Delhi District Court
State vs . Vaibhav Dhawan Etc. on 24 April, 2015
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In the Court of Dig Vinay Singh
ASJ/Special Judge : NDPS : Rohini Courts : Delhi
In the matter of :
SC No. 9/15
State Vs. Vaibhav Dhawan etc.
FIR no. 816/14
PS North Rohini
24.04.2015
Order on charge
1. Matter is fixed for the orders on the point of charge, arguments on
which were heard on the last date of hearing. The three accused are
charge sheeted U/s 302 r/w 34 IPC.
2. The case of prosecution is based upon ocular testimony of Vinay
Srivastav, who claims to be an eye witness of the incident. Perusal of
statement of Vinay Srivastav reveals that on 27.10.2014 at 11.15 P.M
he was present at his house when Aruna Gupta, mother of his friend
Amit, came to his house and told that accused Vaibhav along with other
two associates were abusing Amit outside the house of Amit. At that
time, Amit was not in his house. Vinay accompanied Aruna to her
house. Outside the house of Aruna and Amit, all the three accused
Vaibhav, Love and Sahil were found standing at that time. Immediately
thereafter Love went away in his vehicle. Vinay questioned accused
Sahil and Vaibhav as to why they were abusing Amit, upon which Sahil
and Vaibhav purportedly informed Vinay that Amit was to be set right as
it appeared that Amit was not in his proper senses. When Vinay
Srivastav reasoned with Sahil and Vaibhav, they too left. Thereafter,
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Amit returned to his house and he was told about the incident. Upon it,
Amit said that he would go and talk to the accused persons and asked
his mother to go inside the house. Mother of Amit went in the house.
Amit and Vinay went to nearby located market complex. When they
reached near complex, accused Sahil and Vaibhav also reached there
on a scooty. It was Amit who signaled the scooty to stop. Vaibhav and
Sahil stopped their scooty. Thereafter, Amit questioned them and
objected to abusing in front of his house. Upon it, Vaibhav and Sahil
both got enraged and purportedly exhorted saying that they would
teach Amit a lesson. Thereafter, Sahil assaulted Amit with his belt,
whereas accused Vaibhav gave leg and fist blows to Amit. It is claimed
that in this process the ignition key of the scooty of the accused came in
the hand of Amit and in the consequent grappling the key struck cheeks
of Vaibhav. The eye witness intervened in the fight. Meanwhile, accused
Sahil and Vaibhav called Love, telephonically. Love also came to the
spot. On reaching the spot, Love also started assaulting Amit. All the
three accused pounced upon Amit and during that process, Vaibhav
and Love were exhorting to finish Amit. All three accused threw Amit on
the ground as a result of which Amit's head struck the footpath. All the
three accused continuously gave leg and fist blows upon Amit. Eye
witness Vinay called PCR from his mobile. In the meanwhile Ct.
Jogender from local police reached spot while patrolling and took the
injured to hospital. The accused had fled by that time. Injured Amit was
taken to BSA Hospital where his MLC was prepared. Thereafter, not
being satisfied with the quality of treatment, injured was taken to Saroj
Hospital and from there to Jaipur Golden Hospital, where the injured
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expired.
3. It is mentioned in the rukka that ASI K. P. Singh upon receipt of DD no.
3A, telephonically, at 12.30 AM on 28.10.2014, reached BSA Hospital
where Amit was admitted but since he was intoxicated and under pain,
his statement could not recorded. Subsequently, injured was shifted to
other hospitals as mentioned above, where he expired.
4. Perusal of the MLC of Amit would reveal that he reached BSA Hospital
on 28.10.2014 at 12.47 AM and he was brought by Ct. Jogender. There
were three injuries on Amit, i.e.,
a. Swelling and bruises under left eye;
b. Abrasion over right side of occipital region and;
c. Abrasion over inner aspect of upper lip.
5. The body of Amit was subjected to post mortem on 28.10.2014 between
11.30 AM to 1.15 PM. Following two external injuries were noticed by
the doctor who conducted post mortem;
a. Contused laceration over the middle part of inner aspect upper lip.
With a laceration in the middle of the contusion;
b. Contused laceration over the middle part of inner aspect upper lip
with a laceration in the middle of contusion.
6. No other external injuries were noticed on the body of deceased. Thus
contusions were present over upper and lower lips. However, in the
internal examination of reflection of the scalp, extravasation of blood
was present in the occipital region. The skull was however intact.
Parietal region contained 2300 cc of fluid and clotted blood. Abdominal
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viscera were blood stained, pale and showed clear luster.
