Delhi High Court
Radhey Shyam vs State Nct Of Delhi on 22 March, 2013
Author: Siddharth Mridul
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 15.02.2013
Judgment pronounced on : 22 .03.2013
CRL.A.1348/2012
RADHEY SHYAM ..... Appellant
Through: Mr. G.K. Srivastava, Advocate
Versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Sanjay Lao, APP for the State.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
JUDGMENT
SIDDHARTH MRIDUL, J.
1. The appellant Radhey Shyam, along with Raghu Raj and Giri Raj was
sent up for trial under Sections 302/323/324 read with Section 34 of the Indian
Penal Code, 1860 (for short 'IPC') for committing the murder of Hari Prasad @
Babu, the deceased.
2. Vide judgement dated 17.07.2012, the Additional Sessions Judge, Rohini
Courts, Delhi convicted the appellant Radhey Shyam for offences under Section
302/324 IPC for stabbing the deceased with a knife and thereby committing
murder. By virtue of order on sentence dated 31.07.2012, the appellant was to
undergo rigorous imprisonment for life and fine of `10,000/-was imposed. In
default of payment of fine, he was to undergo further rigorous imprisonment for
six months.
3. Accused Raghu Raj and Giri Raj were given benefit of doubt and
acquitted of all the charges. We note that the State has not preferred appeals
challenging the acquittal of Raghu Raj and Giri Raj.
4. By way of the present appeal, the appellant has challenged his conviction
and sentenced awarded by the trial court.
5. The prosecution case, in brief, is as under:-
(i) On 04.03.2007, the police recorded D.D. No.32 (Ex.PW 10/A)
indicating that a telephonic information has been received about a
quarrel near DSM Public School, Prem Nagar II, Delhi. On
receiving the said information, police team consisting of SI Puran
Pant (PW-18) along with Constable Dinesh (not examined) and
Head Constable Surender Singh (PW-19) reached the spot. SI
Krishan Kumar (PW-16) and Constable Rajbir (not examined)
were already present on the spot. The Police Team found that the
injured persons were already removed to the Sanjay Gandhi
Memorial Hospital (SGHM), Mongolpuri, Delhi-110083 by private
persons. Thereafter, SI Puran Pant (PW-18) went to the SGHM
Hospital and found from the MLC of Babu @ Hari Prasad
(Ex.PW- 8/A) that he was declared brought dead by Dr. Brijesh
Singh (PW-8). The other injured persons namely, Netrapal
(PW-2), Ravi (PW-5) and Dharambir (PW-7) were also admitted in
the Hospital.
(ii) During the investigation, Shambhu Nath (PW-1) made a statement
(Ex. PW-1/A) before SI Puran Pant (PW-18) on the basis of which
ruqqa Ex.PW-18/A was prepared. In his statement, PW-1 stated
that he was an eye witness to the incident and a resident of House
No. 305, Z-Block Extension, Narain Vihar, Prem Nagar II, Delhi.
He stated that his native village was Jaunpur, Uttar Pradesh and
that he was presently residing in the aforesaid premises as a tenant.
He further stated that on the day of the incident i.e., 04.03.2007 it
was 'Holi' Festival. After celebrating 'Holi', he took a bath
around 5:00 p.m. and was shaving outside his house. The deceased
who was his neighbour came to him and started talking to him. In
the interregnum, accused Giri Raj and Raghu Raj residing in the
same colony came to PW-1. They told him that on account of him
and Gulle @ Avdesh (PW-18) driving the vehicle in the gali, the
slab of the drain in front of their (Giri Raj and Raghu Raj) house
got broken. PW-1in reply told them that he had not broken the
same. On this, Raghu Raj slapped PW-1. Both Giri Raj and Raghu
Raj were armed with dandas. The deceased tried to pacify Giri Raj
and Raghu Raj who told the deceased that he was unnecessarily
favouring PW-1 and would be taught a lesson. Both of them
pushed the deceased on the floor and started beating him with the
dandas. In the meantime, the appellant armed with a churra (knife)
also arrived at the spot. Raghu Raj on arrival of the appellant
shouted that they will not leave Babu (deceased) alive. PW-1
stated that on this both accused Giri Raj and Raghu Raj got hold of
the deceased and the appellant inflicted an injury with the knife on
the neck of the deceased. When the deceased tried to raise alarm,
the other people from mohalla namely Dharambir (PW-7), Ravi
(PW-5), Netrapal (PW-2) and Gopal (PW-9 and the father of the
deceased) gathered there and tried to save the deceased. On this,
the appellant waved his knife in all directions blindly which
resulted in injuries to Dharambir (PW-7), Netrapal (PW-2) and
Ravi (PW-5). Subsequently, Gulle @ Avdesh (PW-4) reached the
spot and took the deceased, Dharambir, Netrapal and Ravi to the
hospital in his Maruti Esteem car. PW-9 Gopal also reached the
hospital thereafter, and found that his son had died.
(iii) The ruqqa (Ex.PW-18/A) led to the registration of FIR No.
359/1007 (Ex.PW-12/A) dated 04.03.2007 under Sections
302/323/34 IPC against the appellant, Giri Raj and Raghu Raj.
After the registration of the FIR, the investigation was hand over to
Inspector Ravinder Singh (PW-23). The crime team visited the
spot and prepared a report which is Ex.PW-14/A. Photographs of
the crime spot were taken. Site plan Ex.PW-23/A (without scale)
of the crime spot was prepared at pointing out by Shambhu Nath
(PW-1) which showed 'B' as the place of occurrence. 'B' as per
the site plan connotes corner of House No.334/335, Z-Block, Prem
Nagar. As per the prosecution, a "gatta" Ex.P-1 (card board)
smeared with blood was also present at site where the deceased
allegedly fell down after being stabbed by the appellant. The same
was seized vide seizure memo Ex.PW-18/B.
(iv) It is further the case of the prosecution that the appellant and
Raghu Raj got admitted into ESI Hospital, Basai Darapur, Delhi
after the incident to receive treatment for the injuries suffered by
them. The appellant was arrested on 11.03.2007 at 12:20 p.m. vide
arrest memo Ex.PW-23/N. Raghu Raj was arrested on 05.03.2007
at 3:40 p.m. vide arrest memo Ex.PW-23/D and Giri Raj was
arrested on 05.03.2007 at 6:30 p.m. vide arrest memo Ex.PW-
23/G.
HOMICIDAL DEATH
6. The homicidal death of the deceased is not under challenge. PW-8 Dr.
Brijesh Singh who examined the deceased declared him as brought dead. PW-8
prepared the MLC (Ex.PW-8/A) of the deceased and proved the same by way
of his testimony.
7. On 05.05.2007, the post-mortem of the dead body was conducted by PW-
15 Dr. Manoj Dhingra. The post-mortem report is Ex. PW-15/A records that
the body of the deceased was brought by Inspector Ravinder Singh (PW-23)
with alleged history of incised wound found over the right side of the neck and
being brought dead in the casualty. The following injury is delineated in the
post-mortem report:-
"External injury:
Stab incised wound of size 5½ x 3 cm present over
supraclavicular region near neck. 4 cm from mid line. 20
cm above and medial to right nipple. 11 cm from left
nipple and below from tip of right shoulder on
exploration wound was entering into chest cavity after
cutting muscle and subcutaneous tissue and blood vessels
and entered into the upper lobe of right lung with the
cutting lung tissues of size 3 x 1 x 1 cm. Margins of the
wound are clear cut and well defined one end is acute and
one blunt.
8. PW-15 opined the cause of death to be shock as a result of haemorrhage
consequent to stab incised wound. According to the post-mortem report
Ex.PW-15/A, a single injury was present on the neck of the deceased which
proved to be fatal. All the injuries were ante-mortem in nature. Time of death
was opined to be nearly 18 hours before the autopsy was conducted. Vide
subsequent opinion dated 23.06.2007 (Ex. PW-15/B), PW-15 opined that injury
mentioned by him the post -ortem report Ex.PW-15/A could have been caused
by the knife (Ex.P-3) produced before him by the police or any such similar
weapon.
OCULAR TESTIMONIES
9. The prosecution in order to establish its case produced as many as 23
witnesses out which PW-1 Shambu Nath, PW-2 Netra Pal, PW-5 Ravi, PW-7
Dharambir and PW-9 Gopal are stated to be the eye witnesses to the incident.
The other witnesses examined by the prosecution were formal witness.
