Full Judgment Text
$~R-17 & 18
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 298/2015
th
Judgment reserved on: 17 February, 2016
rd
Judgment pronounced on: 23 March, 2016
VIKAS @ LALA …Appellant
Through : Ms. Saahila Lamba, Advocate
Versus
THE STATE (GOVT OF NCT), DELHI …Respondent
Through : Ms. Aashaa Tiwari, APP for the State with
W/Inspector Furqan Khan, ATO, Police
Station Patel Nagar
+ CRL.A. 939/2015
THE STATE (GOVT OF NCT), DELHI ..…Appellant
Through : Ms. Aashaa Tiwari, APP for the State with
W/Inspector Furqan Khan, ATO, Police
Station Patel Nagar
Versus
SMT KRISHNA DEVI & ORS. …Respondents
Through: Mr. Siddharth Yadav, Advocate for
respondent Nos. 1 to 3.
CORAM:
HON’BLE MR. JUSTICE G.S. SISTANI
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
1. Since the present appeals arise out of a common judgment, the same
have been heard together and are being disposed of by a common
judgment.
Crl. A. Nos. 298/2015 & 939/2015 Page 1 of 19
2. Present appeals arise out of a judgment dated 24.11.2014 and order on
sentence dated 26.11.2014 passed by the Additional Sessions Judge in
Sessions Case No. 54/10, by virtue of which the appellant Vikas @
Lala has been convicted under Section 302 of the Indian Penal Code
and sentenced to undergo imprisonment for life and to pay a fine of
Rs. 20,000/- and in default of the payment of fine to further undergo
simple imprisonment for two months. The Trial court acquitted the
other three accused persons for the offences under Sections
302/323/34 of the Indian Penal Code.
3. The brief facts of the case are as under:
“On 21.10.2009 at about 10 pm, Sh. Rakesh Gupta, and
his son Sunny @ Sanjay Gupta left their house to see
Ganesh, another vegetable seller. When both of them
reached in front of H. NO. T-313/16, Baljeet Nagar they
saw Lala @ Vikas (accused) coming from the side of Lal
Mandir towards his house. While so coming, he
intentionally hit Sh. Rakesh Gupta, the latter objected to
it. Lala @ Vikas accused then slapped Sh. Rakesh Gupta.
At that time, Smt. Krishna came out of the house and
grappled with Sh. Rakesh Gupta. When Sunny stepped
ahead to save his father, Smt. Krishna (accused) and her
two sons co-accused Rajesh and Naresh @ Tatu started
grappling with Rakesh Gupta. In the meanwhile, Smt.
Krishna went to her house and returned with a thick
danda and started beating Sh. Rakesh Gupta.
Sunny tried to snatch the danda away, but Rajesh
(accused) took over danda from his mother and started
beating Sunny. In the meanwhile Naresh @ Tatu, Vikas
@ Lala and Smt. Krishna accused started pushing and
dragging Sh. Rakesh Gupta towards H. No. T-313/14,
Baljeet Nagar. Sunny tried to save his father. He saw
Naresh @ Tatu, Rajesh and Smt. Krishna had caught
hold of his father and Vikas @ Lala dealt a chura blow in
Crl. A. Nos. 298/2015 & 939/2015 Page 2 of 19
the chest of his father. As a result, Sh. Rakesh Gupta fell
in front of T-313/14, Baljeet Nagar in injured condition.
Sunny rushed to his house to inform his mother but
accused persons chased him. From near from their
house, accused persons hurled glass bottle at Sunny. He
reached his house and told his mother and sister Kuneeta
about the occurrence. All three then reached the spot and
found Rakesh Gupta lying there in injured condition.
Someone informed police by dialing no. 100 that Rakesh
Gupta was removed from the spot to Janki Dass hospital
in a rickshaw who declared him brought dead. "
4. After completion of the investigation, charge sheet for the offence
under Sections 302/323/34 of the Indian Penal Code was filed. All the
accused entered the plea of not guilty and claimed trial. The
prosecution relied on the testimonies of 20 witnesses, besides the
exhibits produced during the trial. The trial court, after considering the
same, convicted appellant Vikas @ Lala for an offence under Section
302 of the Indian Penal Code and acquitted the accused Smt. Krishna
Devi, Naresh @ Tatu and Rajesh for the reason that the prosecution
failed to connect them with the crime. The statement under Section
313 of the Code of Criminal Procedure was recorded wherein the
accused persons denied all the incriminating circumstances appearing
in evidence against them and claimed to be falsely implicated.
