Shatrughan vs State (Govt. of NCT of Delhi)

Ajit Bharihoke, J.—This appeal is directed against the impugned judgment dated 21st March, 1997 in Sessions Case No. 99/1995, FIR No. 546/1992, Police Station Mangol Puri in terms of which the appellant has been convicted u/s 302 IPC as also the consequent order on sentence of even date.

Briefly stated, the case of the prosecution is that on 31st August 1992 at about 11.20 a.m., on the receipt of information regarding a quarrel near House No. 449, J.K. Tent House, A-II, Sector-8, Rohini, DD No. 14 was recorded at the Police Post Rohini which is Ex.PW12/B. Copy of the DD report was entrusted to SI Vir Singh for verification. SI Vir Singh alongwith Constable Ravinder Kumar went to the spot of occurrence, where he found that the injured Daya Ram (hereinafter referred to as ''deceased'') had already been removed to hospital. Parag Madho (PW10) was present at the spot of occurrence who produced the appellant before SI Vir Singh and got recorded his statement Ex.PW10/A. SI Vir Singh appended his endorsement Ex.PW12/C on the said statement and sent it to the police station for the registration of the case.

From the spot of occurrence, SI Vir Singh went to Jaipur Golden Hospital and collected the MLC of the deceased who was declared unfit for statement and had been removed for surgery. The Investigating Officer then returned back to the spot of occurrence. He prepared rough Site Plan (Ex.PW12/D), got the spot of occurrence photographed and recorded the statements of the witness Shankar Pandey and Raj Pal Sharma. He found blood on the leaf of door lying at the spot which was taken into possession. He also lifted blood stained earth as well as sample earth from the spot of occurrence and seized the samples vide memo Ex.PW10/E. ''Chaursi'' was also taken into possession after preparing its sketch Ex.PW10/C and converted it into a sealed packet.

Complainant Parag Madho in his statement Ex.PW10/A stated that Daya Ram had done some carpentry work for the appellant at Sector 5, Rohini and the appellant owed him Rs. 80/- for the said work. Daya Ram demanded his dues several times but the appellant did not pay. On 31.08.92 at about 11:05 am, he (complainant) and PW8 Raj Pal Sharma accompanied Daya Ram to the house of the appellant to demand payment of the dues of Daya Ram. There they came to know that the appellant was working of door frames at House No. A-II/449, Sector 8, Rohini. Accordingly, they came to Rohini at 11:15 am. Appellant Shatrughan was making door frames under a tree near the said house. When Daya Ram demanded payment of his dues, the appellant started abusing him. He and Raj Pal Sharma tried to persuade the appellant to make the payment, on this, the appellant, while holding a ''chaursi'' (a wood peeling instrument) and shouting that he would eliminate Daya Ram rushed towards him and struck him with the ''chaursi'' on the abdomen and testicles resulting in injuries. Appellant was over-powered by the public persons and the injured Daya Ram was taken in a ''rickshaw'' to Jaipur Golden Hospital.

On completion of formalities of investigation, the appellant was challaned and sent for trial. He was charged for the offence u/s 302 IPC to which he pleaded not guilty and claimed to be tried.

In order to bring home the guilt of the appellant, the prosecution has examined 16 witnesses including the eye witnesses PW2 Shankar Pandey, PW8 Raj Pal Sharma and PW10 Parag Madho (complainant).

PW8 Raj Pal Sharma has turned hostile. He deposed that he came to know of the occurrence from his younger brother Krishan Kumar and one Harpal at 1.30 p.m. He denied that he had accompanied the deceased to Rohini or that he was present at the time of occurrence.

PW10 Parag Madho has supported the prosecution version. He testified that in the year 1992, deceased Daya Ram had worked with the appellant for which a sum of Rs. 80/- was due to him from the appellant. On the fateful day, he had accompanied the deceased to the appellant to demand payment of aforesaid dues. The appellant was sharpening a ''chaursi'' (Ex.P1). The deceased Daya Ram demanded his money. On this, a heated exchange took place between the appellant and the deceased. The deceased, on being abused by the appellant, picked up a stick. Thereupon, the appellant stood up and inflicted an injury on the person of the deceased with the ''chaursi'' and sat down at the spot. Somebody informed the police. The police came and arrested the appellant at the spot. He stated that the police recorded his statement Ex.PW10/A. PW2 Shankar Pandey is another eye witness of the occurrence. He has corroborated the version of PW10 on all material aspects of the case.

On conclusion of prosecution evidence, the appellant was examined u/s 313 Cr.P.C. to explain the incriminating circumstances appearing against him in the evidence. The appellant denied the prosecution evidence and claimed to be innocent. He, however, has not come forward with any explanation as to why Parag Madho (PW10) and Shankar Pandey (PW2) have deposed against him.

The learned Additional Sessions Judge, on consideration of evidence, found the testimonies of Shankar Pandey (PW2) and Parag Madho (PW10) reliable and on the strength of the eye witness account of occurrence given by them, found the appellant guilty of murder of Daya Ram and convicted him u/s 302 IPC.

