Randhir Singh & Ors. vs State
2013 Latest Caselaw 2935 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CRL.A. 403/1997
                                Judgment delivered on: 12.07.2013

        RANDHIR SINGH & ORS.                            ..... Appellants
                     Through:         Mr. K.B. Andley, Sr. Adv. with Mr.
                                      M.L. Yadav, Adv.

                           Versus
        STATE                                            ..... Respondent
                           Through:   Mr. Sunil Sharma, APP with
                                      Inspector Satyavirjaaula, P.S. Ashok
                                      Vihar

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

%                               JUDGMENT

KAILASH GAMBHIR, J.

1. The appellants have preferred the present appeal to challenge the

judgment of conviction dated 22.10.1997 and order on sentence dated

24.10.1997 thereby convicting the appellants to undergo imprisonment for

life under Section 302/34 IPC and to pay fine of Rs. 500/- each and in

default of payment of fine to further undergo simple imprisonment of three

months each and to undergo rigorous imprisonment of one month each

under Sections 323/34 IPC.

2. Brief facts of the case as set up by the prosecution are that the

accused persons and the complainant side are resident of the Village

Bakhtawarpur within the jurisdiction of Police Station Alipur. The accused

persons and the complainant party are distantly related to each other.

However, both the parties were having strained and inimical relations prior

to the occurrence and were not on speaking terms. The accused Ramesh and

accused Randhir Singh are brothers. On 29.05.1993 at about 8.40 p.m.

complainant Subhash Chand and PW Satish were coming to Village

Bakhtawarpur on a two wheeler scooter after meeting their sister at Village

Jyonty. When they reached the bus stop, accused Sudesh asked Satish

Kumar why they are not returning his money since several days. On this

Satish paid Rs.250/- to accused Sudesh and demanded back the balance

amount of Rs.20. On this accused Mukesh started abusing in the name of

sister and pushed him. Accused Sudesh challenged him to do whatever he

could and that he would not return him the balance. Subhash tried to

intervene to reconcile the dispute. Thereafter accused Sudesh picked up a

brick lying nearby and tried to hit that brick to PW Subhash. Subhash dived

and saved himself from the brick blow. Accused Sudesh then brought a

danda from a nearby Ravi Tent House and attempted to hit Subhash with

that danda. Subhash got hold of that danda. Meanwhile co-accused Randhir

Singh and Naresh Kumar came running to that place. They were armed with

lathi. On reaching the spot, accused Randhir hit complainant Subhash with

lathi on his head as a result of which Subhash fell down on the ground.

When he tried to get up from the ground, Naresh gave him a lathi blow on

his shoulder from the back side. During this period Satish got a chance to

call Ajit, brother of the complainant Subhash Chand. Ajit reached at the spot

and intervened in the matter to save Subhash from the hands of the accused

persons. The accused Ramesh also reached there at the spot. Then the

accused Randhir gave a lathi blow on the waist of Ajit. Accused Naresh

caught hold of Ajit from his left side and accused Mukesh caught hold of

Ajit from his right side and accused Ramesh grabbed Ajit from behind.