Arguments raised by the counsel for the Appellant Vikas @ Lala in
Crl. A. 298/2015
5. Ms. Saahila Lamba, learned counsel appearing on behalf of the
appellant submits that the impugned judgment is based on conjectures
and surmises and the trial Court has erred in reaching a conclusion of
guilt against the appellant Vikas @ Lala.
Crl. A. Nos. 298/2015 & 939/2015 Page 3 of 19
6. Ms. Lamba vehemently argued that the testimony on record is so
interwoven that if it fails in convicting the other accused persons, the
same testimony could not be used in convicting the appellant Vikas @
Lala. Counsel further submits that there are material inconsistencies
and improvements in the testimonies of the material witnesses which
renders the entire case of the prosecution unreliable.
7. The counsel for the appellant submits that the case of the prosecution
is contradictory which does not inspire confidence and the conviction
cannot be sustained on the basis of a false and concocted story.
8. It is further contended by the counsel for the appellant that there was
no premeditation and the alleged incident happened in the heat of
passion upon a sudden quarrel. The counsel further contended that the
alleged incident happened in a spur of moment and since there was no
intention to kill the deceased and there being a single blow on the
chest of the deceased, the offence is not made out under
Section 302 of the Indian Penal Code but it falls under Section 304
Part II of the Indian Penal Code.
Arguments raised by learned Counsel for the State in Crl. A. No.
939/2015
9. With respect to the appeal filed by the State against the order of
acquittal with regard to accused Smt. Krishna, Rajesh and Naresh @
Tatu, Ms. Tiwari, learned counsel for the State submits that the entire
evidence led by the prosecution has not been appreciated by the trial
court in the correct perspective and the Trial Court has erred in
overlooking the testimonies of the material witnesses and the
impugned judgment dated 24.11.2014 acquitting the three accused
Crl. A. Nos. 298/2015 & 939/2015 Page 4 of 19
Smt. Krishna, Rajesh and Naresh @ Tatu/respondents is perverse.
The counsel further submits that there are no major contradictions and
improvements in the deposition of the witnesses warranting acquittal
of respondents herein and such improvements cannot be treated as an
attempt to falsely implicate the respondents. Counsel for the State
submits that the minor contradictions in the testimonies, if
any, are not material in nature so as to rule out its evidentiary value
completely. To substantiate her arguments, learned counsel for the
State has placed reliance upon Ashok Kumar Vs. State of Haryana
reported in (2010) 12 SCC 350, Shivlal & Ors. Vs. State of
Chhatisgarh reported in (2011) 9 SCC 561, Kuria & Anr Vs. State of
Rajasthan reported in 2012 XI AD SC 376 and Leela ram Vs. State of
Haryana reported in (1999) 9 SCC 525 .
10. Learned counsel for the State contends that the trial court convicted
the appellant Vikas @ Lala on the basis of the same set of testimonies
on which the other accused persons were acquitted. The counsel for
the State further submits that the trial court has erred in acquitting the
respondents by assuming that there is a tendency to falsely implicate
other members of the family by the victim. It is further contended that
the trial court has committed a grave error in law in passing the
impugned judgment, which according to her is based on erroneous
understanding of law.
Arguments raised by learned counsel for the respondents Smt.
Krishna, Rajesh and Naresh @ Tatu in Crl. A. 939/2015
11. Supporting the impugned judgment, learned counsel for the
respondents Smt. Krishna, Rajesh and Naresh @ Tatu submitted that
Crl. A. Nos. 298/2015 & 939/2015 Page 5 of 19
the instant case does not warrant any interference by this Court. It is
also contended that the witnesses have made substantial improvements
in their testimonies before the Court and there are material
contradictions in their statements which belies the case of the
prosecution.
12. The counsel further submitted that the substantial part of the
prosecution story has been disbelieved by the trial court. In an appeal
against the order of acquittal, this Court should be slow in disturbing
the order of acquittal with respect to the respondents herein. Counsel
submitted that the evidence on record clearly establishes the innocence
of the respondents and hence, the appeal deserves to be dismissed.
