Jagtar Singh @ Goggi And Anr. vs State
2011 Latest Caselaw 2794 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                      PRONOUNCED ON: 25.05.2011

+                     CRIMINAL APPEAL NO.111/1998

       JAGTAR SINGH @ GOGGI AND ANR.                       ..... Appellants

                      Through : Mr. Sumeet Verma, Amicus Curiae

                                       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. This appeal is directed against a common judgment and order of the learned Additional Sessions Judge dated 19.02.1998 and order of sentence dated 21.02.1998 by which the appellants were convicted for the offences punishable under Section 302/452/323/34 IPC. The appellant Tarsem was also convicted for offences punishable under Sections 27/54/59 Arms Act. Both appellants were sentenced to undergo life imprisonment with fine of Rs.1,000/- each in respect of offence under Section 302; they were sentenced to undergo RI for 3 years each with a fine of Rs.500/- in respect of conviction under Section 452/34 IPC; for the offence under Sections 323/34 IPC they were directed RI for one year each with fine. Tarsem was directed to undergo RI of 2 years with Rs.250/- as fine.

Crl.A. 111/1998 Page 1

2. The prosecution alleged that on 31.05.1995 at 6.00 PM Vikas @ Vickki (PW-2) who was the son of the deceased (Shyam Sharma) and Manu (Son of Tarsem) were flying kites. Both the deceased and Tarsem were neighbours living in adjacent houses. It was alleged that a quarrel took place between them. The nephew of one of the accused Ram Prakash and Sanjeev, the fourth accused in the case (both Ram Prakash and Sanjeev were declared proclaimed offenders) slapped Vikas. The latter's brother protested. By this time, alleged the prosecution, Tarsem and his brother Jagtar Singh (i.e. the appellant in this case) arrived at the scene with his brother-in- law Ram Prakash and abused the deceased. It was alleged that thereafter the appellants rushed inside their house; Tarsem came out holding a small Kripan and Jagtar Singh came out with an iron rod. It was alleged that they were shouting "MARO MARO" and pounced upon the deceased. It was stated that the accused Sanjeev caught hold of the deceased which resulted in the latter's brother rushing inside his house. Ram Prakash followed him and caught hold of the deceased from behind. It was also alleged that Tarsem gave kripan blows to the deceased's chest and abdomen and Jagtar Singh assaulted him with an iron rod. Shiv Kumar Singh i.e. PW-4 the brother of the deceased also received injuries. It was alleged that all four accused ran away after inflicting various injuries.

3. The prosecution alleged that at about 8.30 PM intimation about the incident was received at PS Krishna Nagar. Immediately, PW-1 along with others, reached the spot. They found 15 to 20 persons present at the site. It was alleged that the injured were removed to the GTB hospital. Shyam Sharma in the meanwhile was taken to the said hospital and was declared brought dead. The Medico Legal Certificate issued by the hospital was marked as PW 17/A, during the trial. The prosecution alleged that the injured brother of the deceased PW-4 met the police where he was declared fit to record the statement. His MLC was produced as Ex. PW 17/D. It was stated that PW-4 statement was recorded by the Police; same was later exhibited as PW4/A. Apart from narrating sequence of events, PW-4 had stated that after the attack, with the aid of his neighbours the deceased was taken to the hospital. First Information Report (FIR) was registered, the police investigated into the matter. It was alleged that IO PW-21 interrogated Tarsem after his arrest; his disclosure statement led to the recovery of the kripan. The same was seized by memo Ex. PW 4/G, which led to the arrest of other accused Sanjeev Kumar and the subsequent disclosure statement made by him. After the charge sheet was filed on account of non-appearance of two accused i.e. Sanjeev Kumar and Ram Prakash, the Court declared them

Crl.A. 111/1998 Page 2 proclaimed offenders. The appellants were charged with committing the offence and they were ultimately convicted of. They entered the plea of not guilty and claimed trial.

4. The prosecution examined 21 witnesses besides producing materials and exhibits. After analysing them the trial court convicted the appellants for the offences.

