Karnail Singh And Anr. vs State
2011 Latest Caselaw 5227 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                             DECIDED ON: OCTOBER 31, 2011

+                     CRL. APPEAL No. 52/1998


KARNAIL SINGH AND ANR                          ..... Appellants
                    Through: Mr. R.S. Dakha and Ms. Nishi Chaudhary, Advs.


                      Versus


STATE                                                     ..... Respondent

Through: Mr. Sanjay Lao, APP for the State

CORAM:

MR. JUSTICE S. RAVINDRA BHAT
MS. JUSTICE PRATIBHA RANI

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 appellants impugn the judgment and order of the learned Additional Sessions

Judge dated 25th and 29th October, 1997 in S.C. No. 120/1996. Both the Appellants were

convicted for committing offences punishable under Section 302/34 IPC and were

sentenced to undergo life imprisonment and also sentenced to pay fine.

2. Briefly, the prosecution case was that the Appellants, PW-2 and PW-3 and the

deceased and the latter's brother Amrik Singh were related; they were cousins. The

Appellants harboured a grudge against Amrik Singh and his brothers, allegedly because

they (especially Amrik Singh) had promised to lend some money from which he later

reneged. This led a constrained relationship between Amrik Singh and his two brothers,

on the one hand and the Appellants, on the other. It was alleged that on 28th November,

1991, PW-15 Nirmal Kaur who was another cousin (maternal uncle's daughter) of the

Appellants (as well as Amrik Singh) invited all of them to her house, with a view to

resolve their differences. At that time, according to the prosecution, Amrik Singh was

attacked by the appellants. The prosecution case is that Varinder Singh caught hold of

Amrik Singh's hair whereas the other brother i.e. Karnail Singh stabbed him on the left

side of the abdomen. It was further the case of the prosecution that PW-2 and PW-3 tried

to intervene but were kicked and beaten up after which the Appellants fled the spot.

Amrik Singh was taken to DDU hospital. He subsequently died on 30 th November, 1991.

3. After completing investigation, the appellants were charged with committing the

offences punishable under Section 302/34, IPC. They entered the plea of not guilty and

claimed trial. The prosecution relied on the testimony of 24 witnesses as well as material

exhibits. After considering the materials on record, the Trial court, by the impugned

judgment, convicted the Appellants as charged and directed them to undergo the

sentences mentioned previously in this judgment.

4. Both the Appellants initially had sought to impugn the findings regarding their

role, questioning the prosecution's inability to produce the blood strained clothes which

were worn by PW-2 and PW-3, and also highlighting that MLC PW-21/A stated that the

deceased Amrik Singh was conscious despite which his statement was not recorded.

Learned counsel, however, later submitted that having regard to the entire conspectus of

facts placed before the trial court, its findings are not disputed. He however argued that

the conviction in this case under Section 302 IPC was not warranted.

5. Learned counsel argued that the facts disclose that the Appellants as well as PW-2

and PW-3 and the deceased's brother had a stained relationship on the day when

compromise talks were held in PW-15 Nirmal Kaur's house. A quarrel arose which led

to both sides trading abuses. In the heat of the moment, one of the accused held the

deceased whereas the other accused gave a single knife blow. It was submitted that

having regard to the single injury and the nature of the blow as well as the surrounding

circumstances, the court could not have concluded that the accused had the intention of

committing the offence punishable under Section 302 IPC. Learned counsel submitted

that at best the accused could have been convicted for offences punishable under Section

304 Part-I IPC.

6. Learned APP, on the other hand, argued that once there is no controversy about

the facts and the findings recorded by the trial court, there can be no intervention by the

court as regards the conviction. It was submitted that the Appellant Karnail Singh was

armed with a knife which was not a traditional kirpan worn by the members of the Sikh

community a fact which pointed to their being prepared before hand and even their

motive to do away with the deceased. Learned counsel emphasized the fact that even

though the injury was a solitary injury which led to Amrik Singh's death nevertheless it

was given on a vital part of the body which rules out applicability of any Explanation to

Section 300, IPC and consequently, the offence would squarely fall within the purview of

murder under Section 302 IPC.

