Som Dutt vs State of Haryana

A.N. Jindal, J.—This appeal is directed against the judgment of conviction and sentence dated 03.06.1996 passed by Additional Sessions Judge, Kurushetra convicting the accused under sections 324 and 307 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for five years and to pay fine of Rs. 500/- u/s 307 IPC and rigorous imprisonment for one year and to pay fine of Rs. 200/- u/s 324 of IPC.

The facts which could conveniently be traced from the statement of Gurmel Singh (PW-7) complainant, (hereinafter referred to as "Complainant") made before the police on 05.03.1995 which became the foundation of the case are that the complainant was studying in B.A. Part-II in I.G. College, Tohana. On 03.03.1995, he along with Surjit Singh (PW-8) his friend, had come to Jyotisar to attend the marriage of his father''s sister''s husband brother. On 04.03.1995 at around 10.00 p.m when they were attending Ghorchari (one of the ceremonies of the marriage), one Murari had an altercation with Som Dutt appellant whereas the complainant and Surjit Singh (PW8) intervened, at which, Murari left the place but accused/appellant felt annoyed on account of their intervention and attacked complainant with a knife hitting him on his right flank and also gave two knife blows to Surjit Singh (PW8). On raising hue and cry, accused fled away. Consequently, the complainant along with Surjit Singh was admitted in the LNJP hospital at Kurukshetra where statement of the complainant was recorded, which was made the basis of FIR against him. Consequently, it was investigated and challan was presented against him.

On commitment, the accused was charged under Sections 307 and 324 of the Indian Penal Code, to which he pleaded not guilty and claimed for trial.

The prosecution, in order to substantiate the charges, examined PW1 Dr. N. Khandelwal, Associate Professor, Department of Radiology, PGI, Chandigarh who radiologically examined Surjit Singh on 04.03.1995 and thereafter, his injuries were X-rayed but no bony injury could be detected, soft tissues were found having swelling and air was seen in the left lower chest.

PW-2 Dr. Rajesh Gupta, Junior Resident, Department of Surgery, PGI, Chandigarh stated that Surjit Singh son of Sh. Jodh Singh was admitted in PGI on 05.03.1995 and discharged on 14.03.1995 and during his stay at PGI, operation was performed and it was found that 500 ml. of clotted blood was present over the greater omentum. He has proved treatment record Ex.PB.

PW-3 Dr. Jagmal Singh, Medical Officer, LNJP Hospital, Kurushetra conducted the medico legal examination of Surjit Singh and Gurmel Singh. He stated that on 04.03.1995 at around 11.30 p.m on examination of Surjit Singh found two incised wounds on his person which were kept under observations. He proved his report Ex.PC and skiagram showing the seat of injuries as Ex.PC/1. He on examination of Gurmel Singh observed two simple injuries vide his report Ex.PD.

PW-4 Mukesh Kumar, Draftsman has proved rough site plan of the place of occurrence as Ex.PE.

PW-9 Ram Kumar is the witness to the recovery of knife.

PW-10 Dr. J.D. Wig, Additional Professor, Department of Surgery, PGI, Chandigarh has proved the signatures of Dr. Rajesh Kumar, Senior Resident of the Unit, who had performed the operation upon Surjit Singh.

PW-11 Jagdish Chander, SI is the Investigating Officer in the case.

The appellant in his statement u/s 313 Cr.P.C. has denied all the circumstances appearing against him and pleaded his false implication.

In defence, the accused/appellant examined Krishan Murari (DW1) and Dharam Singh (DW-2).

Ultimately, the trial ended in conviction. Hence this appeal. Without assailing the judgment of conviction and also the manner of occurrence, Mr. Bipan Ghai, learned Senior counsel for the appellant has strenuously contended that even assuming the case of prosecution to be correct, the record does not reveal accused/appellant had any intention to kill the injured and occurrence took place as a result of sudden fight and in the heat of passion.

It has been further urged that since the appellant had altercated with Murari therefore, he had no intention to cause injuries to Surjit Singh or Gurmel Singh complainant, consequently the conviction, if any, could be recorded against him u/s 308 IPC. In this regard, he has cited judgment Sharda Nand v. State of Punjab, 2006 (4) RCR(Cri) 906.