5. Mr. Sumeet Verma, learned Amicus Curiae in this case urged that the prosecution version is riddled with inconsistencies and the trial court fell into an error in recording the appellants' conviction. It was submitted that a conjoint reading of the testimonies of the alleged eye witnesses i.e. PW-2, PW-4, PW-5 reveal that the incident was triggered by a trivial quarrel. It was submitted that though PW-4 is alleged to have sustained injuries, yet according to the deposition of that witness, (in cross examination) no statement was recorded by the Police in the hospital. Similarly, urged learned counsel, the entire prosecution story about the disclosure statement to which PW-2 was a witness is not believable because he has not spoken about it. Furthermore PW-4 did not even corroborate the prosecution version about having signed the statement made. Learned counsel pointed out that the trial court adopted a procedure forbidden by law in permitting cross-examination by the prosecution of this witness after conclusion of cross-examination on behalf of the accused, it is contrary to Section 138 of Evidence Act. If the prosecution felt that there was any need for clarification of the oral testimony it could have availed itself the right to re-examine the witness but could not have asked leading questions.

6. It was urged that there were other serious inconsistencies in the prosecution version because PW-5's testimony established that several others from the neighbourhood were present and had participated in the fight which erupted immediately after the cause for quarrel. Learned counsel emphasised that PW-5's conduct when she deposed about having seen both her sons getting injured and touched their heads and thereafter not tending to their wounds but instead going and washing her hands reveal an utterly unnatural conduct on her part. Being the mother, the natural behaviour would have been to give all possible aid to the injured who were her sons. But this unnatural behaviour falsified the prosecution story about her presence at the scene of occurrence. It was also urged that this witness clearly testified the presence of numerous other persons who had participated in the fight; yet none of them were questioned or examined as prosecution witness. Learned counsel submitted that the main witnesses relied upon by the prosecution were all interested and were family members of the deceased; despite availability of

Crl.A. 111/1998 Page 3 independent witnesses in the vicinity at that time. Learned counsel further argued that the trial court quite erroneously recorded that the blood was seen on the kripan whereas a reading of the forensic report Ex. PW13/A established that no such positive result about the blood group, as held by the trial court was the subject matter of the opinion. Learned counsel emphasised that a careful reading of PW-4's testimony would show that the alleged recovery pursuant to the arrest of appellant Tarsem was not validly proved. The witness had stated that he went along with the Police to Tarsem's house when nobody was around and the door was open. He also stated that a kripan was recovered from the Tarsem's house. Learned counsel submitted that evidence of PW-1 was categorical about the recovery of kripan on 01.06.1995 from Tarsem's house which he had kept in the washing machine in the court yard. PW-21 also clearly stated about the presence of PW-4 at that time. If one kept this in mind, the statement of PW-4 that Tarsem was not interrogated the night of the incident in the hospital nor on the succeeding day in the Police Station nor ever interrogated his presence or even that Tarsem's statement was not recorded in his presence completely falsified Tarsem's alleged disclosure statement and the further recovery of kripan.

7. Learned counsel urged that in addition to these inconsistencies the trial court did not give any weight to the injuries suffered by Tarsem himself which included a contused lacerated wound on the forehead and that in the hospital he was unconscious, vomiting, confused and irritable at the time of his examination. This happened in the hospital where Tarsem was admitted. This fact was corroborated by two documents Ex. PW 19/A (Tarsem's MLC) and Ex. PW-10/C. Learned counsel highlighted that the Appellant/accused had led evidence and DW-2 deposed having got Tarsem admitted to the hospital and that he was unconscious.

8. Having regard to the Trial Court findings regarding Jagtar's role, learned counsel urged that there was no material on the record to suggest his involvement apart from the unreliable testimony of PW-4. It was urged that PW-2 was the only witness who spoke of assault by Tarsem and Jagtar; he mentioned about a chest injury inflicted by him and this aspect was not borne out by the medical evidence. In these circumstances, contended learned counsel for the appellant, Jagtar could not have been convicted for the charges framed under Sections 302/34. At worst, submitted learned counsel he could have been held liable for causing simple hurt.

