Delhi High Court
Vidhya Rani vs State (Delhi Admn.) on 8 March, 2010
Author: Ajit Bharihoke
Bench: A.K. Sikri, Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: February 09, 2010
Judgment delivered on: March 08, 2010
+ CRIMINAL APPEAL NO.186/1997
VIDHYA RANI ....APPELLANT
Through: Ms. Sonia Mathur, Advocate
Versus
STATE(DELHI ADMN.) ..... RESPONDENT
Through: Mr. Manoj Ohri, Advocate
WITH
CRIMINAL APPEAL NO.385/1997
MADAN LAL ....APPELLANT
Through: Mr. Anish Dhingra, Advocate/Amicus
Curiae
Versus
STATE(DELHI ADMN.) .....RESPONDENT
Through: Mr. Manoj Ohri, Advocate
CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
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. Above referred appeals are directed against the impugned judgment dated 24.01.1997 in Sessions Case No.102/96 emanating Crl. A.Nos.186/1997 & 385/1997 Page 1 of 24 from FIR No.440/93 P.S. Seelampur convicting both the appellants under Sections 302/324/34 IPC for having committed the murder of Ram Charit (hereinafter referred to as the "deceased") and causing simple injury with a sharp object to Ms. Sangeeta, in furtherance of their common intention, as also the consequent order on sentence of the even date.
2. Briefly stated, case of the prosecution is that the deceased Ram Charit was residing in Jhuggi No.E-10-B/37, CPJ Block, New Seelampur, Delhi along with his wife Saraswati, PW2 and daughter Sangeeta, PW9. The appellants Madan Lal and Vidhya Rani were their neighbours. In the evening of 05.08.93, appellant Vidhya Rani accused the complainant Saraswati of sending her daughter Sangeeta to some "Bhakth" for doing "jadoo-tona" against her and on this a quarrel ensued between them. On the same night, the deceased Ram Charit came home at around 9:30 pm and after sometime, he went to ease himself. The appellants Madan Lal and Vidhya Rani then came out of their Jhuggi and started abusing the complainant Saraswati and her daughter Sangeeta. On this, complainant and Sangeeta came out of their Jhuggi and requested the appellants to behave. Their neighbour Rajender, PW11 also came and tried to pacify them. Around 10:00 pm, the deceased Ram Charit came back after easing himself and he requested the appellants to refrain from fighting. The appellants retorted by saying that he (the deceased) was favouring his wife and daughter instead of restraining them from fighting. Thereafter, Crl. A.Nos.186/1997 & 385/1997 Page 2 of 24 appellant Vidhya Rani fetched a knife from her Jhuggi and gave it to appellant Madan Lal and exhorted him to kill the deceased by saying "Mai Ram Charit Ko Pakadti Hu Aur Tu Ram Charit Ko Khatam Kar De, Hamesha Ke Liya Jhanjhat Khatam Kar De". Thereafter, appellant Vidhya Rani caught hold of the deceased from behind and appellant Madan Lal stabbed him twice with the knife. When complainant Saraswati and PW9 Sangeeta tried to intervene, appellant Madan Lal inflicted a knife wound on the person of Sangeeta and appellant Vidhya Rani pushed the complainant down. Thereafter, the appellants ran away. PW11 Rajender Kumar was present at the spot, who helped the complainant in taking the deceased and Sangeeta to GTB Hospital in a three-wheeler scooter. At the GTB Hospital, Ram Charit was declared brought dead.
3. The Constable on duty at GTB Hospital conveyed said information to P.S. Seelampur, which was recorded as DD No.27A and copy of the information was entrusted to SI Ramesh Chand, PW12 for investigation. On receipt of the DD report, SI Ramesh Chand, PW12 along with Constable Virender Kumar reached at CPJ Block, New Seelampur, i.e., the place of occurrence. There, he came to know that injured persons had been removed to the hospital. He, thus, went to GTB Hospital after leaving Constable Vinod Kumar to protect the scene of occurrence. There, he collected the MLCs of Ram Charit, who was declared brought dead and Kumari Sangeeta, the injured. Crl. A.Nos.186/1997 & 385/1997 Page 3 of 24
4. PW12 SI Ramesh Chand Sharma met the wife of the deceased Ms. Saraswati, PW2 at the hospital and recorded her statement Ex.PW2/A, wherein she narrated the above referred facts. The Investigating Officer appended his endorsement Ex.PW12/B on the statement Ex.PW2/A of PW2 Saraswati and sent it to the Police Station through Constable Vinod Kumar for the registration of the case. On the basis of said rukka, formal FIR No.440/93 was recorded at P.S. Seelampur.
