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2011 DIGILAW 427 (DEL)

Rajesh Kumar v. State

2011-04-08

G.P.MITTAL, S.RAVINDRA BHAT

body2011
S. Ravindra Bhat, J. 1. The appellant is aggrieved by the judgment and order of the learned Additional Sessions Judge dated 4.4.1998 and the order dated 6.4.1998 by which he was convicted for the offence punishable under Section-302 IPC and sentenced to undergo life imprisonment. 2. The prosecution's allegations in brief were that the appellant - who had established his business of selling chickens near Dabri Maur after procuring chickens from Jama Masjid area just a few days before, had a quarrel with one Mohd. Aslam and his brother PW-14. Apparently, the latter had previously established the same business in the market, that of selling chicken. The prosecution alleged that on the night of 11.6.1990, information was received by DD No.13A stating that the appellant had stabbed his elder brother with a knife. On investigation, the police recorded the statement of the deceased's (Mohd. Aslam's and referred to as such) brother Mohd. Shamshad who described the incident. According to PW-14, the two brothers used to open the shop in the morning and the deceased used to get the day's supply from Jama Masjid. The appellant, according to PW-14, was carrying on the similar business in front of their shop and established it a few days prior to the incident. The appellant apparently used to work in his father's meat shop previously. PW-14 alleged that on the fateful day, his shop was opened, the appellant felt that he was losing customers and, therefore, nurtured a grudge. PW-14 alleged that at about 7:00 PM in the evening, the appellant asked the deceased to empty the chicken crates belonging to them where they had kept their birds. The deceased emptied the crates; nevertheless the appellant continued to abuse him for quite some time. At about 10:00 PM when the shop was closed and he (PW-14) along with his brother were leaving the area, the appellant who was standing in front of his shop shouted at Mohd. Aslam saying “SALE RUK JA. KAHAN JA RAHA HAI SALE?”. PW-14 stated that suddenly the appellant picked up a knife - that was used to chop the meat and stabbed the deceased on the chest, as a result of which, the latter started bleeding. The appellant threw down the knife and fled the spot. PW-14 held his brother and asked the people around to catch the appellant. PW-14 stated that suddenly the appellant picked up a knife - that was used to chop the meat and stabbed the deceased on the chest, as a result of which, the latter started bleeding. The appellant threw down the knife and fled the spot. PW-14 held his brother and asked the people around to catch the appellant. The deceased - according to PW-14 - could walk a few steps and thereafter collapsed and died. PW-14 stated that there were others who witnessed the incident; he specifically mentioned PW-1. After receipt of information, the police reached the spot and carried on investigation. The appellant was arrested on 14.6.1990. After conclusion of investigation, the police charged the appellant for committing an offence punishable under Section-302 IPC. The appellant pleaded not guilty and claimed trial. 3. The prosecution, in the course of the trial, relied upon the testimonies of 20 witnesses and also placed on record several exhibits and material objects. This included the postmortem report marked as Ex.PW-18/A, knife and a sketch of the knife Ex.PW- 6/B. After considering all the materials, the Trial Court concluded that the prosecution had established the appellant's guilt; it, therefore, convicted him as charged and sentenced him in the manner noticed earlier in this judgment. 4. Mr. Sumeet Verma, learned counsel for the appellant urged that findings of the Trial Court cannot be sustained. He impeached the testimony of PW-14 stating that the witness was not reliable. Learned counsel urged that even though the prosecution relied upon the testimony of Dular Chand (PW-1), an alleged eye witness, he did not support the prosecution's case at all and was declared hostile. Turning to the testimony of PW- 14, it was urged that his conduct was unnatural. Learned counsel highlighted that this witness, though brother of the deceased, made no attempt to warn the latter or stopped the appellant in the course of the alleged attack. Mr. Sumeet Verma, learned counsel for the appellant submitted that this be considered in the light of the prosecution's allegations. The witness's clothes were spattered with the deceased's blood. Arguing further it was submitted that if the testimony of PW-14 was not believed, the entire prosecution would fail. 5. It was faintly urged that the FIR in this case was ante-timed. Sumeet Verma, learned counsel for the appellant