Delhi High Court
Kamaljeet vs State on 23 May, 2017
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 23rd May, 2017
+ CRL. A. 453/2013
KAMALJEET ..... Appellant
Through : Mr. Pramod Kumar Dubey, Ms. Namita
Wali and Mr. Akshay Sehgal, Advocates
versus
STATE ..... Respondent
Through : Mr. Rajat Katyal, APP
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE PRATHIBA M. SINGH
G.S.SISTANI, J. (ORAL)
1. This is an appeal preferred under Section 374 of the Code of Criminal
Procedure, 1973 („CrPC‟) filed against the judgment dated 31.03.2012 by
which the appellant stands convicted for the offence punishable under
Section 302/201 of the Indian Penal Code („IPC‟) and order on sentence
dated 08.06.2012 by which the appellant has been sentenced to
imprisonment for life with a fine of Rs.2,000/-, in default of payment of
fine, to further undergo simple imprisonment for three months. The
appellant also stands convicted and sentenced to rigorous imprisonment for
3 years for an offence punishable under Section 201 of IPC with a fine of
Rs.1,000/- and in default of payment of fine, to further undergo simple
imprisonment for one month.
2. The case of the prosecution, as noticed by the Trial Court reads as under:
"1) On 04.02.2010 DD no.4A was registered in PS
Mahendra Park regarding lying of a dead body near
Kudedan. SI Madan Mohan along with Ct. Rakesh reached
at the spot i.e. Opp. H.No.1050, near Kudedan, A-Block,
Jahangirpuri, Delhi where one dead body of a male, aged
about 30/32 was lying and there were injuries on the head
of the dead body. The dead body was wearing pant and
shirt. The right hand of dead body was having name of Anil
Kumar and Ram Pal Singh along with four other names.
The dead body was wrapped in an old quilt and dari. On
search of dead body, one wrist watch, five keys, one ten
rupees coin, one spectacle with cover having Eye Tech
Optical written on it were recovered. The dead body could
not be identified even interrogation in the neighbourhood.
FIR was registered u/s 302/201 IPC. On 05.02.2010, one
public person identified the photograph of deceased as that
of Anil, brother of Rajni. Inspector Heman Kumar reached
at the jhuggi of Rajni at N-21-B-81, jhuggi Moujiwala
Bagh, Lal Bagh where Rajni identified the photograph of
deceased as that of his brother Anil, Rajni also disclosed
that deceased Anil used to reside with his friend Kamaljeet
@ Dhammal at near the thiya of rickshaws near Hans
Cinema Kudedan. Inspector Hemant Kumar alongwith
Rajni reached at kudedan, near Hans Cinema, GTK Road
where one person was trying to slip away on seeing the
police. Rajni identified that person as Kamaljeet @
Dhammal. Accused Kamaljeet @ Dhammal was
apprehended. On interrogation, accused Kamlajeet
confessed his guilt and disclosed that he was owing money
towards Anil and Anil was demanding his money. On
03.02.2010 accused killed the deceased with the help of
concrete slab and his body was thrown in A-Block, near
Kudedan, Jahangirpur. Accused was arrested and after
completion of investigation, chargesheet was filed in the
Court u/s 302/201 IPC."
3. To bring home the guilt of the appellant, the prosecution examined 21
witnesses in all. No evidence was led by the appellant in his defence.
Statement of the appellant was recorded under Section 313 CrPC wherein
he denied all the allegations against him. Charge under Section 302/201 of
IPC was framed against the appellant to which he pleaded not guilty.
4. At the outset, learned counsel for the appellant submits that he does not
challenge the order of conviction but contends that a case under Section
302 IPC is not made out as the incident took place on the spur of the
moment and the only one injury was inflicted on the deceased. The
appellant did not act in an unusual or cruel manner and there was no
weapon of offence as for the prosecution the appellant had hit the deceased
with a concrete slab which resulted in his death. It is prayed that the
appellant has been incarcerated for a period of more than 8 years 11 months
and there was no pre-meditation in the fight which had erupted in the spur
of the moment on a dispute pertaining to a small amount of Rs.4,000/- in
all, thus, the order of sentence should be modified to the period already
undergone.