5. The Investigating Officer returned to the spot of occurrence. He prepared the rough site plan Ex.PW12/C and also got the spot of occurrence photographed. From the spot, he lifted blood-stained earth and control earth and seized the samples vide memo Ex.PW4/A, after sealing them into separate parcels. He also examined the witnesses and tried to locate the appellants, but they were not available. He conducted the inquest proceedings and sent the dead body for post mortem and obtained the post mortem report Ex.PW5/A.
6. Appellants were arrested in the evening of 06.08.93 from Preet Vihar. Appellant Madan Lal initially made a disclosure statement Ex.PW12/6 followed by a second disclosure statement Ex.PW12/7, pursuant to which he got recovered his blood-stained pant Ex.P2 and the weapon of offence, i.e., dagger Ex.P1 from House No.E-33, Preet Vihar, which were taken into possession vide memo Ex.PW12/10 after preparing the sketch of the knife and converting the pant and knife Crl. A.Nos.186/1997 & 385/1997 Page 4 of 24 into sealed parcels. Case property was sent to CFSL for serological examination and report Ex.PW12/16 was obtained. On conclusion of investigation, challan against the appellants was filed in court. At the time of arrest, the appellants told that they had sustained injury on their head at the time of the quarrel. Therefore, the appellants were sent for medical examination in the morning of 07.08.93 vide applications Ex.PW12/14 and Ex.PW12/15.
7. The appellants, on conclusion of investigation, were charged for the offences punishable under Section 302/34 IPC as well as under
Section 324/34 IPC. The appellants pleaded innocence and claimed to be tried.
8. In order to bring home the guilt of the appellants, prosecution examined 12 witnesses. The prosecution case, however, is essentially based upon the eye witness account given by the ocular witnesses PW2 Saraswati Devi, PW9 Sangeeta and PW11 Rajender. Other important witnesses are the Autopsy Surgeon, PW 5 Dr. Anil Kohli and the Investigating Officer, PW 12 SI Ramesh Chand Sharma.
9. PW2 Saraswati is the complainant as well as the eye witness to the occurrence. She testified in the court that on the 5th day of the month of Rakasha Bandhan of the year 1993 at around 9:00 or 10:00 pm, appellant Vidhya Rani sent for the deceased Ram Charit through her daughter. When Ram Charit went to the door of the Jhuggi of the appellant Vidhya Rani, she complained to the deceased that she (the Crl. A.Nos.186/1997 & 385/1997 Page 5 of 24 witness Saraswati) had abused her. The deceased advised appellant Vidhya Rani that they should not quarrel as he would be leaving that place. On this Vidhya Rani asked the deceased to leave and also gave a knife to the appellant Madan Lal to kill the deceased. On seeing this, she (the witness) started dragging her husband, who was also pushed by the appellant Madan Lal. When she caught hold of the leg of Madan Lal, he kicked her and Vidhya Rani also caught hold of her breast. She further deposed that thereafter Vidhya Rani caught hold of her husband from behind and the appellant Madan Lal inflicted two knife blows on his chest. He also inflicted a knife blow on head of her daughter Sangeeta, PW9. As a result of injury, both the deceased and Sangeeta started bleeding and they were removed to GTB Hospital by PW11 Rajender and other neighbours, where the deceased was declared brought dead. She proved her complaint statement recorded by the Investigating Officer as Ex.PW2/A. In her cross-examination, she denied the suggestion that the appellants had not caused injury on the person of the deceased or her daughter Sangeeta. She denied the suggestion that she had illicit relations with one Mathura or that on the date of occurrence, her husband had a fight with Mathura because the deceased saw him coming out of her Jhuggi in his absence.