13. We have heard the learned counsel for both the parties and considered
their rival submissions and perused the impugned judgment as well as
the material available on record.
14. Undoubtedly the instant case of the prosecution rests on the testimony
of the sole eye-witness PW20 Sunny @ Sanjay Gupta (complainant).
It would be necessary to examine his testimony in the light of the well
settled principle that the statement of the sole eye-witness may be
relied upon provided that it does not leave any doubt in the mind of
the court and the same is corroborated by other evidence produced by
the prosecution in relation to the commission of crime.
15. In his complaint Ex.PW10/A, PW20 Sh. Sunny @ Sanjay Gupta (son
of the deceased) stated that he used to sell vegetables along with his
father and all the male accused persons used to come to his gali in
drunken condition and speak filthy language and also used to whistle
on seeing his sister (PW18); that on the fateful day at about 10:00 p.m.
Crl. A. Nos. 298/2015 & 939/2015 Page 6 of 19
when he along with his father was going to see one Ganesh and
reached house No. T-313/16, Baljeet Nagar, appellant Vikas @ Lala
was coming from the opposite direction and intentionally struck his
father on which his father asked him to walk properly; that appellant
Vikas @ Lala slapped his father and in between accused Krishna
followed by accused Rajesh and Naresh @ Tatu came out of their
house and started fighting with his father; that accused Krishna took
out one Danda from her house and started beating his father; that he
tried to save his father on which accused Rajesh took the Danda from
accused Krishna Devi and started beating him; that accused Naresh @
Tatu, Vikas @ Lala and Krishna dragged his father towards H. No.
313/14, Baljeet Nagar; that Naresh @ Tatu, Rajesh and Krishna Devi
caught hold of his father and appellant Vikas @ Lala stabbed his
father on his chest; that he ran towards his house and accused persons
chased him and threw glass bottles on him; that he returned to the spot
along with his mother and sister and saw his father in an injured
condition and removed him to Janki Dass Hospital, Pandav Nagar on a
rickshaw cart where the doctor declared him "Brought Dead".
16. The complainant stepped into the witness box as PW20 Sh. Sunny @
Sanjay Gupta and deposed as under:-
“On 21.10.2009, at about 10.00 p.m., I was present at
my house i.e. T-315/4A, Baljit Nagar, near Balmiki
Mandir, Delhi. My father Sh. Rakesh Gupta was also
present at the house. After taking dinner, I and my father
left the house to see Ganesh, who used to help in our
business i.e. sale of tomatoes on rehri. We were going
towards Lal Mandir within the area of Baljit Nagar.
When I and my father reached the street where H.
Crl. A. Nos. 298/2015 & 939/2015 Page 7 of 19
No.313/18, i.e. of the accused persons is situated. We
saw Vikas @ Lala accused coming from the opposite
side. Vikas @ Lala hit my father with his shoulder. My
father asked Lala to walk carefully. Thereupon, Vikas @
Lala slapped my father. Then, Smt. Krishna Devi,
accused came out of the house and slapped my father.
Then Rajesh accused came out of the house. He was
armed with a danda. Rajesh hit my father and me with
the danda. Then Naresh @ Tatoo accused came out of
the house and started beating me and my father. Smt.
Krishna then pushed me as a result whereof I fell down.
She, her son Tatoo @ Naresh and Rajesh accused then
pulled my father and dragged him upto H.No.T-313/16.
Smt. Krishna Devi, accused then caught hold of my
father by his neck from behind whereas Rajesh caught
right hand of my father and Tatoo @ Naresh, accused
caught the left hand of my father. Lala accused then
attacked my father from the front side with a knife on his
chest. I got perplexed and started running towards with
my house. At that time, all accused hurled glass bottles
at me from behind, while I was running towards my
house. On reaching my house, I told my mother and
sister Kunita that the accused persons had killed my
father. Thereafter, I, my mother and my sister rushed to
the spot.
On reaching my house, I told my mother and sister
Kunita that the accused persons had killed my father.
