Delhi High Court
Bhagwan Sahai @ Chintu vs State on 17 March, 2017
$~R-1, 2, 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 17th March, 2017
+ CRL.A. 755/2014
MOHAN SINGH @ BUNTY ..... Appellant
Through Mr. R.M. Tufail with Mr. Anwar A.
Khan, Mr. Farooq Chaudhary, Mr.
Vishal Raj Sehhijpal, Ms. Meenakshi
Joshi and Ms. Astha, Advocates
versus
STATE ..... Respondent
Through Mr. Varun Goswami, APP
+ CRL.A. 1480/2014
BHAGWAN SAHAI @ CHINTU ..... Appellant
Through Mr. Anup Kumar and Mrs. Neha
Jaiswal, Advocates
versus
STATE ..... Respondent
Through Mr. Varun Goswami, APP
+ CRL.A. 762/2014
SANJAY DHANKAD @ NAKLI ..... Appellant
Through Mr. R.M. Tufail with Mr. Anwar A.
Khan, Mr. Farooq Chaudhary, Mr.
Vishal Raj Sehhijpal, Ms. Meenakshi
Joshi and Ms. Astha, Advocates
versus
STATE ..... Respondent
Through Mr. Varun Goswami, APP
Crl.A.Nos.755/2014, 1480/2014 & 762/2014 Page 1 of 24
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J. (ORAL)
1. All the three appeals have been heard together. Arguments have been
addressed by the learned counsel for the parties in all the three appeals
and the same are being disposed of by a common judgment.
2. All the three appeals, being Crl.A. Nos.755/2014, 1480/2014 and
762/2014 have been filed under Section 374 of the Code of Criminal
Procedure and are directed against the judgment dated 07.05.2014 and
order on sentence dated 20.05.2014 passed by the learned Additional
Sessions Judge in Sessions Case No.51/2013, arising out of FIR
No.440/2010 registered at Police Station Mukherjee Nagar. By virtue
of the order of conviction, all the appellants were convicted under
Section 302 of the Indian Penal Code (hereinafter referred to as „IPC‟)
and sentenced to undergo rigorous imprisonment for life and to pay a
fine of Rs. 1,00,000/- each, and in default of the payment of fine to
further undergo simple imprisonment for a period of six months.
3. The case of the prosecution as noticed by the learned Trial Court are
as under:
"(2) The case of the prosecution is that on 10.12.2010 at
3:34 PM vide DD No. 25A an information regarding a
quarrel at Hudson Lane Complex, DDA Market was
received in the Police Station Mukherjee Nagar. At 3:55PM
DD No. 26A another information was received from PCR
Call that a snatcher had been beaten by the police and he
was bleeding. Both the said DDs were entrusted to SI
Inderpal who along with Ct. Parmod reached near the place
of incident i.e. Hudson Lane, DDA Market where they came
to know that the PCR Van had taken the injured to BJRM
Hospital and there was no eye witness at the spot.
Thereafter SI Inderpal along with Ct. Parmod reached
BJRM Hospital where they found the injured Manoj @
Vicky admitted and the doctor declared him fit for
statement. SI Inderpal then recorded the statement of Manoj
@ Vicky wherein he informed the police that on 10.12.2010
at about 3:00 PM he along with his friends Kapil Dagar
and Anis Raj were standing on the road of Hudson Lane
Complex Market when Bhagwan Sahai @ Chintu and
Sanjay @ Nakli came there and assaulted him with dandas
on his forearms and legs after which the PCR shifted him to
the BJRM Hospital. On the basis of the above statement of
Manoj @ Vicky initially the FIR was registered under
Section 325/34 IPC."
4. After completion of investigation, charge sheet for the offence under
Section 302 read with Section 34 IPC was filed. The prosecution
examined 27 witnesses in all, besides the exhibits produced during the
trial. The statements of the appellants were recorded under Section
313 of the Code of Criminal Procedure whereby all the appellants
entered the plea of not guilty and claimed trial. No evidence was led
by the appellants in their defence.