7. The opinion as to cause of death was given as, 'due to combined effect
of hemorrhagic shock and cerebral damage consequent to blunt force
injury to abdomen and head'. The injuries were ante mortem, fresh
before death and opined to be caused by blunt force. The injury to the
abdomen and head were opined to be sufficient to cause death in the
ordinary course of nature.
8. The subsequent opinion was also taken by the investigating agency
and vide opinion dated 16.12.2014 the doctor who conducted post
mortem opined that the injuries to the abdomen as mentioned in the
post mortem were possible by hitting with fist, kicks and blows.
9. Following injuries are mentioned in the examination of the abdomen
and pelvis, in the PM report :-
Abdomen
Peritoneal cavity contained about 2300 cc of fluid and clotted
blood. All abdominal viscera was blood stained, pale and showed
normal luster.
Effusion of blood present in the retroperitoneum on the lower part
posterior wall of abdomen. Liver was pale and weighed 1309
grams. Spleen was pale and weighed 76 grams.
Stomach contained about 200 cc of greenish colored semi fluid
material. No specific food particles were identifiable. No specific
smell was emanating from the contents. Mucosa of the stomach
was unremarkable. Small intestine contained fluids and gases.
Large intestine contained fecal matter and gases. Mucosa of
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small intestine was unremarkable. Mucosa of large intestine was
unremarkable.
Laceration 9 cm x 8 cm in the mesentery of small intestine
situated near the intestinal loop in the middle part of the
mesentery.
Both kidneys were pale and weighed 123 grams and 130 grams
on the right and left sides respectively. Cortico medullary margin
was distinguishable. Both adrenals were unremarkable.
Abdominal vessels were grossly normal.
Pelvis
Pelvic cavity contained fluid and clotted blood as described under
peritoneal cavity. Effusion of blood present in the retroperitoneum
in the upper parts on both the front and back of pelvic cavity.
Pelvic bones were intact. Urinary Bladder was empty. Walls of the
bladder were grossly normal. Rectum was empty.
10. There is no other eye witness to the incident of murder. No weapon of
offence was used. Therefore, there is no question of recovery of any
weapon of offence.
11. During arguments, Ld. Counsels for the three accused argued that from
the allegations as set out, no charge at all is made out. It is argued that
there is a delay in lodging of the FIR. The incident occurred at 12.15 AM
on 28.10.2014 whereas the rukka was dispatched at 5.45 AM and the
FIR was registered at 6.15 AM. Presence of eye witness at the spot is
SC no. 09/15 Page 5 of 19
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also sought to be doubted stating that the mobile call details of the eye
witness at the relevant time creates a serious doubt as to his presence
at the spot and also the mobile call details create serious doubt as to
the presence of accused at the spot. It is also pointed out that in the
PCR form, what is mentioned is that there was a quarrel between
known persons and, local police had already taken the injured to
hospital wherein, name of ASI K.P.Singh is also specifically mentioned
and therefore, the claim of eye witness that he saw the incident cannot
be believed. It is also argued that the name of eye witness is not
mentioned in the MLC of the deceased which finds mention the name of
Ct. Jogender only and therefore, eye witness cannot be believed. It is
also argued that statement of injured was not recorded though it is
nobody's case that injured was unfit for statement when ASI K.P.Singh
reached BSA Hospital where the injured was admitted. It is also argued
that due to absence of the name of assailants/accused in the MLC of
deceased, though the deceased himself told the history of assault to the
doctor and despite the fact that the accused were well known to the
deceased, the eye witness cannot be believed.
12. On behalf of the accused persons, reliance is placed upon the case of
UOI Vs. Prafulla Kumar Samal & Other AIR 1979 SC 366; Niranjan
Singh Karam Singh Punjabi & Ors. Vs. State of Maharashtra AIR
1990 SC 962 and; the case of Dilawar Balu Kurane Vs. State of
Maharashtra (2002) 2 SCC 135, on the point of scope available before
this court at the time of consideration of charge. There is no dispute at
all as to the scope of consideration of framing of charges by this court.
13. On behalf of accused Sahil, reliance is also placed upon the case of
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Devinder Vs. State of Haryana AIR 1997 SC 454 and the case of
Kishan Pal Vs. State Crl. Appeal no. 81/97 decided on 26.03.2014
by Hon'ble High Court of Delhi, on the point that when name of
assailants is not mentioned in the MLC and names were not disclosed
to the doctor, although the assailants were known to the injured, its
benefit ought to go to the accused.