5. Mr.Dubey has also contended that the trial Court has passed the judgment
and order of sentence based on presumption, conjectures and surmises.
There are various discrepancies in the testimonies of the witnesses. The
trial court has failed to apply the law in the right perspective.
6. Per contra, Mr.Rajat Katyal, learned counsel for the State submits that no
doubt a single injury has caused the death of the deceased, however, it was
well within the knowledge of the appellant and the appellant had every
intention to kill the deceased as he used a concrete slab and hit the
deceased on the vital part of the body, i.e. his head, which resulted in his
death. Hence, no infirmity can be found in the judgment of the Trial Court
which has rightly convicted the appellant under Section 302/201 IPC.
7. We have heard the learned counsel for the parties, examined the Trial Court
record and also considered their rival submissions.
8. The Trial Court in the present case, has convicted the appellant on the basis
of circumstantial evidence. The prosecution had established that the
deceased and the appellant/accused knew each other and the deceased used
to sleep with the accused at the garage near the kudedan (dustbin) at night.
The appellant owed Rs.4,000-5,000/- to the deceased. The appellant was
last seen with the deceased on 03.02.2010 at around 7 PM and in the
morning of 04.02.2010, the employer of the deceased Satpal (PW-6) found
the deceased missing from the chole-bhature rehri. The appellant was
found sitting near a wooden box of Satpal (PW-6) and was shivering. PW-
6 and Bhagwati Prasad (PW-5) had seen the deceased demanding
repayment of his money. It was further established that the appellant had
tried to run away upon seeing the police, when he was overpowered and
arrested by the police. The appellant/accused had got recovered the
weapon, i.e. a piece of concrete slab, blood-stained clothes as well as
rickshaw-rehri used to ferry the dead body of the deceased from the place
of commission of the crime to the place where the body was disposed. The
medical evidence also corroborated the story of the prosecution as
Dr.Kulbhushan Goel (PW-21) opined that the injury resulting the death of
the deceased could have been occasioned from the slab used.
9. The Trial Court had found that the circumstantial evidence conclusively
proved the guilt of the accused/appellant herein that there was motive
behind the commission of the offence and also the chain of events clearly
pointed towards the guilt of the accused and causing of the disappearance
of evidence with the intention of screening himself from legal punishment.
10. We proceed to analyse the testimonies of the prime independent
prosecution witnesses, i.e. Rajni (PW-2) (sister of deceased), Ram Niwas
(PW-4), Bhagwati Prasad (PW-5) and Satpal (PW-6).
11. Ram Niwas (PW-4) had deposed that in 2010, though he did not remember
the date and month, he was going to drop his daughter to her school. There
was one dustbin and he saw public persons collected there. Upon going to
the dustbin, he noticed that a dead body of a male person was lying there.
He called the police from his mobile number. Upon a leading question
being put to him, the witness stated that the call was made by him on
04.02.2010.
12. Rajni (PW-2) has deposed that the deceased was her real brother and used
to work at the stall of Satya Pal near Hans Cinema, Lal Bagh. She
identified the accused/appellant as the friend of her deceased brother, who
used to work in the rickshaw rehdi of the garage of Bhagwati Prasad near
Hans Cinema. The deceased used to sleep with the appellant at the garage
near the kudedan (dustbin) and both the appellant and the deceased used to
come meet PW-2 at her jhuggi. She deposed that at about 7:15 PM on
05.02.2010, some police official came to her jhuggi and showed her the
photo of injured condition of her brother. She had identified her brother in
the photo. She along with the police officials came to near Hans Cinema
and the appellant was standing there. On seeing them, the appellant tried to
flee, but was overpowered by the police officials.
13. During cross-examination, PW-2 stated that Satpal used to prepare chole-
bhature in his stall. The appellant used to visit the jhuggi of the witness.
The deceased used to inform PW-2 that the appellant had borrowed Rs.4-5
thousand from him.
