Full Judgment Text
$~2, 3, 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Judgment: 28 July, 2017
+ CRL.A. 62/2017
RAHUL @ RAJENDER ..... Appellant
Through: Mr. Rakesh Sherawat, Mr. Sheen
Sherawat and Mr. Kamal Chaudhary,
Advocates
versus
THE STATE (GOVT OF NCT OF DELHI) ..... Respondent
Through: Ms. Radhika Kolluru, APP for the
State alongwith Inspector Ram
Sahay and SI Arvind Kumar, P.S.
Jaitpur.
+ CRL.A. 585/2017
VIPIN KUMAR ..... Appellant
Through: Mr. Chetan Lokur and Mr. Nitish
Chaudhary, Advocates
versus
STATE ..... Respondent
Through: Ms. Radhika Kolluru, APP for the
State alongwith Inspector Ram
Sahay and SI Arvind Kumar, P.S.
Jaitpur.
+ CRL.A. 693/2017
RAMAN KUMAR ..... Appellant
Through: Mr. Sumeet Verma, Advocate
versus
STATE ..... Respondent
Through: Ms. Radhika Kolluru, APP for the
State alongwith Inspector Ram
Sahay and SI Arvind Kumar, P.S.
Jaitpur.
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 1 of 20
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J. (ORAL)
1. Three appeals (being Crl.A.Nos.62/2017, 585/2017 and 693/2017)
have been filed under Section 374 sub-Section (2) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as „Cr.P.C.‟ ) against
the judgment of the Trial Court dated 02.12.2016 in Sessions Case
No.1944/2016, FIR No.405/2012, Police Station Jaitpur by which all
the three appellants have been convicted for the offence punishable
under Section 302/34 of the Indian Penal Code (hereinafter referred to
as ‘IPC’) and under Section 308/34 IPC and the order on sentence
dated 05.12.2016, by virtue of which all the appellants have been
sentenced to undergo imprisonment for life with a fine of Rs.5,000/-,
in default of payment of fine to further undergo simple imprisonment
for six months each for the offence punishable under Section 302 read
with Section 34 of IPC. All the three appellants have been further
sentenced to undergo rigorous imprisonment for a period of three
years with a fine of Rs. 2,500/- each, in default of payment of fine to
further undergo simple imprisonment for three months for the offence
punishable under Section 308 read with Section 34 of IPC.
2. Since all the three appeals arise out of the common judgment and
order on sentence, the same are being disposed of by a common
judgment.
3. Before the rival submissions of learned counsel for the parties can be
noticed, we deem it appropriate to state the case of the prosecution as
noticed by the learned Trial Court, which is reproduced as under:
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 2 of 20
“1. On 25.11.12 at about 23:37:19 hours, W. Ct. Sarika
Kumari (PW-11) received a call in Police Control Room
from phone number 9999263672 regarding incident of
stabbing at Gali No.A-1, Shakti Vihar, Meethapur, New
Delhi. She recorded the said information and thereafter,
forwarded the same to concerned authorities. She also filled
up prescribed Form Ex. PW-11/A in this regard.
2. In the intervening night of 25-26.11.2012 at about 11:33
hours, Ct. Kuldeep (PW-12) also received a call from phone
number 8750872204 about stabbing by 4-5 persons in a
barat which was in front of house of Mahesh Awana,
Ex-Counselor and one from offenders being over powered.
He recorded the said information and forwarded the same
to concerned operator. He filled up prescribed Form in this
regard which is Ex. PW-12/A.
3. On 25.11.12, information was received at Police Station
Jaitpur regarding quarrel vide DD No.40A and 41A. The
said DDs were marked to Inspector Dharam Pal Kalra
(PW-29) for necessary action. On receipt of said DDs,
Inspector Dharam Pal Kalra (PW-29) alongwith SI Rajiv
Ranjan, HC Matloob Ali (PW-20) and other staff went to the
spot i.e. Gali No.1, Meethapur, New Delhi, where ASI
Shailender Kumar (PW-21) and PCR staff were found
present. Blood of injured was found scattered at the spot.
