* IN THE HIGH COURT OF DELHI AT NEW DELHI CRIMINAL APPEAL No.531/1998 Judgment reserved on 7th January, 2015 % Judgment delivered on 30th January, 2015 + CRL.A. 531/1998 SHIV KUMAR @ NIGRO Through: Mr.M.L. Yadav, Advocate ..... Appellant versus STATE OF DELHI Through: ..... Respondent Mr.Sunil Sharma, APP for State CORAM: HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL G. S. SISTANI, J1 The challenge in the present appeal under section 374 of the Criminal Procedure code is to the judgment dated 02.09.1998 and order on sentence dated 04.09.1998 by which the appellant has been held guilty under section 302 IPC and sentenced to undergo imprisonment for life and fine of Rs 1000 and in default of payment of fine further simple imprisonment for 15 days.
2. The brief facts of the case, as noticed by the trial court, are as under:
“that on 15.05.1995 one Hariender Ram (deceased) boarded bus route No.433 along with Pt Ganga Dayal (PW2) and Bhola Ram (PW4) from Amar Jyoti Camp. Four persons boarded the same bus from Okhla. Exchange of hot words took place in the bus between Hariender Ram (deceased) and the said boys and three boys caught hold of Hariender Ram (deceased) and dragged him out of the bus and the boy who had caught hold of Hariender (deceased) from the collar brought out a knife from his pant and gave a blow on the chest of Hariender and ran away. MLC was prepared by Dr Dinesh Kadam (PW7) exhibited as Ex.PW7/A at 9:30am and was declared “brought dead by police constable”. In the MLC the name of the deceased was recorded as “unknown”.
3. Additional SHO Sh K.P Kukrety (PW24) along with constable Harvinder (PW14), Constable Phool Kumar (PW12) reached hospital and met Pt Ganga Dayal (PW2) and Bhola Ram (PW4) and recorded their statement (Ex.PW4/A). The endorsement (Ex.PW24/A) was made and FIR (Ex.PW6/A) was recorded.
4. Sh. K.P Kukrety (PW24) again came to the site of crime at about 11:45am and inspected the spot and lifted sample of blood as well as earth control sample, which samples were seized vide seizure memo Ex.PW24/B and on 16.5.1995 the autopsy of deceased Hariender Ram was done by Dr. D.P Murty(PW9) who found the following injuries on the body:
“ON EXTERNAL EXAMINATION: INJURIES:
1. Abrasion 2cm x 3cm obliquely placed near middle outer front of right side chest 1cm below the right nipple and 16 cms from mid line.
2. Incised stab wound of 4cm in upper part gaping 2cm vertically placed just below the left clavicle, 7cm from mid line, 14cm below the left ear lobule, 10cm from outer most part of left shoulder 14cm above left nipple, both angles acute, tissues clearly cut, thorsic wall, muscles and other tissue incised with a cut on first rib of 4cm x 6cm. Left lung showed three clean cut of 3.5cm. ON INTERNAL EXAMINATION: Left lung upper line 3cm below top showed one incised stab over front part corresponding to stab site obliquely 6cm towards high lung.
5. In the opinion of Dr P Murthy (PW9), the cause of the death was due to Haemorrhagic shock consequent to injury no.2 caused by sharp edged cutting and stabbing weapon which was sufficient to cause death in the ordinary course of nature.
6. On the basis of the information collected, Inspector Sh K.P Kukrety arrested accused Mohd Yunus @Chotu on 18.5.1995 and on interrogation, accused Mohd Yunus@Chotu made a disclosure statement wherein he confessed about his involvement and disclosed the names of his accomplices i.e Shiv Kumar @ Nigro, Shamshad and Shyambir. Accused Mohd Yunus @ Chotu further disclosed that knife used in the crime by appellant Shiv Kumar @ Nigro was kept in his house under the bedding as the house of the appellant was at a long distance. Memo Ex. PW11/F was prepared and pursuant to the disclosure statement, accused Shyambir, appellant Shiv Kumar @ Nigro and accused Shamshad were arrested.
