Delhi High Court
Ajay Bind vs State Nct Of Delhi on 7 July, 2017
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*IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on : 07th June, 2017
Judgment Pronounced on :7th July, 2017
+ CRL.A. 392/2016
AJAY BIND ..... Appellant
Through : Mr. Sachin Agarwal, Adv.
along with the appellant
produced in custody.
versus
STATE NCT OF DELHI ..... Respondent
Through : Ms. Aashaa Tiwari, APP for
the State.
Mr. Sumer Sethi, Adv.,
DSLSA.
Ms. Sweta Sen, Project
Manager, Tara Homes.
+ CRL.A. 925/2016
SHANKAR BIND & ANR ..... Appellants
Through : Dr. Chaudhary Shamsuddin,
Adv. along with appellants
produced in custody.
versus
STATE NCT OF DELHI ..... Respondent
Through : Ms. Aashaa Tiwari, APP for
the State.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE G.S. SISTANI
JUDGMENT
GITA MITTAL, ACTING CHIEF JUSTICE
1. The appellants Ajay Bind (appellant in Crl. A. No.
392/2016) and Shankar Bind and Raju @ Brahm Dev Bind
(appellants in Crl. A. No. 925/2016) assail the common judgment
dated 22nd March, 2016 and consequential order on sentence dated
29th March, 2016 passed by the learned Additional Session Judge -
05 (West), Tis Hazari Courts, Delhi in Sessions Case No.44/15
arising out of FIR No. 291/2011 registered at PS Nihal Vihar under
Sections323/302/34/174A of the IPC.
2. By the impugned judgment dated 22nd March, 2016 and
order on sentence dated 29th March, 2016, the appellants stand
convicted for commission of offences under Sections 302/323/34
of the IPC and sentenced to undergo, for commission of offence
under Sections 302/34 of the IPC, rigorous imprisonment for life
and a fine of Rs.15,000/- each, in default of payment of fine, to
further undergo SI for six months each. For commission of offence
under Section 323/34 of the IPC, they stand sentenced to rigorous
imprisonment for one year and a fine of Rs.1,000/- each and in
default of payment of fine, to further undergo SI for 15 days each.
The sentences were directed to run concurrently and the benefit
under Section 428 of the CrPC was allowed to the appellants.
The appellants were acquitted for commission of offence
underSection 174A of the IPC.
3. Inasmuch as the appeals raise similar question of law and
facts and rest on the same evidence, we propose to decide these
appeals by the present common judgment. The factual narration is
in a narrow compass and to the extent necessary is set out
hereafter.
4. The law machinery was set into motion on the night
intervening 17th / 18th October, 2011 on the receipt of DD No. 51A
at 11:50 PM, at PS Nihal Vihar (Ex. PW 24/A) regarding a quarrel
at the Chander Vihar drain.
5. The DD entry was premised on a PCR Call which was made
on the 17th of October, 2011 at 23:44 PM by one Raju (PW-20).
The PCR Form Ex.PW-10/A records information of the incident as
narrated, as being of a quarrel ("jhagra") at the following location:
"CHANDER VIHAR NALE KE PAS JO GHAR BAN RAHE
H POLICE CHOKI KE PAS MACHCHHI MKR PAR
KARKE CHARCH KE PAS"
6. Subsequently, PCR Van PWR-66 was despatched to the spot
and reported back as follows:
"18/10/2011 01:08:58 RCD 8 MIN SHARAB PI KAR
AAPAS MAI JHAGDA EK INJ LE KAR HOSP JA RAHE
HAI 18/10/2011 01:32:07 INJ KO D/CT S.G. HOSP MAI
HAWALE HOSH MAI"
(Emphasis by us)
7. ASI Ajaib Singh (PW-24) reached the spot along with Ct.
Diwan where they were informed that the injured has been taken to
Sanjay Gandhi Hospital in the PCR Van. Upon reaching the Sanjay
Gandhi Memorial Hospital, PW-24 ASI Ajaib Singh found the
MLC No.16574 (Ex.PW14/A) dated 18th October, 2011 recorded at
1:30 am of injured Rampal. However, the injured had left the
hospital. This MLC notes the history as "assault as told by
patient" and reports the injury suffered by him as "simple". This
MLC does not appear to have been proved in evidence.
8. The next morning (18th October, 2011), at around 9:00 AM,
ASI Ajaib Singh (PW-24), again visited the spot and met the
injured, Rampal.
9. Rampal informed that one of his relatives Ramesh @ Ram
Asre had also sustained injuries, but he was not aware as to where
Ramesh @ Ram Asre was admitted. Consequently, DD No. 51A
was kept pending.
10. On 19th October, 2011, one person namely Jitender s/o
Rampal visited the PS Nihal Vihar, and gave his statement (Ex.
PW-24/B) to the police. The incident of the said night, is
encapsulated in the court testimony of Jitender, who deposed as
PW-3, when he testified to the effect that on the date of the
incident, his father in law Ramesh @ Ram Asre and mother in law
Indra Devi were visiting his wife (their daughter Gudiya). They
were all seated in his room, when they heard 'shor sharaba' from
outside, and subsequently they all went out to see that the
appellants were quarrelling amongst themselves. His father-in-law
Ramesh @ Ram Asre rebuked the appellants in a loud voice and
told them to keep quiet "chup ho jao". At this, Ajay Bind
(appellant in Crl.A.No.392/2016) got angry and picked up a
hammer and hit Ramesh @ Ram Asre on his head. Shanker Bind
and Raju (appellants in Crl.A.No.925/2016) also picked up danda
and saria and started beating Ramesh @ Ram Asre as well as
Rampal with them. Jitender intervened in this quarrel to save his
father and father-in-law, when he was also pushed around.
