IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 623-DB of 2001 DATE OF DECISION : 16.03.2010 Sushil Kumar @ Vicky .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. P.P.S. Duggal, Advocate, for the appellant. Ms. Gurveen H. Singh, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. Appellant Sushil Kumar alias Vicky has filed this appeal against the judgment of conviction and order of sentence dated 21.8.2001, passed by the Court of Sessions Judge, Ferozepur, whereby he has been convicted under Section 302 IPC for committing the murder of Kapil Dev son of Pal Chand and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 3,000/-, in default to further undergo rigorous imprisonment for a period of six months. 2. The appellant along with his brother Basant Lal and wife Harinder Kaur @ Sweety was tried by the court of Sessions Judge, Ferozepur, for the aforesaid offence. However, only the appellant was Crl. A. No. 623-DB of 2001 -2- convicted and the other two accused were acquitted. Against their acquittal, no appeal has been filed either by the complainant or by the State. 3. In the present case, the prosecution was launched against all the aforesaid three accused on the basis of the statement (Ex.P6) made by Pal Chand (father of the deceased) to SI Baldev Raj in Amar Hospital, Ferozepur, on 14.10.1997 at 11.15 PM, wherein it was stated that he was residing inside Magzine Gate, Ferozepur City and doing the business of preparing wooden furniture. He was having two sons and three daughters. His son Kapil Dev (deceased) aged about 18 years was the youngest of all the children. On 14.10.1997 at about 8.30 PM, he along with his sons Kapil Dev and Manoj Kumar was cleaning their house situated on the first floor on account of the marriage of his daughter Monika. The dust was raising due to the said cleaning. Their neighbourer Vicky (appellant), who was doing the tailoring work in front of his rented house, started abusing them by saying that why they were soaring the dust. On that, his son Kapil Dev came down on the road from their residential house and reached near the shop of Kala Karyana merchant. He along with his another son Manoj Kumar also came down behind him. In the meanwhile, Vicky (appellant) and his brother Basant Lal who were living together were standing on their shop. Basant Lal raised lalkara that Kapil Dev may not be allowed to go escape today. Then Vicky (appellant), who was having scissor meant for cutting clothes, ran towards Kapil Dev and attacked him with open scissor, which hit him in his chest on the lower portion just below the left nipple on Crl. A. No. 623-DB of 2001 -3- two places. Then Kapil Dev fell down on the road. In the meantime, Sweety wife of Vicky also came there and she raised lalkara that Kapil Dev should not be left alive, on which Vicky attacked on Kapil Dev with open scissor holding in his hand, which hit him in the abdomen on two places. Then he (Pal Chand complainant) and Manoj Kumar raised alarm saying `Bachao Bachao'. Then Vicky along with scissor, Basant Lal and Sweety ran away from the spot. After arranging the vehicle, he (Pal Chand) along with Manoj Kumar got admitted his son Kapil Dev in Amar Hospital, Ferozepur, where the Doctor started treating him. But after a short while, he was declared dead in the Hospital. He stated that the cause of grudge was that they were cleaning the house and Vicky (appellant) started abusing them. When they were going to inform the respectable persons of the locality about the abusing, the aforesaid three accused after conspiring together had caused injuries to Kapil Dev, which had resulted into his death. 4. On the basis of the aforesaid statement, the FIR (Ex.P6/B) was recorded. On the same day i.e. on 14.10.1997, SI Baldev Raj visited Amar Hospital, Ferozepur, prepared the inquest report (Ex.P2) and sent the dead body for post mortem examination. 5. It has come in evidence that Kapil Dev was got admitted in Amar Hospital, Ferozepur, by his father on 14.10.1997 at 9.10 PM. Immediately, Dr. KNS Dhillon (PW.2) started his treatment, but he expired at 9.25 PM. After his death, at 9.35 PM, Doctor sent ruqa (Ex.P5) to Police Station City Ferozepur. Thereupon, SI Baldev Raj reached the Hospital and Crl. A. No. 623-DB of 2001 -4- recorded the aforesaid statement of the complainant. On 15.10.1997, Inspector Piara Singh SHO went to the spot, prepared the site plan Ex.P14 and lifted the blood stained earth. One single shoe of black colour Ex.MO-3, which was blood stained, was taken into possession vide memo Ex.P16. 6. On 15.10.1997 at 11 AM, Dr. O.P. Bagri (PW.1) conducted the post mortem examination on the dead body of Kapil Dev. He found four injuries on the body of the deceased. Two injuries with a distance of 2 cms were on the chest and two with a distance of 6 cms were on the abdomen of the deceased. In the opinion of the Doctor, the cause of death of the deceased was due to cardiogenic shock and haemorrhage as a result of the aforesaid four injuries which were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. 