Delhi High Court
Amarjeet Singh vs State on 14 December, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 30.07.2018
% Judgment delivered on: 14.12.2018
+ CRL. A. 739/2017
AMARJEET SINGH ....Appellant
Through: Mr. K. Singhal, Advocate
(DHCLSC).
versus
STATE ....Respondent
Through: Mr. Rajat Katyal, APP for State
with Mr. Ashray Behura, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE I.S.MEHTA
JUDGEMENT
I.S.MEHTA, J.
1. Instant appeal is arising out of the Judgment Dated 24.05.2017 and
Order on Sentence Dated 29.05.2017 wherein the accused was convicted
under Section 302, 404, 380 and 201 IPC. Accused was sentenced under
Section 302 IPC to undergo imprisonment for life and to pay fine of Rs.
10,000/-, in default of payment of fine, the convict is further sentenced to
undergo rigorous imprisonment for a period of six months. Accused was
sentenced under Section 404 IPC to undergo rigorous imprisonment for a
period of three years and to pay fine of Rs. 3,000/-, in default of payment of
fine, the convict was further sentenced to undergo rigorous imprisonment for
a period of one month. Accused was sentenced under Section 380 IPC to
undergo rigorous imprisonment for a period of seven years and to pay fine of
Rs. 5,000/-, in default of payment of fine, the convict was further sentenced
to undergo rigorous imprisonment for a period of three months. Accused was
sentenced under Section 201 IPC to undergo rigorous imprisonment for a
period of seven years and to pay fine of Rs. 5,000/-, in default of payment of
fine, the convict was further sentenced to undergo rigorous imprisonment for
a period of three months.
2. Brief facts stated are that on receiving DD No. 28A Ex.PW4/A on
29.07.2011 at PS Hari Nagar, ASI Surender alongwith Ct. Mahesh reached at
House No. WZ-74 A Ist Floor, Meenakshi Garden, Hari Nagar, Delhi where
they met Harpreet Singh (PW1) and found the dead body of an old lady lying
in pool of blood in main lobby of first floor of the house. There were injury
marks caused by sharp edged weapon on back, near neck and on the hands of
the deceased and blood smeared footprints were also found there. The
statement of Mr. Harpreet Singh Ex.PW1/A, who is son-in-law of the
deceased, was recorded. An amount of Rs. 50,000/- and two gold bangles
from the hand of deceased were found to be missing. Crime team and
photographer were called and they inspected the spot vide crime scene report
Ex.PW7/A. Meanwhile, rukka Ex.PW20/A was sent through HC Arun
Kumar. Consequentially, FIR No. 339/2011 Ex.PW4/D was got registered
under Section 397 and 302 IPC. Further investigation was handed over to
I.O. Insp. M.L. Meena. Dead body of the deceased was sent to Mortuary,
DDU Hospital for post mortem. Post mortem of the dead body of Smt.
Pavitra Kaur was got conducted on 30.07.2011 in DDU Hospital vide post
mortem report Ex.PW19/A. Exhibits such as snapped lock and hook, blood
stains from the spot, blood stain from kitchen, blood stain from door knob of
toilet and a pair of slipper were seized vide seizure memo Ex.PW1/B,
Ex.PW1/C, Ex.PW1/D, Ex.PW1/E and Ex.PW1/F which were deposited
with MHC(M) vide serial no. 3318 Ex.PW3/A and samples were sent to
CFSL. I.O. prepared rough site plan Ex.PW26/A. During investigation name
of the accused came up as a suspect after statement of the witnesses under
Section 161 Cr.P.C. were recorded alongwith the statement of one Smt.
Narinder Kaur. Consequentially, the mobile phone No. 9779209597 of the
suspect was searched out. I.O. Insp. M.L. Meena alongwith S.I. Rajkumar,
Ct. Ramchander, Ct. Ajay and Ct. Sandeep, etc left for Patiala, Punjab but
could not locate the accused at the designated place where his Cell ID
location was showing. Thereafter, with the help of and on the pointing out of
secret informer, the accused Amarjeet Singh @ Raju @ Wadhwa was
apprehended on 02.08.2011 at Anardana Chowk, Patiala. He made a
disclosure after which he was arrested on 02.08.2011 vide arrest memo
Ex.PW13/A and his personal search was conducted vide personal search
memo Ex.PW13/B. The disclosure statement is Ex.PW13/C. In pursuance to
the said disclosure statement, accused Amarjeet Singh got recovered two
gold bangles which were seized vide seizure memo Ex.PW13/E and also got
recovered 60 currency notes of Rs. 500 each (Rs. 30,000/-) out of robbed
amount which were seized vide seizure memo Ex.PW13/D. He got recovered
cosmetic items worth Rs. 20,000/- which were seized vide seizure memo
Ex.PW13/F. Accused was brought back to Delhi and the case property was
deposited with MHC(M) vide Ex.PW3/B and accused was produced in the
court and police sought 3 days police custody remand and got the same. In
pursuance to disclosure statement, the accused on 04.08.2011 was again
taken to Patiala for the recovery of the weapon of offence i.e., knife, musli
(pestle) and blood stained t-shirt which accused disclosed to have thrown in
Bakhra Nehar, Khedi Gadiya. He further disclosed the fact of throwing away
the shoes, socks and the T-shirt in Bhakhra Canal Kheri Gadiya Pul, Punjab
vide pointing out memo Ex.PW13/H and Ex.PW13/I. Accused also disclosed
about one brown colour pant and white colour vest which he was wearing at
the time of commission of the crime, and was kept at his house in Patiala.
Same were recovered having blood stains, despite accused having them
washed. Both the articles were seized vide seizure memo Ex.PW13/G and
deposited with MHC(M) vide serial no. 3337 Ex.PW3/D. On bringing the
accused back to Delhi, I.O. moved an application for recording of
confessional statement of accused under Section 164 of Cr.P.C. on
05.08.2011. Same was adjourned to 08.08.2011 and accused was sent to
Judicial Custody and was further adjourned to 12.08.2011. Subsequently, on
16.08.2011, his confessional statement was recorded by Ld. Metropolitan
Magistrate Ms. Vandana Jain (PW24). Vide Ex.PW24/B and after the
completion of the investigation chargesheet was filed. Ld. MM after
complying with Section 207 Cr.P.C., sent the case for trial.
