the spot his testimony cannot be doubted.

37. The plea of the learned counsel for the appellant that the

testimony of Shanti Lal, PW-2 would also be doubtful as he did not

disclose that he was living in the house of the deceased and his

relationship with the mother of the deceased will also be not

sustainable. PW-7 mother of the deceased did not say that Shanti Lal is

her brother but rather deposed that he is related like a brother. PW-7

had deposed that he lives about 200-205 yards away in his house.

Shanti Lal, PW-2 had rather deposed that he does the job of preparing

locks and keys and his house was in Block A. He had deposed that

deceased was not related to him, however, the mother of the deceased

was treating him like a brother. In the circumstances, the plea of the

learned counsel for the appellant that the deposition of PW-2 Shanti Lal

is not creditworthy as he is related to the deceased and that he had not

disclosed his relationship is not to be accepted.

38. The testimony of PW-7 is unimpeachable and categorical to the

extent that when she came to the Jhuggi she found that the appellant

after stabbing her son was running away and Bir Singh, PW-1 was

chasing him. She had also deposed that appellant had stabbed

deceased on his back and thereafter he ran to his house and closed the

door. The place of incident where the stabbing took place is very near to

the Jhuggi of PW-7 which is apparent from the site plan exhibit PW-

11/A. From the testimonies of the witnesses it is also apparent that

before the stabbing incident, a verbal altercation had taken place

between the deceased and the appellant. The deceased had told the

appellant that "Yadi Tumne Meri Behan Ke Taraf Dekha To Achha Nahi

Hoga". The appellant had retorted "Yadi Tu Mere Beech Me Aayega To

Tera Kaam Tamam Kar Dunga". This verbal altercation rather reveals

that the appellant had not come to the Jhuggi of the deceased and

taken the deceased slightly at a distance from his Jhuggi with the

intention to attack him there, because had this been the intention of

the appellant there wouldn‟t have been any verbal altercation and he

would have stabbed the deceased immediately after taking him to a

certain distance. Had the intention of the appellant been to take him

away from the Jhuggi and then to stab him he wouldn‟t have done it in

the middle of the market which was bustling with activity, as has been

borne out from the evidence. The plea of the learned counsel for the

appellant that PW-7 did not name appellant at the time of admission in

the hospital in the MLC exhibit PW-4/C is also not of much

consequence. The appellant is not a complete stranger to PW-7 as his

house is almost opposite to the Jhuggi of the PW-7. In the

circumstances, PW-7 not mentioning the name of the appellant in the

hospital in the MLC exhibit PW-4/A is not of much consequence as on

the conjoint reading of the testimonies of the witnesses including the

defence witnesses it is apparent that it was the appellant who was

involved in the incident of stabbing the deceased after a verbal

altercation had taken place between the deceased and the appellant

after which he threw the knife in the khatta while running away and

thereafter locked himself in the room.

39. The plea of the appellant that though the statement under

Section 161 of the Criminal Procedure Code of 4-5 public persons were

recorded, however, none of those witnesses were examined will not

affect the prosecution version. If the testimony of PW-1, PW-2 and PW-7

is reliable and cannot be rejected mainly on the ground that they were

interested or related witnesses, non examination of other 4-5 public

witnesses will not be very material. The plea that the chappals which

were left at the spot could not be connected to the appellant also does

not impact the prosecution version in such a manner so as to infer that

the appellant was not involved in the altercation with the deceased and

subsequently in stabbing him. The other contradictions pointed out by

the learned counsel for the appellant in the testimonies of PW-3 ASI

Roshan Lal and PW-16 Constable Ved Prakash are also minor in the

facts and circumstances and do not dislodge the prosecution version

completely so as to give any benefit to the appellant. There is no

proposition in law that relatives are to be treated as untruthful

witnesses. On the contrary, reason has to be shown when a plea of

partiality is raised to show that the witnesses had reason to shield

actual culprit and falsely implicate the accuse as was held by the Apex

Court in Rajesh Kumar Vs State of H.P, AIR 2008 SCW 6833.

Relationship would not result in the mechanical rejection of the

testimony of the witnesses. Settled norms of appreciation of evidence

require that the evidence of such witnesses is to be assessed with

caution as was held in (2007) 2 SCC 310, Amitsingh Bhikamsingh

Thakur Vs State of Maharashtra.

40. Non examination of Gauri, sister of the deceased would also not

exculpate the appellant in any manner. The dispute is not whether the

appellant had teased Gauri or not which is apparent from the verbal

altercation about which PW-1 Sh.Bir Singh and PW-2 Shanti Lal have

deposed. Certain facts which are apparent in the case on the basis of

testimony of various witnesses is that the appellant lives almost across

the jhuggi of deceased where Gauri was also living. Either the appellant

was teasing the sister or was trying to develop a relationship with her

which was not accepted and consented to by the deceased. The

appellant had come to the Jhuggi of the deceased and had called him

and thereafter both went to some distance from the Jhuggi where the

verbal altercation had taken place. The deceased was of the opinion that

the appellant should not have any relation with his sister whereas the

appellant emphasized that he is no one to come between him and his

sister Gauri. In the circumstances the non examination of Gauri by the

prosecution will not impact substantially the prosecution version as the

fact about the verbal altercation and thereafter the deceased receiving

the stab injuries and the appellant running away from the scene being

chased by Bir Singh, PW-1 cannot be denied. In the circumstances, the

testimony of Gauri would not have been so material so as to exculpate

the appellant completely in absence of her testimony.

