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IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S. SISTANI, GITA MITTAL, JJ.
Ajay Bind - Appellant
Versus
State NCT of Delhi - Respondent
CRL. A. 392 & 925 of 2016
Decided On : 07-07-2017
CRIMINAL APPEAL - CULPABLE HOMICIDE NOT AMOUNTING TO MURDER - SECTION 304 PART II IPC - EXCEPTION 4 TO SECTION 300 IPC - SUDDEN FIGHT - HEAT OF PASSION - NO PREMEDITATION - NO UNDUE ADVANTAGE OR CRUELTY - INTENTION TO CAUSE DEATH NOT ESTABLISHED - CONVICTION UNDER SECTION 302 IPC SET ASIDE - SENTENCE REDUCED.
Fact of the Case:
The appellants were convicted for the murder of one Ramesh @ Ram Asre and sentenced to life imprisonment. The prosecution alleged that the appellants had quarreled with the deceased and his family members and in the course of the quarrel, the appellants had assaulted the deceased with a hammer, a danda and a saria, causing injuries which led to his death. The appellants denied the allegations and claimed that they were falsely implicated.
Finding of the Court:
The court found that the prosecution had failed to prove beyond reasonable doubt that the appellants had the intention to cause the death of the deceased. The court noted that the appellants had not carried any weapons with them and that the weapons used in the assault were picked up from the spot. The court also noted that the incident had occurred in the heat of a sudden quarrel and that there was no evidence of premeditation. The court further noted that the appellants had not taken any undue advantage or acted in a cruel manner. Accordingly, the court held that the appellants were entitled to the benefit of Exception 4 to Section 300 of the IPC and that their conviction under Section 302 IPC was not sustainable.
Issues: 1. Whether the prosecution had proved beyond reasonable doubt that the appellants had the intention to cause the death of the deceased? 2. Whether the appellants were entitled to the benefit of Exception 4 to Section 300 of the IPC?
Ratio Decidendi: 1. The court held that the prosecution had failed to prove beyond reasonable doubt that the appellants had the intention to cause the death of the deceased. The court noted that the appellants had not carried any weapons with them and that the weapons used in the assault were picked up from the spot. The court also noted that the incident had occurred in the heat of a sudden quarrel and that there was no evidence of premeditation. The court further noted that the appellants had not taken any undue advantage or acted in a cruel manner. 2. The court held that the appellants were entitled to the benefit of Exception 4 to Section 300 of the IPC. The court noted that the incident had occurred in the heat of a sudden quarrel and that there was no evidence of premeditation. The court also noted that the appellants had not taken any undue advantage or acted in a cruel manner.
Final Decision: The court allowed the appeals in part. The court set aside the conviction of the appellants under Section 302 IPC and convicted them under Section 304 Part II IPC. The court also reduced the sentence of the appellants to five years rigorous imprisonment.
Gita Mittal, J.
1. The appellants Ajay Bind (appellant in Crl. A. No. 392/2016) and Shankar Bind and Raju @ Brahm Dev Bind (appellants in Crl. A. No. 925/2016) assail the common judgment dated 22nd March, 2016 and consequential order on sentence dated 29th March, 2016 passed by the learned Additional Session Judge – 05 (West), Tis Hazari Courts, Delhi in Sessions Case No.44/15 arising out of FIR No. 291/2011 registered at PS Nihal Vihar under Sections 323, 302, 34, 174A of the IPC.
2. By the impugned judgment dated 22nd March, 2016 and order on sentence dated 29th March, 2016, the appellants stand convicted for commission of offences under Sections 302, 323, 34 of the IPC and sentenced to undergo, for commission of offence under Sections 302, 34 of the IPC, rigorous imprisonment for life and a fine of Rs.15,000/- each, in default of payment of fine, to further undergo SI for six months each. For commission of offence under Section 323/34 of the IPC, they stand sentenced to rigorous imprisonment for one year and a fine of Rs.1,000/- each and in default of payment of fine, to further undergo SI for 15 days each. The sentences were directed to run concurrently and the benefit under Section 428 of the CrPC was allowed to the appellants. The appellants were acquitted for commission of offence under Section 174A of the IPC.
3. Inasmuch as the appeals raise similar question of law and facts and rest on the same evidence, we propose to decide these appeals by the present common judgment. The factual narration is in a narrow compass and to the extent necessary is set out hereafter.
4. The law machinery was set into motion on the night intervening 17th/18th October, 2011 on the receipt of DD No. 51A at 11:50 PM, at PS Nihal Vihar (Ex. PW 24/A) regarding a quarrel at the Chander Vihar drain.
5. The DD entry was premised on a PCR Call which was made on the 17th of October, 2011 at 23:44 PM by one Raju (PW-20). The PCR Form Ex.PW-10/A records information of the incident as narrated, as being of a quarrel (“jhagra”) at the following location:
“CHANDER VIHAR NALE KE PAS JO GHAR BAN RAHE H POLICE CHOKI KE PAS MACHCHHI MKR PAR KARKE CHARCH KE PAS”
6. Subsequently, PCR Van PWR-66 was despatched to the spot and reported back as follows:
“18/10/2011 01:08:58 RCD 8 MIN SHARAB PI KAR AAPAS MAI JHAGDA EK INJ LE KAR HOSP JA RAHE HAI 18/10/2011 01:32:07 INJ KO D/CT S.G. HOSP MAI HAWALE HOSH MAI” (Emphasis by us)
7. ASI Ajaib Singh (PW-24) reached the spot along with Ct. Diwan where they were informed that the injured has been taken to Sanjay Gandhi Hospital in the PCR Van. Upon reaching the Sanjay Gandhi Memorial Hospital, PW-24 ASI Ajaib Singh found the MLC No.16574 (Ex.PW14/A) dated 18th October, 2011 recorded at 1:30 am of injured Rampal. However, the injured had left the hospital. This MLC notes the history as “assault as told by patient” and reports the injury suffered by him as “simple”. This MLC does not appear to have been proved in evidence.
8. The next morning (18th October, 2011), at around 9:00 AM, ASI Ajaib Singh (PW-24), again visited the spot and met the injured, Rampal.
9. Rampal informed that one of his relatives Ramesh @ Ram Asre had also sustained injuries, but he was not aware as to where Ramesh @ Ram Asre was admitted. Consequently, DD No. 51A was kept pending.
10. On 19th October, 2011, one person namely Jitender s/o Rampal visited the PS Nihal Vihar, and gave his statement (Ex. PW-24/B) to the police. The incident of the said night, is encapsulated in the court testimony of Jitender, who deposed as PW-3, when he testified to the effect that on the date of the incident, his father in law Ramesh @ Ram Asre and mother in law Indra Devi were visiting his wife (their daughter Gudiya). They were all seated in his room, when they heard ‘shor sharaba’ from outside, and subsequently they all went out to see that the appellants were q
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