3. Mr. K. Singhal has argued that the impugned judgment is not legally
sustainable and further submitted that the court below- while convicting the
appellant, overlooked the evidence appearing on record. He submits that the
present case is based on circumstantial evidence. There is no last seen
evidence; no weapon of offence was recovered, and; the confessional
statement, as such, is a weak piece of evidence as it has been retracted
subsequently in the statement recorded under Section 313 Cr.P.C. Also, that
recovery of blood stained Pant and vest and recovery of two gold bangles
and Rs. 30,000/- cannot be relied upon for want of identification of the case
property. Therefore, these evidences fail to connect the accused to the crime.
He further pointed out that prosecution has failed to examine Smt. Narinder
Kaur and the CDR of the accused does not connect the appellant to the crime
in any manner.
4. Mr. K. Singhal further pointed out that the accused is the son of the
deceased's sister and even if the version of the prosecution were to be
believed, on the date of the incident, the provocation was not extended by the
accused, but rather by the deceased who had spoken against the accused- that
he is not taking care of her mother, which resulted in the accused losing his
temper and the accused picked up musli (pestle) and gave a blow on the head
of the deceased and he lost his self-control and used a kitchen knife for
committing crime, which was lying nearby in the kitchen. It is argued that
the accused did not go to the house of the deceased with the premeditation or
preparation to commit the crime. It was an act committed due to grave and
sudden provocation in the heat of passion at the spur of the moment.
5. Mr. K. Singhal further argued that when the accused came into his
senses, he found that his maternal aunt (mausi) Smt. Pavitra Kaur has
already died and he left the place. There was no intention to cause any harm
to the deceased. Therefore, his conviction should be altered from one under
Section 302 IPC as he claims that the act of the appellant is covered by the
4th exception to section 300 IPC, and he submits that, at the highest, it is a
case falling under Section 304 Part II IPC. He relied on Hari Bahadur @
Hari V. State, 229 (2016) Delhi Law Times 107 (DB); Sanjay Kumar V.
State, Delhi High Court (CRL.A. 1533/2013); Jamil @ Jamir V. State,
Delhi High Court (CRL.A. 1226/2013, 1383/2013, 1460/2013 and
1581/2013); SA V. AA [(2016) 229 DLT 675]; Krishan Kumar @ Monu V.
State, Delhi High Court (CRL.A. 907/2012 and 246/2012); Ajay Bind V.
State NCT of Delhi, Delhi High Court (CRL.A. 392/2016 and 925/2016);
Ankush Shivaji Gaikwad V. State of Maharashtra, Supreme Court of India
S.L.P. (Crl.)N0 6287 of 2011); Ashok Bind V. State, Delhi High Court
(CRL.A. 89/2017) in support of his submission.
6. Per contra, Mr. Rajat Katyal, Ld. APP argued that the prosecution
case is based on, firstly, circumstantial evidence and, secondly, on the
voluntary judicial confession of the accused, which is completely supported
and corroborated by the circumstantial evidence. The deceased Smt. Pavitra
Kaur was alone at her house at the time of the incident. The accused resided
in Punjab and was on visiting terms with deceased - who happened to be his
mausi (mother's sister). On the date of the incident Harpreet Singh (PW1)
recieved telephone call from Sunit Singh (PW2), son of deceased and
brother-in-law of PW1, who told him to reach immediately at his house as
his mother had received injury and had fallen down in the kitchen of their
house. Harpreet Singh on reaching to his in law's house made a call to police
at 100 No. Consequently, ASI Surender alongwith Ct. Mahesh reached at the
spot and recorded the statement of Harpreet Singh, on basis of which FIR
Ex.PW4/D was registered. The prosecution has examined Harpreet Singh
(PW1), Sunit Singh (PW2), Kanwaljeet Singh (PW5) and Bineet Gujral
(PW5) on this material point and Smt. Narinder Kaur could not be examined
as she died during the trial. Mr. Katyal further argued that the dead body was
sent to Mortuary, DDU Hospital for post mortem, and Post mortem report is
Ex.PW19/A records that the deceased received 17 external injuries on her
person. The judicial confession made by the accused is voluntary, without
pressure and inspires confidence to reach to the guilt of the accused. His
statement was recorded by the Ld. Magistrate after repeatedly giving him
time to think about making the same. Therefore the court below rightly
convicted the appellant.
7. Mr. Rajat Katyal further argued that the facts and evidence on record
does not show existence of any ingredient which could take the care out of
Section 300 by virtue of Exception 4, and lead to invocation of Section 304
Part II IPC. He relied on Kikar Singh v. State of Rajasthan, (1993) 4 SCC
238; S.K. Rafi V. State of A.P. & Anr., (2007) 13 SCC 76; Smt. Sandhya
Jadhav V. State of Maharashtra, JT 2006 (4) SC 316; Devku Bhikha V.
State of Gujarat, (1996) 11 SCC 641; Mobin V. State,
MANU/DE/1413/2018; Mohammed Asif V. State of Uttaranchal, (2009) 11
SCC 497; Naveen Chandra V. State of Uttaranchal, (2009) 16 SCC 449;
Babulal Bhagwan Khandare and Another V. State of Maharashtra, (2005)
10 SCC 404; Gurudev Singh V. State of Madhya Pradesh (2011) 5 SCC
721 in support of his contention.
8. The prosecution has examined Harpreet Singh (PW1) who stated that
he was residing at Hari Nagar, near to the house of the deceased. He reached
to the spot of the incident at about 3:30-3:45 PM on 29.07.2011 after
receiving information from Sunit Singh (PW2) regarding the injury on the
person of the deceased. He, on reaching the place of the incident, met Smt.