Accused Randhir shouted and exhorted his son Sudesh by saying "MAAR

SALE KO, JAAN SE KHATAM KAR DE." Thereafter, accused Sudesh

took out a knife from the right side of his pant and stabbed Ajit on the left

side of his chest, as a result of which Ajit fell down on the ground. Many

persons of the village including one Sukhpal having his shop at

Bakhtawarpur collected at the spot. The accused persons ran away from the

spot after the occurrence. In the scuffle accused Mukesh, Naresh, Ramesh

and one Asha who had reached at the spot also received injuries at the hands

of Subhash and Satish when they tried to save themselves. Ajit was removed

in a private Maruti Van to the Hospital at Azadpur. Dr.H.K.Khanna running

in the name of Khanna Nursing Home at Sarai Peepal, Azadpur, Delhi

medically examined injured Ajit and found no pulse or heart beatings and

referred the patient to Hindu Rao Hospital. The injured Ajit was thereafter

brought by the complainant and other persons in the said Maruti Van at

Police Station Alipur. After getting the information about such occurrence

Dharam Singh father of injured Ajit Singh also reached at the Police Station

from the spot. At 9.30 p.m. the police of PCR van was informed by

someone about the occurrence at the spot. Head Constable H.C. Jain Singh

of PCR Van reached along with Driver and Constable and removed two

male and one female that is, Ramesh, Naresh and Asha to Hindu Rao

Hospital and got them admitted there. The intimation regarding the

occurrence was also received by the lady Constable Pista Sharma at about

9.20 p.m. She passed on this information to Police Station, Alipur where

DD No. 18A was recorded at about 9.25 p.m. ASI Balbir Singh along with

Constable Vinod reached at the spot on the basis of DD No.18A. On

reaching at the spot he came to know that the injured person had already

been removed to the hospital. From the spot he left for the hospital via

Police Station Alipur. On reaching PS Alipur he found injured Ajit Singh in

a Maruti Van to have been brought by Subhash, Satish and Rakesh. Ajit

Singh shifted from Maruti Van to the Police vehicle and was brought at

Hindu Rao Hospital where he was declared brought dead by the concerned

doctor on the MLC at 10.55. p.m. SHO/Inspector Gurmeet Singh of PS

Alipur on getting the receipt of the information at wireless at about 9.30

p.m. also reached at the spot and from there to Hindu Rao Hospital. At the

Hospital ASI Balbir Singh handed over to him the MLCs of Naresh,

Ramesh, Subhash and Asha and that of the deceased. Inspector Gurmeet

Singh recorded the statement of complainant Subhash and made his

endorsement over the same and got the present case registered by sending

Rukka through Constable Ravinder Singh. Inspector Gurmeet Singh also

recorded the statement of Rakesh and Satish at the Hospital. He arrested

accused Naresh, Ramesh and Sudesh at the Hospital and conducted their

personal searches and prepared their personal search memos. The dead body

of the deceased Ajit was got sent through Devender Kumar of mortuary.

From the hospital Inspector Gurmeet Singh along with his police staff

reached at the spot and recorded the statement of one Sukhpal. He prepared

the site plan at the pointing out of Sukhpal. On 30.05.1993 he conducted the

inquest proceedings on the dead body of the deceased and prepared his

inquest reports and brief facts. Post mortem on the dead body was

conducted by Dr.Ashok Jaiswal on 30.05.1993 at about 12.30 p.m. Two

injuries were found on the dead body of the deceased which were opined to

be anti mortem in nature. Injury No.1 was opined to have been caused by

sharp edged weapon. Injury No.1 was opined to be sufficient to cause death

in the ordinary course of nature. Death in this case was opined to be due to

haemorrhage shock consequent to injuries. Time since death was opined to

be about 15 hours. The doctor who had conducted the post mortem

preserved the blood sample and the clothes of the deceased and handed over

the same to the police. The accused Sudesh was interrogated at the police

station and his disclosure statement was recorded. He disclosed to get the

weapon of offence recovered but despite efforts no weapon of offence could

be recovered by the police. On 31.05.1993 accused Mukesh was arrested

and his personal search was conducted. Thereafter, accused Randhir

surrendered himself in the court and he was arrested there by the police.

During the investigation of the case, IO collected the MLCs of Naresh,

Ramesh and Subhash. Injuries on the person of Naresh and Ramesh were

opined to be simple. Injuries on the person of Subhash were also opined to

be simple. Injuries on the person of Mukesh are opined to be grievous by the

concerned doctor. During the investigation of this case, IO got sent the

sealed pulandas of this case to CFSL, Lodhi Road and thereafter collected

the CFSL reports. IO recorded the statement of concerned witnesses at the

different stages of investigation and after completion of the investigation

filed the challan against the accused persons for the commission of offence

punishable U/s 302/308/34 IPC in the court of Ld. Metropolitan Magistrate,

Delhi. After complying with the provision of 207 Cr.P.C. the Ld.

