Sonu vs State Of Nct Of Delhi
2015 Latest Caselaw 1566 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.A.1727/2014
                                      Reserved on: 03.02.2015
                                      Date of decision: 24.02.2015

       SONU                                        ..... Appellant
                         Through:     Mr. Ajay Verma, Advocate.

                         versus

       STATE OF NCT OF DELHI                      ..... Respondent
                     Through:         Ms. Aasha Tiwari, APP along
                                      with Inspector Sher Singh,
                                      SHO, P.S.Burari.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ASHUTOSH KUMAR, J.

1. Appellant Sonu stands convicted vide impugned judgment dated

29th March, 2014 for committing murder of Chetan Pal @ Anu and for

having attempted to murder Tulsi Kumar, PW.1; Rajesh Sharma,

PW.5 and Kishan Singh Rawat, PW.9. Sonu has been sentenced to

undergo Imprisonment for life and pay a fine of Rs.10,000/- for the

offence under Section 302/34 Indian Penal Code, 1860 (IPC, for short)

and Rigorous Imprisonment for 7 years and a fine of Rs.5,000/- for the

offence under Section 307/34 IPC. In case of default of payment of

fine, the appellant has been sentenced to undergo one year and six

months' simple imprisonment respectively.

2. The prosecution case is that on 25.5.2010, a police control room

was informed that a boy was stabbed near chakku factory. A police

control room van took the injured to Hindu Rao Hospital where the

injured (Chetan Pal @ Anu) was declared 'brought dead'. Another

information was received vide DD No.36A, pursuant to which the

police officers reached the hospital and collected the MLCs of PWs.1,

5 and 9.

3. Chetan Pal @ Anu is said to have been stabbed to death.

4. PW.24, Dr. M.K. Panigrahi, Chief Medical Officer, Department

of Forensic Medicines, Hindu Rao Hospital, Delhi conducted the post

mortem over the dead body of Chetan Pal @ Anu on 26.5.2010 at

around 2 PM and found the following external injuries:-

i) Stab wound 4cm x 1cm placed over the middle of the interior

abdominal wall

ii) Lacerated wound of size 4.5cm x 2cm vertically placed on

the left side of forehead

5. He opined that the death was caused due to haemorrhage and

shock, consequent to the aforesaid injuries. All the injuries were ante-

mortem and recent in nature. External injury no.(i) was stated to have

been caused by a sharp weapon/object which was individually

sufficient in the ordinary course of nature to cause death. With respect

to the injury no.(ii), PW.24 endorsed that it could have been caused by

a blunt force impact with hard object/surface. The time since death

was stated to be about 16 to 18 hours approximately.

6. The MLC of PW.1, Tulsi Kumar (Ex.PW.36/A) has been

proved by PW.36, Dr.A.K.Khare. The MLC of PW.5, Rajesh Sharma

(Ex.PW.34/A) has been proved by PW.34, Dr.J.P.N.Gupta and the

MLC of PW.9, Kishan (Ex.PW.25/A) stands proved by PW.25,

Dr.Priya Ranjan. PW.1 had two broken teeth in the upper jaw and

two/three broken teeth in the lower jaw with a lacerated wound on the

right side of scalp. PW.5, Rajesh had multiple stab injuries and a

muscle deep sharp cut wound on the left leg, right neck, right lower

jaw and over right bicep. PW.9 Kishan had a clean lacerated wound on

the left forearm and an abrasion in the parieto occipital region.

7. In order to bring home the charges of murder and other charges

against the appellant and other, 44 witnesses were examined by the

prosecution.