Narinder Kaur. Thereafter, he called the police at 100 number. Meanwhile,
Kanwaljeet Singh (PW5) and Sunit Singh (PW2) also reached to the spot.
Thereafter, ASI Surender Singh alongwith Ct. Mahesh reached the spot, and
recorded his statement Ex.PW1/A on the basis of which, FIR No.339/2011
vide Ex.PW4/D was got registered and crime team was called. After
reaching, the crime team got the place photographed, all the exhibits were
seized from the spot and were deposited in MHC(M) and subsequently sent
to CFSL, Rohini. It was found that two gold bangles and money amounting
to Rs. 50,000/- is missing from the house.
The husband of the deceased Kanwaljeet Singh, son of the
deceased Sunit Singh and grandson of the deceased Bineet Gujral who were
residing with the deceased Smt. Pavitra Kaur were not present in the house at
the time of the incident as they left to their respective engagements in
morning and deceased Smt. Pavitra Kaur was alone in the house.
9. Further, the statement of aforesaid witnesses proves on record that the
accused is the real son of deceased's sister, and they were closely related to
each other and were on visiting terms.
10. The statement of PW5 Kanwaljeet Singh indicates that the accused
visited the house of deceased on one Friday prior to the incident and did not
talk to any of the family members and left the house from stairs, whereas, he
generally used to ask for money from his mausi i.e., deceased. The conduct
of the accused that he left the house without talking to anyone lead to the
suspicion of his involvement in the crime which resulted in his arrest in the
present case from Narda Chowk, Patiala, Punjab vide arrest memo
Ex.PW13/A and personal search memo Ex.PW13/B.
11. The accused during investigation made disclosure Ex.PW13/C and in
pursuance to the said disclosure soon after his arrest, he lead the police party
to his House No. 756/3 behind Dharampura Bazaar, Patiala, Punjab and got
recovered two gold bangles Ex.P4, robbed amount in cash Rs. 30,000/-
Ex.P5 and purchased cosmetics amounting to Rs. 20,000/- Ex.P6. I.O. M.L.
Meena (PW26) deposited the same with the MHC(M) vide entry number
3333 Ex.PW3/C on 02.08.2011 itself. The accused has not claimed the
recovered articles during his cross-examination of the prosecution witness.
The accused has not examined his wife in his defence to claim the said
articles. The accused has not claimed that the aforesaid articles belong to him
in his statement under Section 313 Cr.P.C. Further, the two gold bangles
Ex.P4 have been identified by PW2 and PW1 which the deceased was
wearing on the date of the incident. Therefore, planting of the aforesaid
articles on the accused by the police and not conducting the TIP of Ex.P4
independently during the investigation loses its significance.
HC Ramchander (PW13) and Insp. M.L. Meena (PW26) further
proved the recovery of pre-washed blood stained brown coloured pant and
white vest Ex.P14 which the accused was wearing on the date of the incident
from house of the accused on 04.08.2011. The said articles were seized vide
seizure memo Ex.PW13/G by I.O. PW26, and was deposited with the
MHC(M) vide entry No.3337 Ex.PW3/D which were subsequently sent to
CFSL, Rohini and the report of the same is Ex.X2. The said report shows
that human blood was detected on both the articles.
12. The prosecution has exhibited Exhibits such as snapped lock and
hook, blood stains from the spot, blood stain from kitchen, blood stain from
door knob of toilet and a pair of slipper which were seized vide seizure
memo Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW1/E and Ex.PW1/F.
13. The I.O. M.L. Meena (PW26) got conducted the post mortem of the
dead body of the deceased Smt. Pavitra Kaur at Mortuary, DDU Hospital on
30.07.2011 by Dr. Komal Singh (PW19). He has proved the post mortem
report Ex.PW19/A got conducted by him on the body of the deceased. Post
mortem report indicates that deceased received 17 injuries on her person
which are as follows:
I. Clean incised wound (CIW) of size 3.5cm x 0.5cm present on
the occipital region with clean cut margins obliquely placed
having acute and obtuse angle, liquid and clotted blood present
in and around the wound.
II. CIW of size 5.5cm x 0.6cm, penetrating at posterior aspect of
neck which is more on right obliquely placed with regular
margins with both angle acute with liquid and clotted blood in
an around the wound.
III. Bruise of size 5cm x 3cm on the outer aspect of lower right
forearm just above the right wrist.
IV. CIW of size 3cm x 1cm x bone deep present on the outer aspect
of the right hand on the base of ring finger with clotted blood.
V. Bluish green bruise of size 3cm x 2cm present on the posterior
aspect of right shoulder joint.
VI. CIW present on the posterior aspect of right upper chest medial
to the medial border of right scapula of size 3.5cm x 0.5cm deep
to T.C obliquely placed with both angle acute.
VII. CIW of size 3.5cm x 0.5cm x abdominal cavity horizontally placed on
the lateral aspect of right Sessions Case No. 57737/16 Page 39/59
abdominal wall, 14 cm lateral to posterior mid line, 16 cm below from
the angle of right scapula, 98 cm above the right heel with medial
angle acute and lateral angle obtuse.
VIII. CIW of size 4cm x 0.5cm x deep to abdominal cavity 1 cm below
external injury no.7.
IX. CIW of size 3.5cm x 0.5cm x muscle deep, 0.5cm below external
injury no.8.
X. CIW of size 4.5cm x 0.5cm x deep to cavity, 0.3cm below external
injury no.9.
XI. CIW size 5cm x 0.7cm x deep to cavity, 0.2cm below external injury
no.10.
XII. CIW of size 3cm x 0.5cm x muscle deep, 2.5 below external injury
no.11.
XIII. CIW of size 2.5cm x 0.8cm x deep to oral cavity present on the right
side of face.
XIV. CIW of size 3cm x 0.5cm x deep to abdominal cavity, 9.5cm above
the umbilicus and 7cm below from sternum medical angle acute lateral
angle obliquely place.
