Delhi High Court
Surinder Pal @ Billoo vs State Of Delhi on 27 November, 2009
Author: Ajit Bharihoke
Bench: Sanjay Kishan Kaul, Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: October 27, 2009
Judgment delivered on : November 27, 2009
+ CRIMINAL APPEAL NO.235/1996
SURINDER PAL @ BILLOO ..... Appellant
Through: Mr. Chander Mohan Sanon,
Advocate
Versus
STATE OF DELHI ..... Respondent
Through: Mr. Pawan Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be
reported in Digest ? Yes
AJIT BHARIHOKE, J.
1. The appellant being convicted under Section 302 IPC in terms of the impugned judgment dated 02.09.1996 in Sessions Case No.30/96, FIR No.118/90, P.S. Sultan Puri and on being sentenced to undergo imprisonment for life and also to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo RI for further period of six months, has preferred the instant appeal.
2. Briefly stated, case of the prosecution is that on 01.06.1990 at about 6:12 p.m., an information was received at the police control Crl.A.No.235/1996 Page 1 of 16 room about a quarrel at Budh Vihar, Phase-I. Said information was conveyed by lady Constable Manju of PCR to the P. S. Sultan Puri, which was recorded as DD No.16A (Ex.PW20/A) at 6:15 p.m. Copy of the DD report was entrusted to Head Constable Jaswant Singh, who left for the spot along with Constable Prahlad Singh(PW7). At 6:16 p.m. another message was received at the Police Station that a person had been stabbed with a knife by one Surender at the Nala of Budh Vihar. It was recorded as DD No.17A(Ex.PW20/B) and the copy of the report was forwarded to SI Dhan Singh, through Constable Ravinder Kumar.
3. That SI Dhan Singh on the receipt of DD report reached at Pushta Ganda Nala near U-1 Block, Budh Vihar, Phase-I. Inspector Dharampal Sharma(PW24), also on receipt of the information about stabbing of a person by one Surender, reached at the spot and met the Police party led by SI Dhan Singh. Dead body of Shri Omvir (deceased) was found lying at the Pushta Nala having deep stab wounds on the neck and chest. Complainant Dharamjit Singh (PW3) was present there and his statement Ex.PW3/A was recorded by Inspector Dharampal Sharma(PW24) and sent to the Police Station along with Rukka Ex.PW24/A for the registration of case. On basis of the said Rukka, formal FIR No.118/90 dated 01.06.90 was registered at P.S. Sultan Puri under Section 302 IPC.
4. PW3 Dharamjit Singh (complainant) is stated to have disclosed in his complaint Ex.PW3/A that on the day of occurrence, he was taking Crl.A.No.235/1996 Page 2 of 16 tuition of children and Omvir (deceased) was sitting there. At about 5:30 p.m., Rajnish (PW9) son of the deceased came running and told that Surender Pal @ Billoo and his family members would be beating Sanjay S/o Omvir. On this, Omvir left along with his son Rajnish and he (complainant) apprehending that quarrel may not flare up, followed them, and when he reached near his house, he saw appellant Surender Pal @ Billoo chasing Omvir (deceased) with an open knife. He then picked up a "saria" (iron rod) lying in his house and ran after the appellant Surender Pal @ Billoo in order to scare him. By that time, Surender had pushed the deceased on the ground and he stabbed the deceased on his neck and chest while saying "Aaj Tera Kaam Tamam Hi Kar Dete Hun". Thereupon, he (complainant) and Sanjay challenged the appellant with a view to save the deceased and he (complainant) gave a "saria" blow on the head of the appellant, as a result whereof, the appellant left Omvir and pounced upon Sanjay and tried to stab him with the knife. Sanjay, in retaliation, gave danda blow to the appellant, as a result of the impact, the knife broke and its blade fell down. Since the deceased Omvir was bleeding profusely, they attended to him and brought him to the Pushta, where he fell down and succumbed to his injuries.
