Delhi High Court
Jai Bhagwan vs State Of Delhi on 28 November, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. No.785/2000
Judgment reserved on : 17th November, 2016
Date of decision : 28th November, 2016
JAI BHAGWAN ..... Appellant
Through: Mr.Sumeet Verma and Mr. Abhijeet
Sharma, Advs.
versus
STATE OF DELHI ..... Respondent
Through: Ms. Aashaa Tiwari, Addl.P.P. for the
State
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. This appeal has been instituted by the appellant Jai Bhagwan son of
Sh.Hukum Singh assailing the impugned judgment dated 13.11.2000 and
impugned order on sentence dated 15.11.2000 of the learned Additional
Sessions Judge, New Delhi in Sessions Case No. 102/96 in relation to FIR No.
616/95, P.S. Ambedkar Nagar. Vide the impugned judgment dated 13.11.2000,
the accused/the appellant herein was convicted for the commission of the
offence punishable under Section 302 of Indian Penal Code (IPC), 1860 and
vide the impugned order on sentence dated 15.11.2000, he was sentenced to
imprisonment for life and to pay a fine of Rs.10,000/- and in default of the
payment of fine to further undergo simple imprisonment for one year. The
record reveals that the appellant has been in custody for six years eleven months
and twenty five days and has earned remission of a period of 10 months and 12
days and is presently on bail since 24.12.2003.
2. The notice of the appeal was issued to the State. The trial court record has
been requisitioned, received and perused. Arguments were addressed on behalf
of the appellant by Mr.Sumeet Verma, learned counsel for the appellant and on
behalf of the State by the learned Additional Public Prosecutor Ms.Aashaa
Tiwari. The trial court record indicates that the charge of allegations was
framed against the accused/the appellant herein on 24.07.1996 to the effect that
on the date 19.09.1995 at about 8:00 p.m. at Gali No. 4, opposite House No.
286, Sangam Vihar, New Delhi the accused/the appellant herein committed the
murder of Desh Raj by inflicting knife injuries with an intention to commit
murder and that the said injuries were sufficient in the ordinary course of nature
to cause death and thereby committed the offence punishable under Section 302
IPC, 1860. The accused/the appellant herein pleaded not guilty to charge of
allegations and claimed trial. The trial court record indicates that in support of
the prosecution version, the State examined 14 prosecution witnesses.
3. The accused/the appellant herein through the statement under Section
313 Cr.P.C, 1973 denied the incriminating evidence led against him and stated
to the effect that the witnesses were interested witnesses and had deposed
falsely due to enimical terms with him because of a quarrel between his wife
and the mother of the two prosecution witnesses i.e. Sushil Kumar and Ashok,
who had falsely implicated him in the case with the connivance of the police.
FACTUAL MATRIX
4. As per the trial court record on 19.09.1995 at about 10:10 p.m. Constable
Shyam Dhari No.2910/SD through a wireless message from PS Ambedkar
Nagar informed that the Duty Constable at the AIIMS Hospital had given
information that Desh Raj son of Sangat Ram r/o L-28, Sangam Vihar had been
got admitted to the hospital in an injured condition by Sushil Kumar and that the
police should be sent, on which Ct. Jai Pal Singh No. 2119/SD, Duty Officer
recorded the DD No.20 dated 19.09.95 at Police Post Devli Pahari, Sangam
Vihar, PS Ambedkar Nagar, New Delhi. The said DD entry Ex.PW-9/A further
indicates that Constable Chand Singh No. 1439/SD was sent with the copy of
the DD entry to be delivered to ASI Badu Ram for further investigation.
5. Ex.PW-14/A, the endorsement made on the rukka recorded on the
statement of Sh.Sushil Kumar (who got the injured Desh Raj admitted to the
hospital) indicates that on receipt of DD entry No. 20 at the Police Post Devli
Pahari, Sangam Vihar, PS Ambedkar Nagar, SI Surender Singh reached the
AIIMS hospital where he was handed over MLC No. 769/1995 by the doctor,
who had, on examination, declared the patient dead and had also observed that
there were four knife injuries on the person of the deceased. It is also indicated
through Ex.PW-14/A that the complainant Sushil Kumar son of Late Tilak Ram
also met the police at the hospital and gave his statement which was recorded by
SI Surender Singh Incharge of PP Devli Pahari, PS Ambedkar Nagar, who after
recording the same as Ex.PW-3/A made his endorsement Ex.PW-14/A and sent
the same through Ct. Jai Pal Singh to the police station for registration of the
FIR and also sent the special report through a special messenger to the senior
officers.
AVERMENTS IN THE FIRST INFORMATION REPORT
6. The statement Ex.PW-3/A of Sushil Kumar S/o Tilak Ram indicates that
at about 8:00 p.m. on 19.09.1995 when Sushil Kumar, the complainant was
returning home after giving tuitions via gali No. 4 and was going to his house
i.e. House No. 28 situated at Gali No. 1, Sangam Vihar, he saw Jai Bhagwan
(accused/the appellant herein) r/o 286, L-Block Gali No. 4, quarrelling with his
maternal uncle Desh Raj. As per Ex.PW-3/A the complainant intervened and
took his maternal uncle Desh Raj to leave him at his room and then Jai
Bhagwan the accused/the appellant herein started abusing loudly and he was
saying "tu mujhe police wale ki tadi deta hai aaj me tera kaam tamam karke
tera jhanjhat hi khatam kar deta hu" i.e. Jai Bhagwan stated to Desh Raj that
he would finish Desh Raj that day as he i.e Desh Raj used to show his powers of
being a policeman. As per Ex.PW-3/A, on this Desh Raj came out of his room
and went towards Gali No. 4 towards Jai Bhagwan. Sushil Kumar, the
complainant as per Ex.PW-3/A is indicated to have followed his maternal uncle
to prevent any further quarrel. He further stated that in the meantime, Ashok
Kumar, younger brother of Sushil Kumar also came and reached near Jai
Bhagwan and asked him why he was abusing on which Jai Bhagwan
accused/the appellant herein again abused and said that as he as a home-guard
used to keep threatening him that he was a policeman, he would finish him that
day i.e. he said "tu mujhe home-guard me hone ke karan police ki tadi deta hai
aaj me tujhe khatam karke mita deta hu".
7. It is further stated through Ex.PW-3/A that thereupon Jai Bhagwan i.e.
the accused/the appellant herein assaulted Desh Raj on his chest with a knife
which he, Jai Bhagwan was holding in his hand, as a consequence of which
Desh Raj fell down on the cot (Charpai) lying there and then when Desh Raj
fell down on the cot the accused Jai Bhagwan again assaulted Desh Raj on his
chest and his stomach repeatedly. It is further stated through Ex.PW-3/A that
when Sushil Kumar, the complainant tried to prevent Jai Bhagwan, the accused
Jai Bhagwan (the appellant herein) fled away from the spot and he i.e. Sushil
Kumar put his maternal uncle with the help of his brother Ashok Kumar into a
three-wheeler/auto rickshaw and took the injured Desh Raj to the AIIMS
hospital where the doctor examined Desh Raj and gave some treatment and
some time thereafter, the doctor declared Desh Raj, - dead.
