Punjab-Haryana High Court
Inderjit Singh vs State Of Punjab on 28 January, 2025
Bench: Gurvinder Singh Gill, Jasjit Singh Bedi
Neutral Citation No:=2025:PHHC:012297-DB
CRA-48-DB-2005 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-48-DB-2005
Date of Decision: 28.01.2025
INDERJIT SINGH
... Appellant
Versus
STATE OF PUNJAB
...Respondent
CRA-172-DB-2005
YASH KAMAL
... Appellant
Versus
STATE OF PUNJAB
...Respondent
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. P.S. Panag, Advocate
for the appellant in CRA-48-DB-2005.
Mr. Tarunveer Vashist, Advocate with
Mr. Shoryaveer Vashist, Advocate and
Mr. Gurfateh Singh Khosa, Amicus Curiae
for the appellant in CRA-172-DB-2005.
Mr. Harkanwar Jeet Singh, Asstt. A.G., Punjab.
****
JASJIT SINGH BEDI, J.
This order shall dispose of two criminal appeals i.e. CRA-48-
DB-2005 preferred by the accused-appellant, namely, Inderjit Singh against
the judgment of conviction and order of sentence dated 04/07.12.2004 passed
by the Sessions Judge, Sangrur and the other appeal bearing No. CRA-172-
DB-2005 preferred by the accused-appellant, namely, Yash Kamal against the
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judgment of conviction and order of sentence dated 04/07.12.2004 passed by
the Sessions Judge, Sangrur.
2. The FIR in the present case came to be registered on 02.07.2003.
The judgment of conviction and order of sentence was passed on
04/07.12.2004 passed by the Sessions Judge, Sangrur. The appeals preferred
against the aforesaid judgment of conviction and order of sentence have
come up for final hearing now i.e. after a period of 21½ years from the date
of registration of the FIR.
3. For the sake of convenience, the facts being are taken from
CRA-48-DB-2005.
4. The present case was registered on the statement Ex. PE of
Surinder Kumar (PW3) resident of Sunam. Devinder Kumar, now deceased
was his son. According to statement Ex.PE of Surinder Kumar, a day prior to
01.07.2003, there had been an altercation between his nephew Om Parkash
and accused Yash Kamal regarding a mobile phone as Yash Kamal was not
returning the mobile phone which he had taken from Om Parkash. On
01.07.2003 at about 10.00 p.m., Yash Kamal and Inderjit Singh accused were
having an altercation with Devinder Kumar now deceased and Kamal Kant
(PW4), regarding the abovesaid mobile phone near Mata Modi park. There
was an electric light on a nearby transformer. Surinder Kumar (PW3) who
had come to call his sons also reached there. Within his sight, Inderjit Singh
accused grappled with Devinder Kumar from his legs and simultaneously
accused Yash Kamal took out an iron patti from the pocket of his pant and
with an intent to kill Devinder Kumar gave a blow with the iron patti on his
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left flank. Devinder Kumar fell on the ground. He (Surinder Kumar PW3)
and Kamal Kant (PW4) raised alarm of ‘Na Maro Na Maro’ and hearing their
raula, Inderjit Singh accused left Devinder Kumar. Accused Yash Kamal gave
a kick blow to Devinder Kumar and both the accused fled with the weapon.
While escaping, they remarked that Devinder Kumar was to be killed that
day but he was saved. According to Surinder Kumar (PW3), the motive for
this occurrence was that Yash Kamal accused did not want to return the
mobile phone to Om Parkash.
5. Surinder Kumar (PW3) and Kamal Kant (PW4) shifted Devinder
Kumar to Civil Hospital, Sunam from where the doctor referred him to Civil
Hospital, Sangrur, for treatment as the condition of the injured was
precarious. Surinder Kumar took Devinder Kumar to Dayanand Medical
College and Hospital, Ludhiana and after getting him admitted there, he
returned to Sunam, when at about 4.00 a.m., on 02.07.2003, a police party
headed by ASI Sher Singh PW-8 met him near bus stand Chowk, Sunam to
whom Surinder Kumar made a statement Ex.PE.
6. ASI Sher Singh (PW8) made his endorsement Ex.PE/1 on the
said statement and transmitted it to Police Station, Sunam where the present
case was initially registered under Section 307 IPC. He himself took up the
investigation and reached the place of occurrence, inspected it, prepared the
rough site plan Ex.PP with correct marginal notes. He lifted bloodstained
earth and put it into a box and made it into a sealed parcel and took the same
in possession vide memo Ex.PF. In the meanwhile, Devinder Kumar died in
hospital and on receipt of information of his death, SHO Deepak Rai (PW9)
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reached the spot. He then took up the investigation of the case and offence
was converted to Section 302 of the Indian Penal Code. He sent HC Gurmail
Singh to Ludhiana for bringing the dead body. HC Gurmail Singh brought
the dead body of Devinder Kumar from DMC, Ludhiana to Civil Hospital,
Sunam on 02.07.2003 itself. SI Deepak Rai (PW9) reached there, prepared
inquest report Ex.PC and recorded statements of the witnesses under Section
175 Cr.P.C. He got conducted postmortem examination from Dr. R.S. Singla
(PW1) according to whose opinion the death was due to shock and
haemorrhage as a result of abdominal injury which was sufficient to cause
death in the ordinary course of nature. SI Deepak Rai (PW9) conducted the
investigation; he recorded statements of the witnesses and took into
possession bloodstained T-shirt of Devinder Kumar having a corresponding
hole after making it into a sealed parcel. On 03.07.2003, both the accused
were arrested and their personal search memos were prepared. On 05.07.2003
accused Yash Kamal was interrogated who suffered a disclosure statement
Ex.PJ in pursuance of which he got recovered the weapon of offence i.e. iron
patti Ex. P.1. It was made into a parcel and taken into possession by SI
Deepak Rai. In due course, the articles of the case property were sent to the
Forensic Science Laboratory who on analysis reported that soil, iron “patti”
and clothes of deceased were stained with human blood. After the completion
of the investigation, the accused were sent up for trial.
