The appellant being the mother, it is stated she is entitled to compensationAs per the prosecution case, the respondent Nos. 2 and 3 in furtherance of common intention had committed murder of Darshan Singh on 23rd March, 2005 at his house RZ-S-285, Nihal Vihar, Delhi at about 9/9.15 P.M. PW-6 claims and has stated that she was an eye witness to the occurrence.She has deposed that respondent Nos. 2 and 3 had come to her house and had asked for a knife for cutting salad.She gave them the knife and thereafter respondent Nos. 2 and 3 sat in Crl.A. No. 245/2012 Page 3 of 14 the open portion of the plot and started consuming liquor.She did not approve of this.When her husband, the deceased Darshan Singh, returned home, she expressed her grievance and annoyance to her husband.Darshan Singh started speaking to respondent Nos. 2 and 3 and PW-6 went to the kitchen for preparing food.During the discussion, Darshan Singh and the respondent Nos.2 and 3 entered into fisticuffs and she came out after hearing the commotion.She was pushed by the respondent Nos. 2 and 3 and she tore the clothes worn by them.Respondent Nos. 2 Randhir Singh @ Dhira gave a couple of stab blows by knife to the husband in his abdomen but she was not able to state the total number of stab wounds given.She called the police by making a call at telephone No. 100 and in the meanwhile respondent Nos. 2 and 3 ran away from the spot.She took the deceased to Sanjay Gandhi Memorial Hospital.There he was treated and his statement (Exhibit PW-6/A) was recorded.Thereafter, on 24th March, 2005, the respondent Nos. 2 and 3 were arrested from a liquor shop at Nihal Vihar.She had witnessed their arrests.She deposed that respondent Nos. 2 and 3 had started grappling with her husband and when she tried to save him, the two respondents had pushed her.She further deposed that respondent No. 2 had stabbed her husband, whereas Crl.PW-6 is clear and categorical in her examination- in-chief and cross-examination that after her husband came back at 8.30 P.M. she had gone to the kitchen to prepare food.It is, therefore, clear that there was a time gap between the deceased coming back to the house and the occurrence, i.e., the fight which took place.He had claimed that earlier he had liquor with the respondent Nos. 2 and 3 at bus stand and thereafter had travelled with the respondent Nos. 2 and 3 on the scooter but had got dropped at a location before his house.The deceased was admitted to Sanjay Gandhi Memorial Hospital at about 10.30 P.M. on 23rd March, 2005 as per MLC (Exhibit PW-9/A).In these circumstances, we are inclined to discount the dying declaration of the deceased, as purportedly recorded in Exhibit PW-6/A that the deceased had objected to drinking of respondent No. 2 and 3 in the open portion of his house, after returning home at 8.30 P.M. One of the reasons we are inclined to disbelieve the deceased's statement to the said effect is that PW-6 has stated that she on request of the respondent Nos. 2 and 3 had given them a knife for cutting salad.This Crl.At another portion in the MLC (Exhibit PW-9/A) it is mentioned that stab wound of 3 x 3.5 cm was present in epigastric region to the right side of the middle line.We note that there was only one stab wound.Through Mr. Sanjay Lao, APP for the State.HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR.JUSTICE SIDDHARTH MRIDUL SANJIV KHANNA, J. (ORAL):Surinder Kaur, mother of the deceased-Darshan Singh, has filed the present appeal impugning the judgment dated 29th October, 2011 and order of sentence dated 9th November, 2011 passed by the Additional Sessions Judge in the charge sheet emanating from FIR No. 266/2005, Police Station Nangloi, under Sections 302/34 of the Indian Penal Code, 1860 (IPC, for short).By the impugned judgment, the respondent No. 2 Randhir Singh Crl.A. No. 245/2012 Page 1 of 14 @ Dhira has been convicted under Section 304 Part-I read with Section 326 and 34 IPC and sentenced to Rigorous Imprisonment of five years and fine of Rs.1 lakh.In default of payment of fine, the