8. As per Ex.PW-3/A the complainant stated that the accused/the appellant
herein in his complete senses assaulted Desh Raj, the maternal uncle of the
complainant on his stomach and on his chest with a knife and had intentionally
caused him grievous injuries. As per Ex.PW-3/A, persons in the lane had also
witnessed the incident. FIR No. 616/1995 dated 20.09.1995 U/s 302 , PS
Ambedkar Nagar is thus indicated to have been registered vide DD No. 29A at
12:50 a.m. on 20.09.1995. Copy of the said DD entry is on record as Ex.PW-
5/C.
FURTHER INVESTIGATION CONDUCTED
9. It is further indicated through the charge-sheet that further investigation
of the case was entrusted to SI Surender Singh who thereafter reached the spot
and called the photographer and Crime Team and sent the special report to the
senior officers. The investigating officer is indicated to have prepared the site
plan at the pointing out of PW-3 Sushil Kumar, the complainant. The spot is
stated to have been photographed and the exhibits seized were put into a
pullanda which were sealed with the seal of „SSY‟. As per the charge-sheet,
though the IO made an effort to trace the weapon of offence the same could not
be traced out and statements of witnesses were recorded under Section 161
Cr.P.C. and the IO got the post-mortem done on the body of the deceased. The
charge-sheet further indicates that the accused who was learnt to be in custody
in another case, was got produced pursuant to the production warrants on
30.09.95. The charge-sheet further indicates that on arrest of the accused,
police custody remand of the accused/the appellant herein was obtained, during
which on 02.10.1995 at the pointing out of the accused/the appellant herein a
vegetable cutting knife was recovered which was also sealed with the seal of
„SSY‟. As per the charge-sheet submitted, the exhibits had been sent to the
FSL. The said FSL result is placed on record as Ex.PW-14/L and Ex.PW14/M.
OBSERVATIONS IN THE IMPUGNED JUDGMENT
10. Vide the impugned judgment, the learned trial court while placing
reliance on the testimony of Sushil Kumar PW-3, ( on whose complaint the FIR
is indicated to have been registered and who was put forth by the prosecution as
being an eye-witness), held that the testimony of PW-3 was corroborated by the
statement of PW-4 Ashok Kumar, his brother.
11. As observed by the learned trial Court PW-4 Ashok Kumar stated that on
19.09.1995 at about 8:00 p.m. when he was returning from his tuition job, he
reached street No. 4 and saw that several other persons collected and he also
saw his brother Sushil Kumar PW-3 present with his maternal uncle who was in
an injured condition and that his brother told him that the accused Jai Bhagwan
had inflicted knife blows on his maternal uncle. PW-4 also stated that the
accused Jai Bhagwan was escaping from the spot. PW-4 Ashok Kumar also
testified to the effect that he along with his brother Sushil Kumar took the
injured Desh Raj to the AIIMS hospital where he died. The learned trial court
repelled the contentions raised on behalf of the accused,i.e., the appellant
herein, to the effect that PW-3 and PW-4 were inimical towards the accused/the
appellant herein or that they were interested witnesses in view of the testimony
of PW-3 being corroborative of the testimony of PW-4. The testimonies of PW-
3 and PW-4 were thus held by the learned trial court to be reliable.
12. The learned trial also held that the testimony of PW-1 Dr. S.K.Gupta,
who conducted the post-mortem on the body of the Desh Raj on 20.09.1995 and
who proved the post-mortem report Ex.PW-1/A established that the injuries on
the body of the person of the deceased Desh Raj was due to stabbing by a sharp
cutting weapon. It was also observed by the learned trial court that as per
Ex.PW-1/A, the post-mortem report, the injuries found on the body of the
deceased were caused by a sharp cutting weapon on the body of the deceased
and that injury Nos. 1 and 7 were sufficient to cause death in the ordinary
course of nature as testified by PW-1. Injury Nos. 1 to 7 are detailed in the
post-mortem report to the following effect:
(i) " Stab wound 3 cm x 1 cm cabity deep situated 19 cm.
blow S.S. Notch, 2 cm lateral to mid line on the front of
left chest.
(ii) Stab wound 5 cm x 3 cm into abdomen deep situated 8
cm midial to the anterior superior eliace spine margin
condusede exposing intestine.
(iii) Stab wound 3 cm x 1 cm. abdominal cavity deep
situated 14 cm.bellow anterior axillary fold on the
lateral aspect of left chest.
(iv) Stab wound 3 cm x 1cm situated 14 cm. below interior
axillary fold 2 cm medial to injury No.3.
(v) Incised wound 4 cm x 1/2 cm x skul bone deep above
right eyes brow present tangential.
(vi) Abraded compassion over lateral aspect of hand
extensior aspect of palm an area of 18 X 9 cm.
(vii) Punctured wound 1.5 cm x 1/2 cm x 5cm deep on
the left lung."
13. The learned trial court also held to the effect that there were eight stab
wounds caused on the body of the deceased with the sharp cutting weapon and
held that the barbaric act of stabbing with the knife on the person of the
deceased by the accused/the appellant herein was clear from the injuries shown
in the post-mortem report Ex.PW-1/A which indicated that the accused/the
appellant herein intentionally stabbed the deceased Desh Raj to kill him. The
learned trial court also held to the effect that the accused was named in the FIR,
that the FIR was prompt, that there was no dispute in relation to the identity of
the accused and that the prosecution had proved beyond a reasonable doubt that
the accused/the appellant herein had committed the murder of the deceased.
CONTENTIONS OF APPELLANT
14. Through the present appeal it was submitted on behalf of the appellant
that there was no legal evidence in the case justifying the conviction of the
appellant;
That the testimonies of PW-3 Sushil Kumar and PW-4 Ashok
Kumar were tainted and unreliable and contrary;
That PW-3 and PW-4 were nephews of the deceased and because
of their relationship a close scrutiny was required;
That neither PW-3 nor PW-4 tried to save their maternal uncle, the
deceased at the time of the alleged offence and it was contended
that the said aspect cannot be overlooked;
That neither PW-3 nor PW-4 tried to apprehend the appellant at the
scene of the occurrence;
That both the witnesses lifted the deceased from the spot as per the
prosecution version and took him to the hospital and in that process
their clothes would have become blood stained but the police did
not take their clothes into possession;
That PW-3 Sushil Kumar was cross-examined by the learned
Addl.P.P. for the State which itself indicated that he was not a
wholly reliable witness;
That there were improvements in the testimonies on oath made by
the witnesses in variation to the statements made under Section 161
Cr.P.C.;
That the testimony of PW-3 Sushil Kumar was not corroborated by
medical evidence;
That there was inordinate delay in lodging the FIR which has not
been explained;
That the weapon of offence Ex.P-1 was not shown to the doctor
who conducted the post-mortem on the body of Desh Raj. It was
also submitted on behalf of the appellant that Ex.P1 itself shows
that it could not have been utilized for causing the stab injuries
found on the body of the deceased;
That the learned trial court ignored the material contradictions in
the prosecution evidence;
That the medical evidence in the instant case did not support the
prosecution version;
That there was no evidence that the substance of the FIR was
incorporated in the daily diary entry;
That there was no evidence on record to show that copy of the said
report was sent at the earliest to the concerned MM.
15. It was thus submitted on behalf of the appellant that the impugned
judgment was based on a conjectures and surmises and was liable to be set
aside. During the course of the arguments addressed on behalf of the appellant,
the submissions made in the appeal were reiterated.
