Vinod Kumar @ Dolly vs State of Delhi

Sanjay Kishan Kaul, J.—One Bhagirath (deceased) was gainfully employed as a TSR driver. On 20.6.1992, Bhagirath along with Uma Shankar (PW1) and Kishan Lal (PW3) was standing near the Godbin Lodge at about 4.30 p.m. Since these persons wanted to have some water, they fetched two empty tumblers from Raja Ram (PW2) who was a juice seller and then he went to Godbin lodge to bring some water. The deceased met the appellant at the counter and asked for some water, which is stated to have been declined by the appellant. This resulted in an altercation and the deceased gave a slap to the appellant. The appellant feeling humiliated left in anger and came back after 5-6 minutes, whipped out a dagger from the dub of his pant and stabbed the deceased on the left side of the chest whereafter the appellant ran away. The endeavour to apprehend the appellant proved futile as it is alleged that he even attacked PW1 in order to escape.

The appellant was charged for offence u/s 302 IPC read with Section 307 IPC and Section 27 of the Arms Act and was found guilty for offences u/s 302 IPC and Section 27 of the Arms Act while being acquitted of the charge u/s 307 IPC in terms of judgment dated 29.6.1996 and was sentenced to undergo rigorous imprisonment for life and to pay Rs. 100/- as fine and in default of fine, to undergo RI for a period of two months u/s 302 IPC and was sentenced to undergo RI for 3 years u/s 27 of the Arms Act, both sentences running concurrently.

The case of the prosecution is that after the aforesaid incident, PW1 went to the house of the deceased and brought his brother to the spot and the deceased was taken to the LNJP Hospital where he was declared brought dead.

The constable on duty in the hospital passed on the information of the death of the deceased to P.S. Nabi Karim where DD No. 18/A was recorded and SI Jai Kishan was entrusted with the investigation, who went to the place of occurrence first and thereafter proceeded to the hospital where he recorded the statement of PW1. The Rukka was sent through Constable Kulwant Singh, PW20 for registration of the case. The blood samples were lifted from the site as also the glasses which were lying broken at the site. The appellant had left the chappals behind, which were also taken into possession. The shirt of PW1, which was stained with blood in the process of lifting the deceased was also taken into possession by the IO.

The appellant made no confession in the statement u/s 313 Cr.P.C. The appellant is produced in custody in Court and states that he did inflict the injury on the deceased which caused his death but the circumstances so developed in respect of the incident that the appellant was enraged. The appellant claims that the provocation for his conduct was the slapping by the deceased. The appellant claims that he is from the Scheduled Caste community and it is the deceased who objected to take water from him. Be that as it may, when the first opportunity was available, the appellant did not plead any such defence and come out with the truth. The appellant now confessed to having inflicted the injury but learned Counsel for the appellant pleads that the present case is not one for conviction u/s 302 IPC but the 4th Exception to Section 300 IPC would come into play and as it is not a case of culpable homicide with any pre-mediation but rather an incident in a sudden fight in the heat of passion and thus would be governed by Section 304 Part 1 of the IPC.

The relevant provision of Section 300 is as under:

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--

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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.

Section 304 reads as under:

Section 304. Punishment for culpable homicide not amounting to murder

Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,

Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

In order for the case of the appellant to fall within the 4th Exception to Section 300 IPC, all the ingredients have to be satisfied:

(i) Committed without pre-meditation

(ii) In a sudden fight in the heat of passion and upon a sudden quarrel

(iii) Without the offender having taken undue advantage or acted in a cruel or unusual manner

If the evidence is perused, it has come on record that there was a hiatus period of about 5 to 6 minutes between the incident of slapping by the deceased and the appellant rushing to his house picking up a knife and using it to inflict the injury on the deceased. It is trite to say that the time gap between the quarrel and the fight should be minimum so as not to give enough time for passion to subside and the accused to come to normalcy. We are fortified by the views expressed by the Apex Court in Sukhbir Singh Vs. State of Haryana, where such a view was taken in similar facts. The accused in that case upon a sudden quarrel went home and came armed in the company of others though without telling them his intention to commit the ultimate crime of murder. There was a lapse of a few minutes but it was found that there was no sufficient lapse of time between the quarrel and the fight and the occurrence could be categorized as ''sudden'' within the meaning of Exception 4 of Section 300 IPC.

On the same reasoning is the judgment of Shanmugam @ Kulandaivelu Vs. State of Tamil Nadu, where the accused on being questioned by his deceased brother as to why he was whistling at a place frequented by ladies, all of a sudden entered his house and came out with a spear and attacked the deceased, inflicting several injuries which caused his death. The conviction and sentence was modified to one u/s 304 Part 1 of the IPC instead of Section 302 IPC.

We are of the considered view that the present case is paramateria to the factual matrix of above said two cases inasmuch as the deceased slapped the appellant. The appellant was enraged and it appears that the lifting of the hand by the deceased may have also occurred on account of their being some quibble over caste allegations as contended on behalf of the appellant. The appellant was red and rushed to his house and was back in a couple of minutes to inflict the fatal blow. The lapse of time period was not sufficient to cool down the temper of the appellant and the incident occurred in one sequence in a sudden manner. We are thus inclined to accept the contention of learned Counsel for the appellant that though the finding of guilt under the impugned judgment against the appellant is liable to be sustained, the conviction is altered to one u/s 304 Part 1 IPC and not Section 302 IPC.

Now coming to the issue of sentence, we feel that the sentence of 8 years imprisonment would suffice apart from sustaining the fine of Rs. 100/-. The appellant is not sure whether he has paid the fine but in any case if the sentence undergone by the appellant of 8� years which includes remission of about 9 to11 months is taken into account, the period of sentence coupled with the period required to undergo on account of default for payment of fine already stands served.

The appellant be thus released if he is not wanted in any other case. The appeal is accordingly allowed.

Copy of the order be sent to the Superintendent Tihar Jail.