They came to know that aquarrel had taken place in which
two boys had sustained stab injury. They also came to know
that injured was shifted to Samvedna Hospital, Om Enclave,
Faridabad, Haryana. Thereafter, they went to Samvedna
Hospital, where they came to know that Ravi was declared
brought dead by the doctor. Body of deceased was shifted to
AIIMS Mortuary through ASI Shailender Kumar (PW-21)
and got it preserved.
4. On 26.11.12, HC Mahender Singh (PW-18) received
message from Trauma Centre, AIIMS through telephone
that Rajinder @ Raju son of Ramji Lal r/o House No.1001,
B-Block, Sangam Vihar, Delhi aged 36 years was admitted
in injured condition vide MLC No.341805/13 by his
relatives, who got injured in quarrel which had taken place
at School Road, Meethapur, New Delhi. He recorded the
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 3 of 20
said DD at serial No.5 in the DD Register vide Ex.
PW-18/A. The said DD was sent to Inspector Dharam Pal
Kalra (PW-29) through Ct. Rajender Singh.
5. Inspector Dharam Pal Kalra (PW-29) went to AIIMS
Hospital, where injured Rajinder (PW-1) was found
admitted in the hospital. He was declared fit for statement
by the doctors. Inspector Dharam Pal Kalra (PW-29)
recorded statement of injured vide Ex. PW- 1/A. Thereafter,
they came back to the spot. He prepared rukka Ex. PW-29/B
on the statement of Rajinder Kumar Ex. PW-1/A and handed
over the same to Ct. Deepak (PW-23) for registration of FIR
in the case. Ct. Deepak (PW-23) went to Police Station, got
the FIR registered in the case and thereafter, came back to
the spot and handed over copy of FIR and asal tehrir to the
IO of the case. Inspector Dharam Pal Kalra (PW-29) called
crime team for inspection at the spot. The Crime Team
came, inspected the spot and thereafter, prepared Crime
Report Ex. PW-4/A. He prepared site plan Ex. PW- 29/A at
the instance of Gaurav (PW-5), relative of complainant
Rajinder. Thereafter, he collected exhibits i.e. earth control
with and without blood separately and sealed them in the
plastic jar in the pullanda with the seal of DPK and seized
the same vide Ex. PW-20/A. He seized marriage card Ex.
PW-23/P-1 produced by Suresh Kumar (PW-7) vide Ex.
PW-23/F.”
4. After the investigation was completed, charges under Section
302/307/34 of IPC were framed against all the appellants on
11.04.2013 to which they pleaded not guilty and claimed to be tried.
5. To bring home the guilt of the appellants, the prosecution examined as
many as 29 witnesses. No evidence was led by the appellants in their
defence. The statements of the appellants were recorded under Section
313 of Cr.P.C wherein they claimed to be innocent and alleged false
implication.
6. Mr. Chetan Lokur, learned counsel for the appellant Vipin Kumar and
Mr. Sumeet Verma, learned counsel for the appellant Raman Kumar
submit that even as per the case of the prosecution, the quarrel had
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 4 of 20
erupted in the marriage pandal where the appellants and deceased had
gone to attend the marriage. It is submitted that in this case there was
no pre-meditation. A single injury was caused on the deceased and
the appellants did not act in an unusual or cruel manner. Even
otherwise, there is no evidence on record that the appellants had
entered the marriage pandal with a knife. Additionally, counsels for
the appellants submit that all the parties were in a happy state of
affairs and, in fact, were drunk. In such a situation, the fight had
erupted in the pandal in the spur of the moment and they were advised
to leave the pandal so that the marriage ceremony would not be
disturbed. It is on leaving the pandal and on account of a sudden
quarrel that the incident had taken place.
