Kallu vs State
2011 Latest Caselaw 2637 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                     PRONOUNCED ON : 18.05.2011

+                               CRL.A.71/1998

       KALLU                                              ..... Appellant

                                CRL.A.46/1998

       SATPAL @ SATTE                                     ..... Appellant

                      Through : Sh. K.B. Andley, Sr. Advocate with Shri M.L yadav
                               and Shri M. Shamikh, Advocates.

                                       versus

       STATE                                              ..... Respondent

Through : Mr. Jaideep Malik, APP for the State.

CORAM:

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

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

2.     To be referred to Reporter or not?          YES

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

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
%

1. The present two appeals are directed against a common judgment and order of the Additional Sessions Judge, dated 22-01-1998, in S.C. No. 213/1993, by which the Appellants were convicted for having committed the offences punishable under Sections 392/34 IPC. Both the Appellants Kallu and Satpal were sentenced to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs. 15,000 in default of which they were to further undergo Rigorous Imprisonment for 1 year for their conviction under Section 394 IPC. Under Section 302 IPC Appellant Kallu was

Crl.A.Nos. 71/1998 & 46/1998 Page 1 sentenced to undergo life imprisonment and to pay a fine of Rs. 15,000 in default of which he would further undergo Rigorous Imprisonment for one year.

2. According to the prosecution allegations, on 11-02-1988, Raj Kumar Kapoor (the complainant), with his mother, Padmavati, and a friend was travelling in a Maruti car from Meerut, when, at 08:15 PM, the car developed a snag, near the Nizamuddin Bridge. Naresh went out to fetch a mechanic, whereas Raj Kumar stepped out of the car, and stood by near the car, when at about 08:30 PM, two men, aged about 25-30 years, reached there. One of them was wearing a pyjama and kurta and holding a churri in his hand. The other one was wearing a shirt and a pant; he asked the complainant and Padmavati to hand over whatever they had. The complainant handed over his Citizen make wrist watch and a gold chain, pendent weighing about 10 gms and a sum of ` 30/-. The two persons then forcibly got off the complainant's leather jacket and also snatched a bag belonging to Padmawati, which contained her medicines, and thereafter walked towards the bridge. The complainant raised an alarm, upon which a cyclist and a scooterist (with a pillion riding on the scooter) intervened with the two attackers. The scooterist, Mahesh Chand, tried to stop the attackers. He had a scuffle with the robber who was armed with a churri. Mahesh was given a churri blow on his stomach by the assailant, resulting in his getting injured and falling down. The attackers then jumped towards the fields, and disappeared. The police arrived at the spot, and took the injured to the hospital. Mahesh was declared brought dead.

3. The complainant reported the matter; an FIR was recorded by the police. After investigation, the police arrested the Appellants/ accused, and charged them for committing the offences, for which they stood trial, and claimed to be not guilty. The Trial Court held that the prosecution had proved their guilt beyond reasonable doubt, and sentenced them to undergo the prison terms mentioned in the preceding part of this judgment.

4. At the outset, Counsel for the appellants contended that they would not be contesting the basic facts found, by the Trial Court, and would be confining their submissions to the question about whether the Trial Court erred in holding that the Appellants were guilty for the offences punishable under Section 302 and 394 read

Crl.A.Nos. 71/1998 & 46/1998 Page 2 with Section 34, IPC. It was submitted that the nature of injury inflicted by the accused, and the circumstances under which it was inflicted, revealed that there was no intention to murder, and at best the prosecution had established commission of the offence under Section 304, IPC, for which the accused had already served above 10 years term in jail.

5. It was submitted that the Appellant Kallu had inflicted only one injury on Mahesh, which resulted in his unfortunate death. It was submitted that the eyewitness account of PW-3 clearly showed that there was no pre-meditated intention on the part of the Appellant to murder the deceased, a fact which was overlooked by the Trial Court.

6. Learned counsel relied on the judgment reported as Tholan v. State of T.N., (1984) 2 SCC 133 and Jagtar Singh v. State of Punjab, (1983) 2 SCC 342 to contend that where the facts did not disclose a deliberate and planned attack, leading to death of the victim, and was preceded by an altercation, the Court would be justified in returning a finding of the accused being guilty for the offence under Section 304, IPC. It was also submitted that as far as Satpal is concerned, the facts found nowhere revealed any covert or overt participation between him and Kallu. On the contrary, both eyewitness accounts pointed to his not participating in the attack against Mahesh. He did not have any weapon, which he is alleged to have wielded or used. He did not also admittedly cause any hurt to the deceased or anyone, warranting the finding of guilt under Section 394, IPC, recorded by the Trial Court. Learned counsel further submitted that the Appellant Kallu had already served a substantial period of the sentence awarded. As far as Satpal was concerned, the counsel submitted that he too had served nearly two years, and besides, was undergoing treatment for several years for his mental illness. He relied on his medical records, for this purpose.