14. The next prime witness is Bhagwati Prasad (PW-5), who deposed that he is
running a rickshaw garage near Hans Cinema dustbin and used to provide
rickshaws and rickshaw-rehris on daily hire basis. In the evening time, the
rickshaw pullers return the rickshaw at his garage. All the rickshaws
during the night hours are tied with a chain and locked. PW-5 used to hand
over the keys of the lock to the appellant. The appellant used to stay at his
garage in the night and in return, the witness used to provide him food.
Deceased used to work as a maid [sic:male] servant at a chole-bhature
rehri of Satpal in the day and stayed at his garage in the night with the
appellant. The appellant had borrowed some money from the deceased.
Both of them were in a habit of taking liquor. The witness used to mark his
name and the name of his son Jugnu on the rickshaws and rehris. On
03.02.2010, PW-5 had left the deceased with the appellant at around 9 PM
at the garage. Upon his return in the morning, at about 8:30 AM on
04.02.2010, the witness found both the appellant and the deceased missing.
The chain tied with the rickshaws was broken and one rickshaw bearing
Sl.No. 14 was missing. He presumed that the deceased and the appellant
might have taken the same. The same day, PW-5 left for Aligarh by train
and returned on the morning of 06.02.2010, when he learnt about the
murder of the deceased by the appellant and the dumping of the body at
Jahangirpuri khatta. He came to know that his rickshaw had been seized by
the police of Mahindra Park Police Station. On 08.02.2010, the witness
went to the police station and identified his rickshaw rehri no.14 and also
found that one of the phatta (plank) of the rehri was missing. The witness
duly identified the rehri before the Trial Court.
15. PW-5 was extensively cross-examined by the counsel for the
accused/appellant herein. During his cross-examination, he denied the
assertion that the appellant had stopped taking liquor 4-5 years back and
stated that both the deceased and the appellant used to take liquor daily. He
admitted that the appellant had not taken money from the deceased in his
presence, but the deceased used to demand repayment of his money from
the appellant in his presence. When his statement was recorded by the
police (Ex.PW-5/D1), he claimed to have stated that the appellant had
borrowed money from the deceased. The witness was then confronted with
his statement (Ex.PW-5/D1) where it was not so recorded.
16. The testimony of Satpal (PW-6) also establishes that the deceased was last
seen with the appellant. In his deposition before the Trial Court, PW-6
stated that he used to run a chole-bhature rehri near Shiv Temple, Bada
Bagh. The deceased used to work at his rehri as a helper and used to be
paid Rs.100 as daily wage. Both the accused/appellant and the deceased
used to sleep near the dustbin. On 23.02.2010 at around 7 PM, PW-6
handed over the keys of his wooden box to the deceased; the box was used
for keeping utensils and the clothes of the deceased and PW-6 and was put
near the dustbin. The appellant was also present at the place. On
04.02.2010 at about 5 AM, the witness went to his rehri and found the
deceased missing, while the appellant was sitting near the wooden box and
was shivering. Upon enquiry, appellant informed PW-6 that the deceased
had run away with his clothes. Thereafter, the witness went to the house of
the sister of the deceased and enquired about his whereabouts. She was
unable to tell about the deceased. The witness came back and broke open
the lock of the wooden box and took out the utensils. On 06.02.2010, the
police came and enquired whether the deceased was working with him, to
which he answered in the positive. The police informed that someone had
murdered him and left from there. PW-6 further deposed that he had seen
the deceased exchanging hot words with the appellant as he was not
returning money borrowed from the deceased. He did not know the
amount owed by the deceased was owing towards the accused.
17. When Satpal (PW-6) was cross-examined, he stated that the deceased used
to come to his rehri at 6 AM in the morning and he used to wind up his
work at about 4 - 4:30 PM in the evening. He did not know where the
deceased used to go after finishing the work. He affirmed that the deceased
and the appellant used to sleep in their rickshaw garage. He denied that 10-
12 persons used to sleep in the garage in the night also. He further stated
that the deceased had not given money on loan to anyone.
