Delhi High Court

Manjeet Singh vs State (Nct Of Delhi) on 19 March, 2014

Author: Kailash Gambhir

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  Judgment delivered on: March 19, 2014

+       CRL.A. 51/1998

        MANJEET SINGH                              ..... Appellant
                     Through:         Mr. R.K. Anand and Mr. Chetan
                                      Anand, Advocates
                         Versus

        STATE (NCT OF DELHI)                       ..... Respondent
                      Through         Mr. Sunil Sharma, APP for the
                                      State

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA

                             JUDGMENT

KAILASH GAMBHIR, J.

1. By this appeal filed under Section 374 of Criminal Procedure

Code, 1973 (hereinafter referred to as "Cr.P.C."), the appellant seeks to

challenge the judgment and order on sentence dated 14.01.1998 and

15.01.1998, respectively, whereby the learned Additional Sessions Judge,

Delhi, has convicted the appellant for committing an offence punishable

under Sections 302/307/324 Indian Penal Code, 1860 (hereinafter

referred to as "IPC") and sentenced him to undergo rigorous

imprisonment for life together with imposition of fine of Rs. 1000/- and

in default of payment of fine, to further undergo simple imprisonment for

three months. Further sentenced to undergo rigorous imprisonment for ten

years for the commission of offence punishable under section 307 IPC

together with imposition of fine of Rs. 500/- and in default of payment of

fine, to further undergo simple imprisonment for one month further

sentenced to undergo rigorous imprisonment of one year under Section

324 IPC.

2. The case of prosecution in brief is as under:-

"One Harjinder Kaur was residing at RGA Flats No.10, Raghubir Nagar. Her mother Charanjeet Kaur started residing with her at the said flat about two months prior to the incident. On 18.05.1993 at about 08:30 p.m. Gurmeet Singh, his sister Harjinder Kaur and his mother Charanjeet Kaur were present at the said flat at 08:30 p.m., when the accused Manjeet reached there. Gurmeet Singh asked accused to pay the money that he owed to Munna Khan. Accused Manjeet Singh took Gurmeet Singh(now deceased) along with him on his scooter on the pretext of paying money to Munna Khan. After sometime the accused, the deceased and Munna Khan returned to the said flat. There again Gurmeet Singh and Manjeet got into an argument over the same issue of paying certain

dues to Munna Khan. On this, the accused started abusing the deceased. Gurmeet Singh asked accused to leave his house, if he was not willing to pay back the amount. The accused then dragged the deceased in a gali by holding his collar, took out a knife and stabbed him in his abdomen, back, chest and other parts of the body. On seeing this Harjinder Kaur came running to save her brother. Accused stabbed her as well on the left side of her waist. Munna Khan also came and the accused inflicted injuries on his person also."

3. To substantiate the charge, the prosecution examined as many as

27 witnesses. Statement of the accused was recorded under Section 313

Cr.P.C. The accused denied his involvement in commission of the said

crime and pleaded innocence. The accused did not produce any witness in

his defence.

4. The appellant in this case was represented through Mr. R.K.

Anand, Advocate. While the State was represented through Mr. Sunil

Sharma, learned APP for the State.

5. Addressing arguments on the present appeal, Mr. R.K. Anand,

learned counsel for the Appellant vehemently submitted that the

prosecution miserably failed to prove charges against the appellant and

yet he has been convicted for the offence under Sections 302/307 and

Section 324 IPC. Counsel for the appellant further submitted that it is the

admitted case of the prosecution that accused Manjeet Singh and

deceased Gurmeet Singh were not known to each other, and therefore,

there could not have been any motive or intention to carry out the murder

of Gurmeet Singh. Counsel for the appellant also submitted that the

appellant in fact was a partner with one Mr. Mahender Aggarwal with

whom he was doing a property business and his office was located near

the flat of Smt. Harjinder Kaur, sister of the deceased. Counsel further

argued that as per the case of the prosecution, the accused met the

deceased at his flat and was asked by him to pay money, which he owed

to his friend Munna Khan and then accused took Gurmeet Singh

(deceased) on his scooter on the pretext of paying money to Munna Khan

and after some time both of them came back along with Munna Khan to

the said flat where, again Gurmeet Singh raised the same issue of paying

money to Munna Khan. On this, the accused after dragging him from

staircase to the gali by holding his collar, started abusing Gurmeet Singh

and eventually stabbed him with a knife. The contention raised by the

counsel for the appellant was that had the accused intended to kill

Gurmeet Singh, then he could have easily taken him away on his scooter

instead of murdering him near his flat in the presence of his family

members and Munna Khan. Counsel for the appellant thus submitted that

the entire prosecution story is totally unbelievable and without any

credence.

6. Counsel for the appellant further argued that there is no consistency

in the depositions of PW-4, PW-5 and PW-12, although they are the only

material witnesses being the alleged eyewitnesses to the said incident.

