Trilok Singh & Anr. vs State (Nct Of Delhi)
2014 Latest Caselaw 333 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision:20th January, 2014
+       CRL.A. 281/1999
        TRILOK SINGH & ANR.                       ..... Appellants
                 Through: Ms. Inderjeet Sidhu, Advocate

                          versus

        STATE (NCT OF DELHI)                      ..... Respondent
                 Through: Ms.Rajdipa Behura, APP along with SI
                          Sunil Kumar, P.S. Tughlak Road.

        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE G.P. MITTAL

                             JUDGMENT

SANJIV KHANNA J.(ORAL)

1. By the impugned judgment dated 15.12.1998, Trilok Singh and Atma Singh have been convicted for murder of Harcharan Singh under Section 302 of the Indian Penal Code, 1860(for short „IPC‟) and under Section 307 IPC for attempt to murder Tarsem Singh on 30.11.1990 at about 10:45 pm. Appellant Atma Singh has also been convicted under Section 27 of the Arms Act, 1959. Conviction of Trilok Singh under Section 302 and 307 IPC is by relying upon Section 34 of the IPC. By order on sentence dated 16.12.1998, both the appellants have been sentenced to life imprisonment and fine of Rs.1,000/- under Section 302 IPC. In default of payment of fine, they have to undergo simple imprisonment for 15 days under Section 302/34 IPC. For the offence under Section 307 IPC, Trilok Singh has been sentenced to rigorous

imprisonment for seven years and fine of Rs.1,000/-. In default of payment of fine to undergo simple imprisonment for 15 days. Atma Singh has been sentenced to rigorous imprisonment of four years under Section 27 of the Arms Act and fine of Rs.1,000/-, in default of which he is to undergo simple imprisonment for 15 days.

2. At the outset, we record and notice that the third accused Joginder Singh was tried along with two appellants under Section 302/307/34 IPC read with Section 34 IPC, but he has been convicted under Section 326 read with Section 34 IPC and was released on the period already undergone, i.e., about eight years. He was also directed to pay fine of Rs.5,000/- which included Rs.3000/- to be paid as compensation to the family members of the deceased Harcharan Singh and legal heirs of injured Tarsem Singh as Tarsem Singh had expired by the time the order on sentence was pronounced. The sentences are to run concurrently and benefit of Section 428 of the Code of Criminal Procedure, 1973 („Code‟ for short) has been given.

3. Learned amicus curiae for the appellants states that as per her instructions Joginder Singh has accepted the judgment and order on sentence and no appeal has been filed.

4. On the question of involvement of the two appellants, who are two brothers, we are entirely in agreement with the findings recorded by the Trial Court that they were present at the place of occurrence having gone to Lucky Taxi Stand, Subramaniyam Bharti Marg, New Delhi. Over there, the deceased Harcharan Singh was stabbed 2-3 times by the appellant Atma Singh on the neck and chest. We are also satisfied with

the reasons and findings recorded by the Trial Court that appellant Atma Singh had stabbed Tarsem Singh on his back side. Statements of the four eye witnesses, namely, Kashmir Singh, Tarsem Singh, Amrik Singh and Gurdeep Singh who appeared as PWs 1 to 4 respectively are lucid, clear and categorical. The four witnesses have stated that Atma Singh was present at the spot along with a dagger and had caused injuries with the said dagger to deceased Harcharan Singh and injured Tarsem Singh. PW3 Amrik Singh may not have seen the actual occurrence in which Atma Singh had stabbed and given the three dagger wounds to Harcharan Singh, but this would not, help the appellants as PW3 has stated on hearing commotion and noise, he had rushed outside immediately after the actual stabbing incident. PW2 Tarsem Singh was stabbed by appellant Atma Singh and the injuries caused to him have been proved beyond doubt in terms of the MLC Ex.PW10/F. The said MLC was proved by Dr. D.N. Bhardwaj (PW10) who has stated that PW2 was brought to the hospital with a stab wound on the back left side in the 10th intercostal space in the line scapula, 6 cm from midline. He was examined by Dr. Arun Gupta who opined that the injury were dangerous. The said MLC Ex.PW10/F was recorded at 11:05 pm on 30.11.1990. Details of the stab wound were recorded in the MLC Ex.PW10/F.