5. Mr. Tufail, learned counsel appearing on behalf of the appellants
Mohan Singh @ Bunty and Sanjay Dhankad @ Nakli submits that the
Trial Court has committed grave error by not taking into account the
contradictions in the testimony of various witnesses and the judgment
has resulted in gross miscarriage of justice. He contends that the order
of conviction is based on surmises and conjectures, prosecution has
miserably failed to prove the chain of events and circumstances again
each appellants. The Trial Court has exceeded its jurisdiction and has
gone beyond the evidence placed on record. It is contended that there
is no ocular testimony in the present case. Moreover, the prosecution
has miserably failed to establish the necessary intent and knowledge as
contemplated under Section 299 of the IPC on the part of the
appellants to bring home their case under the ambit of Section 302
IPC. It is contended that the police had received information
regarding a snatcher being beaten up by the public vide DD no.26-A
which matter was not investigated by the police and the appellants
have been falsely convicted under Section 302/34 IPC when no cogent
evidence and only on the basis of shoddy inadmissible evidence.
Counsel submit that the Trial Court has failed to appreciate that the
statement of the deceased Manoj @ Vicky was recorded by the police
on the alleged date of the incident itself, i.e., 10.12.2010 at the hospital
where he was declared fit in the statement Ex.PW-22/A. The deceased
had himself categorically stated that he had received injuries on his
arms and legs by a danda and in this statement, the appellant Mohan
Singh had not been named, resultantly the conviction of the appellant
is not sustainable. Counsel also contend that the Trial Court has relied
strongly on the statements of PW5 Anis Raj, PW6 Kapil Dagar and
PW21 Chandan Kumar, who were all interested witnesses, being
friends of the deceased. The statements so made by these witnesses
are full of improvements and their statements are highly exaggerated
and have created a false version of assault which was not even made
by the deceased in his statement recorded on the fateful day. Counsel
contend that if there had been any covert act by the appellants, the
same would have been reflected in the statement of the deceased
himself and there was no occasion for him to conceal the name of the
appellant Mohan Singh when he was in his senses and declared fit for
making the statement. Counsel contend that the Investigating Officer
had sought for an opinion of the Doctor with regard to the nature of
injuries only on 13.12.2010, i.e., after three days of the incident and
after two days, Section 308 IPC was added on 15.12.2010 which
would show that the injuries suffered by the deceased on 10.12.2010
were simple in nature and apparently the Investigating Officer did not
consider it necessary to seek the opinion of the Doctor. Counsel also
contend that even as per the initial MLC, there was no injury on the
head of the deceased and in the absence thereof, the appellants cannot
be convicted under Section 302 IPC for the reason that he did not
succumb to the injuries inflicted by the appellants.
6. Mr. Tufail contends that the previous animosity between the parties is
a double-edged weapon; it may be a motive for commission of crime;
it may also be a motive for false implication. In the instant case, the
complainant party had a clear motive to falsely implicate the
appellants herein, which aspect was not weighed meticulously and
judicially by the learned Trial Court. Learned counsel contends that
the Trial Court has failed to take into account the testimony of PW-18
Ajay Kumar that the deceased was a member of the Ajay S/o Bali
Ram group and had animosity with the appellants and an FIR
No.186/2008, P.S. Model Town was registered against the deceased
and others by the appellant. Learned counsel also contends that the
Trial Court has ignored the fact that there are series of FIRs and
complaints against the parties and thus, there was a strong motive to
implicate the appellants in a false case.
7. Additionally, Mr. Tufail contends that the first information given to
the PCR also reveals a quarrel on the road. Learned counsel contends
that the Trial Court has failed to take into account that the deceased
did not receive any head injury in the alleged incident of 10.12.2010,
which is also evident from the fact that the deceased was in a fit state
of mind on the date of the incident, i.e., 10.12.2010. He was
conscious and declared fit for making a statement. Learned counsel
for the appellants have placed strong reliance on the testimony of
PW-1 Dr. Neeraj Mishra, Senior Orthopaedics, BJRM Hospital. In his
statement, he has deposed that he examined the patient who had a
swelling on both forearm, both hands and left leg. X-ray was
conducted which showed a fracture of bilateral ulna (both forearms)
and fracture on middle phalanx right little finger from Orthopaedics
and the nature of injury was grievous from Ortho side.