16. It was further submitted on behalf of the appellant that though PW-13
Ct.Girdhar Singh had testified to the effect that he had taken six photographs
from different angles of the spot and that he had handed over all the six
photographs to SI Surender Singh on 07.10.1997 for the development of the
photographs, SI Surender Singh had neither returned the negatives nor the
developed photographs to him. It was thus submitted on behalf of the appellant
that the non-production of the six photographs taken by PW-13 Ct.Girdhar
Singh also cast a grave doubt on the veracity of the prosecution version.
17. It was also submitted on behalf of the appellant that though the recovery
of the kitchen knife EX-P1, the alleged weapon of offence was stated by the
prosecution to have been recovered at the pointing out of the appellant, the same
was recovered on 02.10.1995 in relation to an alleged incident which took place
on 19.09.1995 and that it was recovered from a vacant plot which was open and
accessible to all and no public witnesses were associated, which all belied the
veracity of the prosecution claim in relation to the recovery of the knife Ex.P-1
at the pointing out of the appellant. It was further submitted that the factum that
the allegedly recovered knife was not sent by the IO to Dr. S.K.Gupta who
conducted the post-mortem for eliciting his opinion in relation to the weapon of
offence, was also fatal to the prosecution version.
18. It was further submitted on behalf of the appellant, that the testimony of
PW-1 Dr. S.K.Gupta who testified to the effect that injury Nos. 1 and 7 and the
fatal injuries were not possible by a kitchen knife Ex.P-1, cannot be doubted.
The appellant further contended that though on cross-examination the witness
PW-1 had stated that the depth of the injury Nos.1 and 7 were the chest cavity
deep and puncturing the heart respectively, but the same could only be possible
by this knife if it was thrust with force on the chest and due to absence of hilt
injury of the knife on the chest, the witness suggested that the whole blade upto
the hilt had not entered in the chest as injury No.7 was on left side ventricle of
the heart.
19. It was also submitted on behalf of the appellant that the cross-
examination of PW-1 Dr.S.K.Gupta also stated that injury No. 7 was possible
only if the blow of the knife was given straight to the heart up to the end of the
blade and that in the cross-examination PW-1 has categorically stated as under:
"The depth of the injury No.1 and 7 are the chest
cavity deep and puncturing the heart could only be
possible by this knife if it will be thurst with force on
the chest due to absence of hilt injury of the knife on
the chest, it suggests that the whole blade upto the hilt
has not entered in the chest as injury No.7 which is
left side ventricle of the heart"
Significantly, the examination-in-chief of this witness was also
categorical to the effect that:
"In my opinion, only Injury No. 6, 4 and 5 can be
possible with weapon shown tome today in the Court,
i.e., small knife Ex.P-1. The deep injuries, i.e., Injury
No. 1, 2 3, 7 and 8 are not possible by the type of
weapon of offence shown to me in the court today, ie.,
Ex.P-1, small knife."
20. It was thus contended on behalf of the appellant that even as per the
testimony of PW-1 Dr. S.K.Gupta the deep injury Nos. 1, 2,3,7 and 8 were not
possible by the type of weapon of offence Ex.P-1, a small knife. It was further
submitted on behalf of the appellant that the FSL result Ex.PW-14/L and
Ex.PW-14/M showed that there was no reaction in relation to the knife in
relation to the human blood found on the same, whereas the blood stained earth
and blood stained gauze and the knife as per the FSL result Ex.PW-14/L was
indicated to bear blood on the same, though the blood stained earth and blood
stained gauze were opined to be of the blood group „A‟, there were no such
reaction brought forth in relation to the knife and it was thus contended on
behalf of the appellant that the injuries sustained by the deceased thus were not
caused by the knife Ex.P-1.
21. It was thus submitted on behalf of the appellant that the allegations
levelled against the appellant of the commission of the murder of the deceased
did not stand even remotely established.
ALTERNATIVE SUBMISSION OF APPELLANT
22. An alternative submission was also made on behalf of the appellant that
the testimony of PW-4, the nephew of the deceased brought forth that before the
date of the incident there had never been any quarrel between the appellant and
the deceased and that the quarrel on the day of incident had erupted suddenly. It
was further submitted on behalf of the appellant that in the instant case after the
initial quarrel, the deceased went away and later again came back to the house
of the appellant at a distance of 150 meters to settle the quarrel and in the heat
of the moment, the appellant without pre-meditation lost the control over his
senses and attacked the deceased with a kitchen knife and that thus at best the
appellant could be convicted under Section 304-I of the IPC, 1860 and it is thus
submitted that the appellant be released on the period already undergone.
23. Reliance in this regard was placed on behalf of the appellant on the
verdicts of the Hon‟ble Apex Court in the cases Surinder Kumar vs. Union
Territory Chandigarh AIR 1989 SC 1094 and Bivash Chandra Debnath @
Bivash vs. State of West Bengal (2015) 11 SCC 283 verdicts of this court in
the cases titled as Jagtar Singh @ Goggi and Anr. Vs. State 2011(3) JCC 1995
and in Mahender vs. State 2009 (2) JCC 895 to contend that where the quarrel
took place in the heat of the moment and the circumstances of the case brought
forth that there was a sudden quarrel without any evidence being brought forth
that there was any intent to kill that could be attributed to the accused, and
where the injuries could not be said to have been inflicted in a cruel manner, the
accused was entitled to the benefit of the Exception 4 to Section 300 of the IPC
and can thus be convicted under Section 304 Part-I/II of the IPC.
CONTENTIONS OF THE STATE
24. On behalf of the State it was submitted that the testimonies of PW-3, the
complainant Sh.Sushil Kumar, PW-4 Ashok Kumar, (both nephews of the
deceased) and Dr.S.K.Gupta, PW-1 established the commission of the offence
of culpable homicide amounting to murder by the appellant qua the deceased. It
was submitted on behalf of the State that the multiple assaults on the injured and
the stab injuries at Sl. Nos. 1 to 7 were of such nature, that the intention of the
appellant in inflicting the said knife blows on the chest and abdomen of the
deceased with intent to eliminate the deceased, was apparent. It was further
submitted on behalf of the State that the utterances made by the appellant even
at the time of the first quarrel and in the subsequent quarrel that he would
eliminate the deceased because the deceased used to show off his power of
being a policeman as was a home-guard and that he would thus finish him, -
also brought forth the culpable intent of the appellant.
25. It was also submitted on behalf of the State that the testimonies of PW-3
and PW-4 were categorical and consistent in relation to all material particulars
and that the presence of PW-3 Sushil Kumar at the spot stood established
through the testimonies of PW-3 and PW-4. It was further submitted on behalf
of the State that the presence of the witness Sushil Kumar at the spot of
occurrence was not challenged during the cross-examination conducted of the
witness PW-3 Sushil Kumar, the complainant. It is also submitted on behalf of
the State that the testimony of PW-4 Ashok Kumar, brother of the complainant
Sushil Kumar also brought forth that the accused was escaping from the spot.
ANALYSIS
26. On a perusal of trial court record and on consideration of the rival
submissions made on behalf of either side and observations made in the
impugned judgment, it is brought forth as follows :-
PRESENCE OF EYE WITNESS SUSHIL KUMAR, PW3 AT THE
SPOT, AND OF PW-4 SH. ASHOK KUMAR THEREAFTER AT THE
SPOT
(i) The testimony of PW3 Sushil Kumar, the complainant and nephew
of the deceased Desh Raj categorically asserts his presence at the
spot of he having witnessed the accused i.e. the appellant herein
abusing his maternal uncle on 19.09.1995 at about 08:00 PM in the
street no.4 in front of house No. 286, Sangam Vihar where the
appellant was quarrelling with Desh Raj, maternal uncle of PW3.