18. Satpal (PW-6) also stated during his cross-examination that he had stated to
the police about the appellant informing about the deceased running away
with his clothes and that he had went to the house of the sister of the
deceased to enquire about his whereabouts to no avail. At this stage, the
witness was confronted with his earlier statement under Section 161 CrPC
(Ex.PW-6/DA) wherein it is not so recorded. He also alleged to have stated
to the police that on 06.02.2010, the police had come to him and asked
whether the deceased worked with him, the fact that he answered in the
affirmative and that the police informed that someone had murdered the
deceased. Again, the witness was confronted with Ex.PW-6/DA, where it
is not recorded.
19. We may add that Virender Kumar (PW-3) has also deposed that he had
identified the dead body of the deceased as that of his relative Anil Kumar
at BJRM Hospital on 06.02.2010.
20. It cannot be gainsaid that investigation also plays an important part in
criminal trials. Accordingly, we proceed to analyse the testimony of the
police witnesses.
21. Const.Abul Hassan (PW-18) has deposed that he was on duty on 03-
04.02.2010 between 8 PM and 8 AM at Police Command Room. On
04.02.2010 at about 7:28 AM, he received a call from Ram Niwas (PW-4)
that a dead body was lying near Kudey Daan near house no.1051, A-Block.
He passed the information at District Net, who further passed on the
information to the police station.
22. The message forwarded by PW-18 was received by HC Sadhu Ram (PW-
11) (Duty Officer) on 04.02.2010 at about 7:30 AM that a dead body was
recovered near dustbin at A Block Jahangir Puri near house no.1051. He
recorded DD No.4-A (Ex.PW-7/A). The DD No.4-A (Ex.PW-7/A) was
received by SI Madan Mohan (PW-7).
23. SI Madan Mohan (PW-7) had deposed before the Trial Court that he had
received the DD No.4-A (Ex.PW-7/A) in the police station from the Duty
Officer. He along with Const. Rakesh (PW-13) reached the place of
occurrence, i.e. opposite house no. 1051, A Block, near Kudedaan where
he found a dead body of an unknown person aged about 30-32 years. The
deceased was having injury marks on his forehead and his head with some
sharp edged weapon. A part of the brain had also come out from the head
of the body. The body of lying covered with an old quilt and dari made of
old clothes. Blood was lying on the floor. He deposed that from the
condition of the body it appeared that after murder, he was thrown there.
Ins.Hemant Kumar (PW-20) also came there. PW-7 stated that he prepared
the rukka (Ex.PW-7/B) and sent the same through Const. Rakesh (PW-13)
for registration of FIR. After registration of FIR, the investigation was
entrusted to Ins.Hemant Kumar (PW-20), who called the Crime Team. The
witness has deposed in respect of the investigation by the Crime Team and
seizure of numerous articles from the personal search of the deceased,
blood earth, earth control, quilt, dari and other clothes, of which we need
not extract in detail. In his cross-examination, PW-7 has stated that the
kudedaan belongs to the MCD, does not have any gate and no enquiry was
conducted from sweeper or supervisor of MCD.
24. HC Jagmohan (PW-1) (Duty Officer between 8 AM to 4 PM on
04.02.2010) has also deposed on similar lines, with Cont. Rakesh (PW-13)
coming to the police station and handing over original rukka. PW-1
recorded DD No.9-A (Ex.PW-1/A) and registered the FIR No.25/10 under
Sections 302/201 IPC.
25. Ins.Hemant Kumar (PW-20) (IO) has deposed that on 04.02.2010, the
investigation in the case was entrusted to him after the registration of the
FIR. He inspected the file along with SI Madan Mohan (PW-7), who was
already investigating the case. The site plan (Ex.PW-20/A) was prepared.
An unknown dead body was searched by Ct.Rakesh (PW-13) and
numerous articles were seized through seizure memo (Ex.PW-7/A). After
inspection of the site and the seizure of the articles, blood, blood stained
soil, earth control, etc., the dead body was sent to the mortuary though
Ct.Rakesh (PW-13). On the next day, i.e. 05.02.2010, he along with SI
Yogesh (PW-8) and Ct.Sukhdev (PW-10) took up the investigation and
went to Derawalan Nagar at the spectacle shop by the name of Eye Tech
Opticals, but no clue could be found regarding the identity of the deceased.