Metropolitan Magistrate committed the case to the Court of Sessions. The

charges were framed under Section 302/308 read with Section 34 IPC

against all the accused persons. All the accused persons pleaded not guilty

and claimed trial.

3. To prove the said charges against the accused persons the prosecution

had examined 22 witnesses, which includes three eye witnesses. Learned

Sessions Judge recorded the statement of all the accused persons under

Section 313 Code of Criminal Procedure and all the accused persons had

denied the allegation of the prosecution in their respective statements. The

accused Randhir Singh in his statement under Section 313 Cr.P.C. took a

stand that the deceased Ajit had trespassed into their house and had caused

injuries to the inmates. He also stated that neither he nor his son Sudesh

were present in the house at the time when Ajit had criminally trespassed

into their house. He also stated that the deceased Ajit had received injuries

when he had trespassed in their house. Similar is the defence raised by the

accused Naresh Kumar and other accused persons as well. However, no

defence evidence was adduced by the accused persons.

4. Learned Sessions Judge after having analysed the evidence adduced

by the prosecution witnesses, MLC reports on record, which includes the

MLCs of the accused persons and the post-mortem report Exhibit PW 10/A

concluded that homicidal death of Ajit was caused by the accused persons in

the manner as deposed by the eye witnesses. The learned Judge also

disbelieved the defence raised by the accused persons in their statement

recorded under Section 313 Cr.P.C. that the incident had occurred at the

residence of Randhir Singh when Ajit had trespassed in the said house. It is

a matter of record that no evidence was led by the accused persons to show

that the occurrence had taken place at the house of accused Randhir Singh.

Learned Sessions Judge also observed that the nature of the injuries caused

by the assailants was on the vital part of the body i.e. chest of the deceased

with sharp edged weapon and that clearly showed that the intention of the

accused persons was to murder Ajit. Learned Sessions Court also observed

that the intention of committing murder of the deceased also stands proved

from the fact that the deceased Ajit was caught hold by the accused Naresh

and Mukesh from left and right side respectively and the accused Ramesh

grabbed him from behind and then the accused Randhir exhorted accused

Sudesh to kill Ajit. The learned Sessions Judge also observed that these

facts have not been controverted in the cross-examination of any witnesses

so it clearly stood established that the offence committed by the accused

persons was culpable homicide amounting to murder punishable under

Section 302 IPC. So far as the charge under Section 308 IPC is concerned,

learned Sessions Judge found that looking at the nature of injuries suffered

by victim Subhash at the hands of the accused persons, no offence under

Section 308 IPC stands proved against them but they were certainly liable

for an offence under Section 323 IPC. On the point of sentence of the

accused persons, the sentence to undergo imprisonment for life under

Section 302 IPC read with Section 34 IPC and a fine of Rs. 500 each was

imposed upon them and in default of payment of fine amount to further

undergo simple imprisonment for a period of three months. The accused

persons were also sentenced to undergo rigorous imprisonment for a period

of one month for committing an offence under Section 323 IPC read with

Section 34 IPC. Both the said sentences were directed to run concurrently.

5. Feeling aggrieved by the said order the appellants have approached

this Court to challenge the said judgment on conviction and order on

sentence. Addressing arguments on behalf of the appellants Mr. K.B.

