Chander Pal Singh vs State Of Delhi
2014 Latest Caselaw 455 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      CRIMINAL APPEAL NO. 383/1998

                                         Reserved on: 10th January, 2014
%                                     Date of Decision: 24th January, 2014


        CHANDER PAL SINGH                       ..... Appellant
                Through Mr. K.B. Andley, Sr. Advocate with Mr.
                        M.L. Yadav, Advocate.

                                    Versus

        STATE OF DELHI                            ..... Respondent

Through Ms. Rajdipa Behura, APP for the State.

CRIMINAL APPEAL NO. 450/1998

ANGREJ SINGH ..... Appellant Through Mr. L.K. Passi, Advocate.

Versus STATE ..... Respondent Through Ms. Rajdipa Behura, APP for the State.

CORAM:

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

SANJIV KHANNA, J.:

The appellants Chander Pal Singh and Angrej Singh by the

impugned judgment dated 19th August, 1998 stand convicted under

Section 302 of the Indian Penal Code, 1860 (IPC, for short) for murder

of Harvinder Kataria on 13th May, 1994 at about 9.30 P.M. According

to the prosecution, Chander Pal Singh had inflicted injury on the chest

of the deceased with a kripan, while Angrej Singh, the conductor

restrained him on bus No. DL 1P 2941. Angrej Singh has been

convicted by applying principle of common intention as per Section

34, IPC.

2. As far as involvement of the two appellants is concerned, we are

satisfied with the reasoning and the findings recorded by the trial court.

Rajesh Kumar (PW-1), brother of Harvinder Kataria has implicated

both the accused though the roles and acts assigned were different. In

his court deposition, PW-1 has stated that on 12th May, 1994 at about

9.30 P.M., Harvinder returned home and apprised them about the

quarrel with the bus conductor bus No. DL 1P 2941 on route No. 851.

Similar statement has been made by another brother of Harvinder,

namely, Vishal Kataria (PW-3). PW-3 has deposed that the cause of

quarrel was "buying of ticket". PWs 1 and 3 have stated that on 13th

May, 1994, they alongwith Harvinder and a friend Satwant, had gone

to Tagore Garden bus stop at about 8.30 P.M. and waited for the bus in

question. PW-1 accompanied Harvinder upon his insistence that he

wanted to teach the bus conductor a lesson. According to PW-1, at 9

or 9.15 P.M. and as per PW-3 at 9.30 P.M., Harvinder signaled the bus

in question to stop. As per PW-1, deceased Harvinder and Vishal

boarded the bus from the rear gate and Satwant entered from the front

gate. PW-3 has deposed on similar lines. Rajesh Kumar (PW-1),

however, stood outside the bus near its rear gate. PWs 1 and 3

identified the conductor as the appellant Angrej Singh. There was an

altercation between the deceased and Angrej Singh. Following this

Angrej Singh caught hold of the deceased and called out to Sardar.

Appellant Chander Pal Singh came armed with a kripan and inflicted a

blow on the left side of the chest of Harvinder. PW-1 has stated that

Harvinder upon deboarding the bus, fell on the ground. Satwant

rushed to the rear of the bus and pushed appellant-Chander Pal Singh

out. PW-1 and Satwant over-powered Chander Pal Singh, while he was

still holding the kripan. Angrej Singh, however, managed to flee from

the spot. Vishal took deceased Harvinder to DDU Hospital. PW-3 has

stated that after Chander Pal Singh had stabbed Harvinder, Angrej

Singh left Harvinder and thereupon Harvinder came down from the

bus. PW-3 thus deposed on similar lines as PW-1. PW-3 took

Harvinder to DDU Hospital in a rickshaw where he was declared

brought dead. There are minor and insignificant contradictions in the

statements of PWs 1 and 3 as to the actual involvement of the two

appellants in the said incident, but these do not dent the core version of

the two eye witnesses.