Counsel for the appellant further argued that as per the case of the

prosecution, the incident had taken place on 18.05.1993 at 8.30 p.m.

which resulted in causing fatal injuries to Gurmeet Singh and minor

injuries to the other two victims, yet nobody came forward to lodge a

report with the police. Counsel for the appellant also submitted that the

first DD in the case was recorded after the information was received from

R.M.L hospital at 09:35 p.m. Counsel for the appellant also argued that

none of the said witnesses could give the picture of the incident as they

became unconscious after having sustained injuries and even PW-5 Smt.,

Charanjeet Kaur became unconscious after seeing the incident and,

therefore, none of them could give true and correct version of the exact

incident. Counsel for the appellant further submitted that it is quite

surprising that all four of them were taken to Khetrapal hospital in an

unconscious state and then to DDU hospital, Hari Nagar, New Delhi by

the scooter driver himself without any instructions coming from any four

of them. Counsel for the appellant further submitted that the accused, in

his statement recorded under Section 313 Cr.P.C., has rightly disclosed in

his defence in response to question No.56 , that Smt. Harjinder Kaur had

a grouse against him because she had complained that an amount of

Rs.1/- lakh was charged extra from her at the time of purchase of the flat

through one Mr. Mahender Aggarwal . Also that Smt. Harjinder Kaur

was having illicit relationship with Munna Khan and it was Munna who

had attacked Gurmeet and she also got injured when she intervened,

therefore with a view to save Munna, she falsely implicated Manjeet

Singh, the appellant herein in the alleged murder case. Counsel for the

appellant also argued that the entire case of the prosecution revolved

around the testimony of PW-12 Munna Khan, but during his deposition

in Court, he totally demolished the case of the prosecution in his

evidence. Referring to his deposition, counsel for the appellant pointed

out that PW-12 clearly deposed that he never knew accused Manjeet

Singh. He also disputed the fact that the appellant owed him any money.

He gave a totally different version by stating that he saw 2-3 persons

having grappled the deceased Gurmeet Singh and when he went to save

Gurmeet from those persons, someone hit him in his chest with some

weapon and similarly, Smt. Harjinder Kaur also sustained injuries when

she tried to intervene. Counsel for the appellant thus submitted that two

parallel versions have come on record- one given by PW-4 and PW-5 and

the other given by PW-12, and therefore, the version which supports the

case of the defence ought to have been accepted by the Trial Court

instead of the version which goes against the accused.

7. Based on the above submissions, counsel for the appellant strongly

pleaded for the acquittal of the appellant or in the alternative, counsel

urged that even if the entire case of the prosecution is accepted as correct,

at best the conviction of the appellant can be held under Section 304 IPC

as he had no motive or intention or any premeditated plan to carry out the

murder of deceased Gurmeet Singh and as per the MLC report, stab

injury was not on vital part of the body. To substantiate this argument,

counsel for the appellant placed reliance on the following judgments:-

1. Satish Narayan Sawant vs. State of Goa, (2011) 2 SCC (Cri) 110;

2. Amit Kumar and Another vs. State of Punjab, (2011) 1 SCC (cri) 359.

8. Per contra, Mr. Sunil Sharma, learned APP for the State strongly

argued that the prosecution has successfully proved its case beyond any

shadow of doubt and there can be no reason to disbelieve the testimonies

of the three star witnesses of the prosecution and two amongst them were

injured witnesses. Learned APP also submitted that minor discrepancies

as have been pointed by the learned counsel for the appellant in the

testimonies of the said witnesses have no significance as on material

aspects of the prosecution case, their depositions remained consistent and

supportive of each other. Learned APP also argued that the intention to

kill a person might arise even at the spur of the moment and it is not

necessary that in every case, the intention is formed prior to the act.

Learned APP further argued that the accused had inflicted as many as

eight injuries on the body of the deceased and he in fact did not even

spare the other two victims who came to the rescue of the main victim.

Learned APP also argued that the injuries inflicted by the accused were

on the vital organs of the deceased, and therefore, the accused has been

rightly convicted by the learned Trial Court for offence punishable under

Section 302 IPC, so far as the main victim is concerned and offence under

Sections 307/324 IPC is also made out with regard to the injuries suffered

by the other two victims.

9. Based on these submissions, learned APP urged that this court may

uphold the judgment and order on sentence passed by the learned Trial

Court.

10. We have heard learned counsel for the parties at considerable

length and given our thoughtful consideration to the arguments advanced

by them. We have also perused the records of the learned Trial Court.

11. It is very rare when an injured eye witness would not name the real

culprit of the crime and would falsely implicate an innocent person

unconnected with the crime. In the facts of the present case three persons

received injuries at the hands of the appellant and out of the three -

Gurmeet Singh, was inflicted with eight blows with a dagger, who later

after two days succumbed to these injuries in the hospital while rest of the

two - Harjinder Kaur (PW-4) and Munna Khan (PW-12) survived with

some minor injuries. As per the case of the prosecution, the dispute was

over some petty amount although the exact reason of dispute never

surfaced, primarily due to the failure of the prosecution to probe the root

cause of dispute. As per the testimony of Harjinder Kaur, the appellant

came to meet Mahender Aggarwal and then came to the house of

Harjinder Kaur (PW-4) where he met the deceased, Gurmeet Singh.