Thereafter, I, my mother and my sister rushed to the
spot. We saw Smt. Krishna Devi accused pushing her
sons, co-accused, inside her house. On seeing my
mother, Smt. Krishna Devi remarked that they had put
an end to the daily trouble. We then saw that my father
was lying unconscious. My mother then proclaimed that
she would get the accused persons arrested in case
something happened to my father. We then saw all the
accused persons running away from their house. Rajesh
and Lala @ Vikas were seen running towards Lal
Mandir, whereas Krishna Devi and Tatoo @ Naresh
Crl. A. Nos. 298/2015 & 939/2015 Page 8 of 19
were seen running towards Balmiki Mandir.”
17. PW4 Smt. Tara Gupta (wife of the deceased) deposed as under:
" After about 05 minutes my son Sanjay came running to
the house and told me that Naresh, Vikas, Rajesh and
Krishna has stabbed my husband Rakesh with Churri in
the gali in which their house is situated. On hearing this,
I rushed out to the spot and my son Sanjay and daughter
Kunita also came along with me. When I reached in the
gali, I saw Krishna and her three sons Naresh, Vikas and
Rajesh were standing outside their house. "
18. PW18 Kunita (daughter of the deceased) deposed on the same lines as
that of PW4.
19. Before deciding these appeals it would be appropriate to analize the
settled position of law through catena of cases that will guide us in
disposing the present appeals.
20. In Prithipal Singh etc. Vs. State of Punjab and Anr. etc. reported in
(2012) 1 SCC 10 , the Hon'ble Apex Court held as under:
"This Court has consistently held that as a general rule
the Court can and may act on the testimony of a
single witness provided he is wholly reliable. There is no
legal impediment in convicting a person on the sole
testimony of a single witness. That is the logic of
Section 134 of the Evidence Act. But if there are doubts
about the testimony, the court will insist on
corroboration. In fact, it is not the number or the
quantity, but the quality that is material. The time-
honoured principle is that evidence has to be weighed
and not counted. The test is whether the evidence has a
ring of truth, is cogent, credible and trustworthy or
otherwise. The legal system has laid emphasis on value,
weight and quality of evidence, rather than on quantity,
multiplicity or plurality of witnesses. It is, therefore, open
to a competent court to fully and completely rely on a
Crl. A. Nos. 298/2015 & 939/2015 Page 9 of 19
solitary witness and record conviction. Conversely, it
may acquit the accused in spite of testimony of
several witnesses if it is not satisfied about the quality of
evidence."
21. In Waman v. State of Maharashtra : (2011) 7 SCC 295 , the Hon'ble
Apex Court observed as under:
"35. It is clear that not all the contradictions have to be
thrown out from consideration but only those which go to
the root of the matter are to be avoided or ignored. In the
case on hand, as observed earlier, merely on the basis of
minor contradictions about the use and nature of
weapons and injuries, their statements cannot be ignored
in toto."
22. In State of Uttar Pradesh v. Krishna Master : (2010) 12 SCC 324,
the Hon'ble Apex Court held that :
“15. Before appreciating evidence of the witnesses
examined in the case, it would be instructive to refer to
the criteria for appreciation of oral evidence. While
appreciating the evidence of a witness, the approach
must be whether the evidence of the witness read as a
whole appears to have a ring of truth. Once that
impression is found, it is undoubtedly necessary for the
court to scrutinise the evidence more particularly
keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the general
tenor of the evidence and whether the earlier evaluation
of the evidence is shaken as to render it unworthy of
belief. Minor discrepancies on trivial matters not
touching the core of the case, hyper technical approach
by taking sentences torn out of context here or there from
the evidence, attaching importance to some technical
error committed by the investigating officer not
going to the root of the matter would not ordinarily
permit rejection of the evidence as a whole.