Andley, Sr. Advocate in all raised three principal contentions to assail the

findings of the learned Sessions Judge. The first contention raised by

counsel for the appellants was that the weapon of offence was not recovered

from the spot and in the absence of the same the prosecution failed to

establish that the accused Sudesh had caused stab injuries on the chest of the

deceased Ajit with a knife. Counsel for the appellants also submitted that

even the lathi, which was alleged to have been used by the accused persons

was not recovered from the spot. The other contention raised by the counsel

for the appellants was that even as per the case set up by the prosecution

fight between the two parties had taken place at the spur of the moment and

therefore, it could not even remotely be inferred that there was a prior

meeting of minds or there was any kind of pre-planning amongst the

accused persons to kill Ajit. Counsel also submitted that even as per the

prosecution case the accused Sudesh had thrown a brick on the complainant

Subhash and when Subhash had saved himself from the brick attack then the

accused Sudesh lifted one danda from Ravi Tent house and wielded the

same at the complainant. The contention raised by the counsel for the

appellants was that admittedly the accused Sudesh was not carrying either

the brick or lathi with him and, therefore, it cannot be said that there was

any premeditated plan of Sudesh or other accused persons to cause injury to

the victim Satish and other victims including Ajit. Counsel also argued that

even Randhir and Naresh were not armed with lathis and Randhir was not

even aware of the fact that Naresh was carrying knife in his pocket. Counsel

also argued that the accused Randhir exhorted the accused Sudesh to kill the

deceased in a fit of anger not even knowing the fact that Sudesh would bring

out a knife from his pocket so as to stab the deceased on the left side of his

abdomen.

6. Based on these submissions, counsel argued that the fight between the

parties was sudden and there was no premeditated plan or design to murder

Ajit, who entered the scene of the crime later in time after the initial fight

between Sudesh and Satish on account of return of the balance amount of

Rs. 20/-. Counsel also argued that the appellants have already spent a period

of 7 - 7 ½ years in jail and they be now let off on the sentence already

undergone by them after converting the offence from Section 302 IPC to

Section 304 IPC, which prescribes a maximum sentence of 10 years.

7. In support of his arguments, learned counsel for the appellants placed

reliance on the judgment of this Court in the case of BhureyLal v. State,

Crl.Appeal 578/2005, decided on 15.01.2010. Learned counsel also pleaded

for leniency to the accused persons who are in close relation with the

deceased and his family and also the residents of the same village. Learned

counsel also submitted that the antecedents of the accused persons are clean

as they were never involved in the commission of any criminal offence in

the past. Learned counsel also submitted that appellant No.1 Randhir Singh

is aged about 66 years and is looking after his wife aged about 61 years and

seven children. Learned counsel also submitted that appellant No.1 was

working as Baildar in the MCD and his services were terminated due to his

involvement in the criminal case. Learned counsel also submitted that

appellant No.1 had remained in the custody for a period of 7 years. Learned

counsel further submitted that so far as appellant No.2 Naresh Kumar is

concerned, he is aged about 46 years and he has to look after his wife and

four children out of which two are married and other two are aged about 20

and 11 years respectively. As per counsel version, appellant no. 2 Naresh

Kumar was also terminated from his job due to this case. Learned counsel

submitted that appellant No.2 had also remained in custody for a period of 7

and 1/2 years. With regard to appellant No.3 Mukesh Kumar, learned

counsel submitted that he is aged about 48 years and he has to look after his

wife and one minor daughter who is aged about two years. Learned counsel

submitted that appellant No.3 has already undergone a sentence for a period

of 7 and 1/2 years. So far as appellant No.4 Sudesh Kumar is concerned,

learned counsel submitted that he is aged about 43 years and he has to look

after his wife and three minor children aged about 12 years, 9 years and 4

years respectively and he too remained in custody for a period of 7 and 1/2

years. Appellant No.5 Ramesh is aged about 56 years and also has to look

after his wife and two children and he also remained in custody for a period

of 7 and 1/2 years. Learned counsel submitted that the Jail conduct of these

appellants always remained satisfactory and putting them behind bars again

would disturb their mental equilibrium and will cause immense hardship to

their family members who are solely dependent on them. Learned counsel

also submitted that these appellants have never misused their liberty after

they were released on bail.

8. The present appeal has been strongly opposed by Mr.Sunil Sharma,

learned APP for the State. Learned counsel submitted that there was a

previous enmity between the appellants and the family members of the

deceased due to which the deceased was killed by the appellants in a well

designed premeditated plan. Learned counsel also submitted that for a

premeditated plan it is not necessary that there has to be a prior meeting of

minds as such a preconcert or preplanning may develop on the spot or

during the course of commission of the offence. Learned counsel further

submitted that all the appellants were involved in the commission of the said

crime as the accused Naresh caught hold of deceased Ajit from his left side

and accused Mukesh caught hold of deceased Ajit from his right side and

accused Ramesh grabbed deceased Ajit from behind. Accused Randhir

shouted and exhorted his son Sudesh by saying "MAAR SALE KO, JAAN

SE KHATAM KAR DE." Thereafter, accused Sudesh took out a knife from

the right side of his pant and stabbed deceased Ajit on the left side of his

chest. Learned counsel also submitted that every accused was personally

involved and played his role in committing the murder of Ajit and therefore,

common intention on the part of the appellants was writ large otherwise

there could not have been any occasion for these persons to have snatched

the precious life of a young man of about 25 years of age.