Crl.A. 111/1998 Page 4

9. Learned counsel argued that alternatively even if the Court were to hold that the injuries were caused by the appellant Tarsem the conviction under Section 302 IPC was not warranted. Mr. Verma urged that all indications were that a sudden quarrel erupted which led to attack by the deceased party on some of the appellants and vice-versa. Tarsem's MLC PW 19/A established that he suffered injuries and had fallen down unconscious. Even though the doctor's opinion pointed to a knife blow on the deceased they were inflicted in the heat of the quarrel. Relying on the decisions reported as Jagtar Singh and Another Vs. State of Punjab, 1999 SCC (Crl) 120, Joginder Singh Vs. State 2011 (1) JCC 657, and Surinder Kumar Vs. Union Territory, Chandigarh, AIR 1989 SC 1094. It was urged that the cause for the quarrel or the provocation for the assault was irrelevant. Similarly the number of wounds too was not decisive. What was relevant for the Court to consider Exception 4 to Section 300 was the proof of a sudden fight without premeditation in the heat of passion. Having regard to the conspectus of the materials, urged learned Amicus Curiae, that all the ingredients of Exception 4 to Section 300 IPC were proved in the case. The appellant Tarsem could not therefore have been convicted for committing the offence under Section 302 IPC.

10. Learned APP countered the appellant's submission, stating that the findings and conviction recorded by the trial court were justified having regard to the overall facts proved. It was submitted that the use of deadly weapon such as kripan and iron rod by the two appellants could not be doubted in the light of injured eye witness PW-4's testimony; he was also injured during that attack. This was further corroborated by PW-2 the deceased's son with whom Manu, (Tarsem's son) had fought, that ultimately led to the quarrel and the tragic incident. Learned APP submitted that the contradictions pointed out were some minor discrepancies which did not in any manner detract from the essential facts proved by the prosecution. The origin of the quarrel, the role played by the Appellants, recovery of kripan, the nature of injuries suffered by the deceased as well as PW-4 and corroboration of eye witness testimonies by the three amounted to proof that the two Appellants were guilty of the offence punishable under Section 302 IPC.

11. The above discussion would reveal that on the fateful day 31.05.1995 during an incident when two boys were flying kites in adjoining roof tops a quarrel occurred, the cause for the quarrel is not relevant; the consequence was horrendous. The deceased, PW-2's father and

Crl.A. 111/1998 Page 5 Tarsem, the father of the other boy reached the spot. A physical fight ensued. The prosecution alleged that Tarsem and his brother Jagtar went inside their house and came out armed with kripan and iron rod respectively which they put to use immediately on the deceased and PW-4 (brother of deceased). The eye witness testimony of PW-5, the mother of the deceased as well as of PW-4 reveals that the fight was witnessed by a large number of people many of whom apparently participated in it. PW-5 even speaks of women folk fighting with each other in the neighbourhood, during the heat of moment, an injury appears to have been inflicted upon appellant Tarsem as his evident from his MLC Ex. PW 19/a. Even though PW-5 sought to explain this injury by stating that Tarsem hit himself on door while fleeing, PW-4 does not corroborate this version. PW-2, deceased son also does not support this.

12. The appellants argued PW-4's testimony to be unreliable because in cross-examination he admitted not having signed any statement recorded by the Police and also that he did not see the accused Tarsem signing any statement. Furthermore he stated that the kripan was recovered from Tarsem's house when no one was present and main door was open. Interestingly the trial court permitted the prosecution to cross-examine PW-4 after the defence had concluded his cross-examination. This aspect is significant because in the cross examination the appellants had extracted admissions favourable to them. The appellants' contention is that by virtue of Section 138 of the Evidence Act, 1872, after the conclusion of cross-examination of prosecution witness there was no question of any further cross-examination. Section 138 enacts that direction of re- examination should be confined to explanation of matters referred to in cross examination and if any new matter is introduced with permission of the Court, the adverse party may further cross- examine on that matter. Section 138 of the Evidence Act so far as it permits re-examination of witnesses is qualified to the extent that the re-examination can be only to elicit explanation of matters referred to in the cross-examination. The Legislature clearly indicated that if any new matter is sought to be introduced in such re-examination, the party seeking to do so does not have right to do it and the Court has to expressly permit this. In this case the procedure adopted by the trial court was strange and inexplicable. The prosecution case was that PW-4's statement was recorded in the hospital. However, during cross-examination he did not support that version; he also resiled from the statement made earlier about Tarsem's statement recorded by the Police. In these circumstances, the prosecution should have directed its re-examination to clarify his evidence; however, it was permitted to cross-examine its own witness by putting

Crl.A. 111/1998 Page 6 leading questions. Therefore the testimony of PW-4 in the further cross-examination by the prosecution after conclusion of the cross-examination by the defence, could not be looked into.

