Ashok Kumar vs State

Sanjiv Khanna, J.—Appellant-Ashok Kumar challenges his conviction for murder of Rajesh by the impugned judgment dated 29th July, 1999. The appellant also impugns order on sentence dated 31st July, 1999 by which he has been sentenced to imprisonment for life and fine of Rs. 500/-, in default of which, the appellant is to undergo Rigorous Imprisonment for three months for the offence u/s 302 of the Indian Penal Code, 1860 (IPC, for short). The aforesaid prosecution had arisen out of charge sheet filed in FIR No. 16/1998, Police Station Patel Nagar. On the question of involvement of the appellant, learned amicus curiae submits that the testimony of Sanjiv (PW-1), Bimla (PW-3) and Raj Kumar (PW-4) do implicate the appellant but his exact role, who got the weapon of offence, and how the injuries were caused still remain suspicious.

Sanjiv (PW-1) and Bimla (PW-3) are brother and mother of the deceased-Rajesh respectively. PW-1 in the initial portion of the examination-in-chief had stated that when he came downstairs alongwith his mother, the appellant had already inflicted two blows to Rajesh with a chhuri (gupti). They tried to apprehend the appellant but he attacked PW-1 on his head and shoulder and ran away with the knife/gupti. PW-1 thereupon with Raju and Sewa Ram took Rajesh to Ram Manohar Lohia (RML) hospital in a three wheeler. Upon examination he was declared to be brought dead.

On statement of PW-1 (Exhibit PW-1/A) FIR was registered. PW-1 has testified about lifting of blood and blood stained earth etc. in his deposition. The MLC of the deceased (Exhibit PW-9/A) was proved by Dr. Renuka Malik (PW-9). The said MLC was recorded at. 10.25 A.M. on 8th January, 1998. It states that the patient was brought dead to the casualty ward with alleged history of assault. There is also an MLC of PW-1 (Exhibit PW-9/C) in which it is recorded that the appellant had abrasion on the nasal bridge and his right hand.

In view of the testimony of PW-1, it is apparent to us that he and his mother PW-3 upon hearing noise had come down and at that time noticed that Rajesh had been injured by the appellant. PW-1 tried to apprehend the appellant but did not succeed and in that process he was hurt on the nose and on the hand. The injuries on PW-1 were not serious and, therefore, probably were not recorded or mentioned in the complaint (Exhibit PW-1/A), which was recorded at 1 P.M. on 8th January, 1998. This does not make any difference and is immaterial in view of the MLC of the PW-1 (Exhibit PW-9/C). We however accept the contention of the appellant that PW-1 and PW-3 had not seen the occurrence though they had deposed to the contrary. PW-3 had claimed that she followed Rajesh downstairs when the appellant called out to him at 9:30 am on 8th January, 1998. PW-1 had initially accepted that he had gone down with his mother after hearing noise but this was after the injuries were inflicted upon the deceased. We also accept the contention that the appellant had called out to the deceased Rajesh but did not threaten to kill him. If any such threat was explicitly made, then in that situation Rajesh would not have gone down alone and his brother Sanjiv (PW1) who was at home would have accompanied him. However, the said findings do not obliterate the main evidence of PWs. 1 and 3 that the appellant had already injured Rajesh by giving two blows and he subsequently fled the scene, when Sanjiv (PW-1) tried to apprehend him. In this context, statement of Raj Kumar (PW-4) is material. PW-4 was a painter and has stated that at about 9:30 am he was cleaning the space outside his house when there was a quarrel between the appellant and Rajesh. He rushed to separate them and thereupon he noticed that Rajesh had already been stabbed around his chest. PW5 stated that he alongwith Sanjiv, Raj Kumar and Babli took the deceased to the hospital and he had collapsed on the way. Non-examination of Babli is inconsequential. What is clearly discernible from the statement of Raj Kumar (PW-4) is the absence of PWs-1 and 3 at the spot when injuries were inflicted and when the quarrel took place.

Oral testimonies of PWs 1, 2 and 4 get corroborated by the post mortem report (Exhibit PW-12/A). This was proved by Dr. K.L. Sharma, Chief Medical Officer, who had conducted post-mortem on the body of Rajesh on 9th January, 1998 at 12:30 p.m. We shall refer to his examination and findings in detail subsequently, but at this stage, it is important to record that there was a lacerated penetrating wound on the left front chest in addition to one lacerated punctured wound on left ring finger.

After the appellant was arrested on 8th January, 1998, he had made disclosure statement (Exhibit PW-6/B) and pursuant thereto the gupti, which is the weapon of offence, was recovered and seized. The gupti was sent for chemical examination and as per the report (Exhibit PW-6/C) human blood of AB group was found on the said weapon which matches with the blood group of the deceased-Rajesh. We have examined the statement made by the appellant u/s 313 of the Code of Criminal Procedure, 1973 (''Code'' for short). He has stated that he was innocent and he has been falsely implicated.

