Delhi High Court

Rakesh @ Commando vs State on 30 August, 2013

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment reserved on: 26.8.2013
                                  Judgment delivered on:30.8.2013

+                        CRL.A. 724/2009

RAKESH @ COMMANDO                                   ..... Appellant
               Through:                 Mr.Pramod        Kumar      Dubey,
                                        Mr.Siddhartha Das, Mr.Nitin
                                        Saluja, Mr.Shiv Pande, Mr.Shiv
                                        Chopra and Mr.Amit Singh
                                        Rathor, Advocates.

                         versus

STATE                                              ..... Respondent
                         Through:       Sunil Sharma, APP for the State.
                                        Inspector Kuldeep Singh, SHO,
                                        Defence Colony.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The appellant is aggrieved by the impugned judgment and order

of sentence dated 18.7.2009 and 31.7.2009 vide which he had been

convicted for the offence under Section 302 IPC and had been sentenced

to undergo imprisonment for life and pay a fine of Rs.3000/- in default

of payment of fine to undergo SI for three months.

2 Briefly stated the case of the prosecution is that on 25.7.2007

Kamal Kishore (PW-9) was celebrating his birthday at his residence

A-25, Sadiq Nagar. He had invited his friends which included accused

Rakesh @ Commando as also the deceased Bunty @ Rohit; his other

friends Kamal Kishore (PW-1), Umesh (PW-2), Pramod Rawat (PW-3),

Naveen (PW-4), Virender (PW-5) and Deepak (PW-10) had also been

invited; they had all joined the party. At about 10-10.30 PM while food

and drinks were being served it was noted that the appellant Rakesh was

wielding a knife which he was repeatedly opening and closing; since

the appellant, the deceased Bunty and Pramod Rawat were all in a state

of intoxication, the appellant also holding a knife, the brother of their

host asked them to leave the party. Outside the house an altercation

took place between the appellant and the deceased. In this scuffle

appellant Rakesh attacked the deceased with a knife on his abdomen.

Blood started oozing out from his wound. The deceased fell to the

ground. This incident was witnessed by Pramod Rawat (PW-3). PW-1

and PW-5 were also informed about the incident; parents of Bunty were

also intimated. The deceased was removed to the AIIMS hospital in a

three wheeler scooter where he was declared dead.

3 Post mortem on the deceased was conducted by Dr.

B.L.Chaudhary; it was proved by Dr.Sanjeev Lalwani (PW-20). Five

injuries were noted on the person of the deceased and read herein as

under:

1 A slit shaped wound horizontally placed on the left of abdomen in parallel to the umbilicus. The length of wound is 1.5 cm. The maximum width at the centre of wound is 0.5 cm. Both the angles of wound are acute and margins of wound are clean cut. The medial end of the wound is 6 cm lateral to the midline, 22 cm below to the left nipple and 117 cm above to left heel. On dissection a track of wound is established on the left abdominal wall passes through the peritoneum. Peritoneal cavity and piercing through mysentry and then penetrating into the left side of the abdominal aorta at the level of L-4 vertebrae. The mysentry is showing large size haematoma. Peritoneal cavity is containing about 3 litre frank blood.

2 A metallic stitched wound of 3 cm length is present on the right of chin. Medial end is on the midline. Both margins approached to each other and in process of healing.

3 A abrasion with reddish brown colour slab is present on the (R) latral malleolus measuring 15x.1 cm in size..

4 Abrasions two in number with brownish seas is present on the postero lateral aspect of right elbow measuring 2x1 cm of size each.

5 B/L surgical venepuncture wounds present on medial surface of both ankle region measuring 1 cm in length of each with two in number intact sutures on each.

Cause of death was opined as haemorrhagic shock due to injury

no.1 which has been caused by a sharp pointed weapon. Injury no.1 was

sufficient to cause death in the ordinary course of nature; Injuries were

ante-mortem in nature; injury no.1 was found to be fresh in duration

whereas the other injuries i.e. injuries no.2 to 4 were found to be

three/four days back in duration. Post mortem had been conducted on

26.7.2007; incident had taken place in the intervening night of 25-

26.7.2007. Thus injury no.1 was alone attributable to the incident.

4 There was an eye-witness to the incident who was examined as

PW-3. He had detailed the eye-witness account in its entirety. This was

not only before the police in his statement under Section 161 Cr. P.C.

but was also fully corroborated on oath. He deposed that on the date of

incident he along with his friend Bunty had gone to attend the birthday

of his friend Kamal Kishore (PW-9) at Sadiq Nagar; they reached there

at about 9.00 PM; other friends of Kamal Kishore were also in the party

including the appellant Rakesh. Rakesh was having a knife. The fact

that Rakesh was having a knife was informed by the brother of their host

Johny to PW-9. Rakesh and Bunty were asked to leave the party.