XV. CIW of size 1.5cm x 0.3cm x muscle deep, 2cm below the umbilicus.
XVI. CIW of size 3cm x 1cm x muscle deep present on the lateral aspect of
the lower left forearm, 6cm above the left wrist joint.
XVII. CIW of size 3.5cm x 0.5cm x deep to skull. All CIWs are covered
with clotted blood.
The cause of the death as per the post mortem report is
"hemorrhagic shock subsequent to multiple stab injuries involving the vital
organs of the body". No.2 and No.7 injuries were sufficient to cause the
death in the ordinary course of nature either individually, or in combination.
The time since death is approximately 24 hours prior to the post mortem
which was conducted at 12:05 PM on 30.07.2011 which connects to the date
and time of the incident with the accused.
14. The prosecution has examined I.O. Insp. M.L. Meena (PW26) who
has proved the arrest of the accused on 02.08.2011 in Punjab on the pointing
out by the secret informer and the recovery made on the basis of the
disclosure statement of the incriminating articles i.e. 2 gold bangles Ex.P4
and robbed amount in cash Rs. 30,000/- Ex.P5 and the purchased cosmetics
amounting to Rs. 20,000/- Ex.P6 on the same day. He has deposed that the
accused was brought back to Delhi and he deposited the articles with
MHC(M) and moved the application Ex.PW24/A on 05.08.2011 before the
Ld. MM M.P. Singh at the instance of the accused, for recording his
confession, while accused was in police custody. The said application was
marked to Ld. MM Ms. Vandana Jain (PW24) being link MM. She did not
record the confessional statement of the accused on the said date and warned
the accused that if he makes the confessional statement before her, the same
could be used against him and gave him time to rethink before making such
statement. The matter was adjourned to 08.08.2011. On 08.08.2011 the
accused was brought again by the I.O. for recording his confessional
statement. The Ld. MM Ms. Vandana Jain again warned him of the
consequences of making his confessional statement, and again gave time to
rethink, the accused was sent to JC and the matter was adjourned to
12.08.2011. On 12.08.2011 the accused was produced before Ld. MM Ms.
Vandana Jain, I.O. was also present. Ld. MM Ms. Vandana Jain further
made inquiries and warned him once again of the consequences of making
confessional statement and again gave time to rethink and remanded the
matter for 16.08.2011. On 16.08.2011 accused was produced from JC and
I.O. was not present and one Insp. Harpal Singh was present and he was
directed to remain present outside the court and due inquiries were made
from the accused by Ld. MM in question answer form to assess his
voluntariness and to ensure that he was under no fear before recording the
statement to bring out the truthful statement. The Ld. MM Ms. Vandana Jain,
after satisfying herself that the accused was under no fear and capable to
make a voluntary statement, allowed him to make the confessional
statement. English translation of the said confessional statement Ex.PW24/B
is as follows:
I, on 29.07.2011 at 1 PM reached at my aunt
(mausi) Pavitra Kaur's place who resided in Subhash Nagar
(Hari Nagar), Delhi. At that time she was alone at home. I
asked from her Rs. 50,000/- on interest as my financial
condition is not good. She refused to give money, she got angry
and started saying against my family. Then she went to cook
food in kitchen. There she started saying things against my
mother that "your mother has got a bad luck, and you are not
even capable enough to take care of her". On this I got angry.
Then I saw a metal pestle, I attacked on her head with that
pestle, blood started gushing out. On seeing that I got panicked.
I saw knife there. I lost my self control and I stabbed her. I lost
all my self control. I even don't know that how many times I
stabbed her. Thereafter, I removed 2 bangles from her hand,
and took out Rs. 50,000/- from almirah. Almirah was locked, I
broke the lock with knife. I washed my shoes thereafter, put my
ensanguined T-shirt in a plastic bag and wore another T-shirt
which I picked from other room. Some jewellery was also kept
there which I did not pick. I put the knife, pestle and T-shirt in a
plastic bag and from there I went to Ambala, from Ambala I
went to Patiala. On the way there is a canal, I threw away that
plastic bag in that canal. Thereafter, I came back home. I then
noticed that there was blood on the back side of my shoes.
Those shoes and T-shirt which I picked from my Aunt's house, I
threw them away in yet another canal. Thereafter, I came back
home. On the next day, I came to my Aunt's funeral. Thereafter,
I again went back to Patiala. On 01.08.2011, police caught me
at Patiala. I took this step in anger. I did not do this
intentionally.
(Thumb Impression of confessor/accused)
The proceedings were subsequently concluded vide
Ex.PW24/C. The statement and the proceedings were sent in a sealed
envelope to ACMM West Delhi immediately thereafter. The said statement
and the proceedings became the part of the chargesheet, and copies thereof
were supplied to the accused alongwith the chargesheet. The plea of the
accused for retraction of the statement on the ground of pressure from police
officials- that he would be released soon if he makes the confessional
statement under Section 164 Cr.P.C. before Ld. MM loses significance, as
I.O. M.L. Meena (PW26) himself was not present while the proceedings
were conducted on 16.08.2011 and the accused was produced from JC and
he was given adjournments on three different occasions to rethink about
making his statement under Section 164 Cr.P.C. from 05.08.2011 to
16.08.2011. He was also repeatedly counselled and warned that his judicial
confession could be used against him. Therefore, the plea that his judicial
confession was made under coercion or undue influence is an afterthought
and nothing else. In this regard, reliance is placed on Dharumiah @
Dharumaiyan V. State, 2008 Indlaw MAD 87 and on Apex Court judgment
in Aloke Nath Dutta and Others V. State of West Bengal, (2007) 12 SCC
230.
15. The plea of alibi of the accused, based on the statement of DW1-
daughter of the accused, fails in face of the aforementioned confessional
statement and other facts on the record.