7. On 31.10.1997, appellant Sushil Kumar alias Vicky was arrested. During interrogation, he made disclosure statement (Ex.P18) that he had kept concealed the scissor in his residential room behind the scenery of lion in a window and he could get the same recovered. The disclosure statement was attested by ASI Kuldip Singh (PW.12) and Rajesh Kumar (PW.15). Thereafter, the appellant got recovered the scissor Ex.MO-1 from the place pointed out by him, which was taken into possession vide memo (Ex.P20). The rough site plan (Ex.P21) of the place of recovery was also prepared. 8. On 13.12.1997, accused Basant Lal was arrested. No recovery was effected from him. Crl. A. No. 623-DB of 2001 -5- 9. During investigation, accused Harinder Kaur was found innocent and her name was kept in column No.2 of the report under Section 173 Cr.P.C. (However, later on during trial, she was summoned under Section 319 Cr.P.C., as an additional accused.) 10. After completion of investigation, the challan was filed and charge under Section 302 read with Section 34 IPC was framed against the accused, to which they did not plead guilty and claimed trial. 11. In support of its case, the prosecution examined 16 witnesses, besides placing on record certain documents. 12. PW.1 Dr. O.P. Bagri conducted the post mortem on the dead body of Kapil Devi and proved the Post Mortem Report Ex.P1. PW.2 Dr. K.N.S. Dhillon proved the injuries found on the person of the deceased. PW.3 Pal Chand (complainant) and PW.4 Manoj Kumar are the eye witnesses to the occurrence and they have fully supported the case of the prosecution. PW.5 Krishan Lal Draftsman prepared the scaled site plan (Ex.P7) of the place of occurrence. PW.6 Rajesh Kumar JE Power House Sub Station 33 KV, Ferozepur City proved the electricity supply at the place of occurrence. 13. PW.7 Balkar Singh L.C., PW.8 Pollas Constable, PW.9 Jagdish Lal MHC, PW.10 HC Arpinder Singh, PW.11 Jugraj Singh Constable, PW.12 ASI Kuldip Singh, PW.13 Inspector Baldev Singh and PW.14 Hakam Singh retired ASI are the formal witnesses. 14. PW.15 Rajesh Kumar is the witness to the disclosure statement Crl. A. No. 623-DB of 2001 -6- (Ex.P18) and recovery of the scissor. PW.16 Rakesh Kumar proved the recovery of blood stained shoe from the place of occurrence on 15.10.1997. 15. In their statements under Section 313 Cr.P.C., all the three accused denied the incriminating evidence appearing against them. Appellant Sushil Kumar alias Vicky stated that on 14.10.1997 throughout the day, cleaning work was going on in the house of complainant Pal Chand, due to which dust was coming down in his house. He was having small children. The dust was falling not only on his small children, but it was also falling on the articles, like TV etc. He was stitching the clothes and dirty water was also falling upon the clothes. He had gone to the house of the complainant to make them aware of it and told them to take care of it. In the evening, when the complainant returned from his shop along with his sons, they felt offended and Kapil Dev son of the complainant suddenly came down. At that time, he was cutting the clothes with scissor for stitching. Kapil Dev caught him from collar and started beating him and using abusive language. He ran from there and Kapil Dev threw his shoe at him which hit him. Thereafter, Kapil Dev again caught hold of him from his neck and started pressing his neck with force, therefore, in order to save himself, he gave scissor blows to Kapil Dev until he left his neck and was rescued. 16. After hearing the arguments of learned counsel for the parties, the trial court convicted appellant Sushil Kumar alias Vicky, and sentenced him, as stated above. However, keeping in view the fact that his co-accused, Crl. A. No. 623-DB of 2001 -7- namely Harinder Kaur and Basant Lal, were not attributed any specific overt act and they were alleged to have merely exhorted by raising lalkara, they were acquitted by giving them the benefit of doubt. 17. Learned counsel for the appellant argued that both the eye witnesses, namely PW.3 Pal Chand (complainant) and PW.4 Manoj Kumar, though were present at the time of the occurrence, did not give true version of the entire occurrence. Their version with regard to exhorting of lalkara by Harinder Kaur and Basant Lal for not allowing Kapil Dev to escape has not been believed by the trial court and they have been acquitted by the trial court, against which no appeal has been filed either by the complainant or by the State. Learned counsel submits that the version given by the appellant in his statement under Section 313 Cr.P.C., is the true version, which is also being confirmed by the medical evidence. He further argued that even as per the prosecution version, there was no enmity between the parties prior to the day of occurrence. No altercation had ever taken place between them, though they were residing in the adjoining house, having common wall for the last more than 2-3 decades. At the time of occurrence, a sudden altercation had taken place, in which when the deceased had caught hold the appellant