5. As per the prosecution case, the two appellants, namely, Trilok Singh and Atma Singh were detained at the spot by the four witnesses PWs 1 to 4 and were taken into custody after the police arrived at the spot. The third accused Joginder Singh had, however, managed to escape and ran away from the spot and was subsequently arrested.

6. We shall refer to the testimonies of PWs 1 to 4 in some detail below while dealing with the question whether the appellants have been rightly convicted under Section 302 IPC, but at this stage, we would like to refer to the corroborative evidence regarding presence of the two appellants at the scene of occurrence as perpetrators who are involved in the said offence. Const. Jagdish Chand (PW19) has deposed that he was posted on PCR van duty stationed at Sujan Singh Park, Khan Market. At about 11:00 pm, he was orally informed about the occurrence at Lucky Taxi Stand, Khan Market near Ambassador Hotel. PCR van was driven to the spot, where he met PWs 3 and 4 Amrik Singh and Gurdeep Singh and appellant Trilok Singh. A little ahead, he came across PW1 Kashmir Singh who had caught hold of appellant Atma Singh. PW2 Tarsem Singh was also present, but he was bleeding as he was injured. He gave information to the control room and called for another PCR van. Trilok Singh was apprehended and deceased Harcharan Singh and injured Tarsem Singh were taken to All India Institute of Medical Sciences. MLC of the deceased Harcharan Singh was proved by PW10 Dr. D.N. Bhardwaj and has been marked Ex.PW10/E. The said MLC records that the patient had a wound on the left side of neck size 2 cm into 1 cm neck deep. Stab wound was present on the left side of chest and in second intercostals space. The size of the wound was 2 cm x 1 cm but was chest cavity deep. Stab wound of 10 cm size was present on the lateral aspects of left arm. The cause of death was haemorrhage shock due to the injuries. Injuries Nos. 1 and 2 were individually and collectively sufficient to cause death in the ordinary course of nature.

7. The detention and arrest of the two appellants from the crime spot was also deposed and affirmed by Constable Joseph Francos (PW18), Inspector (Retd.) V.N Chawla (PW24) and Inspector Inder Singh and Inspector Indira Sharma (PW25). PW24 had reached the spot at about 11:30 pm and Inspector Inder Singh was already present there. PWs 24 and 25 had taken the deceased Harcharan Singh and injured Tarsem Singh to AIIMS hospital. PW25 had recorded statement of Kashmir Singh (PW1) in the hospital and thereafter along with appellant Atma Singh had returned to the spot at 3:30 pm before proceeding to the police station. PW 25 and PW24 have made court statements on identical line.

8. From the spot in question, a dagger, the sketch of which is marked Ex.PW1/C, was recovered and has been deposed to by Kashmir Singh (PW1) and by PWs 1 to 3 as well as police witnesses. As per forensic reports Ex.PX-3 to Ex.PX-4, blood of group „A‟ was found on the dagger and the blood group matches, the blood group of the deceased. Shirts worn by the two appellants were also seized and sent for forensic examination and as per Ex.PX-3 to Ex.PX-4, and blood was found on the shirt worn by Atma Singh marked Ex.P-17, but the group could not be ascertained. Blood group of „A‟ was found on the shirts and pant of Trilok Singh, parcel Exs. 16A and 16B and matched blood group of the deceased.