7. Mr. Chetan Lokur, learned counsel for the appellant Vipin Kumar and
Mr. Sumeet Verma, learned counsel for the appellant Raman Kumar,
on instructions, submit that they do not press the appeals on merits
and submit that the case of the appellants would fall under Section 304
Part II and only wish to contest the matter with regard to the quantum
of sentence so awarded to the appellants.
8. Learned counsels submit that as far as offence under Section 308 IPC
is concerned, since they have been addressing their arguments on the
quantum of sentence, they would not address any argument on the
charge so framed against them. Reliance is placed on the judgments
in the case of Jagtar Singh. v State of Punjab , reported at (1983) 2
SCC 342 and Ajay Bind v. State NCT of Delhi reported at 2017 SCC
Online Del 9033 .
9. Mr. Rakesh Sherawat, learned counsel for the appellant Rahul @
Rajender, however, submits that no case is made out against Rahul as
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 5 of 20
there is no evidence on record on the basis of which appellant Rahul
could have been convicted.
10. Per contra , Ms. Radhika Kolluru, learned counsel for the State
submits that in the present case, as per the testimony of PW1 Rajinder
Kumar, three injuries were caused on the deceased, one injury was
caused on the neck and the other injuries were on the vital parts of the
body. She further submits that having regard to the weapon of
offence, the Trial Court has rightly returned the finding and convicted
the appellants.
11. Learned counsel for the State submits that the evidence produced on
record clearly establishes the guilt of the appellants and the learned
Trial Court has rightly convicted the appellants for the offence
punishable under Section 302/308/34 of IPC, hence the impugned
judgement does not call for any interference.
12. We have heard learned counsel for the parties, who have taken us
through the evidence in the matter. We have also given our thoughtful
consideration to the submissions, which have been made before us.
13. Prior to dealing with the rival contentions raised at the bar, we deem it
appropriate to revisit the law on the evidentiary value of the injured
witness.
Evidentiary value of an injured witness:
14. Undoubtedly, the testimony of injured witness cannot be brushed
aside lightly. The injuries sustained by the injured witness at the time
and place of occurrence, lends support to his testimony that he was
present during the occurrence. The Courts have time and again
emphasised that the deposition of an injured witness should be relied
upon unless there are strong reasons for rejection of his evidence on
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 6 of 20
the basis of major contradictions and discrepancies therein. It is highly
improbable that the injured witness will not want to let his actual
assailant go unpunished merely to falsely implicate a third party for
the commission of the offence.
15. We may notice a judgment of a co-ordinate bench of this Court, of
which one of us (G. S. Sistani, J.) was a member in Harender Singh
vs. State of Delhi reported at 2016 SCC Online Delhi 1368, wherein
the evidentiary value of testimony of injured witnesses was discussed.
It was observed by this Court that the testimony of an injured witness
is a highly corroborative piece of evidence. Unless highly compelling
circumstances are established by the accused which casts a reasonable
doubt over the statement of the injured witness, such statement can be
safely relied upon by the Courts to convict the accused persons. (Also
see Vikas @ Lala v State (NCT of Delhi) reported at
MANU/DE/0968/2016 )
16. PW1 Rajinder in his examination-in-chief deposed that on 25.11.2012
at about 11:00 pm, a fight erupted at a marriage ceremony of his
cousin namely Kuldeep (PW-10). He deposed that some boys from
the Baraties started quarrelling with each other. He along with Ravi
(hereinafter referred to as ‘deceased’) tried to pacify those people who
were quarrelling. PW1 identified all the appellants in Court and
deposed that when they tried to separate them, the appellants started
abusing him and caught hold of the deceased and started stabbing him.