In view of the oral statements of PWs 1, 3 and 4 and other evidence, we are satisfied that the appellant was the perpetrator who had committed the crime in question, which had resulted in the death of Rajesh.

The main plea and contention of the appellant is that the appellant should not have been convicted u/s 302 but u/s 304 Part-I or II IPC. Having considered the contentions raised by the appellant, we find merit in the said submission. Our reasons are elucidated below.

We have already dealt with the evidence of PWs 1, 3 and 4 and pointed out that PWs 1 and 3 did not see the actual occurrence but upon reaching found the deceased to be already injured. Appellant fled the scene inspite of an attempt by PW1 to apprehend him. The actual occurrence was witnessed by Raj Kumar (PW-4), who had stated that there was a quarrel and grappling between the appellant and the deceased Rajesh. He had rushed to separate them and at that moment he saw that Rajesh was already wounded. PW-4 had not seen what actually happened in the quarrel and how and when the stab wound on the chest was inflicted, which led to the death of the deceased Rajesh. However, it is evidently clear that there was a grapple and PW4 went to separate the appellant and the deceased. However, it is not clear if the stab wound was given immediately upon deceased-Rajesh coming down to speak to the appellant or after some time after heated arguments. The testimonies of PWs 1 and 3 show that there was a dispute between the deceased and the appellant with regard to Rs. 100/-. The appellant claimed that he had given loan of Rs. 100/- to Rajesh and had demanded the repayment, whereas, deceased Rajesh was claiming that nothing was payable. PW3 also deposed-on similar lines. We have held that the deceased-Rajesh was asked to come down, and he went to speak to the appellant but at that stage PWs 1 and 3 did not follow the deceased-Rajesh. Apparently, PWs 1 and 3 did not suspect that there would be any physical violence, which subsequently transpired. Only after PW1 and 3 heard the noise and commotion that they came down.

As per the post-mortem report (Exhibit PW-12/A), the deceased-Rajesh had a lacerated penetrating wound of 0.8 x 0.5 cm over left front of the chest, 2.5 cm below the left nipple. Blood was still oozing at the time when post-mortem was conducted. The deceased also had lacerated punctured wound on the base of the left ring finger 0.5 x 0.5 cm and another wound of the same size over the base of the first phalanx of the left ring finger. The cause of death has been certified as hoemothorax and asphyxia consequent upon injury No. 1. All injuries were ante mortem and inflicted just before death. Injury No. 1 was sufficient to cause death in the ordinary course of nature and was caused by a sharp and penetrating weapon. This fact has been deposed to by Dr. K.L. Sharma (PW-12) in the Court. He has observed that injury No. 1 after cutting the skin had penetrated through inter poster muscle between 4th and 5th ribs bruising around inter costal cut muscle and entered the pericardium and punctured middle part of right ventricle of the heart near septum and terminated in its cavity. The depth was 9 cm. The injury, as deposed to, is clearly reflective of the weapon of the offence used, which is narrow in diameter but sharp and long as is clear from the sketch thereof (Exhibit PW-6/C).

It appears that there was grappling and quarrel between the deceased and the appellant and in that process injuries were inflicted. The deceased himself did not conceive or think that the quarrel would be physical and violent. The reason and cause of the quarrel, as noticed above, was loan of Rs. 100/- and whether it should be repaid. The amount was loaned and it shows that there was good and harmonious relationship between the deceased and the appellant. It does appear and there is some ambiguity as to why and how the gupti came into possession and was used by the appellant. We are inclined to accept the contention of the appellant that there was a sudden quarrel and in the heat of the moment injury was caused. Clearly there was grappling between the deceased and the appellant which is clear from the statement of Raj Kumar (PW-4). In these circumstances, we feel that Exception 4 to Section 300 is applicable and even otherwise it is doubtful and debatable whether the case is covered by Part-III to Section 300. The view taken by us find support from the judicial pronouncement of the Supreme Court in Jagtar Singh Vs. State of Punjab, wherein it has been observed as under.-

A quarrel took place on the spur of the moment. The appellant never expected to meet the deceased. When the deceased was just passing by the road in front of the house of the appellant, his forehead dashed with the parnala of the house of the appellant which provoked the deceased to remonstrate the appellant. It is in evidence that there was exchange of abuses and at that time appellant gave a blow with a knife which landed on the chest of the deceased.