16. As discussed above, the facts emerging from all corners of the present
case establishes that the death of the deceased Smt. Pavitra Kaur was a
homicidal death; the accused is a real son of deceased's sister who resided at
house No. 756/3 behind Dharampura Bazaar, Patiala, Punjab; he was on
visiting terms with deceased due to close relationship, and; he often sought
financial help. On suspicion, when accused was arrested, he made disclosure
statement as well as confessional statement before judicial magistrate. The
statement of the witnesses PW1, PW2 and PW5 shows that deceased was
wearing two gold bangles and the said bangles during the course of the
incident were removed forcefully resulting into bruise of size 5cm x 3cm on
the outer aspect of lower right forearm just above the right wrist. The
recovery of gold bangles Ex.P4 and blood stained brown pant and white vest
Ex.P14 on which human blood was found remains unexplained satisfactorily
by the accused. The subsequent confessional statement Ex.PW24/B recorded
on 16.08.2011 also corroborates the other factors emerging on the records to
connect the accused to his guilt. Therefore, we unhesitatingly conclude that
the accused was involved in committing the crime.
17. We may now consider the plea of the appellant whether the accused is
entitled to the benefit of exception 4 of Section 300. Exception 4 to tsection
300 IPC reads as follows:
"If the person committing the act knows that it is so
imminently dangerous that it must, in all probability,
cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid."
To avail benefit of this exception, following four pre-requisites
must be satisfied:
(1) Offence is committed in a sudden fight;
(2) absence of pre-meditation;
(3) act was done in a heat of passion;
(4) no undue advantage was taken by the accused and he/ she did not act
with cruelty or in an unusual manner.
In the present case, the deceased was 63 years of age, who suffered 17
injuries on her person. The accused was the son of sister of the deceased
Smt. Pavitra Kaur. The accused entered into the house of the deceased at
First Floor, WZ 74A, Meenakshi Garden, Hari Nagar, New Delhi when she
was alone at about 1 PM to 3:30 PM, as shown in the site plan Ex.PW26/A
and scaled site plan Ex.PW17/A. The accused demanded Rs. 50,000/- on
interest as financial help from the deceased. The deceased refused to help
and went in the kitchen to cook food. While the accused followed the
deceased in the kitchen - as shown in the site plan Ex.PW26/A (and the
scaled site plan Ex.PW17/A) there, she used derogatory remark against the
accused and his mother by saying, "your mother has got a bad luck, and you
are not even capable enough to take care of her", which resulted into the
aggravation of the anger and the accused got provoked to such an extent that
he picked up a pestle which was lying nearby in the kitchen and hit her on
the head. Because of the said hit blow, blood gushed out from her head
which resulted in his getting panicked. He lost his mental stability and
picked up a knife and repeatedly stabbed her. Thereafter, he removed 2 gold
bangles from her hand and broke open the almirah and took out Rs. 50,000/-
and left. Thereafter, he threw away the knife, pestle and blood stained T-shirt
in a canal on his way to Patiala.
The confessional statement Ex.PW24/B has put light on the events
that took place chronologically at the relevant point of time. As such there
are two distinct situations, one which took place in the hall and other which
took place in the kitchen. The question that arises for consideration is, as to
what led the accused to follow the deceased to the kitchen. There was
sufficient time to understand by any prudent man, that the deceased was not
accepting his proposal to give him money., Despite that, the accused
followed her to the kitchen. Such action is not explained by the accused in
his statement Ex.PW24/B. Even if, it is assumed that there was a sudden
provocation, giving a blow with the pestle on the head of the deceased was
enough to give vent to the anger of the accused. His subsequent conduct of
not letting go, and rather of picking up the knife in the kitchen, and
repeatedly stabbing more than 15 times on the person of deceased is a brutal
act, and any prudent man would have knowledge that such an act would, in
all probability, result into a homicidal death.
Further, the accused still did not stop. He proceeded to remove
the two gold bangles from the injured/ deceased Smt. Pavitra Kaur, leaving
her behind all alone to die, and breaking open the almirah to steal cash
amounting to Rs. 50,000/- and running away from the spot after removing
the evidence, itself is sufficient to reject his claim that his case is covered by
Exception 4 to Section 300 IPC. The appellant took undue advantage of the
loneliness of the old helpless lady, who was his own aunt (mausi) and
attacked her brutally such that she suffered 17 injuries - two of which were
fatal independently. Therefore reliance is placed on Mohd. Asif V. State of
Uttaranchal (2009) 11 SCC 497.
18. Reliance placed by appellant on Hari Bahadur @ Hari V.
State (supra), Sanjay Kumar V. State (supra), Jamil @ Jamir V. State
(supra), Krishan Kumar @ Monu V. State (supra), Ajay Bind V. State
NCT of Delhi (supra), Ankush Shivaji Gaikwad V. State of Maharashtra
(supra) and Ashok Bind V. State (supra) is misplaced. As such accused is
guilty of taking undue advantage by stealing the gold bangles and cash
amounting to Rs. 50,000 /- after killing the deceased with a blow on the head
by a pestle and stabbing by knife. We have placed reliance on Akal
Mahomed (1865) 3 WR (Cr) 18.
Furthermore, reliance placed by appellant on SA V. AA (supra)
is of no relevance to the instant case. As the facts and contents of the said
case are vague to the instant case.
19. Thus we are of the opinion that the appellant has rightly been
found guilty of commission of offence under Section 302 and we place our
reliance on Dharumiah (supra), Aloke Nath Dutta (supra) and Mohd. Asif
(supra). Therefore, Judgment Dated 24.05.2017 and Order on Sentence
Dated 29.05.2017 passed by the learned Additional Session Judge is upheld.
20. For reasons aforementioned, there is no merit in the appeal and
same is dismissed accordingly. All pending applications are accordingly
disposed of.
21. LCR file be sent back forthwith alongwith a copy of this
judgment. No order as to costs.
I.S.MEHTA
(JUDGE)
VIPIN SANGHI, J.
1. I have read the opinion of my learned Brother I.S. Mehta, J. I entirely
agree with his reasoning and conclusion that the appeal merits dismissal.