appellant has to undergo Simple Imprisonment for a period of six months.The other co-accused Jaspal Singh has been convicted under Section 326 read with Section 34 IPC and sentenced to Rigorous Imprisonment for a period of one year and six months.He has also been directed to pay fine of Rs.1 lakh and in default of payment of fine to undergo Simple Imprisonment for six months.A. No. 245/2012 Page 1 of 14At the outset, we record that the State has accepted the judgment and the order on sentence and has not preferred any leave to appeal.Learned counsel for the appellant impugning the judgment and order on sentence has raised three contentions; (i) the conviction should have been under Section 302 IPC; (ii) the sentence under Section 304 Part-I IPC for five years and fine of Rs.1 lakh is inadequate and (iii) Jaspal Singh was wrongly convicted under Section 326 IPC and should have been convicted under Section 302 read with Section 34 IPC.An additional prayer is made with regard to compensation, which was directed to be paid to the wife, i.e., Jagjit Crl.A. No. 245/2012 Page 2 of 14 Kaur.A. No. 245/2012 Page 2 of 14The three contentions are somewhat inter-connected and, therefore, have to be examined together.The trial court judgment is lucid and elaborate and sets out the circumstances why respondent No. 2 has been convicted under Section 304 Part-I IPC and not under Section 302 IPC.The judgment also explains why respondent No. 3 has been convicted under Section 326 read with Section 34 IPC and not under Section 304 Part-I IPC.We have examined the reasoning given by the trial court judgment and also the statements of the relevant witnesses, namely, Jagjit Kaur (PW-6) wife of the deceased, Dr. Vivek Bindal (PW-12), Dr. Kulbhushan (PW-13) and Dr. Manoj (PW-9).We note here that the learned counsel appearing for the respondents have relied upon statement of ASI Dharam Singh (PW-8).A. No. 245/2012 Page 4 of 14 respondent No. 3 kept watching the occurrence.She deposed that she knew Randhir and identified him.She also identified respondent No. 3 who was present in the court and had stated that she did not know his name.PW-6 was cross-examined by the Public Prosecutor.A. No. 245/2012 Page 3 of 14A. No. 245/2012 Page 4 of 14PW-6 in her cross-examination has deposed that she did not know respondent No. 3-Jaspal but she had given a knife to the respondent Nos. 2 and 3 for cutting salad.She has stated that these persons had come to their house at 8 P.M. on 23rd March, 2005, whereas her husband arrived at the house at 8.30 P.M. The occurrence in question as per the telephone call made to the police control room phone had taken place between 9 to 9.12 P.M. The PCR form (Exhibit PW-15/B) records that a telephone call was made to the control room at 9.12 P.M. stating that in the house RZ-285, S Block, Munna Property Dealer, there was a quarrel and exchange of blows.Thereafter, DD entry No. 26 was recorded at P.P. Nihar Vihar, Police Station Nangloi at 9.15 P.M. Crl.A. No. 245/2012 Page 5 of 14 (Exhibit PW-7/A).A. No. 245/2012 Page 6 of 14 shows that PW-6 at least knew the respondent No. 2 fairly well.As per PW-6 and the dying declaration of the deceased (Ex. PW-6/A), the respondent Nos. 2 and 3 were already drunk when they came to the house and after that they had asked for the knife.The aforesaid conduct of the said two respondents and PW-6 shows that she was acquainted and knew drinking habits of the respondent No. 2 and her husband, deceased Darshan Singh.A. No. 245/2012 Page 5 of 14A. No. 245/2012 Page 6 of 14The PW-6 has clearly deposed that there was a sudden quarrel between the deceased and the respondent Nos. 2 and 3, who were otherwise drinking together.However, the consequences can be ascertained from the medical records.The MLC (Exhibit PW-9/A) records that the patient was conscious and oriented and had one stab wound 3 cm x 1 cm on epigastric region.The patient was declared fit for statement.The aforesaid MLC was proved by Dr. Manoj (PW-9) but the said doctor had not personally examined the deceased.PW-9 