PW-20 proceeded to the nearby jhuggies to get identification of the
deceased from his photograph. Upon reaching near Lal Bagh jhuggi,
Adarsh Nagar, someone from the public informed that the photograph
resembled with a person namely Anil Kumar, whose sister lives nearby Lal
Bagh Jhuggi. Then they went to the jhuggi of Rajni (PW-2), who
identified the said photograph of her brother Anil Kumar (deceased). Rajni
(PW-2) led the police party to the place of occurrence, where her brother
and the appellant used to sleep and lived together. The appellant was also
standing at some distance, who on seeing the police, attempted to flee but
was overpowered by the police party. The appellant was identified by
Rajni (PW-2). The appellant was interrogated infront of PW-2 and
confessed to his involvement in the murder of the deceased. Rajni (PW-2)
left the spot after starting weeping. Ins.Hemant Kumar (PW-20) further
deposed that after the arrest of the accused/appellant, he pointed out the
place of incident, i.e. near kudedan (garbage house), GTK Road, Model
Town, Delhi, from where a wooden box having blood stained marks was
found and seized (seizure memo Ex.PW-8/D). The appellant then pointed
out to the drain where after committing the murder, he threw the weapon of
offence, i.e. a big piece of concrete slab (Ex.P-5); which was recovered and
sealed (seizure memo Ex.PW-8/F). The appellant had further got
recovered one pant and shirt lying under a sheet near kudedan, which he
was wearing at the time of the incident (seizure memo Ex.PW-8/E). PW-
20 stated that the appellant then led the police to where he had thrown the
body, i.e. opposite H.No.1051, near Kudedan, A-Block, Jahangir Puri,
Delhi and pointed to the place.
26. PW-20 further deposed that on 06.02.2010, the appellant was taken out of
police lockup of Shalimar Bagh and he led the police to Shahalam Bandh
near Majar in the area of PS Mahendra Park and got recovered a rickshaw
rehri which was used by the accused to carry the dead body from the place
of murder to the place of its disposal. The said rickshaw having blood
stains was seized (seizure memo Ex.PW-8/H). Some portion of the
rickshaw having blood stains were separately sealed. The postmortem of
the body was conducted. Later on 08.02.2010, PW-20 has deposed to have
gone to the scene of the crime and met Bhagwati Prasad (PW-5), owner of
rickshaw rehri. PW-5 handed over the ownership documents of the
rickshaw rehri. The opinion of the doctor was obtained on the concrete
slab and the exhibits were sent to FSL for its report. The case property was
identified by the witness.
27. PW-20 was cross-examined by the amicus for the accused/appellant,
wherein he stated that the kudedan near the place of occurrence was used
by one rickshaw owner for parking his rickshaw rehris, but no other cycle
richshaws were parked there. He denied the suggestion that rickshaw
pullers used to sleep there. He further stated that he had asked public
persons to join the proceedings on 05.02.2010 and during recovery on
06.02.2010, but none agreed. The rickshaw recovered on 06.02.2010 was
not examined by the crime team; though the same was examined by PW-20
and he found no human tissues, strands of hair or pieces of skin in the
rickshaw rehri.
28. SI Yogesh Kumar (PW-8) has also primarily deposed on the lines of PW-
20, but stated that on 05.02.2010, the owner of the shop whose name was
mentioned on the spectacle box told that the name of the deceased was
Anil. Thereafter, the police came in a private car at Sangam Park jhuggis
to ascertain the identity of the deceased. The big stone weighing about 50-
55 kgs was recovered from a nala near the wall of the kudedan, which was
wet with water. He also deposed that on 05.02.2010, the appellant had
taken the police to Shah Alam Bandh for the search of the rickshaw rehri,
but the same could not be recovered. On 06.02.2010 at about 9 AM, PW-8
along with Ins.Hemant Kumar (PW-20) and Const.Sukhdev (PW-10)
brought the accused from lockup and he took them to Shah Alam Bandh
near a Mazaar from where the appellant got recovered the rickshaw. There
was blood on the side phatta of the rickshaw. The witness was then cross-
examined by the Additional Public Prosecutor as he had suppressed some
facts. In his cross-examination by Addl.PP, PW-8 stated that from enquiry
from the optical shop, nothing could be known about the deceased. He
further stated that the pant and shirt were recovered from an old bag.