7. On completion of investigation, report under section 173 Criminal Procedure Code along with connected documents were submitted in court. Out of six ocular witnesses, Jagat Singh (PW1), Shyam Kumar (PW8) and Pt Ganga Dayal (PW2) turned hostile. Sh Janki Prasad Sharma, Head Constable who took the deceased Hariender to AIIMS and got MLC Ex.PW7/A prepared died on 18.9.1997. Regarding medical evidence the state examined Dr Dinesh kadam (PW7) and Dr D.P Murthy (PW9).
8. The trial court, charged the appellant Shiv Kumar for the offence under section 302 IPC and the other co accused Shamshad, Shyam Bir and Chotu@ Mohd Yunus were charged u/s 323 and 34 IPC. Charge for the offence under section 25 of Arms Act was directed against accused Chotu @ Mohd Yunus to which the accused persons pleaded not guilty and claimed trial.
9. The prosecution in support of its case got examined 25 prosecution witness, including the star witness, namely, Bhola Ram (PW4).
10. The appellant and other co-accused were examined under section 313 Criminal Procedure Code to afford them an opportunity to explain incriminating circumstances appearing against them in evidence. They all denied the prosecution version and claimed that they have been falsely implicated.
11. Case of the prosecution rests mainly on the eye witness account of the occurrence given by the solitary witness Bhola Ram (PW4). He testified in the court that he, Pt Ganga Dayal (PW2) and deceased Hariender were travelling in bus when an altercation took place between the deceased Hariender and the accused persons. He further stated that four boys pulled down the deceased from the bus and a tall dark man stabbed him from above, which statement is corroborated by the medical report prepared by Dr D.P Murty (PW9). PW4 has also testified that he along with PW2 informed PCR and was present in AIIMS hospital when deceased was declared brought dead and got recorded their statement.
12. PW24 Inspector K.P Kukrety, who conducted part investigation of the case, testified that accused Mohd Yunus @ Chotu was arrested on 18.5.1995 and he made a disclosure statement Ex.PW11/E wherein accused Chotu confessed that he along with the appellant Shiv Kumar and other co accused Shamshand and Shyambir pulled down the deceased from the bus and appellant Shiv Kumar had stabbed the deceased. Pursuant to the disclosure statement, he led the police party to his house and handed over blood stained knife used in the crime. PW24 further testified that at the instance of accused Chotu, appellant Shiv Kumar and other co accused Shyambir and Shamshad were arrested. PW24 has also deposed that on 19.5.1995 accused were taken to court in muffled face and Bhola Ram (PW4) correctly identified all the four accused as corroborated by the testimony of PW4. PW24 has also stated that case property was sent to FSL laboratory and report Ex.Px and Ex.Py were obtained.
13. On consideration of evidence, learned Additional Sessions Judge found appellant Shiv Kumar @ Nigro guilty of murder under section 302 IPC and other co accused Mohd Yunus @ Chotu, Shamshad and Shyambir guilty of causing grievous hurt in furtherance of their common intention and convicted them under section 323 IPC read with section 34 IPC. He also found co-accused Mohd Yunus @ Chotu guilty of offence punishable under section 25 Arms Act and convicted him accordingly.
14. Learned counsel for the appellant urged that findings of the trial court cannot be sustained. He impeached the testimony of Bhola Ram PW4 stating that the witness was not reliable and was an inducted witness. Learned counsel urged that Pt Ganga Dayal (PW2) one of the alleged eye witness and maker of FIR did not support the case of the prosecution and was declared hostile.
15. The first criticism to the testimony of PW4 Bhola Ram is that the same is unreliable and subsequently created, which is evident from the fact that the MLC Ex.PW7/A records the name of the deceased as “unknown”. Had witness Bhola Ram (PW4) and Pt Ganga Dayal (PW2) accompanied the head constable Janki Prasad who took the deceased Hariender to AIIMS hospital, the name of the deceased and/or his father would have been disclosed by them and would have thus been mentioned in the MLC.
16. Another criticism to the testimony of Bhola Ram (PW4) is in relation to Examination in Chief wherein Bhola Ram (PW4) failed to identify the appellant and other accused at the first instance and only when the Additional Public Prosecutor cross examined PW4 he could identify the appellant along with the other accused persons.