8. Counsel contends that the testimony of PW1 would show that when
the deceased was admitted to the hospital, he did not suffer from any
head injury and thus, the appellant could not have been convicted
under Section 302 IPC. The MLC does not show any head injury or
any bleeding from the head, neither the prosecution has been able to
show that the deceased was at all treated for head injury or was given
any medicine for the same. Counsel further contends that the Trial
Court has failed to take into account that in the present case, there is
no weapon of offence, neither any alleged weapon of offence is
recovered at the instance of the appellants. Neither the alleged dandas
nor the cemented flower pot (Gamla) had been recovered. It is highly
unusual considering the fact that the appellants had removed the
deceased in a rickshaw to the police station. Counsel contend that
another witnesses being PW7 B.S. Mehta, PW20 Raju Mathur and
PW27 Rajender Singh, who were working at the alleged place of
occurrence, had not supported the case of the prosecution and also
failed to identify the appellants before Court. It is also the case of the
appellants that PW4 Devraj and PW19 Rajiv Saini, who as per the
version of the police voluntarily came forward to give the statement
for the first time on 05.01.2011, which delay has been left unexplained
by the prosecution.
9. In the alternate, the learned counsel also contends that the Trial Court
has failed to take into account that the prosecution has failed to
establish any prior motive, meeting of minds, conspiracy or intent
between the appellants to murder the deceased. The Trial Court has
failed to consider that there is no evidence on record that the
appellants were armed with any weapon or even dandas. It is the case
of the prosecution that after the fight or scuffle, danda was picked up
from a nearby thia of dhobi and the cemented flower pot which was
lying there. Thus, the theory of the prosecution with regard to the
alleged murder would fail on this ground alone. Counsel also
contends that the Trial Court has lost sight of the fact that on account
of the scuffle, both the parties sustained injuries, which is evident
from the MLC of Bhagwan Sahai @ Chintu (Ex.PW17/A) of the same
day and from the same hospital where the deceased was removed.
Attention of the Court is also drawn to the rukka, which is Ex.PW2/B
wherein the deceased had made a statement to the effect that Bhagwan
Sahai @ Chintu and Sanjay Dhankad @ Nakli had beat him without
any reason. Even at that time, the deceased himself did not allege that
the intention of the appellants was to kill him.
10. The counsels submit that the Trial Court has failed to take into account
the settled position of law that in this case, there was no
pre-meditation, no alleged weapon of offence, no conspiracy, no
meeting of minds. Counsels strongly urge that the Court should have
taken into account that the incident pertains to 10.12.2010 and the
deceased died after nine days of the incident i.e. on 18.12.2010. Thus,
no case under Section 302 IPC would be made out.
11. At this stage, Mr. Tufail and Mr. Kumar, learned counsel for the
appellants state, on instructions, that the appellants do not wish to
contest the matter on merits, but submit that no case under Section 302
IPC is made out and at best the appellants could have been convicted
under Section 304 Part II IPC and the appellants should be released on
the period already undergone, which is more than six years each.
12. Per contra, Mr. Goswami, learned APP for the State submits that the
prosecution has been able to prove its case beyond any shadow of
doubt. He submits that the deceased in his statement has named the
appellants. The presence of the appellants at the spot of the incident is
not denied and disputed; one of the appellants had sustained injury.
His presence is thus, established without any doubt. Moreover, the
factum of scuffle is duly proved by the presence of the eye witnesses,
PW4 Devraj, PW5 Anis Raj, PW6 Kapil Dagar, PW19 Rajiv Saini and
PW21 Chandan Kumar. PW1 Dr. Neeraj Mishra had recommended
X-ray of the scalp. The mere fact that a flower pot was used would
leave no room for doubt to show that the appellants intended to kill the
deceased. Thus, there is no infirmity in the judgment and order on
sentence of the Trial Court. Counsel contends that the intent of the
appellants also stands established by the fact that they did not allow
the bye-standers to come to the aid and rescue of the deceased.