7. After the presentation of the challan, copies of documents relied
upon by the prosecution were supplied to the accused as required under
Section 207 Cr.P.C.
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8. On commitment, after hearing the arguments of the Public
Prosecutor for the State, counsel for the accused and perusing the report
under Section 173 Cr.P.C and the documents attached therewith, grounds
were made out to presume the commission of offence by the accused under
Section 302 read with Section 34 of the Indian Penal Code. Thus a charge
was framed against the accused. They pleaded not guilty to the charge and
claimed trial.
9. In order to substantiate the charge against the accused, the
prosecution examined Dr. R.S.Singla (PW1), Dr. Baldev Singh (PW2),
Surinder Kumar (PW3), Kamal Kant (PW4), HC Subhash Kumar (PW5), HC
Sadhu Ram (PW6), Dharminder Singh (PW7), ASI Sher Singh (PW8), SI
Deepak Rai (PW9), Dr.Atul Mishra (PW10), Dr.Sachin Jindal (PW11) and
Surinder Singh Negi (PW12). The report of Forensic Science Laboratory
Ex.PX was tendered into evidence.
10. After the close of the prosecution evidence, statements of the
accused were recorded in the manner as required under Section 313 Cr.P.C.
They both pleaded that they were innocent and had been falsely implicated in
this case.
Yash Kamal accused contended that the deceased had a fight
with some other boys which was a talk of the town but he was named on
suspicion.
Inderjit Singh accused pleaded that Kamal Kant (PW4) was his
class fellow and used to quarrel with him and as such he had been implicated
falsely due to suspicion.
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11. Based on the evidence led, the accused/appellants came to be
convicted and sentenced by the Court of Sessions Judge, Sangrur vide
judgment and order of sentence dated 04/07.12.2004 as under:-
Name of Offence Sentence Fine RI/SI in default
convict(s) under RI/SI of payment of
Section fine
Yash Kamal 302 r/w 34 RI for life Rs.5000/- RI for 06
IPC Months
Inderjit 302 r/w 34 RI for life Rs.5000/- RI for 06
Singh IPC Months
12. It is the aforementioned judgment, which is under challenge, in
the present appeals.
13. The learned counsels for the appellants contend that there was a
delay in the registration of the FIR. The occurrence took place at 10.00 PM
on 01.07.2003 but the FIR (Ex.PE/2) was recorded at 04.30 A.M on the night
between 1st and 2nd July, 2003. This delay was fatal to the prosecution case.
Both the material prosecution witnesses namely, Surinder Kumar (PW3-
complainant) and his son Kamal Kant (PW4) are interested witnesses being
closely related to the deceased. There are no independent witnesses of the
occurrence and therefore no corroboration to the statements of these
witnesses. In fact, it was a case of blind murder. They further contend that the
motive has not been established. The Investigating Agency did not collect
any evidence regarding the mobile phone and nor was the same was
recovered.
The learned counsel for appellant-Yash Kamal in addition
contends that taking the allegations to be correct, the offence would be one of
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culpable homicide punishable under Section 304 IPC and not murder
punishable under Section 302 IPC. The occurrence took place after a brief
altercation, only a single injury was caused to the deceased by a carpenters
tool and the accused had not acted in a cruel manner. Therefore, Exception 4
to Section 300 IPC would come into play. Reliance is placed on the
judgments in Ramaswamy Vs. State of Tamil Nadu, 1994(1) RCR
(Criminal) 568, Masumsha Hasanasha Musalman Vs. State of
Maharashtra, Crl. Appeal No.2048 of 1996, decided on 24.02.2000,
Kotikalapudi Subba Rao Vs. State of A.P. & another, Criminal Appeal
No.819 of 2008, decided on 06.05.2008 and Stalin Vs. State represented by
the Inspector of Police, 2020(4) RCR (Criminal) 76.
The learned counsel for appellant-Inderjit Singh additionally
contends that no injury has been attributed to him. He is stated to have caught
hold of the deceased. Such like allegations are easy to level so as to knit a
wider net. There is no evidence of common intention between the two under
Section 34 IPC. The iron Patti was taken out from the ‘Dab’ by co-accused
Yash Kamal after a sudden altercation and the accused Inderjit Singh could
not have known firstly, that Yash Kamal was carrying the iron Patti and
secondly that he would use it. Therefore, he ought to be acquitted of the
charges framed against him. Reliance is placed on the judgments in Dajya
Moshya Bhil & others Vs. State of Maharashtra, 1984 AIR (SC) 1717 and
Manubhai Chimanlal Senma (Senwa) & others Vs. State of Gujarat, 2004
SCC(Cri) 1780.
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14. We have heard the learned counsel for the parties and gone
through the record.
15. Dr.Atul Mishra (PW10) was posted at DMC Hospital and he
attended upon Devinder Kumar and provided him treatment. He proved
operational notes Exs. PU and PU/1. Dr. Sachin Jindal (PW11) also treated
Devinder Kumar in the said hospital and on examination he found the
following two injuries:-
1. 1 cm elliptical penetrating wound 2 cm above left sub costal
margin in mid clavicular line, depth was not probed.
2. Multiple abrasions over dorsum of toes of left foot.
These witnesses deposed that Devinder Kumar died on
02.07.2003 at 4.00 a.m. Dr. Atul Mishra (PW10) deposed that the injury on
the abdomen resulted in his death.
16. Dr. R.S.Singla (PW1) conducted the autopsy on the police
request Ex.PC, on the dead body of Devinder Kumar on 02.07.2003 at 4.10
p.m. in Civil Hospital, Sunam and found the following injuries:-
1. Stitched wound 1 cm with one stitch 2 cm above left sub costal
margin in mid clavicle line.
On dissection, there was injury to the spleen and peritoneum and
there was hemoperitoneum and left renal haematoma. Clotted blood
was present.