He further deposed that the appellant Raman stabbed him on his
shoulder with a knife. He and the deceased were taken to Samvedna
Hospital by his cousin Gaurav. PW1 was also accompanied to the
hospital by his mausi, his mother and sister Sunita. The deceased was
declared brought dead in Samvedna Hospital while he was shifted to
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 7 of 20
Trauma Centre, AIIMS. Police came there and recorded his statement
which is Ex.PW1/A. He deposed that he was discharged from the
hospital and returned to his house. He failed to identify the knife with
which he was attacked. At that stage, learned APP wanted to ask a
leading question from the witness which reads as under:
“It is true that I had disclosed to IO in my statement that it
was accused Vipin who stabbed me with knife. It is true that
after hearing commotion, my brother Sunil also reached at
spot. It is true that knife shown by me today i.e. Ex.P-1 is
same knife which by which I as well as deceased Ravi were
stabbed by accused. Vol. that knife was similar as the knife
of case property but I cannot say that it is same knife or
not.”
17. PW1 Rajinder in his cross-examination stated that he could not see the
assailants when the deceased was stabbed. As per the witness, the
same assailant first hit him and then the deceased was attacked. He
voluntarily stated that he saw the assailants immediately after they
assaulted him as well as the deceased. PW1 further stated that he was
discharged from the hospital in the morning of the same night.
18. The evidence of the eyewitness PW1 is sought to be corroborated by
the evidence of PW5 Gaurav who reached the spot immediately after
the appellants killed the deceased and was at a distance of about 10-15
feet. PW5 testified that on 25.11.2012, he had gone to attend the
marriage function of his cousin Kuldeep. At about 10-10:30 pm, a boy
told him that baraties were quarrelling. He along with Rajinder
(PW1), deceased Ravi and Sunil (PW6) went there and saw that all the
appellants were quarrelling with gharaties (persons from the side of
bride). They tried to pacify the matter but the appellants had started
quarrelling with them. Rajinder and the deceased took the appellants
out of the pandal to pacify them while he was standing near his car
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 8 of 20
outside the said pandal . On hearing the noises of quarrel, he reached
the spot and found that the appellant Vipin was having a knife in his
hand and Rajinder was bleeding from his left shoulder. The deceased
was lying in naali having lost his senses. The deceased was taken to
the Samvedna hospital by Sunil while he took Rajinder to the hospital
in his car. The deceased was declared as brought dead by the attending
doctors. The deceased sustained injuries on his neck and other parts of
the body. PW1 Rajinder was referred to Trauma Centre for further
treatment. He further deposed that one of the assailants namely Raman
was apprehended from the spot itself. PW5 correctly identified all the
three appellants in Court, who were involved in the incident and also
correctly identified the knife Ex.P-1 carried by the appellant Vipin at
the time of incident.
19. Another witness, PW 6 Sunil @ Sonu was also present at the wedding.
He deposed that he had not witnessed the incident of stabbing and on
hearing the words ‘ chaku lag gaya chaku lag gaya‟ he went outside
the pandaal and found his brother Rajinder bleeding and also found
the deceased lying in the naali and also helped him out. He deposed
that the deceased had lost his senses and was bleeding profusely. The
deceased was taken to Samvedna Hospital by him in a car while his
brother Rajinder was taken to the hospital by Gaurav. As to the
identification of the appellants in Court, PW6 turned hostile and did
not support the case of prosecution.
20. In view of the evidence discussed in aforegoing para 17 to 20, the
presence and involvement of the appellants Vipin Kumar and Raman
Kumar stands established. Both the appellants in furtherance of their
common intention, inflicted injuries upon the deceased Ravi and
Rajinder (PW1).
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 9 of 20
21. Besides above public witnesses, PW2 SI Hira Singh deposed that on
26.11.2012, he was posted as Duty Officer at PS Jaitpur. On that day,
at about 9.20 AM he recorded FIR No. 405/12 and has proved the
same as Ex.PW2/A. He also proved his endorsement on rukka as
Ex.PW2/B. PW3 HC Hari Singh recorded DD No. 40A on 25.11.2012
at 11.39 PM and has proved the same as Ex.PW3/A. PW4 SI Krishan
Kumar was posted as Incharge Crime Team; South East who reached
the spot after the information was received on 26.11.2012 at about
2.00 AM. He inspected the spot and prepared a report which was
proved by him as Ex.PW4/A.