13. We have heard learned counsel for the parties, considered their rival
submissions, carefully examined the testimonies of the witnesses on
record and the impugned judgment rendered by the Trial Court. In
order to deal with the contentions of both the parties, it would be
appropriate to examine the testimonies of material witnesses. The
prosecution has relied upon PW4 Devraj, PW5 Anis Raj, PW6 Kapil
Dagar, PW19 Rajiv Saini and PW21 Chandan Kumar as eye
witnesses.
14. PW4 Devraj in his examination-in-chief deposed that on the fateful
day of 10.12.2010, at about 3.00 PM, he alongwith his friend Rajeev
Saini (PW19) was taking tea at Sainik Snacks, Hudson Lane, DDA
Market where he saw that just in front of the Sainik Snacks shop,
some hot talks were going on between some boys and thereafter he
saw that two boys started beating one boy with dandas and that boy
was trying to save himself from the danda blows with his hands.
PW4 further deposed that two other boys tried to rescue the said boy
and the owner of Sainik Snacks and one more shopkeeper also tried to
intervene. Meanwhile, one more associate of the assailants came there
and joined the assailants and started giving beatings to the said boy.
The witness has further deposed that the persons, who tried to
intervene to rescue the said boy, were threatened by the said three
assailants and dandas were shown to them as a result of which none
came forward for the rescue of the boy and they all gave beatings to
the said boy mercilessly. He has also deposed that the third boy, who
had joined his associates later on, lifted a cemented flower pot
(Gamla) having a plant in it and hit the same on the head of the said
boy, who after receiving number of danda injuries was lying on the
Road. According to him, someone informed the police and the said
three boys (assailants) put the injured boy in a rickshaw and took him
away, saying that he was trying to snatch their gold chain. The three
assailants continued to give beatings to the injured boy even after
putting him in the rickshaw.
15. PW19 Rajiv Saini, another eye witness to the occurrence deposed on
similar lines as deposed by PW4 Dev Raj. PW19 deposed that on the
fateful day of 10.12.2010 at about 3:00 PM he along with his friend
Dev Raj (PW4) were present at the Sainik Snacks at Hudson Lane,
DDA Market for taking tea etc. and when they were taking tea in front
of the Sainik Snacks they heard noise of quarrel and there were two
boys who were abusing another boy (since deceased) and also gave
beatings to him by the fist and leg blows. It was further deposed by
PW19 that after some time one more person reached to the spot and
gave beatings to the deceased and brought him to the thia of
washer-man where one assailant (appellant herein) took out a danda
from the roof of hut of the washer-man and gave danda blows to the
deceased and another assailant (appellant herein) also took one danda
from the same place and gave danda blows to the deceased. PW19
further deposed that the deceased was requesting assailants (the
appellants herein) not to give danda blows to him but all the three
appellants continued to give danda blows to the deceased. It was also
deposed by PW19 that one appellant took a cemented pot (Gamla)
from the outside of the nearby house and hit the same on the head of
the deceased and the cemented pot (Gamla) had broken into pieces
after which one of the friend of the deceased made a call to the Police.
Thereafter, the aforesaid three appellants put the deceased in a
rickshaw and took away the deceased on the pretext that the deceased
had snatched their golden chain and they were taking him to the Police
Station. It was further deposed by PW19 that after ten minutes a PCR
van came there and police made inquiries from them and they told the
aforesaid facts to them. PW19 also deposed that three friends of the
deceased were also present there and he came to know their names as
Kapil (PW6), Anis (PW5) and Chandan (PW21) and he also came to
know the name of appellants as Nakli, Chintu and Bunty.