Thereafter, all of the appellants escaped from the spot. His mother-
in-law Indra Devi took his father-in-law to the Hospital in a
rickshaw. PCR reached after half an hour, who took his father to
the hospital. Jitender (PW-3) later learnt that his father-in-law has
been admitted at Safdarjung Hospital where he had died.
11. On the statement of Jitender (PW-3), the rukka was prepared
and FIR No. 291/11 u/s 304/34 of the IPC was registered at PS
Nihal Vihar. The investigation of this case was entrusted to
Inspector Sahdev Rana (PW-27).
12. Another FIR No. 365/11 u/s 279/337 of the IPC stood
registered at PS Vikas Puri inasmuch as the MLC of the deceased
Ramesh @ Ram Asre disclosed an alleged history of Road Traffic
Accident (RTA). The MLC of the deceased was proved by Dr.
Subhajit Dhar (PW-15).
13. During investigation, the dead body of the deceased Ramesh
@ Ram Asre was handed over to his relatives after conducting
post-mortem. The post-mortem report no. 1110 GVJG 121 (Ex-
PW-19/A) dated 20th October, 2011 was proved on record by the
autopsy doctor Dr. Atul Gupta (PW-19) who opined the cause of
death as 'coma due to antemortem injury to head produced by
blunt object. The injury to the head was sufficient in the ordinary
course of nature to cause death'.
The post-mortem report records the following injuries on the
body of the deceased :
"External injuries: 1) Stitched laccrated wound 4x0.2 cm
on right parieto occipital region
2) laccrated wound 4x0.5 cm on vertex
3) Stitched laccrated wound 4x0.2 cm on centre of the
forehead
4) Reddish abrasion 4x1 cm vertically placed on left
side of the forehead
5) Stitched lacerated wound 2x0.2 cm on left side of
the cheek
6) laccrated wound 2x0.2 cm on left side of the chin
7) Stitch laccrated wound 3x0.2 cm on dorsum of the
left hand
Internal examination: Scalp: Patchy extravasation of the
blood seen bilateral parietooccipital region.
Skull: Depressed fractures of right parieto temporal bone
of size 7x4 cm. Sutural fracture of the right coronal
suture present. Multiple fractures of right occipital bone,
transverse fracture of right mastoid
Brain: subarachnoid and sub dural haemorrhage present
over the bilateral parietal rigion. Edema present
Neck: All structures intact. Sternum and Ribs: NAD
Lungs: Both lungs congested. Heart: NAD
Stomach: blackish material present. Walls: NAD
Intestines: NAD
Liver, spleen, kidneys: congested Bladder: empty"
14. The rough site plan (Ex.PW-27/A) was prepared by
Inspector Sahdev Rana (PW-27) at the instance of Gudia and
Jitender. Statements of the witnesses u/s 161 of the Cr.P.C. were
also recorded.
15. Effort was made by the police to arrest the accused persons,
but they could not be arrested. Thereafter, all accused persons were
declared proclaimed offenders by orders of the learned
Metropolitan Magistrate dated 6th July, 2012.
16. Chargesheet dated 11th January, 2013 and supplementary
chargesheet dated 2nd May, 2013 stood filed against the accused
persons by the police before the learned Metropolitan Magistrate,
who by the order dated 24th May, 2013 committed the case to the
Court of Sessions for trial in accordance with law.
17. Ajay Bind and Raju could be arrested only on 20th February,
2013 by HC Kartar Singh. Both accused persons were produced
before the Area Magistrate.
18. Shankar Bind was also arrested on 9th March, 2013 by the
Special Crime Branch.
19. Charges were thereupon framed against the accused persons
for commission of offences under Sections 302/323/34 IPC. Three
separate charges were also framed against each of the accused
persons under Section 174A of the IPC.
20. The appellants pleaded not guilty to all charges and claimed
trial.
21. The prosecution examined 28 witnesses in support of its
case. The incriminating circumstances against the accused were put
to them in their statement under Section 313 of the CrPC.
22. After hearing and appreciating the evidence on record, the
learned Trial Judge convicted the appellants and sentenced them as
noted above.
23. We have heard Mr. K. Singhal and Mr. Sachin Agarwal,
Advocates for the appellants and Ms. Aashaa Tiwari, learned APP
for the State who have taken us through the entire record.
24. Mr. K Singhal, learned counsel for the appellants has
vehemently contended that the learned Trial judge has erred in
passing a judgment of conviction inasmuch as the prosecution has
failed to prove the charges against the appellants beyond
reasonable doubt. He submits that as per the MLC of the deceased
Ramesh @ Ram Asre, he was purported to have received injuries
in a Road Traffic Accident (RTA) whereupon FIR No. 365/11
under Sections 279/337 of the IPC at PS Vikas Puri came to be
registered, and the present FIR is confabulated by later on
introducing false statements of witnesses, to implicate the
appellants. He submits that the investigation in the matter was
conducted in a defective manner, that the names of the appellants
are not mentioned in the statements given by the witnesses to ASI
Ajaib Singh and that no TIP of the accused persons was got done
by the Investigating Officer and their identification was only in the
dock.
