SANJAY KISHAN KAUL

1. The appellant though having a good motive of preventing drug consumption used wrong means by inflicting knife injuries on the deceased and causing his death, which has resulted in order of conviction under Section 302 IPC in terms of the judgment dated 5.4.1995 as also of conviction under Section 27 of the Arms Act and on being sentenced to life imprisonment under Section 302 IPC and to pay a fine of Rs.1,000/-, or in default of payment of fine, to undergo RI for three months and for the offence under Section 27 Arms Act to undergo RI for a period of one year and to pay a fine of Rs.500/-and in default of payment of fine, to undergo further RI for one month, has preferred this appeal.

2. Briefly put, case of prosecution is that that on the fateful morning of 26.06.88 at about 7:00 a.m., some boys were taking smack in front of the shop of the complainant and mohalla people were forbidding them from taking smack in the market. In the meanwhile, the deceased Ajay @ Bille reached there and announced that nobody should prevent anyone from taking smack if he wishes to do so. On this, the appellant Liaqat Ali intervened and stated that nobody would be allowed to take smack in the market. This resulted in an altercation and the appellant and the deceased Ajay grappled with each other. The complainant Parvez intervened in that altercation. All of a sudden, the appellant Liaqat fetched a knife from the shop of Parvez and inflicted a knife injury on the shoulder of Parvez and thereafter gave few blows on the chest and back of the deceased Ajay. As a consequence, Parvez suffered simple injury and the injuries inflicted upon the person of Ajay proved to be fatal.

3. Learned counsel for the appellant has submitted that the learned Trial Court has found the appellant guilty on the basis of eye witness account given by PW2 Ram Avtar and PW3 Kundan Lal, which is partly corroborated by testimony of PW1 Parvez, the complainant. He has submitted that from the testimony of PW2 and PW3, it is apparent .that the appellant was not carrying any arm with him. The incident took place suddenly without any pre-meditation when the appellant was trying to prevent taking of smack by some boys( an illegal act) in the market and the deceased Ajay opposed the stand of the appellant by challenging that anyone who wanted to take smack could do so. He has pointed out that it has come in evidence that complainant Parvez also intervened in the altercation and the appellant in the heat of moment fetched a knife from the shop of the complainant Parvez and stabbed him as well as the deceased, resulting in simple injury to the complainant Parvez and death of the deceased. On the basis of aforesaid facts, learned counsel for the appellant has argued that the case of the appellant does not fall within the purview of Section 300 IPC and the offence committed by him amounted to culpable homicide not amounting to murder punishable under Section 304 Part I IPC.

4. In order to appreciate the contention of learned counsel for the appellant, it would be fruitful to have a look on the law relating to culpable homicide. The distinction between two types of culpable homicide i.e. murder and culpable homicide not amounting to murder has been beautifully drawn by Hon’ble Justice Sarkaria in leading case State of A.P. Vs. Rayavarappu Punnayya, AIR 1977 SC 45. The relevant portion of the judgment is reproduced below:

“13. In the scheme of the Penal Code, culpable homicide is genus and murder its specie. All murder is culpable homicide but not vice-versa. Speaking generally, culpable homicide sans special characteristics of murder, is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which