9. The main plea and contention of the learned counsel for the appellants‟ is that the Trial Court has erred in convicting the two appellants under Section 302 or under Section 302 read with Section 34 IPC. The case falls under Exception 4 to Section 300 IPC, as it is a case of sudden

quarrel and in the heat of moment, stab injuries were given to the deceased Harcharan Singh. It is submitted that the appellants were prevented and obstructed from taking their belonging lying at Lucky Taxi Stand. Thereafter, quarrel took place and in order to prevent and protect themselves, Appellant Atma Singh may have used the dagger, but offence under Section 302 IPC is not made out. On behalf of Trilok Singh, it is submitted that he had not used any force and in fact his case is identical to that of Joginder Singh. Our attention is drawn to the reasoning given in the impugned judgment for convicting Joginder Singh under Section 326 read with Section 34 IPC. Our attention was drawn to the rukka Ex.PW1/A, wherein it is not mentioned that appellant Trilok Singh had taken out an iron rod from the car. Appellant Trilok Singh had not used any iron road and no injuries were caused or inflicted by him on any of the witnesses present, namely, PWs 1 to 4.

10. As far as appellant Atma Singh is concerned, we are satisfied that he has been rightly convicted under Section 302 IPC and Exception 4 to Section 300 IPC is not applicable in his case. PW1 has deposed that the two appellants used to drive taxi and he knew them, as they were earlier working with at Speedy Miles Taxi Stand. Appellants Trilok Singh and Atma Singh had shifted to Lucky Taxi Stand from Speedy Miles Taxi Stand. After shifting to Lucky Taxi Stand, Atma Singh and Trilok Singh started driving the taxi belonging to Gurpal Singh. Trilok Singh and Atma Singh had driven the taxi of Gurpal Singh for about a month. During that period, they had borrowed Rs.1,500/- as advance from Gurpal Singh. They cheated Gurpal Singh of Rs.600/- to Rs.700/-

on account of rent of the taxi. Thereafter, they left Lucky Taxi Stand without informing Gurpal Singh and started operating once again from Speedy Miles Taxi Stand, Ashoka Road. They had left behind their bedding, clothes and cots at Lucky Taxi Stand. A month before the incident, the Appellants Trilok Singh and Atma Singh came to Lucky Taxi Stand. At that time, deceased Harcharan Singh, who used to attend the telephone calls at the Stand, was present over there. They demanded their belongings from him. Deceased Harcharan Singh had asked them to first clear their account and then only they could take away their belongings. The appellants left the place on that date but came back after about ten days. Deceased Harcharan Singh was present at that time. They had an altercation with the deceased and had managed to take away their clothes but other belongings remained at Lucky Taxi Stand. On 30.11.1990, the two appellants and Joginder Singh had come at the Lucky Taxi Stand at about 10:45 pm in a car No.DLY-649. Deceased Harcharan Singh was lying on the cot at that time. Appellant Atma Singh had a dagger (khanjar) with him and had called names to Harcharan Singh by referring to his father and had abused him. When Harcharan Singh tried to get up from his cot, Joginder Singh and appellant Trilok Singh caught hold of him and Atma Singh inflicted three knife injuries on his chest, neck and near the shoulder. Deceased Harcharan Singh fell down and started bleeding profusely. Tarsem Singh (PW2) intervened and upon this, Atma Singh inflicted two-three injuries on his left ribs and on the hand with the same 'khanjar'. Tarsem Singh grappled with Atma Singh. Appellant Trilok Singh pushed away Harcharan Singh with force as a result of which he fell down. Kashmir Singh (PW1) had stated that upon this,

appellant Trilok Singh took out an iron rod from his taxi and was about to give injuries to the deceased, when PWs 3 and 4 caught hold of him. As noticed above, in the Rukka Ex.PW1/A, it is mentioned that Trilok Singh had an iron rod, but it is not mentioned that Trilok Singh had taken out the iron rod from the taxi. PW1 had stated that he gave fist blows to appellant Atma Singh after they over-powered him and accordingly the said appellant suffered minor injuries. Deceased Harcharan Singh and injured Tarsem Singh had fallen down and a PCR van arrived at the spot and they were taken to hospital. Fifteen minutes after reaching the hospital, Harcharan Singh was declared dead. PW1 has also testified about the incriminating material seized from the spot of crime. He has proved various exhibits which were sent to CFSL and mentioned in the reports marked Ex.PX-3 and Ex.PX-4. Here we would observe that it would have been better, in case the Trial Court while recording the evidence had collated and specified the exhibit with the person associated with the article in question. With the assistance of the learned amicus curiae and public prosecutor, we have undertaken the said exercise.