25. Mr. Singhal, learned Counsel for the appellants has further
contended that neither any blood was lifted from the crime scene,
nor any of the weapons were recovered from the appellants, and
there was therefore, no material evidence to prove the place of the
commission of the offence, benefit whereof would enure to the
appellants.
26. Ld. counsel for the appellants has contended that as per the
testimony of Dr. Atul Gupta (PW-19), the injuries suffered by the
deceased were possible due to fall on hard surface. Ld. counsel
would contend that the incident was reported as a road traffic
incident.
27. In the alternate, it is contended by Mr. Singhal, that to
sustain the conviction under Section 302 r/w Section 34 of the IPC,
the prosecution was required to show that the death was homicidal,
and in any case even if the prosecution story unfolded the way it is
asserted, the same would be squarely covered within Exception 4
to Section 300 of the IPC.
28. Ms. Aashaa Tiwari, learned APP for the State has staunchly
defended the findings of the learned Trial judge and seeks
dismissal of the appeal.
29. We propose to deal with the defence of the appellants one by
one. Mr. Singhal has contended that as per the history given to the
Safdarjung Hospital by Shiv Karan (PW-4) - son-in-law of the
deceased, the injuries were received in a road traffic accident and
that the death was a result of such RTA.
30. The MLC No. 185738 of the deceased Ramesh @ Ram Asre,
recorded at the Safdarjung Hospital at 1:28 AM on 18th October,
2011 is proved on record as Ex.PW-15/A. The MLC admittedly
discloses "Alleged h/o RTA on 17/10/11 around 7:00 pm as stated
by the son in law (Shiv Karan)".
31. However, we find a reason for this history. The explanation
for the same can be found in the court testimony of Shiv Karan
(PW-4) which is in the following terms:
"...we took an auto and took my father-in-law to the DDU
Hospital but he was not admitted at the DDU Hospital and
we were informed that there was no equipment for treating
head injury and we then took Mr. Ram Asrey to the
Safdarjung Hospital in an ambulance. So that my father-in-
law was admitted at the Safdarjung Hospital, as he had not
been admitted at the DDU Hospital my wife Rani falsely
told at the Safdarjung Hospital that there had been an
accident."
32. This stand that the deceased was first taken to the DDU
Hospital is corroborated by the court testimony of Smt. Rani (PW-
2) daughter of Ramesh @ Ram Asrey who has deposed thus:
"we took my father Ramesh/Ram Asre in a auto rickhaw in
Deen Dayal Hospital. There are the Deen Dayal Hospital
they refused to treat my father and we then took him to the
Safdarjung Hospital and we took him to the Safdarjung
Hospital and we took him to the emergency and he was
treated there."
33. In her cross-examination Smt. Indra Devi (PW-1), wife of
the deceased, has also deposed to the above effect thus:
"I had stated in my statement to the police that my husband
had not been admitted to Deen Dayal Upadhyay Hospital
as I was informed that the DDU did not have the machine
for medical treatment of the injury on the head of my
husband and I was asked to take my husband to the
Safdarjung Hospital and I had taken him there."
34. Thus, a conjoint reading of the afore-extracted testimonies of
PW-1, PW-2 and PW-4 makes it clear as to why the alleged history
at the Safdarjung Hospital was disclosed as an accident. It was to
ensure that the deceased gets admitted and is administered
immediate care and treatment.
35. It is also pertinent to note that subsequent to a telephonic
communication on 18th October, 2011 from the Safdarjung
Hospital in this respect, DD No. 5B came to be recorded by the PS
Vikas Puri. On this information SI Roshan Lal went to the spot of
the accident but no information could be gathered. Consequently,
FIR No. 365/11 under Sections 279/337 of the IPC, was registered.
The FIR was cancelled by the order dated 9th April, 2012passed by
the learned Metropolitan Magistrate, as during investigation it was
revealed that false information was given by the witness.
36. It is submitted by Mr. K Singhal learned counsel for the
appellants that in the statements of the witnesses recorded by ASI
Ajaib Singh (PW-24), the names of the appellants were not
disclosed. We note the finding of the learned Trial judge on this
count :
"...Statement of PW-1 Smt, Indira Devi was recorded on
19.10.2011 by the lO/ASI Ajaib Singh and she stated that on
17.10.2011, she alongwith her husband had come to meet
her daughter in her house and they heard a noise of quarrel
outside. Her son in law Jitender came out and saw that some
persons who were Kabaris were quarrelling each other.
They started beating her son in law and her husband and
Samdhi also came out and Kabaris also gave beatings to
them. She saw that after giving beatings, they fled from the
spot. She also stated that she called her Banja Raju and he
made a call at 100 number and Ram Asrey was taken to the
hospital. PW-7 Gudiya also in her statement recorded by ASl
Ajaib Singh also stated that on the day of incident, her father
and mother came to meet her at her house and Kabaris were
quarreling themselves and on hearing the noise, her husband
and father in law Rampal were separating them, but they
started beating her husband and father in law with danda
and Saria and her father Ram Asrey was also given beatings
by them and they fled from the spot. Rampal also gave
statement about thequarrel. Raju gave statement about
giving intimation to the police from mobile phone number
9990125118.Jitender has also given statement on
19.10.2011 which isproved as Ex.PW-24/E to the effect that
after hearing thenoise, he alongwith his father and father in
law cameoutside the house and Kabaris started beating them
andthey gave injuries with danda and saria and his father
inlaw Ram Asrey was taken by his mother in lawSmt.Indira
Devi and sister in law Smt.Rani. He has alsostated that this
quarrel had taken place with the Kabarisand his father and
father in law were also given beatings.Statement of injured
Rampal was also recorded on19.10.2011.