2. Multiple abrasions over dorsum of toes of left foot. There was
stitched operation wound starting from epigastrium going vertically
downwards upto symphysis pubis. Multiple stitches were applied on
the wound.
As per this witness, the cause of death was due to shock and
haemorrhage as a result of abdominal injury which was sufficient to cause
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death in the ordinary course of nature. Injuries were ante-mortem in nature.
The probable duration between injuries and death was within 8 hours and
between death and postmortem was within 24 hours. Dr. R.S. Singla (PW1)
has proved the copy of postmortem report Ex.PA. The doctor deposed that
the injury no.1 was possible with iron patti Ex.P1. The doctor also proved the
belongings of the deceased Ex.P2 and Ex.P3. Thus, the death of the deceased
on account of the injury suffered stands established.
17. As regards the delay in the registration of the FIR, it would be
relevant to mention here that the occurrence was witnessed by prosecution
witnesses, PW3-Surinder Kumar and PW4-Kamal Kant who had shifted the
injured to Civil Hospital, Sunam.
The serious nature of the injury is evident from the facts that in
spite of the efforts made by the father and brother of the injured in promptly
shifting him to hospital, he succumbed to the injuries at 4.00 am on the same
night. Under these circumstances it could not be expected from them to have
gone to the police station to lodge the report instead of getting the treatment
conducted from the hospital. Surinder Kumar (PW3) and Kamal Kant (PW4)
had shifted the injured to Civil Hospital, Sunam and therefore to DMC,
Ludhiana which is at a distance of about 90 Kms. They deposed that no other
person had collected at the spot. Since no other person knew about the
occurrence, the report could not be lodged with the police earlier. ASI Sher
Singh (PW8) deposed that he sent a Head Constable who called persons from
the neighbouring houses but they stated that they had not seen the
occurrence. Under these circumstances the delay, if any, in lodging the report
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is fully explained and therefore, no benefit of the same can be given to the
accused.
The argument that the prosecution case is supported only by the
father and brother of the deceased and there is no independent corroboration
to their statements because of which their version cannot be believed cannot
be accepted. During cross-examination in reply to a question, Surinder
Kumar (PW3) deposed that no other person had come to the spot at the time
of occurrence. Mere relationship of the witnesses is not a sufficient ground to
reject their testimony.
The presence of Surinder Kumar (PW3) and Kamal Kant (PW4)
is natural at the spot. According to Kamal Kant (PW4), he alongwith
Devinder Kumar (now deceased) had gone out for an evening walk at about 9
or 9.15 P.M. According to him they had gone via Railway Crossing, Gate of
Bus Stand and when they were coming back to their house, both the accused
asked them to come in the park for two minutes as they wanted to talk with
them. They started quarrelling with them in a loud tone. According to him
they used to take meals at about 10.00 or 10.30 P.M. Surinder Kumar (PW-3)
has also deposed that both his sons had gone from the house at about 9.00
P.M. and when both of them did not return, he went to call them and noticed
them near park and they were heard talking loudly, he went towards them to
bring them back. His house was at a distance of 5-7 minutes walk from the
transformer, near which occurrence took place. Inderjit Singh accused
gripped Devinder Kumar from legs and Yash Kamal caused a blow. Both
these PWs were cross-examined in detail but there is nothing as such to
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suggest that they were deposing falsely. The presence of both of them is most
natural at the spot. Therefore, their testimony cannot be doubted on any
ground.
As regard the motive, it may be relevant to mention here that
Yash Kamal had taken a mobile phone of one Om Parkash, the nephew of the
complainant and had not returned it leading to the altercation and subsequent
injury to the deceased. Surinder Kumar (PW-3) and Kamal Kant (PW4) have
described consistently and in detail as to how and why the occurrence took
place. Be that as it may, in the case of an eye version account motive does not
have much relevance.
18. As regards the argument of the counsel for Yash Kamal that the
offence under Section 302 IPC was not made out but was only one under
Section 304 IPC. It would be apposite to examine Section 300 IPC and
Exception 4 IPC thereto which are reproduced as under:-
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, or–
secondly. — If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused, or–
(Thirdly)– If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death, or–
Fourthly)– If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death or
such bodily injury as is likely to cause death, and commits such act
without any excuse for incurring the risk of causing death or such
injury as aforesaid.
Xxxxx xxxxx
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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 offender having taken undue
advantage or acted in a cruel or unusual manner.
19. The various judgments relied upon by the counsel for appellant-
Yash Kamal are discussed herein below:-
The Hon’ble Supreme Court in the case of Ramaswamy (supra),
held as under:-
“This is an appeal under the provisions of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act. The sole
appellant was tried for an offence punishable under
Section 302 Indian Penal Code and was acquitted by the trial
Court. The State preferred an appeal and a Division Bench of
the High Court reversed the order of the acquittal and
convicted the appellant under Section 302 Indian Penal Code
and sentenced him to imprisonment for life. The prosecution
case is as follows :
The deceased Pinna Thevar, the accused and the material
witnesses, namely, PWs. 1 to 4 were residents of village
Aryapatti. One Kruppiah Thevar, PW14, mortgaged with
possession an extent of 52 cents of land to Kalichi Ammal,
the material aunt of the deceased for a period of 3 years and
borrowed a lona of Rs. 5,000/-. PW 14 wanted to dispose of
the land on behalf of Kalichi Ammal and the accused
competing with the deceased manoeuvred to get the land
sold to one Jayabarathi Ammal. Therefore, there was enmity
between the two. There was an incident where PW7, son of
the deceased, beat Poonuswami, brother of the accused and
in that connection there was a panchayat. The
panchayatdars threatened to deal with the culprits. Since
then the accused and the deceased were not on cordial terms
and relations were strained very much. On 10.8.1977 the
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Cotton Market. The accused and PWs 1 to 3 sent their
cotton to the shop of K. Rathinasami Nadar and K.