10. PW9 Sangeeta was examined on 19.08.96. She testified that two or three years prior to the date of her testimony, on the 5th day of the month in the rainy season, her father was murdered at around 9:00/10:00 pm opposite their house. She stated that while her father Crl. A.Nos.186/1997 & 385/1997 Page 6 of 24 had gone to wash his hands at the water tank, appellant Vidhya Rani brought a knife from her jhuggi and handed it over to her Devar Madan Lal appellant. Thereafter, Vidhya Rani caught hold of her father from behind and Madan Lal inflicted knife blow on his chest. When she tried to rescue her father, appellant Vidhya Rani told appellant Madan Lal to kill her also and Madan Lal thereupon inflicted a knife blow on her head and thereafter both the appellants ran away. She also stated that Rajender and others removed her and the deceased to the hospital where her father was declared brought dead and she was medically examined.
11. PW11 Rajender testified that in the year 1993, the appellants as well as the deceased were his neighbours. They used to quarrel over issues of children. On the night of 05/06.08.93 at about 9:00/10:00 pm, Ram Charit deceased returned to his house from duty when a quarrel took place between him and the appellant Madan Lal in front of the house of Madan Lal. The appellant Vidhya Rani brought a knife from her house and handed it over to appellant Madan Lal and exhorted Madan Lal to kill the deceased with the knife. Thereupon, appellant Madan Lal gave a stab blow on the chest of Ram Charit and when PW9 Sangeeta, daughter of the deceased tried to rescue him, appellant Vidhya Rani, who had taken the knife from Madan Lal, gave a knife blow on the head of Sangeeta. He along with other persons took the deceased Ram Charit and Sangeeta to the hospital where Ram Charit was declared brought dead. Since the version of PW Rajender Crl. A.Nos.186/1997 & 385/1997 Page 7 of 24 was not in conformity with his statement made to the police, learned APP cross-examined him after seeking permission from the court. In the cross-examination by learned APP, the witness stated that he did not remember whether appellant Madan Lal had given more than one knife blows to the deceased. He also stated that he did not remember if the stab blow on the head of Sangeeta was given by the appellant Madan Lal. He further stated that he did not remember whether he had not stated to the police that Vidhya Rani took back knife from Madan Lal and stabbed Sangeeta, for which he was confronted with his earlier statement Ex.PW11/A and then he admitted that on account of lapse of time, he had forgotten if it was appellant Madan Lal who had given knife blow to Sangeeta.
12. PW5 Dr. Anil Kohli is the Autopsy Surgeon who conducted the post mortem on the body of the deceased. On examination, he found following injuries on the person of the deceased:
"(1) Incised stab wound measuring 1.8cm.X0.4cm obliquely placed over centre of front of chest. It is spindle shaped with clean cut margins and one angle of the wound is more acute than the other. The upper margin of the wound placed 6 cm. below the eternal natch and the inner margin is 7.5 cm. to the right of left nipple.
On dissection the trace of the wound is cutting the 3rd inter costal muscles on the left side, cutting the pericardial sac, cutting the wall of the right ventricle of heart and entering the ventricular cavity where it terminated. There is haemorrhage and extra vascation of blood along the track of the wound. The direction of the wound is going upwards, backwards and laterally. Total depth of track of wound is 9 cm.
2. Incised stab wound measuring 2 cm. X 0.6 cm. present over right side front of chest. It is obliquely placed with clean cut margins and one angle of the wound is more acute than the other. The upper angle of the wound is situated 14 cm. below the lower border of medial end of right clavicle and is 4 cm. to the right of midline of body. It is placed 3 Crl. A.Nos.186/1997 & 385/1997 Page 8 of 24 cm. below right nipple. On dissection the track of the wound is cutting the 5th rib on the right side, entering the pleural cavity, cutting the inferior lobe of right lung through & through, cutting the pericardial sac and terminated by making a muscle deep cut in the wall of the right ventricle. There is haemorrhage & extravscation of blood along the track of the wound. The direction of the wound is going upwards, inwards (medially) and posterierly. Total depth of the wound is 10.5 cm.
3. Red coloured abrasion measuring 1.5 cm. X 1 cm. present over outer aspect of left leg placed 15 cm. below left knee joint.