17. Arguing further it was submitted by learned counsel for the appellant that even if the testimony of PW4 is believed to be true, the case falls within the 4th exception of section 300 IPC as it is the case of a single blow by the appellant 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. 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 was no pre-meditated act with a view to cause death of the deceased and the appellant having acted in the heat of passion, during a 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.
18. In support of his submissions, reliance is placed by the learned counsel for the appellant in the case of Jagtar Singh vs State of Punjab (1983) 2 SCC342 wherein Apex Court has observed that:
“The question is whether in the circumstance 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. 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 v. State of Haryana. It was subsequently followed in Randhir Singh @ Dhire v. State of Punjab and Kulwant Rai v. 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 under Section 302 IPC and sentence of imprisonment for life are liable to be set aside.
19. Learned counsel for the appellant also relied upon the case of Tholan v. State of Tamil Nadu1984 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 under Section 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”.
20. Mr.Yadav, learned counsel for the appellant, has submitted that the learned trial court has erred in relying on the testimony of Bhola Ram, PW-4. It is also contended that the said witness is not a natural witness and is a planted witness, which is evident from the fact that in the MLC, Exhibit PW-7/A, the name of the deceased or his father was not recorded.
21. Per contra, learned counsel for the State, submits that the prosecution has been able to establish its case beyond any shadow of doubt. Counsel further submits that the testimony of Bhola Ram (PW4) is reliable and credible as even though PW4 could not identify the appellant and other co accused in first attempt because he was rattled with the situation and was nervous but PW4 gave a descriptive and exhaustive account of the incident and was clear in his mind about the role of the appellant and other co accused. Counsel further highlights that name of PW4 appears in FIR and his presence in hospital is established by the testimony of Constable Harinder Singh (PW14).
22. Learned counsel for the state also submits that the testimony of Bhola Ram (PW4) is reliable and trustworthy, further his evidence is corroborated by the medical evidence. Moreover the knife recovered from accused Mohd Yunus @ Chotu was sent to FSL and blood of the deceased was found on the knife.
23. We have examined the evidence of this witness and find that the testimony of this witness is reliable and he has withstood the crossexamination. It may be noticed that the deceased was brought to the hospital by HC Janki Prasad. HC Janki Prasad could not be examined as he died during proceedings. The statement of HC Janki Prasad was recorded in the Case Diary on 15.5.1995, which mentions that Bhola Ram and Pt. Ganga Dayal had accompanied him at the hospital.
24. The record in the Case Diary has been taken into consideration. Primarily the mention of Bhola Ram and Pt. Ganga Dayal at the earliest opportunity available would show that neither of the two are planted witnesses. The FIR, Exhibit PW-2/A, was made on the same day i.e. 15.5.1995 at the instance of Pt.Ganga Dayal. The FIR also mentions the name of Bhola Ram and discloses that Pt.Ganga Dayal and Bhola Ram had also gone to the hospital along with the deceased, Harinder, however, Pt.Ganga Dayal has not supported the case of the prosecution and turned hostile.
25. Since PW-4, Bhola Ram is the star witness of the prosecution, we deem it appropriate to reproduce the translation of his evidence:
“Last year in the month of May I was living in Jhuggi at Amar Colony. Harinder was doing the job of Beldari/daily wages. Ganga Dayal was working in medicine factory. We used to visit Safdar Jung Hospital in the bus plying at Route No.433 from Amar Jyoti Camp. I used to go to Safdarjung hospital those days as I was bitten by a dog. Harinder has died. He was stabbed to death by knife after he was brought down from the bus. He was killed on 15.5.1995. Harinder, myself and Ganga Dayal all three persons were there in the bus plying at route no.433. We had boarded the bus for going to Safdar Jung Hospital. Four persons had boarded the bus from Okhla bus stop. The witness stared at the accused and then said that those persons are not present. It was about 8/9 a.m. knife injury was caused outside the bus stop of Kalkaji Depot. A dark complexioned tall person gave a knife blow. Harinder ran away from there and fell down at the gate of Kalkaji Depot. We noted the bus number and gave a telephone call at 100 number. The (Police) vehicle arrived and removed Harinder to the hospital. The Police officer made inquiries in the hospital. Police apprehended those persons. All four persons were apprehended. Those four persons are not present. When we went to enquire at the police station, police informed that they have been challaned. At this stage, A.P.P. requests to cross-examine the witness. Allowed. XXXX by Sh.R.C. Chopra A.P.P. It is correct that the Police recorded the statement after about 7/8 days of the incident. It is correct that I came to Patiala House Courts after 7/8 days of the incident. It is correct that when we went to the Court, the police had apprehended four persons. It is correct that their names were learnt as Shyam Dev, Shamshad, Chotu and Shiv Kumar. It is correct that the boy named Chotu had asked to bring down “IIS SALAY KO” and said (volunteered) “IIS KA KAAM KAR DATAY HAI.”