13. While the Court may have some reservations about the testimony of PW-4 as also PW-5 whose conduct in not aiding or tending her son's injuries is unnatural to say least, that would not conclude the matter. PW-2 the minor son of deceased Shyam Sharma corroborated the prosecution story in material particulars. He speaks about the kite flying incident leading to quarrel between members of two families, the two appellants rushing to their house and emerging with a kripan and iron rod. The appellants' attempt to discredit the testimony of this witness by emphasising that he mentioned about an iron rod blow given by Jagtar on the deceased's chest whereas none was discernible according to the medical evidence is of no significance. In a quarrel or any other incident involving a large number of people, events take place rapidly. The perceptions of those who witness the event may differ according to their powers of observation, age, state of mind and vantage point from where they view the incident. Though PW-2 was present throughout, the Court cannot lose sight of the fact that he was a minor even when his evidence was recorded; he was witnessing a free fight in which his father was seriously injured which ultimately led to his death. The description given by him about an iron rod blow on his father's chest is therefore, not a serious discrepancy to result in his testimony being altogether discarded.

14. In view of the above discussion, this Court is of the opinion that the prosecution has been able to establish the role of the two appellants before the Court in the quarrel and the attack upon the deceased Shyam Sharma which eventually lead to his death. It would be therefore relevant to consider whether the conviction in the light of the circumstances was correctly recorded under Section 302 or whether the case proved established the appellant guilty for the offence under section 304 Part I IPC. In Surinder Kumar case (supra), the Court was dealing with the case where in the course of a heated exchange of arguments when abuses were hurled by rival parties the appellant was enraged, went into the kitchen and returned with a knife and inflicted injury on one of the witnesses. He also inflicted three knife blows to the deceased, invoking over turning the conviction under Section 302 IPC and substituting with Section 304 Part I, IPC. The Court inter alia held as follows :

Crl.A. 111/1998 Page 7

7. ......To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight ; (ii) there was no premeditation ; (iii) the act was done in a heat of passion ; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly....... ......Taking an over all view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under Section 304 Part I, IPC and direct him to suffer rigorous imprisonment for 7 years."

15. In Jagtar Singh case (supra) too the Court stated that use of deadly weapon was not to be a circumstance to exclude operation of Exception 4 of Section 300 if all the ingredients of sudden quarrel leading to the injuries were satisfied. Closer home the judgment in Joginder Singh case (supra) was also a case where a nine inch long knife was used to inflict several stab injuries on the deceased neck . A judgment of the Division Bench of this Court substituted the conviction from Section 302 to one under Section 304 Part I, IPC.

16. In the present case, the factual narrative suggests that the fatal attack was the culmination of fight caused by a trivial quarrel between the children of the two parties. The evidence on record shows that apart from the four active participants several other neighbours too joined in the fight. PW 5 even goes to the extent of saying that women folk fought each other. Somewhere in the middle of the fight the appellants went inside the house and came out armed with a kripan and iron rod. The fatal injuries inflicted upon the deceased were the result of kripan blows. As regards Jagtar's blow, if the Court were to discard the testimonies of PW-4 and PW-5 Vickki , PW-2 was coherent and consistent on this. The mere circumstance that deadly weapons were used would not take the incident out of the purview of Exception 4 of Section 300 IPC. Having regard to these, we conclude that the Appellants' conviction should be substituted from under Section 302 to that of under Section 304 Part I, IPC.

17. The records reveal that the appellant Tarsem had undergone more than 8 years imprisonment. The appellant Jagtar on the other hand had undergone about 6 years Crl.A. 111/1998 Page 8 imprisonment including just about an year's remission. Having regard to the facts found, the role played by each of them and the further circumstance that they have been out on bail for nearly nine years, we are of the opinion that ends of justice would sub-served if their sentence is confined to the period undergone by them.

18. In view of the above conclusions, the appeal has to partly succeed. The Appellants' conviction is substituted and instead conviction under Section 302/34 IPC, they are convicted for the offence under Section 304 Part I IPC. Their sentence is restricted to the period of imprisonment undergone by them in view of the facts mentioned above. The bail and surety bonds furnished by the Appellants are hereby discharged.

19. The Appeal is allowed to the above extent.

S. RAVINDRA BHAT (JUDGE)

G.P. MITTAL (JUDGE)

MAY 25, 2011

Crl.A. 111/1998 Page 9