8. Be it noted that out of the 4 accused persons, one (I) was

declared a juvenile and his case was remitted to the Juvenile Justice

Board and Mohammed was declared as a proclaimed offender. He has

not been arrested. The third accused; namely Amar @ Bhalla has been

acquitted by judgment dated 8.12.2014 passed by a bench of this

Court in Criminal Appeal No.1130/2014. The relevant portion of said

judgment reads:-

"27. In view of the finding returned by us hereinabove, that as per the evidence, the aggressors were Pankaj, Tulsi, Manish, Kishan, Rajesh and Chetan, but being unarmed, the force in response by way of self defence had to be measured, and treating it to be a case where disproportionate force was used by Sonu, his act cannot make appellant vicariously liable for there is no evidence that appellant shared any common intention with Sonu. The appellant used a danda when six people assaulted Sonu, the appellant, Mohammad and „I‟. Use of the danda by the appellant to hit Kishan and Tulsi cannot be said to be a case of excessive use of force. Injuries caused to Rajesh are by a knife and are attributable to Sonu. The learned Trial Judge has by applying Section 34 of the Penal Code made appellant liable even for said injury.

28. Assuming it to be a case of a mutual fight, even then as per law, appellant would be liable only for what he did.

29. Thus, at best, the appellant would be liable for the injuries caused to Tulsi and Kishan which are grievous but not life threatening, but since a danda was used, at best the appellant would be liable for having committed an offence punishable under Section 325 IPC. But for the reason we

have found that the aggressors were Manish, Pankaj, Tulsi Kumar, Rajesh, Kishan and Chetan, we are constrained to give the benefit of doubt to the appellant for having acted in self defence when he, Sonu, Mohammad and „I‟ were way laid by Manish, Pankaj, Tulsi Kumar, Rajesh, Kishan and Chetan. He has not exceeded the right of private defence, which Sonu may have, and we do not expand much on said aspect because we find that till date Sonu has not filed an appeal.

30.X X X X X X X X X X X X X X X

31.X X X X X X X X X X X X X X X

32. For the view we have taken, the appeal is allowed. The appellant is acquitted of the charge framed against him. He be set free forthwith unless required in custody in some other case; and actually we find none for the reason, the nominal roll shows that the appellant has no other case pending against him."

9. In order to appreciate the case as against the appellant, we need

to examine the PWs.1, 5, 7 and 9 first.

10. PW.1, Tulsi Kumar is an injured witness. He has deposed

before the Trial Court that the deceased, PWs.5, 9, one Amit and

PW.8 are his friends. On 25.5.2010 at around 8 PM, while he was

sitting with his friends, namely Kishan Singh, Rajesh, Chetan Pal and

Amit, another friend Manish PW.8 called him on his cell phone and

informed him that he had a quarrel with some boys of Bengali Colony

near Sant Nagar. Aforesaid Manish called PW.1 at Chetan Bihari

Mandir. When PW.1 confronted him as to why he was worried about

the incident which took place on 24.5.2010, aforesaid Manish is said

to have replied that he wanted to have a talk with the persons with

whom he had quarrelled. PW.1, therefore, along with Rajesh, Kishan,

Chetan went to the cross road at Sant Nagar. PW.8 Manish met them

there. However, no other person was available. In the meantime, PW.1

noticed two boys and shortly thereafter one more person came. One of

them, the witness later came to know was Amar, was having a danda

in his hand. Amar had hit Rajesh. When Tulsi tried to save Rajesh, an

associate assaulted him with an iron rod. Tulsi also received danda

blows on his back. As a result, Tulsi fell down. The deceased Chetan

Lal @ Anu received stab injuries in his abdomen and had tried to run

away. PW.1 also ran towards another direction to save himself. PW.1

categorically deposed that the appellant Sonu had stabbed the

deceased with a knife. The aforesaid witness then rushed to his house

and thereafter accompanied by his father, went to the hospital.

Thereafter, he found his friend Chetan @ Anu had died. The police

recorded his statement in the hospital (Ex.PW.1/A). At the hospital,

his MLC Ex.PW.36/A was prepared.

11. Similar statements have been given by PWs.5 (Rajesh Sharma)

and 9 (Kishan), both of whom have unequivocally stated that on the

call of PW.8, Manish they went to the cross road at Sant Nagar where

they were assaulted. They have also specifically asserted about the

appellant (Sonu) having stabbed their associate Chetan Pal @ Anu,

who succumbed to the injuries.