Crl. A. Nos. 298/2015 & 939/2015 Page 10 of 19
16. If the court before whom the witness gives
evidence had the opportunity to form the opinion about
the general tenor of the evidence given by the witness, the
appellate court which had not this benefit will
have to attach due weight to the appreciation of evidence
by the trial court and unless the reasons are weighty and
formidable, it would not be proper for the appellate
court to reject the evidence on the ground of variations
or infirmities in the matter of trivial
details. Minor omissions in the police statements are
never considered to be fatal. The statements given by the
witnesses before the police are meant to be brief
statements and could not take place of evidence in the
court. Small/Trivial omissions would not justify a finding
by court that the witnesses concerned are liars. The
prosecution evidence may suffer from inconsistencies
here and discrepancies there, but that is a shortcoming
from which no criminal case is free. The main thing to be
seen is whether those inconsistencies go to the root of the
matter or pertain to insignificant aspects thereof. In the
former case, the defence may be justified in seeking
advantage of incongruities obtaining in the evidence. In
the latter, however, no such benefit may be
available to it.
17. In the deposition of witnesses, there are always
normal discrepancies, howsoever honest and truthful
they may be. These discrepancies are due to normal
errors of observation, normal errors of memory
due to lapse of time, due to mental disposition, shock and
horror at the time of occurrence and threat to the life. It
is not unoften that improvements in earlier version are
made at the trial in order to give a boost to the
prosecution case, albeit foolishly. Therefore, it is the duty
of the court to separate falsehood from the truth. In
sifting the evidence, the court has to attempt to separate
the chaff from the grains in every case and this attempt
cannot be abandoned on the ground that the case is
baffling unless the evidence is really so confusing or
Crl. A. Nos. 298/2015 & 939/2015 Page 11 of 19
conflicting that the process cannot reasonably be carried
out. In the light of these principles, this Court will
have to determine whether the evidence of eyewitnesses
examined in this case proves the prosecution case.”
23. In Dinesh Kumar v. State of Rajasthan reported in (2008) 8 SCC
270 , the Hon'ble Apex Court has held as under:
“12. In law, testimony of an injured witness is given
importance. When the eye witnesses are stated to be
interested and inimically disposed towards the accused,
it has to be noted that it would not be proper to conclude
that they would shield the real culprit and rope in
innocent persons. The truth or otherwise of the evidence
has to be weighed pragmatically. The court would be
required to analyse the evidence of related witnesses and
those witnesses who are inimically disposed towards the
accused. But if after careful analysis and scrutiny of their
evidence, the version given by the witnesses appears to
be clear, cogent and credible, there is no reason to
discard the same. Conviction can be made on the basis of
such evidence.”
24. In Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan
reported in (2013) 5 SCC 722 , wherein the Hon'ble Supreme Court in
para 38 held as under :
"38. xxxxxxx It is a settled legal proposition that, while
appreciating the evidence of a witness, minor
discrepancies on trivial matters, which do not affect the
core of the case of the prosecution, must not prompt the
Court to reject the evidence thus provided, in its entirety.
The irrelevant details which do not in any way corrode
the credibility of a witness, cannot be labeled as
omissions or contradictions. Therefore, the courts must
be cautious and very particular, in their exercise of
appreciating evidence. The approach to be adopted is, if
the evidence of a witness is read in its entirety, and the
Crl. A. Nos. 298/2015 & 939/2015 Page 12 of 19
same appears to have in it, a ring of truth, then it may
become necessary for the Court to scrutinize the evidence
more particularly, keeping in mind the deficiencies,
drawbacks and infirmities pointed out in the said
evidence as a whole, and evaluate them
separately, to determine whether the same are completely
against the nature of the evidence provided by the
witnesses, and whether the validity of such evidence is
shaken by virtue of such evaluation, rendering it
unworthy of belief. "Exaggerations per se do not render
the evidence brittle. But it can be one of the
factors to test the credibility of the prosecution version,
when the entire evidence is put in a crucible for being
tested on the touchstone of credibility". It is in fact, the
entirety of the situation which must be taken into
consideration. While appreciating the evidence, the
Court must not attach undue importance to minor
discrepancies, rather must consider the broad spectrum
of the prosecution version. The discrepancies may be
due to normal errors of perception or observation or
due to lapse of memory or due to faulty or stereotype
investigation. After exercising such care and caution,
and sifting through the evidence to separate truth from
untruth, embellishments and improvements, the Court
must determine whether the residuary evidence is
sufficient to convict the accused.
25. Keeping in view the above settled law, we are of the view that
the improvements/contradictions as pointed out by learned counsel for
the accused persons, are minor contradictions and does not render the
evidence of PW20 Sh. Sunny @ Sanjay Gupta unbelievable.