Medical Evidence :
22. PW25 Dr. Akhilesh Raj, SR FMT AIIMS Hospital, New Delhi
deposed that on 26.11.2012, he conducted post-mortem on the dead
body of the deceased. His detailed report is Ex.PW25/A wherein he
noted following external ante-mortem injury on the dead body of
deceased.
“External Antemortem injuries: A stab wound (puncture)
present (horizontal) over right lateral aspect of neck. It is
spindle shape. It is 2.5 cm x 1.8 cm (length and width). The
track is oblique, towards medial and downwards. It is
through skin subcutaneous fascia, deep fascia, fat, muscles
and vessels (carotid artery and juglar vein of right side)
clotted blood of around 300 CC present. The time since
death in this case was about 1416 hours.”
23. PW25 Dr. Akhilesh Raj opined that the cause of death of deceased
was shock due to haemorrhage caused by stab injury on neck which is
sufficient to cause death in the ordinary course of nature.
24. We may note that PW1 Rajinder also sustained injuries during the
commotion and was examined vide MLC No. 341805, dated
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 10 of 20
26.11.2012 at 6.58 AM. MLC was proved by PW28 Dr. Sanjeev Bhoi
as Ex.PW28/A and reads as under:
“Incised wound (incised wound 2x1x1 cm over neck)
Incised wound (incised wound 2x2x2 cm below RT
shoulder)
Incised wound (incised wound 2x2x2 cm over RT shoulder)
Stab (Stab wound 3x2x4 cm over LT thigh)
Abrasion (minor abrasion over LT knee)”
25. As per MLC (Ex.PW28/A), the nature of injuries sustained by PW1 as
grievous blunt. PW1 was discharged from the hospital on the same
day of the incident. So far as conviction of the appellants Vipin
Kumar and Raman Kumar under Section 308 read with Section 34 of
IPC is concerned. We concur with the findings of the learned Trial
Court and upheld the conviction recorded under Section 308/34 of
IPC.
FSL Results:
26. PW24 Imrana, SSO (Biology), FSL Rohini, examined the exhibits of
the case. Her detailed report is Ex. PW-24/A and Serological report is
Ex. PW-24/B. As per the report, blood was found on the clothes of the
deceased and injured Rajinder (PW1) and the blood sample taken in
gauze of deceased and injured Rajinder has matched with the blood
found on the knife which was recovered at the instance of the
appellant Vipin.
27. This brings us to the moot question whether the present case is one of
deliberate or intentional killing resulting in the injuries, which would
be a case of murder under Section 302 of IPC; or, unintentional.
Further, if it is a case of unintentional and not a premeditated act and
had arisen out of sudden quarrel, on the spur of the moment whether it
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 11 of 20
falls under one of the special exceptions carved out under Section 300
of IPC?
28. In the case of Jagtar Singh v. State of Punjab reported at 1983 (2)
SCC 342 , in a trivial quarrel the appellant wielded a weapon like a
knife and landed a blow on the chest of the deceased. The Hon'ble
Supreme Court observed that the quarrel had taken place in the spur of
the moment. There was exchange of abuses. At that time, the appellant
gave a blow with a knife which landed on the chest of the deceased
and therefore, it was permissible to draw an inference that the
appellant could be imputed with a knowledge that he was likely to
cause an injury which was likely to cause death but since there was no
premeditation, no intention could be imputed to him to cause death.
The Apex Court, therefore, convicted the appellant under Section 304
Part II of the Indian Penal Code instead of Section 302 of the Indian
Penal Code and sentenced him to suffer rigorous imprisonment for a
period of five years.