5. Inspector Dharampal Sharma (PW24) got the place of occurrence photographed from various angles and prepared the rough site plan of the place of occurrence. He conducted the inquest proceedings under Section 164 Cr.P.C., took the "saria" (iron rod) and danda into Crl.A.No.235/1996 Page 3 of 16 possession. He also took into possession the broken blade of knife, after preparing its sketch and converting it into sealed packed. The dead body of the deceased Omvir was sent for post mortem. Dr. J.K. Bhardwaj (PW22) conducted the post mortem examination. He found one incised wound on the left side of the neck of the deceased and an incised wound over the right side of the chest. In his opinion, the injuries were ante mortem and both the injuries were sufficient to cause death individually and collectively in the ordinary course of nature. Cause of death was opined as haemorrhage and shock resulting from the injuries. He opined that injuries could be possible by the said blade of knife. He sealed the clothes of the deceased and the blood samples, which were handed over by him to the Police.
6. The accused was arrested. Since he had some injuries on his person, he was got medically examined. Accused is stated to have made a disclosure statement, but it did not lead to the recovery of the handle of the knife. On completion of investigation, the appellant was sent for trial for the offence under Section 302 IPC.
7. Appellant was charged under Section 302 IPC. He pleaded innocence and claimed to be tried.
8. Prosecution cited five eye witnesses to prove the guilt of the appellant. PW3 Dharamjit Singh (complainant), PW4 Sanjay Kumar, son of the deceased, and PW5 Ms. Sudesh, wife of the deceased, have supported the prosecution story given in complaint Ex.PW3/A. Crl.A.No.235/1996 Page 4 of 16 However, the independent witnesses PW13 Suresh Chand and PW23 Sri Pal turned hostile and they have not supported the case of the prosecution. Relying upon the eye witness account given by PW3, PW4 and PW5 as also the testimony of PW9 Rajnish, who as per the case of prosecution had gone to call his father Omvir Singh (deceased), learned Trial Court has convicted the appellant under Section 302 IPC.
9. The appellant in his statement under Section 313 Cr.P.C. has taken the plea of self-defence. He has explained that on the fateful day, an altercation had taken place between his mother and PW5 Ms. Sudesh in front of his house. His brother was attacked by PW4 Sanjay Kumar and when he intervened to save his brother, Sanjay sustained injury on his lips. Thereafter, complainant Dharamjit Singh (PW3), Omvir (deceased) and Sanjay (PW4) respectively armed with a "saria" (iron rod), a "balli" (wooden log) and a knife, attacked him. He, in order to save himself ran towards a vacant plot of land and was chased by all of them. He was surrounded by them and a "saria" blow was given by PW4 Sanjay Kumar. Omvir then came forward to stab with a knife and he somehow managed to snatch the knife from the hands of Omvir and inflicted a knife blow on the person of the deceased. When Omvir again tried to catch hold of him, he gave another knife blow on the neck of Omvir in order to save his life. Thereafter, another blow of "balli" landed on his hand, as a result of which the handle of the knife was broken. He was also given further blows by them and, in order to safe himself, he managed to escape from the spot. He further Crl.A.No.235/1996 Page 5 of 16 explained that on the way, he came across some Policemen and requested them to save him from Sanjay, Dharamjit Singh and Omvir. He also told them that he was going to lodge a report at the Police Station. The Police took him to the Police Station from where he was sent to the hospital. Since Omvir expired due to the stab injuries, he was falsely implicated in this case and his complaint was not registered. In his defence, he has examined his mother Urmila, who stated in the court that "three or four days prior to the occurrence, PW4 Sanjay Kumar had asked her son Ved Prakash to bring liquor for him and when Ved Prakash refused to oblige, Sanjay threatened him. Ved Prakash narrated the incident to her and she went to lodge a protest to the mother of Sanjay. On 29.05.90, Sanjay and Rajnish again threatened her son that they would teach him a lesson for complaining against Sanjay to his mother. On 01.06.90 at about 5:30 p.m., mother of PW4 Sanjay visited her house and enquired about the above referred incident. When her son Ved Prakash narrated his version, PW4 Sanjay got agitated and started beating Ved Prakash. She further stated that the appellant on hearing the noise, came out and tried to rescue his brother Ved Prakash, which resulted in an altercation between him and Sanjay. Sanjay received injury on his lips and he went away threatening to teach a lesson to Surender. Few minutes later, Sanjay armed with a "balli", complainant Dharambir armed with a "saria" and Omvir armed with a knife came towards their house and the appellant on seeing them ran towards the vacant plot, Crl.A.No.235/1996 Page 6 of 16 but he was chased by all three of them. She immediately went to call her husband. When she returned along with her husband, she saw a huge crowd, but her son was not present. Omvir (deceased) was lying near the Nala. In the cross-examination, she denied the suggestion that her son Surender Pal chased Omvir and stabbed him after throwing him on the ground. She also denied the suggestion that thereafter, Dharamjit Singh (PW3) hit the appellant with an iron rod and Sanjay hit him with a "balli", as a result of which the blade of the knife got separated from the handle."