14 Both those judgments are distinguishable on facts. What would be the
effect of not disclosing the name of assailants to the doctor is a
question of trial. At this stage, it would be too pre mature to claim that
the names were asked from the deceased and that he did not disclose
the assailants' name. It may well be a case where the deceased was
not even asked the name of assailants and simply history of receiving
injuries was asked and noted. It may well be a case where the
deceased informed the name of assailants but the doctor did not
thought it appropriate to record in the MLC. That will have to be
elaborated during evidence and cannot be prejudged. Not disclosing
the name of assailants during MLC to doctor cannot by itself be a
reason to discharge the accused by discarding eye witness account,
and one has to keep in mind the ocular testimony of Vinay, wherein the
names of the three accused, who were known to the eye witness prior
to the incident, are specifically mentioned.
15 Similarly the fact of delay in lodging of FIR cannot entitle the accused to
claim discharge. The prosecution ought to be given an opportunity to
explain the delay, which explanation can come only during trial and not
prior to it. Suffice however to note that SI K. P. Singh in the rukka
mentioned that he did not record the statement of injured because the
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injured was intoxicated and was under pain. The deceased was
thereafter taken to Saroj Hospital and then to Jaipur Golden Hospital,
where the deceased expired at 3.45 AM. Thus, the IO had about three
and a half hours for recording statement of the deceased. It could be a
case where the IO thought it proper to wait, so that the deceased
becomes fit to give his statement.
16 For that reason alone, presence of eye witness at the spot cannot be
doubted. There is indeed a call made to the PCR at 12.17 AM from the
mobile of eye witness. Statement of Ct. Jogender also reveals that
when he reached the spot while patrolling, Vinay met him. The
truthfulness of eye witness cannot be pre-judged and will have to be
scrutinized after evidence. At this stage of the matter, call details of the
complainant and the accused also cannot lead this court to a definite
conclusion in favour of the accused. Those call details will again have
to be analyzed after evidence.
Merely, because in the PCR form it is recorded that local police
took the injured to the hospital and in the end of the wireless message
name of SI K. P. Singh is mentioned, does not mean that statement of
Ct. Jogender and Vinay should be rejected in Toto. After all, SI K. P.
Singh received information of this case at 12.30 AM telephonically when
he was in the field outside the police station and the message flashed
by the PCR Van to the headquarters was at 12.43 P.M. It may well be a
case that by the time PCR flashed the message to headquarters from
the spot, SI K. P. Singh reached the spot and therefore, his name
figures in the said message.
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17 None of the above mentioned contentions entitle any of the three
accused to claim discharge at this stage. All the contentions raised
above are subject of trial and matter of evidence.
18 Reliance placed upon the case of Mehraj Vs. State of U.P. (1994) 5
SCC 188, on the question of delay in lodging of the FIR and absence of
blood stains on the clothes of the witness and the place of occurrence
does not help the case of accused at this stage for the foregoing
reasons and for the reason that admittedly in the present matter there
was no injury from which blood oozed.
19 Similarly, the case of Robin Singh Vs. State 118 (2005) DLT page
168, on the point of common intention, is distinguishable on the facts
and circumstances.
20 In the present matter, a bare perusal of the statement of eye witness
would reveal that Love reached the spot after initial assault by accused
Sahil and Vaibhav, but as per the statement of eye witness on reaching
the spot he also started assaulting the deceased, and thereafter all the
three assaulted the deceased. During that process, accused Vaibhav
and Love were exhorting to finish the deceased. It is not necessary that
common intention has to be there prior to the commencement of an
incident. In some cases, common intention can develop at the spot also
particularly if the incident in question continues for a while. Common
intention of some of the accused can develop even after
commencement of the incident. Common intention has to be gathered
from the circumstances and the overt acts of the accused. In the
present matter, overt acts are attributed to all the three accused,
SC no. 09/15 Page 9 of 19
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therefore, it cannot be claimed at this stage that there was no common
intention.
21 That brings us to the most important question in the present matter. The
question is whether, prima facie, Sec. 302 IPC gets attracted or Sec.
304 of IPC gets attracted. The counsels for three accused have argued
that it is only Sec. 304 IPC, be it part-I or part-II, which gets attracted,
and not section 302 of IPC.
22 On the other hand, Ld. Prosecutor for the State claims that Sec. 302 of
IPC which gets attracted.