16. In this case, it is the case of the prosecution that at the time of scuffle,
the deceased was accompanied by his friends namely PW5 Anis Raj,
PW6 Kapil Dagar and PW21 Chandan Kumar. The testimonies of all
the aforesaid witnesses remained consistent as to the presence of the
appellants at the spot who corroborated the case of the prosecution on
all material aspects. There are no discrepancies in their statements
about the presence of the appellants on the fateful day. They all spoke
in one voice that it was the appellants who were present at the spot and
there were heated arguments which resulted in a scuffle and led to the
unfortunate incident. All the witnesses deposed that on 10.12.2010 at
about 3.00 PM, they alongwith the deceased Manoj reached DDA
Market, Hudson Lane for tea. In the meantime, PW21 Chandan
Kumar received a call on his mobile phone and he went towards the
gate to attend the call in privacy and left PW5 Anis Raj, PW6 Kapil
Dagar along with the deceased Manoj. As per the testimony of all the
witnesses, the appellants Sanjay Dhankad and Bhagwan Sahai who
were known to them came there and started an argument with the
deceased and said "Aaj tujhe nahi chhorenge, tu bahut dino se bach
raha tha". It was also deposed by all the witnesses that the appellant
Bhagwan Sahai brought a danda from a nearby kiosk (thia) of a
washer-man and gave danda blows to the deceased. The witnesses
testified that the deceased tried to save his head by his hands and
sustained injuries. The witnesses further deposed that in the
meanwhile, the appellant Sanjay @ Nakli also brought a danda from
the same place and gave danda blows to the deceased and threatened
people who were around by saying "Jo beech me aaya, uska bhi yahi
haal karenge". Thereafter, the appellant Mohan Singh @ Bunti came
there and also joined other appellants and gave beatings to the
deceased and said "Aaj nahi chorenge ise". They have further deposed
that thereafter, the appellant Mohan Singh picked up a cemented
flower pot (Gamla) which was kept there and hit the same on the head
of the deceased who was lying on the road. It was deposed by PW21
Chandan Kumar that he made a call to 100 number. PCR reached to
the spot and interrogated the people found at the spot. It is noteworthy
that the deceased was already removed to the BJRM hospital by the
appellants before arrival of PCR officials at the spot.
17. Besides the above public witnesses, PW3 W/HC Ranjana proved
copies of DD No. 25A and 26A which are Ex.PW3/A and Ex. PW3/B
respectively. PW2 HC Arvind Kumar proved the computer generated
copy of FIR which is Ex.PW2/A and his endorsement on rukka which
is Ex.PW2/B. PW8 SI Prem Singh has proved PCR Forms, copy of
which are Ex.PW8/A, Ex.PW8/B, Ex.PW8/C and Ex.PW8/D. PW26
SI Inderpal Singh was the initial Investigating Officer who recorded
the statement of the deceased, which is Ex. PW22/A. The statement of
the deceased was proved by PW22 Ct. Pramod Kumar and his
endorsement on the statement is Ex. PW22/B. PW24 Ins. Rajesh
Dahiya was the subsequent Investigating Officer of the present case
who has proved the arrest memo of the appellant Mohan Singh which
is Ex.PW24/D. PW12 SI Ranbir Singh proved the arrest memos of the
appellants Bhagwan Sahai and Sanjay Dhankad, copies of which are
Ex.PW12/A and Ex.PW12/C respectively.
18. In the present case, the prosecution has produced convincing evidence
to establish the guilt of the appellants. It is on record that the incident
took place at about 3:00 PM and PCR calls were made at 3:28 PM
after which the injured were shifted to BJRM Hospital and the
information was given to the local police and after treatment the
statement of the deceased Manoj was recorded by SI Inderpal (PW26),
the Rukka (Ex.PW22/A) was prepared at 7:45 PM and the FIR
(Ex.PW2/A) was promptly registered at 8:05 PM as is evident from
the copy of FIR (Ex.PW2/A) wherein the appellants have been
specifically named particularly Sanjay Dhankad and Bhagwan Sahai.
It is evident from the MLC (Ex.PW1/A) that on 10.12.2010 at 6:30
PM the deceased Manoj was declared fit for statement and thereafter
the statement of the deceased was recorded by PW26 SI Inderpal
Singh (initial Investigating Officer) which is Ex.PW22/A, which
formed the basis of rukka (Ex.PW22/A) and FIR (Ex.PW2/A).
19. Before deciding the appeals in hand, we deem it appropriate to anlayse
the medical evidence in detail. In this regard testimonies of PW1 Dr.
Neeraj Mishra and PW16 Dr. V. K. Jha assume importance. PW1 Dr.