has deposed that Dr. Deepak had initially examined Darshan Singh and thereafter he was examined by Dr. Vivek, Senior Resident, Surgery.Dr. Deepak and Dr. Vivek were not produced.A. No. 245/2012 Page 7 of 14A. No. 245/2012 Page 7 of 14He has stated that he had visited Darshan Singh in his house on 26th March, 2005 and at that time Darshan Singh had complained about pain in stomach.PW-8 did not record any statement to the this effect.Later on he came to know on 1st April, 2005 at 12.45 at night that Darshan Singh had expired at LNJP Hospital.Thus, there is dispute, whether the deceased Darshan Singh was discharged from Sanjay Gandhi Memorial Hospital on or about 25th March, 2005 or was referred to LNJP Hospital for further treatment without being discharged as such.In these circumstances, we are inclined to disbelieve the statement made by PW-8 and accept the position as contended by the appellant that the deceased was referred from Sanjay Gandhi Memorial Hospital to LNJP Hospital.The medical records in the present case, which have been recorded contemporaneously, support the said Crl.A. No. 245/2012 Page 8 of 14 contention.A. No. 245/2012 Page 8 of 14The cause of death as recorded in Exhibit PW-12/A was hepatic failure with acute renal failure with metabolic acidosis with septecemia.The post-mortem report was proved by Dr. Kulbhushan (PW-13).He has stated that the post-mortem was conducted by one Dr. Rohit but he has left the hospital and his whereabouts were not known.We may note that two injuries were noticed in the post-mortem and they are as under:"1) Contusion 25x10 cms present on right chest region and upper front of abdomen on ..side.2) Stab wound 2x0.5x3 cms present on right upper abdomen 11 cms above the umbilicus and 2.5 cm to the right of midline.As already recorded above, it is not injury No. 2 but as per the post-mortem report, injury No. 1 was the cause of death.PW-13 in his deposition in the court has stated as under:"Injury No. 1 is antimortum, around 1 week in duration and could be caused by blunt force impact.Injury No. 2 is caused by sharp edged weapon.Injury No. 1 is sufficient to cause death in ordinary course of nature."A. No. 245/2012 Page 9 of 14As per the post-mortem, the deceased had sustained five external injuries, namely, (i) contusion 12x10 cms on right lower chest region and upper front of abdomen on right side (ii) stab wound of 2x0.5x3 cms on the right upper abdomen, (iii) lapratomy, i.e., operation wound of 22 cms in front abdomen (iv) scabbed abrasion of .5x.5 cm on the left knee and (v) scabbed abrasion of 1x1 cm on left leg.The stab wound as per the post-mortem report and as per the testimony of PW-13 was not sufficient or the cause of death.The said injury resulted in damage/injury to the liver and consequent thereupon Darshan Singh died after an operation.He had remained hospitalized for eight days.In these circumstances, we feel that the respondent No. 2 has been rightly convicted under Section 304 Part-I and not under Section 302 IPC.That apart, we also feel that Explanation 4 to Section 300 IPC would be applicable as there was a sudden quarrel and in that process there was a scuffle causing Injury Crl.No doubt a kitchen knife, which was given by PW-6 for cutting salad, was used but then that would not draw or take the case out of Explanation 4 to Section 300 IPC.The stab wound was not the cause of death.A. No. 245/2012 Page 10 of 14Neither was he found to be instigating the other respondent on goading him on.In view of the statement of PW-6, an eye witness to the occurrence who was deposing after the loss of her husband, it is held that respondent No. 3 has been rightly convicted Crl.Generally, the order of acquittal Crl.A. No. 245/2012 Page 12 of 14 shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal.A. No. 245/2012 Page 12 of 14Both of Crl.

Sections cited: Section 34 in The Indian Penal Code, Section 302 in The Indian Penal Code, Section 326 in The Indian Penal Code, Section 300 in The Indian Penal Code, Section 304 in The Indian Penal Code