26. PW7 Dr. B. N. Mishra conducted the post mortem of the deceased on
07.07.2009 and deposed in his testimony as under:
"On external examination of the body following injuries
were found:
1. One incised stab wound on the chest at the level
Crl. A. Nos. 298/2015 & 939/2015 Page 13 of 19
rd th
of mid sternal line at 3 and 4 inter-costal space
with having size of 2.8 cm x 1.8 cm x deep to chest
cavity with representing spindle in shape and
regular margins. The injury located 8.5 cm from
right nipple and 13.5 cm from left nipple with
adjacent to sternum and passively oozing of blood
from the wound. The track of wound directed
obliquely left wards and backwards.
2. One incised wound of size of 1.5 cm x 0.5 cm x
0.5 cm present on the left lower eyelid with sharp
regular margins.
On internal examination, the chest wall on right side
pierced as mentioned in external injury No. 1. On section
of thorasic cavity the middle lobe of right lung found
lacerated of size 2.5 cm x 1.5 cm x 1 cm with collection of
liquid and clotted blood of approximately 1500 ml
present in right thorasic cavity.
All injuries were ante mortem in nature and of same in
duration of alleged history.
xxx
After examination of the weapon of offence I opined that
the injuries No. 1 & 2 mentioned in the post mortem
report Ex. PW-7/B were consistent to be inflicted by the
knife produced .”
27. Perusal of the post mortem report reveals that the cause of death was
haemorrhagic shock subsequent to laceration of lung caused by stab
wound by sharp pointed weapon like knife. The stab was sufficient to
cause death in the ordinary course of nature and manner of death was
homicidal.
28. The next question for consideration is whether the evidence brought
on record by the prosecution establishes the guilt against the appellant
Crl. A. Nos. 298/2015 & 939/2015 Page 14 of 19
Vikas @ Lala a case of “ murder ” or in the alternative a case of
“ culpable homicide not amounting to murder ”?
29. Both the said offences involve killing of a person. “ Murder ” is an
aggravated form of “ culpable homicide ”. Section 299 of the Indian
Penal Code defines the offence of culpable homicide and Section 300
deals with murder. Section 299 explains “ culpable homicide ” and sets
out the circumstances when culpable homicide amounts to murder and
when it does not amount to murder. As per Section 300, existence of
one of the four conditions, enumerated therein, which basically reflect
four mental attitudes, turns “culpable homicide” into “murder”, while
the three exceptions therein again reduce the offence of “murder” to
“culpable homicide not amounting to murder”. The distinction
between “murder” and “culpable homicide not amounting to murder”
is very thin and in fact has always been a vexed question. Therefore,
the question posed has to be examined carefully in the light of the
broad principles laid down in the judicial pronouncements.
30. In Jagtar Singh v. State of Punjab reported in 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 on 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,
Crl. A. Nos. 298/2015 & 939/2015 Page 15 of 19
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 five years.
31. In Hem Raj v. The State (Delhi Administration) reported in 1990
(Supp.) SCC 291 , the appellant and the deceased had suddenly
grappled with each other and the entire occurrence was over within a
minute. During the course of the sudden quarrel, the appellant dealt a
single stab which unfortunately landed on the chest of the deceased
resulting in his death. The Hon’ble Supreme Court observed that as
the totality of the established facts and circumstances show that the
occurrence had happened most unexpectedly, in a sudden quarrel and
without premeditation during the course of which the appellant caused
a solitary injury to the deceased, he could not be imputed with the
intention to cause death of the deceased, though knowledge that he
was likely to cause an injury which is likely to cause death could be
imputed to him. The Apex Court, therefore, set aside the conviction
under Section 302 of the Indian Penal Code and convicted the
appellant under Section 304 Part II of the Indian Penal Code and
sentenced him to undergo rigorous imprisonment for seven years.
32. In Sukhbir Singh v. State of Haryana: (2002) 1 SCR 1152 , wherein
two fatal blows were inflicted by the appellant therein by a bhala on
the upper right portion of chest of the deceased, the Hon'ble Apex
Court opined:
“19. The High Court has also found that the occurrence
had taken place upon a sudden quarrel but as the
appellant was found to have acted in a cruel and unusual
manner, he was not given, the benefit of such exception.