10. Shambu Nath, the complainant and an eye witness was examined by the
prosecution as PW-1. In Court, PW-1 has corroborated all the material facts
which he had mentioned in his earlier statement Ex.PW-1/A given to the police
on the basis of which ruqqa (Ex.PW-18/A) was prepared. He stated that on the
date of the incident i.e., 04.03.2007 he was residing at Z-Block, Naraina Vihar,
Prem Nagar, Delhi. Thereafter, he narrated the entire incident in his
examination in chief in the following manner:-
"That day being the day of Holi Festival, after playing with
the colours, I had taken late bath and was standing outside my
house and shaving a about 5.00 p.m. Hari Pd. @ Babu who
was neighbour came and sat near me and we started talking.
In the meantime, accused Girraj and Raghuraj (Present in
Court and correctly identified) came there and told me that I
had damaged the slab which covered the drain outside their
house. They accused me of breaking the slab as I used to
drive my vehicle in the gali. Accused Giriraj slapped me.
They were both carrying dandas in their hand. Hari Pd. who
was present with me tried to counsel the accused persons.
Accused persons told him that he was taking undue favour of
me and said that they will teach him a lesson. They started
beating Hari Pd. with dandas. Hari Pd. was pushed down by
the accused persons and he was lying on the floor. In the
meantime accused Radhey Shyam (present in court correctly
identified) reached there carrying a knife. Radhey Shyam said
that Hari Pd. should not be spared and he stabbed with knife
on the right side of his neck. Accused Raghuraj and Giriraj
had caught hold of Hari Pd, when Radhey Shyam had stabbed
him. I raised alarm and Dharamvir, Ravi, Netrapal and Gopal
reached there. They tried to save Babu but Radhey Shyam
threatened them by waiving the knife blindly in all directions.
Dharamvir, Neterpal and Ravi received injuries by the knife
at the hands of Radhey Shyam. In the meantime Bulle @
Avdesh took out his maruti Esteem car and took myself,
Dharamvir, Ravi, Hari Pd. and Neterpal to SGM hospital. At
the hospital Hari Pd. @ Babu was declared brought dead. My
statement was recorded in the hospital, same is Ex.PW-1/A."
11. In his cross examination, PW-1 stated that the place of occurrence was
opposite his house in the gali. He was sitting on the boundary wall of his house
along with the deceased when Giri Raj and Rishi Raj came there. He admitted
that Giri Raj and Raghu Raj blamed him and Gulle @ Avdesh (PW-4) for
breaking the slab in front of his house by driving the vehicle in the gali. He
further stated that Raghu Raj slapped him. Thereafter, the appellant reached the
spot and Raghu Raj exhorted him not to spare the deceased. The deceased after
being stabbed by the appellant fell on the ground and a "gatta" was lying there.
The "gatta" got stained with blood. The "gatta" was thereafter seized by the
police and is Ex.P-1. He further deposed that accused persons and the deceased
had some previous enmity but he did not know the reason behind the same. He
was not injured by dandas by the accused persons. He deposed that place of
occurrence was opposite his house in the gali and that the house of Gopal
(PW-9), the father of the deceased was separated by a five feet wide gali from
his house. He stated that the appellant had received injuries by falling into the
sewer drain while trying to escape from the crime scene but did not remember
the places where the injuries were suffered.
12. PW-2 Netrapal is an injured eye witness. In his examination in chief, he
deposed that on 04.03.2007, at about 5 p.m. he was celebrating Holi and was
sitting at the place where Holika was burnt. He heard some noises near the
house of the deceased. When he reached the spot, he saw that Giriraj and
Raghuraj were hitting the deceased with fists and kicks. The appellant also
reached the spot. He was armed with a knife. The appellant stabbed the
deceased and thereafter, moved the knife randomly in all directions which
caused injury to PW-2 as well. Ravi (PW- 5) and Dharambir (PW-7) were also
present at the spot and they also received stab injuries at the hand of the
appellant. PW-2 has deposed that he, Dharambir (PW-7), Ravi (PW-5) and
Gopal (PW-9) tried to save the deceased. However, after receiving injuries
PW-2 lost his consciousness. On cross-examination, PW-2 has stated that the
place of occurrence was the third parallel gali and he reached the spot after
hearing noises. He further stated that appellant attacked the deceased with the
knife but he did not remember the hand in which the appellant held the knife.
13. PW-5 Ravi is stated be an injured eye witness. He deposed before the
court that he was working in a shoe factory, situated at Village Kirari. On
04.03.2007, it was Holi festival and he was in his house after playing Holi. At
about 5:00 p.m. he heard noises coming from the gali and after coming out saw
that Raghu Raj and Giri Raj were beating the deceased with dandas. He along
with Netrapal (PW-2) and Dharambir (PW-7) tried to save the deceased. He
further deposed that the appellant came with a knife and on being exhorted by
Raghu Raj and Giri Raj stabbed the deceased with the knife. Thereafter, the
appellant started attacking them and in the process PW-5 along with Netrapal
and Dharambir received injuries. He mentioned that Gopal (PW-9), father of the
deceased was also present at the spot. PW-5 stated that one Gulle @ Avdesh
(PW-4) took him, the deceased, Dharambir and Netrapal to the hospital in is
Maruti Esteem car. The appellant along with Raghu Raj and Giri Raj fled from
the scene as public had gathered there and in the process of fleeing they fell
down and received injuries. In his cross-examination he stated that the place of
occurrence was one gali away from his house and he took him two minutes to
reach the spot.
14. PW-7 Dharambir is also an injured eye witness. He deposed that on the
day of Holi festival in the year 2007, he was present at his house after playing
colours. He was standing near the gate of his house when heard a noise from the
gali. Thereafter, he rushed towards the gali and that the deceased lying on the
ground was being beaten up by Raghu Raj and Giri Raj with dandas. Then
PW-7 along with Ravi (PW-5) and Netrapal (PW-2) tried to save the deceased.
The appellant subsequently reached the spot and was armed with a churra in his
hand. On being exhorted by Raghu Raj and Giri Raj the appellant stabbed the
deceased and also attacked him when he tried to rescue the deceased. PW-7
deposed that he suffered injuries on his right forearm near the elbow joint. Ravi
and Netrapal also suffered injuries. The appellant fled from the scene. PW-7
state that Gulle @ Avdesh (PW-4) took him to the hospital in his car and he fell
unconscious in the car. On cross-examination, PW-7 stated that the place of
occurrence was one gali away from his house and it took him two minutes to
reach the spot. He stated the time of incident to be between 4:30 p.m. to 5:00
p.m.
15. PW-9 Gopal is the father of the deceased and also an eye witness. He has
deposed that on 04.03.2007 after playing Holi he was present at his house and
at about 5:00 p.m. heard noises coming from the gali. He came out of the house
and saw that his son (the deceased) being beaten up with kicks and fists by
Raghu Raj and Giri Raj. PW-9 deposed that the appellant stabbed his son in his
presence and some other people were trying to save the deceased. His son was
shifted to the Hospital in Gulle's (PW-4) car where the doctor declared him as
brought dead. PW-9 identified the dead body of his son vide his statement
which Ex.PW-9/A. In cross-examination, PW-9 stated that the distance between
the crime spot and his house was about 50-60 feet. He mentioned that there
were two build houses and a vacant plot in the line of the houses up to the spot.
PW-9 admitted his presence at the spot as also the fact that he did not receive
any injuries.
16. We note that there may be minor discrepancies in the statements of the
several eye witnesses but a clear and categorical statement which emerges is
that the appellant armed with a knife had stabbed the deceased. All the eye
witnesses namely, Shambu (PW-1), Netrapal (PW-2), Ravi (PW-5), Dharambir
(PW-7) and Gopal (PW-9) are consistent in their respective testimonies on the
aspect that it was the appellant who had stabbed the deceased with the knife.
DISCLOSURE OF THE APPELLANT AND RECOVERY
17. As per the prosecution, churri/knife (Ex.P-3), the weapon of offence was
recovered pursuant to the disclosure statement Ex.PW-23/P made by the
appellant. The knife, according to the prosecution was recovered from the water
filled near the house of the appellant i.e. Z-307, Narain Vihar, Prem Nagar-II,
Delhi. The seizure memo of the knife is Ex.PW-23/R. The testimony of PW-23
Inspector Ravinder Singh, the Investigating Officer, in this regard is significant.
PW-23 deposed that the appellant on 11.03.2007 was apprehended from his
house vide arrest memo Ex.PW-23/N. The appellant made a disclosure
statement in his presence on 11.03.2007 itself and the same is Ex.PW-23/P.