29. PW-8 was next cross-examined by the counsel for the appellant. In his
cross-examination, he stated that lot of rickshaws remained parked near the
thiya. They are not parked during the day time, but remain parked in the
night.
30. The testimony of Const.Sukhdev Singh (PW-10) is similar to that of PW-8:
he had also deposed that on 05.02.2010, the accused/appellant had taken
them to Shah Alam Bandh for the search of the rickshaw, but the same
could not be found. On 06.02.2010 at about 9:15-9:30 AM, the witness
along with Ins.Kumar (PW-20) and SI Yogesh Kumar (PW-8) took the
accused to Shah Alam Bandh from where the appellant got the rickshaw
recovered. In his cross-examination, PW-10 denied the suggestion that the
kudedan/dustbin is being used as parking space for the rickshaws and
voluntarily went on to depose that the rickshaws remained adjacent to the
kudedan. He further stated that they had gone to Shah Alam Bandh on the
night between 5th and 6th and reached there at about 12:15 AM. They
remained there for about 10-15 minutes. It is correct that the rickshaws are
parked at the night in the ground near Shah Alam Bandh. PW-10 did not
notice any rickshaw standing there in the night of 5 th and 6th. He further
deposed that any rickshaw puller can bring and take rickshaw from the said
ground.
31. Since the case of the prosecution is based on circumstantial evidence, the
forensic and medical evidence gain significance. The post mortem of the
deceased was conducted by Dr.Kulbhushan Goyal (PW-21). As per the
post mortem report (PW-21/A), the following injuries were noticed on the
body of the deceased:
(i) Laceration avulsion 15x6 cm over fronto parietals and part of
forehead with crushed margins;
(ii) Depressed deformity all over skull; and
(iii) Multiple abrasions over left side of forehead.
32. The opinion of the doctor (PW-21) was as under:
"All injuries are ante-mortem in nature, caused by heavy
hard blunt force impact directed upon head. Cause of death
is extensive cranio-cerebral injuries and sufficient to cause
death in ordinary course of nature. Mode of death is
homicidal. Time since death is about 2 ½ days."
33. Having regard to the fact that the post mortem was conducted on
06.02.2010 at 12:30 PM, the time of death can be estimated to the
intervening night of 03-04.02.2010 at about 12:30 AM. Subsequently, the
opinion was also sought in respect of the weapon of offence; to which, the
doctor had opined as under:
"The injuries mentioned in PM report No.139 dt 06/02/10
on the body of Anil Kumar are possible by this object or
similar such other one if assailant is able to lift a heavy
object and divert it on the head of the victim."
34. The report of FSL (Ex.PW-20/E and Ex.PW-20/F) also show that human
blood was found on the weapon of offence (marked as Exhibit „6‟), pants
recovered on the instance of the appellant (marked as Exhibit „7b‟) and the
wooden plank/phatta removed from the rickshaw recovered at the instance
of the appellant (marked as Exhibit „8‟).
35. We proceed to analyse the incriminating circumstances established against
the appellant. From the aforegoing, the following incriminating
circumstances stand established against the accused/appellant:
(i) The motive of the offence stands established as the demand for
repayment of money by the deceased from the appellant as evinced
by the testimonies of Rajni (PW-2) and Satpal (PW-6);
(ii) The appellant/accused was last seen with the deceased by Satpal
(PW-6) at about 7 PM and by Bhagwati Prasad (PW-5) at about 9
PM at his garage;
(iii) The weapon used for the offence, i.e. concrete slab (Ex.P-5) and
blood stained clothes was recovered at the instance of the appellant;
(iv) Forensic evidence [FSL Report (Ex.PW-20/E and Ex.PW-20/F)]
establishes that human blood was present upon the weapon of
offence and the clothes recovered;
(v) Medical evidence [post mortem report (Ex.PW-21/A)] establishes
that the death of the deceased occurred in the intervening night of
03-04.02.2010 at about 12:30 AM;
(vi) PW-21 has also opined (Ex.PW-21/B) that the injury in question
could have been caused by the weapon being the concrete slab;
(vii) The appellant was found by Satpal (PW-6) the next morning as
sitting beside the wooden box and shivering and unable to give any
satisfactory answer about the whereabouts of the deceased;
(viii) Appellant attempted to flee upon seeing the police party and Rajni
(PW-2); and
(ix) The prosecution having established that the deceased was last in the
company of the appellant, the onus was shifted on the appellant to
show when they departed company, thus establishing an additional
link in the chain of circumstances.