Deceased told the accused to return the money that he owed him, to

Munna Khan (PW-12). The accused took Gurmeet Singh on a scooter on

the pretext of paying money to Munna Khan (PW-12) and after about

fifteen minutes, the accused along with deceased as well as PW-12

returned back to their house. At the house, Gurmeet Singh reiterated his

request to the accused to pay money to Munna Khan (PW-12) and this

simple request enraged the accused to an extent that he started abusing

Gurmeet Singh and then dragged him to the gali and stabbed him with a

dagger. Harjinder Kaur (PW-4) tried to save her brother from the hands

of the accused, but the accused did not even spare her and inflicted stab

injuries on her left side of her waist and back. Then Munna Khan (PW-

12) also intervened to save them but he was also stabbed on his chest.

After committing the said crime, the accused absconded from the spot.

Smt. Charanjeet Kaur (PW-5), mother of the deceased Gurmeet Singh

saw all the three in such a precarious condition with blood smeared all

around that she fainted and only when someone had put water in her

mouth, that she regained consciousness and took all the injured persons to

the hospital. First they were taken to Khetrapal Hospital but as they were

refused admission there, all of them were then taken to DDU Hospital in

a TSR. From DDU Hospital, Gurmeet Singh was referred to R.M.L.

Hospital. The intimation about the injured persons at DDU Hospital was

given by duty constable Om Prakash to the Police Post, Raghubir Nagar

at 9:25 p.m. which was registered vide DD No.24 proved on record as

Ex.PW-21/A. ASI Harjinder Singh (PW-18) was deputed for

investigation and he reached at DDU Hospital along with Constable

Suresh Kumar (PW-9). On reaching the hospital, the MLC of the injured

persons were collected by Harjinder Singh. He recorded the statement of

Harjinder Kaur (PW-4) and after making an endorsement over the same,

he had sent the rukka at about 11.00 p.m. for the registration of the case.

ASI H.S. Negi thereafter reached at the spot along with Charanjeet Kaur

(PW-5), where he prepared the site plan on the pointing out of Charanjeet

Kaur (PW-5). Blood stained floor and earth control found at the spot were

seized vide seizure memo Ex. PW-3/A. He also got the scene of crime

photographed with the help of a photographer - Constable Satish. ASI

H.S. Negi also recorded the statement of concerned witnesses and

returned to the Police Station where he deposited the case property in the

malkhana. The investigation of the case thereafter was handed over by the

SHO to SI R.K.Rathi. The accused Manjeet Singh was apprehended on

20th May 1993 at the gate of Sheetla Mata Mandir. He was interrogated

and his disclosure statement was recorded. During his disclosure

statement, he led to the recovery of a dagger used in the commission of

the said crime from the bushes near ganda nala, Pocket B, RGA Flats.

The Investigating Officer prepared the sketch of the dagger and seized it.

The Investigating Officer also prepared a sketch of the place of recovery

of the dagger. Gurmeet Singh succumbed to his injuries on the

intervening night of 20th/ 21st May 1993. The Investigating Officer

conducted the inquest proceedings and sent the dead body of Gurmeet

Singh for post mortem. The post mortem was conducted by Dr. L.K.

Baruwa (PW-6) on 21.05.1993 and he found eight injuries on the person

of the deceased. Injury No.2 was opined by him as sufficient to cause

death in the ordinary course of nature.

12. Harjinder Kaur (PW-4) (sister of the deceased), Charanjit Kaur

(PW-5), mother of the deceased and Munna Khan (PW-12) (friend of the

deceased) had seen the crime themselves in front of their eyes. Harjinder

Kaur (PW-4) and Munna Khan (PW-12) had also received injuries at the

hands of the accused when they intervened to save the life of Gurmeet

Singh. Charanjit Kaur (PW-5) was also present in the flat and had herself

witnessed the barbarity of the accused. One of these three witnesses,

Munna Khan (PW-12) turned hostile and in fact in his court deposition he

gave his own version of the crime. We will deal with his testimony later.

13. So far as the evidence of Harjinder Kaur (PW-4) and Charanjit

Kaur (PW-5) are concerned, the learned trial court found their evidence to

be absolutely reliable and truthful with no scope to impeach their

credibility. Learned trial court also held that the accused had not

controverted and challenged their presence at the spot at the time of

occurrence. Learned trial court further found that their court depositions

were found consistent with the statement made by them before the police,

thus leaving no scope for fabricating the case against the accused. The

trial court also found that testimonies of PW-4 and PW-5 have

corroborated with each other on all material facts despite the fact that

they were subjected to lengthy cross-examination. The learned trial court

also disbelieved the defence raised by the accused that Charanjit Kaur

(PW-5) along with her son Gurmeet Singh had come to Delhi on the date

of the incident i.e. 18.05.1993 and they were objecting to the alleged

illicit relationship of Harjinder Kaur (PW-4) with Munna Khan (PW-12).