11. PW2 Tarsem Singh deposed on the similar lines with regard to the dispute between the appellants and Gurpal Singh and the fact that the belongings of the appellants were lying at the Lucky Taxi Stand. He has testified that on 30.11.1990, at about 10:45 pm, the two appellants alongwith Joginder Singh came to Lucky Taxi Stand and had grappled with the deceased Harcharan Singh. On hearing the noise, he got up and tried to persuade them not to fight and had tried to intervene to save Harcharan Singh. . PW2 has stated that appellant Atma Singh attacked

him with the 'khanjar' and Trilok Singh and Joginder Singh had caught hold of Harcharan Singh. He became unconscious and taken to hospital. He has deposed that Trilok Singh armed with a 'khanjar' had attacked him with the same on his back and on his hand. This, however, does not appear to be correct and is not borne out from the records.

12. PW3 Amrik Singh has stated the past history and the cause for the presence of the two appellants and Joginder Singh. He has stated that on 30.11.1990 at about 10:45 pm, the two appellants and Joginder violently retaliated. PW3 has deposed that there was altercation between Harcharan Singh and the two appellants and Joginder Singh. Initially he did not take the quarrel seriously but on hearing shouts, he came out from his taxi and and saw Harcharan Singh bleeding from his neck, arm and left side of abdomen. Appellant Atma Singh had inflicted injuries on Harcharan Singh with a dagger. But it does appear that he had not seen the appellant Atma Singh giving dagger blows. However the testimony is relevant as he was present at the spot and had seen the appellant Atma Singh with the dagger immediately after injuries were caused to Harcharan Singh. PW3 has further stated that after Trilok Singh and Atma Singh gave dagger blows, Tarsem Singh fell down. The appellants were apprehended at the spot. PW3 has also deposed to the various incriminating materials which was seized from the spot itself.

13. Statement of PW4 Gurdeep Singh is identical to the past history and cause for the appellant to come to the spot. He deposed that on 30.11.1990 at about 10:45 pm, deceased Harcharan Singh was lying on

the cot at the Lucky Taxi Stand. Appellant Trilok Singh, Atma Singh and Joginder Singh came there in a car. At that time, he and Kashmir Singh were sleeping inside the tent whereas Tarsem Singh was also there sitting or lying in his taxi parked there. He woke up after he heard abuses being hurled and saw the occurrence.

14. Learned amicus curiae for the appellants submits that court testimony of PW4 is not correct and there are some discrepancies as to the actual infliction of the injury. This contention does not materially affect the testimony as given by the PWs 1 to 4 as to the presence of the appellants at the spot of crime and being the perpetrators of the crime in question. PW4 woke up after hearing the abuse and saw that Appellant Trilok Singh and Joginder Singh had caught hold of Harcharan Singh and Atma Singh had given the 'khanjar' blows on the neck, chest and arm of Harcharan Singh. Tarsem Singh came to rescue Harcharan Singh, but he was also attacked by Atma Singh with the 'khanjar' which he was carrying with him. Harcharan Singh and Tarsem Singh were removed by him and appellant Trilok Singh was apprehended. Accused Joginder Singh ran away.

15. From the statements of PWs 1 to 4, it is apparent that there was a past dispute between the appellants and Gurpal Singh. Gurpal Singh(PW7) was not present and not one of the injured or an eye witness but he has supported the prosecution on the cause/ motive. The belongings of the appellants were lying at Lucky Taxi Stand, Khan Market and they had come to collect the same, when the quarrel took place. It is also apparent that initially PWs 1 to 4 did not suspect or doubt the intentions of the two appellants or believed that the two appellants had come with

the intention to commit murder of Harcharan Singh or any other third person. It is clear from the testimony of PWs 1 to 4 that they did not immediately rush to protect or prevent the appellants when the verbal abuses were hurled by the appellants Trilok Singh and Atma Singh and accused Joginder Singh. It is only when the Appellant Atma Singh used the dagger on Harcharan Singh, they came to protect and in this process, PW2 Tarsem Singh was also hit by the dagger. Subsequently, the appellants were detained by PWs1 to 4.