7. It is evident from the above discussion that there is no controversy about the facts.

The Appellants were related to the deceased as well as his brothers i.e. PW-2 and PW-3.

In all material particulars, the latter two witnesses are unanimous about the nature of the

attack. PW-15, who turned hostile during the trial and did not support the prosecution

case, had apparently organized the meeting between her cousins at her place in order to

resolve their differences. The sequence of events which are unfolded on the fatal day i.e.

28th November, 1991 are that the two PW-2 and PW-3 went first to PW-15's house, they

were soon followed by the Appellants; Amrik Singh apparently was the last person to

enter. After he entered, all the five cousins started conversation. Apparently, tempers

soon flared up and the Appellants started abusing Amrik Singh. He too felt offended and

started retaliating verbally. Thereafter, the second appellant caught hold of Amrik

Singh's hair and the first Appellant Karnail Singh stabbed him (the deceased). The two

witnesses i.e. PW-2 and PW-3 further stated that after this attack, both of them were

kicked and beaten before the Appellants fled the spot.

8. Before proceeding to analyze as to which offences would be attracted in these

circumstances, it would be necessary to consider the doctor's opinion, particularly about

the post-mortem report. PW-16, the doctor who examined the deceased Amrik Singh

deposed in the following manner:-

"On examination of the dead body, the body was naked and the following injuries were detected.

Injury No. 1: One mid line para umbilical surgical stitched wound of size 9 inches.

Injury No. 2: One stitched wound size 2.2 cm X 0.6 c.m. was placed obliquely on the left side of the upper abdomen. This injury was placed 2 cm below the last rib along the line of left anterior axillary told. After

opening the stitched both the ends of the wound were seen to be acutely cut and the lower medial end was more acutely cut then the upper outer end. There is no abrasion in the margins of the owned. There was no other external injury seen on the body. On internal examination, the skull, brain, neck and chest, organs and structures were in tact normal and pale. On examination of the abdominal cavity, stomach contained small amount of digestive food mixed with medicine. The left kidney was found to be removed. The left colon (part of bowel) showed 2 stitched areas of sizes 1.2 cm and 1.5 cm. Another two cut areas of sizes 1 cm and 1.2 cm were seen unstitched near the mesentery were from food particles were coming out. The left side abdominal cavity contained about ½ litre of clotted blood. The liver and spleen were pale.

The injury no. 2 which was placed on the left side upper part of the abdomen was about 11 cm in left from the skin surface and this injury no. 2 was caused by a sharp edged weapon and was sufficient enough to cause death in ordinary course of nature. Death was due to shock and hameehorage resulting from injury. Time since death was approximately 7-8 hours. The sample of blood was preserved with seal and handed over to police along with sample seal. This injury no. 2 could be caused either by single or double edged weapon. My detailed report is Ex. PW16/A which is in my hand and bears my signature at point „A‟."

9. The difference between the offence of murder and culpable homicide not

amounting to murder had engaged attention of the courts in India for over five decades.

The Supreme Court in its earlier judgment reported at Virsa Singh vs. State of Punjab

AIR 1958 SC 465 indicated broad guidelines which the courts should keep in mind while

sifting the offence and seriousness of injury. The authorities in this regard by now are

fairly well settled.

9. In the decision Tholan vs. State of Tamil Nadu (1984) 2 SCC 133, the Supreme

Court considered a case of single fatal injury inflicted upon the deceased. The court

over-ruled the submission that mere attack with a knife or a deadly weapon of such kind

and infliction of a blow on a vital part of the body like the chest would necessarily lead to

the inference that the accused intended to murder the deceased. The relevant discussion

is in the following terms:-

"12. xxx 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 vs. State of Haryana; Randhir Singh vs. State of Punjab; Kulwant Rai vs. State of Punjab; and Hari Ram vs. State of Haryana. To this list two more cases can be added: Jagtar Singh vs. State of Punjab and Ram Sunder vs. State of U.P. 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 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."