The testimony of PW3 also brings forth that he had taken his
maternal uncle to his room;
(ii) it is also brought forth through the testimony of PW3 that the
accused i.e. the appellant herein had been abusing Desh Raj,
maternal uncle of PW3 loudly saying, that as Desh Raj was
threatening him being a police official, he i.e. the appellant would
finish him that day;
(iii) that the maternal uncle of PW3 i.e. Desh Raj came back to house
L-286 belonging to the accused i.e. the appellant herein and he,
Sushil Kumar, followed his maternal uncle;
(iv) that the maternal uncle of PW-3Desh Raj (since deceased) asked
the accused i.e. the appellant herein, not to abuse but the appellant
again abused Desh Raj;
(v) that thereafter the appellant gave a knife blow on the stomach of
Desh Raj, due to which, he fell down on a cot lying there and
thereafter the appellant again gave knife blows several times i.e.
four times on the chest and abdomen of the maternal uncle of PW3
i.e. Desh Raj;
(vi) that he (PW3) became perplexed after seeing the knife and blood
and in the meantime the brother of PW3, Ashok Kumar i.e. PW4
also reached;
(vii) that he (PW3) with help of his brother Ashok Kumar removed the
maternal uncle Desh Raj to the AIIMS Hospital;
(viii) that the accused i.e. the appellant herein fled away from the spot
and that Desh Raj expired at the hospital;
(ix) that the police came to the hospital but his statement Ex.PW3/A
was recorded at the police station and that the police lifted blood
stains from the spot in a dibbi and the same was seized vide a
seizure memo Ex.PW3/B-as testified by PW3 in his examination-
in-chief.
27. The cross-examination of PW3 Sushil Kumar, the complainant is
equally categorical and consistent in relation to all material particulars on
the record as he categorically states:-
(i) the distance between his house and house of the accused i.e.
appellant, was about 100-150 meters;
(ii) he (PW3) knew the accused i.e. the appellant herein before the
incident and they also used to talk to each other;
(iii) that he had first noticed from a distance of 50 feet the accused i.e.
the appellant herein, and Desh Raj (since deceased) quarrelling and
that many people collected there;
(iv) that the incident had taken place in front of the house of the
accused i.e. the appellant and that he (PW3) noticed the quarrel
between Desh Raj (since the deceased), his maternal uncle and the
accused i.e. the appellant herein for 10-12 minutes;
(v) that the injured Desh Raj was taken to the AIIMS Hospital in a
three wheeler scooter driven by Mohd. Ishfaq s/o Sharafuddin who
used to live in front of the house of the accused i.e. the appellant
herein;
(vi) that Desh Raj was taken in a three wheeler scooter by PW3 along
with his brother Ashok Kumar, PW4;
(vii) that the clothes of PW3 & PW4 were blood stained and so were the
hands of PW3 and so was the seat of the scooter;
(viii) that when the accused i.e. the appellant herein gave a knife blow,
he was at a distance of 3-4 feet;
(ix) that when the accused i.e. the appellant herein gave the first knife
blow to the deceased, he did not try to intervene nor stopped him in
order to save his uncle;
(x) that PW3 volunteered everything happened so quickly, it was
difficult to decide at that time and stated:
"After seeing the knife and blood stain, I had become scared";
(xi) that PW3 denied also that he had not noticed the accused stabbing
his maternal uncle;
(xii) PW3 denied that he had not removed the deceased to the hospital
and denied that the police had got the injured admitted to the
hospital;
all brings forth that there is not a whisper of suggestion in the
cross-examination of PW3 put forth on behalf of accused i.e. the
appellant herein before the learned Trial Court to disclaim and
repel the presence of PW3 at the spot.
The entire testimony of PW3 both in examination-in-chief
and cross-examination brings forth the natural course of human
conduct including in relation to the aspect that he stated that he
did not try to intervene when the second incident took place and
could not stop the accused i.e. the appellant when the
accused/appellant gave the first knife blow to the deceased and
that he had not at that time intervened to save his maternal uncle
in as much as he stated that everything happened so quickly, it
was difficult to decide at that time and after seeing the knife and
blood and he had become scared.
28. The testimony of PW4 Ashok Kumar, brother of PW3 is categorical in
his assertion that on 19.09.1995 at about 08:15 PM when he was returning from
the tuition job when he reached in street no.4, he saw several persons had
collected there and also found his brother Sushil Kumar present there and found
his maternal uncle Desh Raj lying there in injured condition. PW4 further
testified to the effect that his brother told him that the accused Jai Bhagwan had
given a knife blow on his maternal uncle Desh Raj and at that the time accused,
i.e., the appellant herein Jai Bhagwan was escaping from the spot.
29. PW4 further corroborated the testimony of PW3 that he along with PW4
took his maternal uncle in a TSR to AIIMS Hospital where his maternal uncle
after some time was declared dead by the doctor. The cross-examination of
PW4 is categorical that when he reached the spot, his brother Sushil Kumar was
trying to lift his maternal uncle Desh Raj. He (PW4) further stated that he had
helped him lifting Desh Raj; PW4 through cross-examination corroborates the
testimony of PW3 that Desh Raj was taken in a three wheeler scooter of Ishfaq
to the hospital; PW3 also corroborates the testimony of PW4 Ashok Kumar that
the house of Ishfaq is in front of the house of accused Jai Bhagwan i.e. the
appellant herein; PW4 through cross-examination corroborated that when they
were shifting the injured in a three wheeler scooter, his clothes as well as the
clothes of Sushil were also blood stained; the testimony of PW4 that before the
incident there was no quarrel between the accused (the appellant herein) and the
maternal uncle of PW4, Desh Raj (since deceased), coupled with the categorical
denial by PW4 that he had not seen his maternal uncle in an injured condition
at the spot or that he along with his brother Sushil had not removed the injured
to the hospital, all brings forth the presence of PW3 and PW4 also at the spot.
Further the testimony of PW4 categorically brings forth that PW4 Ashok Kumar
himself was not an eye witness of the occurrence of stabbing but had reached
when the quarrel had already taken place.
30. Significantly, the statement of the accused/appellant under Section 313
of the Code of Criminal Procedure, 1973 to query No.29 which is to the effect
that why the PWs had deposed against him, the accused/appellant responded
that they were interested witnesses and that the witnesses Sushil Kumar and
Ashok Kumar had deposed falsely against him because a quarrel took place
between his wife and the mother of Sushil and Ashok so they had enmity with
him.
31. There is nothing in the statement under Section 313 of the Code of
Criminal Procedure, 1973 also to claim that PW3, the eye witness was not
present at the spot and significantly there is not a whisper of a suggestion in the
testimony of PW3 nor PW4 put forth by the accused/appellant that the witnesses
PW3 & PW4 were testifying falsely against the accused/appellant because a
quarrel took place between the wife the of the accused and the mother of Sushil
& Ashok Kumar as a consequence of which they had enemical terms with the
accused/appellant. Rather, both PW3 & PW4 have categorically stated that they
had never quarrelled with the accused prior to the incident and that they were
not on enemical terms with the accused/appellant and rather used to talk to him
before the date of incident.