On the other hand, Mr. Praduman Yadav, DAG, Haryana accompanied by Mr. Akshya Bhan and Mr. Vineet Soni, Advocates, counsel for the complainant, have emphasized that keeping in view the nature of injuries, the weapon of offence, seat of injuries and manner in which he had caused the injuries the conviction recorded against the appellant was appropriate and no reason to convert the same u/s 308 of IPC is made out.

Heard. There is no denying a fact that on 04.03.1995 at 10.00 p.m. the appellant and Murari along with Surjit Singh and Gurmel Singh, complainant were present in a marriage party. It is also not in dispute that an altercation took place between the appellant and Murari and at that time, the complainant and Surjit Singh were not in his mind. It is amply established that on intervention of the complainant and Surjit Singh, Murari left the place and the accused without wasting any time pounced upon the interveners; there is also no escape from conclusion that the occurrence took place at the spur of moment. No allegation of premeditation on the part of the appellant has levelled against the appellant and also that the complainant and Surjit Singh were not his target. There was no such time gap between the quarrel and the fight which may have intervened for the passion to subside and thereby giving time to the appellant to come to normalcy.

Section 300 IPC carves out certain exceptions where culpable homicide is not murder. Exception-4 relates to a case of sudden fight in the heat of passion which reads as under:

"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 offender having taken undue advantage or acted in a cruel or unusual manner."

From the interpretation of the aforesaid exception, it transpires that if any culpable homicide has been committed in heat of passion upon a sudden quarrel; without the offender''s having taken undue advantage and has not acted in a cruel and unusual manner then it would fall u/s 304 part II and not u/s 302 IPC. Section 308 IPC has been brought to statue book on the analogy of exception 4 to Section 300 IPC and it is in order to create exception to Section 307 IPC and also diminish the gravity of the offence where element of intention is missing and it is committed as a result of sudden quarrel in the heat of passion. Section 308 IPC is reproduced as under:

"Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."

In order to bring the offence within purview of the aforesaid Section, the necessary ingredients need to be proved are:

(1) That the accused did an act.

With the intention of:-

(a) Causing such bodily injury as is likely to cause death, or

(b) causing death on

(i) grave and sudden provocation not courted, or

(ii) in the exercise of the right of private defence which was, however, exceeded, or

(iii) believing in the lawful discharge of his public duty: or

(iv) by consent of the deceased; or

(B) the knowledge:-

(a) that the act was likely to cause death.

To which may be added the following aggravating circumstance:

(3) that the act caused hurt to the person upon whom the attempt was made.

The sign-quo to prove the offence u/s 308 of IPC is the mens rea which is the same as required in Exception IV Section 300 IPC where on proof of the requirements as provided u/s exception 4, the offence falls within Section 304, Part II IPC.

Now while putting the facts and circumstances on the parameters of the present case, it may be observed that the occurrence took place at spur of moment in a certain fight. The appellant had no intention to cause such injuries which may be dangerous to life. Had the injured not intervened to come at the rescue of Murari, then event might have occurred in a different manner. In any case, since the intention to cause the injuries likely to cause death to the complainant and Surjit Singh is missing in the case, therefore, certainly the offence falls u/s 308 of IPC. Consequently, in the given circumstances of the case, it would be in the fitness of things convert the offence u/s 308 IPC.

Now coming to the quantum of sentence, the accused/appellant has already undergone one year and five months of the substantive sentence. The appellant has also come forward to compensate the injured for the injuries suffered by them. As such, the ends of justice would be met, if the sentence awarded to the appellant/accused reduced to that of- already undergone and he is directed to pay compensation.

Consequently, I partly accept the appeal and while acquitting appellant u/s 307 of IPC convict him u/s 308 IPC and modify the sentence so as to reduce the same to that of already undergone. However, the conviction and sentene u/s 324 of IPC is maintained. The fine awarded would be converted into compensation which would be paid to Surjit Singh in addition to the further compensation of Rs. 15,000/- to be paid to Surjit Singh and also Rs. 5,000/- to Gurmel Singh injured or in case of their death to their heirs within three months failing which this appeal will be treated as dismissed.