The suggestion given to this effect was totally denied by her in the cross-

examination. She even denied a suggestion that it was Gurmeet Singh

who ran downstairs with a kirpan with which he assaulted Munna. She

also denied that she tried to save Munna. The accused in his statement

recorded under Section 313 of Cr.P.C. also introduced the said story of

Munna Khan (PW-12) having illicit relationship with Harjinder Kaur

(PW-4) and that Gurmeet Singh was killed at the hands of Munna Khan

(PW-12) and also that he had been implicated falsely by Harjinder Kaur

(PW-4) so as to save the main accused Munna Khan. Accused also raised

an angle of whinge which Harjinder Kaur was carrying because of over

payment of Rs.1, 00,000/- for the purchase of the flat bought through

Mahender Aggarwal, who was having partnership with the accused -

Manjeet Singh.

14. The said defence raised by the accused was not substantiated by

him through any evidence. No evidence was adduced by the accused to

prove the purchase of flat by PW-4 Smt. Harjinder Kaur through him and

Mr. Mahender Aggarwal. No evidence was also adduced demonstrating

as to what was the market value of the flat in question at the time of its

purchase by PW-4 Smt. Harjinder Kaur. The accused also failed to

examine Mr. Mahender Aggarwal to justify his assertion of PW-4

having a grudge about the excess charge of Rs.1/ lakh. The accused also

did not lead any evidence to show that there was any illicit relationship

between Munna Khan and PW-4 Smt. Harjinder Kaur. The learned Trial

Court is right in observing that PW-4, Smt. Harjinder Kaur was not

expected to continue to bear a grudge against the accused for two years

and falsely implicate him in heinous offence particularly in the

background, when no quarrel at any stage had taken place between them

over the alleged excess charge of flat at any point of time. The defence

raised by the accused was also found to be self contradictory as has been

pointed out by the learned Trial Court in the impugned judgment. The

contradictory suggestions were given by the learned defence counsel in

the cross-examinations of PW-4 and PW-5 with regard to the sequence

of events which led to the said incident. A suggestion was put to PW-4

Smt. Harjinder Kaur in her cross-examination that it was Munna who had

abused Gurmeet Singh and thereafter, Munna Khan had picked up the

knife and had assaulted her brother as a result, her brother ran downstairs

and assaulted Munna Khan with kripan. Much contrary to the same, a

suggestion was put to PW-5 Charanjeet Kaur that at the time of

occurrence, Gurmeet Singh asked Smt. Harjinder Kaur about the presence

of Munna Khan and she blatantly replied that he(Munna) would stay

there, which agitated Gurmeet, the deceased herein, resultantly

he(Gurmeet) abused Munna Khan and further attacked him with kripan

and after inflicting injuries on the person of Munna Khan also attacked

Smt. Harjinder Kaur as she came at the rescue of Munna Khan. Learned

Trial Court is right in observing that contradictory versions suggested by

the learned counsel for the accused were falsified by both the witnesses.

15. It is a settled legal position, that if the testimony of an eye witness

is found reliable, the conviction can be based solely on the testimony of

an eye witness. In the matter of Alil Mollah and Another vs. State of

West Bengal reported in AIR1996SC3471, the Hon'ble Apex Court held

as under:

"It is now well established that conviction can be based on the testimony of a single eye witness provided the court finds from the scrutiny of his evidence that he is a wholly reliable witness. Where, however, the court is of the opinion that the single eye witness is only partly reliable, prudence requires that corroboration of his

testimony in material particulars should be sought before recording conviction."

16. In the matter of Abdul Sayeed Vs. State of Madhya Pradesh &

other reported in (2010) 10 SCC 259), the question of the weight to be

attached to the evidence of a witness that was himself injured in the

course of the occurrence has been extensively discussed by the Hon'ble

Supreme Court. The relevant paragraphs of the judgment are reiterated

as follows:

26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness"....

27. While deciding this issue, a similar view was taken in, Jarnail Singh v. State of Punjab (2009) 9 SCC 719, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:

Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the

reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.....

The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.

The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."

17. In State of U.P. v. Kishan Chand reported in (2004) 7 SCC 629, a

similar view has been reiterated observing that the testimony of an

injured witness has its own relevance and efficacy. The relevant paras of

the judgment are reiterated as follows:

"The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon."

18. The defence counsel thus, miserably failed to impeach upon the

credibility and the trustworthiness of the said two injured witnesses and

we also find no reason to disbelieve the testimonies of the two injured

witnesses, i.e., PW- 4 and PW-5 who remained consistent and coherent

on the core issue that the accused had murdered the deceased.