29. We may usefully refer to a judgment rendered by the Hon’ble
Supreme Court in the case of Suresh Kumar v. The State of
Himachal Pradesh, reported at (2008) 13 SCC 459, wherein a fight
erupted at a marriage ceremony and the appellants took out a knife
and stabbed the deceased. The Hon’ble Supreme Court discussed the
application of Exception IV of Section 300 of IPC and modified the
conviction of the appellant from Section 300 to Section 304 Part I of
IPC and sentenced to 10 years imprisonment. Relevant para 16 and 17
read as under:
“16......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 an
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 12 of 20
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 could in
such cases 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
offenders 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 premeditation. 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‟.” [Ed.: As observed in Dhirajbhai Gorakhbhai
Nayak v. State of Gujarat, (2003) 9 SCC 322 at pp. 327-28,
paras 10-11.]
17. 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
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 13 of 20
attack by the assailant is out of all proportion, that
circumstance must be taken into consideration to decide
whether undue advantage has been taken. In Kikar Singh v.
State of Rajasthan (1993) 4 SCC 238, it was held that if the
accused used deadly weapons against the unarmed man and
struck a blow on the head it must be held that giving the
blows with the knowledge that they were likely to cause
death, he had taken undue advantage.
( Emphasis Supplied )
30. In a recent case of Ajay bind v. State NCT of Delhi , reported at 2017
SCC Online Del 9033, while dealing with a matter wherein a sudden
quarrel ensued between the appellants and the deceased’s family
which resulted in the death of the deceased by fatal blow to his head
and injuries were also sustained by his wife. This Court modified the
conviction of appellants from Section 302 to Section 304 part II by
giving them the benefit of Exception IV of Section 300 IPC and
sentenced them to rigorous imprisonment for a period of five years.
Relevant para 59 and 63 read as under:
“59. The evidence extracted above shows that the weapons
were not carried by the appellants but were picked up from
the spot. The acts were in the course of a sudden quarrel
and the incident occurred by chance without any pre-
meditation. There is no evidence at all of previous enmity.
On the contrary, the deceased was a stranger to the
appellants who was visiting the matrimonial home of his
daughter in the vicinity where the quarrel took place. The
incident was a result of the appellants getting provoked and
in a heat of passion.
63. Thus tempers of the appellants were already running
high. The evidence of Rampal (PW-6) is that the appellants
were quarrelling under the influence of alcohol. The
intervention by the deceased to loudly command the
appellants to keep quiet resulted in the attention and ill
temper becoming directed towards the deceased. It was in
this atmosphere of heightened temper that Ajay Bind picked
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 14 of 20
up the hammer lying at the spot. The other two picked up
the danda and the saria lying there itself. None of these are
dangerous weapons but ordinary tools lying on the spot
which came to be used as weapons. Clearly, the evidence
establishes that there was no pre-meditation and that the
violence was a result of sudden provocation in an ongoing
fight between the appellants from a stranger (the
deceased).”
(Emphasis Supplied)
31. In another recent case of Anil @ Hunny vs. State of NCT of Delhi ,
reported at 2017 SCC Online Del 8582 , another Division Bench of
this Court, of which one of us (G. S. Sistani, J.) was also a member,
modified the order of conviction of the appellant Anil from Section
302 of IPC to under Section 304 Part I of IPC wherein there were two
stab injuries sustained by the deceased and out of the two, only one
injury was sufficient to cause death. Similarly in the case of Sanjiv
Kumar @ Kalia vs. State reported at 2017 SCC Online Del 8893 , this
Court modified the conviction of the appellants from Section 302 of
IPC to under Section 304 Part I of IPC wherein there were two fatal
blows given to the deceased on the abdomen of the deceased with a
knife.
