Delhi High Court
Bantoo vs State on 11 October, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: September 23, 2017
% Judgment Delivered on: October 11, 2017
+ CRL.A. 1318/2012
BANTOO ..... Appellant
Through: Mr.Chetan Lokur, Advocate.
versus
STATE ..... Respondent
Through: Ms.Aasha Tiwari, APP for the
State with Inspector Dhananjay
Gupta ATO Mahendra Park
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
HON'BLE MS. JUSTICE REKHA PALLI
JUDGMENT
1. The appellant Bantoo has preferred this appeal impugning the
judgment dated 23rd July, 2012 and order on sentence dated 31st July,
2012 passed in Sessions Case No.19/2011 (case FIR No.61/2011
under Section 302 IPC PS Mahendra Park) whereby he has been
convicted for committing the offence punishable under Section 302
IPC and sentenced to undergo rigorous imprisonment for life with fine
of Rs.10,000/- and in default of payment of fine to undergo simple
imprisonment for one month.
2. In brief the prosecution case is that on the night intervening
18th/19th March, 2011 vide DD No.4A an information was received
about the murder being committed at the MCD Toilet, J-Block,
Jahangirpuri. SI Sandeep Kumar along with Constable Subhash
reached the spot and found the complainant Smt.Bachno Devi (PW-
11), mother of the deceased present and body of Shyam Singh was
lying on the first floor of the MCD Toilet. Smt.Bachno Devi reported
about the incident vide complaint Ex.PW11/A stating that the
deceased Shyam was her son whose right hand was polio affected and
he was a smack addict for past 7-8 years. The accused Bantoo was
also a smack addict. Both of them (deceased and accused) used to
beg, buy smack and consume at the public toilet. On the date of
occurrence also at about 10:00 PM accused Bantoo came to her house
and took Shyam along with him towards MCD toilet, J-Block.
Accused Bantoo was also having vegetable cutting knife. Though she
tried to call her son back and also asked accused Bantoo to throw the
knife, but they did not pay any heed and climbed the stairs of the
toilet. The deceased Shyam and the accused Bantoo, both were in the
habit of consuming smack there and also used to sleep in the toilet.
As it was their daily routine, she did not suspect anything. However,
after some time she heard the cries of her son and also saw accused
Bantoo shouting that he had stabbed Shyam and thereafter he ran
away from there. Ravi (PW-16), cousin of the deceased Shyam,
chased accused Bantoo and managed to apprehend him near I-Block,
MCD Public Toilet. PCR was informed. Accused Bantoo was handed
over to PW-19 Ct.Narender Mann who happened to reach there while
patrolling in the area. At the instance of accused Bantoo knife was
also recovered from the nearby garbage near the entry gate of MCD
Public Toilet at J-Block, Jahangir Puri, Delhi. The deceased Shyam
was taken to Babu Jagjiwan Ram Memorial Hospital where he was
declared 'Brought Dead'.
3. On the basis of the above complaint Ex.PW-11/A, FIR
Ex.PW20/A was registered. After completion of the investigation, the
accused Bantoo was sent to face trial for committing the offence
punishable under Section 302 IPC. As he pleaded not guilty to the
charge and claimed trial, prosecution examined 24 witnesses in
support of his case. The appellant was also examined under Section
313 Cr.P.C. to enable him to explain the evidence appearing against
him. He did not lead any evidence in his defence.
4. Mr.Chetan Lokur, learned counsel for the appellant has filed the
written synopsis as well made oral submissions.
5. On behalf of the appellant, Mr.Chetan Lokur, Advocate from
DHCLSC has submitted that prosecution has miserably failed to prove
its case. He has referred to the scaled site plan Ex.PW2/A and the site
plan Ex.PW24/C which does not prove that from the house of the
deceased the staircase leading to roof of MCD Public Toilet, J-Block,
Jahangirpuri, Delhi was visible. Hence the statement of PW-11
Smt.Bachno Devi, that she had seen deceased Shyam accompanied by
accused Bantoo climbing the stairs of the Public Toilet could not have
been relied upon to base his conviction. Since the sole witness to the
last seen evidence is PW-11 Smt.Bachno Devi - mother of the
deceased and her statement is not corroborated to the above extent by
the site plan, the impugned judgment is liable to be set aside.