19. Mr. R.K. Anand, counsel for the appellant made a futile attempt to

impeach the testimonies of the said two injured witnesses because of

some contradictions and discrepancies in their testimonies. The

discrepancies and contradictions as have been pointed out by the learned

counsel for the appellant do not touch the meat of the prosecution case

and they are only on peripheral aspects. The question whether PW-5

became unconscious or all the four persons were unconscious when they

were taken in a scooter to Khetrapal hospital or that nobody had reported

the matter to the police are totally inconsequential and cannot demolish

the core of the prosecution case with regard to the sequence of events

leading to actual occurrence. The accused has not controverted or

challenged the presence of the said witnesses at the spot at the time of the

occurrence. It is pertinent to mention here that both PW-4 and PW-5 in

their statements in the court, deposed that they came downstairs on

hearing some noise. PW-4 in her testimony deposed that at the time of

the incident, she was present in her house; there was exchange of hot

words loudly outside their house between the deceased and Manjeet

Singh; accused dragged the deceased inside a gali and stabbed him there.

Similarly, PW-5 deposed that she went downstairs after her daughter.

Therefore presence of PW-4 and PW-5 at the spot is otherwise quite

natural and probable and PW-4 Smt. Harjinder Kaur having received the

injuries herself in the occurrence proves her presence at the spot without

any iota of doubt.

20. It is also a settled position that minor contradictions or

inconsistencies in the statement of an eye witness, cannot be a ground to

refuse his entire evidence. In the matter of Bhajan Singh & Ors. v. State

of Haryana reported in [2011] 7 S.C.R. 1, the Hon'ble Apex Court held

as follows:

"It is a settled legal proposition that while appreciating

the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the Court to reject the evidence in its entirety. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses."

21. Thus, there lies no doubt that PW-4 and PW-5 were present at the

spot. PW-4 being an injured eye witness had categorically deposed in her

examination-in-chief and cross-examination that the accused had

murdered her brother and even PW-5 has maintained her stand of having

witnessed her daughter and son in an injured state downstairs. Learned

trial court has rightly dealt with this aspect and we find the reasoning

given by the learned trial court quite apt and reliable. Therefore, in our

view, the contention raised by the appellant as regards the minor

contradictions contained in the deposition of PW-4 and PW-5 is

ineffective and devoid of any merit.

22. Now turning to the testimony of another witness, PW-12, Munna

Khan, who turned hostile during his statement in court. The learned Trial

Court observed that this witness had given another set of facts and if the

same are accepted, it would falsify the entire version given by the injured

witnesses. This witness in examination-in-chief deposed that Gurmeet

Singh, deceased called him at his house and both of them were having

tea. He further deposed that in the evening the light went off and Gurmeet

Singh came down from his house to check the light and at that point of

time he heard some noise from the ground floor of the flat and when he

went down, he saw 2-3 persons grappling with the deceased Gurmeet

Singh. He also deposed that when he tried to save Gurmeet Singh from

those persons, some other person had hit him on his chest with some

weapon and similarly Smt. Harjinder Kaur also sustained injuries when

she tried to save Gurmeet Singh from those persons. He also deposed that

he became unconscious and he did not know what happened after the

incident. This witness has gone against his own statement recorded under

Section 161 Cr.P.C. and in fact denied to have made any such statement

before the police. This witness failed to state the names of the assailants

who caused injuries not just to one person but to three persons including

him. Disbelieving his testimony in part, the learned Trial Court accepted

a part where he had admitted his own presence at the spot, as well as the

presence of Gurmeet Singh, and Smt. Harjinder Kaur, and also that all

of them received injuries at the hands of the assailants. This witness has

also denied the fact that he along with other injured persons were taken to

the hospital by PW-5 Smt. Charanjeet Kaur, mother of the deceased. He

admitted his friendship with Gurmeet Singh but denied having any kind

of illicit relationship with PW-4 Smt. Harjinder Kaur. He clearly deposed

that she was just like his sister. The learned Trial Court was right in

observing that the testimony of PW-12 Munna Khan on material facts

also corroborates the testimonies of PW4 and PW5.

23. The learned Trial Court also placed reliance on the judgment of the

Supreme Court in the case of State of Gujarat v. Anirudh Singh & Ors.,

reported in 1997 (V) AD Supreme Court 467 dealing with the testimony

of a hostile witness and to what extent the same can be accepted. The

Hon'ble Supreme held that it is not uncommon that the witnesses often

turn hostile and rarely the witnesses remain truthful at the time of their

court depositions. A truthful witness undergoes lot of pressures, which

can be known only to such a witness. The main success of the defence

lies in winning over private and public witnesses and more than half of

the battle is won by the defence if, he succeeds in such an endeavour.

With a view to ensure that criminal justice does not suffer because of

witnesses turning hostile so frequently in a criminal trial, the courts must

critically analyse the testimony of such hostile witness and then see as to

what extent and how for it supports the prosecution case. In the matter of

Sathya Narayanan V. State Rep. by Inspector of Police reported in,

(2012)12SCC627 the Hon'ble Supreme Court held as follows:

"15. It is the contention of Mr. Giri, learned senior counsel that in view of the fact that all the prosecution witnesses turned hostile and even the evidence of PWs 1 and 2 are not acceptable in toto, the conviction based on certain statements cannot be accepted. In this regard, it is relevant to refer a decision of this Court in Mrinal Das and Ors. v. State of Tripura (2011) 9 SCC 479. In the said decision, the main prosecution witnesses, viz., PWs 2, 9, 10 and 12 were declared as hostile witnesses. While reiterating that corroborated part of evidence of hostile witness regarding commission of offence is admissible, this Court held:

67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a

witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of the prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.