Undoubtedly, PW 2 Dr. H.S. Gill opined that the blow on the chest pierced deep inside the chest cavity resulting in the injury to the heart and this injury was sufficient in the ordinary course of nature to cause death. The question is whether in the circumstances in which the appellant gave a blow with a knife on the chest, he could be said to have intended to cause death or he could be imputed the intention to cause that particular injury which has proved fatal? The circumstances in which the incident occurred would clearly negative any suggestion of premeditation. It was in a sudden quarrel to some extent provoked by the deceased, that the appellant gave one blow with a knife. Could it be said that para 3 of Section 300 is attracted. We have considerable doubt about the conclusion reached by the High Court. We cannot confidently say that the appellant intended to cause that particular injury which is shown to have caused death. There was no premeditation. There was no malice. The meeting was a chance meeting. The cause of quarrel though trivial was just sudden and in this background the appellant, a very young man gave one blow. He could not be imputed with the intention to cause death or the intention to cause that particular injury which has proved fatal. Neither para 1 nor para 3 of Section 300 would be attracted. We are fortified in this view by the decision of this Court in Jagrup Singh Vs. State of Haryana, . It was subsequently followed in Randhir Singh alias Dhire Vs. State of Punjab, and Kulwant Rai Vs. State of Punjab, . Following the ratio of the aforementioned decisions, we are of the opinion that the appellant could not be convicted for having committed murder of the deceased Narinder Singh. His conviction for an offence u/s 302 IPC and sentence of imprisonment for life are liable to be set aside.

The next question is what offence the appellant is shown to have committed? In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. Therefore, the appellant is shown to have committed an offence u/s 304 Part II of the IPC and a sentence of imprisonment for five years will meet the ends of justice.

In Sasi Alias Chalil Sasi versus State of Kerala, (2000) 10 SCC 55, the deceased had died because of a knife blow. However, noticing certain other facts like the deceased was the aggressor, and attempt was made by the accused to drive him out of the field and only one blow was given, the conviction u/s 304 Part-I was converted into Section 304 Part-II. A detailed discussion on the said aspect can be found in the decision of the Delhi High Court in Joginder Singh Vs. State, wherein Exception 4 to Section 300 was examined and it was observed:--

The Jurisprudence behind the philosophy of the IVth Exception is that where an unexpected event clouds a man''s sober reason and urges him to deeds which he would not otherwise do, the criminality of the act is lowered and not that it is to be taken that the man has committed no offence. The act would still be an offence but of a lower degree.

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To summarize, what the evidence probablizes, the incident took place in the following manner: Kailash was going to the house of Om Prakash and had to go pass the meat shop of Vinod who in street language, using an expletive asked Kailash as to where was he going. Kailash took objection at the expletive used. While raising the objection Kailash provoked Vinod who gave him 3 or 4 slaps. Kailash went and complained to Om Prakash who was relaxing in his jhuggi. He told his wife to fetch his slippers and wearing the same he and Kailash returned to settle a score. A verbal fight turned ugly resulting in pushing and jostling followed by Vinod using a knife and inflicting the injuries. It is clear that there was no premeditation and unexpected events overtook the deceased and the injured. It was upon a sudden quarrel that the furry went out of control resulting in the unfortunate death of Om Prakash and injuries upon Kailash. In our opinion, qua the death of Om Prakash, appellants would be entitled to the benefit of Exception IV to Section 300. It is true that 3 stab wounds were inflicted upon the person of the deceased, but similar was the case of 3 stab wounds being inflicted in the decision reported as Surinder Kumar Vs. Union Territory, Chandigarh, . We note that in the decision reported as Prakash Chand Vs. State of H.P., , a verbal altercation triggered by the dogs of the accused entering the kitchen of the deceased ending in the accused taking out a gun and firing a shot from a distance of 35 feet causing death of the deceased was held attracting the offence punishable u/s 304 Part I IPC. In the decision reported-as Amrithalinga Nadar Vs. State of Tamil Nadu, , commencing with a scuffle and followed by a chase; a 9 inch long knife used to inflict stab injuries on the neck of the deceased was hold to be an act punishable for the offence punishable u/s 304 Part I IPC.

Similarly, in Jagtar Singh @ Goggi and Another Vs. State, , a Division Bench of this Court to which one of us was a Member (G.P. Mittal, J.), it has been observed:--

In view of the above discussion, this Court is of the opinion that the prosecution has been able to establish the role of the two appellants before the Court in the quarrel and the attack upon the deceased Shyam Sharma which eventually lead to his death. It would be therefore relevant to consider whether the conviction in the light of the circumstances was correctly recorded u/s 302 or whether the case proved established the appellant guilty for the offence u/s 304 Part I IPC. In Surinder Kumar case (supra), the Court was dealing with the case where in the course of a heated exchange of arguments when abuses were hurled by rival parties the appellant was enraged, went into the kitchen and returned with a knife and inflicted injury on one of the witnesses. He also inflicted three knife blows to the deceased, invoking over turning the conviction u/s 302 IPC and substituting with Section 304 Part I, IPC. The Court inter alia held as follows:

......To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.......