6. Mr.Chetan Lokur, Advocate has also submitted that as per
PW-11 Smt.Bachno Devi after committing the murder of deceased
Shyam, the accused Bantoo came on the street and uttered the words
"maine shyam ko chakoo maar diya, saale ne mujhe smack nahi di".
The place of occurrence being a thickly populated area, no
independent public witness has been examined to prove that the
accused Bantoo shouted openly that he had killed Shyam and even
PW-16 Ravi also did not state that he had heard any such shouting
before he started chasing accused Bantoo.
7. Learned counsel for the appellant has also referred to the
forensic and medical evidence to contend that the case of the
prosecution is not even corroborated by the medical and forensic
evidence. The finger prints of the appellant were not found on the
knife used for committing the murder. There is also no mention in the
postmortem report Ex.PW-10/A that the deceased Shyam had
consumed smack. There is also no evidence that clothes worn by the
accused Bantoo at that time were having blood stains of the blood
group of the deceased Shyam.
8. In the alternative, learned counsel for the appellant has
submitted that even if the testimony of PW-11 is considered to be
reliable, the appellant could not have been convicted under Section
302 IPC. Rather it is admitted case of the prosecution that the
deceased and the accused both were smack addicts and they used to
consume smack together. The weapon of offence is a vegetable
cutting knife and they were in the habit of begging and buying smack
and thereafter consuming the same together in the public toilet. It was
on refusal of the deceased Shyam to share the smack with the accused
Bantoo that provoked the accused/appellant to cause injuries so as to
create fear in the mind of the deceased to make him part with the
smack so that the appellant could also consume.
9. It has also been contended that even as per the statement of
PW-16 Ravi, after being apprehended the appellant asked him to
check whether deceased Shyam was alive which further proved that
the appellant was concerned about the well being of deceased Shyam
and he had no intention to commit his murder. The appellant at that
time was deprived of his power of self control as he was under the
influence of smack and refusal by the deceased Shyam to share the
smack provoked him to use the vegetable cutting knife which he was
carrying, hence the case of the accused Bantoo is covered by
explanation 4 to Section 300 IPC and he may be convicted for
committing offence of culpable homicide not amounting to murder.
10. Learned counsel for the State while refuting the contentions
raised on behalf of the accused Bantoo submitted that the deceased
Shyam was seen by his mother PW-11 going along with the accused
Bantoo towards MCD Public Toilet, J-Block, Jahangirpuri and
climbing the stairs. The body of the deceased Shyam was found on
the roof of the MCD Public Toilet, J-Block, Jahangirpuri. It has also
been contended that the weapon of the offence i.e. vegetable cutting
knife was seen by PW-11 Smt.Bachno Devi in the hand of the accused
Shyam and the same knife has been recovered at his behest from near
the garbage where he had thrown it after committing the offence. It
has been contended that it is not a case of grave and sudden
provocation so as to claim any benefit under explanation 4 to Section
300 IPC. The injury No.1 has been opined to be caused by knife
Ex.PW-16/D and was sufficient to case death, hence the impugned
judgment does not require any interference or modification.
11. We have considered the rival contentions and also examined in
detail the judgment by the learned Trial Court.
12. In the present case the prosecution has relied on the statement of
the mother of the deceased, Smt.Bachno Devi (PW-11) who had seen
the deceased Shyam accompanying the accused Bantoo towards the
J-Block, MCD Public Toilet which was a routine for them to consume
smack and sleep there in the toilet itself, as well statement of Ravi
(PW-16), brother of the deceased who chased the accused Bantoo
immediately after the occurrence and handed him over to PW-19
Const.Narender Maan. The prosecution also relied on the opinion
given by Dr.Bhim Singh (PW-10) who conducted the postmortem. As
per post mortem report Ex.PW-10/A, the cause of death was due to
shock as a result of excessive bleeding via Injury No.1 i.e. incised stab
wound horizontally placed, left side of chest in the mid axillary line at
the level of 4" intercostal space, situated 7 cm below axilla, measuring
4 cm x 1 cm x cavity deep inner angle obtuse, which was sufficient to
cause death in the ordinary course of nature.
