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2007 DIGILAW 947 (DEL)

KHUKIA SEMA v. STATE OF N. C. T. OF DELHI

2007-05-07

H.R.MALHOTRA, R.S.SODHI

body2007
( 1 ) CRIMINAL Appeal No. 391 of 2004 is directed against the judgment and order of the Additional Sessions Judge, New Delhi in Sessions Case No. 33 of 1997 arising out of F.. R. No. 326 of 1996, registered at Police Station naraina, whereby the learned judge vide his judgment and order dated 25. 03. 2004 has held the appellant, Khukia Sema, guilty for an offence punishable under Section 302 IPC for committing murder of Amar Singh neg. Further by his order dated 26. 03. 2004, has sentenced the appellant to undergo Rigorous Imprisonment for life with fine of Rs. 1,000/- (rupees one thousand) and in default thereof, Rigorous Imprisonment for one month for the offence under Section 302 IPC. However, the appellant has been awarded benefit of Section 428 of Code of Criminal Procedure. ( 2 ) BRIEF facts of the case are as under:- That accused, K. Sema, was working as Helper in the Mess of Army base Workshop, Delhi, and the victim, Amar Singh Negi, was the Mess commander as on 1. 9. 1996. On the said day, the accused and the victim were consuming liquor at about 6 30 p. m. in the Mess. A quarrel ensued between the deceased and the accused upon which the deceased beat up the accused to the extent that he had to be helped by Sepoy Sher Singh and Nayak Diwan Chand to reach his barrack. On the way, Ram Parkash verma took charge of the accused and assured Sher Singh and Diwan chand that the accused would cause no trouble where after the accused went into his barrack. Shortly thereafter, Amar Singh Negi, the deceased, came near the barrack of the accused and on enquiry from Ram parkash Verma further exhorted the accused and continued to sit in the varandha of the barrack. This infuriated the accused to came out of his barrack holding a naked knife and shouted at the victim that he would see him. Amar Singh Negi stood up and faced the accused and another quarrel ensued. It is in this quarrel that the accused K. Sema allegedly stabbed Amar Singh Negi which injury proved fatal. The accused thereafter went into his barrack, changed his clothes and remained there till ram Parkash Verma was able to get sufficient help and the accused was taken into custody. It is in this quarrel that the accused K. Sema allegedly stabbed Amar Singh Negi which injury proved fatal. The accused thereafter went into his barrack, changed his clothes and remained there till ram Parkash Verma was able to get sufficient help and the accused was taken into custody. Sema was placed in quarter guard where after his case was taken over by the civil police and on completion of investigation, a challan was filed. ( 3 ) THE prosecution in order to prove their case have examined as many as 24 witnesses. The relevant witness out of them is PW-4, Ram Parkash verma, who is stated to be an eye witness. He states that he was posted as platune Clerk, D. S. C. Platune, 505, Army Base Workshop, Delhi Cantt and accused K. Sema was working as helper in the Mess while the deceased amar Singh Negi was appointed Mess Commander on 1. 9. 1996 on which day, he saw the accused as also Amar Singh Negi consuming liquor in the mess. The witness claims to have left the Mess and on returning found that the two persons were holding Khukia Sema, whose face was smeared with blood and who was under influence of liquor, and bringing him to his barrack. The witness told the two persons, namely, Sepoy Sher Singh and nayak Diwan Chand to leave the accused with him as he would cause no problem. Thereafter, K. Sema went to his barrack. Shortly thereafter, Amar singh Negi came to the barrack outside the room of the Hawaldar. The witness chided the deceased Amar Singh Negi as to why he had beaten khukia Sema and that Amar Singh Negi was older and senior to Sema. Upon this, Amar Singh Negi, the deceased, threw a challenge as to what could khukia do to him and thereafter continued to sit outside in the varandha of the barrack. On this, Khukia Sema came out of his barrack, armed with knife and challenged Amar Singh Negi saying that he would now see him. Upon this, Amar Singh Negi stood up and both men faced each other. Another quarrel ensued between the two and Khukia Sema struck Amar singh Negi with the knife. He gave several blows on the person of Amar singh Neg. The witness shouted for help and the accused was apprehended from his barrack. Upon this, Amar Singh Negi stood up and both men faced each other. Another quarrel ensued between the two and Khukia Sema struck Amar singh Negi with the knife. He gave several blows on the person of Amar singh Neg. The witness shouted for help and the accused was apprehended from his barrack. The witness also goes on to state that he called for help from Captain Harbhajan Singh, Lance Nayak Ramanand and Kedar Dutt. Captain Harbhajan Singh accompanied the witness and came to the place where Amar Singh Negi was lying. The Duty Officer, J. P. N. Upadhyay also reached that place. The Duty Officer started recording his diary. The accused, as already stated, was apprehended from his barrack. He had changed the clothes which he was wearing at the time of the incident. The duty Officer Upadhyay enquired of the accused who told him that Amar singh Negi used to abuse him and so he did what had to be done. Other senior officers also came. The local police was called at the site and the site plan was prepared at the instance of this witness. The accused was put in quarter guard and thereafter his custody was handed over to the local police. The body of Amar Singh Negi was also taken into possession and sent to safdarjung Hospital. The witness identified the clothes worn by the accused as also the knife used by the accused to cause injuries to Amar Singh Neg. The other witnesses of the incident are those that deposed to the post events. ( 4 ) LEARNED counsel for the appellant/accused fairly concedes that he is neither challenging the factum of death of Amar Singh Negi nor that the