PW-23 stated that a churra was recovered from the water near the house of the
appellant pursuant to the said disclosure. In his cross-examination, PW-23
deposed that he met Head Constable Gyan (not examined) at about 1:00-1:30
a.m. in the night intervening between 04.03.2007/05.03.2007. Head Constable
Gyan had informed PW-23 that on the day of the incident i.e., 04.03.2007, the
appellant and Raghu Raj had suffered injuries and were admitted in ESI
Hospital, Basai Darapur. He admitted information recorded in D.D. No.44
(Ex.PW-10/B) by Head Constable Gyan. He did not inquire from the doctors
treating the appellant regarding his condition or about the nature of injuries
suffered by the appellant and Raghu Raj. PW-23 saw the MLC report of the
appellant (Ex.PW-21/DA) and accused Raghu Raj. He was not able to record
the statement of the appellant as the appellant was not in a fit condition.
However, subsequently PW-23 mentions that on 05.03.2007, when he visited
ESI Hospital, the appellant refused to give a statement on the ground that he
was in terrible pain but verbally confessed his guilt. PW-23 has stated that he
had not arrested the appellant from the hospital but had deputed two constables
at ESI Hospital for keeping the appellant under surveillance only for
05.03.2007. He could not, however, say whether the surveillance was
continued up to 11.03.2007 or not.
18. PW-18 SI Puran Pant deposed that during investigation a telephonic
message was received by the Investigating Officer Inspector Ravinder Singh
(PW-23) regarding the admission of the appellant and Raghu Raj who were the
accused in the present FIR at ESI Hospital Basai Darapur. PW-18 deposed that
he along with PW-23 Inspector Ravinder Singh reached the Hospital and was
informed that the appellant and Raghu Raj was undergoing treatment. The
MLC's of the said persons were also handed over to PW-23 in his presence.
Thereafter, PW-23 deputed two constables at ESI Hospital. In his cross-
examination, PW-18 deposed that the information about the appellant and
Raghu Raj being admitted to the Hospital was received by Inspector Ravinder
Singh (PW-23) at about 1:00 a.m. in the night and MLC's were handed over at
about 2:30 a.m. in the night intervening between 04.03.2007/05.03.2007. He
further stated that D.D. No.44 (Ex.PW-10/B) regarding information received
from the ESI Hospital was already registered and he verified the contents of the
same on reaching back police station Prem Nagar.
19. We find that the testimony of PW-23 Inspector Ravinder Singh regarding
the arrest of the appellant from his house and recovery of the churra (knife) at
the instance of the appellant after his arrest cannot be accepted. We say so for
the following reason. As per the first MLC report of the appellant which is
Ex.PW-21/DA, the appellant was admitted to the ESI Hospital on the
04.03.2005 at about 6:45 p.m. by one Rohit (Nephew of the Appellant) with
alleged history assault by 15 persons. From the testimony of PW-23 Inspector
Ravinder Singh, the Investigating Officer, it is clear that that he had full
knowledge about the admission of the appellant for treatment at ESI Hospital.
PW-23 in fact left them under surveillance. It is highly implausible that the
PW-23 placed the appellant under surveillance but did not arrest him despite the
statement (Ex.PW-1/A) made by PW-1 Shambhu Nath in which he certainly
named the appellant as the person who stabbed the deceased.
20. At this stage, it is also relevant to note that the discharge slip (Ex.DW-
4/A) of the appellant demonstrates that the he was admitted to the ESI hospital
on 04.03.2007 and discharged on 10.03.2007. Further the record of Tihar Jail
Hospital which is Ex.DW-8/A reveals that the appellant remain admitted in the
Tihar Jail Hospital from 11.03.2007 till his discharge on 04.05.2007. The said
record has been proved by DW-8 Sh Munna Thakur who was working as an
Orderly in the Tihar Jail at the relevant point of time. These documents indicate
that soon after being released from the ESI Hospital the appellant was admitted
to the Tihar Jail Hospital though both the discharge slip (Ex.DW-4/A) and the
medical record of Tihar Jail (Ex.DW-8/A) do not mention any specific time as
to discharge and admission respectively. Now as per arrest memo Ex.PW-23/N,
the appellant was apprehended on11.03.2007 at 12:30 p.m. and on 11.03.2007
itself the appellant was admitted in to Tihar Jail Hospital by the police
themselves and therefore, the place of arrest mentioned in the arrest memo
(Ex.PW-23/N) to be the house of the appellant does not appear to be correct.
However, even if the place of arrest is mentioned incorrectly, it cannot be
disbelieved that the appellant was arrested only on 11.03.2007.
21. The factum of recovery of churra/knife (Ex.P-3) as per the disclosure
statement of the appellant (Ex.PW-23/P) is improbable and suspicious. PW-23
Inspector Ravinder Singh in his testimony stated that on 05.03.2007 when he
reached the ESI hospital, the appellant was not in a fit condition to be
interrogated by him but despite his deleterious condition he confessed his guilt
orally before him. What prevented PW-23 from reducing the disclosure of the
appellant in to a written form? It is also unlikely that the appellant confessed his
guilt but did not disclose where he had hidden the weapon of offence. There is
no indication in the testimony of PW-23 that whether after 05.03.2007 he made
any efforts to record the statement of the appellant who continued to remain
admitted in the ESI Hospital till 10.03.2007. The fact the as soon as the
appellant was released from the ESI hospital he made a disclosure statement
and instantly led the police to the place where he had hidden the knife (Ex.P-3)
is strange when as per PW-23 no such disclosure was made by the appellant
from 04.03.2007 till 10.03.2007. What is also noticeable is that as per Ex.PW-
23/P, the disclosure was made in the presence HC Surender No.1404 who has
not been produced by the prosecution as a witness. In these circumstances, the
possibility of churra being implanted cannot be ruled out completely and hence
the recovery of the knife/churra (Ex.P-3) at the instance of the appellant is
disbelieved and rejected.
SEIZURE OF CARD BOARD(EX PW-18/B)
22. As per prosecution, a "gatta" (card board) (Ex.P-1) stained in blood was
seized from the spot 'B' as indicated in the Site plan (Ex.PW-23/A). At the
same spot deceased had fell after being stabbed. The CFSL Report Ex.PW-22/B
postulates that blood was detected on the "gatta". It is the case of the
prosecution that the when the appellant stabbed the deceased on the neck, he
fell on the card board or "gatta" which in turn got stained by blood. In order to
establish the presence of blood stained "gatta" Ex.P-1, the prosecution relied on
the testimony of PW-1 Shambhu Nath, PW-23 Inspector Ravinder Singh, PW-
18 SI Puran Pant. According to PW-1's testimony the deceased fell on the
"gatta" when the appellant stabbed him and that is how the "gatta" got tarnished
by blood. PW-23 Insp. Ravinder Singh has deposed that on reaching the site of
the incident i.e. Z-Block, Narain Vihar, Prem Nagar-II, Sultanpuri, Delhi, ASI
Krishan (PW-16), Ct. Surender (PW-19) and Ct. Rajbir (not examined) were
already present at the spot. Thereafter, SI Puran Pant (PW-18) reached the spot
and handed over the MLC of the deceased and other injured Ravi (PW-5),
Netrapal (PW-2) and Dharambir (PW-7). He stated that the crime team arrived
at the spot and handed him the crime team report Ex.PW-14/A prepared on the
spot. One blood stained "gatta" was kept in the polythene bag and converted
into a cloth parcel. The "gatta" was seized vide memo Ex.PW-14/A. PW-18 SI
Puran Pant has deposed that the crime team inspected the spot. One empty
cartoon piece stained with blood was found lying at the spot which sealed by
the Insp. Ravinder Singh (PW-23).
23. The learned counsel for the petitioner has urged that statements made
PW-23 Inspector Ravinder Singh and PW-18 SI Puran Pant are contradicted by
the Crime Team Report (Ex.PW-14/A) which does not indicate about the
presence of the any "gatta" at the crime spot.
24. We find that the in the column 12 of the Crime Team Report
(Ex.PW-14/A) which provides space for mentioning the articles which may be
seized by the Investigating Officer it is written as NIL. The contents of the
crime team report are clearly contrary to the testimonies of PW-1 Shambhu
Nath, PW-23 Inspector Ravinder Singh and PW-18 SI Puran Pant. However,
even if we disregard the recovery and presence of the "gatta" (Ex.P-1) at the
crime spot, it would not be an irregularity or a lapse fatal to the entire version
put forward by the prosecution.