13. This is a case wherein deceased Shyam was last seen in the
company of the accused Bantoo by his mother PW-11 Smt.Bachno
Devi. Merely because in the scaled site plan Ex.PW-2/A and the site
plan Ex.PW-24/C the house of the deceased Shyam, from where
PW-11 Smt. Bachno Devi saw both of them going towards the toilet
and climbing the stairs is not shown, is no ground to disbelieve her
testimony to the above effect. It is also note worthy that PW-11
Smt.Bachno Devi has not even been suggested during her cross-
examination that from her house the staircase of MCD Public Toilet,
J-Block, Jahangirpuri was not visible or she could not have seen them
climbing the staircase to go to the roof of the toilet. It has also not
been put to her that the accused Bantoo did not come to her house to
take deceased Shyam along with him towards J-Block, MCD Public
Toilet. PW-11 Smt.Bachno Devi, mother of the deceased has
specifically stated that she did not pay much heed as it was a daily
routine for the deceased Shyam and the accused Bantoo to beg and
buy smack and then consume and sleep on the roof of that MCD
Public Toilet. She came to know about the incident on hearing the
accused Bantoo "maine shyam ko chakoo maar diya, saale ne mujhe
smack nahi di". Merely because PW-16 Ravi could not hear what the
accused had uttered about the incident is no ground to disbelieve his
testimony that after hearing the cries of PW-11 Bachno Devi (aunt of
PW-16 Ravi), he chased accused Bantoo and managed to apprehend
him near I-Block, MCD Public Toilet. The statement of PW-19
Const.Narender Maan proved that the accused Bantoo was handed
over to him by PW-16 Ravi.
14. In his statement under Section 313 Cr.P.C. though the accused
Bantoo had denied the entire prosecution case, but he did not dispute
that he was a smack addict, in the habit of taking smack with the
deceased Shyam at the public toilet and sleep there. He claimed that
he was apprehended from Subzi Mandi at about 4:00-5:00 PM when
he was begging thereby only disputing the date and time of his
apprehension and arrest.
15. The rukka in this case has been sent on 9th March, 2011 at 1.35
AM on the basis of which FIR Ex.PW20/A was recorded at 1.50 AM
upto 2.40 AM. As per the MLC Ex.PW10/E, Shyam was declared
'Brought Dead' at 3.05 AM. PW-7 Sonu - the public witness has
stated that on 19th March, 2011 at about 12.00/12.30 AM on hearing
the noise from the street, he came out and was informed by some
public person about the murder in the 'Shauchalya' (toilet).
Thereafter he made a call to PCR from his mobile No.9289909057 to
inform about the murder. PW-16 Ravi - cousin of the deceased
Shyam had apprehended the accused Bantoo who told him that he was
asking for smack from deceased Shyam who refused to give and out of
anger he (accused Bantoo) gave two-three knife blows on the person
of Shyam. The accused further told him that he had thrown the said
knife at the garbage dumping site and also asked him to first check
and see the condition of Shyam that he should not die. Then he took
accused Bantoo near the toilet of J-Block where he came to know that
Shyam had already died and by that time many public persons from
the neighbourhood gathered there. He handed over the accused
Bantoo to PW-19 Constable Narender Maan who was on patrolling
duty in the beat area and was the first to reach the spot. The accused
also disclosed that he has thrown the knife in the garbage dump near
the toilet. On the basis of the disclosure statement made at the spot by
accused Bantoo, the knife Ex.P1 was recovered vide memo
Ex.PW16/D from the garbage dump near the toilet in the presence of
public witnesses. When the knife was recovered, it was stained with
blood.
16. PW-19 Ct.Narender Mann was posted as Beat Constable in the
area of I-J Block, Jahangir Puri and was on patrolling duty on the
night intervening 18/19th March, 2011. He has stated that during
patrolling when he reached MCD Toilet, J-Block, Jahangir Puri at
about 12:30 AM (midnight) he saw large number of public person
gathered there. On inquiry he came to know one person namely
Shyam has been murdered. He also stated that in the meantime Ravi
(PW-16) produced accused Bantoo and stated that Bantoo had
committed murder of Shyam. Ravi also informed him that the police
has been informed (by PW-7). After some time PCR van reached
there and SI Sandeep along with staff from the police station also
reached and further proceedings were conducted.