16. Exception 4 to Section 300 IPC reads as under:

"Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender‟s having taken undue advantage or acted in a cruel or unusual manner."

17. The said Exception was elucidated by the Supreme Court in Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770 in the following words:

"13. In Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348] this Court held that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the Exception provided he has not acted cruelly. This Court held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300 this Court observed: (SCC p. 220, para 7) "7. ... To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was

no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly."

14. We may also refer to the decision of this Court in Ghapoo Yadav v. State of M.P. [(2003) 3 SCC 528 : 2003 SCC (Cri) 765] wherein this Court held that in a heat of passion there must be no time for the passions to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 IPC. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite: (SCC p. 532, paras 10-11) "10. ... 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 the Penal Code. 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 have 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‟.

11. ... After the injuries were inflicted the injured has fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused-appellants had come prepared and armed for attacking the deceased. ... This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in a cruel or unusual manner. That being so, Exception 4 to Section 300 IPC is clearly applicable."

(emphasis supplied)

15. In Sukhbir Singh v. State of Haryana [(2002) 3 SCC 327 : 2002 SCC (Cri) 616] the appellant caused two bhala- blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court this Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 of Section 300 IPC. In cases where after the injured had fallen down, the appellant did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. The Court observed: (SCC p. 340, para 19) "19. ... All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 to Section 300 IPC. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with bhala caused injuries at random and thus did not act in a cruel or unusual manner."

(emphasis supplied)

16. Reference may also be made to the decision in Mahesh v. State of M.P. [(1996) 10 SCC 668 : 1997 SCC (Cri) 181] , wherein the appellant had assaulted the deceased in a sudden fight and after giving him one blow he had not

caused any further injury to the deceased which fact situation was held by this Court to be sufficient to bring the case under Exception 4 to Section 300 IPC. This Court held: (SCC p. 670, para 4) "4. ... Thus, placed as the appellant and the deceased were at the time of the occurrence, it appears to us that the appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heels. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly, he did not assault PW 2 or PW 6 who were also present along with the deceased and who had also requested the appellant not to allow his cattle to graze in the field of PW 1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception 4 to Section 300 IPC is clearly attracted to the case of the appellant and the offence of which the appellant can be said to be guilty would squarely fall under Section 304 (Part I) IPC."

(emphasis supplied)

18. In the said case, i.e., Ankush Shivaji Gaikwad (supra), the Supreme Court held that the case was covered under Exception 4 for the reasons stated out in paragraph 11. It was observed that there was no enmity or motive in commission of the offence. Secondly, the weapon used was not lethal nor was the deceased given a second blow and thirdly there was an exchange of hot words and, therefore, it can be assumed that initial intention was not to kill the victim but to abuse him verbally.

19. As far as Atma Singh is concerned, as observed his acts and deeds are not covered under Exception 4 to Section 300 IPC. The reason being that as the appellant Atma Singh had acted in a cruel manner. He gave three blows to the deceased including two on his neck and chest and when PW2 Tarsem Singh intervened to save him, dagger blow was given on his back. As per post mortem report, the deceased Harcharan

Singh had the following injuries on his body:

"1. Stab wound on the left side of neck size 2 cm x 1 cm x neck deep. The wound was going medially down words cutting under neeth muscle and juggler mussel. Total depth of wound was 7 cm.

On dissection the neck tissue contain about 250 ml of blood. The margins of wound were clean cut.