......Taking an over all view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused u/s 304 Part I, IPC and direct him to suffer rigorous imprisonment for 7 years.

In Jagtar Singh case (supra) too the Court stated that use of deadly weapon was not to be a circumstance to exclude operation of Exception 4 of Section 300 if all the ingredients of sudden quarrel leading to the injuries were satisfied. Closer home the judgment in Joginder Singh case (supra) was also a case where a nine inch long knife was used to inflict several stab injuries on the deceased neck. A judgment of the Division Bench of this Court substituted the conviction from Section 302 to one u/s 304 Part I, IPC.

In Rajesh Kumar versus State, (2011) 4 JCC 2522, in which again one of us (G.P. Mittal, J.) was a Member, reference was made to Surinder Kumar Vs. Union Territory, Chandigarh, , Jagtar Singh (supra) and Joginder Singh (supra) and it was observed:--

In the case of Arumugam (supra), the facts were that there was a pre-existing dispute between the deceased and the first accused concerning some local village politics. This dispute resulted in a quarrel between one of the accused and the deceased a day prior to the incident. On the day of incident i.e. 22.4.1986 when the deceased was returning from his mango grove, A-1 was armed with spike; he was accompanied by the other two accused, one of whom was also armed. The accused party caught hold of the deceased and stabbed him on his right neck with the spike; the spike pierced his neck and came out from the left side as deposed by PW-1. After considering the submissions and several previous reported judgments, the Court analyzed the meaning of the expression "sudden quarrel". Relying upon the judgment in Krishna Mochi and Others Vs. State of Bihar, , the Court held that the facts showed that there was a sudden quarrel and that the findings of the Courts below convicting the appellant under Section-302 IPC could not be sustained. Conviction was, therefore, altered to one under Section-304, IPC. In Pappu @ Hari Om Vs. State of Madhya Pradesh, , the accused/appellant had used a gun which resulted in the death of the victim. There too, the Court deemed it appropriate to convert the conviction from one under Section-302 to Section-304(2), IPC.

In this case, as noticed earlier, appellant had opened a shop a few days before. His place of business was just opposite that of the two brothers i.e. the deceased and PW-14. Concededly, they were in the same business and were competitors. The evidence of PW-14 disclosed that one Salim used to carry out the business next to the appellant''s stall. On the concerned date, he was absent and that space was taken advantage of by the deceased and PW-14 who kept their birds there in addition to their own stall. The appellant felt aggrieved - perhaps he perceived this an action to affect his business adversely. Whatever be the reason, he expressed his resentment at many occasions; Although, seemingly, the quarrel or verbal altercations which occurred at 7:00 PM died down, as subsequent events disclose, the feeling of resentment continued to simmer in the appellant, which ultimately resulted in an attack upon the deceased. Though the injury is a single blow, its nature is undisputed. It was sufficient to cause death. However, equally, we are of the opinion that had the appellant really intended to kill or cause such a blow with the intention of causing death, he would have proceeded further and done something more. His fleeing the spot in fact in some way reinforces that though the intention was to give a blow that would result in serious consequences, perhaps it did not extend to the intention of giving blow that would result in death. In that sense, the "appellant knew" that the injuries would have resulted death in the ordinary course of nature.

Accordingly, noticing the degree of the crime, we are inclined to convert the conviction of the appellant from Section 302 to 304 Part-I.

The last question relates to sentence. As per the nominal roll, the appellant had undergone rigorous imprisonment of 4 years 7 months and 7 days as on 16th August, 2002. His conduct in the jail was good and accordingly he had earned remission of 9 months and 20 days as on 16th August, 2002. The appellant was released on suspension of sentence pursuant to order dated 31st March, 2003. The appellant, therefore, has already undergone rigorous imprisonment for a period of about 6 years, including remission. The appellant has been more than 10 years now and it is stated at the Bar that he has not been implicated in any other criminal case. He is married and has three children. We do not think that it will be appropriate and proper to send the appellant back to prison for the offence committed in 1998 after his release and after he has been on bail pursuant to the suspension of sentence for 11 years. Keeping in view the aforesaid position, the appellant is sentenced for the period already undergone but the fine of Rs. 500/- is enhanced to Rs. 5,000/-. The appellant has stated that he is presently working as a sweeper and guard in a private school and earns about Rs. 7,000/- per month. He has not been in a position to engage his own counsel and is represented by amicus curiae. The said fine will be deposited within a period of two months'' from today with the trial court. In case the said amount is not deposited, the appellant will undergo simple imprisonment for a period of one month. Copy of this order will be sent to the trial court.

The appeal is disposed of.