23 In this regard accused relies on a judgment passed by Hon'ble
Supreme Court in the case of Ankush Shivaji Gaikwad Vs. State of
Maharashtra 2013 Crl.Law Journal 3044. The said judgment after
examining various other judgments of Hon'ble Supreme Court draws a
clear distinction in such matters. In the said case, the facts were, that
the appellant accompanied by other two accused were walking past the
field of the deceased when a dog owned by the deceased started
barking at them. Angered by the barking of the animal, the appellant is
alleged to have hit the dog with the iron pipe that he was carrying in his
hand. The deceased objected to the appellant beating the dog,
whereupon the appellant started abusing the former and told him to
keep quiet or else he too would be beaten like a dog. The exchange of
hot words led to a scuffle between the deceased and the accused
persons in the course whereof, while Accused 2 and 3 beat the
deceased with fist and kicks, the appellant hit the deceased with the
iron pipe on the head. It was held these circumstances should entitle
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the appellant to the benefit of Exception 4 to Section 300 IPC.
24 The accused have also relied upon a case of Suraj Dev Vs. State 118
(2005) DLT 507 (DB) where it was found that the deceased went to the
place of occurrence of his own accord and without any intimation to the
accused persons the quarrel started all of a sudden which was
preceded with exchange of hot words and in the incident of assault, in
which weapons used were blunt, but the blows were not repeated and
no deadly weapon was used, Sec. 304 of IPC was held to be attracted.
25 The accused have also relied upon a case of Randhir Singh & Ors.
Vs. State decided by Division Bench of Hon'ble High Court on
12.07.2013 in Crl. Appeal no. 403/1997. In that case, on the issue of
demand of some money a quarrel took place suddenly in which one
accused picked up a brick lying nearby and hit the witness and then
brought a danda from nearby. Meanwhile, other two accused also came
armed with lathies and they hit the complainant with lathi on his head.
One lathi blow was given on the head and one on the shoulder. During
the incident, one of the accused also exhorted and shouted to kill the
victim. Thereafter, the accused took out a knife and stabbed the victim
on left side of his chest as a result of which injured fell down and the
assailants fled from the spot. it was held by Hon'ble High Court that the
incident occurred at the spur of moment in a sudden fight without pre
meditation and infact at the beginning of the fight, neither the deceased
nor two of the accused were present. It was held by Hon'ble High court
that there was no previous enmity between the parties to carry out the
assassination of the deceased and that other accused were not aware
that one was carrying knife in his pocket. Mere exhortation on the part
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of the accused was held not to mean necessarily that he wanted
the accused armed with knife to kill the deceased. In the facts &
circumstances, the conviction of the accused was converted to U/s 304
part-I of IPC.
26 In Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC
(Cri) 348] SC held that if on a sudden quarrel a person in the heat of
the moment picks up a weapon which is handy and causes injuries out
of which only one proves fatal, he would be entitled to the benefit of the
Exception provided he has not acted cruelly. SC held that the number
of wounds caused during the occurrence in such a situation was
not the decisive factor. What was important was that the occurrence
had taken place on account of a sudden and unpremeditated fight and
the offender must have acted in a fit of anger. It was held that
".....The cause of the quarrel is not relevant nor is it relevant who
offered the provocation or started the assault. The number of
wounds caused during the occurrence is not a decisive factor but
what is important is that the occurrence must have been sudden
and unpremeditated and the offender must have acted in a fit of
anger. Of course, the offender must not have taken any undue
advantage or acted in a cruel manner."
27 In Ghapoo Yadav v. State of M.P. [(2003) 3 SCC 528 : 2003 SCC (Cri)
765] Court held that in a heat of passion there must be no time for the
passions to cool down and that the parties had in that case before the
Court worked themselves into a fury on account of the verbal altercation
in the beginning. Apart from the incident being the result of a sudden
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quarrel without premeditation, the law requires that the offender should
not have taken undue advantage or acted in a cruel or unusual manner
to be able to claim the benefit of Exception 4 to Section 300 IPC.
28 In Sukhbir Singh v. State of Haryana [(2002) 3 SCC 327 : 2002 SCC
(Cri) 616] the appellant caused two bhala-blows on the vital part of the
body of the deceased that was sufficient in the ordinary course of
nature to cause death. The High Court held that the appellant had acted
in a cruel and unusual manner. Reversing the view taken by the High
Court, Supreme Court held:
"19. ... All fatal injuries resulting in death cannot be termed as
cruel or unusual for the purposes of not availing the benefit of
Exception 4 to Section 300 IPC. After the injuries were inflicted and
the injured had fallen down, the appellant is not shown to have inflicted
any other injury upon his person when he was in a helpless position. It
is proved that in the heat of passion upon a sudden quarrel followed by
a fight, the accused who was armed with bhala caused injuries at
random and thus did not act in a cruel or unusual manner."