Nagarajan who were the commission agents. On 11.8.1977
PW 4 sent his cotton to the shop of S.S.K.P. Commission
Merchants in Theni. They arrived at Theni by about 11.00
a.m. and the price of cotton was not fixed till 6.00 p.m. on
that date. Meanwhile the accused, PWs 2 and 3 went over
there. The price was fixed at about 6.00 p.m. PW18 who was
employed as an accountant in the shop of K.R.K.N. told
them that the cotton sent by them could be weighed only on
the next day and the price due to each of them could be paid.
He requested them to say overnight. PW4 took the deceased
with him to the shop of S.S.K.P. in which P.W.11 is employed
in order to get the sum of Rs. 5,000/- due to him towards the
price of the cotton he had sent. The deceased and PW4
waited in the shop of S.S.K.P. Commission merchants till
about 6.15 p.m. Thereafter the sum of Rs. 5,000/- payable to
PW4 was paid at about 7.00 p.m. Receiving the money P.W.
4 and the deceased went to the bus stand at Theni at about
7.15 p.m. and waited there till about 8.15 p.m. to get a seat
in the bus proceeding to their village. However, they could
not get seats and therefore, P.W. 4 told the deceased that
some residents of their village might have gone over to the
shop of K.R.K.N. and that they might have to go there, meet
them and stay with them that night and return to the village
the next morning by the first bus. So the deceased and PW4
went to the shop of K.R.K.N. The accused, PW 1 to 3 were
already there. PWs 1 to 4, the deceased and the accused
waited in the shop till about 10.00 p.m. chit chatting. In the
meantime PWs1 to 3 the deceased and the accused went to
the Woodland Hotel in Theni Cumbam Road. After taking
supper all the six proceeded towards the north in order to go
to K.R.K.N. commission Mandi. The accused suddenly
turned to Pinna Thevan and asking him “Are you not the13 of 31
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person who is creating ill feelings and enmity ?” So saying
whipped out a knife from his waist and stabbed him on the
right side of his abdomen near the flank and ran away. A
report was given. The injured was taken to the hospital and
was treated. On 12.8.1977 at 12.30 a.m. PW5, Dr. A Rajan
Babu who was a Medical Officer attached to the Govt.
Hospital Theni examined Pinna Thevar who was sent to him
by the police with a memo and found on him a stab wound
on the right side of the upper abdomen 1½” x 1″ entering
into the abdomen. He was then sent to Erskine Hospital
Madura. He was treated but he died 3 days later. The post
mortem was conducted and the doctor found sutured stab
and incised wound. On the opening of the abodment the
sutured wound over the anterior wall of the stomach 2.5 cm
in length through and through with purulent material with
pus cell (sic). The posterior wall of the stomach showed a
perforation 1 cm x 5cm through and through with congested
margine and purulent material at that time. Peritoneal
cavity contained 250 ml of turbid fluid with pus cells. The
stomach contained 15 m.ks. of greasy coloured turbid fluid
with pus like material. Cut sections of all other organs were
pale. Lungs and small intestines were congested. The PW8,
Dr. Thagarajan found taht the deceased would appear to
have died eue to complication of injury sustained by him due
to peritonitis. After completion of the investigation a charge-
sheet was led. Accused was examined under Section 313 and
he pleaded not guilty. The prosecution relied on the evidence
of PWs 1 to 4 the eye-witnesses. The trial Court on the basis
of surmises rejected the evidence of eye-witnesses.
**** **** *****
4. Now coming to the nature of the offence we find that
the accused inflicted only one injury on the abdomen of the
deceased. No doubt that even single injury hit in the ordinary
course is sufficient to attract clause 3 of Section 300 resulting14 of 31
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conviction under Section 302 Indian Penal Code. In the instant
case the question is whether the accused intended to cause that
injury. The Doctor noticed one injury in the abdomen but the
opined that the complications may set in some cases. There may
be complications but from that it cannot be said that the persons
who received such injury would necessarily die. The Doctor
further opined that the complications may be after the injured is
admitted in the hospital. In these circumstances we find it difficult
to hold that the accused intended to cause that particular injury.
It is not a case where clause (3) of Section 300 is attracted.
Therefore, the offence committed would be culpable homicide not
amounting to murder. Accordingly we convict him under
Section 304 Part II, Indian Penal Code and sentence him in
suffer RI for 7 years.”
(emphasis supplied)
The Hon’ble Supreme Court in the case of Masumsha
Hasanasha Musalman (supra), held as under:-
“8. It is in evidence of Deubai (PW-4) that when she followed the
appellant, she saw that the appellant went from behind of her
husband and stabbed him with dagger at left side shoulder and
thereafter gave blows of dagger to the deceased. If she had been
following the appellant, she could not have seen him giving a
blow to the deceased from the back. Only when the scuffle started
taking place, injuries could have been inflicted and she could
have been those injuries. In the circumstances, it is reasonable to
infer that only one serious injury was caused by the appellant to
the deceased which is injury No. 1 while all other injuries, as
opined by the doctor, could have been caused during the scuffle.
This appreciation of evidence by the trial Court stands to reason.
The High Court brushed aside the medical evidence to draw an
inference that there was an intention on the part of the appellant
to cause all the injuries. The evidence of the Doctor means that
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not have been caused by him but these abrasions could have been
caused by falling on the ground and coming in contact with a
rough surface. The probability that while injury No. 1 could have
been inflicted by the appellant, injury Nos. 2 and 3 could have
been caused in the course of the scuffle cannot be ruled out. In
this view of the matter, we think that the view taken by the
trial court is preferable to the view taken by the High Court as
there is a sufficient cogency in the reasoning adopted by the
trial Court . The High Court does not appear to have
appreciated this aspect of the matter at all.