Outside the house a scuffle took place between Rakesh and Bunty on the

point as to "who is the badmaash". Rakesh took out a knife and stabbed

Bunty on his stomach from which blood started oozing out. PW-3 got

perplexed and left the place. He informed Virender and Kamal Kishore

about this incident who went to the spot. Parents of Bunty were also

informed. PW-3 went to the hospital where he learnt that Bunty had

already died. On his pointing out the appellant Rakesh was arrested

vide memo Ex. PW-3/A.

5 This witness was cross-examined at length. He admitted that he

knew both the deceased and the accused since the last five to six years;

he had no fight or enmity with either of them; liquor was also being

served in the party. PW-3 admitted that they had had drinks; the friends

were enjoying music at the time when they were asked to leave the

party; he reiterated that accused was having a knife which he had noted;

he reiterated that Rakesh and Bunty were asked to leave the party by

their host; he admitted that he had seen Rakesh stab Bunty and thereafter

he told Kamal Kishore and Virender about the incident. He further

deposed that the knife was got recovered by the accused from the bushes

in his presence.

6 Other friends of Kamal Kishore have been examined as

PW-1, PW-4, PW-5, and PW-10.

7 In his statement recorded under Section 313 Cr. P.C. the appellant

did not deny the fact that he was present at the party. He denied any

inimical relations between himself and the deceased; he denied that he

had given a stab wound to the deceased which had led to his death; his

defence being that he has been falsely implicated in this case.

8      No evidence was, however, led in defence.

9      The trial judge on the basis of the eye-witness account coupled

with the last seen evidence which had been testified by PW-1, PW-5 and

PW-9 together with the recovery of knife and the motive projected by

the prosecution that there was a previous enmity between accused and

the deceased, concluded that the prosecution has proved its case beyond

all reasonable doubt. The accused was convicted under Section 302

IPC.

10 On behalf of the appellant arguments have been addressed at

length. Learned counsel for the appellant has sought to assail the

judgment primarily on the prosecution having failed to prove the

recovery of the knife and motive. Submission being that the trial judge

has concluded that the motive for the crime that is the enmity between

the deceased and the accused has not been proved; the recovery of the

knife is also doubtful as different versions had been given by different

witnesses; whereas PW-3 has stated that knife was recovered at the

instance of the appellant near the DMS Booth, PW-16 SI Manoj Kumar

stated that knife has been recovered from the pant pocket of the accused,

the version of the PW-3 is discrepant for the reason that in his statement

before the police he had stated that the knife had been recovered from

the pant pocket of the accused. No public witness has been joined. The

trial judge had thus rightly disbelieved the recovery. The motive of the

crime has also not been proved. Submission being that on all counts

appellant is entitled to a benefit of doubt and a consequent acquittal.

11 Learned counsel for the appellant has, however, failed to dislodge

the version of PW-3. A weak submission has been made that PW-3 was

not really present at the spot but in the entire cross-examination of PW-3

no suggestion has been given to him that he was not present at the spot

or that he was not a part of the celebration party in the house of PW-9.

In fact, to questions no.2 and 3 put to the appellant (in his statement

under Section 313 Cr. P.C.) he has admitted that on the fateful day he

had gone to attend the birth day party of Kamal Kishore where he had

also consumed liquor. Testimony of PW-3 as noted supra is clear and

categorical. He has not shifted his stand even in his cross-examination.

Thus the presence of PW-3 at the spot is fortified and substantiated.

12 Argument of the learned counsel for the appellant that the

testimony of PW-3 is not in conformity with the testimonies of PW-5

and PW-1 on the aspect as to who had informed PW-5 and PW-1 about

the incident is also not substantiated. PW-5 and PW-1 are admittedly

not eye-witnesses. PW-5 has categorically stated that after the accused,

deceased and PW-3 had left the party within 15-20 minutes PW-3

informed him and Kamal Kishore that the deceased had been stabbed by

the appellant with a knife. PW-5 along with PW-1 had accompanied

the deceased to the AIIMS hospital, where the deceased had been

declared dead.

13 PW-1 has also not given any contrary version. His version is also

corroborative of PW-3 and PW-5. He has also deposed that after the

accused, deceased and PW-3 left the party he came to know that

appellant had stabbed Bunty with knife; they saw people gathered at the

spot. This witness was cross-examined by the learned Public Prosecutor

and in his cross-examination admitted the presence of PW-3 at the spot;

reference to one part of his version wherein he stated that he had not

seen the accused at the spot does not dislodge his version as already

noted supra this witness was not an eye-witness; his deposition is on the

"last seen" circumstance.

14 There is no discrepancy in the aforenoted versions. It has been

established by the prosecution that the deceased and the accused along

with PW-3 had left the party together; they were last seen in the

company of one another and it was about 20-25 minutes later that the

deceased had died; the credible eye-witness account by PW-3 has

proved that it was the appellant who had caused the death of the

deceased. Testimony of PW-3 which is clear, unambiguous and inspires

confidence would in fact by itself be sufficient to nail the accused.

