Latoori and Others vs State of Delhi

Sanjay Kishan Kaul, J.—Latoori, Shyam Bihari, Dhan Pal and Raj Pal all being convicted in Sessions Case No. 62/1996, arising out of FIR No. 301/92, under Sections 302/34 IPC, P.S. Ambedkar Nagar, for having committed murder of Radhey Shyam punishable u/s 302/34 IPC and sentenced in terms of order dated 17th July, 1996 to undergo imprisonment for life and also to pay fine of Rs. 1,000/- each, in default of payment of fine to undergo R.I. for further period of six months, preferred the instant appeal against the impugned judgment of conviction and order on sentence. During the pendency of appeal appellant Dhan Pal, stated above, expired. Therefore the appeal so far as the appellant Dhan Pal is concerned stands abated.

Briefly stated case of the prosecution is that on 12th June, 1992 Radhey Shyam (deceased) was brought to the hospital by his brother Jai Dev and he was declared brought dead. Above information was conveyed by duty Constable Sunil Kumar from Safdarjung Hospital to P.S. Ambedkar Nagar, which was recorded as DD No. 11-A (Ex. PW- 5/C). Copy of the DD report was addressed to Inspector Bhim Singh, who proceeded to Safdarjung Hospital, where he met PW1 Bhagwan Swaroop. He recorded the statement of Bhagwan Swaroop (PW1), wherein he stated that he along with his brother Radhey Shyam and Jai Dev was residing at N-407, Gali No. 6, Sangam Vihar, New Delhi and his brother Joginder was residing nearby with his wife Maya, daughter of Dhan Pal (deceased appellant). On 11th June, 1992 because of a quarrel with Joginder, Maya went to the house of her father Dhan Pal. Radhey Shyam (deceased) and Joginder went to bring her back but Dhan Pal refused to send her with Joginder. Thereafter on the intervention of the complainant, Dhan Pal sent Maya to her matrimonial home along with Joginder.

It is also the case of the prosecution that on 12th June, 1992 at about 12.00 noon, complainant Bhagwan Swaroop and deceased Radhey Shyam were sitting on a cot in their house. Appellant Latoori came there and started dragging Radhey Shayam to the Gali. The complainant tried to stop him but the appellant Latoori managed to drag him in the Gali. In the meanwhile appellants Dhan Pal (since deceased), his son Raj Pal and Shyam Bihari came there and started abusing. Latoori and Shyam Bihari caught hold of Radhey Shyam (deceased) and Dhan Pal (deceased appellant) gave slaps and fist blows to him. Suddenly Raj Pal hit Radhey Shyam with a danda on his head. As a result Radhey Shyam became unconscious. Complainant thereafter took Radhey Shyam to the hospital where he was declared, "brought dead". Inspector Bhim Singh sent the aforesaid statement after appending his endorsement thereon to the P.S. Ambedkar Nagar for registration of the case and an FIR under Sections 302/34 was registered against the appellants.

S.I. Bhim Singh completed the formalities and submitted the charge sheet against all the appellants.

The appellants were charged for the offence punishable under Sections 302/34 IPC, to which they all pleaded not guilty and claimed to be tried.

On completion of trial learned Trial Court relied upon the testimonies of eye witnesses PW-1 Bhagwan Swaroop and PW-4 Raj Kumar and convicted the appellants for the offences punishable under Sections 302 read with Section 34 IPC and sentenced them vide impugned order on sentence dated 17th July, 1996.

Learned Counsel, on instructions of the appellants, has conceded the involvement of all the appellants in the unfortunate incident. He has confined his submission on legal aspect of the case and the limited argument advanced by him is that the conviction of the appellants u/s 302 IPC with the aid of Section 34 IPC was uncalled for.

Learned Counsel for the appellants has submitted that PW1 Bhagwan Swaroop has stated on oath that on 11.6.1992 Maya, daughter of Dhan Pal, had a quarrel with her husband Joginder and because of that she left her matrimonial home and went to the house of her father Dhan Pal(deceased appellant). Radhey Shyam (deceased) and Joginder went to the house of Dhan Pal to bring Maya back but he refused to send her with Joginder. However, on the request of witness (Bhagwan Swaroop), Dhan Pal sent his daughter Maya to her matrimonial home. PW1 further stated that on 12.6.1992 at about 12.00 noon, he was sitting with his brother Radhey Shyam in his house. Appellant Latoori came there and abused Radhey Shyam. Thereafter he dragged Radhey Shyam into the Gali. In the meanwhile, appellants Raj Pal, Shyam Bihari and Dhan Pal (since deceased) also came there and they started abusing and beating Radhey Shyam with fists and slaps. Appellant Raj Pal gave a danda blow on the head of Radhey Shayam and he lost consciousness. He further stated that he took his injured brother to the hospital where he was declared dead. PW4 Raj Kumar, the other eye-witness has also deposed to a similar effect. From the aforesaid evidence, it is apparent that none of the appellants except Raj Pal were armed with a weapon and they only abused the deceased, slapped him and gave fist blows to him. From the aforesaid conduct, we find it difficult to infer that the appellants Latoori and Shyam Bihari shared common intention with Raj Pal to cause death of the deceased Radhey Shyam. From their conduct, the only inference which could be drawn is that the intention of the appellants i.e. Latoori and Shyam Bihari was to cause simple hurt to the deceased by slapping him and giving him fist blows. Therefore, we find ourselves unable to sustain their conviction u/s 302 with the aid of Section 34 IPC.