**** **** ****
10. In the result, we reverse the judgment of the High Court in so
far as this aspect of the matter is concerned and acquit the
appellant of the said charge while we set aside the
conviction under Section 302 Indian Penal Code and restore that
of the trial Court imposing a punishment of five years for an
offence under Section 304, Part II, Indian Penal Code. It is
brought to out notice that the appellant has already been custody
for more than five years now. Therefore, he should be set at
liberty forthwith. The appeal is allowed accordingly.
Appeal allowed.”
(Emphasis supplied)
The Hon’ble Supreme Court in the case of Kotikalapudi Subba
Rao (supra), held as under:-
“3. Background facts in a nutshell are as follows:-
Kancherlapalli Ravi Kiran (hereinafter referred to as the
‘deceased’) was doing finance business. A1 borrowed an
amount of Rs. 30,000/- from the deceased and executed a
promissory note scribed by Pasupuleti Chennakesavulu (P.W.8)
. On 5.5.2001 the deceased asked A1 to repay the said amount
due to him. On denial of Al to repay the same, the deceased
allegedly slapped Al and thereupon, Al threatened the deceased
that he would see his end. On the next day i.e.on 6.5.2001 at16 of 31
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about 6.30 P.M. the deceased along with P.W. 1 came to old
Bus Stand in Papatla on Suzuki Motorcycle. Then A1 stopped
the motorcycle and called deceased and P.W.1.The deceased
got down from the motorcycle and went to A1 and thereupon
quarrel ensued. P.W.1 rushed towards A1 and noticed Al and
A2 armed with knives and another person was also with them.
P.W. 1 identified the other person as A3.
4. According to P.W. 1, Al and A2 attempted to attack the
deceased with knives and therefore he went in rescue of him and
thereupon A1 poked him with a knife on the right side of
abdomen, and A3 kicked him on his stomach and so he fell down.
Later, A1 poked the deceased with knife on the left side of chest
and ribs and A2 poked the deceased on the top of right side hip.
In the meanwhile, P.W.2-Kokkirala Naga Satish reached the scene
and raised cries. His cries drew the attention of the passers by
and thereby the scene stormed with strong gathering. The
accused took to his heels towards Bheemavaripalem Road, P.W.2
informed the incident to his father over phone. P.W.7-
Kancherlapalli Kishore Kumar, a relative of P.W.2, reached the
scene and shifted the deceased and P.W.1 to Government
Hospital, Bapatla for treatment. The Doctor examined the
deceased and declared him dead.
**** *****
10. In support of the appeal learned counsel for the appellant
submitted that the Trial Court and the High Court should not
have relied upon the evidence of PWs 1, 2 and 3.It is also
submitted that even if the prosecution version is accepted in its
entirety, a case under Section 302 Indian Penal Code is not made
out because the occurrence took place in course of a sudden
quarrel and Exception 4 to Section 300 is applicable.The learned
counsel for the State supported the judgment of the Trial Court
and the High Court.
*** *** ****
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12. The residual question is whether Section 302 Indian Penal
Code has application.
13. For bringing in operation of Exception 4 to section 300
Indian Penal Code, it has to be established that the act was
committed without premeditation, in a sudden fight in the heat of
passion upon a sudden quarrel without the offender having taken
undue advantage and not having acted in a cruel or unusual
manner.
The Fourth Exception of Section 300 Indian Penal Code 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
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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 acted 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 Indian Penal Code is not defined in
the Indian Penal Code. 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’.
The aforesaid aspects have been highlighted in Sridhar Bhuyan v.
State of Orissa (JT 2004 (6) SC 299), Prakash Chand v. State of
H.P. (JT 2004 (6) SC 302), Sachchey Lal Tiwari v. State of Uttar
Pradesh (JT 2004 (8) SC 534), Sandhya Jadhav v. State of
Maharashtra [2006(4) SCC 653] and Lachman Singh v. State of
Haryana [2006 (10) SCC 524].
14. When the factual position is considered in the background of
the legal principles set out above, the inevitable conclusion is that
the appropriate conviction would be in terms of Section 304 Part
I Indian Penal Code and not Section 302 Indian Penal Code. The
conviction under Section 307 Indian Penal Code does not suffer
from any infirmity. The same is upheld. Custodial sentence of 10
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years in respect of the offence punishable under Section 304
Part I Indian Penal Code would suffice. Both the sentences shall
run concurrently.”
(Emphasis supplied)
The Hon’ble Supreme Court in the case of Stalin (supra), held as
under:-
“7.2 From the above stated decisions, it emerges that there is no
hard and fast rule that in a case of single injury Section 302 IPC
would not be attracted. It depends upon the facts and
circumstances of each case. The nature of injury, the part of the
body where it is caused, the weapon used in causing such injury
are the indicators of the fact whether the accused caused the
death of the deceased with an intention of causing death or not. It
cannot be laid down as a rule of universal application that
whenever the death occurs on account of a single blow,
Section 302 IPC is ruled out. The fact situation has to be
considered in each case, more particularly, under the
circumstances narrated hereinabove, the events which precede
will also have a bearing on the issue whether the act by which the
death was caused was done with an intention of causing death or
knowledge that it is likely to cause death, but without intention to
cause death. It is the totality of the circumstances which will
decide the nature of offence.
8. Now, so far as the submission on behalf of the accused that the
motive alleged is of the incident prior to four months of the
present incident and that the prosecution has failed to establish
and prove is concerned, it is required to be noted that in the
present case there are three eye-witnesses believed by both the
Courts below and we also do not doubt the credibility of PWs 1, 2
and 3. As held by this Court in catena of decisions, motive is not
an explicit requirement under the Penal Code, though “motive”
may be helpful in proving the case of the prosecution in a case of
circumstantial evidence. As observed hereinabove, there are three
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eye-witnesses to the incident and the prosecution has been
successful in proving the case against the accused by examining
those three eye-witnesses and therefore, as rightly observed by
the High Court, assuming that the alleged motive is the incident
which had taken place prior to four months or the prosecution
has failed to prove the motive beyond doubt, the same shall not
be fatal to the case of prosecution.