CONDUCT OF PW-3 AND PW-4 AT THE SPOT
32. The contention raised on behalf of the appellant to the effect that neither
PW-3 nor PW-4 tried to save their maternal uncle Desh Raj, the deceased, at the
time of the alleged offence and they did not try to apprehend the accused/the
appellant at the scene of the occurrence and that this was fatal to the prosecution
version, was repelled on behalf of the State submitting that in a quarrel or any
other incident an event takes place rapidly and the perception of those who
witness the event, may alter according to their powers of observation, age and
state of mind and state of shock on witnessing the incident.
33. As laid down by the Apex Court in Rajesh Singh & Ors. V. State of
Uttar Pradesh; 2011 (11 ) SCC 444, merely became the witnesses had not tried
to stop the accused/the appellant when he fled, there is no ground to disbelieve
the testimony of the witnesses inasmuch as it has been laid down in paragraph
24 thereof to that effect
" 24. The trial court has also found fault with the fact that none of the
witnesses tried to stop the accused persons when they fled. That is hardly
any reason to disbelieve the prosecution case. One of the accused
persons was already facing a murder case. The witness Virendra Kumar
(PW-1) has also spoken about that. It should be seen that the accused
were viewed as bullies and, therefore, nobody might have tried to
apprehend them."
34. The verdict of the Apex Court in State of Rajasthan v. Chandgi
Ram;014 (14) SCC 596, also makes it apparent that there cannot be any strait
jacket conduct to be followed by the witnesses when they see an onslaught or an
attack or a murder. The observations of the Apex Court in paragraphs 15 and 16
of the said verdict are reproduced herein below:
"15. The learned Counsel for the Respondents-
accused was repeatedly contending that the version of
the above witnesses was wholly unnatural by pointing
out that when the head of the family was being
attacked mercilessly by the four accused persons, the
witnesses were not taking any effort to seek the help of
their neighbours in the village, where all the houses
were closely situated. Here again, we are not able to
accept or appreciate the said contention for more than
one reason. In the first place, Choti (PW-1) is the wife
of the deceased who at that point of time was more
concerned in rescuing her husband from the attack of
the Respondents-accused who were four in number
and who were fully armed with iron rod, iron pipe and
lathis. Therefore, when her husband was being beaten
mercilessly by four different persons, as rightly
deposed by her, she could only make a hue and cry
while taking every possible effort to rescue him from
the merciless onslaught of the assailants. If at all
anything can be said based on such cries of Choti
(PW-1), those who were living nearby could have
come for her rescue in saving her husband. If no one
came and were not prepared to extend a helping hand,
then Choti (PW-1) cannot be blamed for that reason.
On seeing the plight of Choti (PW-1), Bhateri (PW-8)
her niece, who happened to come at the place of
occurrence appeared to have rushed back to inform
her uncle, namely, Subhash (PW-12) who is the elder
brother of the deceased and who tried to intervene
and save the deceased from the ruthless attack of the
Respondents-accused.
16. According to Choti (PW-1) and Subhash (PW-12),
the Respondents-accused were so keen in eliminating
the deceased that they were stated to have warded off
any attempt made by Choti (PW-1) and Subhash (PW-
12) in saving the deceased from the dreadful attack by
them. Therefore, we do not find any conduct which is
not normal or unnatural from what was stated by
Choti (PW-1) or Subhash (PW-12). As far as Kumari
Sarita (PW-3) and Vikram (PW-15) are concerned,
they are children of the deceased and when they
witnessed the gruesome attack of the Respondents-
accused on their father, they could have made noise
and being children of a very tender age, it cannot be
stated as to in what manner they were expected to
behave at that point of time. But on that score, it
cannot be held that the whole of their evidence should
be eschewed from consideration. While witnessing
such an inhuman behaviour of the assailants, the
young children might have become paralysed out of
shock and fear. Therefore, the contention made on
behalf of the Respondents-accused that the behaviour
of the eye witnesses was unnatural, does not stand to
any reason and, therefore, the said contention
deserves to be rejected."
35. Significantly, the learned Trial Court vide the impugned judgment has
categorically observed to the effect that the statement of PW-3 Sushil Kumar,
who had seen the incident of stabbing with his own eyes cannot be brushed
aside, taking into account that the FIR in the instant case was prompt and that
there was no dispute in relation to the identification of the accused/the appellant.
The testimony of PW-3 Sushil Kumar is also categorical to the effect that when
the accused gave the knife blows to the deceased, he, PW-3, was at a distance of
three to four feet and when the accused gave the first knife blow to the
deceased, PW-3 Sushil Kumar did not try to intervene and stop him nor save his
uncle Desh Raj. He volunteered that " everything happened so quickly that it
was difficult to decide at that time. After seeing the knife and the blood I had
become scared at the place where the knife blows were given." It was also
testified by PW3 in his examination-in-chief that he had become perplexed after
seeing the knife and blood. This testimony of the witness PW-3 Sushil Kumar
who categorically states that he did not make any attempt to intervene when his
maternal uncle was given the first blow by the accused/the appellant and that he
did not do so as everything happened so quickly and it was difficult for him to
decide at that time and that after seeing the knife and blood he had become
scared, is a conduct which is a natural course of human conduct and rather lends
credence to the testimony of PW-3 Sushil Kumar in relation to his being present
at the time of the alleged occurrence and having seen the incident at a distance
of three to four feet.
36. The testimony of PW-4 Ashok Kumar S/o Tilak Ram, indicates clearly
that PW-4 had reached the spot only when the attack on his maternal uncle Desh
Raj had already been made by the accused/the appellant.
37. The testimony of PW-3 categorically asserts that the accused/the
appellant had fled away from the spot after the incident and the testimony of
PW-4 Ashok Kumar likewise categorically states that at that time when he
reached the spot, the accused/the appellant Jai Bhagwan was escaping from the
spot. There is not a whisper of a suggestion in the cross-examination on behalf
of the accused/the appellant claiming that PW-3 and PW-4 were not present at
the spot as they made no attempt to apprehend the accused/the appellant. The
conduct of PW3 at the time of the alleged commission of the offence and of
PW-4 who reached the spot immediately after the commission of the offence, in
the facts and circumstance of the instant case where they immediately
thereafter put the injured Desh Raj since deceased in a three wheeler driven by
Ishfaq S/o Shariffuddin and took him to the AIIMS hospital for treatment, is an
apparent course of normal human conduct and does not detract from the
veracity of the prosecution version.
NON SEIZURE OF THE BLOOD STAINED CLOTHES OF
PW-3 AND PW-4 BY THE POLICE
38. It was contended on behalf of the appellant that the non-seizure of the
blood stained clothes of PW3 and PW-4 who state that their clothes got stained
with the blood of the injured Desh Raj, since deceased, when they lifted him
from the spot and put him into a three wheeler scooter and took him to the
AIIMS hospital belied their presence at the spot, cannot be accepted as the MLC
EX.PW-12/A categorically brings forth that the injured Desh Raj was brought to
the AIIMS hospital by Sushil Kumar, i.e., PW-3. The learned trial Court record
also indicates that at the time of conducting of the autopsy on 20.9.1995 at
about 12:45 p.m. it had been recorded that the time since death of the injured
Desh Raj, since deceased, was approximately 18 hours and the presence of both
Sushil Kumar S/o Tilak Ram and Ashok Kumar S/o Tilak Ram is also
mentioned on the post-mortem report Ex.PW-1/A which per se belies the
contention raised on behalf of the appellant that in the absence of the blood
stained clothes of PW-3 and PW-4 having been seized by the police, their
testimonies that they took their maternal uncle Desh Raj, since deceased, to the
hospital, were false, - cannot be accepted.