3. We are inclined to accept the versions of PWs 1 and 3 on the question of involvement of the two appellants on 13 th May, 1994 at about 9 to 9.30 P.M. However, as to the actual role of Angrej Singh, there is some dispute, which we will refer to subsequently. The main issue and question, we feel is whether the appellants have been rightly convicted under Section 302 IPC or they should be convicted under Section 304 Part-I or II. To be fair to the counsel for the appellant on behalf of Chander Pal Singh, this was the main contention, whereas the counsel for Angrej Singh has in addition argued that common intention under Section 34 for conviction under Section 302 IPC or other offences was missing.

4. Angrej Singh, as noticed above, had escaped from the spot as

per the statements of PWs 1 and 3. Appellant Chander Pal Singh was,

however, detained at the spot and subsequently arrested by the police

as is clear from the testimonies of Constable Satbir Singh (PW-10),

Constable Narender Kumar (PW-14) and Inspector Raj Kumar (PW-

15).

5. According to the statement of Rajesh Kumar (PW-1), Angrej Singh was arrested vide memo (Exhibit PW-1/G) from his house on the 14th May 1994 at about 12 midnight. PW-1 and Satwant, had

accompanied the arresting officers SI Raj Kumar and accused Chander Pal Singh. PW-3 has deposed that he informed his parents of the death of Harvinder only after the doctor at DDU hospital declared him to have been brought dead. Thereafter, he went back to the hospital and subsequently to the police station where the two accused, including Angrej Singh were present. He identified both of them.

6. The deceased Harvinder was examined by Dr. Uttam Singh

(PW-4), who has stated that Harvinder was brought dead. He was

found to have stab injury on the left side of the chest over the nipple.

There were no other bruises on the body as was recorded in the MLC

(Exhibit PW-4/A). In the cross-examination, PW-4 has stated that

chances of survival of a person having injury on his chest were very

rare. This statement in view of the post mortem report and evidence of

Dr. L.K. Barua, is debatable and questionable. Dr. L.K. Barua, DDU

Hospital (PW-6) had conducted the post-mortem. He has testified that

the deceased Harvinder, aged 20 years had stab injury on his chest.

There was incise wound of 2cm x 1 cm x ? It was over the left nipple

and the injury placed was vertical. No other external injury was

present on the body. The weapon had entered the chest cavity between

the second and third rib and had cut the medial border of the left lung

and continued and pricked the base of the aorta, the main artery of the

heart by about 0.2 cm. He, however, accepted that the weapon of

offence was not shown to him before post-mortem.

7. It would be important here to refer to the rukka (Exhibit PW-

1/A) dated 13th January, 1994, which was recorded on the statement

made by PW-1 Rakesh Kumar. In the rukka, it is recorded that

deceased Harvinder on 12th May, 1994 had complained about a quarrel

with the conductor of a blue line bus No. DL 1P 2941 of route No. 851

on the issue of ticket. On 13th may, 1994, Harvinder, PW-1, his

brother Vishal and one friend Satwant had decided to teach a lesson to

the bus conductor and had gone to Tagore Garden Bus Stand at 8.30

P.M. Number of buses were stopped to make inquiry about the bus in

question. At about 9.30 P.M. bus No. DL 1P 2941 came from Raja

Garden side and Harvinder gave a signal for the bus to stop. Harvinder

and Vishal got into the bus from the rear and Satwant got into the bus

from the front gate. Harvinder then challenged the conductor as to

how he had dared to ask him for a ticket on the previous day.

Thereupon, the conductor (Angrej Singh) had replied that he had

spared him yesterday but he would not be able to save himself on that

day. He caught hold of Harvinder and called Sardarji. Thereupon,

Chander Pal Singh took out his kripan and inflicted injury on the left

side of the chest. Harvinder fell down after alighting from the bus and

was taken to the hospital by Vishal. He and Satwant, however,

overpowered Chander Pal Singh. The diagram of the kirpan (Exhibit

PW-1/B) shows that it was 27 cm in length with blade of 17cm, which

is normal and many Sardars carry such kirpans with them.

8. Decision of the Supreme Court in Virsa Singh versus State of Punjab, AIR 1958 SC 465 elucidates difference between murder under Section 302 covered under Part-III of Section 300 and Section 304 IPC:-

"14. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly";

15. First, it must establish, quite objectively, that a bodily injury is present;

16. Secondly, the nature of the injury must be proved; These are purely objective investigations.

17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

18. Once these three elements are proved to be present, the enquiry proceeds further and,

19. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is 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.

20. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that

is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional."

9. In the facts of the present case, there cannot be any doubt that

the appellants did not have any intention to cause death or even

intention to cause injury of the kind that was sufficient to cause death

in ordinary course of nature. We do not think the case is covered under

the fourth limb and the appellants, it cannot be said, had knowledge

that the act would "in all probability cause death". The question and

issue is whether the accused had intended to cause bodily injury, which

was inflicted. This is subjective and depends upon the evidence of the

witnesses, who had seen the occurrence and in some cases also on the

basis of the medical evidence, including post-mortem report relating to

the injuries suffered by the deceased. While we agree with the counsel

for the State that single injury may not by itself displace/ dislodge the

case from the purview of Part-III of Section 300, but it is one of the

factors which should be noticed. Reference is also required to be made

to Exception 4 to Section 300 IPC. In light of the facts of the present

case, there are sufficient reasons and grounds to convert the conviction

from Section 300 IPC to Section 304 Part-I. There are number of

reasons for the same. What had transpired and happened was at the

spur of the moment. It was sudden and not premeditated or planned in

advance. Chander Pal Singh, it is apparent was the person, who had

the kirpan, whereas Angrej Singh was performing his duty as a

conductor. Harvinder along with three others had gone to the bus stop

to teach a lesson to Angrej Singh. Three of them had boarded the bus,

including the two from the rear gate and had confronted the appellant-

Angrej Singh, the conductor. Harvinder had objected and protested

why the conductor Harvinder Singh had asked for the bus ticket.

Appellant Angrej Singh had caught of Harvinder and as per the rukka

had called Chander Pal Singh, who was sitting in front seat of the bus.

Chander Pal Singh came and he gave a blow. It was a sudden

fight/quarrel and whatever happened was in the heat of passion. Only

one blow was given and as noticed, the actual external injury was very

small 2 cm x 1 cm and depth of which has not been indicated. The

injury was over the left nipple and unfortunately had prickled the base

of aorta by 0.2 cm. We also have considerable doubt and it cannot be

said with certainty that Chander Pal Singh intended to cause that

particular injury and strike on the left side of the chest. There was no

pre-meditation, there was no malice and the quarrel in question was a

trivial one.

10. The case of appellant Angrej Singh is on even better footing.

Angrej Singh had only called Chander Pal Singh, who was sitting in

front of the bus to come to the rear side. As per the rukka (Exhibit

PW-1/A), appellant Angrej Singh had not urged or instigated Chander

Pal Singh to kill or stab the deceased Harvinder Singh on his chest. It,

however, does appear that he caught hold of the deceased Harvinder

but it must be remembered that he was alone, whereas Harvinder was

there with Vishal and Satwant had also climbed on to the bus form the

front door. Common intention can very well develop at the spot and

just before the incident. Appellant Angrej Singh did share the common

intention to cause injury, in holding the deceased while Chander Pal

Singh inflicted the stab injury.

11. In view of the aforesaid discussion, conviction of the appellants

is converted from Section 302 to Section 304 Part 1, IPC.

12. On the question of sentence, as a per the nominal rolls available

on record, Chander Pal Singh has suffered incarceration of about six

years and Angrej Singh had suffered incarceration of about five years.

They were released on suspension of sentence vide order dated 10 th

February, 1999. They are not involved in any other criminal case. We

are, therefore, inclined to reduce the sentence to the period undergone.

However, we are inclined to enhance the fine of Rs.10,000/- each

imposed on appellants- Chander Pal Singh and Angrej Singh to

Rs.50,000/- each. The said fine will be paid within a period of 60 days

from today, failing which the two appellants shall undergo simple

imprisonment for a period of two months. The appeals are accordingly

partly allowed and disposed of in the aforesaid terms.

(SANJIV KHANNA) JUDGE

(G.P. MITTAL) JUDGE JANUARY 24th, 2014 VKR