32. The present appeals are to be decided on the touchstone of the law laid
down by the Hon'ble Supreme Court and reiterated by this Court in the
aforegoing paras 30 to 33. Admittedly, the fact that the appellants gave
a single fatal blow with a knife to the deceased Ravi Kumar which
landed on his neck and this injury resulted in death of Ravi Kumar is
not open to dispute and not questioned before us. After analysing the
evidence on record, it is evidently clear that the occurrence has the
features of an incident in which the injuries are inflicted in a sudden
fight without pre-meditation in the heat of passion upon a sudden
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 15 of 20
quarrel within the contemplation of Exception 4 to Section 300 of
IPC, which takes the case out of the purview of murder.
33. As defined in the Exception 4, there was no premeditation on the part
of the appellants; the appellants were not armed prior to the incident
and only picked a knife from the spot. There is no evidence that the
appellants made special preparation for assaulting the deceased with
the intent to kill him. There is no dispute that the appellants assaulted
deceased in such a manner that the deceased suffered grievous
injuries, but considering the fact that the appellants did not act in a
cruel or unusual manner, did not take undue advantage. The medical
evidence further establishes there was only single injury sustained by
the deceased on the neck of the deceased which was opined as
sufficient to cause death in the ordinary course of nature.
34. Applying the law to the facts and circumstances of the present case,
we are persuaded to accept the alternative limb of submission
advanced by the learned counsel for the appellants Vipin Kumar and
Raman Kumar that the present case would fall within the ambit of
Section 304 Part I of IPC. We find force in the argument made by the
counsels for the appellants that the present incident was resulted due
to a quarrel which had erupted in the marriage pandal on the spur of
the moment where the appellants Vipin Kumar and Raman Kumar
alongwith the deceased had gone to attend the marriage. There was no
premeditation on the part of the appellants Vipin Kumar and Raman
Kumar and only single injury was caused to the deceased. There was
no evidence that the appellants had entered the marriage pandal with a
knife. All the parties were in a happy state of affairs and, in fact, were
drunk. This shows that the appellants Vipin Kumar and Raman Kumar
did not have the requisite intention to kill the deceased and the
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 16 of 20
incident had happened on the spur of moment which was ensued in a
scuffle during which there was hot exchange of words between the
appellants Vipin Kumar, Raman Kumar and the deceased. The ends of
justice would be met if we modify the sentence awarded to the
appellants Vipin Kumar and Raman Kumar and sentence them to
undergo rigorous imprisonment for a period of 6 years.
35. So far as the conviction of the appellant Rahul @ Rajender is
concerned. There is no evidence against the appellant Rahul @
Rajender. The testimonies of the prosecution witnesses available on
record have not ascribed any role to him in the commission of the
charged offence. Moreover, the Trial Court did not discuss the role of
the appellant Rahul in the impugned judgment which is challenged
before us. Therefore, the prosecution has not been able to prove its
case against the appellant Rahul @ Rajender for the offence
punishable under Section 302/308 read with Section 34 of IPC. No
cogent evidence was produced by the prosecution to prove his
involvement in commission of the crime. We are of the opinion that
his conviction under Section 302/308 read with Section 34 of IPC is
not sustainable in the eyes of law and the benefit of doubt is to be
given to the appellant Rahul. Accordingly, the appellant Rahul is
hereby acquitted of the charges levelled against him under Section
302/308/34 of IPC. Our view is further fortified by the following
judgment passed by this Court.
36. In the case of Haider Ali vs. State reported at 2015 SCC Online Del
12234 , another co-ordinate bench of this Court discussed the principle
of joint liability enshrined under Section 34 of IPC and set aside the
conviction of the appellant Haider Ali as there was no evidence with
regard to sharing of common intention with the main accused who
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 17 of 20
gave the knife blows to the deceased. It was observed by the Court
that mere presence of the appellant Haider Ali at the earlier grapple in
which no sharp weapon was used or even displayed would not result
in drawing the inference that he had shared common intention or that
the act of stabbing was in furtherance of common intention. Relevant
para 8, 12 and 15 read as under:
“8.....Use of knife and inflicting of blows was all of a sudden
and out of the blue in which the perpetrator who had given
the blows had taken out and used the knife. The other
person i.e. the appellant Haider Ali, in spite of the earlier
quarrel or grapple had distanced himself and was not a
participant, though present at the spot. Shanti-the deceased,
we also record, was not involved in the grapple with the
appellant, Dinesh and Lal Chand (PW-8).