10. In other case reported at (2005) 10 SCC 404 Babulal Bhagwan Khandare and

Anr. Vs. State of Maharashtra, the Supreme Court analyzed the combined effect of the

various exceptions, particularly the Exception 4 of Section 300 IPC, and came to a

similar conclusion.

11. We notice that the above reasoning was applied and followed in the case reported

at (2008) 15 SCC 590 Arumugam vs. State, wherein the court held that even the use of a

deadly weapon such as spike and other sharp weapon a day after the quarrel, having

regard to the circumstances, was sufficient for the court to infer that the intention was not

to kill but to cause an injury which was likely to result to death in the ordinary course of

nature. The Court held as under:-

"9. The substantive plea relates to the applicability of Exception 4 of Section 300 IPC. For bringing in its operation it has 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. "17. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic provocation) 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 its, 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.

18. The help of Exception 4 can be invoked if death is caused (a) without premeditator; (b) in a sudden fight; (c) without the offender‟s having taken undue advantage or acted in a cruel or unusual manner; and

(d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the „fight‟ occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had 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‟.

19. Where the offender takes undue advantage or has acted in a cruel

or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether the undue advantage has been taken. In Kikar Singh vs. State of Rajasthan, it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage."

12. In the present case, we notice that the appellants inflicted a single knife injury. It

is no doubt true that there is no apparent reason for the first Appellant to carry a knife;

however, that itself cannot be a determinative circumstance. We have no evidence as to

whether the other party i.e. PW-2 and PW-3 or for that matter, the deceased had any

kirpan or were in the habit of carrying anything that could have led to perception of

threat, by the Appellants. The facts as found also disclose that the motive of all the

persons to go to PW-15's house was to attempt to resolve their differences. This did not

owever happen and soon the meeting turned into a fight. Here it is important to keep in

mind that Exception 4 to Section 300 IPC states that culpable homicide is not murder if it

is committed without premeditation in a sudden fight, in the heat of passion upon a

sudden quarrel and without the offender having taken undue advantage or acted in a cruel

or unusual manner.

13. The decisions noticed earlier i.e. Tholan, Arumugam and Babulal Bhagwan

Khandare (supra) all point out to facts where the accused were armed with one weapon

or the other kind of deadly weapon. Yet, the courts were not persuaded with the

prosecution's submission that the use of such weapons itself amounted to exploiting the

situation and/or behaving in a cruel manner or taking undue advantage. In the present

case, we further notice that after inflicting a single knife injury upon the deceased, the

Appellants did not proceed to inflict other injuries. They instead started beating up the

other two brothers i.e. PW-2 and PW-3. All the circumstances point out to the deceased

being in the mercy of the Appellants; yet they did not follow up the single knife injury

and inflict further knife injuries. This rules out premeditation and points to a sudden fight

which is a fundamental pre-requisite for conviction under Section 302 Part-I IPC.

14. Having regard to the above circumstances as well as the nature of the injury

inflicted in this case, we are of the opinion that the Appellants have to succeed partially.

Instead of the conviction recorded by the trial court under Section 302/34 IPC, we are of

the opinion that the correct provision applicable in law would be Section 304 Part-I IPC.

15. So far as the sentence is concerned, we notice that both the appellants have

undergone more than 7 years and 5 months before they were admitted to bail. Having

regard to the peculiar facts and the further circumstance that the incident took place about

20 years ago, we are of the opinion that the sentence should be substituted to the period

undergone by them, which would meet the ends of justice.

16. The Appeal therefore deserves to succeed partially. The personal bond and surety

furnished by the Appellants are hereby discharged.

17. The Appeal is consequently allowed in the above terms.

S. RAVINDRA BHAT (JUDGE)

PRATIBHA RANI (JUDGE) OCTOBER 21, 2011 Sd