submitted that this be considered in the light of the prosecution's allegations. The witness's clothes were spattered with the deceased's blood. Arguing further it was submitted that if the testimony of PW-14 was not believed, the entire prosecution would fail. 5. It was faintly urged that the FIR in this case was ante-timed. To say this, the learned counsel submitted that the prosecution did not anywhere prove that a copy of the FIR was sent to the concerned Magistrate within reasonable time. Learned counsel submitted that even in the absence of such proof, the Trial Court proceeded to notice that an endorsement about the information having been received on 12.6.1990 at 8:00 AM was found on a copy of the FIR which was a part of the record. Learned counsel emphasized that this was contrary to the depositions of PW-17 who stated that a special report was delivered by him on 11.6.1990 itself. Arguing further about the unreliability of the FIR, learned counsel urged that the brief facts submitted to the Autopsy Doctor PW-18 requesting a postmortem of the deceased did not contain the appellant's name, even though the FIR lodged earlier at the behest of the PW-14 reflected his name and identity. The learned counsel lastly urged - without prejudice to the earlier submissions - that assuming the prosecution story to have been proved, the appellant could not be convicted for the offence punishable under Section-302, IPC. Mr. Sumeet Verma, learned counsel stated that at best, he could have been validly convicted for the offence punishable under Section-304(2), IPC. To say this, learned counsel relied upon the judgments reported as Tholan v. State of Tamilnadu, (1984) 2 SCC 133 ; Jagtar Singh and Anr. v. State of Punjab, 1999 SCC (Crl.) 120; Joginder Singh v. State, 2011 (1) JCC 657 and Surinder Kumar v. Union Territory, Chandigarh, AIR 1989 SC 1094 . It was submitted that interval between the quarrel and the attack was so narrow that the appellant could be fairly considered to have nurtured a grudge which was entertained by him in the earlier part of the evening of the day of the incident. It was submitted that interval between the quarrel and the attack was so narrow that the appellant could be fairly considered to have nurtured a grudge which was entertained by him in the earlier part of the evening of the day of the incident. In this regard, it was submitted, by relying on the decision in Pappu v. State, 2009 (11) SCC 472 that the Supreme Court had even converted the conviction under Section-302, IPC to one Section-304 Part-II, IPC where the facts disclosed that the attack took place by the use of a gun. Learned counsel submitted that as far as the time gap or interval is concerned, the judgment reported as Arumugum v. State of Tamil Nadu, (2008) 15 SCC 590 , guides that even a lapse of one day can be considered sufficient to be part of a single transaction. 6. Learned Additional Standing Counsel Mr. Rajesh Mahajan submitted that the Trial Court's findings are justified and do not call for any interference. It was submitted that so far as the credibility of PW-14 is concerned, the incident deposed to by him occurred within a very narrow time period. It was emphasized that having regard to the peculiar facts where the appellant took out and wielded a knife with a long blade (about 8 inches), the reaction time left with the witness PW-14 was extremely narrow. It was argued that there was nothing unnatural in the brother PW-14 not rushing to aid; in this regard, it was submitted that people's reactions are always not uniform and are always dictated by circumstances prevailing at the point in time. So far as the argument dealing with ante timing of the FIR is concerned, it was submitted that the lapse to record the appellant's name in the brief facts does not in any way detract from the circumstance that the intimation was received in time; the FIR, in this case, was recorded at the earliest instance and importantly, named the appellant. Having regard to these circumstances, the discrepancy, if any, between the testimony of PW-17 and the endorsement, noticed by the Trial Court on the copy of the FIR was not fatal. 7. Learned counsel submitted that the Trial Court's approach could not be faulted having regard to the seriousness of the injury. Having regard to these circumstances, the discrepancy, if any, between the testimony of PW-17 and the endorsement, noticed by the Trial Court on the copy of the FIR was not fatal. 7. Learned counsel submitted that the Trial Court's approach could not be faulted having regard to the seriousness of the injury. Though, only one blow was delivered, it was with a deadly weapon - with the knife which had a blade of 20 Centimeters. The site of the injury was the left part of the chest of the deceased. Learned counsel highlighted that the injury was 14 Centimeters deep. Having regard to the nature of the weapon, the site of the injury as well as its severity, the Trial Court's conviction under Section-302 was justified and ought not to be disturbed. 