Ms. Charu Verma, learned amicus curiae on behalf of the appellant have assailed the impugned judgment on facts as well as law.

On merits, learned amicus curiae submitted that the learned Trial Court has committed a grave error in relying upon the testimony of Parag Madho (PW10) and Shankar Pandey (PW2), particularly when the other purported eye-witness Raj Pal Sharma (PW8) has not supported the prosecution story. She submitted that Trial Court has ignored the fact that the presence of Parag Madho (PW10) at the place of occurrence is highly doubtful as the Investigating Officer has not shown the position from where he saw the occurrence in the rough Site Plan Ex.PW12/D prepared by him. She further submitted that even the presence of Shankar Pandey (PW2) at the time of occurrence is doubtful because his name does not find mention as a witness in the FIR Ex.PW1/A or the complaint statement of Parag Madho (PW10) Ex.PW10/A. From this, she has urged us to treat the testimony of Shankar Pandey (PW2) as well as Parag Madho (PW10) unreliable and extend benefit of doubt to the appellant.

We do not find merit in the above contention. Failure of the Investigating Officer to mark the position of Parag Madho (PW10) from where he saw the occurrence in the rough Site Plan (Ex.PW12/D) by itself cannot be taken as a reason to doubt the presence of Parag Madho (PW10) at the time of occurrence, particularly, when he is categoric in his testimony that he had accompanied the deceased on the fateful morning to the appellant and the occurrence took place in his presence. From the record, it is apparent that the incident took place on 31st August, 1992 at 11:15 a.m. The initial information about the incident was received at Police Post Rohini vide DD No. 14 (Ex.PW12/B) within few minutes i.e. at 11:20 a.m. Immediately after the recording of DD report, the Investigating Officer SI Vir Singh (PW12) reached at the spot of occurrence. SI Vir Singh (PW12) had deposed that on reaching the spot of occurrence, he met Parag Madho (PW10), who produced the appellant before him and also gave his statement Ex.PW10/A, which statement is the basis for the registration of formal FIR. Perusal of the statement of PW10 Parag Madho Ex.PW10/A reveals that it bears his signature and it was forwarded to the police station at 12:30 a.m. i.e. within slightly more than one hour after the occurrence. This sequence of events in itself is sufficient to establish the presence of Parag Madho (PW10) at the spot.

As regards Shankar Pandey (PW2), learned amicus curiae has submitted that his presence at the spot is doubtful because his name as a witness does not find mention in the FIR (Ex.PW1/A) or the complaint statement of Parag Madho (Ex.PW10/A). We are not convinced with this argument. First Information Report is basically an information about the commission of offence to the police, with a view to activate the Investigating Authorities for taking suitable steps for collecting evidence and bring the guilty person/persons to book. It need not be very elaborate to contain each and every minute detail relating to the offence so committed. It is not necessary that the FIR must detail the names of all the witnesses to the occurrence because it may very often happen that the first informant may not even be knowing the presence or the identity of the witnesses to the occurrence. In the instant case also, Shankar Pandey (PW2), as per his testimony, was not an acquaintance of the complainant Parag Madho (PW10). He was an employee of J.K. Tent House, Sector 8, Pocket A-II, Premises No. 458, Rohini. Parag Madho (PW10), obviously could not have known him, as Parag Madho (PW10) was resident of Rithala, Delhi and he had gone to the spot of occurrence per-chance with the deceased for demanding the payment of the amount owed by the appellant to the deceased. Thus, we do not find anything unusual or suspicious in non-mention of the presence of Shankar Pandey (PW2) at the time of occurrence in the FIR recorded on the basis of complaint of PW10 Parag Madho. Otherwise also, as per the Investigating Officer SI Vir Singh (PW12), he had prepared a rough Site Plan Ex.PW12/D at the spot of occurrence. Marginal notes appended in the said Site Plan, inter alia, reads "Point ''D'' shows the position of witness Shankar Pandey at the time of occurrence". From this evidence, it is established that Shankar Pandey (PW2) was present at the time of occurrence. Thus, we do not find any substance in the criticism of learned amicus curiae regarding his testimony.

Parag Madho (PW10) has fully supported the case of prosecution and his version is corroborated on all material aspects by the testimony of Shankar Pandey (PW2). Both these witnesses have been cross-examined at length by the learned defence counsel but nothing material to discredit the testimony has come out on record. Thus, under the circumstances, we find that the learned Trial Court has rightly relied upon the testimony of these two witnesses to conclude that the appellant Shatrughan had inflicted the fatal stab injury with ''chaursi'' on the person of the deceased.