25. On merits, there can be hardly any doubt about the fact that the appellant
inflicted a blow with the churra near the neck of the deceased. The said singular
blow proved to be fatal. The affirmation that the aforesaid blow was inflicted by
the appellant emerges from the statements of PW-1 Shambhu Nath, PW-2
Netrapal, PW-5 Ravi, PW-9 Gopal and PW-7 Dharambir. All the aforesaid
witnesses were present at the place of occurrence and Ravi (PW-5), Dharambir
(PW-7) and Netrapal (PW-2) sustained injuries as well. There is no reason to
doubt the veracity of the said eyewitnesses regarding the fact that the appellant
stabbed the deceased.
NON EXPLANATION OF INJURIES ON THE PERSON OF THE
APPELLANT.
26. The learned counsel for the appellant has urged that the alleged incident
did not take place in the manner as it is being projected by the prosecution. He
submitted that the occurrence took place on account of a sudden fight between
the parties and hence, the appellant is entitled to the benefit of the Exception 4
to Section 300 IPC. The counsel for the appellant further contended that the
Trial Court while convicting the appellant under Section 302 IPC has not taken
into consideration the injuries suffered by the appellant as also the defence
testimonies put forth on behalf of the appellant. The counsel has stressed that
the appellant suffered injuries of grievous nature which could not have been
caused by mere falling as stated by PW-1 Shambhu Nath and PW-5 Ravi. He
further submitted that the prosecution has nowhere explained the reason behind
the injuries suffered by the appellant and it was for the prosecution to illuminate
the cause of injuries on appellant's person. The grievous nature of injuries on
the appellant's body soon after the incident clearly evince the fact that the
unfortunate incident occurred on account of a sudden fight/quarrel between the
parties with no scheming on behalf of the appellant To buttress this contention,
the counsel for the appellant has relied upon the decision of the Supreme Court
in Nagarathinam & Ors vs. State, (2006) 9 SCC 57. He also urged that the
due weightage has not been accorded to the defence put forth by the appellant
in his statement under Section 313 of the Code of Criminal Procedure, 1973
(for short 'Cr.P.C.').
27. The learned counsel for the appellant next contended that even if the
singular blow from the knife/churra is taken to have been inflicted by the
appellant, which proved fatal and resulted in death of Hari Prasad, the appellant
could only be punished for the offence under Section 304 IPC, and not for an
offence under Section 302 IPC. The Counsel contended that the appellant had
no intention cause death of the deceased as the incident in which death ensued
was a result of sudden fight which erupted at the spur of the moment and in heat
of passion the deceased got killed. It was further pointed out that the evidence
produced by the prosecution does not reveal any prior enmity between the
deceased and appellant. There was no premeditation, deliberation or malice on
the part of the appellant to commit the offence. It is further submitted that the
appellant has not acted in an unusually cruel manner by inflicting a single blow
with a knife on the neck of the deceased. In order to substantiate this
contention, the appellant has relied on the decision of Supreme Court in Satish
Narayan Sawant vs. State of Goa, (2009) 17 SCC 724 and R.P Tyagi vs.
State, (2009) 17 SCC 445. In Satish Narayan Sawant (supra), the Supreme
Court held:-
"40. That being the well-settled legal position, when we test
the factual background of the present case on the principles
laid down by this Court in the aforesaid decisions, we are
unable to agree with the views taken by the High Court. As
already noted, it is quite clear from the record that there was
an altercation preceding the incident. The place of occurrence
is a residence inhabited by both the parties and there is no
evidence on record that the deceased was armed with any
weapon. Initially the appellant-accused also did not have any
weapon with him but during the course of the incident he
went inside and got a knife with the help of which he stabbed
the deceased. PW-7 in his cross-examination has
categorically stated that death due to stab injury was in
consequence of Injury 1 and all other injuries were superficial
in nature. So, it was only Injury 1 which was fatal in nature.
Factually therefore, there was only one main injury caused
due to stabbing and that also was given on the back side of
the deceased and therefore, it cannot be said that there was
any intention to kill or to inflict an injury of a particular
degree of seriousness.
41. Records clearly establish that there was indeed a scuffle
between the parties with regard to the availability of
electricity in a particular room and during the course of
scuffle the appellant also received an injury which was simple
in nature and that there was heated exchange of words and
scuffle between the parties before the actual incident of
stabbing took place. There is, therefore, provocation and the
incident happened on the spur of the moment. That being the
factual position, we are of the considered view that the
present case cannot be said to be a case under Section 302
IPC but it is a case falling under Section 304 Part II IPC. It is
trite law that Section 304 Part II comes into play when the
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."
28. The learned Additional Public Prosecutor appearing for the State has
vehemently opposed the conversion of conviction from Section 302 IPC to
Section 304 IPC. It is submitted that the appellant had intended to cause the
injury which resulted in death of Babu @ Hari Prasad. The said injury was
sufficient to cause death in ordinary course of nature and therefore, the
appellant has rightly been convicted under Clause 3 to Section 300 IPC. The
learned APP further submitted that the said injury was neither accidental nor
unintentional and the same is apparent from the fact that the appellant was
armed with a knife and the deceased was unarmed. He submitted that all the eye
witnesses in unison have stated that the appellant stabbed the deceased after
being exhorted. The learned APP further submitted that the appellant had
inflicted the singular blow with great force. The force invested by appellant in
inflicting the single injury is palpable from the post mortem report Ex.PW-15/A
which indicated that single injury on the supraclavicular region near the neck
was found entering in to the chest cavity and after cutting the muscles and sub
cutaneous tissue had entered into the upper lobe of the right lung cutting the
lung tissues. To substantiate his contention, the learned APP has relied upon the
decision of the Supreme Court in Pulicherla Nagaraju vs. State of A.P, (2006)
11 SCC 444. In said case the accused gave only one dagger blow near the neck
of the victim causing his death. The accused was held guilty under Section 302
IPC. The Supreme Court observed:-
"29. Therefore, 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 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 premeditation. 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 premeditation;
(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...
30. In this case, as noticed above, the appellant was carrying
a barisa, a dangerous weapon. There was previous enmity.
There was an earlier incident, about half an hour earlier when
the father and brother of the deceased had been attacked by
the appellant and his father. The deceased was unarmed.
There was no provocation, sudden quarrel or fight. There was
no indication of any cause for an apprehension on the part of
the appellant that the deceased may attack him. The stabbing
was with great force, causing an injury on a vital part of the
body, sufficient in the ordinary course of nature to cause
death. The description of the injury and cause for death given
by PW 11, who conducted the post-mortem is telling:
"An incised injury 5 cm × 3 cm × 12 cm deep
over right supra clavicular fossa above the
medial end of right clavicle ... sub-clavian
artery is severed.... An incised injury 4 cm × 1
cm × 2 cm deep over the apex of right lung ...
deceased would appear to have died due to
haemorrhage and shock due to injuries to right
sub-clavian artery and upper lobe of right lung."
The intention to cause death or at all events intention of
causing bodily injury which is sufficient in the ordinary
course of nature to cause death was made out. The
circumstances to bring the case under Exception 4 to Section
300 do not exist."
(Underlining added)
29. In order to appreciate the contentions advanced by the learned counsel for
the Appellant, it is essential to discuss the testimony of significant defence
witnesses and statement of the appellant under Section 313 Cr.P.C.
30. The material defence witnesses are DW-3 Dr. P.K Jain and DW-4 Dr. JP
Singh. DW-3 Dr. P.K. Jain was produced to substantiate the fact the appellant
himself had received injuries. DW-3 prepared the MLC of the appellant which
is Ex.PW-21/DA and proved the same. DW-3 has deposed that on 04.03.2007,
he was posted in casualty in the ESI Hospital and at about 6:45 p.m. one patient
namely Radhey Shyam, the appellant herein was brought to the Hospital with
alleged history of physical assault by about 15 persons with iron rod. DW-3
deposed that he medically examined the appellant and found CLW (Clear
Lacerated Wound) on the forehead and injury on the right leg. The appellant
complained of pain in chest (lower side). After examining the appellant, DW-3
referred him to the surgical department. In his cross examination he denied that
the MLC Ex.PW-21/DA was manipulated later on.