2. Stab wound was present on left side of chest in second (II) intercostal space. The size of wound were two cm. X 1 cm into chest cavity deep. The wound was obliquely/loudly pierely closure upper lobe of the left lung and also anterior aspect of the heart in the ventricle and total depth of wound was about 7 cm chest cavity contained about 2 letres of a semi constellated blood.

3. Stab wound was present on the lateral aspects of left arm. 10 cm about elbow joint, size 2 cm 1cm-7cm. Mugginess were clean cut on die section of the chest cavity stab wound was present in the heart on left side in the ventricle."

20. The cause of death as per the post mortem report Ex.PW10/A was haemorrhagic shock due to the above injuries. All injuries were ante mortem and caused by a sharp weapon. Injury No.1 and 2 were individually as well as collectively sufficient to cause death in the ordinary course of the nature. Injuries suffered by PW2 were dangerous in nature and have been noticed above. The sketch of the dagger in question Ex.PW10/1/C. Even if it is assumed that the said dagger was a 'kirpan' which was in possession of Atma Singh, this case would not fall under Exception 4. Keeping in view of the nature of injuries suffered it is clear that the injuries suffered were dangerous in nature and at vital parts of Harcharan‟s body. We are of the opinion that the appellant Atma Singh had acted in a cruel and unusual manner. It is

not the case of the Appellant Atma Singh and it is not alleged that Harcharan Singh was armed or had used any weapon. No suggestion was given by the appellants to the said effect to the witnesses or in their examination under Section 313 Cr.P.C. The appellant Atma Singh has acted in a cruel manner in taking life of the deceased Harcharan Singh by giving three dagger blows. Thus, the conviction and sentence of appellant Atma Singh for the offences punishable under Section 302 and 307 IPC as also under Section 27 of the Arms Act is affirmed.

21. However, as far as Appellant Trilok Singh is concerned, we feel that he should be given the benefit of the doubt and on the parity of reasons as given in the case of Joginder Singh is entitled to some leniency. As per the version given by PWs1, 2 and 4, both the appellants Trilok Singh and Joginder Singh had caught hold of the deceased Harcharan Singh. However, the Trial Court did not accept said version in case of Joginder Singh and had observed that Joginder Singh was not covered under Section 34 IPC. The role attributed to appellant Trilok Singh is identical to Joginder Singh. It cannot be safely said that he alongwith Joginder Singh had caught hold of the deceased. It is rightly pointed out by the learned counsel for the appellant that the iron rod was not used by the appellant Trilok Singh and no injuries caused by the said iron rod. The complaint Ex.PW1/A does not mention that appellant Trilok Singh had the dagger in his possession. As per PW1 Kashmir Singh after the deceased Harcharan Singh had been stabbed and thereafter to get help, appellant Trilok Singh took out a rod from the car in which they had come. It is not stated that the iron rod was actually used. No blood was found on the iron rod as per the CFSL report.

Thus, benefit of Exception 4 to Section 300 IPC is extended to the appellant Trilok Singh. He is convicted under Section 304 Part I IPC read with Section 34 IPC, instead of Section 302/34 IPC as held by the Trial Court.

22. It is pointed out that appellant Trilok Singh had undergone incarceration from the date of arrest on 30.11.1990 till May, 2000 and was rearrested on 29.10.2013 and is still in custody. In view of the aforesaid, appellant Trilok Singh should be released on the period undergone. His conviction and sentence for the offence punishable under Section 307/34 is maintained which also he has already undergone. We are not enhancing the fine imposed and compensation as awarded as it is stated that the appellants Trilok Singh and Atma Singh, are not men of means and are dependant on third parties for their basis needs.

23. It is stated that fine of Rs.1,000/- has been paid by both the appellants, i.e., Trilok Singh and Atma Singh. In case, the said fine has not been deposited, they will undergo the simple imprisonment of 15 days as imposed by the Trial Court.

24. The appeal is accordingly disposed of.

(SANJIV KHANNA) JUDGE

(G.P. MITTAL) JUDGE JANUARY 20, 2014 pst