Crl. A. Nos. 298/2015 & 939/2015 Page 16 of 19
For holding him to have acted in a cruel and unusual
manner, the High Court relied upon the number of
injuries and their location on the body of the deceased. In
the absence of the existence of common object, the
appellant cannot be held responsible for the other
injuries caused to the person of the deceased. He is
proved to have inflicted two blows on the person of the
deceased which were sufficient in the ordinary course of
nature to cause his death. The infliction of the injuries
and their nature proves the intention of the appellant
but causing of such two injuries cannot be termed to be
either in a cruel or unusual manner. All fatal injuries
resulting in death cannot be termed as cruel or unusual
for the purposes of not availing the benefit of Exception
4 of Section 300 IPC. After the injuries were inflicted
and the injured had fallen down, the appellant is not
shown to have inflicted any other injury upon his
person when he was in a helpless position. It is proved
that in the heat of passion upon a sudden quarrel
followed by a fight, the accused who was armed with
bhala caused injuries at random and thus did not act in
a cruel or unusual manner .”
33. However, upon anxious consideration of the matter we are persuaded
to accept the alternative limb of submission advanced by the learned
counsel for the appellant Vikas that the present case would fall within
the ambit of Section 304 Part II of the Indian Penal Code.
34. It is contended by the learned counsel for the appellant Vikas @ Lala
that even if the testimony of PW20 is believed to be true, the case falls
within the exception of Section 300 of the Indian Penal Code as it is
the case of a single blow by the appellant Vikas @ Lala and the
incident happened at the spur of the moment because of a minor
dispute. There was no enmity between the appellant and the deceased.
Crl. A. Nos. 298/2015 & 939/2015 Page 17 of 19
He had no motive whatsoever to cause his death. It was not a pre-
meditated act with a view to cause death of the deceased. The
appellant acted in the heat of passion during a sudden quarrel without
having taken any undue advantage or acted in a cruel or unusual
manner.
35. While deciding the present appeals the aforestated principles culled
out by the Apex Court are to be kept in view. In the aforesaid factual
matrix, it is clear that there was no pre-meditation and no malice to
kill the deceased can be attributed to the appellant. The meeting was a
chance meeting when the deceased and his son walked down the lane
in which the house of the appellant was located. The altercation was
sudden. The appellant could not have thought to meet the deceased at
around 10 pm in the night. Therefore, intention to kill the deceased
cannot be proved. In the backdrop of these mitigating factors, the
appellant Vikas cannot be convicted for having committed the murder
of the deceased.
36. Resultantly, we partly allow the Criminal Appeal 298 of 2015
preferred by the appellant Vikas @ Lala to the extent that instead of
Section 302 of the Indian Penal Code the appellant Vikas @ Lala shall
stand convicted for the offence of culpable homicide not amounting to
murder punishable under Section 304 Part II of the Indian Penal Code
and sentenced to undergo rigorous imprisonment for seven years. The
fine imposed upon the appellant Vikas @ Lala and the default
sentence awarded to him shall remain unaltered. Accordingly, the
order of conviction and sentence are modified in the above terms.
37. So far as the Criminal Appeal 939 of 2015 preferred by the State is
Crl. A. Nos. 298/2015 & 939/2015 Page 18 of 19
concerned, the evidence on record is not sufficient to clearly establish
the specific role of the respondents in commission of the alleged
crime. There was nothing to prove that the respondents participated in
the alleged crime. Furthermore, the medical evidence does not bear
out the story that the respondents had attacked the deceased or his son
PW20. Having considered the evidence on record in depth, we are of
the considered opinion that the substratum of the prosecution story has
not been proved. To hold them guilty for the stabbing of the deceased
with the aid of Section 34 would not be proper and there is nothing
perverse about the trial court's order so far as their acquittal is
concerned. Accordingly, the appeal filed by the State is dismissed.
38. Trial court Record be returned.
39. Copy of this decision be sent to the Superintendent- Central Jail, Tihar
for updating the jail record.
SANGITA DHINGRA SEHGAL, J.
G. S. SISTANI, J.
MARCH 23, 2016
gr//
Crl. A. Nos. 298/2015 & 939/2015 Page 19 of 19