However, I consider it necessary to say a few words, particularly, in respect
of the alternate submission of the appellant that the offence, in the present
case, does not fall under Section 300 IPC, but under Section 304 IPC on
account of the same being covered either by Exception 1, or Exception 4 to
Section 300 IPC.
2. Section 300 IPC reads as follows;
"Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is
caused is done with the intention of causing death, or-
Secondly- If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause
the death of the person to whom the harm is caused, or-
Thirdly- If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to
cause death, or-
Fourthly,- If the person committing the act knows that it
is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is likely
to cause death, and commits such act without any excuse
for incurring the risk of causing death or such injury as
aforesaid.
Exception 1- When culpable homicide is not murder-
Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and
sudden provocation, causes the death of the person who
gave the provocation or causes the death of any other
person by mistake or accident.
Exception 2- Culpable homicide is not murder if the
offender, in the exercise in good faith of the right of
private defense of person or property, exceeds the power
given to him by law and causes the death of the person
against whom he is exercising such right of defense
without premeditation, and without any intention of
doing more harm than is necessary for the purpose of
such defense.
Exception 3- Culpable homicide is not murder if the
offender, being a public servant or aiding. a public
servant acting for the advancement of public justice,
exceeds the powers given to him by law, and causes
death by doing an act which he, in good faith, believes to
be lawful and necessary for the due discharge of his duty
as such public servant and without ill-will towards the
person whose death is caused.
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.
Exception 5- Culpable homicide is not murder when the
person whose death is caused, being above the age of
eighteen years, suffers death or takes the risk of death
with his own consent."
3. Culpable homicide is murder, if the act by which the death is caused is
done with the intention of causing death, unless the case falls in one of the
Exceptions 1 to 5. The "Secondly", "Thirdly" and "Fourthly" clauses of
Section 300 seek to deal with different species of the cases - the genus
whereof is the generally stated principle, that intentional culpable homicide
is murder. The different species dealt with in the fine exceptions take the
case out of "murder".
4. Thus, even if the benefit of the doubt were to be given to the accused
that the act by which the death was caused, was not done with the intention
of causing death, or with the intention of causing such bodily injury as he
knew to be likely to cause the death of the deceased, it needs examination
whether the act which caused the death of the deceased, in the present case,
was done by the accused with the intention of causing bodily injury, and the
bodily injury intended to be inflicted was sufficient in the ordinary course of
nature to cause the death i.e. whether the case falls in the "Thirdly" category
of Section 300.
5. In Virsa Singh v. State of Punjab, AIR 1958 SC 465, the Supreme
Court examined Section 300 IPC, particularly, the "Thirdly" clause thereof.
At this stage, we may observe that even as per the case of the prosecution,
the present does not appear to be a case falling in the first category, namely,
where the act by which the death is caused is done with the intention of
causing death. This category is ruled out, since there was no pre-meditation
on the part of the accused to cause the death of the deceased - his maternal
aunt. He did not go armed with any weapon to the house of the deceased, and
the death was caused with the use of the articles/ weapon found at the spot.
6. In Virsa Singh (supra), the Supreme Court observed that in respect of
a case covered by the "Thirdly" clause of Section 300 IPC, the prosecution
must, firstly, establish objectively, that a bodily injury is present; secondly,
the nature of injury should be established; thirdly, it must be proved that
there was an intention to inflict that particular bodily injury i.e. to say, 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 inquiry
proceeds further and it must be proved that the injury of the type described
above is sufficient to cause death in the ordinary course of nature. This part
of enquiry is purely objective and inferential, and is not related to the
intention of the offender.
7. Once these elements are established by the prosecution in discharge of
its burden, the offence is of murder under Section 300 IPC "Thirdly". It
does not matter that there was no intention to cause death, or there was no
intention even to cause an injury of a kind that is sufficient to cause death in
the ordinary course of nature. It is also not relevant that there is no
knowledge that an act of that kind will be likely to cause death. The
intention to cause the bodily injury - which caused the death, and which is
sufficient in the ordinary course of nature to cause death, is sufficient to
bring the case under Section 300 IPC "Thirdly".
8. In the facts of the present case, the evidence on record conclusively
establishes that the appellant inflicted injuries on the body of the deceased
while intending to cause those injuries. This is so established from- firstly,
the nature; location, and; number of injuries, and the weapon used to cause
the injuries, and; secondly, from the confessional statement of the accused
which stands duly corroborated. The injuries inflicted on the body of the
deceased were not accidental; or, suffered during a fight; or, caused due to
intervention of any external factor or force beyond the control of the
accused. They were inflicted by the voluntary, conscious positive act of the
accused. The objective medical opinion has established that two of the
injuries were independently sufficient to cause the death of the deceased.
9. Mr. Singhal made a feeble attempt to invoke Exception 1 to Section
300 IPC. In K.M. Nanavati v. State of Maharashtra, 1962 AIR 605, the
Supreme Court held that the following conditions must be complied with for
attracting Exception 1 to Section 300 IPC
"i) The deceased mush have given provocation to the
accused,
ii) The provocation must be grave,
iii) The provocation must be sudden,
iv) The offender, by reason of the said provocation,
shall have been deprived of his power of self-control.
v) He should have killed the deceased during the
continuance of the deprivation of the power of self-
control, and
vi) The offender must have caused the death of the
person who gave the provocation or that of any other
person by mistake or accident."
10. In the present case, the provocation that the accused attributes to the
deceased is a taunt/ reprimand by the deceased to the accused that he could
not look after his own mother. Even if this version of the accused were to be
accepted, the same certainly does not fall within the meaning of "Grave
Provocation". Moreover, the so - called provocation was not, in any event,
sufficient to deprive any ordinary man of his power of self control. The
accused himself claimed that after he gave the first blow with the pestle,
blood gushed out, and he panicked. However, he did not stop; he did not
attempt to rescue his aunt (mausi). On the contrary, he saw the knife, picked
it up and stabbed her. He himself states that he does not know how many
times he stabbed her. After she was seriously injured by him, he went on to
remove the bangles from her hand and also took out Rs. 50,000/- from her
almirah after breaking the lock with the knife. Thus, the submission of Mr.