10. Before adverting to the submissions made on behalf of the appellant, it would be useful to have a look on the eye witness account of the occurrence given by PW3 Dharamjit Singh, who claims himself to be a close friend and village brother of the deceased, PW4 Sanjay (son of the deceased) and PW5 Smt. Sudesh (wife of the deceased).
11. PW3 Dharamjit Singh (complainant) has fully supported the case of prosecution and in his testimony before the court he has endorsed the facts narrated by him in his complainant Ex.PW3/A referred to above. PW4, Sanjay, in his statement before the court deposed that 2/3 days prior to the incident, a quarrel had taken place between the younger brother of the appellant and the youngest son of the deceased. On 01.06.90 at around 4:30 pm, the mother of the appellant started abusing them and when she continued with her abuses, his mother Smt. Sudesh protested and asked her to refrain from hurling Crl.A.No.235/1996 Page 7 of 16 abuses. The appellant then came out of his house with a brick in his hand with a view to hit PW5 Smt. Sudesh. On this, he (PW4 Sanjay) intervened to save his mother and the appellant threw the brick and gave him fist blow on his face and a scuffle ensued between him and the appellant. In the meanwhile, his younger brother Rajnish PW9 went to call his father. His father Omvir (deceased) reached at the spot at about 5:15 pm and on seeing the deceased, the appellant ran after him with an open knife, saying that he would finish him off and threw the deceased down on the ground and stabbed him twice on the neck and the chest respectively. In the meanwhile, PW3 Dharamjit Singh came, who hit the appellant with an iron rod and on this the appellant left the deceased and ran after him. He was carrying a "balli" (a large piece of wood) in his hand and he gave a "balli" blow to the appellant and as a result of the impact, the knife broke and its blade got separated from the handle. He also gave two/three "balli" blows to the appellant and thereafter the appellant ran away. His mother Sudesh tried to stop the bleeding of the deceased by wrapping her saree around the neck of the deceased, but he unfortunately died. PW5 Smt. Sudesh has also corroborated the version of PW4 by deposing in an almost similar manner. PW9 Rajnish, another son of the deceased, has also supported the prosecution story by stating that when the appellant started beating his brother Sanjay, he ran to call his father from the shop of Ramphal Bania and thereafter his father and PW3 Dharamjit ran towards the spot.
Crl.A.No.235/1996 Page 8 of 16
12. Learned counsel for the appellant has assailed the impugned judgment, firstly, on the ground that the learned Trial Court has erred in placing reliance upon the testimony of PW3 Dharamjit Singh, PW4 Sanjay, PW5 Smt. Sudesh and PW9 Rajnish, completely ignoring the fact that they are interested witnesses being closely related to the deceased and that only two independent witnesses PW13 Suresh Chand and PW23 Sri Pal, have not supported the case of the prosecution. Learned counsel for the appellant has submitted that PW3 Dharamjit Singh admittedly is a friend of the deceased and his village brother, who is treated as an uncle by the sons of the deceased and PW5 is the widow and PW4 and PW9 are sons of the deceased, therefore, given the fact that the deceased died because of knife injuries inflicted by the appellant, they had a motive to distort the facts and conceal that actually it was the deceased Omvir, PW3 Dharamjit Singh and PW4 Sanjay were the aggressors and they had chased the appellant armed with knife, saria and balli respectively and the appellant, in order to save his life, somehow managed to snatch the knife from the deceased Omvir's hand and stabbed him. Learned counsel for the appellant has further submitted that aforesaid defence of the appellant finds support from the fact that he had actually sustained injuries in the incident for which he was even sent for medical examination by PW14 ASI Ram Chander. He has drawn our attention to the testimony of PW14 Ram Chander in this regard and pointed out that ASI Ram Chander in his cross-examination has Crl.A.No.235/1996 Page 9 of 16 admitted that when he apprehended the appellant, he told that he was going to the Police Station for lodging a report, but he (PW14) did not record his report. Thus, learned counsel for the appellant has urged us to infer that the appellant actually acted in self-defence in order to save his life and as such he could not have been convicted under Section 302 IPC. It was also argued that even if the Court comes to the conclusion that the appellant has exceeded his right of self-defence, then also his conviction under Section 302 IPC was unwarranted and in view of Exception 2 to Section 300 IPC, his case would fall within the purview of culpable homicide not amounting to murder punishable under Section 304 Part II IPC.