PW-24 ASI Ajaib Singh has stated that thestatements
of abovesaid witnesses were recorded duringinquiry of the
case FIR No. 365/11 U/s 279/337 IPG.After recording their
statements, when the facts ofabovesaid case were clear, he
had recorded anotherstatement of Jitender on the same day
i.e. on 19.10.2011.Statement of Jitender falsified the FIR no.
365/11 and on the statement of Jitender, the present FIR was
recorded and thereafter, on the same day, supplementary
statementof Jitender was also recorded.
I am of the view that when proper facts werenot
coming in the statements of the witnessesrecording during
inquiry of case U/s 279/337 IPG, nobenefit can be given go
the accused persons that theirnames were not mentioned in
the statements given toASI Ajaib Singh"
37. The subsequent statement of Jitender came to be recorded at
8:40 pm on 19th October, 2011. This is after he got to know that his
father-in-law Ramesh @ Ram Asre had expired, whereupon he has
given a more detailed statement with names of the accused persons.
38. In his court testimony, Jitender (PW-3) has categorically
stated that his signatures were taken on blank papers also.
Therefore nothing would turn on non-disclosure of the names of
the appellants in the first instance.
39. It is further submitted by Mr. K. Singhal, learned counsel for
the appellants that no TIP of the appellants was conducted and this
proves fatal to the case of the prosecution. It is forthcoming from
the evidence that the appellants, who worked as kabadis, resided in
the neighbourhood of Jitender and Gudiya. It has further in the
testimonies of the witnesses that such quarrels amongst the kabaris
was a daily routine. It is nobody's case that the appellants were
persons unknown to the witnesses.
40. The value of a Test Identification Parade when the accused is
not a stranger to the witnesses can best be summed up in the words
of the Supreme Court reported at (2009) 4 SCC 385, State of U.P.
v. Sukhpal Singh wherein it was held thus:
"25. In the instant case, all the witnesses have stated that they
had otherwise known the accused persons and they were not
strangers to them. In the moonlight and lantern light they
clearly identified them. Therefore, the test identification
parade was really not necessary in this case.
26. Whether test identification parade is necessary or not
would depend on the facts and circumstances of each case.
This Court in a series of cases has taken the view that the test
identification parade under Section 9 of the Evidence Act is to
test the veracity of the witness and his capacity to identify the
unknown persons whom the witness must have seen only once
but in the instant case the witnesses were otherwise known to
the accused persons, therefore, the test identification parade
has no great relevance in the facts and circumstances of this
case.
xxx xxx xxx
31. On careful consideration of the entire evidence on record,
the following conclusions are inescapable:
xxx xxx xxx
2. The High Court failed to appreciate that in this case, the
test identification parade was not required since the
accused were otherwise known to the witnesses. The
conducting of test identification parade depends on the facts
and circumstances of each case.
3. In the impugned judgment, the High Court ought to have
considered the entire case in correct perspective of the
small rural village background where most of the people
know each other. They live in the vicinity. The test which
may be relevant for metros or big cities cannot always be
applied to small rural village settings..."
(Emphasis by us)
Thus, when the accused and witnesses were residents of the
same locality and were not unknown, as in the present case, non-
conducting of TIP would not be fatal to the case of the prosecution.
41. The next contention pressed by Mr. K Singhal, learned
counsel is that it has not been proved beyond reasonable doubt that
the appellants were in fact the persons who assaulted Rampal and
the deceased Ramesh @ Ram Asre.
42. In this regard, we may refer to the court testimonies of the
material witnesses together, who have deposed to the following
effect:
NO. PW WITNESS COURT DEPOSITION
I. PW-1 Indira On SA:
"...On hearing the noise all of us came
Devi
out. 1 saw that there was quarrel going
on. The kabadis were quarrelling i.e.
Ajay, Shankar and Raju. My husband
had gone to intervene - samjhane ke liye
and then,Raju, Shanker and Ajay started
using abusive language. My husband was
asking them not to abuse and he also
spoke loudly. At that time Ajay brought a
hammer (hatoda) and hit my husband
and then my husband was assaulted with
a saria and a danda. I do not know who
assaulted my husband with a saria and
who assaulted him with danda. Ajay,
Raju and Shanker after assaulted my
husband had run away. 1could not see
who hit my husband with the saria and
who hit my husband with danda (in reply
to specific Court query). I then went
forward to save my husband and at that
time Ajay hit me and pushed me. On
seeing that my husband had been injured
on the head, 1 immediately took my
husband to the doctor. My sambadhi
Rampal had also sustained injuries. I do
not know who had caused the injuries to
Rampal...."