17. PW-15 Sh.Bagwan Dass - father of PW-16 Ravi is a witness to
the arrest of the accused Bantoo vide Arrest Memo Ex.PW-15/A.
Personal search of accused Bantoo was also conducted in his presence
vide Memo Ex.PW-15/B.
18. The learned trial Court has convicted the appellant on the basis
of circumstantial evidence that the deceased being last seen in the
company of the accused before he was found dead in the MCD toilet,
J-Block as well on the basis of extra-judicial confession made by him
to PW-16, Ravi and also when he was heard by PW-11, Smt. Bachno
Devi shouting that "maine shyam ko chakoo maar diya, saale ne
mujhe smack nahi di". The medical evidence i.e. post mortem report
Ex.PW-10/A proved that the cause of death was due to shock as a
result of excessive bleeding via Injury No.1 i.e. incised stab wound
horizontally placed, left side of chest in the mid axillary line at the
level of 4" intercostal space, situated 7 cm below axilla, measuring 4
cm x 1 cm x cavity deep inner angle obtuse, which was sufficient to
cause death in the ordinary course of nature. PW-10 Dr.Bhim Singh
has also stated that on 5.5.2011 he received a request for opinion on
the weapon of offence i.e. knife and after examining the said knife he
had opined that the injury no.1, 2 and 3 could be caused by the said
knife and the cut marks mentioned on the clothes of the deceased were
corresponding with Injury No.1, 2 and 3. PW-10 Dr.Bhim Singh has
proved the subsequent opinion given by him along with the sketch of
the knife which is Ex.PW-10/G.
19. PW-23 Dr.Rajendra Kumar has proved the Biological Report
Ex.PW23/A in respect of the exhibits sent to FSL as well as the
serological report Ex.PW-23/B showing that blood of 'A' Group was
detected on the pair of chappal Ex.P2, match box with sticks Ex.P3,
polythene sheet Ex.P4, pant Ex.P7 and shirt Ex.P8 of the accused
deceased. Further, the weapon of offence i.e. the knife showed
positive results for human blood and the clothes of the accused Bantoo
also showed the presence of human blood. The knife Ex.P-1 was
stained with human blood and it was recovered immediately after the
occurrence on the basis of disclosure statement made by the appellant
in the presence of public witnesses, PW-11 & PW-16. On an overall
consideration of the prosecution evidence and it being a case of total
denial by the appellant during his examination under Section 313
Cr.P.C., the learned trial Court held him guilty under Section 302 IPC
for which he was charged.
20. The testimony of PW-11, Smt.Bachno Devi; PW-16, Ravi and
PW-15, Bhagwan Dass, (father of PW-16 Ravi) clearly established
that they were witnesses to the events which immediately preceded as
well to the events immediately occurred after the incident which were
intrinsically connected to each other. The time of incident was around
midnight which is sleeping time. But for the shouting by the appellant
that he had stabbed Shyam, PW-11 would not have even come to
know about the incident at that hour. Only on hearing the shouting by
the accused, she came out and thereafter, on hearing her cries, PW-16
Ravi woke up and came out. He chased and overpowered the
appellant/accused in the public toilet complex of I-block while he was
consuming smack. PW-16 Ravi found blood stains on the clothes of
accused Bantoo. Accused Bantoo informed PW-16 Ravi that he was
asking for smack from Shyam who refused to give the same and out of
anger, he gave two-three knife blows on the person of Shyam and that
he had thrown the knife at the garbage dumping site. Accused Bantoo
also asked him to first see the condition of Shyam so that he could be
saved. Then PW-16 Ravi took accused Bantoo near the toilet of J-
Block where he came to know that Shyam had already died.
21. The testimony of the prosecution witnesses in our opinion has
been strengthened and supported by the forensic report which
confirmed blood stains on the jeans/shirts of the accused as well on the
knife. The post mortem report Ex.PW10/A confirmed the cause of
death due to shock as a result of excessive bleeding via Injury No.1
i.e. incised stab wound horizontally placed, left side of chest in the
mid axillary line at the level of 4" intercostal space, situated 7 cm
below axilla, measuring 4 cm x 1 cm x cavity deep inner angle obtuse,
which was sufficient to cause death in the ordinary course of nature
and the injuries no.1, 2 and 3 being possible with the knife Ex.P1.
