Hira Lal vs State Of Nct Of Delhi
2014 Latest Caselaw 3037 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of Decision : July 10, 2014
+                               CRL.A. 687/2006
        HIRA LAL                                        .....Appellant
                     Represented by:   Mr.K.Singhal, Advocate

                                       versus

        THE STATE OF NCT OF DELHI              .....Respondent
                 Represented by: Mr.Lovkesh Sawhney, APP

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J. (Oral)

Crl.M.A.No.9741/2014 Allowed.

Crl.A.No.687/2006

1. Appellant Hira Lal was committed for the charge of having inflicted injuries by a knife on deceased Ajay Pal at 8:45 PM on September 23, 2002 at Fasil Road behind G.B.Road, Delhi with the intention of causing his death, thereby committing the offence of murder punishable under Section 302 IPC.

2. The FIR Ex.PW-14/A, was registered at PS Kamla Market on September 24, 2002 at 10 minutes past 12 midnight pursuant to the statement Ex.PW-20/A made by one Mohd.Shamim, in which statement the appellant has been named as the assailant with details of the contemporaneous utterances and acts of the appellant. Since Mohd.Shamim

died he could not be examined as a witness by the prosecution. But we have on record the testimonies of PW-4, Babu Lal and Jeet Ram PW-5, perusal whereof would bring forth that on September 23, 2002 at around 9:00 PM a verbal altercation took place between the appellant and the deceased Kalu and at that time the informant Mohd.Shamim was present and was in the company of Kalu. The cause of the verbal altercation was the appellant objecting to the deceased Kalu and Shamim consuming alcohol in public at a place near a transformer. Kalu and Shamim shifted, bottle and glass, to a thada (open platform) of a shop behind brothel No.54. Appellant came after 10 to 15 minutes, and on seeing Kalu stabbed him.

3. Quibbling here and there on the testimony of PW-4 and PW-5, ostensibly to discredit the two witnesses, learned counsel for the appellant does not press the point forward and concedes that there is unimpeachable evidence to establish that appellant used a knife to stab Kalu who died as a consequence of the injury suffered.

4. But the question would be : Whether the offence made out is culpable homicide amount to murder or culpable homicide not amounting to murder.

5. The post-mortem report of Kalu would thus assume importance. The same would bring out that the fatal injury was directed towards the arm and probably when Kalu lifted his arm, as a person would instinctively so do when a blow is directed towards him, the knife struck just below the armpit; and as the blade of the knife cut through the muscles the axillary artery got cut and as a result of excessive bleeding Kalu died due to the resultant shock cause by haemorrhage. The blow of the knife was directed towards a non- vital part of the body and it was Kalu's misfortune that the axillary artery got cut.

6. It may be true that the appellant was armed with a knife. It may be true that the incident of stabbing was preceded by a verbal altercation. But at the same time it has to be kept in mind that appellant's annoyance was at Kalu and Shamim drinking publicly and when rebuked for their acts, continuing with the same by shifting 20 to 25 yards away. The appellant obviously got annoyed. He had no motive to kill Kalu. No motive was alleged and none has been proved. It is just that the appellant could not control his anger/annoyance. The nature of the injury; the non-vital part of the body targeted as the place where the injury was intended to be caused compels us to hold that the offence committed by the appellant is not murder but culpable homicide not amounting to murder and for which we sentence the appellant to undergo RI for 10 years.

7. The appellant was admitted to bail during pendency of the appeal but surrendered voluntarily, and the reason apparently would be as our instincts tell us, that the appellant had another brush with criminal law and could not obtain bail in the said case and was thus rightly advised to surrender even in the present case so that the period of incarceration would be counted as sentence undergone in the present case as well.

8. Thus, while disposing of the appeal by partly allowing the same, we set aside appellant's conviction for the offence punishable under Section 302 IPC vide impugned judgment dated May 25, 2006. We set aside the order on sentence dated May 29, 2006 sentencing appellant to undergo RI for life. We convict the appellant for the offence of culpable homicide not amounting to murder punishable under Section 304 IPC and for which we sentence him to undergo RI for 10 years. Needless to state the appellant shall be entitled to the benefit of Section 428 Cr.P.C.

9. Two copies of this decision be sent to the Superintendent Central Jail Tihar, one for his record and the other to be supplied to the appellant.

10. TCR be returned.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE JULY 10, 2014 mamta