9. We have heard learned counsel for the parties at considerable length

and given our thoughtful consideration to the arguments advanced by them.

We have also the advantage of going through the Trial Court record.

10. The crucial question which arises in the facts and circumstances of

the present case is whether the appellants have been rightly convicted for

the capital offence as envisaged under Section 302 IPC or whether the

conviction is warranted for a lesser offence that is culpable homicide not

amounting to murder punishable under Section 304 Part-I or II of IPC.

11. The main contention raised by the learned counsel for the appellants

was that the case of the appellants fell squarely within Exception 4 to

Section 300 IPC which reads as under:-

Exception 4- Culpable homicide is not murder, it if 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.

12. It was contended that the incident in question had taken place at spur

of the moment resulting in a sudden fight without any premeditation and in

fact at the beginning of the fight neither Randhir Singh nor the deceased Ajit

were present at the spot. We find considerable force and merit in the

submission of the learned counsel for the appellants. As per the prosecution

case, on 29th May, 1993 at about 8.40 p.m. the complainant Subhash Chand

and PW Satish Kumar were coming from the village Bakhtawarpur on a two

wheeler scooter after meeting their sister at village Jyonty. After the

complainant Subhash Chand and Satish Kumar had reached at bus stop (Bus

stop of village Bakhtawarpur), the accused appellant No.4 Sudesh Kumar

asked Satish Kumar why he was not returning his money since several days

and on this, Satish had immediately paid Rs.250/- to the accused Sudesh.

After receiving the sum of Rs.250/-the accused Sudesh Kumar demanded

back the balance amount of Rs.20/- and when the said amount of Rs.20/-

was not returned by Satish Kumar then accused Mukesh started abusing in

the name of sister and pushed him aside. Sudesh, then challenged him to do

whatever he could but he would not return him the balance amount of

Rs.20/-. The complainant Subhash had tried to intervene to reconcile the

dispute but without paying any heed to his intervention, the accused Sudesh

Kumar picked up a brick lying nearby and tried to hit that brick to PW

Subhash. Subhash somehow saved himself from the blow of the brick and

then Sudesh brought a danda from a nearby Ravi Tent House and attempted

to hit Subhash with that danda. Subhash got hold of that danda and in the

meanwhile the other co-accused Randhir Singh and Naresh Kumar armed

with lathi came running to the said place and on reaching at the spot,

accused Randhir hit complainant Subhash with lathi on his head, as a result

of which, Subhash fell down on the ground. When he tried to get up from

the ground, accused Naresh gave him a lathi blow on his shoulder from the

back side. It is during this period Satish had called Ajit, brother of the

complainant Subhash Chand from the „gher‟. Ajit reached at the spot and

intervened in the matter to save Subhash from the hands of the accused

persons but by that time, another co- accused Ramesh also had reached there

at the spot. Further the case of the prosecution is that accused Randhir had

given a lathi blow on the waist of Ajit and thereafter accused Naresh caught

hold of Ajit from his left side and accused Mukesh caught hold of Ajit from

his right side and accused Ramesh grabbed Ajit from behind and accused

Randhir shouted and exhorted his son Sudesh by saying "MAAR SALE

KO, JAAN SE KHATAM KAR DE" and thereafter, accused Sudesh took

out a knife from the right side of his pant and stabbed Ajit on the left side of

his chest.

13. The aforesaid narration, in our view, amply demonstrates that in the

very beginning the fight had taken place between Subhash Chand and Satish

Kumar on one hand and Sudesh Kumar and Mukesh Kumar on the other.