4. Red abrasion measuring 1 cm. X 0.4 cm. present over right side of face, placed 3.5 cm. to the right of outer angle of right eye."
13. PW5 opined that the death was caused due to haemorrhage produced as a result of ante-mortem injuries to the lung and also produced by a sharp weapon. Injuries Nos.1 & 2 detailed above were sufficient to cause death in the ordinary course of nature both independently and collectively and he fixed the time of death 16 hours prior to the time of post mortem. He stated that he handed over the blood samples of the deceased, his clothes and ornaments to the police. He proved his report Ex.PW5/A. He further stated that the "churri" Ex.P1, which is projected as the weapon of offence by the prosecution had a twisted tip, as such, the injuries Nos.1 & 2 in the post mortem report could not be caused by that weapon.
14. Both the appellants were examined under Section 313 Cr.P.C. with a view to afford them an opportunity to explain the incriminating evidence produced against them. Both of them denied the prosecution case. Regarding the injuries found on their person, they explained that they were beaten by the police while in custody. They claimed that Crl. A.Nos.186/1997 & 385/1997 Page 9 of 24 the witnesses had deposed falsely against them, but they did not come out with any specific explanation as to why they had falsely implicated them.
15. Learned Ms. Sonia Mathur, Advocate appeared on behalf of the appellant Vidhya Rani and learned Sh. Anish Dhingra, Advocate appeared as amicus curiae on behalf of the appellant Madan Lal. Both of them have raised similar contentions to assail the impugned judgment.
16. Prosecution case is mainly based upon the eye-witness account of the occurrence given by PW2 Saraswati (complainant), PW9 Sangeeta (injured) and PW11 Rajender Kumar. Learned counsels for the appellants submitted that reliability of the above witnesses is suspect as PW11 is a hostile witness and PW2 Saraswati and PW9 Sangeeta are interested witnesses, being wife and daughter of the deceased. Thus, it is urged that the learned Trial Court has committed an error in placing reliance on their testimony.
17. We find no merit in the aforesaid contention. The law relating to the appreciation of a related witness is well-settled. There is no bar under law to act upon the testimony of a related witness. In the matter of Dalip Singh Vs. State of Punjab, AIR 1953 SC 364, the Supreme Court laid down the law relating to the evidentiary value of a related witness by observing thus:
Crl. A.Nos.186/1997 & 385/1997 Page 10 of 24
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
18. In a subsequent judgment, in the matter of Surinder Singh Vs. State of U.P., (2003) 10 SCC 26, the Supreme Court, on the issue of the credibility of a related witness observed thus:
"10. ...Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if a plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible.
13. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. ..."
19. From the above enunciated principle of law, it is clear that testimony of a witness cannot be outrightly rejected solely on the ground of relationship and it has to be appreciated like the testimony of any other witness and if found reliable, conviction can be based upon such testimony.
Crl. A.Nos.186/1997 & 385/1997 Page 11 of 24
20. As regards the challenge to the testimony of PW11 Rajender Kumar on the ground that he is a hostile witness, it is suffice to say that it is settled law that evidence of a hostile witness cannot be rejected in toto because prosecution chose to treat him as hostile and cross examine him. Such evidence can be accepted to the extent it is found reliable. In our aforesaid view, we draw support from the judgments of the Supreme Court in State of Rajasthan Vs. Bhawani & Anr., AIR 2003 SC 4230 and Radha Mohan Singh & Ors. Vs. State of U.P., AIR 2006 SC 951.