8. We will first deal with the submission as to the credibility of the PW-14's testimony. Though, the appellant's counsel tried to impeach its veracity and truthfulness, we are un-persuaded by the submission. The mere circumstance that a witness happens to be at the spot and sees the incident which is described later vividly in the course of the trial, cannot be discounted on theoretical assumption that he speaks merely by situation. Events can, or do occur in a flash and possibly even in a few seconds. The present case appears to be one such incident where the simmering resentment which the appellant bore against the two brothers, i.e. the deceased and the PW-14 appeared to have boiled over after both shut down the business and started moving out. The appellant, for reasons, best known to him, objected to the two brothers, who used to carry on their business opposite his stall, keeping their wares near his. The justification of this is something, which the Court will not go into. However, the point to be emphasized is that when a witness is unable to, or does not come to the aid of the victim of an attack, his testimony cannot be discounted merely on that ground. There have to be some more reasons, apart from these, to persuade the Court to discount an eye witness testimony like that of PW- 14's in the present case. We, therefore, reject the submission on behalf of the appellant in this regard. 9. There have to be some more reasons, apart from these, to persuade the Court to discount an eye witness testimony like that of PW- 14's in the present case. We, therefore, reject the submission on behalf of the appellant in this regard. 9. Similarly, with respect to the argument concerning the delay in lodging the FIR, the Court does not find the same to be substantial. The FIR, in this case, was lodged almost simultaneously with the receipt of the information through DD No. 13A. The police moved in and took steps to secure the spot and carried on the investigation. The appellant's arrest took place on 14.6.1990; it matches PW-14's statement that after the attack he threw down the chhuri (knife) and fled the spot. No doubt, the prosecution did not establish by positive evidence that the report which the police was to mandatorily furnish to the concerned Magistrate in terms of Section-157, had indeed been done. However, the Trial Court noticed that the endorsement in this regard by the Magistrate was timed at 8:00 AM on 12.6.1990. We are of the opinion that too much cannot be made out having regard to the circumstances in this case. However, this would not, in our opinion, absolve the police of the obligation to furnish such report which have been emphasized time and again by several judgments of the Supreme Court as well as this Court. We have, of late, noticed the tendency, in the cases that have been considered by this Court, of the police, not to send these reports except in a case of Section-302 IPC. We emphasized that the mandate of Section-157 is clear and unequivocal; a report must necessarily be sent in compliance of this provision to the concerned Magistrate in all classes of offences mentioned in the provision. We direct the Commissioner of Police to take appropriate steps in this regard and issue necessary instructions for immediate compliance. 10. So far as the submissions regarding applicability of Section-304(2) IPC are concerned, we are of the opinion that the appellant's argument in this regard have merit and deserves to be accepted. 11. We direct the Commissioner of Police to take appropriate steps in this regard and issue necessary instructions for immediate compliance. 10. So far as the submissions regarding applicability of Section-304(2) IPC are concerned, we are of the opinion that the appellant's argument in this regard have merit and deserves to be accepted. 11. In Surinder Kumar case (supra), the Court was dealing with the situation, where in the course of a heated exchange of arguments, abuses were hurled by rival parties, the appellant was enraged, went into the kitchen and returned with a knife and inflicted injury on one of the witnesses. He also inflicted three knife blows to the deceased, invoking over turning the conviction under Section 302 IPC and substituting with Section 304 (1), IPC. The Court inter alia held as follows: To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation ; (iii) the act was done in a heat of passion ; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly Taking an over all view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under Section 304 Part I, IPC and direct him to suffer rigorous imprisonment for 7 years." 