16. We reiterate that merely because the witness was declared as hostile, there is no need to reject his evidence in toto. In other words, the evidence of hostile witness can be relied upon at least to the extent, it supported the case of the prosecution. In view of the same, reliance placed on certain statements made by hostile witnesses by the trial Court and the High Court are acceptable. Now, let us consider hereunder how far those statements supported the case of the prosecution."

24. In the light of the aforesaid legal position, we find ourselves in

complete agreement with view taken by the learned Trial Court that

ocular version given by PW-4 Smt. Harjinder Kaur and PW-5 Smt.

Charanjeet Kaur fully distrust the innocence of the accused in

commission of the said crime and the testimony of PW- 12 Munna Khan

also corroborates the testimonies of PW-, 4 Smt. Harjinder Kaur and

PW-5, Smt. Charanjeet Kaur on material facts.

25. One of the contentions raised by the learned counsel for the

appellant was that if the accused had any intention to kill Gurmeet Singh,

he could have easily done so when the accused took Gurmeet Singh on

his scooter on the pretext of paying money to PW-12 Munna Khan, rather

than committing his murder in the presence of his family members and

presence of PW-12 , Munna Khan after dragging him from his flat to the

gali. The intention is a state of mind of an accused which can be inferred

objectively from his conduct displayed in the course of the commission of

crime. An intention may remain static or it may vary. A person may be

intending to kill some person but may change his mind on reaching near

the object and likewise a person may not have intended to commit a

particular crime but yet changed his mind later. Therefore, the intention

to commit a particular crime can be formed even at the spur of moment

and in such like cases the conduct displayed by the offender at the time of

commission of crime becomes very important. In the present case, even if

the accused had no pre meditated plan to commit the murder of deceased

Gurmeet Singh when he first came near to his flat but suddenly his

subsequent conduct amply demonstrates that he had developed the said

intention on the spur of the moment.

26. The last contention of the counsel for the appellant was that there

was no motive or any kind of premeditation on the part of the accused to

carry out the murder of deceased Gurmeet Singh, and the alleged incident

happened in the heat of passion on a sudden quarrel resulting in a fight

and therefore, at best the appellant can be convicted under Section 304

IPC, as the case of the accused falls under exception 4 to Section 300,

culpable homicide not amounting to murder. To deal with this question,

let us first refer to the said provision which is reproduced as under:-

"Section 300:Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

Thirdly.--If it is done 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--

Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:--

First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation

Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes

to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

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 having taken undue advantage or acted in a cruel or unusual manner.

Explanation

It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

27. As per the post mortem report proved on record as Ex. PW6/A, the

deceased sustained following injuries on his person:

"1. One vertically placed midline stitched wound of length 11 inches.

2. Stitched wound on left side of abdomen 3 inches left to the umbilicus size 1 1/2 inches.

3. Stitched wound on the left iliac fosse size 1 inch.

4. Stitched wound right thigh just about right knee joint size one inch.

5. Stitched wound lateral aspect on right knee joint size 1 ½ inch.

6. Stitched wound on the left shoulder blade size 1 inch.

7. Stitched wound on the left renal angle (black of abdomen) size 1 inch.

8. Stitched wound on left buttock size 1 inch."

28. All the said injuries were ante mortem and injury No.2 held to be

sufficient enough to cause death in the ordinary course of nature. Injury

No.2 also led to causing an injury to the jejunum (middle section of small

intestine). In the post mortem report doctor also opined that death was

due to peritonitis and septicaemia following the said injuries. Besides the

said injuries caused to the main victim Gurmeet Singh, the accused had

also caused injuries on the person of PW-4 Smt. Harjinder Kaur and PW-

12 Munna Khan.

29. Coming to the moot question that whether the offence committed

by the appellant would only be culpable homicide amounting to murder

under Section 300 IPC or would be culpable homicide not amounting to

murder, under exception 4 of Section 300 IPC. To substantiate this issue,

it would be appropriate to place reliance on the landmark judgment of

Virsa Singh v. State of Punjab, AIR 1958 SC 465, a leading forerunner

on the point, wherein the Apex Court held that:

"the prosecution must prove that bodily injury is

present. The nature of the injury must be proved. 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. Once these three elements are proved to be present, the Court must further proceed with the enquiry and found that the prosecution has proved that the injury described 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. Once these four elements are established by the prosecution the offence of murder falls under clause thirdly of Section 300. It matters not that there was no intention to cause death or that there was no intention even to cause death in the ordinary course of nature. Once it is proved that the intention to cause the bodily injury actually found to be present, the rest of the enquiry is purely objective to be deduced by inference. But where no evidence or explanation is given about why the accused thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places, it would be perverse to conclude that he did not intend to inflict the injury that he did. The question whether there is intention or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the accused intended to inflict the injury in question. It was held in that case that the offence was one of murder falling under clause thirdly of Section 302. In Rajwant Singh v. State of Kerala AIR 1966 SC 1874, the bodily injury consisted of tying up the hands and the feet of the victim, closing the mouth with adhesive plaster and plugging the nostrils with cotton soaked in chloroform. All these acts were deliberate acts which had been pre- planned and, therefore, this Court held that the acts satisfied the objective tests of Clause 3 of Section 300 and were held to be sufficient in the ordinary course to cause death. Accordingly it was one punishable under Section 302."