Cross Examination:
"...I had told the police in my statement
recorded on 22.10.2011 that the kabadis
were quarrelling. 1had not given the
names of Ajay, Shanker and Raju to the
police. The names of Ajay, Shanker and
Raju had been given by my daughter
Gudiya to the police. I had not given the
name of Ajay to the police as having hit
my husband with a hammer on his head
but 1 had told the police the truth that my
husband had been hit with a hammer on
his head. The name of Ajay was given by
my daughter Gudiya to the police. My
daughter had told the police that Ajay,
Raju and Shanker after assaulting my
husband had ran away. I had also told
the police that these three persons had
ran away..."
II. PW-3 Jitender On SA:
"...We were all seated in my room, when
we heard a noise 'shor sharaba' from
outside. All of us came out of the room to
see and there we saw persons quarrelling
i.e. we saw Ajay, Shanker and Raju
quarrelling betweenthemselves. My
father-in-law and my father said that
they would go and talk to them to placate
them 'samjhate hain'. My father-in-law
then asked these persons in a loud voice
'chup ho jao'. Then Ajay got angry and
he picked up a hammer and hit the same
my father-in-law's head. Then Shanker
and Raju also from the kabada picked up
danda and saria and started beating my
father and father-in-law with the same.
Then 1 went forward to save my father
and father-in-law from those three
persons. Iwas also pushed (dhakka
mukki) and then Ajay, Shanker and Raju
escaped from the spot. Then Indira Devi
my mother-in-law put my father-in-law
into a rickshaw as he had been injured a
lot and took him to the hospital."
"...I can recognize the three persons
namely Ajay, Shanker and Raju. 1
recognize the three accused Ajay,
Shanker and Raju present today in
Court. (Thewitness has pointed out to the
three accused Ajay, Shanker and Raju
@Brahm Dev by name and face). I had
told this to the police after 2/3 days of
the quarrel..."
Cross Examination:
"...It is incorrect to suggest that I had
stated to the police that I did not know
the names and addresses of the persons
who had quarreled and it is incorrect to
suggest that I had stated that there were
7/8 persons who were quarrelling..."
III. PW-6 Rampal On SA:
"...At that time at about 09:30 PM there
was a loud noise (shor macha) and we
all came out and saw that the (kabadi)
were quarelling amongst themselves and
were using abusive language i.e. the
(kabadi) Ajay, Raju and Shankar were
quarelling and had consumed a lot of
liquor. Those three (kabadi) are present
in the Court room and I identify them.
(The witness is pointed the three accused
present today in Custody by name and
face correctly). Ram Asrey asked me who
were these persons and I replied that
they were the (kabadi) and used to
quarrel everyday in the same manner.
Ram Asrey then said that he would talk
to them and make them understand and
we went to them. I also went with him.
Then Ram Asrey spoke to the three
accused but they did not keep quiet and
continued to quarrel and then Ram Asrey
said in a loud voice (chup raho) and on
this there was a hammer lying in front
of the accused Ajay and he hit it on the
head of Ram Asrey. I ran to save Ram
Asrey. At that time the accused Raju had
taken a (lath) and Shankar had taken a
(sariya). All three of them i.e Ajay, Raju
and Shankar started assaulting Ram
Asrey and as I had intervened to save
him they assaulted me also. At that time
Jitender my son and Indra Devi came
running but I had been hit on my head
and I became unconscious..."
IV. PW-7 Gudiya On SA:
"...We were having are snacks at that
time at about 09:00 PM. At thattime
there was a sound of vulgar abuses and
(shor sharaba) coming from outside.All
of us i.e. my mother Indrawati also
known as Indra Devi, my father Ramesh
also known as Ram Asrey, I and my
husband Jitender and my father-in-law
Rampal came out to see. My father asked
my husband and my father-in-law as to
who were these persons and why they
were quarrelling. My father-in-law and
my husband informs my father that these
persons were the (kabadi) who used to
reside in front of our house and that it
was their regular daily feature to quarrel
to make a noise and to use vulgar
abuses. My fathersaid that he would go
and persuade them and make them
understand. My father and my father-in-
law then went together. My father then
went to persuade three accused i.e. the
accused Ajay, Shankar and Raju all of
whom are present today in Court and
whom I identify (the witness as pointed
out to the three accused present today in
Court in custody by name and face
correctly). My father asked the three
accused persons to keep quiet and to stop
abusing, but the accused persons did not
desist. My father then in a loud voice told
the three accused (chup ho jao). The
three accused got angry. The accused
Ajay picked up a hammer lying close by
and hit the same on my father's head.
The other two accused Raju and
Shankar also picked up the hammer
(hathoda) and a (sariya) lying nearby
hit my father and my father-in-law with
the same and also beat them. My father
was seriously injured and my father-in-
law also was injured and became
unconscious and fell down. When my
husband and mother went to intervene,
the three accused left their weapons and
pushed them and ran away..."
All of these witnesses have withstood the cross-examination.
There is thus unimpeachable evidence on record to show that the
present appellants were the perpetrators of the crime.
43. It is further contended by Mr. K Singhal, learned counsel for
the appellants that the weapon of offence was not recovered from
the appellants. It is apposite to note that all accused persons had
absconded. The arrest of Ajay Bind and Raju could be effected
only on 21st February, 2013 while the arrest of Shankar Bind was
effected on 9th March, 2013. As a period of almost one and a half
years had elapsed from the date of the incident, it would be of no
consequence therefore, that the weapons were not recovered.
44. Finally it is urged by Mr. K Singhal, learned counsel for the
appellants that the case is squarely covered within Exception IV to
Section 300 of the IPC.