Neeraj Mishra, who has proved the MLC of the deceased in his
examination-in-chief deposed that on 10.12.2010, the deceased was
referred by the CMO to Ortho SR and Surgery SR where he examined
the deceased. PW1 further deposed that the deceased was having
swelling on both forearm, both hands and left leg, as a result X Ray of
both forearms, both hands, bilateral foot and left leg was conducted
and after going through the X Ray and physical examination of the
patient, as per the report given by Radiologist Dr. Shipra Rampal, it
was observed by PW1 that the deceased had fracture of bilateral ulna
(both forearms) and fracture middle phalanx right little finger from
Orthopedics. PW1 opined that the nature of injury was grievous from
Ortho side and the deceased was referred to SR Surgery for giving the
final opinion. PW1 also proved his opinion dated 16.12.2010 on the
MLC Ex.PW1/A. It is noteworthy to mention that a specific court
question which was put to PW1 in his cross-examination with respect
to the head injuries reads as under:
"Court Question: It is put to you that when you examined
whole body of the patient, did you find any injury on the
head of the patient, if yes, did you mention in the MLC?
Answer: After going through the MLC, the witness replies
that as per record, abrasions and bruises were present on
the forehead, for which I referred the patient to Surgery SR
to rule out head injury."
20. On the nature and type of injury suffered by the deceased, we have
already referred to the statement of Dr. Neeraj Mishra (PW1).
However, to complete the medical evidence, we would like to refer to
the post mortem report (Ex.PW16/A) which was proved by Dr. V. K.
Jha (PW16), who had conducted the post mortem on the deceased on
19.12.2010 and had found the following injuries on the body of the
deceased:
General examination:
1. Multiple healed abrasions on front of left leg, right leg, right
medial malleolus, left arm and face, right face and right arm.
2. Fracture deformity upper end left forearm.
3. Fracture deformity proximal phalanges of ring finger right
hand.
4. Healed bruise on upper lip.
On internal examination:
There was subscalp hemotoma on frontal region, fracture left
frontal bone and fracture anterior cranial fossae and in stomach
there was yellowish fluid was present.
21. After post-mortem examination, PW16 Dr. V. K. Jha opined the cause
of death as shock and craniocerebral damage as a result of multiple
fracture sustained and head injury subsequent to blunt force diverted
upon head by other party and all the injuries were ante-mortem in
nature .
22. PW16 Dr. V. K. Jha, the Autopsy Surgeon has not opined as to
whether the injuries were sufficient to cause death in the ordinary
course of nature. It is noteworthy to mention that PW16 in his cross-
examination stated that he cannot give any definite opinion with
regard to the age of the head injury i.e. subscalp haematoma on frontal
region, fracture left frontal bone and fracture anterior cranial fossae.
23. The opinion of the Autopsy Surgeon is to be appreciated in the light of
the circumstance that the death occurred nine days after the receipt of
the injuries, and during this period the deceased had been operated
upon in the Hospital. The aforesaid medical opinion, corroborates that
the appellants did not act in a cruel manner, on the contrary, the
appellants put the deceased in a rickshaw and took him to Police
Station Mukherjee Nagar and in case their intention was to kill the
deceased, they would not have taken the injured to the hospital when
he was alive and conscious, which is also evident from the fact that the
statement of the deceased was recorded in the hospital the same day.
The MLC did not show that there was any grievous injury which is
evident upon reading the testimony of PW1 Dr. Neeraj Mishra, who
did not even recommend X-ray, MRI or a Scan of the head.
Materially, even the deceased in his statement recorded on the same
day did not complain of any head injury and in case even not named
the appellant Mohan Singh @ Bunty. There is, therefore, no escape
from the conclusion that the prosecution had failed to prove beyond all
manner of doubt that the injuries on the body of the deceased, was
sufficient to cause death in the ordinary course of nature.
24. Chapter XVI of the Code deals with the offences affecting the human
body. Section 299 defines 'culpable homicide'. Section 300, on the
other hand, defines 'murder'. IPC recognises and categories culpable
homicide into three categories. Section 299 which defines "culpable
homicide." This offence consists in the doing of an act:
(a) with the intention of causing death; or
(b) with the intention of causing such bodily injury as is likely
to cause death; or
(c) with the knowledge that the act is likely to cause death.