30. In the case of Pappu v. State of Madhya Pradesh reported in

(2006) 7 SCC 391 the Hon'ble Apex Court exhaustively dealt with the

parameters of Exception IV to Section 300 of the Code. The relevant

paras of the judgment are reproduced as under:

"13...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 Indian Penal Code is not defined in Indian 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 cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage.

It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 Indian Penal Code is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the

body on which it was given and several such relevant factors."

31. In order to bring the offence under this exception IV of

Section 300 IPC, four things shall be proved by the accused:

I. That the act was without premeditation.

II. There was a sudden quarrel

III. In the heat of passion upon a sudden quarrel there was a sudden fight.

IV. Offender did not take undue advantage or acted in a cruel or unusual manner.

32. Now let us examine the case at hand , in light of the aforesaid legal

principles. Here undoubtedly the accused was armed with a sharp edged

weapon, i.e., dagger which was recovered from him during his disclosure

statement. The accused had inflicted as many as eight blows on various

parts of the body of deceased Gurmeet Singh and injury No.2 was caused

on a vital part of his body, i.e., abdomen. None of the victims were

armed with any weapon of offence and nor there was any kind of

provocation extended by the deceased Gurmeet Singh to prick the

accused to the extent of inflicting such fatal blows with the help of a

dagger on the vital parts of the body of deceased Gurmeet Singh and even

Munna Khan. On the person of Munna Khan, serious injuries on the chest

were inflicted. In the MLC also, the doctor opined that consolidation of

left side base of lungs was seen. The accused also did not spare the lady

who came to the rescue of her brother. Thus the infliction of such vital

blows on the person of Gurmeet, that too when he was unarmed, shows a

clear intention on the part of the accused to cause death of the deceased at

that time. Although nobody was a witness to the exact reason of fight

between the accused and deceased, yet it is clear from the testimony of

PW-4 as well as PW-5, that before the alleged incident there was an

exchange of scorching words between the accused and deceased resulting

into a fight between the two of them. It may not be premeditated, but

undoubtedly from the circumstances it can be grasped that the intention

had developed in spur of the moment and with that vigour and in heat of

passion the accused resultantly killed the deceased. The accused being

armed with a dagger took an undue advantage of the situation and

eventually assaulted everyone who came in his way. The conduct of the

appellant clearly demolishes the benefit that otherwise could have been

given to the accused.

33. Taking away someone's life is not a mere crime that could be

assessed without considering the nitty gritties or the repercussions

involved while applying the legal provisions. The statute is clear about

how a convict should be dealt and in what circumstances the conversion

is possible and the sentence can be modified. For the application of

Exception 4 to Section 300 of the IPC, 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'. The conduct of the accused in the

present case is clearly belabouring and unfair. It is also a settled legal

position that onus is on the appellant to prove that his case falls within

this exception by taking support of the evidence adduced to this effect

instead of a mere statement, which he has failed to discharge in the

present case, as the intention on his part having developed at that spur

already stands proved and even the fourth condition of Exception 4 of

Section 300 Cr.P.C. of the accused without having taken an undue

advantage or acting in a cruel and unusual manner is not established

from the conduct of the accused. Therefore, it is clear that the act does not

fall within the purview of Exception IV to Section 300 IPC and rests

under Section 302 IPC only.

34. In order to fortify our view, we find support from the judgment of

the Hon'ble Supreme Court in the case of Kikar Singh V. State , AIR

1993 SC 2426(1), wherein the accused did not stop with the first blow

and inflicted two or more blows even though the victim fell down. The

third one proved fatal. It was held that "he acted with no justification"

and was not entitled to benefit of Exception IV. The Hon'ble Apex Court,

after relying on the landmark judgment of Virsa Singh( supra) held as

under:

"10. If the weapon used for the manner of attack by the assailant is out of all proportion to the offence given, that circumstance must be taken into consideration to decide whether undue advantage has been taken. Where a person, during the course of a sudden fight, without premeditation and probably in the heat of passion, took undue advantage and acted in a cruel manner in using a deadly weapon there was no ground to hold that his act did not amount to murder. Therefore, if the appellant used deadly weapons against the unarmed man and struck him a blow on the head it must be held that using the blows with the knowledge that they would likely to cause death and he had taken undue advantage. He did not stop with the first blow, he inflicted two more blows on the fallen man and the third one proved to be fatal. He acted crudely with no justification. By his conduct the appellant denied himself of the benefit of exception 4 to Section 300 I.P.C.