Indisputably, Ajit who ultimately became victim of the said crime was

nowhere available at the scene of crime as he had joined later after being

called by Satish Kumar from the „gher‟. Similarly, accused Randhir Singh,

Naresh Kumar and Ramesh from the side of the accused persons had also

joined later in the fight with the complainant party.

14. In the background of such facts, it is unfathomable to comprehend

that there was a premeditated plan or there was a common intention on the

part of the accused persons to murder Ajit. The prosecution has failed to

place on record any material or to lead any evidence to show any kind of

previous enmity between the parties which could prompt or motivate the

appellants to carry out assassination of Ajit. The prosecution has also failed

to bring on record any material evidence to show that the accused Randhir

Singh was aware that the accused Sudesh was carrying knife in his pant.

The extortion on the part of Randhir Singh would not necessarily mean that

he wanted Sudesh Kumar to kill Ajit with the sharp edged weapon. It is an

admitted fact that the accused Sudesh Kumar had lifted a brick so as to hit

Subhash and thereafter he had gone to bring a danda from a nearby Ravi

Tent House. It is also an admitted fact that the deceased had received one

stab injury on the left side of his chest below the nipple with a sharp edged

weapon. The cumulative effect of the facts and circumstances of the present

case, in our opinion, clearly attracts Exception 4 to Section 300 IPC instead

of attracting Section 302 IPC.

15. In the scheme of penal code, „culpable homicide‟ is genus and murder

is its specie. All murders are culpable homicide but not vice versa. Section

299 of the Indian Penal Code recognises three types of culpable homicides.

First one may be culpable homicide of the first degree. This grave form of

culpable homicide is defined in Section 300 IPC as murder; the second may

be termed as culpable homicide of the second degree, which is punishable

under first part of Section 304 IPC; the third form of culpable homicide is of

third degree, which is considered to be the lowest type of culpable homicide

and is punishable under Section part II of Section 304 IPC.

16. In a very recent judgment of the Apex Court, Ankush Shivaji

Gaikwad v. State of Maharashtra, 2013 (6) SCALE 778, the distinction

between the offence punishable under Section 302 IPC and those punishable

under Part I and II of Section 304 IPC has been eloquently discussed after

giving a reference of many other significant decisions of the Apex Court in

the past. Relevant Para of the said decision is reproduced as under:-

"9. It was argued that the incident in question took place on a sudden fight without any premeditation and the act of the Appellant hitting the deceased was committed in the heat of passion upon a sudden quarrel without the Appellant having taken undue advantage or acting in a cruel or unusual manner. There is, in our opinion, considerable merit in that contention. We say so for three distinct reasons. Firstly, because even according to the prosecution version, there was no premeditation in the commission of the crime. There is not even a suggestion that the Appellant had any enmity or motive to commit any offence against the deceased, leave alone a serious offence like murder. The prosecution case, as seen earlier, is that the deceased and his wife were guarding their Jaggery crop in their field at around 10 p.m. when their dog started barking at the Appellant and his two companions who were walking along a mud path by the side of the field nearby. It was the barking of the dog that provoked the Appellant to beat the dog with the rod that he was carrying apparently to protect himself against being harmed by any stray dog or animal. The deceased took objection to the beating of the dog without in the least anticipating that the same would escalate into a serious incident in the heat of the moment. The exchange of hot words in the quarrel over the barking of the dog led to a sudden fight which in turn culminated in the deceased being hit with the rod unfortunately on a vital part like the head. Secondly, because the weapon used was not lethal nor was the deceased given a second blow once he had collapsed to the ground. The prosecution case is that no sooner the deceased fell to the ground on account of the blow on the head, the Appellant and his companions took to their heels - a circumstance that shows that the Appellant had not acted in an unusual or cruel manner in the prevailing situation so as to deprive him of the benefit of Exception

4. Thirdly, because during the exchange of hot words between the deceased and the Appellant all that was said by the Appellant was that if the deceased did not keep quiet even he would be beaten like a dog. The use of these words also clearly shows that the intention of the Appellant and his companions was at best to belabour him and not to kill him as such. The cumulative effect of all these circumstances, in our opinion, should entitle the Appellant to the

benefit of Exception 4 to Section 300 of the Indian Penal Code."