from his neck and was pressing his neck, the appellant, without any premeditation and without having any intention and in order to save himself, gave two scissor blows to the deceased, due to which he has died. Therefore, even if the prosecution case is accepted, then in the facts and circumstances of the case, the appellant has only committed Crl. A. No. 623-DB of 2001 -8- culpable homicide of the deceased, which does not amount to murder. The case of the appellant squarely falls under exception 4 of Section 300 of the Indian Penal Code, therefore, he is liable to be punished only under Section 304 Part I of the IPC and not under Section 302 IPC. 18. On the other hand, learned counsel for the respondent-State, while referring to the reasoning recorded by the trial court, submits that the prosecution has led sufficient evidence to prove that the appellant has committed the offence of murder and therefore, the trial court has rightly convicted and sentenced him for the aforesaid offence. 19. We have heard the arguments of learned counsel for the parties and perused the record of the case. 20. It has come in evidence that immediately after the occurrence, the deceased was shifted to Amar Hospital, Ferozepur by his father. According to PW.2 Dr. K.N.S. Dhillon, Kapil Dev was brought to the Hospital by his father in the injured condition on 14.10.1997 at 9.10 PM. At that time, he was conscious. The doctor treated him, but he could not be saved and he died at 9.25 PM. In his statement, he stated that he had noticed four injuries, two on the chest and two on the abdomen on the body of the deceased. In his opinion, the possibility of causing those injuries by the scissor could not be ruled out. In his cross-examination, he has stated that when the injuries were caused, the victim and the assailant might be standing and facing each other. PW.1 Dr. O.P. Bagri, who conducted the post mortem examination on the body of the deceased, has also stated that at Crl. A. No. 623-DB of 2001 -9- the time of causing the injuries, the assailant might be standing in front of the victim or at the side of the victim. It has also come in the medical evidence that the injuries on abdomen were not so deep, as were injuries on the chest. In the opinion of Dr. O.P. Bagri (PW.1), the cause of death was due to cardiogenic shock and haemorrhage, as a result of injuries, which were sufficient to cause death in the ordinary course of nature. It appears from the medical evidence that when the assailant caused injuries to the deceased, both were standing in front of each other. This fact belies the version given by the complainant that after giving injuries on the chest, the deceased fell down and thereafter, the appellant gave injuries from the same scissor on the abdomen of the deceased. Not only this, the version given by the complainant about the involvement of Harinder Kaur and Basant Lal in the occurrence, has also been found doubtful by the trial court and in view of that finding, both of them were acquitted of the charges. 21. It is neither the case of the prosecution nor there is any evidence that prior to the day of occurrence, there was any enmity, dispute or altercation between both the neighbourers. It has come in evidence that from the last two or three decades, both the families were residing peacefully without any dispute. From the evidence on record, it emerges that on the day of occurrence, on a small issue of falling dust, an altercation had taken place between the parties. It is admitted position that the complainant family was residing on the first floor of the house, whereas accused party was residing on the ground floor of the adjoining house. Both the parties Crl. A. No. 623-DB of 2001 -10- were having a common wall. The appellant was doing the tailoring work. It has come in evidence that on the Chabootra in front of his residential house, he used to do his tailoring work. As per the prosecution version, the complainant party was cleaning their house on account of the marriage of his daughter, due to which the dust and dirty water were falling on the ground floor. According to the prosecution, the appellant was abusing. It is also the case of the prosecution that when the appellant was abusing, Kapil Dev came down from the first floor and immediately, both the eye witnesses also came down. It is their case that they came down to inform some respectable of the locality about the abusing given by the appellant, but as per the appellant, after his coming down from the house, Kapil Dev caught hold him from his neck and started pressing his neck with force, therefore, in order to save himself, he gave scissor blows to Kapil Dev. On the other hand, as per the complainant, when they were going to inform the respectable persons of the locality about the abusing, the appellant gave two scissor blows to the deceased. In these facts and circumstances as well as from the evidence led by the prosecution, one thing is clear that before the occurrence, neither there was any premeditation to commit the crime nor there was any intention of the