31. DW-4 Dr. J.P. Singh is a surgical specialist in the ESI Hospital. He
deposed that he had treated the appellant and Dr. B. Sakia prepared the
discharge summary pertaining to the appellant under his supervision. The same
is Ex.DW-4/A dated 10.03.2007 which bears the signature of Dr. Sakia. DW-4
stated that the appellant had suffered a fracture on his right leg and on account
of that he was unable to move till his discharge from the Hospital.
32. We have perused the discharge slip Ex.DW-4/A which point towards
injury on the right shoulder and Right tibia of the appellant. The said discharge
summary does not indicate that the appellant suffered from a fracture. However,
DW-4 Dr. J.P. Singh under whose supervision the discharge summary was
prepared has in clear and categorical terms deposed that the appellant suffered a
fracture in his right leg. We do not find any reason that creates a doubt or
suspicion with regard to the said testimony. Nothing inconsistent has appeared
in the cross examination either. The medicals records (Ex.DW-8/A) maintained
by Tihar Jail Hospital reveal that for approximately two months, i.e., from
11.03.2007 till 01.05.2007, the appellant was continuously undergoing
treatment. From the aforesaid discussion, it is apparent that the appellant had
suffered injuries on his person which were grievous and dangerous so as to
hamper the appellant from following his routine course in life.
33. In his statement under Section 313 Cr.P.C. the appellant explained the
cause of injuries and about the incident in the following manner:-
Q.45. It is further in evidence against you that PW-11 SI
Rama Devi who was posted at PCR ITI on 4.3.2007 at about
5:08/5:09 p.m. was attending channel no.113 received an
information from Ramesh from telephone no.9312634110
that a quarrel at Z-Block, Sukhi Nehar, near DSM School,
Prem Nagar-II and he filled up PCR from Ex.PW-11/A and
thereafter he forwarded the same to the communication cell of
PCR. What have you to say?
Ans. It is correct that aforesaid information might have been
given by aforesaid person Ramesh as Shambhu and Avdesh
alongwith his others accomplices have come to my house and
after breaking the door of my house beaten me, Raghu Raj,
my nephew Rohit and other family members with lathis,
dandas and other weapons as my house is near at Z-Block,
Sukhi Nehar, near DSM School, Prem Nagar-II. We had
sustained severe injuries.
Q.61. Do you want to say anything else?
Ans. I am innocent and falsely implicated in this case along
with my brother at the instance Sambhu and Avdesh and SI
Puran Pant. On 4.3.2007 at about 5:00 p.m. Sambhu, Avdesh,
Netrapal, Ravi, Dharamvir along with other accomplices had
come to my house which is at Z-Block, Sukhi Nehar, near
DSM School, Prem Nagar-II and after breaking the door of
my house beaten me, Raghu Raj, my nephew Rohit and other
family members with lathis, dandas and other weapons. We
had sustained severe injuries. We were immediately admitted
in ESI Hospital by my nephew Rohit. Sambhu to save himself
and his aforesaid accomplices, falsely implicated me and my
brother for the murder of Hari Prasad. He along with his
accomplices would have killed Hari Prasad.
34. From the statement tendered by the appellant under Section 313 Cr. P.C.,
it appears that on 04.03.2007 at about 5:00 p.m. there was a scuffle between
two parties with the deceased, Shambhu (PW-1), Ravi (PW-5), Avdesh (PW-4),
Netrapal (PW-2) and Dharambir (PW-7) on one side and appellant along with
Raghu Raj, Giri Raj and one Rohit on the other side. The appellant in fact stated
that it was the deceased who along with his companions attacked at the
appellant's residence and on this fight erupted between the two groups.
Resultantly, mutual blows were exchanged. The appellant has stated that
injuries were inflicted on him by the deceased along with his companions.
35. We shall first deal with the aspect as to what would be the effect of non-
explanation of injuries by the prosecution.
In the case of Takhaji Hiraji vs. Thakore Kubersing Chamansing and
Ors. reported in (2001) 6 SCC 145, the Supreme Court dealt with the question
of non-explanation of injuries sustained by the appellant by the prosecution.
The Supreme Court observed that in Rajender Singh vs. State of Bihar, (2000)
4 SCC 298 : Ram Sunder Yadav vs. State of Bihar, (1998) 7 SCC 365 and
Vijayee Singh vs. State of U.P., (1990) 3SCC 190, all three Judge Bench
decisions, the view taken consistently is that it cannot be held as a matter of law
or invariably a rule that whenever the accused sustained an injury in the same
occurrence, the prosecution is obliged to explain the injury and on the failure of
the prosecution to do so the prosecution case should be disbelieved. Before the
non-explanation of the injuries on the person of the accused by the prosecution
witnesses may affect the prosecution case, the court has to be satisfied of the
existence of two conditions: (i) that the injury on the person of the accused was
of a serious nature; and (ii) that such injuries must have been caused at the time
of the occurrence in question. Non explanation of injuries assumes greater
significance when the evidence consists of interested or partisan witnesses or
where the defence gives a version which competes in probability with that of
the prosecution. Where the evidence is clear, cogent and creditworthy and
where the court can distinguish the truth from falsehood the mere fact that the
injuries on the side of the accused persons are not explained by the prosecution
cannot by itself be a sole basis to reject the testimony of the prosecution
witnesses and consequently the whole of the prosecution case.
In Amarjit Singh vs. State of Haryana, (2009) 16 SCC 649, the
Supreme Court observed that it is true that every injury is not liable to be
explained when the accused pleads a defence but contrarily an obligation does
lie on the prosecution to explain the presence of a serious injury.
In State of Gujarat vs. Bai Fatima, (1975) 2 SCC 7, the Supreme Court
held that there may be cases where the non-explanation of the injuries by the
prosecution may not affect the prosecution case. This principle would obviously
apply to cases where the injuries sustained by the accused are minor and
superficial or where the evidence is so clear and cogent, so independent and
disinterested, so probable, consistent and creditworthy, that it far outweighs the
effect of the omission on the part of the prosecution to explain the injuries.
The omission on the part of the prosecution to explain the injuries on the
person of the accused assumes much greater importance where the evidence
consists of interested or inimical witnesses or where the defence gives a version
which competes in probability with that of the prosecution one. (See Lakshmi
Singh & Ors vs. State of Bihar, (1976) 4 SCC 394.)
In the decision of Nagarathinam (supra) the Supreme Court has held as
under:-
"20. The genesis of the occurrence is, therefore, shrouded in
mystery. This occurrence, admittedly, took place, but who
were thus initial aggressors i.e. the prosecution witnesses or
the appellants, is difficult to say. The High Court has found
that the prosecution had not been able to prove the charge of
rioting. The appellants and others did not have any common
object to cause death of the accused of (sic) the prosecution
witnesses. We have noticed hereinbefore the nature of injuries
on the persons of the appellants. The first appellant received
two stab wounds and also an incised wound over the scalp at
frontal region. Appellant 2 received deep-cut wound and an
incised wound over the scalp left side parietal region.
Appellant 3 also received an incised scalp wound over frontal
parietal region. It is not denied and disputed that they were in
the hospital as indoor patients for a few days. We have
furthermore noticed hereinbefore that they were also arrested
after a few days.
xxx xxxx xxx
30. How and in what manner the appellants came to have
such bamboo sticks in their possession had not been
disclosed. All the appellants have suffered at least three
injuries each.
31. Whereas only one injury is said to have been caused by
Appellant 2 in the stomach of the first deceased by a knife, all
other injuries have been caused by hard-and-blunt substance,
whereas the appellants suffered injuries inflicted on them by
knife and bottles.
32. The investigating officer did not explain as to why the
appellants were not put under arrest on the date of occurrence
itself, despite the fact that they were admitted in the hospital.
The cause for delay in arresting the accused has not been
explained at all.
33. In the facts and circumstances of this case and keeping in
view the defence raised by them, we are of the view that it
was obligatory on the part of the prosecution to explain the
injuries on the persons of the appellants. In Bishna [(2005) 12
SCC 657: (2006) 1 SCC (Cri) 696 : (2005) 9 Scale 204 : JT
(2005) 9 SC 290] this Court held: (SCC pp. 674-75, para 50)
"50. The fact as regards failure to explain injuries on the
accused vary from case to case. Whereas non-explanation of
injuries suffered by the accused probabilises the defence
version that the prosecution side attacked first, in a given
situation it may also be possible to hold that the explanation
given by the accused about his injury is not satisfactory and
the statements of the prosecution witnesses fully explain the
same and, thus, it is possible to hold that the accused had
committed a crime for which he was charged. Where injuries
were sustained by both sides and when both the parties
suppressed the genesis in the incident, or were coming out
with the partial truth, the prosecution may fail. But, no law in
general terms can be laid down to the effect that each and
every case where prosecution fails to explain the injuries on
the person of the accused, the same should be rejected
without any further probe. (See Bankey Lal v. State of
U.P.[(1971) 3 SCC 184 : 1971 SCC (Cri) 253 : AIR 1971 SC
2233] and Mohar Rai v.State of Bihar [ (1968) 3 SCR 525 :
AIR 1968 SC 1281 : 1968 Cri LJ 1479] .)"