21. It was further submitted on behalf of the appellants that the learned Trial Court has committed a grave error in placing reliance upon the so-called eye-witness account of occurrence given by PW2 Saraswati, PW9 Sangeeta and PW11 Rajender Kumar, ignoring the fact that their testimonies suffer from several contradictions and infirmities. It was pointed out on behalf of the appellants that the FIR in this case was registered on the basis of statement Ex.PW2/A of PW2 Saraswati and in the said statement, PW2 Saraswati stated that appellant Vidhya Rani brought a knife from her Jhuggi and gave it to co-appellant Madan Lal and exhorted him to kill the deceased by saying "Mai Ram Charit Ko Pakadti Hu Aur Tu Ram Charit Ko Khatam Kar De, Hamesha Ke Liya Jhanjhat Khatam Kar De", whereas in her testimony in the Court, she is silent about such exhortation given by the appellant Vidhya Rani. It was also pointed out that PW11 Rajender Kumar stated in his evidence that the appellant Vidhya Rani exhorted Madan Lal to kill the deceased Crl. A.Nos.186/1997 & 385/1997 Page 12 of 24 but he was silent about any exhortation given by the appellant Vidhya Rani to the appellant Madan Lal for killing PW9 Sangeeta, whereas according to PW9 Sangeeta and PW2 Saraswati, Vidhya Rani had exhorted Madan Lal to kill PW9 Sangeeta. Learned counsels also pointed out that testimony of PW9 Sangeeta is silent about any exhortation given by Vidhya Rani to kill the deceased. It was submitted that even as regards the identity of the person who inflicted knife injury on the head of PW9 Sangeeta, there is contradiction in the testimony of the witnesses inasmuch as according to PW2 Saraswati and PW9 Sangeeta, said knife injury was inflicted by the appellant Madan Lal, whereas according to PW11 Rajender Kumar, it was Vidhya Rani who took the knife from co-appellant Madan Lal and inflicted injury on the head of PW9 Sangeeta. Learned amicus curiae appearing on behalf of the appellant Madan Lal also submitted that there are some contradictions about the exact place where the occurrence took place. He has pointed out that as per the scaled site plan Ex.PW3/A, the occurrence took place in the gali in front of Jhuggi No. E-10B/218 belonging to Mohan Lal, whereas, as per the version of PW2 Saraswati, the occurrence took place near the door of the jhuggi of Madan Lal. In view of the aforesaid contradictions, it was urged on behalf of the appellants that the testimony of the above referred eye-witnesses is not reliable and it is unsafe to base conviction on their evidence.
22. We do not find any merit in the above submissions. The contradictions and discrepancies pointed out on behalf of the Crl. A.Nos.186/1997 & 385/1997 Page 13 of 24 appellants, in our view, are inconsequential and natural variations in the version of witnesses, which can be attributed to the fading of memory because of the passage of time. We may note that the incident took place in the night of 05th August, 1993 and PW2 Saraswati was examined in the court more than a year later in November, 1994. PW9 Sangeeta and PW11 Rajender Kumar were examined much later in the year 1996. Therefore, it is not surprising that some contradictions have occurred in their testimony. However, on careful perusal of their evidence, it is apparent that testimony of eye-witnesses is consistent on material aspects of the case and all three of them have stated that appellant Vidhya Rani gave the knife to Madan Lal and appellant Madan Lal inflicted two knife blows on the person of the deceased Ram Charit and thereafter, he also gave a knife blow on the head of PW9 Sangeeta. It is true that in his examination-in-chief, PW11 Rajender Kumar stated that when PW9 Sangeeta tried to rescue her father Ram Charit, appellant Vidhya Rani took the knife from appellant Madan Lal and inflicted a knife blow on her head but when cross-examined by learned APP, the witness stated that he was unable to confirm whether Sangeeta was given knife blow by the appellant Madan Lal and he attributed it to the lapse of memory. From the aforesaid version, it is apparent that the aforesaid contradictions as to the identity of the person who stabbed Sangeeta have occurred only because of the failure of memory of the witness. The variation in the version in the complaint statement of PW2 Crl. A.Nos.186/1997 & 385/1997 Page 14 of 24 Saraswati Ex.PW2/A and her statement in the court about the exact place of occurrence is also insignificant because admittedly both the victims and appellants were neighbours and there was not much distance between the location of the door of Jhuggi of appellant Vidhya Rani and the jhuggi of PW2 Saraswati. Thus, we do not find any reason to suspect the credibility of the eye-witness account given by the above witnesses. In our aforesaid view, we find support from the judgment of Hon'ble Supreme Court in the matter of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3 SCC 217 wherein it was held as under:
"5. .....Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.Crl. A.Nos.186/1997 & 385/1997 Page 15 of 24
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -- Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses".