12. On a close scrutiny of the statements of PWs.1, 5, 7 and 9, the

assertion made is that PW.8, Manish had called PW.1 for speaking

with the boys with whom he had quarrelled and that he wanted to

settle the dispute. On such call having been made by the PW.8, PWs.1,

5, 7 and 9 along with the deceased went to the place where they were

overpowered, assaulted and in the process, the appellant stabbed the

deceased.

13. What was the penultimate incident leading to such an attack by

the accused persons including the appellant does not become clear by

their statements.

14. In fact the story begins a day earlier on 24.5.2010, when the

appellant is said to have been assaulted by PW.8, PW.11 and other

associates of PW.11. The occurrence in which Chetan Pal lost his life

is clearly a fall out of what had happened in the night of 24.5.2010.

15. The sequence of events is properly revealed by the evidence of

PWs.8 and 11.

16. PW.8, Manish has deposed before the Court that on 24.5.2010

when he along with Pankaj were returning home, Pankaj inadvertently

touched a girl who was being accompanied by her younger brother.

Pankaj got into a quarrel with the brother but on the insistence of the

girl, the two had left the place of occurrence. Two bystanders, who

had seen the occurrence started staring at aforesaid Pankaj. This was

objected to by Pankaj. This resulted in a verbal exchange between

them. At the instance of Pankaj, his brother, Vicky along with his

associates Kishan and Sumit came and assaulted the appellant and

others with him. The appellant and his associates ran away.

17. On the next day, as has been stated by PW.8, while he and

Pankaj were returning from their shop in the evening, Pankaj received

a call from his brother who warned him to come through a different

street and not from the same street where the fight had taken place

earlier. Following such advice, Manish and Pankaj took a different

way to home. It was at that time when Pankaj left the company of

Manish and Manish made a call to PW.1 to have the dispute settled

with the persons of the Bengali area. It was only after his call to PW.1

that his other friends (some of the prosecution witnesses about whom

reference has been made) came, the purpose being to settle the matter

with the boys, residents of Sant Nagar. Manish and his friends were

later surrounded by four boys who attacked them by dandas, iron rod,

knife and iron chain. It has been categorically stated by the aforesaid

Manish that Amar @ Bhalla (since acquitted) was carrying a danda

whereas the appellant was carrying a knife. Manish too was injured in

the occurrence. The deceased was inflicted several injuries.

18. PW.11, Pankaj, another friend of Manish has stated before the

Court that on 24.5.2010 while he was accompanying Manish, he

accidently touched the body of a girl, leading to a scuffle with her

younger brother. The girl and her brother left the place of occurrence

but because of the appellant staring at him, a fight took place in which

the appellant was assaulted. It has been stated that on 25.5.2010 he left

the company of Manish after taking a different street to home but in

the midnight police officials came to his house and brought him to

police station. It was only then that he learnt that Chetan Pal @ Anu

had expired.

19. PW.11, therefore, is not an eye witness to the occurrence,

directly subject matter of the charge sheet, but the testimony is

relevant as it reveals the genesis and how and why there was violence.

20. Thus, from the analysis of the deposition of the aforesaid

witnesses it would become clear that on 24.5.2010 there was a fight

where the appellant was assaulted. PWs.1, 5, 9 and the deceased

Chetan Pal @ Anu thereafter on 25.5.2010, went in search of the other

group. Testimonies of PWs.1, 5, 7, 8 and 9 and deceased had made to

the place of occurrence to have the 'matter settled' with the boys with

whom PWs.8, 9 and 11 had fought at an earlier occasion. But, there is

no evidence on record that the aforesaid persons namely PWs.1, 5, 7, 9

and the deceased were armed in any manner.