Singhal that the case is covered by Exception 1 of Section 300 IPC has no
merit.
11. Returning to deal with the submission of Mr. Singhal premised on
Exception 4 to Section 300 IPC, we may observe that the pivotal question
that the Court has to decide is the question of intention of the accused in
committing the act that he did, which led to the culpable homicide of the
deceased. In Pulicherla Nagaraju @ Nagaraja Reddy v. State of A.P.,
(2006) 11 SCC 444, the Supreme Court observed that the intention to cause
death can be gathered generally from a combination of a few or several of
the following, among other, circumstances:
" 29. ... ... ...
i) Nature of the weapon used; ii) whether the weapon
was carried by the accused or was picked up from the
spot; iii) whether the blow is aimed at a vital part of the
body; iv) the amount of force employed in causing injury;
v) whether the act was in the course of sudden quarrel or
sudden fight or free for all fight; vi) whether the incident
occurs by chance or whether there was any pre-
meditation; vii) whether there was any prior enmity or
whether the deceased was a stranger; viii) whether there
was any grave and sudden provocation, and if so, the
cause for such provocation; ix) whether it was in the heat
of passion; x) whether the person inflicting the injury has
taken undue advantage or has acted in a cruel and
unusual manner; xi) whether the accused dealt a single
blow or several blows. The above list of circumstances
is, of course, not exhaustive and there may be several
other special circumstances with reference to individual
cases which may throw light on the question of
intention... ...".
12. In Babulal Bhagwan Khandare V. State of Maharashtra, (2005) 10
SCC 404, the Supreme Court brought out the distinction between cases
covered by Exception 1 and Exception 4 to Section 300 IPC. The fourth
Exception covers acts done in sudden fights. It covers cases of provocation,
which are not covered by the 1st Exception. The two Exceptions are founded
upon the same principle, for in both there is absence of pre-mediation, 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, but the injury done is
not the direct consequence of that provocation. Exception 4 deals with cases
in which, notwithstanding that a blow may have been struck, or some
provocation may have been given 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 in each situation is clearly not
traceable to unilateral provocation, nor in such cases the whole blame can be
placed on one side. The Supreme Court observed;
"18. .... .... The help of Exception 4 can be invoked if
death is caused (a) without pre-meditation; (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 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 had
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
pre-meditation. It must further be shown that the
offender has not taken undue advantage or acted in a
cruel or unusual manner. The expression "undue
advantage" as used in the provision means "unfair
advantage".
19. Where the offender takes undue advantage or has
acted in a cruel or unusual manner, the benefit of
Exception 4 cannot be given to him. If the weapon used
or the manner of attack by the assailant is out of all
proportion, that circumstance must be taken into
consideration to decide whether undue advantage has
been taken... ....".
13. When the facts of the present case are viewed in the aforesaid light,
the present case cannot be categorised as one falling under Exception 4 to
Section 300 IPC. The defence of the accused is not that of a "fight". Neither
in his confessional statement, nor in his statement recorded under Section
313 Cr.P.C. does he claim that the deceased was embroiled in a "fight" with
him. There is no evidence of it. No injury suffered by the accused at the
hands of the deceased. The confessional statement of the accused is that
while the deceased was busy cooking food in the kitchen, he inflicted a blow
on her head with a metal pestle. It was for the accused to show, firstly, that
there was a sudden quarrel and there was no pre-meditation. Even if his
submission that there was no pre - meditation is accepted, it was for the
accused to show that he had not taken undue advantage or acted in a cruel or
unusual manner. Unfortunately, the facts on record do not support this
defence of the accused, as he continued to inflict injury upon injury upon on
the old lady - his aunt (mausi) - including on vital parts of her body. Even
after she fell down - after the strike from the metal pestle on her head by the
accused, there were 17 injuries inflicted on her body - two of which were
sufficient to cause death independently in the ordinary course. The accused
took undue advantage of her being alone and being an old lady. That is how
he continued to assault her, even after she fell down after the first blow with
the metal pestle on her head. He also proceeded to remove her gold bangles
and, thereafter, the cash from the locked drawer after breaking the lock.
14. The decisions relied upon by the accused are not apposite in the facts
of the present case. In Ajay Bind (supra) the deceased asked the accused to
keep quiet while they were embroiled in a quarrel amongst themselves in
highly inebriated condition. The deceased was struck with weapons such as
hammer, danda and saria picked up from the spot. The court held that the
case did not fall under Section 302 IPC in the light of the aforesaid factual
background. Intervention by the deceased to loudly command the appellants
to keep quiet resulted in their attention - while they were running high
temper, getting directed towards the deceased. The offence was committed
by use of weapons picked up from the spot which are not dangerous
weapons, but were ordinary tools lying on the spot. There was no pre -
meditation and the violence was a result of sudden provocation in the
ongoing fight between the appellants, which came from a stranger i.e. the
deceased. On facts, this case is clearly distinguishable from the present one.
15. In Ankush Shivaji Gaikwad (supra), the dog of the deceased started
barking on the accused. The accused hit the dog with an iron pipe that he
was carrying in his hand. The deceased objected to the beating of the dog
and this led to a verbal duel and scuffle between the two. The court accepted
the defence that the incident took place in a sudden fight without any pre-
meditation. The act of hitting the deceased was done in the heat of passion
upon a sudden quarrel, and the appellants did not take undue advantage. Nor
they acted in a cruel or unusual manner while committing the offence. As
aforesaid, there was no pre-meditation; the weapon used was not lethal and;
the deceased was not given a second blow once he collapsed to the ground.
16. This case is distinguishable on facts since the accused did not hit the
deceased after he fell down. However, in the present case even, though there
was no scuffle or fight, the accused kept on hitting the deceased incessantly
even after she fell down after the first blow on her head given by the accused
by the use of metal pestle.