Learned amicus has further submitted that conviction of the appellant for the offence of murder punishable u/s 302 IPC is bad in law. She submitted that learned Trial Court has failed to appreciate that as per the testimony of PW10 Parag Madho, stabbing of the deceased with ''chaursi'' was preceded by heated arguments and quarrel between the parties which enraged the appellant and in the heat of passion, he inflicted ''chaursi'' blows on the person of the deceased, which proved to be fatal. She submitted that in view of the aforesaid factual matrix, the learned Trial Court ought to have considered that the case of the appellant falls squarely within Exception 4 to Section 300 IPC which defines the offence of murder, as such, at best, the act committed by the appellant amounted to an offence of culpable homicide not amounting to murder punishable u/s 304 IPC. Learned amicus curiae in support of this contention has relied upon the judgment of the Supreme Court in Tholan v. State of Tamil Nadu 1984 SCC (Criminal) 164.

In the matter of Tholan v. State of Tamil Nadu (supra) which was also a case of a single fatal blow given by the accused as a result of sudden fight, the Hon''ble Supreme Court while analysing the law on the point, observed thus:

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 amicus curiae also referred to the elucidation in respect of the 4th exception of Section 300 of the IPC made in Ravindra Shalik Naik and Ors. v. State of Maharashtra 2009 (2) Scale 354 in para 6 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

Learned Standing Counsel, on the other hand, has supported the impugned conviction of the appellant u/s 302 IPC. He submitted that considering the weapon offence used i.e. ''chaursi'', which is a sharp wood peeling instrument and the fact that the injury inflicted by the appellant was on the fatal parts of the body of the deceased i.e. abdomen and testicles, it can be safely infer that there was a clear intention on the part of the appellant to cause death of the deceased. Thus, he argued that the learned Trial Court has rightly convicted the appellant u/s 302 IPC.

On careful consideration of the rival contentions on this issue, we find merit in the plea of learned amicus curiae. From the statement of PW10 Parag Madho (complainant), it is apparent that it was not the appellant who approached the deceased with intention to cause injury but the deceased alongwith Parag Madho (PW10) had approached the appellant at his work place at Rohini for demanding payment of his due of Rs. 80/-. PW10 Parag Madho has stated that when the deceased Daya Ram demanded payment of his dues from the appellant, heated arguments took place and the appellant abused the deceased. On this, the deceased picked up a stick and in response to that, the appellant got up and struck the deceased with the ''chaursi'', an instrument of his trade, which he was sharpening at the relevant time.

From the aforesaid sequence of events, we find it difficult to infer intention on the part of the appellant to cause death of the deceased or cause such injury which, in the ordinary course would result in the death. From the aforesaid factual matrix, it is apparent that the act of stabbing by the appellant was a result of the heated exchange between the parties, which had raised passions. The weapon offence, admittedly, is not a conventional weapon like knife, dagger or ''lathi'' etc. but it is a ''chaursi'', which is an instrument used for peeling of wood and which, as per evidence, was handy at the spot as the appellant was sharpening it. Therefore, in our considered view, Exception 4 to Section 300 IPC is attracted in this case, which is reproduced thus:

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-

---

---

---

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.

Since the act of inflicting injury on the person of Daya Ram (deceased) committed by the appellant falls within the purview of Exception 4 to Section 300 IPC, his conviction for the offence of murder punishable u/s 302 IPC cannot be sustained and in our considered view, the appellant is guilty of culpable homicide not amounting to murder punishable u/s 304 Part II IPC. In our aforesaid view, we draw strength from the judgment of the Supreme Court in the matter of Pappu @ Hari Om Vs. State of Madhya Pradesh, 1. It was a case of the accused firing a single shot on the chest of the deceased as a consequence of the exchange of hot words and the Supreme Court on consideration of the facts of that case converted the conviction of the appellant from the offence punishable u/s 300 IPC to the conviction for the offence of culpable homicide not amounting to murder punishable u/s 304 Part II IPC with a custodial sentence of 8 years.

In view of the above, we partly accept the appeal. While holding the appellant guilty, we convert the conviction of the appellant for the offence of murder punishable u/s 302 IPC to conviction u/s 304 Part II IPC for having committed the offence of culpable homicide not amounting to murder and convert the sentence of life imprisonment imposed upon him to sentence of rigorous imprisonment for a period of 7 years while maintaining the fine of Rs. 1000/-, in default of payment of which, the appellant shall undergo rigorous imprisonment for further period of six months.

The appeal is, therefore, partly allowed and the impugned judgment, as well as the order on sentence are modified to that extent. As per the latest nominal roll of the appellant placed on record, appellant has already undergone actual imprisonment for a period of 7 years, 3 months and 14 days before his release on bail and has also earned the remission in sentence for a period of 9 months and 6 days. Bail was granted to the appellant vide order dated 31st March, 2000 which means that actual period of imprisonment undergone by the appellant is at least 7 years, 5 months and 18 days, to which if the remission period is added, the appellant has already undergone the period of sentence awarded to him including the period of further sentence in default of payment of fine. Therefore, we do not deem it necessary to issue directions for arrest of the appellant who is absconding.

The appeal is disposed of accordingly.

The personal bond cum surety bond stands discharged.