21. The consistent evidence of the prosecution witnesses referred to

above is that the appellant Sonu was armed with a knife. The

possibility of the appellant having been armed with a knife as a

measure for his self defence out of fear and to protect himself from

persons who had assaulted him on an earlier occasion cannot be ruled

out. In this context, the statements of PWs.12, 13, 14 and 15 assume

relevance.

22. PW.12 Sumit has deposed before the Court that on 25.5.2010

while he and his friend Sunil had gone to the market to buy beer, the

appellant and Mohammad, brother of Imran met them. They informed

him about a quarrel going on between Imran, the brother of

Mohammed and few other boys. When aforesaid witness reached the

place indicated, the crowd had swelled up and the witness came to

learn that a boy wearing a black t-shirt had been stabbed with a knife.

Since the witness had an idea that Imran was wearing a black t-shirt,

he assumed that Imran has been stabbed. However, on enquiry from

his father who in turn enquired from Imran, the assumption was found

to be untrue.

23. What comes out clearly from his statement is that at the time

when some fight was taking place, Sonu, the appellant had fled away

or else how would he and Mohammad have met Sumit and informed

about the dispute.

24. Testimony of PW.12 is silent and quiet on several aspects as he

does not state as to whether he made any enquiries about the cause of

fight and about who all were present along with Imran as participants

in the fight. Deposition by PW.12, however, does state that a stab

injury was suffered. His statement does not assert or even indicate as

to the absence of the appellant from the place of occurrence where the

deceased received stab injuries.

25. PW.13 Ajay Kumar Rajput refers to accused Amar and Imran

having requested him to keep an iron rod and chain with him. The

aforesaid witness, after initial reluctance on the persuasion of another

friend namely Satish, kept those articles and which articles were

produced when the police came to his shop along with Imran and one

another boy whose face was covered.

26. PW.14 Satish Kumar confirms about the occurrence on

24.5.2010 and the assault on the appellant by the boys who had teased

the girl.

27. Manish and Pankaj, PWs.8 and 11 were obviously the persons

who were involved and had teased the girl.

28. PW.15, Sunil Singh Rana has stated that he met Sonu at the

house of Mehtab where he had gone to borrow money as there was a

marriage in the family. He also came to know from the appellant that

on the previous day he was assaulted by some persons and that if he

happens to meet them he would kill them. On the same day in the

evening the appellant and one Mohammad came on motorcycle, when

PW.15 saw the clothes worn by the appellant torn. He was informed

by the appellant that the same set of boys had came to beat him at

cross roads wherein Imran was caught by them and that PWs.15 and

16 should come immediately for help. PW.15 along with PW.12,

appellant and Mohammad went to cross road where the information

about a person in black t-shirt having been stabbed was gathered.

29. His statement also appears to be only partially true in as much

as the reference of the fight in the evening of 24.5.2010 has not been

correctly stated by him. The later part of his version does not appear to

be correct as it is in complete juxtaposition to the statements by the

other injured witnesses. There is no documentary proof of any injuries

on the person of the accused. Had those injuries been on record also,

some inference would have been drawn that there was a fight between

the two groups; one group comprising the appellant, Amar and two

others and the other group being of PWs.1, 5, 7, 8, 9 and the deceased.

30. Amar @ Bhalla, since acquitted, has been attributed with a

danda by all the witnesses who have been injured in the occurrence.

He is said to have assaulted PWs.1 and 5. We have referred to the

injuries of PWs.1 and 5.

31. As noted earlier, the Division Bench of this Court (Crl.A

No.1130/2014 decided on 8th December, 2014) has taken into account

the fact that PW.1 received injuries which could have been caused by

hard and blunt substance whereas PW.5 had two injuries, one by hard

and blunt substance and the other being by a sharp weapon, the sharp

weapon having been attributed to the appellant only, and has come to

the conclusion that at best Amar could have been held guilty for the

offence under Section 325 IPC. However, keeping in view the fact that

PWs.1, 5, 8, 9, 11 and the deceased were the aggressors, so benefit of

doubt was given to aforesaid Amar for he ought to have acted in self

defence. The Division Bench of this Court held that he did not exceed

the right of private defence.