23. Otherwise also, we find no reason to totally discard the testimony of PW2 Saraswati, wife of the deceased and PW9 Sangeeta, daughter of the deceased who sustained head injury in the occurrence because it is highly unlikely that they would falsely implicate the appellants and allow the real culprit to go scot free, particularly when there is no obvious motive for the same. We may note that the testimony of PW2 Saraswati and PW9 Sangeeta also finds corroboration in the version of PW11 Rajender Kumar whose presence at the spot cannot be doubted because as per the MLCs of the deceased and PW9 Sangeeta Ex.PW1/A and Ex.PW1/B respectively, he was the person who took them to GTB Hospital. Thus, we find no infirmity in the finding of the learned trial Judge to the extent that the appellant Madan Lal inflicted knife injury on the person of the deceased as also PW9 Sangeeta at the instance of the appellant Vidhya Rani, who at the time of occurrence, also caught hold of the deceased from behind.
24. Lastly, it is submitted on behalf of the appellants that even if the prosecution story is taken to be true, the conviction of the appellants Crl. A.Nos.186/1997 & 385/1997 Page 16 of 24 under Section 302 IPC for the offence of murder of Ram Charit is not justified because as per the evidence on record, the appellants also sustained injuries in the incident which have not been explained and that the presence of injuries on the person of the appellants indicate that prosecution witnesses have not narrated the entire facts in their evidence and there is something more to the story, which has been concealed. Learned counsels submitted that from the evidence on record, it appears that the stabbing of the deceased was preceded by sudden fight and quarrel between the parties. Therefore, a possibility cannot be ruled out that the fatal blows were given by Madan Lal appellant to the deceased Ram Charit as a result of sudden quarrel without any pre-meditation in the heat of moment. Thus, it is urged on behalf of the appellants that the case of the appellants falls within the Fourth Exception to Section 300 IPC and as such at best, they could be convicted for the offence of culpable homicide not amounting to murder under Section 304 Part II IPC. In support of their contention, the appellants have relied upon the judgments in the matter of Sukhbir Singh Vs. State of Haryana, (2002) 3 SCC 327 and in the matter of Vadla Chandraiah Vs. State of A.P., (2006) 13 SCC 587. Learned counsel for the State, on the other hand, has submitted that from the evidence on record, it is established that appellant Vidhya Rani handed over the knife to her co-convict Madan Lal and caught hold of Ram Charit from behind and the appellant Madan Lal in turn, inflicted stab injuries on the chest of the deceased, which is a vital part Crl. A.Nos.186/1997 & 385/1997 Page 17 of 24 of the body. He has, thus, submitted that from the evidence, it is amply clear that it was a cold-blooded intentional murder.
25. The scheme of the Indian Penal Code recognises two types of culpable homicide, first being culpable homicide amounting to murder and the other is the culpable homicide not amounting to murder. There is a thin line of distinction between the said two offences. In the matter of State of A.P. Vs. Rayavarapu Punnayya, AIR 1977 SC 45, the Supreme Court has analysed Section 299 and Section 300 of the Indian Penal Code and brought out the distinction between murder and culpable homicide not amounting to murder by inter alia observing thus:-
"13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
Section 299 Section 300 A person commits culpable Subject to certain exceptions, culpable
homicide if the act by which the homicide is murder if the act by which death is caused is done - the death is caused is done -
INTENTION
Crl. A.Nos.186/1997 & 385/1997 Page 18 of 24
a) With the intention of causing 1) with the intention of causing death; or
death; or 2) with the intention of causing such
b) With the intention of causing bodily injury as the offender knows to
such bodily injuries as is likely to be likely to cause the death of the cause death; or person to whom the harm is caused; or
3) 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 KNOWLEDGE ****
c) With the knowledge that the 4) with the knowledge that the act is so act is likely to cause death imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death of such injury as is mentioned above.
14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration
(b) appended to Section 300.
15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.
16. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the Crl. A.Nos.186/1997 & 385/1997 Page 19 of 24 words "sufficient in the ordinary course of nature" have been used.
Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of "probable" as distinguished from a mere possibility. The words "bodily injury ... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.
17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala is an apt illustration of this point.