25. Knowledge and intention should not be confused. Section 299 in
defining first two categories does not deal with the knowledge
whereas it does in relation to the third category. Also, the import of
the term „likely by such act to cause death‟. Here 'likely' would mean
probably and not possibly. When an intended injury is likely to cause
death, the same would mean an injury which is sufficient in the
ordinary course of nature to cause death and the death will be the most
probable result.
26. Also, the first clause of Section 300 reproduces the first part of
Section 299. Therefore, ordinarily if the case comes within Clause (a)
of Section 299, it would amount to murder. However, if one of the
special exceptions in Section 300 applies, the offence would be
culpable homicide not amounting to murder. Several exceptions are
carved out therefrom. Exceptions specified therein are also subject to
certain exceptions as contained in the provisos appended thereto; one
of them is Exception 4 which reads as under:
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 offenders 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.
27. This brings us to the moot question whether the present case is one of
deliberate or intentional killing resulting in the injuries, which would
be a case of murder under Section 302, IPC; or, unintentional.
Further, if it is a case of unintentional and not premeditated act,
whether the appellants had requisite and required knowledge to invoke
and punish the appellants for murder by applying the Clause Four, or
the appellants had committed a lesser offence, i.e. culpable homicide
not amounting to murder or an offence of an even lower degree.
28. In the case of Virsa Singh v. State of Punjab reported in 1958 Cri LJ
818, it was held by the Hon‟ble Supreme Court that the prosecution
must prove the following facts before it can bring a case under
Section 300 of IPC, which reads as under:
"First, it must establish, quite objectively, that a bodily
injury is present;
Secondly, the nature of the injury must be proved; these are
purely objective investigations.
Thirdly, it must be proved that there was an intention to
inflict that particular bodily injury, that is to say, that it was
not accidental or unintentional, or that some other kind of
injury was intended. Once these three elements are proved
to be present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just
described made up of the three elements set out above is
sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential
and has nothing to do with the intention of the offender."
29. In Jai Prakash vs. State (Delhi Admn.) reported at (1991) 2 SCC 32,
it was elucidated by the Hon‟ble Supreme Court that knowledge is
bare awareness and not something as intention, for the latter requires
something more than a mere foresight of the consequences namely,
the purposeful doing of a thing to achieve a particular end. The
relevant para 13 reads as under:
"13.....when a person commits an act, he is presumed to
expect the natural consequences. But from the mere fact that
the injury caused is sufficient in the ordinary course of
nature to cause death, it does not necessarily follow that the
offender intended to cause the injury of that nature.
However, the presumption arises that he intended to cause
that particular injury. In such a situation the court has to
ascertain whether the facts and circumstances in the case
are such as to rebut the presumption and such facts and
circumstances cannot be laid down in an abstract rule and
they will vary from case to case. However, as pointed out in
Virsa Singh case the weapon used, the degree of force
released in wielding it, the antecedent relations of the
parties, the manner in which the attack was made that is to
say sudden or premeditated, whether the injury was
inflicted during a struggle or grappling, the number of
injuries inflicted and their nature and the part of the body
where the injury was inflicted are some of the relevant
factors. These and other factors which may arise in a case
have to be considered and if on a totality of these
circumstances a doubt arises as to the nature of the
offence, the benefit has to go to the accused..."
30. In Sandhya Jadhav v. State of Maharashtra reported in 2006 Cri LJ
2111, the Hon‟ble Supreme Court came to the conclusion that the
Courts are bound to consider a large number of factors for arriving at
an opinion as to whether the fight was sudden or not and/or whether
the accused has taken undue advantage of the situation in the
following words:
"....The help of Exception 4 can be invoked if death is
caused (a) without premeditation; (b) in a sudden fight; (c)
without the offender having taken undue advantage or acted
in a cruel or unusual manner; and (d) the fight must have
been with the person killed. To bring a case within
Exception 4 all the ingredients mentioned in it must be
found. It is to be noted that the "fight" occurring in
Exception 4 to Section 300 IPC is not defined in IPC. It
takes two to make a fight. Heat of passion requires that
there must be no time for the passions to cool down and in
this case, the parties have worked themselves into a fury
on account of the verbal altercation in the beginning. A
fight is a combat between two or more persons whether with
or without weapons. It is not possible to enunciate any
general rule as to what shall be deemed, to be sudden
quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the proved
facts of each case. For the application of Exception 4, it is
not sufficient to show that there was a sudden quarrel and
there was no premeditation. It must further be shown that
that the offender has not taken undue advantage or acted
in cruel or unusual manner. The expression "undue
advantage" as used in the provision means "unfair
advantage".