29 In Randhir Singh & Ors versus State ..... 2013 SCC OnLine Del
2570, accused Randhir shouted and exhorted his son Sudesh by
saying "MAAR SALE KO, JAAN SE KHATAM KAR DE" and thereafter,
accused Sudesh took out a knife and stabbed Ajit on the left side of his
chest. It was held that the exhortation on the part of Randhir
Singh would not necessarily mean that he wanted Sudesh Kumar
to kill Ajit with the sharp edged weapon. It is an admitted fact that
the accused Sudesh Kumar had lifted a brick so as to hit
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Subhash and thereafter he had gone to bring a danda from a
nearby Ravi Tent House. It is also an admitted fact that the
deceased had received one stab injury on the left side of his chest
below the nipple with a sharp edged weapon. Exception 4 to
Section 300 IPC was attracted instead of attracting Section 302
IPC.
30 In Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra
Pradesh, (2006) 11 SCC 444, the Court has observed that:
"18. ... the court should proceed to decide the pivotal question of
intention, with care and caution, as that will decide whether the
case falls under Section 302 or 304 Part I or 304 Part II. Many petty
or insignificant matters - plucking of a fruit, straying of a cattle,
quarrel of children, utterance of a rude word or even an
objectionable glance, may lead to altercations and group clashes
culminating in deaths. Usual motives like revenge, greed, jealousy
or suspicion may be totally absent in such cases. There may be no
intention. There may be no pre-meditation. In fact, there may not
even be criminality. At the other end of the spectrum, there may be
cases of murder where the accused attempts to avoid the penalty
for murder by attempting to put forth a case that there was no
intention to cause death. It is for the courts to ensure that the
cases of murder punishable under Section 302, are not converted
into offences punishable under Section 304 Part I/II, or cases of
culpable homicide not amounting to murder, are treated as murder
punishable under Section 302. The intention to cause death can be
gathered generally from a combination of a few or several of the
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following, among other, circumstances: (i) nature of the weapon
used; (ii) whether the weapon was carried by the accused or was
picked up from the spot; (iii) whether the blow is aimed at a vital
part of the body; (iv) the amount of force employed in causing
injury; (v) whether the act was in the course of sudden quarrel or
sudden fight or free for all fight; (vi) whether the incident occurs
by chance or whether there was any pre-meditation; (vii) whether
there was any prior enmity or whether the deceased was a
stranger; (viii) whether there was any grave and sudden
provocation, and if so, the cause for such provocation; (ix)
whether it was in the heat of passion; (x) whether the person
inflicting the injury has taken undue advantage or has acted in a
cruel and unusual manner; (xi) whether the accused dealt a single
blow or several blows. The above list of circumstances is, of course,
not exhaustive and there may be several other special circumstances
with reference to individual cases which may throw light on the question
of intention."
31 In Sunder Lal v. State of Rajasthan, 2007 (6) SCALE 649, the two
accused armed with Gandasi and a lathi respectively had inflicted one
blow on the head of the deceased with a Gandasi and a lathi
respectively and several injuries on the hands and the legs with
the Gandasi and the stick; the circumstances were that the intention
to kill the deceased was found wanting and in the background of this
fact, the Supreme Court took a view that the attack being at a spur of
the moment and indiscriminate, constituted an offence of culpable
homicide not amounting to murder punishable under Section 304 Part-I
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IPC.
32 In Ramesh Kumar v. State of Bihar, 1994 Supp (1) SCC
116, according to the medical evidence and the post-mortem report, no
injury had been caused to the deceased either with the lathi or
with a knife or with the pistol. The accuseds did not use any of the
weapons with which they were armed. Cause of death, according
to the medical evidence, was shock and haemorrhage associated
with strangulation as a result of the injury on the chest and the
neck. According to the prosecution witnesses, injuries were caused to
the deceased only by kicks and fist blows. It was held that keeping
in view the ocular testimony and the medical evidence it is difficult
to hold that the accused had intended to cause the injuries on the
deceased which were sufficient in ordinary course of nature to
cause his death. Had the accused shared the common intention to
cause the death of the deceased, nothing prevented them from using
the pistol. It was held that the courts have to take into
consideration all the attendant circumstances while considering
the question of offence. It was held that the fact that neither the
knife nor the lathi nor the pistol was used, even though the deceased
was all alone and was attacked by four young persons, would go
to show that in all probabilities the respondents did not intend to
cause death of the deceased and that they wanted to severely assault him only. The facts proved by the prosecution and the established circumstances on the record go to show that the case does not fall within the ambit of any of the four clauses of the definition of murder contained in Section 300 IPC.