15 The fact that both the appellant and the deceased were under the

effect of liquor had also been admitted not only by the appellant in his

statement under Section 313 but also stands testified in the versions of

PW-1, PW-3 and PW-10.

16 In this background the conviction of the appellant for having

caused the death of the deceased cannot be faulted with. It was the

appellant who was responsible for this act.

17 The question, however, which arises is whether in the facts and

circumstances of this case, the appellant should have been convicted for

the offence under Section 302 IPC or whether he could get the benefit of

the lesser offence i.e. culpable homicide not amounting to murder which

is punishable under Section 304 IPC.

18 The alternate argument of the learned counsel for the appellant

borders on this submission; he has placed reliance upon the judgment

1983 Cri.L.J. 852 Jagtar Singh Vs. State of Punjab, 1999 Cri L.J. 2537

Udhmi Ram Vs. State of Rajasthan, 1983 Cri.L.J. 346 Hari Ram Vs.

State of Haryana and 2001 Cri. L.J. 3531 Vishnu Mohan Vs. State

(NCT of Delhi) to support his stand. Submission is that his case falls

squarely under Exception 4 to Section 300 IPC.

19 Exception 4 to Section 300 IPC reads as under:

"Exception 4.- 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.

Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault."

20 The facts of the case as culled out show that both the accused and

the deceased were in the same age group i.e. in the age group of 18-20

years; they were friends; they were known to each other since the last

five to six years; they had gone to attend the birthday party of Pw-9 at

his residence. There were joined by other friends also. There was no

motive for the crime; previous enmity between the appellant and

deceased could not be established. It is also an admitted fact that both

the appellant and deceased were under the influence of liquor. They had

had food and drinks, it was a dance party; they were in high spirits.

However, since the appellant was found wielding a knife, which he was

opening and closing repeatedly at the party, he and the deceased were

asked by their host to leave the party. This had probably touched a raw

nerve of the appellant; he was upset. He along with the deceased and

PW-3 left the party together. PW-3 has testified that a scuffle took place

between both the appellant and the deceased; the scuffle was on the

issue of "as to who is the badmaash". It is not known as who was the

offender and who was on the defence. It appears to be a mutual quarrel

which had erupted suddenly between the parties, however, the appellant

who was armed with a knife, in the course of this scuffle stabbed the

victim on his abdomen. It was a single injury but was responsible for

the death of the victim which is evident from the post mortem report.

21 As per medical evidence, the length of the wound is 1.5 cm; the

maximum width at the centre of the wound being 0.5 cm; both the

angles of the wound were acute and margins of the wound were clean

cut; the medial end of the wound was 6 cm lateral to the midline, 22 cm

below to the left nipple and 117 cm above to left heel. It was this injury

alone which had caused the death of the victim. The other injuries were

more than 3 to 4 days old and since the post mortem of the victim had

been conducted on the following day these other injuries could not be

related to this incident.

22 On this count, learned Public Prosecutor has argued that the

piercing nature of injury no.1 which went up 6 cm in the midline of the

abdomen shows that the appellant did have the intention to cause the

death of the victim.

23 Admittedly, it was late in the intervening night of 25-26.7.2007

when the incident had occurred; the appellant and the victim who were

friends having no previous enmity had come out of the party together

after a spate of food and liquor; they were in an intoxicated and

inebriated state of mind. The appellant appeared to have become upset

when he was asked to leave the party; he probably felt insulted; who

was the "badmaash" between the two of them had become a bone of

contention; this had led to their sudden scuffle which had erupted in the

heat of passion and the incident finally culminated in the death of the

victim. In this background keeping in view the factual scenario that

there was a sudden arousal of passion; there being only one injury on a

non-vital part of the body supports the argument of the learned counsel

for the appellant that his case falls under Section 304 IPC being covered

by Exception 4 to Section 300 IPC.

24 However, the next question which arises for consideration is

whether the case of the appellant would fall under Section 304 Part-I or

Section 304 Part-II of the IPC.

25 Section 304 of the IPC reads as under:

"304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death;

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

26 Part-I applies where the accused causes bodily injury with the intention to cause death; or with intention to cause such bodily injury as is likely to cause death. Part-II, on the other hand, comes into play when death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.

27 The Apex Court in (2006) 11 SCC 444 Pulicherla [email protected] Reddy v. State of Andhra had observed as under:

"........It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi)

whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."

28 The post mortem has evidenced that the death in this case had

taken place with a sharp pointed weapon. The recovery of the knife has

not been effected but that cannot wash away the fact that the victim had

been attacked by a sharp edged weapon and the impact of injury no.1

had led to his death. Keeping in mind the fact that the appellant

admittedly was in possession of the weapon of offence; the depth and

the nature of injury no.1 being deep and piercing, it is a fit case where

the case of the appellant falls under Section 304 Part -I of the IPC.

29 The judgments relied upon by the learned counsel for the

appellant are all distinct on their own facts and have no application in

this scenario.

30 The impugned judgment and conviction is accordingly set aside.