(Emphasis Supplied)
31. In a recent judgment of this Court, Shiv Kumar Vs. State (NCT) of
Delhi reported at 2014 (2) JCC 1282, this court relied upon the view
taken by the Hon‟ble Supreme Court in Mahesh Balmiki versus State
of Madhya Pradesh, (2000) 1 SCC 310 wherein the requirements of
Exception 4 to Section 300 IPC were discussed and reads as under:
"...The requirements of this exception are:
(a) without premeditation in a sudden fight;
(b) in the heat of passion upon a sudden
quarrel;
(c) the offender has not taken undue advantage;
and
(d) the offender has not acted in a cruel or
unusual manner.
Where these requirements are satisfied, culpable
homicide would not be murder."
32. The present appeals are to be decided on the touchstone of the law laid
down by the Hon'ble Supreme Court in the aforegoing para. After
analysing the evidence on record, it is evidently clear that the
occurrence has the features of an incident in which the injuries are
inflicted in a sudden fight without pre-meditation in the heat of
passion upon a sudden quarrel within the contemplation of Exception
4 to Section 300 of IPC, which takes the case out of the purview of
murder.
33. As defined in the Exception 4, there was no premeditation on the part
of the appellants; the appellants were not armed with any weapon.
There is no evidence that the appellants made special preparation for
assaulting the deceased with the intent to kill him. There is no dispute
that the appellants assaulted deceased in such a manner that the
deceased suffered grievous injuries, but considering the weapon of
offence in mind i.e. danda, which was picked up after the scuffle from
a nearby thia of dhobi and the cemented flower pot which was lying
there and the fact that the appellants did not act in a cruel or unsual
manner, did not take undue advantage. The medical evidence further
establishes that when the deceased Manoj was brought to BJRM
Hospital and also when he was shifted to Sushruta Trauma Center, he
was conscious and oriented. Furthermore, it may be noticed that the
appellants had driven the deceased to the BJRM Hospital and did not
run away. In case the appellants had any intention or desire to kill the
deceased Manoj, and had intentionally beaten him, their conduct post
the occurrence would have been different. The aforesaid facts when
analyzed in conjunction with the attending circumstances enwombing
the present incident, strongly dispels the possibility that the appellants
harboured an intention to kill the deceased. Therefore, the act of the
appellants did not amount to murder; the nature of the offence
committed would be culpable homicide not amounting to murder.
Hence, the present case is squarely covered under Section 304 of IPC
which reads as under:
"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."
(Emphasis Supplied)
34. In the case of Jharmal and Others Vs. State of Haryana reported in
1994 SCC (Crl.) 593, wherein the Hon'ble Apex Court held that where
the deceased sustained injuries on the head due to blow with an iron
pipe and died after 17 days due to septicimia, the appellant could have
been convicted only under Section 304 Part II of IPC.
35. Applying the law to the facts of the present case, we are persuaded to
accept the alternative limb of submission advanced by the learned
counsel for the appellants that the present case would fall within the
ambit of Section 304 Part II of IPC. The ends of justice would be met
if we modify the sentence awarded to the appellants and sentence
them to undergo rigorous imprisonment for a period of 7 years and 6
months.
36. Consequently, the appeals are allowed in part, the conviction and
order on sentence recorded by the Trial Court is modified to the extent
indicated hereinabove. The appeals stand disposed of. The fine
imposed upon the appellants and the default sentence awarded to them
shall remain unaltered.
37. The Trial Court record be sent back along with a copy of this
judgment.
38. Copy of this judgment also be sent to the Superintendent-Central Jail,
Tihar for updating the jail record.
G. S. SISTANI, J.
VINOD GOEL, J.
MARCH 17, 2017
//pst