8.1 As observed and held by this Court in the case of Jafel Biswas
v. State of West Bengal (2019) 12 SCC 560, the absence of motive
does not disperse a prosecution case if the prosecution succeed in
proving the same. The motive is always in the mind of person
authoring the incident. Motive not being apparent or not being
proved only requires deeper scrutiny of the evidence by the courts
while coming to a conclusion. When there are definite evidence
proving an incident and eye-witness account prove the role of
accused, absence in proving of the motive by prosecution does not
affect the prosecution case.
9. Applying the law laid down by this Court in the aforesaid
decisions, more particularly the decisions on the single injury and
the facts on hand, it is required to be considered whether the case
would fall under Section 302 IPC or any other lesser offence.
PW3 – Nelson, who is an eye-witness to the incident right from
the beginning, deposed that when the deceased – Kalidas served
extra beer to two persons who came from outside, the accused
became angry and told the deceased why he is giving more beer
to out-town people and not giving to local people and thereafter
the problem started and in that scuffle the accused took out the
knife and stabbed from behind. From the medical evidence, the
deceased sustained the following injuries:
“External Injuries:
A stab wound about 3 x 1.5 cm and 8 cm deep with clean edges
present over the back on the right side corresponding to D11
vertebera present. Wound edges swollen, read with adherent
blood.”
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10. As per Exception IV to Section 300 IPC, 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
offender having taken undue advantage and not having acted in a
cruel or unusual manner. In the present case, at the place of
incident the beer was being served; all of them who participated
in the beer party were friends; the starting of the incident is
narrated by P.W.3, as stated hereinabove. Therefore, in the facts
and circumstances, culpable homicide cannot be said to be a
murder within the definition of Section 300 IPC and, therefore, in
the facts and circumstances of the case narrated hereinabove and
the manner in which the incident started in a beer party, we are
of the opinion that Section 302 IPC shall not be attracted.
11. Now, the next question which is posed for consideration of
this Court is whether the case would fall under Section 304 Part
II IPC? Considering the totality of the facts and circumstances of
the case and more particularly that the accused inflicted the blow
with a weapon like knife and he inflicted the injury on the
deceased on the vital part of the body, it is to be presumed that
causing such bodily injury was likely to cause the death.
Therefore, the case would fall under Section 304 Part I of the IPC
and not under Section 304 Part II of the IPC.
12. In view of the above and for the reasons stated above, the
appeal is allowed in part. The impugned judgment and order
passed by the High Court confirming the conviction of the
accused for the offence punishable under Section 302 IPC is
hereby modified from that of under Section 302 IPC to Section
304 Part I IPC. The accused is held guilty for the offence
punishable under Section 304 Part I IPC and sentenced to
undergo 8 years R.I. with a fine of L 10,000/- and, in default, to
further undergo one year R.I. The appeal is allowed to the
aforesaid extent.”
(emphasis supplied)
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20. In the instant case, as per the prosecution, there was a dispute
regarding a mobile phone one day prior to the occurrence. On the date of the
occurrence an altercation/occurrence took place between both sides who
happened to be at the place of occurrence regarding the mobile phone. In the
occurrence, Yash Kamal accused took out an iron Patti which is a carpenter’s
tool from inside his trousers and gave a single blow on the deceased whereas
appellant-Inderjit Singh is stated to have caught hold of the deceased from
his legs. The blow was not repeated. Thus, apparently, it is a case of a sudden
occurrence on the spur of the moment after a brief altercation and accused
Yash Kamal has used a carpenter’s tool as a weapon inflicting a single injury
only without acting in a cruel manner or taking undue advantage of the
situation. Therefore, in the attending facts and circumstances of the case, the
inevitable conclusion is that the appropriate conviction should be under
Section 304 Part I of IPC and not under Section 302 IPC.
21. As regards the arguments of the learned counsel for Inderjit
Singh that he ought to be acquitted of the charges framed against him as no
injury had been attributed to him, it would be apposite to examine the
judgments relied upon by the counsel and the same are as under:-
The Hon’ble Supreme Court in the case of Dajya Moshya Bhil
(supra), held as under:-
“3. A few facts necessary to dispose of the contention raised oil
behalf of appellants Nos. 2 and 3 may be stated. At a festival
described as ‘Indal’ all altercation took place between deceased
Gunjarya on one hand and appellants Nos. 2 and 3 Oil’ the
other oil account of the profane language used by appellants
Nos. 2 and 3 who were then inebriated. Both of them were23 of 31
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slapped by Gunjarya. The dispute consequent upon this
altercation was settled by the local panchayat in which both
appellants Nos. 2 and 3 on one hand and deceased Gunjarya on
the other, were fined Rs. 5/- each: Oil May 26, 1981 when
‘deceased Gunjarya accompanied by his two brothers Gobji and
Pandys in company of P. W. 3 Hajarya, P. W. 4 Dajya and P. W.
5 Jahangriya and two others were busy dismantling the but of
one Bamanya for the purpose of erecting a new hut on the
nearby plot, the three accused came together and declared their
intention of avenging the insult inflicted oil them by Gunjarya at
the time of ‘Indal’ festival. At that time accused No. 1 was
armed with a Dharya while appellants Nos. 2 and 3 were
unarmed. Immediately all the three of them rushed towards
deceased Gunjarya and when Gunjarya tried to escape he was
chased. Original accused No. 1 gave a blow with the Dharya on
the forehead of Gunjarya while appellants Nos. 2 and 3 were
alleged to have pelted stones at Gunjarya resulting in causing
two lacerated wounds to deceased Gunjarya. On these
allegations all the three of them were-tried by the learned
Additional Sessions Judge, Dhule in Sessions Case No. 52 of
1981. The learned Judge convicted all the three of them for
having committed an offence under Section 302 read with
section 34 of the Penal Code and sentenced each of them to
suffer imprisonment for life. All the three of them preferred
Criminal Appeal No. 1040 of 1981 in the High Court of
Judicature at Bombay. A Division Bench of the High Court
dismissed the appeal and confirmed the conviction and sentence
of all the three appellants. Hence this appeal by special leave
limited to the question hereinbefore set out.