accused to cause death of the deceased. On a small issue of falling of dust, a quarrel had taken place, in which without any premeditation and without any intention to kill, in a heat of passion, the appellant caused injuries to Kapil Dev, which resulted into his death. In the instant case, a sudden fight had taken place on the mutual provocation of Crl. A. No. 623-DB of 2001 -11- both the parties. The complainant party was cleaning their house, due to which dust and dirty water were falling in the shop of the appellant. The appellant was abusing the complainant party. Thereafter, a sudden fight had taken place in the street. In our opinion, in these facts and circumstances, the culpable homicide committed by the appellant does not fall under the definition of `murder', as the instant case squarely falls within Exception 4 of Section 300 of the IPC. In order to attract Exception 4, the following four requirements must be satisfied : (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 number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have taken place suddenly and without any premeditation and the offender must not have taken any undue advantage or acted in a cruel manner. 22. An argument has been raised by learned counsel for the respondent-State that at the time of occurrence, the appellant was having scissor in his hands and he repeated the scissor blow twice, which caused four injuries on the body of the deceased, due to which he had died within an hour of the occurrence. Therefore, the manner and the force with which those injuries were caused to the deceased clearly establish that it was a Crl. A. No. 623-DB of 2001 -12- case of murder and not a culpable homicide not amounting to murder, because the appellant had caused such bodily injuries with the knowledge that those injuries in all probabilities will cause death. It is further argued that in the facts and circumstances of the case, the appellant who was having scissor in his hand by causing four injuries to Kapil Dev, who was empty handed, had certainly taken undue advantage of the situation. Therefore, his case does not fall within Exception 4 of Section 300 of the IPC. 23. We do not agree with the learned counsel for the respondent- State, as we have already discussed that prior to the occurrence, there was no enmity or dispute between the parties. Both the parties were neighbourers, who were living peacefully for the last more than two decades. There was no motive to cause death or any bodily injury to Kapil Dev, which may likely to cause death. On a small issue of falling dust, suddenly an altercation had taken place. There was no intention of the appellant to cause death of Kapil Dev. According to the appellant, at the time when Kapil Dev came down, he was cutting clothes and scissor was in his hand. An altercation had taken place, during which Kapil Dev had caught hold the appellant from his neck and started pressing his neck with force, therefore, in order to save himself, he gave two blows to Kapil Dev from the said scissor. These facts and circumstances clearly show that neither there was any intention of the appellant to cause death of Kapil Dev nor there was any intention to cause such bodily injury, which in the Crl. A. No. 623-DB of 2001 -13- knowledge of the appellant was likely to cause death of Kapil Dev. When the appellant was causing injuries, Kapil Dev was a healthy man and it cannot be said that the appellant was having full knowledge that in all probabilities by giving blows of scissor, the death is likely to be caused. In our opinion, the culpable homicide committed in this case does not fall under the definition of murder, at all, and the case of the appellant squarely falls under exception 4 of Section 300 IPC. Merely because the deceased was unarmed and the appellant was having scissors in his hand, with which he gave two blows to the deceased, in a sudden altercation, when they were grappling, it cannot be said that the appellant had taken undue advantage of the situation or he has acted in a cruel manner. It is well settled, as held in Surinder Kumar v. Union Territory, Chandigarh, 1989 (2) RCR (Crl.) 140 (SC), that the number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have taken place suddenly and without any premeditation and the offender must have caused injuries in a heat of passion. These factors have been established in the instant case. Therefore, in our considered opinion, the appellant has committed the culpable homicide, which does not amount to murder, and he can be convicted only under Section 304 Part I of the IPC. 24. In view of the aforesaid discussion, the conviction of the appellant under Section 302 IPC is altered to Section 304 Part I IPC. Keeping in view the age of the appellant and other circumstances, he is sentenced to undergo rigorous imprisonment for a period of ten years. Crl. A. No. 623-DB of 2001 -14- However, the sentence of fine is maintained. 25. Consequently, the appeal is partly allowed in the aforesaid terms. ( SATISH KUMAR MITTAL ) JUDGE March 16, 2010 ( JORA SINGH ) ndj JUDGE