Coming to the role of the appellant Raj Pal, learned Counsel for the appellants has submitted that the case of the prosecution as evident from the testimony of the witnesses is that appellant Latoori dragged the deceased outside his house and thereafter appellants started abusing, slapping and giving fist blows to him. While the assault on the deceased was going on, appellant Raj Pal in the heat of moment gave a single danda blow on the head of the deceased, which unfortunately prove to be fatal. He has submitted that from the aforesaid testimony, it is apparent that there was no intention on the part of the appellants including Raj Pal to cause death of the deceased and the single blow was given by the appellant on the head of the deceased without any pre-meditation in the heat of passion and he had not taken undue advantage or acted in a cruel manner, as is apparent from the fact that only one danda blow was given by the appellant Raj Pal. Thus, he has submitted that the case of appellant Raj Pal squarely falls within the four corners of Exception 4 of Section 300 IPC and at best, he is guilty of the offence of culpable homicide not amounting to murder, punishable u/s 304 Part II IPC.

In order to appreciate the aforesaid plea, we consider it necessary to extract the relevant Section.

Section 300. Murder

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

2ndly

If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

3rdly

If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

4thly

If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

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Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.

Learned Counsel for the appellant in support of his plea has referred to the judgments of the Apex Court. Learned Counsel submitted by relying on Tholan v. State of Tamil Nadu 1984 SCC (Criminal) 164, that where in a sudden fight a single blow given with a knife was held to fall within Section 304 Part II of the IPC, a sudden fight like the present one where a single blow is given on the head would also invite the same provision. The relevant observations are reproduced as under:

There arose a situation in which appellant probably misguide by his own egocentric nature objected as to why Sampat should ask him to leave the place and in this background he gave one blow with a knife which landed on the right side chest of the deceased, which has proved fatal. Could the appellant be said to have committed murder? In other words, whether Part I or Part III of Section 300, I.P.C. would be attracted in the facts of this case. Even Mr. Rangam learned Counsel for the State of Tamil Nadu could not very seriously contend that the appellant intended to commit murder of Sampat. His submission was that at any rate appellant when he wielded a weapon like a knife and gave a blow on the chest, a vital part of the body, must have intended to cause that particular injury and this injury is objectively found by the medical evidence to be fatal and therefore Part III of Section 300 would be attracted. On this aspect, the decisions are legion and it is not necessary to recapitulate them here merely to cover idle parade of familiar knowledge. One can profitably refer to Jagrup Singh v. State of Haryana, Randhir Singh v. State of Punjab; Kulwant Rai v. State of Punjab and Hari Ram v. State of Haryana. To this list two more cases can be added Jagtar Singh v. State of Punjab and Ram Sunder v. State of U.P. Having regard to the ratio of each of these decisions, we are satisfied that even if Exception I is not attracted the requisite intention cannot be attributed to the appellant. But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation, he would be guilty of committing an offence u/s 304 Part II of the Indian Penal Code. Having regard to the circumstances of the case a sentence of 5 years would be quite adequate.

Learned Counsel also referred to the elucidation in respect of the 4th exception of Section 300 of the IPC made in Ravindra Shalik Naik and Others Vs. State of Maharashtra, as under:

The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men''s sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact 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 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 in such cases could 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 offender''s having taken undue advantage or acting 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 the 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 have 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 cruel or unusual manner. The expression ''undue advantage'' as used in the provision means ''unfair advantage''. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat (2003) (5) Supreme 223 , Prakash Chand Vs. State of H.P., ; Byvarapu Raju Vs. State of Andhra Pradesh and Another, and Buddu Khan v. State of Uttarakhand SLP (Crl.) No. 6109/08 disposed of on 12.1.2009.

Lastly, learned Counsel has referred to Pappu v. State of M.P. 2009 (4) Scale 52. In the above referred case, the exchange of hot words between the accused and the deceased resulted in a shot being fired resulting in an injury on the chest of the deceased, which was held to be a fit case for conviction u/s 304 Part II of the IPC with a custodial sentence of eight years.

The legal principles enunciated aforesaid, in our considered view, would squarely apply to the case of appellant Raj Pal. In the instant case, there was no enmity between the appellant Raj Pal and the deceased. He had no motive whatsoever to cause his death and this is a case of a single blow given to the deceased in the heat of moment. There being no pre-meditated act with a view to cause death of the deceased and the appellant Raj Pal having acted in the heat of passion, during quarrel without having taken undue advantage or acted in a cruel or unusual manner is entitled to the benefit of 4th Exception of Section 300 IPC. Thus, in our view, appellant is liable to be convicted under Part II of Section 304 of the IPC and not u/s 302 IPC.

In view of the discussion above, appeal is partly accepted. The conviction of the appellants u/s 302 IPC is set aside and appellant Raj Pal is convicted for the offence of culpable homicide not amounting to murder punishable under Part II of Section 304 IPC and the other appellants Latoori and Shyam Bihari are convicted u/s 323/34 IPC.

Coming to the sentence, appellants Latoori and Shyam Bihari are hereby sentenced to undergo imprisonment for a period of one year for the offence punishable u/s 323/34 IPC. Appellant Raj Pal is sentenced to undergo RI for a period of 7 years for the offence punishable u/s 304 Part II IPC. Besides, the sentence of fine imposed on appellant Raj Pal is maintained. The impugned judgment accordingly stands modified.

The appeal is allowed to the aforesaid extent. As per the nominal roll available on record, all the three appellants have already undergone detention for a period more than the imprisonment awarded to them. Therefore, we find no need to take them into custody for undergoing the sentence awarded to them.

The bail cum surety bonds stand discharged.