32. We are examining the case of the appellant independently of

such observation made with reference to role or conduct of Amar. We

have kept and noticed the findings in Crl.A No.1130/2014. The

appellant was armed with a knife. The aggressors namely PWs.1, 5, 8,

9, 11 and the deceased were unarmed but much more in number than

the company of the appellant.

33. Exception 2 to Section 300 reads as hereunder:-

"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.

Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.

34. Section 96 of the IPC prescribes that nothing is an offence

which is in the exercise of the right of private defence. Section 97 of

the IPC states that every person has a right, subject to the restrictions

contained in Section 99 to defend himself or against any offence

affecting the human body and property, movable or immovable of

himself or of others against any act which is an offence falling under

the definition of theft, robbery, mischief, trespass etc. The right of

private defence in no case can extend to inflicting of more harm what

is necessary to inflict for the purpose of defence.

35. The appellant does not have the cover of the right of private

defence. The aggressors were unarmed.

36. The right of private defence of the body extends to causing

death under the circumstances which can reasonably cause the

apprehension of death or of grievous hurt, rape, unnatural lust or

kidnapping or abduction. (Refer to Section 100 of the IPC).

37. Having thus examined the relevant provisions with respect to

the right of private defence the conduct of the appellant could not be

stated to be in exercise of private defence. If at all there was a

presumption in his mind that he could have been overpowered and

brutally assaulted leading to grievous hurt or death by the aggressors,

he had the option of running away or taking shelter of public or public

authorities. There is no evidence on record to suggest that he was

closeted by the aggressors in such a way that he could not have

escaped. The fact that he was armed with a knife and that other

associates of his were having dandas, chains etc in their hands also

militates against any such apprehension in the mind of the appellant

that the aggressors would inflict either grievous hurt or cause his death

if their action is not warded off.

38. Having said so, it becomes rather superfluous to state that the

appellant exceeded the right of private defence. In the absence of

accrual of any such right, the question of its excess does not arise.

39. However, considering the fact that the level of preparedness

namely being armed was not such that it could be called a pre-

meditated attack and the fact that the appellant or his associates did

not have any idea about the aggressors approaching them, the case of

the appellant would come under exception 4 to Section 300 wherein a

culpable homicide is not regarded as 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.

40. The deceased suffered only one stab injury though deep enough

to cause the death. Absence of any repetition of blow and minor injury

on the forehead of PW.5 clearly reveal that the appellant did not take

any undue advantage of his having been armed with a knife or of

having acted in any cruel or unusual manner.

41. What actually was the immediate cause of the assault by the

appellant and others on the aggressors is little known. But from the

totality of the circumstances, we are inclined to hold that the case of

the appellant comes under the exception No.4 to Section 300.

42. Thus the appellant is guilty of culpable homicide not amounting

to murder. Since he had the intention to causing such bodily injury

which is likely to cause death, therefore, he is liable to be punished for

culpable homicide not amounting to murder under Section 304 Part I

of the IPC.

43. In the interest of justice, we deem it proper to modify the

conviction of the appellant from one under Section 302 IPC with the

aid of Section 34 IPC into one under Section 304 Part I of the IPC and

sentence him to undergo Rigorous imprisonment for 10 years and a

fine of Rs.10,000/-. In default of payment of fine, the appellant would

suffer one year simple imprisonment.

44. No modification is required with respect to the conviction and

sentence under Section 307/34 of the IPC.

45. While doing so we have taken note of the young age of the

appellant at the time when the occurrence took place.

46. The judgment and the appeal is modified to the extent indicated

above.

47. The appeal stands partly allowed with the aforesaid

modification.

                                     (ASHUTOSH KUMAR)
                                          Judge



                                      (SANJIV KHANNA)
                                          Judge
FEBRUARY            24, 2015
k