4. The High Court while upholding the conviction of appellants
Nos. 2 and 3 for an offence under Section 302 read with
section 34 of the Penal Code held that there were three
circumstances which clearly provide a clue to the common
intention of appellants Nos. 2 and 3 with appellant No. 1 and all24 of 31
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the three were reiterated before us by Mr. Bhasme, learned
counsel for the State of Maharashtra. We will examine all the
three circumstances to decide whether they provide necessary,
adequate and sufficient evidence for holding that appellants
Nos. 2 and 3 shared the common intention to commit murder of
Gunjarya with appellant No. 1.
5. The three circumstances relied upon by Mr. Bhasme in
support of his submission are : (i) that the three amused came
together; (ii) that all the three accused had a common motive to
avenge the incident that occurred at ‘Indal’ festival; and (iii)
that when the victim of assault Gunjarya tried to escape all the
three of them chased Gunjarya.
6. It must straightway be conceded that the three appellants
came together near the place where deceased Gunjarya in
company of his two brothers, some witnesses and some
companions were working and where the incident occurred.
Standing by itself this circumstance may be sufficient to suggest
that the three had some common intention. The question is
whether they had the common intention to commit murder of
Gunjarya. If the three shared the common intention to commit
murder of Gunjarya as is now contended obviously appellants
Nos. 2 and 3 would not come unarmed. It is admitted by the
prosecution that at that time appellant No. 1 was armed with a
dharya but appellants 2 and 3 were unarmed. It would be
contrary to common sense to hold that appellants 2 and 3
accompanied appellant No. 1 with the avowed object of
committing murder of Gunjarya yet came unarmed. Their
intention by this very tell tale circumstance is contra-indicated.
Let it be made clear here that in order to attract Section 34 it is
not sufficient to prove that each of the participating culprits had
the same intention to commit a certain act. What is the requisite
ingredient of Section 34 is that each must share the intention of
the other. Appellants 2 and 3 though they were in the company25 of 31
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of the appellant No. 1 were shown to be unarmed. The High
Court has overlooked this most important circumstance.
7. The second circumstance relied upon by the prosecution to
establish that the common intention was shared by appellants 2
and 3 with appellant 1 is that all the three of them had a
common motive to avenge the incident that occurred at the time
of ‘Indal’ festival. The High Court has recorded a finding that at
the time of the festival in the house of Parsi Dasara, a quarrel
took place between Gunjarya on one hand and appellants 2 and
3 an the other. There is not the slightest reference to the
presence or participation of appellant 1, who is shown, to be the
principal culprit of the offence, in that quarrel. In this context it
would be advantageous to turn to the direct testimony of
Hazaria, P. W. 3 who has stated in his evidence that at the time
of ‘Indal’ festival a quarrel took place between appellants 2 and
3 on one hand and deceased Gunjarya on the other. He does act
say that appellant 1 who was charged with substantive offence
of committing murder participated in the quarrel. It is not
suggested that the appellants are inter-related. Therefore it is
not shown that appellant 1 was in any manner involved in this
quarrel. It is therefore not correct to say that all the three of
them had a common motive at avenging the insult suffered by
appellant 2 and 3 at the time of ‘Indal’ festival. First appellant
had nothing to do with that quarrel yet in fact, the only fatal
blow was given by original accused No. 1 who was not shown
to be concerned with that quarrel. He could not have any
motive to commit murder of Gunjarya on account of that
quarrel. Clearly therefore the contention that all the three of
them had a common motive to avenge the incident that took
place at the time of ‘Indal’ festival cannot be accepted as being
contrary to record and the High Court was in error in placing
reliance on it.
8. An incidental submission urged was that when the three
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threatened that they would avenge the insult felt by them and
they would do so by killing Gunjarya. In respect of this aspect
of prosecution case, the evidence apart from being
contradictory is vague and of little assistance. All the three
principal witnesses stated that accused 1 to 3 asked Gunjarya
as to why he had given slaps to appellants 2 and 3 at the time of
‘Indal’ festival, It is impossible to believe that all the three of
them spoke simultaneously the same language and used the
same words. It is too a general and a vague a circumstance to
permit any inference to be drawn against the accused.
9. The last circumstance relied upon on behalf of the
prosecution, is that the appellants 2 and 3 along with appellant
1 chased Gunjarya, when he tried to escape from the scene of
occurrence. There is evidence to that effect of the three
prosecution witnesses. It is also brought out in evidence that
appellants 2 and 3 pelted stones but no one says whether the
stones hit Gunjarya. The gap in the evidence in this behalf is
sought to be filled in by a reference to the medical evidence
which shows that Gunjarya had suffered two lacerated wounds
and the medical officer deposed that they were likely to be
caused by pelting of the stones. Does it permit an inference of
common intention to commit murder ? Appellant 1, the
principal culprit charged with substantive offence of murder did
not have that motive which appellants 2 and 3 had. Appellant I
must have sonic other motive of which appellants 2 and 3 were
presumably unaware. Now it appellant 1 bad some motive other
than the one which the prosecution tried to infer and if he came
armed with a dharya and yet appellants 2 and 3 accompanied
him unarmed and empty-handed and if there is no evidence of
prior meeting of minds and if appellant 1 had nothing to do with
the quarrel that took place between deceased Gunjarya on the
one hand and appellants 2 and 3 on the other, he had nothing to
avenge on that account and therefore having given close
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the High Court that appellants 2 and 3 shared the common
intention with appellant 1 namely to commit murder of
Gunjarya.
10. All the circumstances when viewed in their cumulative effect
would not permit as inference that appellants 2 and 3 shared
common intention to commit murder of Gunjarya. Therefore the
conviction of appellants 2 and 3 for an offence under
Section 302 read with section 34 of the Penal Code cannot he
sustained.