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20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general -- as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section
299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative Crl. A.Nos.186/1997 & 385/1997 Page 20 of 24 the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code.
22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages".
26. From the testimony of PW2 Saraswati, it appears that some altercation did take place before the knife wounds were inflicted on the person of the deceased Ram Charit. The aforesaid inference is further substantiated by the fact that in the morning of 07.08.1993 at around 10:15 am, both the appellants were sent for medical examination by the IO as they claimed that they had sustained injuries on 05.08.93 at 9:30 pm. Dr. Amit Pragyan, as per Ex.PW12/14 and Ex.PW12/15, medically examined the appellants Madan Lal and Vidhya Rani and he did find injuries on their person. On examination of Vidhya Rani, Dr. Amit Pragyan found four injuries on the person of appellant Vidhya Rani namely - CLW on left side of head 2 X 1.5 cm, teeth mark on right hand, abrasions on the left knee and abrasion on the right leg and on examination of Madan Lal, he found two injuries on the person of the appellant Madan Lal namely CLW on right side of head (Perietal region) 2 X 2 cm and abrasion on right side of his forehead, which injuries Crl. A.Nos.186/1997 & 385/1997 Page 21 of 24 remain unexplained. Dr. Amit Pragyan has not been produced as a witness and he has not even mentioned the duration of injuries found on the person of the appellants, which could have given a clue whether those injuries were caused on the night of 05.08.93 during the occurrence. Thus, in absence of any clear evidence, the benefit must go the appellants and there is no escape from the conclusion that the appellants also sustained the above described injuries during the occurrence. The witnesses namely PW2 Saraswati, PW9 Sangeeta and PW11 Rajender Kumar have not explained as to how the appellants sustained injuries detailed in Ex.PW12/14 and Ex.PW12/15. This imply that there is something more to the story which has not come out in the testimony of the ocular witnesses. That being so, there is a reasonable probability that the knife wounds were inflicted by the appellant Madan Lal on the person of the deceased as a consequence of sudden quarrel and grappling between the parties in the heat of moment. It was night time and if those blows fell on a vital part of the body of the deceased, the intention to kill or the intention to cause such bodily injury which in all likelihood would have resulted in death cannot be inferred, particularly when there was no cogent motive to kill the deceased, on the part of the appellants. Therefore, the offence committed by the appellants falls within the Fourth exception to Section 300 IPC and amounts to culpable homicide not amounting to murder punishable under Section 304 Part II IPC. In our aforesaid view, we find support from the judgment of Supreme Court in the Crl. A.Nos.186/1997 & 385/1997 Page 22 of 24 matter of Sukhbir Singh Vs. State of Haryana, (2002) 3 SCC 327 and in the matter of Vadla Chandraiah Vs. State of A.P., (2006) 13 SCC 587.
27. In view of the above, we find ourselves unable to sustain the sentence of the appellants under Section 302 read with Section 34 IPC and accordingly, convert the same into conviction under Section 304 Part II IPC read with Section 34 IPC. As regards the conviction for offence under Section 324/34 IPC for causing simple injuries with sharp object to PW9 Sangeeta, we find no reason to interfere with the finding of the learned Trial Court.
28. Coming to sentence. The appellant Madan Lal at the time of passing of the order on sentence was a young man of 30 years and the appellant Vidhya Rani was a young lady of 22 years. They do not have any previous record or criminal antecedents. The incident apparently took place in the heat of moment. Therefore, taking into consideration the overall facts and circumstances of the case, we, while, maintaining the sentence of the appellants under Section 324/34 IPC convert the sentence awarded for the offence punishable under Section 302/34 IPC and set aside the sentence awarded to the appellants for the offence under Section 302/34 IPC and sentence them to undergo RI for 10 years each and also to pay a fine of Rs. 500/- each for the offence under Section 304/34 IPC and in default of payment of fine, to undergo Crl. A.Nos.186/1997 & 385/1997 Page 23 of 24 further RI for one month each. Both the sentences shall run concurrently and the appellants shall be entitled to the benefit of Section 428 Cr.P.C.
29. The appeal is partly accepted and disposed of accordingly.
AJIT BHARIHOKE, J.
MARCH 08, 2010 A.K. SIKRI, J.
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