. It is correct that they had caught hold of Harinder from collar. It is correct that remaining accused persons had given slaps and fist blows while Shiv Kumar had given knife blow. It is correct that I was not aware of the names earlier. It is correct that I saw the persons in Patiala House and told that they were the same persons and then the names were known. It is correct that Shyam Vir, Mohd. Yunus, Shamshad and Shiv Kumar are the same persons. Mohd. Yunus is also called Chotu. It is correct that going to the police station and being told that the accused were challaned are subsequent happenings. I have come to the court to depose for the first time. I am an illiterate person. It is correct that those four persons are present in court and earlier I stated they are not the person due to perplecion. In the cross-examination by Defence Counsel Shri Wason on behalf of accused Shiv Kumar the witness further stated as follows: .... “At the depot the dark complexioned man rose from his seat and said “CHOTU BRING HIM DOWN IIS KA KAAM TAMAM KARTAY HAI”. The two persons, who were standing down near the gate dragged Harinder down. When we came to his rescue, the dark complexioned man opened the knife. All persons went backwards. The moment Harinder was brought down from the foot board, the dark complexioned man gave a knife blow from the upper side. He gave one knife blow.”
26. In the evidence PW4has testified that he was going to Safdarjung Hospital from Amar Jyoti Camp by Bus Route No.433. Ganga Dayal and Harinder, deceased, were also present in the bus. He has also described the incident and also identified the appellant herein. He was crossexamined by the APP and he clarified that he is an uneducated person and earlier he did not identify the persons as he was perplexed. This witness has also described the manner in which Harinder was brought down from the foot board and the manner in which the knife blow was given. We also find that this witness has withstood the cross-examination.
27. The submission of learned counsel for the appellant that this witness at the first instance did not identify the accused in Court is without any force as in the testimony this witness has candidly stated that he is an uneducated person and he had become perplexed at that stage. An explanation, which is cogent and reasonable.
28. The testimony of this witness finds support by the medical evidence of the Doctor who found in the post mortem examination an incised stab wound of 4 c.m. in upper part gaping 2 c.m. vertically placed just below the left clavicle, 7.c.m. from mid line, 14 c.m. below the left ear lobule, 10 c.m. from outer most part of left shoulder, 14 c.m. above left nipple, both angles acute, muscles and other tissues incised with a cut on first rib 4. c.m. x 6 c.m. left lung showed three clean cut of 3.5 c.m., 3 c.m. below the deep of lung, incised bone goes 6 c.m. deep to high lung. These injuries which have been noted by Doctor are in consonance with the statement of Bhola Ram that Shiv Kumar had given knife blow form upper side while the deceased was being brought down.
29. It may also be noticed that the knife was shown to the Doctor O.P. Murty, who had opined that the injury no.2, as described above, were possible with knife.
30. The evidence of Bhola Ram is also corroborated by the Scientific evidence. The knife was sent to the laboratory and as per the report, Exhibit Py, of Dr.V.K. Goel, Assistant Doctor, Biology, the knife contained blood group B, which was also found on the shirt of the deceased and the deceased also had B group on the blood strained cotton, which was preserved in the hospital.