41. On the conjoint reading of the testimonies it is inevitable to infer

that exception 4 to Section 300 can be invoked in the present facts and

circumstances as the fight was without pre-meditation. The appellant

had called the deceased from the Jhuggi and both of them had gone to

a little distance from the Jhuggi and the verbal altercation had taken

place in the market in the presence of a number of people around. Had

the intention of the appellant been to stab the deceased pursuant to a

pre-meditated plan he would not have done it in an open market in the

presence of so many other people near the house of the deceased. The

other ingredient for invoking Exception 4 to Section 300 is also

apparent as there was a verbal altercation which led to the incident of

stabbing. Verbal altercation unequivocally reflects the sudden fight. The

fact that the appellant had also received the injuries cannot be doubted.

Whether the appellant got an injury before the stabbing or afterwards

cannot be inferred conclusively from the evidence, however, this is

sufficient to establish the elements of sudden fight between the

appellant and the deceased. Though in view of the ocular evidence

alternative medical opinion is not to be given preference but such

evidence will not rule out completely that the injuries were caused to

the deceased in the course of the sudden fight. Dr.Millo Tabin, PW-5

had categorically deposed that injuries No.2 and 3 i.e the stab wound in

the left side of back in the scapular region 1.5/0.7 cm size, 8 cm from

midline and 20 cm from shoulder tip which was muscle deep and stab

wound in the left side of back below scapular 2/1 cm size and 14/5 cm

from mid axiliry line and 6 cm from midline and 8.5 cm could be caused

in a scuffle. The testimony of Dr.Millo Tabin is as under :-

"Injury No.1 can be possible by a fall while walking. It is wrong to suggest that injury no.2 is a superficial injury. Muscle deep injury which I have mentioned it is generally more ½ cm in depth. Possibility cannot be ruled out that injury no.2 can be a result when a person holding a knife is opposed by the other person by twisting the arm to snatch the knife and may be caused in a scuffle. Vol. But it cannot be a self inflicted injury. Injury no.2 and no.3 are on the back side. I cannot comment on the law of physics that action and reaction are opposite and equal. It is correct that injury no.3 punctured vena cava which is blood vessel and death was caused by excessive bleeding. It is correct that injury no.3 can also be a result of a scuffle. The distance between injury no.2 and 4 was roughly about 10 to 15 cms. All the three injury were on the left side of the back. It is correct that possibility cannot be ruled out that injury no.3 and 4 caused by twisting of hand of the person holding knife by other person to snatch the knife."

42. Since there was a verbal altercation in which the deceased had

challenged the appellant by saying "Yadi Tumne Meri Behan Ke Taraf

Dekha To Achha Nahi Hoga" and the appellant had retorted stating

"Yadi Tu Mere Beech Me Aayega To Tera Kaam Tamam Kar Dunga"

reflects that they must have been facing each other at the time. It is

inconvincible that this verbal duet was going on when the appellant was

looking at the back of the deceased and the deceased was looking not

towards the appellant facing him and rather facing in some other

direction. In these circumstances the injury inflicted in the back of the

deceased must be on account of scuffle in which the deceased suffered

the injuries on his back which proved to be fatal. In the present

scenario, considering the testimonies of Sh.Bir Singh PW-1 and

Sh.Shanti Lal PW-2 and the mother of the deceased Ramwati PW-7 it

cannot be held that no undue advantage of the situation was taken by

the appellant. The verbal altercation and stabbing which took place in

the market was rather over within a short time whereafter the

appellant/ accused ran from the place of incident in a hurry and threw

the knife in the khatta nearby. The incident as has happened cannot be

termed to be unusual nor can it be inferred that the appellant had

acted in a cruel manner.

43. The defense put up by the appellant that the deceased had

brought the knife and had come with another person cannot be inferred

and believed on the basis of cogent evidence by PW-1 Bir Singh and PW-

2 Sh.Shanti Lal. PW-1 had very categorically deposed that the appellant

had taken out the knife from his right pant pocket which version was

also supported by PW-2 Sh.Shanti Lal who also had categorically

deposed that the accused/appellant took out a knife from his right pant

pocket and had given the blows to the deceased.

44. The other relevant factor for applicability of 4th exception is that

the fight must have been with the person killed. Though "fight"

occurring in exception 4 is not defined in IPC, however, it cannot be

denied that it has to be between the two persons. The utterances made

by the deceased to the appellant and the appellant to the deceased and

thereafter stabbing will constitute fight in the facts and circumstances

in which the deceased Shyam Bir died and consequently another factor

to bring the incident under 4th exception of Section 300 of IPC also

cannot be ruled out.

45. Another factor which is relevant is that in the fight which ensues

on account of heat of passion there must not be enough time for

passion to cool down. In the present case the appellant and the

deceased had worked themselves into a fiery state on account of the

verbal altercation and consequently this cannot be held that there was

ample time for the appellant and the deceased to cool down. Taking all

the facts into consideration on the basis of the testimonies of various

witnesses and other documents this Court has no doubt in inferring

that the 4th exception to Section 300 of IPC would cover the facts of the

present case.

46. Therefore, considering the factual position and the reasons as

discussed hereinabove in the background of the legal principles the

inevitable inference is that the case is not covered under Section 302 of

IPC and the ingredients necessary to bring in application of Exception 4

to Section 300 IPC are present.

47 Consequently, the conviction of the appellant is altered to Section

304 Part I of IPC and custodial sentence of the appellant is also

modified from life sentence to 10 years of sentence which would meet

the ends of justice. The appeal is, therefore, allowed to the extent as

indicated hereinabove. The appellant in the circumstances shall be

entitled to be set free on completion of 10 years of custodial sentence, if

not required in any other case. The sentence regarding the fine imposed

by the Sessions Court is however, upheld. The fine if not paid be also

paid by the appellant and in default to undergo imprisonment as

ordered by Session Court.

ANIL KUMAR J.

March 18th , 2011                            V.K.SHALI J
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