same was caused by the injuries inflicted by the accused. He, however, contends that the offence is not punishable under Section 302 IPC. He claims that this is a case which falls under the exceptions of Section 300 IPC and therefore, is covered by Section 304 IPC. ( 5 ) LEARNED counsel for the State, on the other hand, contends that from the evidence on record it is clear that the accused came out of his room, armed with a dagger and therefore, his intention to cause death is established. ( 5 ) LEARNED counsel for the State, on the other hand, contends that from the evidence on record it is clear that the accused came out of his room, armed with a dagger and therefore, his intention to cause death is established. She further contends that there was no provocation sufficient enough to invoke the first exception under Section 300 IPC, ( 6 ) WE have heard learned counsel and have carefully examined the depositions as also the material placed on record. It has come in evidence that both the deceased as also the accused were consuming liquor at about 6:30 p. m. in the Mess. It has also come into evidence that at the Mess, a quarrel ensued between the deceased and the accused in which the deceased beat up the accused. The accused was brought to his barrack by two persons with his face smeared with blood. PW-4, Ram Parkash Verma, assured sepoy Sher Singh and Nayak Diwan Chand that accused would not make any trouble on which the accused went inside his barrack. Obviously, at this time, there was no intention of the accused to cause any sort of disturbance and the accused had resiled to his fate by confining himself to his barrack. It is in evidence that hereafter Amar Singh Negi came to the varandha of the barracks and was chided by PW-4 as to why he had caused injuries to khukia Sema and that Amar Singh Negi was much older to K. Sema, but amar Singh Negi continued to challenge Khukia Sema saying what could khukia Sema do to him. Not being content here, Amar Singh Negi continued to sit in front of the barrack in the varandha. It is only hereafter that the accused came out of the barrack, armed with knife Yet, he did not strike amar Singh Negi in the first instance. It is in evidence that Amar Singh negi stood up in front of Khukia Sema and another quarrel ensued. It is here that Khukia Sema caused injuries to Amar Singh Negi which proved fatal. We also have evidence on record of an extra judicial confession made to PW-12, Subedar Jai Parkash Narain Upadhiya, which depicts the nature of abuses Amar Singh Negi was hurling at Khukia Sema which infuriated khukia Sema. It is here that Khukia Sema caused injuries to Amar Singh Negi which proved fatal. We also have evidence on record of an extra judicial confession made to PW-12, Subedar Jai Parkash Narain Upadhiya, which depicts the nature of abuses Amar Singh Negi was hurling at Khukia Sema which infuriated khukia Sema. With this evidence on record, the question that arises is whether the case would be covered under any of the exceptions to Section 300 IPC? Exception No. 1 reads as under:- "exception 1 - When culpable homicide is not murder - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident:" ( 7 ) IT is in evidence that both the deceased as also the accused were under influence of liquor. The accused belongs to a tribe in Nagaland and that the deceased was abusing the accused in the first instance in the Mess and thereafter, came all the way to the barracks, obviously, to further instigate and provoke the accused. ( 8 ) NORMAL acceptable test of grave provocation is whether a reasonable man belonging to the same class of society as the accused, placed in situation in which the accused was placed, would be so provoked as to loose control. Provocation may be by words, gestures or by any other act. The previous act of the victim may also be taken into consideration to ascertain whether the subsequent acts caused grave provocation for committing the offence. In this case as ha already been noticed above, the deceased, it appears, was senior, stronger and older man, capable of physically inflicting injuries on the accused, Knukia Sema, who took a beating, in the first instance, and thereafter, took a stand on continued provocation. The nature of the provocation is set out in the extra judicial confession to PW-12, Subedar Jai parkash Na ain Upadhiya. ( 9 ) IN the peculiar circumstances, as have emerged in this case, we find that there was no pre-meditation on the part of the accused to cause the death of Amar Singh Negi but certainly to frighten Amar Singh Negi, however, Amar Singh Negi stood his ground and it was then another quarrel took place and the knife was used. This act, therefore, was done in the heat of the passion and the assailant did not take any undue advantage nor acted in a cruel manner, even though, the number of wounds inflicted were in number In any event, the number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence was sudden not pre-meditated and was caused under a fit of anger. The case, therefore, according to us, falls in the first exception to Section 300 IPC and therefore, is not murder. The case would be covered under Section 304 IPC, namely, that the accused committed culpable homicide not amounting to murder in committing an act in which the death was caused with the intention of causing such bodily injuries as are likely to cause death. ( 10 ) HAVING arrived at the conclusion that the case is covered under section 304 IPC, we are now called upon to administer an appropriate sentence. We have been informed that the appellant has undergone nearly about eleven (11) years of incarceration. In that view, we see that ends of justice would be met if the sentence of imprisonment of the appellant is reduced to the period already undergone. The judgment dated 25. 3. 2004 and order on sentence dated 26. 3. 2004 is modified to the extent noted above. Criminal Appeal No. 391 of 2004 is accordingly disposed of in the above terms. The appellant, who is in custody, shall be released forthwith unless wanted in any other case.