12. It is not necessary that death must be inevitable or in all circumstances the injury inflicted must cause death. If the probability of death is very great the requirement of clause third is satisfied. If there is probability in a less degree of death ensuing from the

act committed the finding should be of culpable homicide not amounting to murder. The emphasis is sufficiency of injury to cause death. A judge must always try to find whether the bodily injury inflicted was that which the accused intended to inflict. The intention must be gathered from a careful examination of all the facts and circumstances in a given case. The citrus at which the injury was inflicted , nature of the injury, weapon used, force with which it was used are all relevant facts. We find from the facts that the appellant inflicted fatal blow, i.e. 3rd injury severing the neck after the deceased had fallen on the ground due to impact of the first injury on parietal region. The third injury is proved to be sufficient in the ordinary course to cause death. Even otherwise death is inevitable. When the appellant inflicted two injuries on a fallen man, it must be held that he intended to inflict those two injuries, though the first injury may be assumed to have been inflicted during the course of altercation. Thus we hold that the offence is one of murder and the appellant was rightly convicted and sentenced to imprisonment for life under Section 302 I.P.C.

13. The appeal is, therefore, dismissed."

35. The occasion must be sudden and not as a cloak for pre-existing

malice. It is necessary that all three ingredients of sudden fight, absence

of pre meditation and no undue advantage or cruelty are established(Ref:

Rajender Singh V. State AIR 2000 SC 1779). The question as to whether

the accused had taken an undue advantage and acted brutally or in a cruel

manner is a question of a fact and in order to analyse this aspect, it is

important to plausibly assess the entire circumstances.

36. In Suresh Chandra Vs. State of Uttar Pradesh, reported in

(2005)6SCC130, the Hon'ble Supreme Court dealing with a similar issue

held as under:

6. On this aspect, learned counsel for the appellant contended that the Exception 4 to Section 300 IPC is attracted. Exception 4 reads as under :

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 having taken undue advantage or acted in a cruel or unusual manner.

Explanation. - It is immaterial in such cases which party offers the provocation or commits the first assault.

7. Learned counsel for the appellants submits that the incident had happened without any premeditation or prior concert, upon a sudden quarrel and the resultant attack on the victims was unintentional and, therefore, the offence would appropriately fall under Exception 4 punishable under Section 304 Part I or II. We find it difficult to countenance this argument. Though there was absence of premeditation and it was a case of sudden fight, that is not sufficient to bring the offence committed by the accused within the purview of Exception 4. The further requirement of Exception 4 that the offender should not have taken undue advantage or acted in a cruel or unusual manner should be satisfied. The very fact that the accused- appellants used the fire arms in the course of a frivolous quarrel triggered off by the sarcastic remarks of Ravindra Singh would demonstrate beyond doubt that the appellants acted in a cruel manner and it would further demonstrate the intention to cause death or at any rate, to cause a bodily injury of the nature mentioned in clause thirdly of Section 300. Such intention is writ large on the acts done by the accused. Thus, it is a case in which Clauses I to III of Section 300IPC are attracted and, as already observed, Exception 4 would not come to the rescue of

the appellants for the reason that they have acted in a cruel and unusual manner by shooting at unarmed victims who merely indulged in a verbal duel with them. The fact that the other two accused who were said to have exhorted the three appellants to attack the members of the other party were acquitted has no material bearing on the question whether the appellants could be given the benefit of Exception 4. Thus, the argument in regard to the nature of offence cannot be sustained. On the facts of this case, it is only Section 302 IPC that is attracted."

37. Reiterating the law laid down in the case of Kikar Singh(supra),

the Hon'ble Apex Court in the case of Naveen Chandra V. State of

Uttaranchal, AIR 2007 SC 363 held as under:

"9. 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 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 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 cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.

10. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan: 1993CriLJ3255 it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage. In the instant case blows on vital parts of unarmed persons were given with brutality. The abdomens of two deceased persons were ripped open and internal organs come out. In view of the aforesaid factual position, Exception 4 to Section 300 I.P.C. has been rightly held to be inapplicable.

The above position was highlighted in Babulal Bhagwan Khandare and Anr. v. State of Maharashtra (2005)10SCC404."

11. Considering the background facts in the backdrop of legal principles as set out above, the inevitable conclusion is that 4th Exception to Section 300 IPC does not apply."

38. Thus in the light of aforesaid legal principles, we do not find any

perversity or illegality in the view taken by the learned Additional

Sessions Judge. Even the judgments that have been relied upon by the

counsel for the appellant being distinguishable on facts, would be of no

help to the case of the appellant.

39. The learned trial judge also rightly convicted the accused under

Section 307 IPC, in an attempt to murder Munna Khan and also under

Section 324 IPC for inflicting severe blows on the person of Harjinder

Kaur with a sharp weapon.

40. In view of the aforesaid discussion, we find no merit in the appeal

filed by the appellant, the same is hereby dismissed and resultantly, the

judgment and order dated 14.01.1998 and 15.01.1998, respectively,