12. In Jagtar Singh case (supra) too the Court stated that the use of a deadly weapon was not to be a circumstance to exclude operation of Exception 4 of Section 300 if all the ingredients of sudden quarrel leading to the injuries were satisfied. Closer home, the judgment in Joginder Singh case (supra) was also a case where a nine inch long knife was used to inflict several stab injuries on the deceased's neck. A judgment of the Division Bench of this Court substituted the conviction from Section 302 to one under Section 304(1), IPC. 13. In the case of Arumugam (supra), the facts were that there was a pre-existing dispute between the deceased and the first accused concerning some local village politics. This dispute resulted in a quarrel between one of the accused and the deceased a day prior to the incident. On the day of incident i.e. 22.4.1986 when the deceased was returning from his mango grove, A-1 was armed with spike; he was accompanied by the other two accused, one of whom was also armed. The accused party caught hold of the deceased and stabbed him on his right neck with the spike; the spike pierced his neck and came out from the left side as deposed by PW-1. After considering the submissions and several previous reported judgments, the Court analyzed the meaning of the expression “sudden quarrel”. Relying upon the judgment in Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 : 2002(4) CRJ 731, the Court held that the facts showed that there was a sudden quarrel and that the findings of the Courts below convicting the appellant under Section-302 IPC could not be sustained. Conviction was, therefore, altered to one under Section-304, IPC. In Pappu v. State 2009 (11) SCC 472 , the accused/appellant had used a gun which resulted in the death of the victim. Conviction was, therefore, altered to one under Section-304, IPC. In Pappu v. State 2009 (11) SCC 472 , the accused/appellant had used a gun which resulted in the death of the victim. There too, the Court deemed it appropriate to convert the conviction from one under Section-302 to Section-304(2), IPC. 14. In this case, as noticed earlier, appellant had opened a shop a few days before. His place of business was just opposite that of the two brothers i.e. the deceased and PW- 14. Concededly, they were in the same business and were competitors. The evidence of PW-14 disclosed that one Salim used to carry out the business next to the appellant's stall. On the concerned date, he was absent and that space was taken advantage of by the deceased and PW-14 who kept their birds there in addition to their own stall. The appellant felt aggrieved - perhaps he perceived this an action to affect his business adversely. Whatever be the reason, he expressed his resentment at many occasions. Although, seemingly, the quarrel or verbal altercations which occurred at 7:00 PM died down, as subsequent events disclose, the feeling of resentment continued to simmer in the appellant, which ultimately resulted in an attack upon the deceased. Though the injury is a single blow, its nature is undisputed. It was sufficient to cause death. However, equally, we are of the opinion that had the appellant really intended to kill or cause such a blow with the intention of causing death, he would have proceeded further and done something more. His fleeing the spot in fact in some way reinforces that though the intention was to give a blow that would result in serious consequences, perhaps it did not extend to the intention of giving blow that would result in death. In that sense, the “appellant knew” that the injuries would have resulted death in the ordinary course of nature. 15. Having regard to the above discussion, we are of the opinion that appeal has to partly succeed. The appellant's conviction under Section-302 IPC is, therefore, altered to one under Section-304(2), IPC. The appellant has already undergone imprisonment for 6 years and 3 months including remission. 15. Having regard to the above discussion, we are of the opinion that appeal has to partly succeed. The appellant's conviction under Section-302 IPC is, therefore, altered to one under Section-304(2), IPC. The appellant has already undergone imprisonment for 6 years and 3 months including remission. Having regard to the fact that the incident, in this case, occurred on 11.6.1990 - more than 21 years ago, and having regard to the overall conspectus of the facts and the surrounding circumstances, we are of the opinion that ends of justice would be met if the sentence is also altered to the period undergone by the applicant. The appeal is partly allowed in the above terms. Bail bond and surety bonds furnished by the appellant is hereby discharged.