45. We extract Exception 4 to Section 300 of the IPC which
reads thus :
"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's 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.
Illustration A, by instigation, voluntarily causes, Z, a person
under eighteen years of age to commit suicide. Here, on
account of Z's youth, he was incapable of giving consent to
his own death; A has therefore abetted murder."
46. Section 304 of the IPC, 1860 prescribes as follows :
"304. Whoever commits culpable homicide not amounting
to murder shall be punished with imprisonment for life, or
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the
act by which the death is caused is done with the intention
of causing death, or of causing such bodily injury as is
likely to cause death; or with imprisonment of either
description for a term which may extend to ten years, or
with fine, or with both, 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."
A grievance is raised that even though this argument was
urged before the learned Trial judge, it was not even considered
and a finding in this regard was not returned.
47. The submission is that even if the acts as attributed to the
appellants is made out from the record, on the facts of the case,
Exception IV to Section 300 stands attracted and therefore at best
the prosecution has a case under which the appellants can be held
guilty for commission of culpable homicide under Section 299 of
the IPC, and would entail a sentence under Part II of Section 304 of
the IPC.
48. In the pronouncement reported at (2002) 8 SCC 354, Sekar
v. State, there was a heated verbal exchange between the deceased
and accused on release of a sheep which was destroying the crops
of the deceased. The accused and others got the sheep untied which
led to exchange of hot words between the parties. When the
deceased fell down after the accused had given injuries on his head
and left shoulder, the accused again inflicted another blow on his
neck. It was held to be covered within Exception IV to Section 300
of the IPC. It was held by the Supreme Court in the following
terms:
"11. We notice that there was an altercation between the
accused and the deceased. There was no premeditation and
the assaults were given by the accused during the course of
the sudden quarrel. This, according to us, brings the case
within the ambit of Exception IV to Section 300 IPC..."
(Emphasis by us)
49. To appreciate the submission that the incident was
unprovoked, took place due to sudden quarrel without any pre-
meditation and that the violence occurred in the heat of passion
without taking any undue advantage or acting in a cruel or unusual
manner and that the appellants could not be held culpable of having
intent to cause the death of the person or that they were guilty of
commission of the offence punishable under Section 302 of the
IPC, 1860; that the appellant had picked up tools lying which came
handy and in such passion accidentally caused injuries on vital
parts of the body which had proved fatal and therefore, could not
be held to be pre-meditated to make the appellants culpable of
having been intended to cause the death of the person. Therefore,
the appellants were in no manner guilty of the commission of the
offence punishable under Section 302 of the IPC, 1860.
50. We may usefully refer to a judgment rendered by the
Supreme Court reported at (1989) 2 SCC 217, Surinder Kumar v.
UT, Chandigarh wherein it was held thus:
"5. The learned advocate for the appellant submitted that there
was no previous ill-will between the parties, on the contrary the
relations were cordial and the appellant was not the one who
had started the quarrel but he acted in the heat of passion
during a sudden quarrel without any premeditation and hence
Exception 4 to Section 300 IPC was clearly attracted. On the
other hand the learned counsel for the State argued that the
High Court had rightly held that the appellant had acted in a
cruel and unusual manner and was not entitled to the benefit of
the said exception. He submitted that the appellant had attacked
an unarmed person and had caused as many as three injuries
which showed that he had acted in a cruel manner. The
appellant's counsel countered by pointing out from the evidence
of PW 1 Dr. Goyal that the appellant had a deformity in the left
leg which restricted his movement and he would ordinarily not
venture to attack unless he was forced by circumstances to use
the weapon to contain PW 2.
xxx xxx xxx
7. To invoke this exception four requirements must be
satisfied, namely, (i) it was a sudden fight; (ii) there was 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 cause of the quarrel is not relevant nor
is it relevant who offered the provocation or started the
assault. 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. In the present case, the deceased and PW 2 had entered
the room occupied by Sikander Lal and his family members and
had demanded vacant possession of the kitchen. When they
found that the appellant was disinclined to hand over
possession of the kitchen, PW 2 quarrelled and uttered filthy
abuses in the presence of the appellant's sister. On the appellant
asking him to desist he threatened to lock up the kitchen by
removing the utensils, etc., and that led to a heated argument
between the appellant on the one side and PW 2 and his
deceased brother on the other. In the course of this heated
argument it is the appellant's case that PW 2 took out a knife
from his pant pocket. This part of the appellant's case seems to
be probable having regard to the antecedents of PW 2. It is on
record that PW 2 was convicted at Narnaul on two occasions
under Section 411 IPC and his name was registered as a bad
character at the local police station. It was presumably because
of this reason that he had shifted from Narnaul to Chandigarh a
couple of years back and had started to live in the premises
rented by PW 4. When the appellant found that PW 2 had taken
out a pen knife from his pocket he went into the adjoining
kitchen and returned with a knife. From the simple injury
caused to PW 2 it would appear that PW 2 was not an easy
target. That is why the learned Sessions Judge rejected the case
that Amrit Lal had held PW 2 to facilitate an attack on him by
the appellant. It further seems that thereafter a scuffle must
have ensued on Nitya Nand intervening to help his brother PW
2 in which two minor injuries were suffered by the deceased on
the left arm before the fatal blow was inflicted on the left flank
at the level of the fifth rib about 2" below the nipple. It may
incidentally be mentioned that the trial court came to the
conclusion that the injury found on the neck of PW 2 was a self-
inflicted wound and had therefore acquitted the appellant of the
charge under Section 307 IPC, against which no appeal was
carried. We have, however, proceeded to examine this matter on
the premise that PW 2 sustained the injury in the course of the
incident. From the above facts, it clearly emerges that after PW
2 and his deceased brother entered the room of the appellant
and uttered filthy abuses in the presence of the latter's sister,
tempers ran high and on PW 2 taking out a pen knife the
appellant picked up the knife from the kitchen, ran towards PW
2 and inflicted a simple injury on his neck. It would be
reasonable to infer that the deceased must have intervened on
the side of his brother PW 2 and in the course of the scuffle he
received injuries, one of which proved fatal. Taking an overall
view of the incident we are inclined to think that the appellant
was entitled to the benefit of the exception relied upon. The
High Court refused to grant him that benefit on the ground that
he had acted in a cruel manner but we do not think that merely
because three injuries were caused to the deceased it could be
said that he had acted in a cruel and unusual manner. Under
these circumstances, we think it proper to convict the accused
under Section 304, Part I IPC and direct him to suffer
rigorous imprisonment for 7 years."