STATED VARIATIONS IN THE TESTIMONY OF PW-3
39. The contention raised on behalf of the appellant was that the testimony of
PW-3 Sushil Kumar, the sole eye-witness put forth was unworthy of credit in as
much as the learned Additional Public Prosecutor had cross-examined the
witness in relation to the aspect that the police had lifted blood stains from the
spot which they had seized vide seizure memo EXPW-3/B, the witness has not
testified in his examination-in-chief.
40. It was also contended on behalf of the appellant that there was
improvement in the testimonies of statements made by the witnesses under
Section 161 of the Cr.P.C. and that these improvements itself indicated that PW-
3 and PW-4 and all prosecution witnesses examined, were interested witnesses
and that the accused/appellant had been falsely implicated.
41. In relation to this aspect, it is essential to observe the testimonies of PW-3
and PW-4 and all other prosecution witnesses examined by the State are
consistent in relation to all material particulars in relation to the incident having
taken place, i.e., of the assault on the maternal uncle of PW-3 and PW-4, Sh.
Desh Raj by the accused/the appellant herein with a knife both on his chest and
on his abdomen, which injuries on the chest and abdomen are also corroborated
by the details put forth in the post-mortem report, Ex.PW-1/A, which details the
injuries caused to the injured since deceased as follows:
"(i) Stab wound 3 cm x 1 cm x cavity deep
situated 19 cm below supra sterna notch 2cm
laeral to the midline on the front of left chest.
(ii) stab wound 5cm x 3 cm x abdominal viscera
deep situated 8 cm medial to the anterior
superior eliace spine margin condusede
exposing intestine;
(iii) 3cm x 1 cm x abdominal cavity, stab wound
situated 14 cm bellow anterior axillary fold on
the lateral aspect of left chest.
(iv) stab wound 3cm x 1cm situated 14 cm
bellow anterior axillary fold on the lateral
aspect of left chest 2cm medial to injury No.3.
(v) Incised wound 4 x 0.5 cm x skull bone deep
above right eye brow present tangential
(vi)Abraded contusions over lateral aspect hand,
extensor aspect of palm in an area of 18 x 9 cm.
(vii) punctured wound 1.5cm x 1/2 cm x muscle
deep in the left ventricle of heart.
(viii) punctured wound 1.5 cm x 1/2cm x 5 cm
deep on left lung."
42. Injuries No.1,2,3 and 4 are stab wounds on the chest, abdomen, and
injury nos. 7 and 8 are punctured wounds in the left ventricle of the heart and on
the left lung. It is also essential to observe that the minor variations in the
testimonies of prosecution witnesses from statements recorded under
Section161 of the Cr.P.C. do not per se suffice to dislodge the prosecution
version and are only variations as per human memories.
TIME OF LODGING OF FIR
43. A contention was raised on behalf of the appellant that there was an
inordinate delay in lodging the FIR which had not been explained, in as much as
though the incident took place at about 8 p.m., the FIR is indicated to have been
lodged only at 12:55 a.m. on receipt of DD No.20 as indicated by Ex.PW-5/A,
the copy of the FIR.
44. The MLC on the record indicates that the injured was brought to the
AIIMS hospital on 19.9.1995 at 21:40 hours.
45. The incident is alleged to have taken place at 8 p.m. at Sangam Vihar and
PW-3 and PW-4 have explained that after the asault on the injured by the
accused/the appellant, they had to go first to Khanpur from their house and then
from there either through Chirag Delhi or through Saket to the AIIMS hospital
and on the date of the incident they had gone to the AIIMS hospital via Chirag
Delhi. The Court can take into account that the said distance is approximately
11.3 kms and takes about 49 to 50 minutes to cover.
46. Taking the said aspect into account and the factum that the MLC
indicates that the injured was got admitted to the hospital at 21:40 hours, the
time taken by PW-3 and PW-4 to arrange the auto in front of the house of the
appellant at the spot of the incident and thereafter to bring the injured to the
hospital, stands explained.
47. The application for conducting post-mortem, i.e., Ex.PW-14/C issued by
the AIIMS also indicates that the injured was admitted in the casualty and
thereafter succumbed to the injuries at 11:20 p.m. in the casualty ward.
48. PW-9, Ct. Shyam Dhari, through his unchallenged testimony has testified
to the effect that on 19.9.1995 he was posted as Duty Constable in the AIIMS
hospital and on that day at about 9:40 p.m. one injured, Desh Raj, since
deceased was admitted to the hospital with a knife injury and he had informed
P.S.Ambedkar Nagar on telephone which was recorded vide DD No.20. Copy
of the said DD entry is Ex.PW-9/A.
49. Ex.PW9/A, DD No.20 dated 19.9.1995, Police Post Devli Pahari, Sangam
Vihar, indicates that the duty officer Ct. Shyam Dhari telephonically informed
at 10:10 pm of the injured having been admitted to the hospital and also
indicates that ASI Badu Ram had sent the copy of the DD entry. It has been
testified by PW14 SI Surender Singh, the Investigating Officer of the case, that
ASI Badu Ram had told him that there had been an incident of stabbing of a
knife on a person; that he made entry in the DD register and that along with Ct.
Jaipal reached the spot, i.e., L-Block, Gali No.4, Sangam Vihar, New Delhi,
where he learned that the injured had been taken in a hospital in a TSR and
Constable Chand Ram and ASI Badu Ram remained at the spot for safety he
along with Ct. Jaipal reached the hospital in the emergency ward and he
obtained the MLC of the injured and it was learned that he had been declared
dead by the doctor and that thereafter he met Sushil Kumar, the nephew of the
deceased also at the hospital where he recorded his statement and made an
endorsement Ex.PW-21/A and sent the same through Ct.Jaipal for registration
of the FIR which testimony of SI Surender Singh is also corroborated by PW7
Ct. Jaipal that he took the rukka to the police station for the registration of the
FIR after the statement of the nephew of the deceased was recorded at the
hospital. It is, thus, apparent that there is no inordinate delay in the
registration of the FIR.
MEDICAL EVIDENCE
50. It was contended on behalf of the appellant that the medical evidence in
the instant case does not support the prosecution version and that the testimony
of PW-1, Dr.S.K.Gupta, itself was to the effect that injuries No.1 to 7 which
were fatal injuries, were not possible by the kitchen knife, Ex.P-1, which is
stated to have been recovered at the pointing out of the appellant. It was also
submitted on behalf of the appellant that the said knife was allegedly recovered
on 2.10.1995 in relation to an incident which took place on 19.9.1995 and that it
was recovered from a vacant plot which was open and accessible to all and no
public witness was associated, and that the veracity of the prosecution claim in
relation thereto have not been established.
51. Qua this aspect of the ante-mortem injuries, it is essential to observe that
the injuries caused to the deceased, as reflected in Ex.PW-1/A, the post-mortem
report have already been detailed herein above in paragraph35.
52. PW-1 has categorically testified to the effect that the cause of death to the
best of his knowledge and belief was the haemorrhagic shock as a result of stab
injuries to the chest and heart and lung caused by a sharp cutting weapon, and
that injury Nos. 1 and 7, i.e., the stab wound 3cm x 1cm cavity deep situated 19
cm below on the front of the left chest and the punctured wound 1.5 cm x 5 cm
to left vertical of heart, were sufficient to cause death in the ordinary course of
nature.