SC no. 09/15 Page 16 of 19 1733 In Uday Singh v. State of U.P., (2002) 7 SCC 79 the fight between the two parties started all of a sudden as a result of obstruction caused in digging of the foundation and there was no evidence to show that the accused attacked the deceased with deadly or dangerous arms (or weapons). It was only in a fight, hand to fist, that both the accused had held the neck of the deceased, with such force as to ultimately result in strangulation and his death. It was held that It would be reasonable to hold that the injuries were caused by the appellant on the deceased in a sudden fight where no arms (or weapons) were used and that fight took place in the heat of passion and no common intention to kill the deceased could be inferred.
34 In the present case also, after the three accused left from outside the house of deceased, it was the deceased who wanted to confront them and went to the marketing complex. It is nobody's case that the accused had asked the deceased or the eye witness to come to that marketing complex. It is also nobody's case that the accused were waiting for the deceased to come to the marketing complex. The deceased himself went there. As per statement of eye witness, which even if remains unrebutted, it was the deceased who signaled accused Vaibhav and Sahil, who were passing on a scooty, to stop the scooty. On the signal of the deceased, the scooty was stopped. It was the deceased who took out the key from the scooty. Although eye witness claims that during the grappling the key came in the hand of the deceased, but that does not at all appeal to common sense as in the incident of grappling, key of a scooty cannot come in the hand of a SC no. 09/15 Page 17 of 19 18 person from ignition key hole. Key therefore, appears to have been taken out of the ignition hole deliberately by the deceased.
35 Thus, the incident of this case occurred suddenly when the accused were confronted by the deceased near market complex. At that time, accused Love was not even present at the spot.
Admittedly, none of the three accused were armed with any kind of weapon whatsoever, what to talk of a deadly weapon. Sahil and Vaibhav were travelling on a scooty when intercepted by the deceased. Love came there subsequently. Even he was also unarmed. Thus, it cannot be claimed that the incident in question was pre meditated.
It is mentioned in the statement of eye witness itself that the accused persons used fist and leg blows in giving beatings to the deceased. Accused Sahil also at one place is alleged to have used belt in beating the deceased. It is also mentioned in the statement of eye witness that when the deceased was thrown to the ground in the process of beating, his head struck the foot path.
36 The number and the nature of injuries and also the fact as to the body part where the injuries occurred on the body of the deceased, as reflected in the MLC and the post mortem report and as mentioned above, does not support the claim that the deceased was intended to be killed by the accused. At the most, the accused wanted to beat the deceased severely, for some reason. At the most accused wanted to teach the deceased a lesson.
37 There is no external bodily injury except on the lips of the deceased, as mentioned in the post mortem report. Some abrasions are mentioned in SC no. 09/15 Page 18 of 19 19 MLC. Perusal of the photographs of the deceased taken prior to his post mortem would reveal absence of any noticeable injury besides injuries mentioned above. It was held in the case of Surender Kumar (Supra) that the number of wounds caused during occurrence was not the sole criteria in determining the question whether exception 4 to Sec. 300 applies or not. The offence appears to have occurred in a sudden fight with no pre meditation and done in the heat of passion without the accused taking any undue advantage and they did not act in cruel manner. The cause of quarrel is not relevant nor is it relevant as to who offered provocation or supported the assault.
38 In the case of Suraj Dev (Supra) even there was an exhortation by one of the accused and even when the wooden log was hit on the head, the said case was found U/s 304 and not U/s 302 of IPC. Similarly, in the case of Randhir Singh (Supra) despite exhortation to kill, it was held that it would be Sec. 304 of IPC which applies and not Sec. 302 of IPC.
39 Keeping in view the above mentioned facts & circumstances in the present matter also, even if statement of eye witness is taken as unrebutted, still prima facie Sec. 304 of IPC gets only attracted and not Sec. 302 of IPC. Therefore, let charges be framed U/s 304 of IPC r/w 34 against all the three accused.
Announced in the open court on 24th day of April, 2015. Dig Vinay Singh ASJ/Spl.Judge:NDPS(N-W) Rohini Courts/Delhi SC no. 09/15 Page 19 of 19