The main legal point established in the judgment is that the nature of provocation and the time gap between the incidents are crucial factors in determining the applicability of Exception 1 to Section 300 IPC in cases of murder.

NAVIN CHAWLA, J.

1. The appellant-Malkhan has filed the present appeal challenging the order dated 21st November, 2011 passed by the Additional Sessions Judge (NW)-01, Rohini convicting him of offences punishable under section 302 IPC and section 27 of the Arms Act. The appellant further challenges the order dated 23rd November, 2011 sentencing him to undergo RI for life and to pay a fine of Rs.7,000/- and in default SI for 2 months under Section 302 IPC and a further sentence of RI for 3 years and to pay a fine of Rs.3,000/- and in default SI for 3 months under Section 27 of the Arms Act. Both the sentences were ordered to run concurrently.

2. The case of the prosecution is based primarily on the testimony of the eye witness, Surinder @ Suraj (PW-1) who has stated that on 17th October, 2009 at about 1.30 am, he was coming back from his shop at Harphool Singh Building, Sabzi Mandi, Ghanta Ghar, Delhi and when he reached near A-block, Lal Bagh, Delhi his friend Mohan (deceased) met him and they started talking to each other. Mohan told him that he was feeling hungry and accordingly, they went near Azadpur bus terminal and ate paranthas at the shop of Kale. Thereafter, they started walking towards their house and on the way to Lal Bagh at about 3.15 am, when they reached G.T.Karnal road, Azadpur, the appellant met them. There was an altercation between the deceased and the appellant and the deceased gave 4-5 slaps to the appellant. The appellant warned the deceased that he had not done the right thing by slapping him and he would have to face dire consequences. Thereafter, the appellant left the spot. Surinder and the deceased thereafter met Vijender (PW-2) at his redhi and both of them started talking to him. At about 4.00 am, Vijender told them that he wanted to open his shop and asked both of them to go to their house. They both started walking towards their house and at about 4.05 am, when they reached opposite Mishra Clinic, in front of factory No.G-I/39, Service Road Lal Bagh, the appellant met them again. This time, the deceased apologized to the appellant for having slapped him. The appellant told the deceased not to worry and kept his hand on the shoulder of the deceased. However, after moving two steps, the appellant took out a knife from his right pocket and started stabbing deceased in his stomach and chest. He also threatened Surinder to keep away otherwise, he would stab him also. Surinder immediately ran from the spot and met Vijender (PW-2) and narrated the entire incident to him. They both rushed to the spot. Someone called the police at No.100 and PCR reached the spot and took the deceased to Babu Jagjiwan Ram Memorial Hospital, Jahangir Puri.

3. At around 4.20 am, DD No.4A was registered at PS Adarsh Nagar regarding stabbing near Masjid, Sudarshan Dairy. SI A.P.Singh (PW-22) along with HC Ramkaran (PW-18) went to the spot and on reaching there came to know about the incident and the deceased having already been removed to Babu Jagjiwan Ram Memorial Hospital. At the spot, they met Constable Rahul Tyagi (PW-21) leaving Constable Rahul behind, SI A.P.Singh and HC Ramkaran went to the hospital and obtained the MLC of the deceased, who was declared brought dead. They thereafter, went back to the spot and recorded the statement of Surinder (PW-1). On the basis of the said statement, a rukka was prepared which resulted in registration of FIR no.244/2009 at PS Adarsh Nagar.

4. On 19th October, 2009, the appellant was arrested at the instance of Surinder and a bloodstained vest (baniyan) worn by the appellant was seized. During interrogation, the appellant also got recovered the shirt which he was wearing at the time of incident from the house of his brother in law, Rajkumar (PW-13). He also got recovered the weapon of offence i.e. knife from the house of father in law of his elder brother namely Chanderpal (PW-17). The seized items were sent to FSL for their examination and opinion and in the FSL report (Ex.PW6/