17. It will be also useful here to refer to the judgment of the Apex Court

in the case of Pulicherla [email protected] Reddy v. State of Andhra

Pradesh, (2006) 11 SCC 444, wherein the Court has observed that:

"18. ... the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. 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."

18. In Sunder Lal v. State of Rajasthan, 2007 (6) SCALE 649, the two

accused armed with Gandasi and a lathi respectively had inflicted one blow

on the head of the deceased with a Gandasi and a lathi respectively and

several injuries on the hands and the legs with the Gandasi and the stick; the

circumstances were that the intention to kill the deceased was found wanting

and in the background of this fact, the Supreme Court took a view that the

attack being at a spur of the moment and indiscriminate, constituted an

offence of culpable homicide not amounting to murder punishable under

Section 304 Part- I IPC.

19. In another decision of the Supreme Court in the case of Kanda Swami

v. State of Tamil, reported in 2008 (10 SCALE) 315, a knife was

indiscriminately used as a weapon of offence causing a large number of

incised wounds on the deceased. By taking note of the fact that the deceased

was not the target and he had intervened in a fight between a father and a

son on the one side and the accused on the other and in the process became

a target of the assault, the Supreme Court took a view that the offence

committed was culpable homicide not amounting to murder punishable

under Section 304 Part I IPC.

20. The circumstances of the present case are also similar to the facts of

the two cases cited above. Here also the deceased Ajit entered into the scene

of the crime later while the fight was going on between the complainant

Subhash Chand and Satish on one hand and the accused persons Sudesh and

Mukesh on the other hand. It is quite shocking to find that a non-return of

balance amount of Rs.20/- by accused Sudesh to Satish, ultimately led to the

murder of Ajit, a young married man of about 25 years of age on the date of

the commission of the offence. It was primarily the arousal of sudden

passion and then to show one‟s might and supremacy over the other that led

to the death of Ajit. The actual sufferer must be the deceased‟s young

widow, parents and other family members. Having said this, the only silver

lining which gives an advantage to the appellants/accused persons to escape

from the rigour of Section 302 IPC is that they had no motive or

premeditated plan to murder any person including the deceased Ajit and the

fight between the groups took place on the spur of the moment. Thus, the

appellants/accused persons are held liable for committing the offence of

culpable homicide not amounting to murder under Section 304 Part- I IPC.

21. On the issue of sentence to be inflicted upon these appellants, we

note that all the appellants have already undergone a sentence of about 7 - 7

½ years. Nominal roll do not evidence their involvement in any other

offence and do not even raise any doubts on the conduct of the appellants

during their period of incarceration. We have been informed that even after

granting bail the appellants were not found involved in any criminal activity

and they are leading their respective lives peacefully with their family

members.

22. Taking into consideration the individual profile of these appellants as

stated above, we are of the view that the sentence already undergone by

these appellants would be sufficient to meet the ends of justice. We are also

of the view that the appellants must be burdened to pay a reasonable amount

of compensation in terms of Section 357 of the Code of Criminal Procedure

so as to compensate the parents and widow of the deceased and looking into

the status of the appellants, we feel that these individuals shall pay a

compensation amount of Rs 25, 000/- each to the parents and the widow of

the deceased within a period of one month from the date of this order.

23. Present appeal filed by the appellants is accordingly disposed of

modifying the conviction of the appellants from that of punishable under

Section 302 IPC to that of Part-I of Section 304 IPC. The order of

conviction dated 22.10.1997 and order of sentence dated 24.10.1997

whereby the learned Additional Sessions Judge convicted the appellants u/s

302/34 of IPC and sentenced them to imprisonment for life respectively are

set aside. The appellants are convicted under Section 304 Part I instead and

sentenced to the period already undergone by them. The order of conviction

and sentence u/s 323/34 of IPC is upheld.

KAILASH GAMBHIR, J

INDERMEET KAUR, J

JULY 12, 2013 v