12. Reference on the said aspect can be made to Lal Chand
v. Emperor; AIR 1931 Lah 523, wherein, it has been
observed:
“Section 34 laying down the constructive and joint
liability for acts done in furtherance of common
intention has no application to acts committed in the
course of sudden quarrel without any common
intention amongst the accused.”
15. Section 34 IPC has been enacted on the principal of
joint liability in the doing of a criminal act. The section is
only a rule of evidence and does not create a substantive
offence. The distinctive feature of the section is the element
of participation in action. The liability of one person for an
offence committed by another in the course of criminal act
perpetrated by several persons arises under Section 34 if
such criminal act is done in “furtherance of common
intention” of the persons who joins in committing the crime.
Direct proof of common intention is seldom available and,
therefore, such intention can only be inferred from the
circumstances appearing from the proved facts of the case
and the proved circumstances. In order to bring home the
charge of common intention, the prosecution has to
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 18 of 20
establish by evidence, whether direct or circumstantial, that
there was plan or meeting of minds of all the accused
persons to commit the offence for which they are charged
with the aid of Section 34, be if pre-arranged or on the spur
of the moment, but it must necessarily be before the
commission of the crime. The true precept of the Section is
that if two or more persons intentionally do an act jointly,
the position in law is just the same as if each of them has
done it individually by himself. As observed in Ashok
Kumar v. State of Punjab reported in (1977) 1 SCC 746 the
existence of a common intention amongst the participants in
a crime is the essential elements for application of this
section. It is not necessary that the acts of the several
persons charged with commission of an offence jointly must
be the same or identically similar. The acts may be different
in character, but must have been actuated by one and the
same common intention in order to attract the provision.
The Section does not say “the common intentions of all” nor
does it say “an intention common to all”. Under the
provisions of Section 34 the essence of the liability is to be
found in the existence of a common intention animating the
accused leading to the doing of a criminal “act” in
furtherance of such intention.”
( Emphasis Supplied )
37. Applying the aforesaid dictum in the facts and circumstances of the
present case, there was no common intention on the part of the
appellant Rahul to commit the alleged offence or the common
intention shared at the spot during the course of commission of the
said offence. In the absence of evidence against the appellant Rahul,
we are of the considered view that he should be released forthwith if
not involved in any other case. Accordingly, there is no evidence
which inspires confidence of this Court to convict him under Section
302/308 read with Section 34 of IPC.
38. Consequently, Crl.A.No.62/2017 is allowed and the appellant Rahul
@ Rajender is acquitted of all charges and be released, if not wanted
Crl.A.Nos.62/2017, 585/2017& 693/2017 Page 19 of 20
in any other case. Crl.A.Nos. 585/2017 and 693/2017 are allowed in
part, the conviction and order on sentence recorded by the Trial Court
against the appellants Vipin Kumar and Raman Kumar is modified
from Section 302 to Section 304 Part I of IPC and the appellants Vipin
Kumar and Raman Kumar are sentenced to undergo rigorous
imprisonment for a period of 6 years.
39. The appeals stand disposed of.
40. The fine imposed upon the appellants and the default sentence
awarded to them shall remain unaltered.
41. The copy of this judgment also be sent to the Superintendent-Central
Jail, Tihar for updating the jail records.
42. Trial Court record be sent back along with a copy of this judgment.
CRL.M.(B).996/2017 in CRL.A.585/2017
CRL.M.(B).1266/2017 in CRL.A.693/2017
43. In view of the above, the applications are dismissed as not pressed.
G. S. SISTANI, J.
CHANDER SHEKHAR, J.
JULY 28, 2017
//pst
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