13. At the first blush, the argument taken on behalf of the appellant appears to be attractive. However, on careful scrutiny of the record, it appears that the explanation of self-defence taken by the appellant is an afterthought. Perusal of the Trial Court record reveals that the appellant, during the pendency of the case, had moved applications for grant of bail dated 13.09.90 and 16.08.94 respectively. In the said two bail applications, the appellant took the plea of false implication due to enmity and in neither of those applications had he set up the plea of self-defence. This circumstance leads to an inference that the plea of self-defence now set up by the appellant during the trial is an afterthought. Even the independent witnesses PW13 Suresh Chand and PW23 Sri Pal turning hostile and not supporting the case of the prosecution regarding their having seen the occurrence does not help Crl.A.No.235/1996 Page 10 of 16 the appellant because both the witnesses have claimed that they reached the spot after the occurrence and they have not supported the theory of self-defence propounded by the appellant. It is important to note that PW23 Sri Pal has stated that when he reached at the spot, the crowd was saying that Omvir has been killed by Billoo @ Surender. The aforesaid utterance of the crowd implicating the appellant for murder of the deceased is relevant, being the conduct immediately after the occurrence and it corroborates the testimony of PW3, PW4 and PW5 to some extent. There is no law which prevents the court from acting on the testimony of interested witnesses to base conviction if the testimony of such witnesses is found reliable and trustworthy. In the instant case, PW3 Dharamjit Singh, PW4 Sanjay and PW5 Ms. Sudesh have fully supported the case of prosecution and learned counsel for the appellant has not been able to point out any material contradiction or discrepancy in their respective testimonies to render the witnesses unreliable. The above witnesses in their testimony have also explained the injuries on the person of the appellant by stating that the after the appellant had stabbed Omvir deceased, they hit him with saria and "balli" respectively. Thus, it cannot be said that the appellant inflicted knife injuries to the deceased in self-defence with a view to save his life. In view of the above, we are of the view that the learned Trial Court has rightly discarded the theory of self-defence propounded by the appellant and we do not find any infirmity in the said finding.
Crl.A.No.235/1996 Page 11 of 16
14. The next plea advanced on behalf of the appellant is that even if the testimony of the eye witnesses PW3, PW4 and PW5 is taken to be correct, then also this is not a case to warrant conviction for murder punishable under Section 300 IPC. Learned counsel or the appellant has argued that the Trial Court has failed to appreciate that the occurrence took place without any pre-meditation in a sudden quarrel, which escalated because of the argument between the mother of the appellant and PW5 Ms. Sudesh. Therefore, there could not have been any intention on the part of the appellant to kill the deceased, who reached at the spot on the calling of his son Rajnish, PW9. It was argued that the appellant, as per the evidence, had acted in the heat of moment, therefore, his case was squarely covered under the 4th Exception to Section 300 IPC, as such he could only be held guilty for culpable homicide not amounting to murder punishable under Section 304 IPC. Learned counsel for the State, on the other hand, has canvassed in favour of the impugned conviction under Section 300 IPC and submitted that the act committed by the appellant was intentional, which is obvious from the fact that he inflicted two knife injuries on the person of the deceased, which rules out the possibility of the appellant having acted in the heat of passion, particularly when there was a past history of enmity between the families.