(Emphasis by us)
51. Ld. counsel for the appellants has pointed out that the fact
that the deceased was alive when he was removed to hospital and
expired during his treatment establishes that no undue advantage
was taken by the accused persons.
52. In this regard, we may also refer to the pronouncement of the
Supreme Court reported at Pulicherla Nagaraju @ Nagaraja
Reddy vs. State of A.P., (2006) 11 SCC 444 wherein it was held as
follows :
"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 an
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
Section 302. 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."
53. In this regard, reference may also usefully be made to a
pronouncement of the Supreme Court reported at (1997) 2 Crimes
185 (Mad.), Samuthram @ Samudra Rajan v. State of Tamil
Nadu wherein it was held as follows :
"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;"
(Emphasis supplied)
54. The evidence extracted above shows that the weapons were
not carried by the appellants but were picked up from the spot. The
acts were in the course of a sudden quarrel and the incident
occurred by chance without any pre-meditation. There is no
evidence at all of previous enmity. On the contrary, the deceased
was a stranger to the appellants who was visiting the matrimonial
home of his daughter in the vicinity where the quarrel took place.
The incident was a result of the appellants getting provoked and in
a heat of passion.
55. In fact, the appellants were quarrelling amongst themselves
and it was the deceased and his family who came out of their home
to intervene resulting in the quarrel.
56. The deceased suffered injury on the head to which Dr. Atul
Gupta (PW-19) has opined that the cause of death was coma due to
ante-mortem injury to the head produced by blunt object.
However, there is no evidence at all which could establish that the
infliction of injury on the deceased Ramesh Chand by the
appellants was caused with the intent to cause death or as the
offender knew that causing such bodily injury was likely to cause
death.
Conclusion:
57. The testimonies of Indra Devi (PW-1); Jitender (PW-3) and
Rampal (PW-6) establish that the appellants were clearly amongst
themselves using abusive language and that they had consumed a
lot of liquor. In fact, these three witnesses and the deceased were
indoors when the noise created by the sound of vulgar abuses and
noise of the quarrelling of the appellants attracted them.
58. Thus tempers of the appellants were already running high.
The evidence of Rampal (PW-6) is that the appellants were
quarrelling under the influence of alcohol. The intervention by the
deceased to loudly command the appellants to keep quiet resulted
in the attention and ill temper becoming directed towards the
deceased. It was in this atmosphere of heightened temper that Ajay
Bind picked up the hammer lying at the spot. The other two picked
up the danda and the saria lying there itself. None of these are
dangerous weapons but ordinary tools lying on the spot which
came to be used as weapons. Clearly, the evidence establishes that
there was no pre-meditation and that the violence was a result of
sudden provocation in an ongoing fight between the appellants
from a stranger (the deceased).
59. No motive or intention at all on the part of the accused
persons to inflict injury on the deceased or the injured has been
established. It is noteworthy that none of the alleged weapons were
seized.
60. There is no evidence against the appellants to justify the
finding that the appellants be held guilty of commission of culpable
homicide amounting to murder under Section 302 of the IPC, 1860.
Thus the appellants cannot be held guilty of commission of the
offence of culpable homicide amounting to murder under Section
302 of the IPC.
61. On a consideration of the totality of the facts and
circumstances and in view of the law laid down in (2002) 8 SCC
354, Sekar v. State; (1989) 2 SCC 217, Surinder Kumar v. UT,
Chandigarh; (2006) 11 SCC 444, Pulicherla Nagaraju @
Nagaraja Reddy vs. State of A.P. and (1997) 2 Crimes 185 (Mad.),
Samuthram @ Samudra Rajan v. State of Tamil Nadu, we are of
the considered view that the appellants would be entitled to the
benefit of the Exception IV to Section 300 of the IPC.
Result
62. Therefore, the conviction of the appellants vide impugned
judgment dated 22nd March, 2016 and sentence vide impugned
order dated 29th March, 2016 by the ld. Additional Sessions Judge-
05 (West), Tis Hazari Courts, Delhi in Sessions Case No.44/15
arising out of FIR No.291/2011 registered at P.S. Nihal Vihar
under Sections 323/302/34/174A of the IPC is modified to one
under Section 304 Part II of the Indian Penal Code, 1860.