34. In that case, however, the injuries were held to have not
been necessary to be explained as the appellants therein were
found to have been guilty of commission of an offence under
Section 148 of the Penal Code. In the instant case, the
prosecution has not been able to show beyond all reasonable
doubt that the appellants were the aggressors. The prosecution
has also not been able to establish any common intention on
the part of the appellants to cause the death of that person."
(Underlining added)
In Nagarathinam (supra), the Supreme Court, in a nut shell, has held that
consequences of failure on part of the prosecution to explain injuries on the
accused will vary according to the facts and circumstances of each case. In
cases where the genesis of an incident is under cloud, if the prosecution
witnesses fully explain as to how the accused received injury/injuries, then the
prosecution need not to probe further into the matter. However, no straitjacket
formula can be laid down and each case has to be considered on its own facts
and circumstances.
36. In the present case, PW-23 Inspector Ravinder Singh has deposed that he
was aware about the appellant's admission in the ESI Hospital for treatment of
several injuries on the night intervening between 04.03.2007/5.03.2007. He
stated that no interrogation could be made from the appellant as he was under
treatment. In cross examination, PW-23 deposed that he had seen the MLC of
the appellant (Ex.PW-21/DA) and other accused Raghu Raj but did not
remember what injuries were mentioned in the same. PW-23 further admitted
that he did not remember whether he mentioned about the injuries and fracture
on the body of the appellant and Raghu Raj at time submitting the challan under
Section 173 Cr.P.C. He did not inquire or look into the medical records or x-ray
report of the either the appellant of the co-accused Raghu Raj. PW-23
interrogated the appellant on 05.03.2007 but the appellant denied making a
statement although he verbally confessed his guilt. The statement made by
PW-23 with respect to the investigation conducted by him about the injuries
suffered by the appellant is highly unsatisfactory and disappointing. It appears
from his statement that he made no efforts to inquire in to cause of injuries or
the manner in which injuries of such serious nature could have been suffered by
the appellant soon after the alleged incident. Even after the transfer of the
appellant from ESI Hospital to Tihar Jail Hospital on 11.03.2007, no efforts
have been made by PW-23 to find out actual cause behind the injuries suffered
by the appellant. It is relevant to mention that the appellant underwent treatment
at Tihar Jail Hospital for nearly two months. Such a long period treatment
would not have been necessary in case the appellant had suffered a simple
injury or a mere abrasion. It was incumbent upon PW-23, the investigating
officer to probe into the cause of the injuries suffered by the appellant as there
were not minor or superficial injuries. The appellant sustained fracture in his
right leg which cannot be said to be a superficial injury and it was obligatory on
part of the prosecution witnesses to explain the cause of injury sustained by the
appellant. Such an inquiry would have been beneficial in finding the truth as to
how the incident took place. Further, the explanation put forth by PW-1
Shambhu Nath and PW-5 Ravi in their respective testimonies that the appellant
suffered injuries because of falling while he was fleeing from the scene of crime
is unacceptable.
37. We shall now scrutinize whether the appellant is entitled to benefit under
Exception 4 to 300 IPC in view of the injuries sustained by the appellant and his
statement under Section 313 Cr.P.C.
For bringing in operation Exception 4 to Section 300 IPC, 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.
In Surinder Kumar vs. Union Territory, Chandigarh, AIR 1989 SC
1094, the supreme Court discussed the import of Exception 4 to Section 300
IPC in the following manner:-
"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...."
In Babulal Bhagwan Khandare vs. State of Maharashtra, (2005) 10
SCC 404 the Supreme Court held as under :-
"18. The help of Exception 4 can be invoked if death is
caused (a) without premeditation; (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 IPC. 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 a cruel or
unusual manner. The expression "undue advantage" as used
in the provision means "unfair advantage".
38. At this stage it is relevant to note the testimony of DW-7 Head Constable
Ranbir Singh. DW-7 Head Constable Ranbir Singh was examined by the
appellant to show that a complaint (Ex.PW-7/B) had been lodged on 12.04.2007
by the one Rohit alleging attack on the appellant. DW-7 produced the complaint
register and proved the same. The relevant entries Ex.DW-7/A and DW-7/C
indicate that complaint No. 4158 was filed by Sh. Rohit and according to
DW-7, the said complaint was referred to Police Station Sultanpuri on
12.04.2007 for appropriate action. In the complaint Ex.DW-7/B, it is recorded
that on 04.03.2007 some assailants attacked the house of the appellant and tried
to put it on fire. A call on 100 number was also made by Rohit giving
information about alleged attack to the police. The said PCR form is Ex.DY and
it records that the complaint was received from Mobile Phone Number
9873313255 which as per Ex.DW-7/B belonged to the complainant Rohit.
From the aforesaid defence evidence, it can be seen that the appellant's nephew
Rohit had made a complaint about the attack on the house of the appellant to
the police. However, the said complaint was lodged on 12.04.2007 nearly after
8 days of the incident and there is a possibility that the said complaint was
lodged as a counter blast.
Nevertheless, as already noted above, the appellant had suffered injuries
of grievous nature and the same cannot be disputed. This fact cannot be lost
sight of. We find that the impugned judgment has not at all considered the
injuries suffered by the appellant and has proceeded to convict the appellant
under Section 302 IPC on the premise of the ocular testimonies of the various
eye witnesses who in clear and categorical terms deposed that the appellant
stabbed the deceased. We are of the opinion that the trial court committed a
manifest error by not reflecting upon the injuries caused to the appellant.
What is also noticeable is the fact that the dispute is alleged between
PW-1 Shambhu Nath and Raghu Raj (the brother of the appellant) but there is
no material on record to show that whether any injuries were inflicted on PW-1
himself. No MLC pertaining to PW-1 is on record. It is strange that the PW-1
Shambhu Nath before court stated that Raghu Raj and Giri Raj blamed him and
Gulle @ Avdesh (PW-4) for breaking the slab in front of their house but PW-1
himself was not attacked by either the appellant or Raghu Raj and Giri Raj. It is
difficult to accept that the complainant who was the bone of contention escaped
unscathed from such a perilous assault in which the deceased lost his life and
the appellant also received grievous injuries. Another fact which raises an eye
brow about prosecution's version as to how the alleged incident took place is
that the appellant suffered injuries of serious nature whereas except the
deceased the other witnesses namely Netrapal (PW-2), Ravi (PW-5) and
Dharambir (PW-7) only suffered slight injuries. The MLC of Netrapal (PW-2)
is Ex PW-8/C which indicates that he was having an incised wound over the
right lumbar region sized 3cm x 1cm x 1cm. PW-8 Dr. Brijesh Singh opined
that the injuries were of simple nature and weapon used was sharp. MLC of
Ravi (PW-5) is Ex.PW-8/D which indicates a CLW 3cm x 0.5cm x 0.5cm.
MLC of Dharambir (PW-7) is Ex.PW-8/B which is proved by PW-8 Dr. Brijesh
Singh. PW-8 opined that Dharambir had an incised wound size about 3cm x
1cm x 1cm on the right elbow. The injury was simple and sharp. The MLC's
demonstrate that Netrapal (PW-2), Ravi (PW-5) and Dharambir (PW-7) had
suffered mere abrasions and no other significant injury was found on their
bodies. We also note that from the site plan Ex.PW-23/A it appears that the
houses of all the involved persons, including the deceased and the appellant, are
closely located and therefore, it was easily possible for the parties involved to
reach the spot within a short span of time. In view of the aforesaid discussion
above, it can be inferred that the manner in which the incident took place is not
clear and is cloaked with different versions. It can further be inferred that
injuries resulted on both parties and therefore, the possibility of the incident
resulting on account of sudden fight between the parties is palpably correct and
merits acceptance.
39. However, the prosecution has been able to establish beyond reasonable
doubt that the deceased died due the a stab injury meted out by the appellant
and same stands proved in view of the ocular testimonies of PW-1 Shambhu
Nath, PW-2 Netrapal, PW-5 Ravi, PW-7 Dharambir and PW-9 Gopal which
have stood through the test of cross examination without being demolished.