22. That brings the discussion as to what would be the appropriate
conviction in above circumstances i.e. under Section 302 IPC or under
Section 304 IPC. Section 300 IPC in its opening part provides that
culpable homicide would be murder save the exceptions. Exception 4
to Section 300 IPC 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."
23. In the decision reported as Gurmukh Singh Vs. State of
Haryana, 2009 (15) SCC 635¸ while discussing the parameters as to
whether the offence falls under Section 302 IPC or Section 304 IPC,
the Supreme Court held as under:-
"20. In another case Pappu v. State of M.P. (2006) 7
SCC 391, this Court observed as under:
"......The help of Exception 4 can be invoked if
death is caused (a) without premeditation, (b) in a
sudden fight; (c) without the offender's 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
the 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 and 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'.
It cannot be laid down as a rule of universal
application that whenever one blow is
given, Section 302 IPC is ruled out. It would
depend upon the weapon used, the size of it in
some cases, force with which the blow was given,
part of the body it was given and several such
relevant factors.
Considering the factual background in the case
at hand it will be appropriate to convict the
appellant under Section 304 Part II IPC, instead
of Section 302 IPC as has been done by the trial
court and affirmed by the High Court. Custodial
sentence of eight years would meet the ends of
justice. The appeal is allowed to the aforesaid
extent."
21. In the instant case, the occurrence had taken place at
the spur of the moment. Only the appellant Gurmukh
Singh inflicted a single lathi blow. The other accused
have not indulged in any overt act. There was no
intention or pre- meditation in the mind of the appellant
to inflict such injuries to the deceased as were likely to
cause death in the ordinary course of nature.
22. On consideration of the entire evidence including the
medical evidence, we are clearly of the view that the
conviction of the appellant cannot be sustained
under section 302 IPC, but the appropriate section under
which the appellant ought to be convicted is section
304 Part II IPC."
24. The facts of this case do not point to a calculated or
premeditated incident on the part of the appellant to kill the deceased
who was his companion not only in begging but also in consuming
drugs. Both were drug addicts and literally the public toilet at J-block
was their night shelter. This is not a case for conviction under Section
302 IPC. The appellant, however, can be said to have possessed the
knowledge that his act would result in such injury on the deceased
which in the normal course of nature would have resulted in his death
and consequently he was guilty of committing the offence punishable
under Section 304 part II IPC.
25. In the present case the evidence on record points out that the
deceased and the accused both were beggars and smack addicts. They
used to buy smack out of the amount received by begging and it was a
routine for them to consume smack in the MCD toilet, J-Block and
sleep there only. In the arrest memo the address of the appellant has
not been recorded and he is referred to as a 'Vagabond'. Thus, it is
clear that whatever he possessed, it used to be carried by him and the
kitchen knife was part of that. The quarrel started as the deceased did
not share the smack with the appellant and the appellant himself being
a smack addict, attacked the deceased to scare him and make him
agree to share the smack. The quarrel had taken place at the spur of
moment in a sudden fit of anger without any premeditation. This
Court is conscious of the fact that the appellant inflicted three knife
injuries out of which injury No.1 proved to be fatal. But even after
being apprehended, as per PW-16, the appellant was concerned as to
whether the Shyam was alive or not and asked him to check Shyam.
After the incident, he even came out in the open and shouted in a loud
voice that he had stabbed him as he was not sharing smack with him.
26. In view of the above discussion the conviction under Section
302 IPC is altered to Section 304 Part II IPC.
27. As a consequence while maintaining the sentence of fine, the
sentence of imprisonment is modified and instead of life
imprisonment, he shall undergo rigorous imprisonment for 10 years.
28. The appeal is allowed in above terms.
29. A copy of the order be sent through the Jail Superintendent for
information and updation of the record.
30. Trial Court Record be sent back along with copy of this order.
PRATIBHA RANI
(JUDGE)
REKHA PALLI
(JUDGE)
OCTOBER 11, 2017
'hkaur'