Order on sentence
63. As noted above, by a common order on sentence dated 29th
March, 2016, on all the three appellants, the trial courts has
imposed the sentence of rigorous life imprisonment under Section
302/34 IPC and to pay a fine of Rs.15,000/- each and in default of
payment of fine, to undergo simple imprisonment for six months
each. The appellants were further sentenced to undergo rigorous
imprisonment for one year under Section 323/34 IPC and to pay a
fine of Rs.1,000/- each and in default of payment of fine, to
undergo simple imprisonment for 15 days each. We have modified
the conviction to offence under Section 304 Part II of the IPC.
Therefore, the order on sentence also requires to be relooked.
64. As per the nominal roll dated 5th July, 2017 of Shankar Bind
(appellant in Crl.A.No.925/2016), as on 5th July, 2017, he has
undergone a sentence of 4 years 3 month and 24 days. The Deputy
Superintendent of Central Jail No.13, Mandoli has reported that his
jail conduct is satisfactory. He has been reported to be 31 years of
age.
65. So far as the nominal roll dated 9th May, 2017 of Ajay Bind
(appellant in Crl.A.No.392/2016), as on 9th May, 2017, he has
undergone a sentence of 4 years 2 months and 18 days. The
Deputy Superintendent of Central Jail No.13, Mandoli has reported
that his overall jail conduct is satisfactory. He has been reported to
be 29 years of age. He has been assigned labour work in the
bakery unit.
66. As per the nominal roll dated 5th July, 2017 of Raju @
Braham Dev Bind (appellant in Crl.A.No.925/2016) is concerned,
as on 5th July, 2017, he has undergone 4 years 4 months and 14
days of rigorous imprisonment. The Deputy Superintendent of
Central Jail No.14, Mandoli, Delhi - 110 093 has reported that his
conduct was satisfactory and he had been assigned the work of
Ward Sahayak. He has been reported to be 40 years of age.
67. As per the evidence on record, all the appellants were
working as kabaris and belonging to the poor strata of the society.
There is no evidence of their having been implicated for
commission of any criminal offence prior to the incident in
question. They have family to support as well.
68. It is noteworthy that in Crl.A.No.392/2016, on the 17 th
August, 2016, Smt. Kranti Devi, wife of the appellant Ajay Bind
was present along with their two sons, the elder being 8 years of
age while the younger one was of 5 years. We were informed on
17th August, 2016 that on account of financial penury, these two
children were not going to school. This aspect of the matter was
considered by us on several dates thereafter including 14 th
September, 2016; 30th September, 2016; 7th November, 2016 and
9th December, 2016.
69. With the assistance of the Delhi Legal Services Authority;
Directorate of Education (South-East); GNCTD of Delhi; the ld.
prosecutors who were appearing before us as well as the Tara
Homes ably represented by Ms. Sweta Sen, the two sons of Ajay
Bind have been given accommodation, boarding and lodging by the
Tara Homes. Furthermore, we are informed that the two sons of
Ajay Bind, with great deal of difficulty, have been admitted to
South Delhi Municipal Corporation School and Laxman Public
School, Delhi.
70. Needless to say that even after the release of Ajay Bind,
given the extreme financial distress of his family, these two
children will continue to reside in the Tara Homes and receive
education in these two schools. Visitation with family shall abide
by the rules of the Tara Homes.
71. The above facts emphasise the extreme penury of the
appellants and their incapacity to pay any fine which may be
imposed. This fact warrants that the imposition of all fines upon
the appellants be set aside.
72. In view of the above, the sentence imposed upon the
appellants for commission of offence under Section 302/34 of the
IPC of rigorous imprisonment of life and fine of Rs.15,000/- each
and in default of fine, to further undergo simple imprisonment of
six months each is hereby set aside and stands substituted with a
sentence of five years rigorous imprisonment. The concurrent
sentence for commission of the offence under Sections 323/34 of
the IPC of rigorous imprisonment for one year and fine of
Rs.1,000/- and in default of fine, to undergo simple imprisonment
for 15 days and the grant of the benefit under Section 428 of the
Cr.P.C. is also modified and substituted by a sentence of one year
rigorous imprisonment. The appellants would be granted the
benefit of Section 428 of the Cr.P.C.
73. We place on record our appreciation on the able assistance
given by Mr. K. Singhal, ld. amicus curiae for Ajay Bind; Ms.
Ashaa Tiwari, ld. APP for the State; Mr. Rahul Mehra, Standing
Counsel for GNCTD; Mr. Sumer Sethi, Advocate, DSLSA and
Ms.Sweta Sen, who has appeared for Tara Homes.
74. We also record our deep appreciation for the service being
rendered by Tara Homes and the noble initiative being pursued by
it.
75. The present appeals are therefore, partly allowed in the
above terms.
76. The children of Ajay Bind (appellant in Crl.A.No.392/2016)
shall continue to be accommodated by Tara Homes as per its
policies and to receive education at the school where they have
been admitted, as noted hereinabove.
77. Let a copy of this judgement be forthwith sent to the
appellants through the Superintendent, Central Jail, Tihar as well as
Ms. Sweta Sen, Project Manager, Tara Homes.
ACTING CHIEF JUSTICE
G.S. SISTANI, J
JULY 07, 2017
aj