40. Now we shall deal with the aspect of singular blow inflicted with the
knife by the appellant. In State of Andhra Pradesh vs. Rayavarapu Punnayya
& Anr., (1976) 4 SCC 382, the Supreme Court has set out the distinction
between Section 299 and Section 300 IPC. While relying upon the decision in
Virsa Singh vs. State of Punjab, AIR 1958 SC 465, it has been held as under:-
"12. In the scheme of the Penal Code, "culpable homicide" is
genus and "murder" its specie. All "murder" is "culpable
homicide" but not vice-versa. Speaking generally, "culpable
homicide" sans "special characteristics of murder", is
"culpable homicide not amounting to murder". For the
purpose of fixing punishment, proportionate to the gravity of
this generic offence, the Code practically recognises three
degrees of culpable homicide. The first is, what may be
called, "culpable homicide of the first degree". This is the
greatest form of culpable homicide, which is defined in
Section 300 as "murder". The second may be termed as
"culpable homicide of the second degree". This is punishable
under the first part of Section 304. Then, there is "culpable
homicide of the third degree". This is the lowest type of
culpable homicide and the punishment provided for it is, also,
the lowest among the punishments provided for the three
grades. Culpable homicide of this degree is punishable under
the second part of Section 304.
13. The academic distinction between "murder" and "culpable
homicide not amounting to murder" has vexed the courts for
more than a century. The confusion is caused, if courts losing
sight of the true scope and meaning of the terms used by the
legislature in these sections, allow themselves to be drawn
into minutae abstractions. The safest way of approach to the
interpretation and application of these provisions seems to be
to keep in focus the keywords used in the various clauses of
Sections 299 and 300. The following comparative table will
be helpful in appreciating the points of distinction between
the two offences.
Section 299 Section 300
A person commits Subject to certain
culpable homicide if exceptions culpable
the act by which the homicide is murder if the
death is caused is act by which the death is
done - caused is done --
INTENTION
a) With the (1) With the intention of
intention of causing death; or
causing death; or (2) With the intention of
b) With the causing such bodily
intention of injury as the offender
causing such knows to be likely to
bodily injury as cause the death of the
is likely to cause person to whom the
death; or harm is caused; or
(3) With the intention of
causing bodily injury
to any person and the
bodily injury intended
to be inflicted is
sufficient in the
ordinary course of
nature to cause death;
or
KNOWLEDGE
c) With the (4) With the knowledge
knowledge that that the act is so
the act is likely imminently dangerous
to cause death that it must in all
probability cause
death or such bodily
injury as is likely to
cause death, and
without an7y excuse
for incurring the risk of
causing death or such
injury as is mentioned
above.
14. Clause (b) of Section 299 corresponds with clauses (2)
and (3) of Section 300. The distinguishing feature of the mens
rea requisite under clause (2) is the knowledge possessed by
the offender regarding the particular victim being in such a
peculiar condition or state of health that the internal harm
caused to him is likely to be fatal, notwithstanding the fact
that such harm would not in the ordinary way of nature be
sufficient to cause death of a person in normal health or
condition. It is noteworthy that the "intention to cause death"
is not an essential requirement of clause (2). Only the
intention of causing the bodily injury coupled with the
offender's knowledge of the likelihood of such injury causing
the death of the particular victim, is sufficient to bring the
killing within the ambit of this clause. This aspect of clause
(2) is borne out by Illustration (b) appended to Section 300.
15. Clause (b) of Section 299 does not postulate any such
knowledge on the part of the offender. Instances of cases
falling under clause (2) of Section 300 can be where the
assailant causes death by a fist blow intentionally
given knowing that the victim is suffering from an enlarged
liver, or enlarged spleen or diseased heart and such blow is
likely to cause death of that particular person as a result of
the rupture of the liver, or spleen or the failure of the heart, as
the case may be. If the assailant had no such knowledge about
the disease or special frailty of the victim, nor an intention to
cause death or bodily injury sufficient in the ordinary course
of nature to cause death, the offence will not be murder, even
if the injury which caused the death, was intentionally given.
16. In clause (3) of Section 300, instead of the words "likely
to cause death" occurring in the corresponding clause (b) of
Section 299, the words "sufficient in the ordinary course of
nature" have been used. Obviously, the distinction lies
between a bodily injury likely to cause death and a bodily
injury sufficient in the ordinary course of nature to cause
death. The distinction is fine but real, and, if overlooked, may
result in miscarriage of justice. The difference between clause
(b) of Section 299 and clause (3) of Section 300 is one of the
degree of probability of death resulting from the intended
bodily injury. To put it more broadly, it is the degree of
probability of death which determines whether a culpable
homicide is of the gravest, medium or the lowest degree. The
word "likely" in clause (b) of Section 299 conveys the sense
of "probable" as distinguished from a mere possibility. The
words "bodily injury ... sufficient in the ordinary course of
nature to cause death" mean that death will be the "most
probable" result of the injury, having regard to the ordinary
course of nature.
17. For cases to fall within clause (3), it is not necessary that
the offender intended to cause death, so long as the death
ensues from the intentional bodily injury or injuries sufficient
to cause death in the ordinary course of
nature. Rajwant v. State of Kerala [ AIR 1966 SC 1874 : I966
Supp SCR 230 : 1966 Cri LJ 1509.] is an apt illustration of
this point.
18. In Virsa Singh v. State of Punjab [ AIR 1958 SC 465 :
1958 SCR 1495 : 1958 Cri LJ 818.] Vivian Bose, J. speaking
for this Court, explained the meaning and scope of clause (3),
thus (at p. 1500):
"The prosecution must prove the following facts
before it can bring a case under Section 300,
'thirdly'. First, it must establish quite
objectively, that a bodily injury is present;
secondly the nature of the injury must be
proved. These are purely objective
investigations. It must be proved that there was
an intention to inflict that particular injury, that
is to say, that it was not accidental or
unintentional or that some other kind of injury
was intended. Once these three elements are
proved to be present, the enquiry proceeds
further, and fourthly it must be proved that the
injury of the type just described made up of the
three elements set out above was sufficient to
cause death in the ordinary course of nature.
This part of the enquiry is purely objective and
inferential and has nothing to do with the
intention of the offender.
19. Thus according to the rule laid down in Virsa Singh
case of even if the intention of accused was limited to the
infliction of a bodily injury sufficient to cause death in the
ordinary course of nature, and did not extend to the intention
of causing death, the offence would be "murder". Illustration
(c) appended to Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and clause (4) of Section 300
both require knowledge of the probability of the act causing
death. It is not necessary for the purpose of this case to dilate
much on the distinction between these corresponding clauses.
It will be sufficient to say that clause (4) of Section 300
would be applicable where the knowledge of the offender as
to the probability of death of a person or persons in general
-- as distinguished from a particular person or persons --
being caused from his imminently dangerous act,
approximates to a practical certainty. Such knowledge on the
part of the offender must be of the highest degree of
probability, the act having been committed by the offender
without any excuse for incurring the risk of causing death or
such injury as aforesaid.
21. From the above conspectus, it emerges that whenever a
court is confronted with the question whether the offence is
"murder" or "culpable homicide not amounting to murder",
on the facts of a case, it will be convenient for it to approach
the problem in three stages. The question to be considered at
the first stage would be, whether the accused has done an act
by doing which he has caused the death of another. Proof of
such causal connection between the act of the accused and the
death, leads to the second stage for considering whether that
act of the accused amounts to "culpable homicide" as defined
in Section 299. If the answer to this question is prima facie
found in the affirmative, the stage for considering the
operation of Section 300 of the Penal Code, is reached. This
is the stage at which the court should determine whether the
facts proved by the prosecution bring the case within the
ambit of any of the four clauses of the definition of "murder"
contained in Section 300. If the answer to this question is in
the negative the offence would be "culpable homicide not
amounting to murder", punishable under the first or
the second part of Section 304, depending, respectively, on
whether the second or the third clause of Section 299 is
applicable. If this question is found in the positive, but the
case comes within any of the exceptions enumerated in
Section 300, the offence would still be "culpable homicide
not amounting to murder", punishable under the first part of
Section 304, of the Penal Code.
22. The above are only broad guidelines and not cast-iron
imperatives. In most cases, their observance will facilitate the
task of the court. But sometimes the facts are so intertwined
and the second and the third stages so telescoped into each
other, that it may not be convenient to give a separate
treatment to the matters involved in the second and third
stages."