15. From the testimony of PW4 Sanjay and PW5 Ms. Sudesh, it is apparent that the occurrence in question was an extension of the quarrel between the appellant and PW4 Sanjay, which started as a Crl.A.No.235/1996 Page 12 of 16 result of exchange of hot words between the mother of the appellant and PW5 Ms. Sudesh. From the testimony of PW4 Sanjay and PW5 Ms. Sudesh, it transpires that just before the main occurrence there was some altercation between PW4 Sanjay and the appellant in which the appellant, who admittedly was threatening to hit the mother of PW4 Sanjay with a brick, threw the said brick and gave fist blows to PW4 Sanjay, which circumstance clearly indicates that till that time there was no intention on the part of the appellant to cause a serious injury to PW4 Sanjay or PW5 Ms. Sudesh or any member of the family. It is only when the younger son of the deceased Rajnish PW9 went and called his father Omvir (deceased), the unfortunate occurrence took place. It has also come in evidence that when the deceased rushed to the spot, he was followed by PW3 Dharamjit Singh, complainant, who was carrying a saria in his hand and even PW4 Sanjay had admittedly brought a "balli" (a wooden log) and rushed towards the appellant. Only thereafter, the appellant had inflicted two knife blows to the deceased. From the said sequence of events, it is apparent that the appellant was not the aggressor and it was the deceased Omvir who came running to the spot to intervene in the fight. Therefore, there was no possibility of the appellant having planned to kill the deceased. It has not come in evidence from where the knife came, but it is apparent from the record that the deceased had stabbed the appellant because of the aforesaid sudden quarrel, which started with the exchange of abuses and hot words between the mother of the Crl.A.No.235/1996 Page 13 of 16 appellant and PW5 Ms. Sudesh, in the heat of moment. Indeed, the appellant inflicted two knife blows on the person of the deceased, which unfortunately proved to be fatal, however, from the circumstances detailed above the intention to kill on the part of the appellant cannot be inferred and, in our considered view, the offence committed by the appellant squarely falls within Fourth Exception to Section 300 IPC, which reads thus:
"300. Murder
---
---
---
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 offenders having taken undue advantage or acted in a cruel or unusual manner."
16. As such, the Trial Court, in our view, has erred in holding the appellant guilty of offence of murder punishable Section 300 IPC instead of culpable homicide not amounting to murder punishable under Section 304 Part I IPC. In our aforesaid view, we find support from the judgment of Supreme Court in the matter of Ravindra Shalik Naik & Ors. Vs. State of Maharashtra, 2009 (2) SCALE 354, wherein it was, inter alia, observed as under:
"6. The Fourth Exception of Section 300, IPC 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 Crl.A.No.235/1996 Page 14 of 16 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 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 acting 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, IPC is not defined in the IPC. 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'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat, (2003) (5) Supreme 223, Parkash Chand v. State of H.P. (2004) (11) SCC 381,;
Byvarapu Raju v. State of A.P. and Anr., (2007) (11) SCC 218 and Buddu Khan v. State of Uttarakhand SLP (Crl.) No. 6109/08 disposed of on 12.1.2009"
17. The result of the above discussion is that the appellant is guilty of culpable homicide not amounting to murder punishable under Section 304 Part I IPC and not of the offence punishable under Section 300 IPC. The appeal is partially accepted and the conviction of the appellant for Crl.A.No.235/1996 Page 15 of 16 the charge under Section 300 IPC is converted to one under Section 304 Part I IPC.
18. Coming to the sentence. In our considered view, having regard to the facts and circumstances of the case, we find that rigorous imprisonment for a period of eight years would meet the ends of justice. Accordingly, we sentence the appellant to undergo rigorous imprisonment for a period of eight years and to pay a fine of Rs.5000/-, in default of payment of fine to undergo rigorous imprisonment for a period of six months.
19. The appellant is on bail. As per the nominal roll placed on record, he had undergone incarceration for a period of seven years, one month and seventeen days, besides the remission awarded to him for a period of eight months and seven days. It is not clear from the record if the appellant has deposited the fine imposed upon him. The appellant be taken into custody and sent to Tihar Jail for undergoing remaining period of sentence awarded to him. Needless to say that he shall get benefit of Section 428 Cr.P.C.
20. Appeal is disposed of accordingly.
AJIT BHARIHOKE, J.
NOVEMBER 27, 2009 SANJAY KISHAN KAUL, J.
pst
Crl.A.No.235/1996 Page 16 of 16