11. The next question is as to whit offence appellants 2 and 3
haw committed. Even though they came unarmed when they
chased Gunjarya, with appellant I who was armed with a
dharya a weapon of cutting and pelted stones, an inference of
common intention being formed on the spur of moment can be
made. The fact that appellant 1 was armed with a dharya and
appellants 2 and 3 pelted stones causing injuries may permit all
inference that appellants 2 and 3 could have shared the
common intention with appellant 1 of causing grievous hurt to
deceased Gunjarya. Therefore in the circumstances of this case
the minimum common intention that can be attributed to
appellants 2 and 3 is one of causing grievous hurt with a sharp-
cutting weapon like a dharya. Thus appellants 2 and 3 are
shown to have committed all offence under Section 326 read
with section 34 of the Penal Code and they should be convicted
accordingly. In the facts and circumstances of, this case each of
them must be sentenced to suffer rigorous imprisonment for 3
years.
12. Accordingly this appeal is partly allowed and the conviction
of appellants 2 and 3 for the offence under Section 302 read
with Section 34 of the, Penal Code and the sentence of
imprisonment for life are set aside and each of appellants 2 and
3 is convicted for an offence under Section 326 read with
Section 34 of the Indian Penal Code and each of them is
sentenced to suffer rigorous imprisonment for 3 years.
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Appeal partly allowed.”
(Emphasis supplied)
The Hon’ble Supreme Court in the case of Manubhai
Chimanlal Senma (Senwa) (supra), held as under:-
“7. PW2-widow and PW9-daughter of deceased specifically
stated before the Court that appellant No.1 came near their
house, called the deceased out and when the deceased went, A2
and A3 caught hold of him and at that time A1 gave a knife
blow. A1 tried to give second knife blow, which was warded off
by the deceased and, therefore, it landed on the left hand wrist
of the deceased. With regard to the alleged overt act on the part
of A2 and A3, we have to test the prosecution version on the
basis of the complaint Ex. 59 filed by A1 immediately before his
arrest. A1 has specifically narrated in the FIR that there was a
scuffle between him and the deceased. During that scuffle, he
got injuries. Injury to A1 is proved by PW-1. If during that
scuffle A2 and A3 had intervened and tried to hold the deceased
or separate A1 and the deceased, it cannot be said that A2 and
A3 were sharing any common intention of causing any injury to
the deceased. Admittedly, accused and the witnesses are
relatives. It is the prosecution version that A1 to A3 were using
the open space in front of the house of the deceased for drinking
or gambling purposes. Because of this, 15 days prior to the date
of the incident, there was a quarrel between A1 and the
deceased. In that set of circumstances, the presence of A2 and
A3 at the scene of offence cannot be said for causing any injury
to the deceased. It is also to be stated that there is some force in
the contention of the learned counsel for the appellants that if in
reality the deceased was caught by A2 and A3, then it would
have been difficult for the deceased to ward off the second blow.
But this would be a matter of conjecture as it depends upon the
circumstances and force used by the deceased at the relevant
time.
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8. Further, A2 and A3 were unarmed. If they had gone along
with A1 to pick up quarrel with the deceased, it is quite
probable that they would not go there unarmed. It is the say of
PW-2 and PW-9 that only A1 came to their house and shouted
that Kanti should come out. However, the prosecution has not
examined other independent witnesses whose statements were
recorded by the I.O. PW-2 and PW-9 have not stated any thing
about the scuffle between A1 and the deceased. But in view of
Exs. 59, 43 and the medical evidence, said version proved by
the prosecution cannot be rejected. In the circumstances, it
would be difficult to draw an inference that A2 and A3 shared
any common intention with A1, particularly, when medical
evidence discloses only one knife blow to the deceased.
9. In the result, the appeal filed by A1 Manubhai Chaimanlal
Senma (Senwa) is dismissed. The appeal filed by A2 Jitendra
Vithalbhai Senma (Senwa) and A3 Mahesh Vithalbhai Senma
(Senwa) is allowed and their conviction for the offence
punishable under Section 302 read with Section 34 is quashed
and set aside. Their bail bonds stand cancelled.
Order accordingly.”
(Emphasis supplied)
22. Coming back to the facts of the instant case, from the perusal of
the evidence on record, Inderjit Singh accused/appellant has been attributed
the role of having caught hold of the deceased from his legs. Neither was he
armed and nor has any injury been attributed to him. Had he shared a
common intention with accused/appellant Yash Kamal to commit murder he
would not have gone unarmed. The motive for the occurrence also lies with
Yash Kamal. Further, the weapon of offence i.e. the iron Patti was concealed
and taken out by Yash Kamal from his trousers before inflicting a single blow
on the deceased. Therefore, it cannot be presumed that appellant-Inderjit
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Singh was aware of the concealed weapon and accompanied Yash Kamal to
the spot with the common intention to commit the offence of murder. In fact,
as has been discussed above, Yash Kamal himself has been found liable for
having committed an offence under Section 304 Part I IPC only. We may
hasten to add here that such allegations of having caught hold of the deceased
are easy to level to knit a wider net so as to implicate more person.
23. In view of the aforesaid discussion, while Inderjit Singh
accused/appellant in CRA-48-DB-2005 is given the benefit of doubt and
acquitted of the charges framed against him, the conviction of appellant-Yash
Kamal in CRA-172-DB-2005 is modified as under:-
Sr. Under Sentence Fine In default of No. Sections payment of fine 1. 304 IPC RI for 10 years Rs.5000/- RI for 06 Months (JASJIT SINGH BEDI) (GURVINDER SINGH GILL) JUDGE JUDGE 28.01.2025 JITESH Whether speaking/reasoned:- Yes/No Whether reportable:- Yes/No 31 of 31 ::: Downloaded on - 30-01-2025 02:45:38 :::