53. Significantly, injury Nos. 6, 4 and 5, as detailed in the post-mortem report
were also testified by PW1 to be possible with a weapon Ex.P-1. Undoubtedly,
in his examination-in-chief, PW1 Dr. S.K.Gupta, deposed that the deep injuries
No.1,2,3, 7 and 8 were not possible by the type of weapon of offence Ex.P-1 a
small knife. On being cross-examined, however, by the learned Additional
Public Prosecutor for the State, PW-1, Dr.S.K.Gupta deposed that injury No.7
was heart muscle deep, i.e., it should have been about 3 cm, deep and he further
stated that length of the blade of the knife shown to him in Court, Ex.P-1, was
five to six centimetres. He further stated that it was possible that if the blade of
the knife was given straight into the heart upto the end of the blade, then it could
reach the muscle of the heart and could puncture it. PW1 stated that this was his
response also in relation to injury No.1.
54. Significantly, on being cross-examined on behalf of the accused/the
appellant,. PW-1, stated that the wound dimensions suggested that the knife had
entered into the cavity upto 3 cm width of the knife. He also categorically
denied that the width of knife was not more than 1 cm and denied that the injury
was not possible with a knife Ex.P-1. He stated that the injury caused could be
possible with the knife Ex.P-1. He further stated that if at the time of stabbing
the blade of the knife was not straight, then the injury could not have been
caused. He also stated that depth of the injury Nos. 1 and 7 was chest cavity
deep and had punctured the heart which could be possible by this knife Ex.P-1 if
it was thrust with force on to the chest. He also stated that due the absence of
the hilt injury of the knife on the chest, it suggested that whole blade upto the
hilt had not entered the chest as injury no.7 was on the left side ventricle of the
heart. He also categorically denied that the post-mortem report and opinion
regarding injuries with a knife ExP-1 had been given by him at the instance of
the Investigating Officer. It is, thus, apparent that the testimony of PW1 when
read in toto makes it apparent that the injuries No. 1 to 8 caused to the deceased
were possible and due to the knife Ex.P-1 and as testified by PW-3 Sushil
Kumar, had been inflicted with a knife by the accused/the appellant giving knife
blows on the stomach and chest and abdomen of his maternal uncle, Desh Raj,
since deceased.
55. Further more, even if the contention of the appellant that Ex.P-1 was not
the knife utilized in the infliction of injuries on the person of Desh Raj is
accepted, the factum that the injuries No.1,2,3,4 were not stab wounds and
injury Nos. 7 and 8 were punctured wounds which were muscle deep coupled
with the factum that Ex.PW-1/A the post mortem report indicates that all the
injuries 1 to 8 were ante- mortem in nature and sufficient to cause death in the
ordinary course of nature and all the injuries were caused by a sharp cutting
weapon, coupled with the categorical testimony of PW1 that the injuries
inflicted and caused on Desh Raj, the maternal uncle of PW1, were blows with a
knife by the accused/the appellant, the ocular testimony on record corroborates
the medical evidence on record in relation to the nature of injuries sustained by
the injured, since deceased. The medical evidence on record also thus
corroborates the prosecution version set forth in the FIR through the complaint
of the complainant Ex.PW-3/A made by PW-3 Sushil Kumar. It is also
essential to observe that PW-14 SI Surender Singh, the Investigating Officer of
the case, denied the suggestion that no opinion regarding the weapon of offence
was taken because it had not been used. As already observed herein above, the
infliction of injuries on the person of the injured, since deceased, with a knife is
established through the testimony of PW1 Dr. S.K.Gupta and PW3 Sushil
Kumar, the eye-witness
OTHER CONTENTIONS RAISED
56. It was also contended on behalf of the appellant:
That there was no evidence on record to show that the copy of the said
report was sent at the earliest to the concerned Metropolitan Magistrate.
In relation thereto it is indicated through the original endorsement
Ex.PW-5/A of the learned Metropolitan Magistrate concerned that the
copy of the FIR was delivered at the residence of the Metropolitan
Magistrate on 20.9.1995 at 9:05 a.m.;
the factum that photographs taken by PW-13 Ct. Girdhar Singh were not
placed on record, despite the photographs having been taken, as testified
by SI Surender Singh and Ct. Girdhar Singh, per se does not suffice to
dislodge the veracity of the prosecution version, in view of the
consistent testimonies of PW-3 and PW-4 and the testimony of SI
Surender Singh, the Investigating Officer of the case, which is
corroborated through the testimony of Ct. Jaipal and by the medical
evidence through the testimony of Dr.S.K.Gupta;
This is so inasmuch as Ct.Girdhar who had taken six photographs from
different angles at the spot stated that he had handed over the negatives
of six photographs to SI Surender Singh on 7.10.1997 for the developing
of the photographs but SI Surender Singh did not return the negatives nor
the developed photographs to him, yet this witness categorically denied
that he had not taken the photographs at the spot and thus, they had not
been produced in Court;
The Investigating Officer through his testimony has categorically
explained that the photographer had reached the spot and had taken the
photographs but the developed photographs could not be placed on
record as the negatives were given to the photographer for developing
but he had left the shop and his whereabouts were not known,
The entire available record, thus, establishes that injuries No.1,2,3,4,7
and 8 are stab injuries and incised injuries and as indicated from
Ex.PW1/A all injuries 1 to 8 were ante mortem in nature and sufficient
to cause death in the ordinary course of nature and all were caused by
a sharp cutting weapon and that injuries No.1 and 7 were sufficient to
cause death in the ordinary course of nature.
APPLICABILITY OF EXCEPTION 4 TO SECTION 300 OF THE IPC
57. It has been observed by the learned trial Court that the infliction of
injuries was barbaric and intentional with intent to kill Desh Raj and thus the
accused/the appellant was convicted for the commission of an offence
punishable under Section 302 IPC, 1860.
58. During the course of the arguments addressed, an alternative submission
was made on behalf of the accused/the appellant that even if the injuries had
been inflicted on the injured Desh Raj, since deceased, by the accused/appellant
in the manner as testified by PW-3 were held to be established, in that event too
the accused/the appellant herein cannot be held guilty of the commission of
culpable homicide amounting to murder, in as much as the infliction of injuries
on the injured, since deceased, had not been caused or done by the accused/the
appellant with the intention of causing death. It was, thus, submitted on behalf
of the accused/appellant that the appellant was entitled to the benefit of
Exception 4 to Section 300 of the IPC, 1860.
59. The Exception 4 to Section 300 of the IPC, 1860 is as follows:
"Murder:- 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--
......
.....
........
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 case which
party offers the provocation or commits the first
assault.
60. As held by the Apex Court in Samuthram @ Samudra
Rajan v. State of Tamil Nadu, (1997) 2 Crimes 185 (Mad.)