7. The learned APP argued that the facts, as found, pointed to the Appellant Kallu being guilty for the offence under Section 302, for which he was correctly convicted, by virtue of the nature of injury inflicted by him. He relied on Exception 3 to Section 300, IPC, to say that the sole injury inflicted by Kallu was, having regard to where it was inflicted, sufficient in the ordinary course of nature to cause death.

Crl.A.Nos. 71/1998 & 46/1998 Page 3

8. As is evident, there is no doubt about the facts alleged against the Appellants, and found by the Trial Court. The two Appellants intended to, and did rob Padmavati, when her car was stationed at the Nizamuddin flyover. She and her son raised an alarm. A cyclist and Mahesh, the deceased (who was riding a scooter) tried to intervene. In the ensuing scuffle, Mahesh was stabbed on the right lower side of the abdomen, and suffered a 2.5 cm x 1 cm injury, which proved fatal. The question is whether Kallu is guilty for committing the offence punishable under Section 302, IPC.

9. In the decision, Tholan (supra), the court held the law to be as follows:

"12. It is equally not in dispute that appellant gave only one blow with a knife. Appellant had no quarrel or dispute with deceased Sampat. It is not shown that deceased Sampat had anything to do with the chit organised by K.G. Rajan. No malice has been alleged to have been entertained by the accused towards deceased Sampat. The incident occurred on the spur of the moment. It appears that the house of the deceased Sampat was somewhere near the house in which the organisers or at least one of them was residing. Appellant had his dispute and grievance with the organisers of the chit. It is the prosecution case that accused abused organisers of the chit. Deceased Sampat is not shown to be the organiser of the chit. Probably when the deceased Sampat told the accused not to misbehave in the presence of ladies and not to use vulgar and filthy language, the appellant retorted by questioning the authority of Sampat to ask him to leave the place. Presence of Sampat is wholly accidental. Altercation with Sampat was on the spur of the moment, even the meeting was accidental. There arose a situation in which appellant probably misguided by his own egocentric nature objected as to why Sampat should ask him to leave the place and in this background he gave one blow with a knife which landed on the right side chest of the deceased, which has proved fatal. Could the appellant be said to have committed murder? In other words, whether Part I or Part III of Section 300 IPC would be attracted in the facts of this case. Even Mr Rangam learned counsel for the State of Tamil Nadu could not very seriously contend that the appellant intended to commit murder of Sampat. His submission was that at any rate appellant, when he wielded a weapon like a knife and gave a blow on the chest, a vital part of the body, must have intended to cause that particular injury and this injury is objectively found by the medical evidence to be fatal and therefore Part III of Section 300 would be attracted. On this aspect, the decisions are legion and it is not necessary to recapitulate them here merely to cover idle parade of familiar knowledge. One can profitably refer to Jagrup Singh v. State of Haryana1, Randhir Singh v. State of Punjab2, Kulwant Rai v.

State of Punjab3 and Hari Ram v. State of Haryana4. To this list two more cases can be added: Jagtar Singh v. State of Punjab5 and Ram Sunder v. State of U.P.6 Having regard to the ratio of each of these decisions, we are satisfied that even if Exception I is not attracted, the requisite intention cannot be attributed to the appellant. But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation, he would be guilty of committing an offence

Crl.A.Nos. 71/1998 & 46/1998 Page 4 under Section 304 Part II of the Indian Penal Code. Having regard to the circumstances of the case, a sentence of 5 years would be quite adequate."

In Jagtar Singh (supra) the Supreme Court held that:

"7. Undoubtedly, PW 2 Dr H.S. Gill opined that the blow on the chest pierced deep inside the chest cavity resulting in the injury to the heart and this injury was sufficient in the ordinary course of nature to cause death. The question is whether in the circumstances in which the appellant gave a blow with a knife on the chest, he could be said to have intended to cause death or he could be imputed the intention to cause that particular injury which has proved fatal? The circumstances in which the incident occurred would clearly negative any suggestion of premeditation. It was in a sudden quarrel to some extent provoked by the deceased, that the appellant gave one blow with a knife. Could it be said that para 3 of Section 300 is attracted. We have considerable doubt about the conclusion reached by the High Court. We cannot confidently say that the appellant intended to cause that particular injury which is shown to have caused death. There was no premeditation. There was no malice. The meeting was a chance meeting. The cause of quarrel though trivial was just sudden and in this background the appellant, a very young man gave one blow. He could not be imputed with the intention to cause death or the intention to cause that particular injury which has proved fatal. Neither para 1 nor para 3 of Section 300 would be attracted. We are fortified in this view by the decision of this Court in Jagrup Singh v. State of Haryana1. It was subsequently followed in Randhir Singh v. State of Punjab2 and Kulwant Rai v. State of Punjab3. Following the ratio of the aforementioned decisions, we are of the opinion that the appellant could not be convicted for having committed murder of the deceased Narinder Singh. His conviction for an offence under Section 302 IPC and sentence of imprisonment for life are liable to be set aside.