17. Ashok Bind (supra) is also distinguishable on facts. It was a case
where the deceased was sleeping on a bench on the railway platform. His
friend was sitting on the bench and was awake. The accused came to the
platform with a bag and asked them to get up. However, the friend refused
to do so. This led to a quarrel. The accused went to a nearby gutter, picked
up a stone from there and hit the same on the head of the deceased who was
deep in sleep. He suffered injuries on his head and died. The court held that
the case did not fall under Section 300 IPC as there was no evidence of pre-
meditation. The incident happened in a sudden quarrel and in the heat of
passion. Once again, for the reasons aforesaid, this case is clearly
distinguishable on facts.
18. Reliance is also placed by the appellant on Sanjay Kumar (supra). In
this case the accused was consuming alcohol on the day of Chhat Puja, a
sudden quarrel ensued between him and one Akshay - one of the two
deceased. On being separated, the appellant ran inside the factory where he
was working and also residing. He picked up a jug from a can nearby, filled
nitric acid in the jug and splashed the same on the two deceased who died
due to acid burns. The conviction of the appellant was converted from one
under Section 302 to that of 304 Part II IPC on account of the sudden fight
between the accused and the deceased. There was no pre - meditation and
the offence was committed under the influence of alcohol.
19. Reliance is also placed on Jamir (Supra). In this case, the Court
invoked Exception 4 to Section 300 while returning a finding that the
offence took place without pre-meditation as a result of sudden fight and in
the heat of passion. The accused did not take undue advantage of the
circumstances of the deceased.
20. Reliance is also placed on Krishan Kumar (supra). In Krishan
Kumar (supra) a dispute arose between the accused and the deceased as they
both were interested in the same girl. The deceased was engaged to the said
girl. The accused and the deceased met in the company of two others. A hot
verbal dialogue resulted in a physical fight in which the accused Krishan
Kumar suffered injury of a deep cut on the fore finger of the right hand. The
ring finger of the left hand was decapitated.
21. In these circumstances, the Court held the case to be covered by
Exception 1 to Section 300 IPC and converted the conviction from one under
Section 302 IPC that to under Section 304 Part I IPC. On facts, this is
materially a different situation from the one at hand.
22. Reliance is also placed on Hari Bahadur (supra). In this case, the
accused surrendered before the police after commission of the crime i.e.
strangulation of his sister (muh boli behen) due to her activities and conduct.
He was given the benefit of Exception 4 to Section 300 on the premise that
there was no pre-meditation; there was no enmity between him and his sister
and he had no motive to commit the offence; there was hot exchange of
words that provoked the appellant to commit the crime; the exchange of
words in relation to the activities of the deceased led to a sudden fight which
culminated in the deceased being strangulated with a silk rope. The offence
was not committed by a lethal weapon and the accused did not act in an
unusual or cruel manner in the prevailing circumstances.
23. Thus, the decisions relied upon by the appellant are of no avail to him.
In fact, in our view, in the facts of the present case, the decision in Kikar
Singh (supra), relied upon by the learned APP is apposite. The accused and
deceased owned neighbouring agricultural land and an altercation broke out
between them since the appellant was throwing soil on the land of the
deceased. The deceased sought to persuade the appellant not to do so and
settle the matter amicably. The appellant, however, was annoyed with the
conduct of the deceased, his sons and son in law. The son of the accused
instigated the accused and he inflicted a blow with kassi (spate, sharp edged
cutting instrument) on the head of the deceased and with its impact the
deceased fell down. The appellant thereafter inflicted two more injuries on
deceased. The Supreme Court in this case observed as follows:
"5. ... ... Even if we assume that the appellant committed the
offence during the course of a verbal quarrel between the
appellant and the deceased one cannot escape from the
conclusion that the offence is one of murder.
6. Section 299 IPC defines that whoever causes death by
doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause
death, or with the knowledge that he is likely by such act to
cause death, commits the offence of culpable homicide. Under
Section 300 except in the cases thereinafter excepted, culpable
homicide is murder ..., thirdly, if it is done with the intention of
causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of
nature to cause death. Exception 4 thereof provides that
culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a
sudden quarrel and without the offender's having taken undue
advantage or acted in a cruel or unusual manner. Under
Section 302 whoever commits murder shall be punished with
death, or imprisonment for life, and shall also be liable to fine.
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,
or with fine, or with both. Under second part of Section 304
IPC 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.
7. It is, therefore, clear that culpable homicide is murder
when the accused causes death by doing an act with the
intention of causing death, or causing such bodily injury as is
likely to cause death, or with the knowledge that he is likely by
such act to cause death. If the accused intentionally causes
bodily injury which is found to be sufficient in the ordinary
course of nature to cause death it would attract clause Thirdly
of Section 300 IPC. If the accused knows that the act he causes
is so imminently dangerous that it must, in all probability,
cause death or such bodily injury as is likely to cause death,
and commits such act without any excuse for incurring the risk
of causing death or such injury it would attract clause Fourthly.
It would be murder unless it is brought in any one of the
exceptions. In a given case even if the case does not fall in any
of the exceptions, still if the ingredients of clauses (1) to (4) of
Section 300 are not satisfied, then it would be culpable
homicide not amounting to murder punishable under Section
304 either clause (1) or clause (2). It is, therefore, the duty of
the prosecution to prove the offence of murder.
24. I am, therefore, of the considered view that there is no merit in the
alternate submission that the case is covered by Exception 1 or Exception 4
to Section 300 IPC. I agree with the view taken by my learned brother
Justice I.S. Mehta that the appellant stands rightly convicted and sentenced
by the Trial Court and the appeal deserves to be dismissed.
VIPIN SANGHI
(JUDGE)
DECEMBER 14, 2018
JUDGMENT OF THE COURT
In view of the above, the appeal is dismissed.
VIPIN SANGHI
(JUDGE)
I.S.MEHTA
(JUDGE)
DECEMBER 14, 2018