To invoke Exception 4 to section 300, four
requirements must be satisfied, namely (i) it was a
sudden fight, (ii) there is no premeditation; (iii) the
act was done in a heat of passion; and (iv) the
assailant had not taken any undue advantage or
acted in a cruel manner.... The number of wounds
caused during the occurrence is not a decisive factor
but what is important is that the occurrence must
have been sudden and unpremeditated and the
offender must have acted in a fit of anger. Of
course, the offender must not have taken any undue
advantage or acted in a cruel manner. Where, on a
sudden quarrel, a person in the heat of the moment
picks up a weapon which is handy and causes
injuries, one of which proves fatal, he would be
entitled to the benefit of this Exception provided he
has not acted cruelly;"
61. It was, thus, submitted on behalf of the appellant that in the instant case
that it was the injured/the deceased himself who came back to the spot of the
occurrence after he had left the spot initially, in as much as PW-3 had stated that
at about 8 p.m. on 19.9.1995 when he was coming back after attending his
tuition job, he had seen that at house No.286 a quarrel was going on between the
accused and the deceased Desh Raj and that, he, PW-3 intervened and took his
uncle into his room whereof the accused continued to abuse his maternal uncle
loudly saying that Desh Raj used to show off his powers of being a policeman
and that, he, i.e., the accused/the appellant would finish him that day and that
thereafter after sometime Desh Raj, the maternal uncle of PW-3, again came
back to the house No.L-286 belonging to the accused/the appellant,
whereupon he, PW3, followed his maternal uncle Desh Raj, Desh Raj asked
the accused/the appellant not to abuse on which appellant again abused the
injured, whereafter the accused/the appellant gave a knife blow on Desh Raj,
the injured due to which he fell on a cot and thereafter the accused gave knife
blows several times, i.e., four times in the abdomen of his maternal uncle Desh
Raj, all brought forth that the assaults with the knife on stomach, chest and
abdomen of the injured by the accused/the appellant had been caused on the
spur of the moment and were not pre-meditated and, in fact, have been caused
due to Desh Raj having come back to the spot in front of the house of the
accused after the initial quarrel had ended and after PW-3 had already taken his
maternal uncle Desh Raj, since deceased, to his house.
62. It was, thus, submitted on behalf of the appellant that there was no pre-
meditation in the quarrel, which took place in the instant case due to Desh Raj,
the injured, since deceased having come back to the spot and having asked the
accused, i.e., the appellant not to abuse him whereupon without any pre-
meditation the accused/the appellant in the heat of passion on a sudden quarrel
assaulted the injured.
63. On a consideration of the testimony of PW3 and the verdicts relied upon
on behalf of the appellant, Surinder Kumar vs. Union Territory Chandigarh
AIR 1989 SC 1094 ;Bivash Chandra Debnath @ Bivash vs. State of West
Bengal (2015) 11 SCC 283; Jagtar Singh @ Goggi and Anr. Vs. State
2011(3) JCC 1995 and; Mahender vs. State 2009 (2) JCC 895, taking into
account the factum that the fatal attack in the instant case was a culmination of
a quarrel between the accused/the appellant and the injured, since deceased, in
as much as the accused/the appellant claimed that the injured, since deceased,
used to show his power of being a policeman in as much as he belonged to the
Home Guards which resulted into the quarrel, so much so that after the end of
the initial spat the deceased again went to the house of the appellant as brought
forth through the testimony of PW3 as if to incite him, it is established that
there was no pre-meditated intent to murder brought through the testimony of
PW3 against the accused/the appellant in as much as it was a case of a sudden
fight.
64. As laid down by the Hon‟ble Supreme Court in the Pulicherla Nagaraju
@ Nagaraj v. State of Andhra Pradesh: 2006 (11) SCC 444
" 29. Therefore, the court should proceed to decide the
pivotal question of intention, with care and caution, as
that will decide whether the case falls under Section 302
or 304 Part I or 304 Part II. Many petty or insignificant
matters - plucking of a fruit, straying of cattle, quarrel of
children, utterance of a rude word or even and
objectionable glance, may lead to altercations and group
clashes culminating in deaths. Usual motives like
revenge, greed, jealousy or suspicion may be totally
absent in such cases. There may be no intention. There
may be no premeditation. In fact, there may not even be
criminality. At the other end of the spectrum, there may
be cases of murder where the accused attempts to avoid
the penalty for murder by attempting to put forth a case
that there was no intention to cause death. It is for the
courts to ensure that the cases of murder punishable
under Section 302, are not converted into offences
punishable under Section 304 Part I/II, or cases of
culpable homicide not amounting to murder, are treated
as murder punishable under Section302. The intention to
cause death can be gathered generally from a
combination of a few or several of the following, among
other, circumstances: (i) nature of the weapon used; (ii)
whether the weapon was carried by the accused or was
picked up from the spot; (iii) whether the blow is aimed at
a vital part of the body; (iv) the amount of force employed
in causing injury; (v) whether the act was in the course of
sudden quarrel or sudden fight or free for all fight; (vi)
whether the incident occurs by chance or whether there
was any premeditation; (vii) whether there was any prior
enmity or whether the deceased was a stranger; (viii)
whether there was any grave and sudden provocation, and
if so, the cause for such provocation; (ix) whether it was
in the heat of passion; (x) whether the person inflicting the
injury has taken undue advantage or has acted in a cruel
and unusual manner; (xi) whether the accused dealt a
single blow or several blows. The above list of
circumstances is, of course, not exhaustive and there may
be several other special circumstances with reference to
individual cases which may throw light on the question of
intention. Be that as it may."
65. The factum that the knife utilized was a small knife Ex.P-1 as also
brought forth through the testimony of PW-1 Dr.S.K.Gupta, it is apparent
that the choice of the weapon utilized by the accused/the appellant in the
commission of the offence was also not of a nature to attribute pre-
meditated intent before the commission of the murder and, thus, the
injuries inflicted on the accused/the appellant cannot be held to have been
inflicted by the accused/the appellant by taking undue advantage or by
acting in a cruel or unusual manner.
CONCLUSION
66. In view of the verdicts of the Supreme Court relied upon on behalf the
accused/the appellant though the conviction of the appellant in infliction of
injuries, as detailed in Ex.PW1/A, is upheld, and the factum of the accused/the
appellant having thereby caused the culpable homicide of Desh Raj, the injured,
since deceased, is also upheld, however, in the facts and circumstances of the
instant case, the impugned conviction of the accused/the appellant under Section
302, IPC 1860 in relation to FIR No.616/95 Police Station Ambedkar Nagar is
modified and converted to a conviction under Section 304 II of the IPC, 1860,
in as much as Section 304 II of the IPC, 1860 penalizes culpable homicide not
amounting to murder, if the act is done with the knowledge that it is likely to
cause death but without any intention to cause death, or to cause such bodily
injury as is likely to cause death.
67. It was submitted on behalf of the appellant that the appellant has been in
custody for long and that the appellant be, thus, released on the period of
detention undergone. The nominal roll dated 21.11.2016 received indicates that
the appellant has been in custody for a period of 6 years 11 months and 26 days
as on 23.12.2003 and had been on bail during the period 3.6.2002 to 4.7.2002
and 9.4.2003 to 10.6.2003 and had been released on bail on 24.12.2003. During
this period the appellant has also earned remission of 10 months 12 days.
68. In view thereof, the appellant, thus having undergone the detention for a
period of 6 years 11 months and 25 days and having earned remission of 10
months 12 days, taking into account the factum that the offence has been
committed without any premeditation, the order dated 15.11.2000 of sentence is
modified and the appellant/offender is allowed to be released on the period of
detention already undergone in relation to the commission of an offence
punishable under Section 304 Part II of the IPC, 1860 in FIR No.616/95, Police
Station Ambedkar Nagar, and the fine imposed vide the impugned judgment
dated 13.11.2000 and order on sentence dated 15.11.2000 is set aside.
69. A copy of the judgment to the Superintendent, Central Jail, Tihar, New
Delhi be sent for compliance, and copy be supplied to the appellant and be
placed on the trial Court record which be returned.
ANU MALHOTRA, J
GITA MITTAL, J
NOVEMBER 28, 2016
mr/ssc/sv