31. Learned Counsel for the state lastly supported the impugned conviction of the appellant under Section 302 IPC. Also, he submits that the injury was inflicted by the appellant on the vital part of the body of the deceased i.e. the chest, therefore, it can be safely inferred that there was a clear intention on the part of the appellant to cause death of the deceased or to cause him such injury which in ordinary course would have resulted in his death. Reliance is placed by the counsel for the state in the case of Rahimbux vs State of MP (2008) 8 SCR213 Relevant para of the case has been reproduced below:
“.........the intention of the accused is apparent, he intended to inflict serious injury to Aslam Khan but unfortunately on his failure he made the deceased a victim. Therefore, from this his intention is apparent. Nobody, chases person with sword for any benevolent purpose. It is unfortunate, instead of causing the death of Aslam Khan the accused caused the death of his brother. It is nothing but change of malice from one brother to another brother. From these facts we are of opinion that it is not a case in which the benefit of Section 304I, I.P.C. or Section 304II, I.P.C. can be given to the accused. ......... It is the intention which was predominantly present in his mind when the accused chased Aslam Khan and therefore, this intention he satisfied by inflicting the murderous blow on the deceased on his vital part of body. Therefore, under these circumstances, we are of opinion that the conviction of the appellant under Section 302, I.P.C. is well founded and there is no ground to interfere in this appeal.”
32. On careful consideration of the rival contentions and the background of facts, we find merit in the plea of learned counsel for the appellant. Regarding applicability of section 304(2) IPC is concerned; we are of the opinion that the appellant’s argument in this regard has merit and deserves to be accepted. There is nothing on record to suggest that there was any enmity or motive on the part of the appellant to cause death of the deceased or to cause such injury which in ordinary course was sufficient to cause death. Therefore, the possibility of the intention to kill is ruled out. The case of the prosecution is that there was exchange of hot words and in the sudden rush of blood, the appellant took out the knife from his pant and inflicted a blow on the deceased, which blow unfortunately fell on the chest of the deceased and proved to be fatal. From the aforesaid factual matrix, it is clear that this is not a case of intention to kill and actually the fatal blow suffered by the deceased was a result of a sudden fight in the heat of passion without any premeditation. It cannot be said that the appellant had taken any undue advantage or acted in a cruel or unusual manner as he had given only a single knife blow which unfortunately fell on a vital part of the body and proved to be fatal. Thus, in our view, the case of the appellant squarely falls within the Exception 4 to Section 300 IPC which is reproduced thus:
“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, orException 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.”
33. Since the case of the appellant falls within the purview of Exception 4 to Section 300 IPC, he cannot be held guilty of the offence of culpable homicide amounting to murder and the offence committed by him falls within the category of culpable homicide not amounting to murder under Section 304 Part II IPC. In our aforesaid view, we draw strength from the judgment of Supreme Court in the matter of Pappu Vs. State of MP2009(4) Scale 521. 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 under Section 300 IPC to the conviction for the offence of culpable homicide not amounting to murder punishable under Section 304 Part II IPC with a custodial sentence of 8 years.
34. Also in the case of Hem Raj vs The State (Delhi Administration) AIR1990SC2252 it was observed by the Apex Court that “......it was during the course of the sudden quarrel the appellant gave a single stab which unfortunately landed on the chest of the deceased causing an injury which in the opinion of the Medical Officer was sufficient in the ordinary course of nature to cause death. ....... the occurrence had happened most unexpectedly in a sudden quarrel and without pre-meditation during the course of which the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury; but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of Section 300 IPC will be attracted.......the offence committed by the appellant is the one punishable under Section 304 Part-II IPC but not under Section 302 IPC.
35. Accordingly, we find no infirmity in the judgment passed by learned trial court. In view of the above, we partly allow this appeal. The conviction of the appellant under section 302 IPC is set aside and he is convicted under section 304 Part II IPC. We convert the sentence of life imprisonment imposed upon the appellant to imprisonment for a period of seven years while maintaining the fine of Rs.1000/- in default of which the appellant shall undergo imprisonment for further period of four weeks.
36. The appeal stands disposed of, in above terms. G.S.SISTANI, J SANGITA DHINGRA SEHGAL, J JANUARY30 2015 sc /ssn