[See Section 106 of the Indian Evidence Act, 1860; State of
Rajasthan v. Kashi Ram, AIR 2007 SC 144; and Md.Shakeel v.
The State NCT of Delhi, MANU/DE/1334/2016 (paragraphs 29-
31)]
36. The aforegoing circumstances and the evidence brought on record
conclusively point towards the guilt of the appellant and no other inference
could be drawn. Hence, the Trial Court was correct in convicting the
appellant.
37. The submission of Mr.Dubey that there were various discrepancies in the
testimonies of the witnesses deserves to be rejected. Though there were
few contradiction in the testimonies of the prosecution witnesses, none of
them go to the root of the matter and hence, do not render the depositions
unreliable.
38. We have already recorded the submission of Mr.Dubey that he does not
press the present appeal on the point of conviction and only on the point
that the offence under Section 302 is not made out.
39. Regarding the applicability of Section 302, we are of the opinion that the
learned counsel for the appellant‟s argument has merit and deserves to be
accepted. There is evidence that the deceased and the appellant used to
sleep in the area next to the kudedan and were friends. On the fateful night,
the deceased and the appellant exchanged hot words due to the failure of
the appellant to return borrowed money, which led to the appellant
inflicting a solitary injury on the deceased. The weapon used is also of
significance. The appellant had used a heavy concrete slab, which could
have been obtained at the spot of the incident evincing that there was no
preparation. It is clear that the intention to kill has not been established and
actually the fatal blow suffered by the deceased was a result of sudden fight
and in the heat of passion, without any premeditation. It cannot be said that
the appellant had taken any undue advantage or acted in a cruel or unusual
manner as he had only given one blow with the concrete slab. Hence, the
present case would be covered under Exception 4 of Section 300, 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
offender having taken undue advantage or acted in a cruel
or unusual manner.
Explanation.--It is immaterial in such cases which party
offers the provocation or commits the first assault."
(Emphasis Supplied)
40. To bring a case under the exception, fourfold requirement must be
satisfied: first, there must be a sudden fight; second, absence of pre-
meditation; third, the accused must have been overcome with the heat of
passion; and fourth, the accused must not have taken undue advantage or
acted in a cruel or unusual manner.
41. In Sayaji Hanmant Bankar v. State of Maharashtra, (2011) 14 SCC 477,
the convict had thrown a water pot and a kerosene lamp on the deceased
(his wife) after a quarrel with her, the burn was exasperated by the fact that
the deceased was wearing a nylon sari resulting in her death. The Apex
Court found that there was a sudden fight and modified the conviction from
Section 302 IPC to Section 304 Part I IPC. The relevant paragraphs read as
under:
"8. It is clear from the reading of aforesaid Exception 4 that
if the act is done without premeditation in a sudden fight or
in the heat of passion upon a sudden quarrel and if the
offender does not take any undue advantage or act in a
cruel or unusual manner, then Exception 4 will be attracted.
9. We have gone through the evidence carefully. It seems
that as soon as the accused entered the house, there
appeared to be some quarrel with his wife and in that fight
first, he threw a water-pot and thereafter a kerosene lamp.
The burning seems to be more out of the fact that
unfortunately at that time, the lady was wearing a nylon
sari. Had she not been wearing a nylon sari, it is difficult to
imagine how she could have been burnt to the extent of
70%. In our view this was a case which clearly falls under
Exception 4 to Section 300 IPC since there was a sudden
fight. There was no premeditation either. Therefore the
appellant-accused is liable to be convicted for the offence
punishable under Section 304 Part I.