8. The next question is what offence the appellant is shown to have committed? In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. Therefore, the appellant is shown to have committed an offence under Section 304 Part II of the IPC and a sentence of imprisonment for five years will meet the ends of justice."

In the decision reported as Balbir Singh v. State of Punjab,(2005) 9 SCC 299 the Supreme Court yet again explained the nature of the offence, in the following terms:

"8. Coming to the nature of the offence committed by the appellants, there is evidence to the effect that the appellants only wanted to teach a lesson to Tara Singh. They were aggrieved by the fact that deceased Tara Singh had purchased the agricultural land which they expected to get from Gurdial Kaur. Two of the assailants were armed with axes, but they did not use the sharp edge of those weapons and the injuries

Crl.A.Nos. 71/1998 & 46/1998 Page 5 sustained by deceased Tara Singh would show that there were no deep penetrating injuries....Appellants Gora Singh and Balbir Singh are not alleged to have caused any fatal injury to the deceased Tara Singh. Gora Singh, though armed with a "kulhari" (axe), used the blunt portion of that axe. Sikandar Singh was armed with a "sotti" (wooden stick). He caught hold of deceased Tara Singh to enable the other assailants to cause injury to him and Sikandar Singh himself gave sotti-blows on the back of the deceased which resulted in causing fracture of the ribs and, in turn, piercing of the lung tissues of the deceased Tara Singh. There is no dispute that these injuries were caused on Tara Singh. It is clear that Sikandar Singh dealt the fatal blows which ultimately resulted in the death of the deceased. If the entire prosecution evidence is considered in the background of the so-called motive alleged, it is very difficult to discern that these appellants had any common intention to cause the death of the deceased. The sotti-blows dealt on the back of deceased Tara Singh proved fatal causing fracture of ribs which pierced his lung tissues.

9. On careful analysis of the prosecution evidence and the role played by each one of the appellants, we are of the view that the evidence does not show that these appellants shared a common intention to cause the death of the deceased. However, appellant Sikandar Singh caused injuries on deceased Tara Singh which proved to be fatal at the end. The act committed by Sikandar Singh would come within the offence punishable under Section 304 Part I IPC as he could be attributed with the knowledge that the injury caused by him is likely to cause death. The grievous injuries caused by other appellants, namely, Gora Singh and Balbir Singh, would fall within the mischief of Section 326 IPC."

10. If one applies the principles discernable from the ratio in the decisions mentioned above, it is apparent that the motive which drove Appellant Kallu to cause the solitary knife injury to the deceased was the latter's attempt to catch hold of him, after he (Kallu) had committed robbery at knife point. Undoubtedly the facts disclose the use of a dangerous weapon. However, at the same time, Kallu's reaction could equally have been reflexive, to avoid being caught. It is no one's case that Kallu intended to commit murder, and had a motive to do so. Having regard to these overall conspectus of facts the court is satisfied that the facts as proved show that Kallu was liable to be convicted under Section 304, Part I IPC.

11. So far as Satpal is concerned, the charges framed against him were for committing offences under Sections 392/394/34 IPC.

12. Section 394, IPC criminalizes the act of causing hurt to someone in committing or attempting to commit robbery as also when such robbery is committed or attempted, jointly with another offender. Having regard to the facts

Crl.A.Nos. 71/1998 & 46/1998 Page 6 found, we are satisfied that the finding of the Trial Court on this aspect was justified, as far as both the Appellants are concerned.

13. For the above reasons, this court finds the Appellant Kallu guilty for committing the offences under Section 304, Part I IPC. His conviction and sentence is accordingly substituted; he shall undergo 10 years imprisonment for the said offence. As far as the other conviction and sentence is concerned, the court is of opinion that no interference with the Trial Court's judgment is called for. As regards Satpal, this court notices that he has undergone about 2 years imprisonment. He was just about 20 years when the offence he was found guilty of (Sections 392/34 read with 394, IPC) was committed. Furthermore, after the Court granted interim bail, during pendency of the appeal, he appears to have developed a mental or psychological ailment, and is undergoing regular treatment from AIIMS. Having regard to all these facts, the said accused's sentence for the offences under Section 392/34/394 IPC is confined to the period undergone by him.

14. The appeals are allowed in the above terms. The bail and surety bonds in respect of Satpal are hereby discharged. The Appellant Kallu is directed to surrender (on or before 7 June, 2011, before the Trial Court) and undergo sentence for the balance period, if he has not already completed it.

(S.RAVINDRA BHAT) JUDGE

(G.P. MITTAL) JUDGE May 18, 2011

Crl.A.Nos. 71/1998 & 46/1998 Page 7