(Underlining added)
From a perusal of the aforesaid judgment it becomes clear that if the
intended injury is sufficient to cause death in the ordinary course of nature, the
offence will fall under murder. Under Clause 3 of Section 300 IPC, the factum
of presence of bodily injury and nature of the injury are purely objective
investigations. Thereafter, it has to be discerned whether the injury is either
intentional or accidental. The next question is whether the injury is sufficient to
cause death in ordinary course of nature. This enquiry is also objective in nature
and has nothing to do with the intention of the offender. Once it is established
that the offence falls under Clause 3 of Section 300 IPC, the next thing which
has to be considered is whether the offence falls under any one of the five
exceptions to Section 300 IPC. If the offence is committed under one the
circumstances mentioned under Exceptions to Section 300, the offender would
be entitled to be punished under Section 304 Part I IPC and not under Section
302 IPC. If the offence under any of the clauses under Section 300 itself is not
made out, the offender would be liable for committing an offence of culpable
homicide not amounting to murder under Section 299 IPC punishable under
either Section 304 Part I or Part II of the IPC.
In Jagrup Singh vs. State Haryana, (1981) 3 SCC 616, the Supreme
Court while dealing with the aspect of death cause by a singular blow observed:
"5. In assailing the conviction, learned Counsel for the
appellant contends that the appellant having struck a solitary
blow on the head of the deceased with the blunt side of
the gandhala, can be attributed with the knowledge that it
would cause an injury which was likely to cause death and
not with any intention to cause the death of the deceased. The
offence committed by the appellant, therefore, amounted to
culpable homicide not amounting to murder, punishable
under Section 304, Part II of the Code. He further contends,
in the alternative, that there could be no doubt that the
appellant acted in the heat of the moment when he hit the
deceased and is, therefore, entitled to the benefit of Exception
4 of Section 300 of the Code. On the other hand, learned
Counsel for the State contends that the matter squarely falls
within clause Thirdly of Section 300 of the Code. He submits
that merely because the appellant rendered a solitary blow
with the blunt side of the gandhala on the head would not
necessarily imply that the offence amounted to culpable
homicide not amounting to murder punishable under Section
304, Part II of the Code.
6. There is no justification for the assertion that the giving of
a solitary blow on a vital part of the body resulting the death
must always necessarily reduce the offence to culpable
homicide not amounting to murder punishable under Section
304, Part II of the Code. If a man deliberately strikes another
on the head with a heavy log of wood or an iron rod or even
a lathi so as to cause a fracture of the skull, he must, in the
absence of any circumstances negativing the presumption, be
deemed to have intended to cause the death of the victim or
such bodily injury as is sufficient to cause death. The whole
thing depends upon the intention to cause death, and the case
may be covered by either clause Firstly or clause Thirdly. The
nature of intention must be gathered from the kind of weapon
used, the part of the body hit, the amount of force employed
and the circumstances attendant upon the death."
Similarly, in decision reported as Jagtar Singh vs. State of Punjab,
(1983) 2 SCC 342, it has been held that:
"5. The only question that we are called upon to examine in
the facts and circumstances of this case is whether the
appellant could be said to have committed murder of deceased
Narinder Singh punishable under Section 302 of the Indian
Penal Code.
6. A quarrel took place on the spur of the moment. The
appellant never expected to meet the deceased. When the
deceased was just passing by the road in front of the house of
the appellant, his forehead dashed with the parnala of the
house of the appellant which provoked the deceased to
remonstrate the appellant. It is in evidence that there was
exchange of abuses and at that time appellant gave a blow
with a knife which landed on the chest of the deceased.
7. Undoubtedly, PW 2 Dr H.S. Gill opined that the blow on
the chest pierced deep inside the chest cavity resulting in the
injury to the heart and this injury was sufficient in the
ordinary course of nature to cause death. The question is
whether in the circumstances in which the appellant gave a
blow with a knife on the chest, he could be said to have
intended to cause death or he could be imputed the intention
to cause that particular injury which has proved fatal? The
circumstances in which the incident occurred would clearly
negative any suggestion of premeditation. It was in a sudden
quarrel to some extent provoked by the deceased, that the
appellant gave one blow with a knife. Could it be said that
para 3 of Section 300 is attracted. We have considerable
doubt about the conclusion reached by the High Court. We
cannot confidently say that the appellant intended to cause
that particular injury which is shown to have caused death.
There was no premeditation. There was no malice. The
meeting was a chance meeting. The cause of quarrel though
trivial was just sudden and in this background the appellant, a
very young man gave one blow. He could not be imputed with
the intention to cause death or the intention to cause that
particular injury which has proved fatal. Neither para 1 nor
para 3 of Section 300 would be attracted. We are fortified in
this view by the decision of this Court in Jagrup Singh v.State
of Haryana [(1981) 3 SCC 616 : 1981 SCC (Cri) 768 : (1981)
3 SCR 839 : 1981 Cri LJ 1136] . It was subsequently followed
in Randhir Singh v. State of Punjab [(1981) 4 SCC 484 : 1981
SCC (Cri) 856] and Kulwant Rai v. State of Punjab [(1981) 4
SCC 245 : 1981 SCC (Cri) 826] . Following the ratio of the
aforementioned decisions, we are of the opinion that the
appellant could not be convicted for having committed
murder of the deceased Narinder Singh. His conviction for an
offence under Section 302 IPC and sentence of imprisonment
for life are liable to be set aside.
8. The next question is what offence the appellant is shown to
have committed? In a trivial quarrel the appellant wielded a
weapon like a knife. The incident occurred around 1.45 noon.
The quarrel was of a trivial nature and even in such a trivial
quarrel the appellant wielded a weapon like a knife and
landed a blow in the chest. In these circumstances, it is a
permissible inference that the appellant at least could be
imputed with a knowledge that he was likely to cause an
injury which was likely to cause death. Therefore, the
appellant is shown to have committed an offence under
Section 304 Part II of the IPC and a sentence of imprisonment
for five years will meet the ends of justice."
41. Now let us consider the facts and circumstances in the instant case in
view of the law laid down by the Supreme Court. As noted above the genesis of
the occurrence is blurred. It is uncertain as to who were the aggressors. The
appellant has also suffered severe injuries. The occurrence appears to be an
outcome of sudden fight. There is no cogent evidence on record to demonstrate
that there was previous enmity or animosity between the appellant and
deceased. As per PW-1 Shambhu Nath, the quarrel happened because PW-1
and PW-4 Gulle had broken the slab in front of the house of the appellant by
driving their bikes in the gali. The dispute regarding breaking of slab on the
street was a trifle and not the basis of the fatal attack. It is apparent that this
was the basis/foundation of the quarrel but not the motive to cause or commit
murder. There were heated arguments and exchange of words and the tempers
soured with both sides loosing self control and physically attacking each other.
Apparently, there was no premeditation or scheming to cause death of the
deceased as from the Site plan (Ex.PW-23/A) it is evident that the houses of the
deceased, appellant as well as the eye witnesses were closely located. The crime
spot was also within close vicinity. Burst of anger and rage resulted in sudden
violence which went out of control. The possibility of appellant getting hold of
knife from his house at the spur of the moment is apparent and demonstrable.
Undoubtedly, the appellant has inflicted a deep injury on the neck of the
deceased which pierced through the muscles and reached the lung, but it must
also be borne in mind that a person while quarrelling in heat of passion in a
sudden physical or violent fight can act in a manner to which can result into
death. Here the injuries suffered by the appellant are relevant and have to be
noticed. Further others belonging to the deceased group did not suffer serious
injuries. As per the Supreme Court each case has to be weighed on its own
merit and a holistic view of the entire transaction has to be taken into
consideration in order to find out the nature of the actual offence committed.
From the totality of the circumstances as narrated above coupled with the nature
of the guilt, we hold that the appellant entitled to benefit of Exception 4 to
Section 300 IPC .The punishment is converted from Section 302 IPC to one
under Section 304, Part I of the IPC.
42. Accordingly, we convict the appellant under Section 304 Part I IPC and
sentence him to undergo rigorous imprisonment for a period of seven years.
The quantum of fine imposed by the trial court is upheld. It is noted that the
appellant has already undergone incarceration approximately for a period of 5
years and 11 months. The appeal is partly allowed in aforesaid terms.
SIDDHARTH MRIDUL
(JUDGE)
SANJIV KHANNA
(JUDGE)
MARCH 22, 2013
dn