10. We, accordingly, alter the conviction of the accused
from Section 302 IPC to Section 304 Part I IPC and
sentence him to the period already undergone by him. The
sentence of fine remains the same."
(Emphasis Supplied)
42. In Sandhya Jadhav v. State of Maharashtra, (2006) 4 SCC 653 a solitary
knife blow was given to the deceased when he attempted to intervene and
separate the convicts trying to assault his uncle. The Supreme Court
converted the conviction to Section 304 Part I observing as under:
"8. For bringing in operation of Exception 4 to Section 300
IPC, it has to be established that the act was committed
without premeditation, in a sudden fight in the heat of
passion upon a sudden quarrel without the offender having
taken undue advantage and not having acted in a cruel or
unusual manner.
9. The Fourth Exception to Section 300 IPC covers acts
done in a sudden fight. The said Exception deals with a case
of prosecution not covered by the First Exception, after
which its place would have been more appropriate. The
Exception is founded upon the same principle, for in both
there is absence of premeditation. But, while in the case of
Exception 1 there is total deprivation of self-control, in case
of Exception 4, there is only that heat of passion which
clouds men's sober reason and urges them to deeds which
they would not otherwise do. There is provocation in
Exception 4 as in Exception 1; but the injury done is not the
direct consequence of that provocation. In fact Exception 4
deals with cases in which notwithstanding that a blow may
have been struck, or some provocation given in the origin of
the dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both parties puts
them in respect of guilt upon equal footing. A "sudden
fight" implies mutual provocation and blows on each side.
The homicide committed is then clearly not traceable to
unilateral provocation, nor in such cases could the whole
blame be placed on one side. For if it were so, the
Exception more appropriately applicable would be
Exception 1. There is no previous deliberation or
determination to fight. A fight suddenly takes place, for
which both parties are more or less to be blamed. It may be
that one of them starts it, but if the other had not
aggravated it by his own conduct it would not have taken
the serious turn it did. There is then mutual provocation and
aggravation, and it is difficult to apportion the share of
blame which attaches to each fighter. 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 a sudden quarrel. It is a question of fact
and whether a quarrel is sudden or not must necessarily
depend upon the proved facts of each case. For the
application of Exception 4, it is not sufficient to show that
there was a sudden quarrel and there was no premeditation.
It must further be shown that the offender has not taken
undue advantage or acted in cruel or unusual manner. The
expression "undue advantage" as used in the provision
means "unfair advantage"."
(Emphasis Supplied)
[Also see Abhijeet Raj v. State (Govt. of NCT of Delhi),
MANU/DE/1264/2016 and Jagtar Singh v. State of Delhi, 190 (2012)
DLT 445]
43. Coming to the case at hand, all the essentials of Exception 4 stand satisfied:
the offence was committed pursuant to a sudden fight pertaining to
repayment of borrowed money, there was no pre-meditation on the part of
the appellant, the single solitary blow was inflicted in the heat of passion
with a concrete slab obtained from the place of the offence, the appellant
did not carry with him the weapon of offence, and the appellant neither
acted in a cruel nor unusual manner. However, having regard to the
weapon of offence, i.e. a concrete slab weighing 50-55 kgs, and the
severity of the injury caused, the appellant must be imputed to cause such
bodily injury as was likely to cause death, if not the intention to cause
death. Accordingly, the conviction of the appellant is modified from
Section 302 to one under Section 304 Part I of the Indian Penal Code.
Having regard to the culpability of the appellant, we are of the view that the
ends of justice would be met if the sentence of the appellant is modified to
imprisonment for 9 years.
44. Thus, the appeal is partly allowed and orders of conviction and sentence are
modified in the above terms. Order on the payment of fins shall remain
unchanged.
45. Trial Court record be returned.
46. Copy of this Judgment be sent to the Superintendent, Central Jail, Rohini
for updating the jail record.
47. In view of the aforegoing order passed in the appeal, Crl.M.B. 399/2017
seeking suspension of sentence is dismissed as infructuous.
G.S.SISTANI, J.
PRATHIBA M. SINGH, J.
MAY 23, 2017
//pst
