Before :- Deepak Gupta and Aniruddha Bose, JJ.
Criminal Appeal Nos. 399 of 2010. D/d. 17.9.2019.
Amiruddin - Appellants
Versus
State (Delhi Admn.) - Respondents
For the Appellants :- Sanjay Hegde, Sr. Adv., Sarvam Ritam Khare, Ms. Meena Sehrawat, Adil Rasheed, Advocates.
For the Respondents :- Jayant K. Sud, Sr. Adv., S.S. Ray, S.K. Tyagi, B.V. Balaram Das, Advocates.
JUDGMENT
Deepak Gupta, J. - This appeal by the convict is directed against the judgment dated 26.08.2009 delivered by the High Court of Delhi upholding the conviction of the appellant under Section 302, IPC (Indian Penal code, 1860) passed by the Trial Court vide its judgment dated 23.03.1996. The appellant has been sentenced to undergo imprisonment for life and to pay a fine of L 1000/-.
2. We have heard learned counsel for the parties. Mr. Sanjay Hegde, learned senior counsel appearing for the petitioner submitted that taking all the facts as they are stated by the eye-witness to be true, the offence which is made out is not of murder but culpable homicide not amounting to murder under Part II of Section 304,IPC.
3. To appreciate this contention, it would be pertinent to refer to certain facts. On 12.01.1991, Ashok Kumar (PW5) and Manoj Kumar (PW10) were watching a movie at Neel Kanth Community Centre. Zahid (brother of the appellant) was also watching the movie. An altercation took place between Ashok Kumar and Manoj Kumar on one side and Zahid on the other. Zahid gave a blow on the nose of Manoj Kumar who immediately left the Community Centre and met his friends Raju (PW1), Ghanshyam (PW3), Chanderpal (PW4), Mukesh Kumar (PW15) and Rajinder Kumar (the deceased). Manoj Kumar informed his friends about this incident who all proceeded towards the Community Centre.
4. From the evidence of eye-witnesses, it is apparent that at the Community Centre stone pelting took place and it is obvious that the stone pelting was from both sides. However, according to the evidence which has been led by the eye-witnesses, the matter was pacified and thereafter the eye-witnesses along with the deceased were returning to their homes when at about 3.45 pm, the appellant suddenly came from behind shouting he would settle the matter once and for all and gave a blow with a knife on the back of Rajinder Kumar (the deceased). The blow was given with so much force that it went through the back, through the lungs and hit the main aorta causing loss of blood which ultimately led to the death of Rajinder Kumar.
5. As far as the Trial Court is concerned, there is not much discussion as to under which provision of law the accused shall be convicted. He was convicted for the offence of murder. The High Court has considered certain facts and come to the conclusion that the offence is of murder. Two aspects of the evidence mainly weighed with the High Court. Firstly that the accused had made an utterance to the following effect:
`YEH ROJ ROJ KI LARAI KHATAM KER DETA HOON'.
6. It is true that this utterance can mean that he wanted to eliminate the victim but it can also mean in general parlance to bring an end to the fight. This utterance in our considered view cannot lead to the conclusion that the intention of the accused was to kill the deceased. There is only one blow given to the deceased and that blow was given on the back of the deceased. Unfortunately, the blow was such that it went through the back and cut the aorta. If it had missed the aorta, probably the deceased would not have died.
7. We are of the view that the fact that there was a single blow and no attempt was made to give another blow and there is no evidence to show that the appellant was prevented from giving another blow indicate that his intention was not to kill the deceased.
8. The second aspect of the matter is whether the act of giving the blow with the knife was so imminently dangerous as to impute knowledge to the accused that would lead to the death of the deceased. It bears repetition that one blow was given and that too at the back. It cannot be said that the blow was so imminently dangerous as to impute knowledge to the appellant that he was committing such an act which would cause the death of the deceased.
9. In view of the above discussion, we are of the view that the accused should have been held guilty of committing the offence punishable under Section Part II of Section 304, IPC .
10. In the order dated 16.05.2014, it has been recorded that the appellant has undergone more than seven years of substantive sentence. In our view, this is sufficient incarceration to meet the ends of justice.
11. We, therefore, allow the appeal and convert the conviction of the accused from that punishable under Section 302, IPC to Part II of Section 304, IPC and reduce the sentence to the period already undergone. Bail bonds are discharged.
