A stabbing in the heat of the moment during a sudden quarrel qualifies for a lesser charge under Section 304 IPC, as per Exception 4 to Section 300 IPC.

JUDGMENT

Mukta Gupta, J. (Oral)

CRL.A. 609/2018

1. By the present appeal, the appellant Muninder Panjeta challenges the impugned judgment dated 9th April 2018 convicting the appellant for offence punishable under Sections 302/34 IPC along with another co-accused Saurabh Yadav whose appeal stands abated in view of his demise, besides convicting the three other accused namely Raju Kumar, Himanshu Rathi and Charan Singh for offences punishable under Sections 323/34 IPC. The appellant was awarded sentence of imprisonment for life besides fine of Rs.50,000/-, in default whereof to undergo rigorous imprisonment for one year and in case of fine amount being realized, the same was to be released to the mother of the victim vide order on sentence dated 12th April 2018.

2. As per the prosecution, the alleged incident took place at around 11.30 pm on 10th May 2010 when after a fight which ensued between some boys with Honey, the deceased who was accompanied by Jogender @ Tuli, (PW-3) and Avinash Malik (PW-10) who were later joined by Nitin Sansanwal (PW-16), cousin of the deceased Honey. It is alleged that the appellant went inside his room, brought a "chopper" (knife) from his kit as he was a student of Hotel Management and gave a stab injury on the right side chest of the deceased. It is also the case of the prosecution that the co-accused Saurabh Yadav gave an iron rod injury.

3. FIR No.125/2010 was registered at P.S. Vasant Vihar on the statement of Nitin Sansanwal who stated that he was a resident of B-27, Village Katwaria Sarai, Sangam Vihar and on the intervening night of 10th/11th May 2010 at around 11.30-11.45 pm, Joginder @ Tuli called him from his cell phone number 9711674898 on Nitin's mobile phone No. 9717558020 informing him that some boys who were often teasing the village girls, had an argument with other boys and asked Nitin Sansanwal to come immediately outside the shop of Dinesh Bansal. When Nitin Sansanwal reached outside the shop/store of Dinesh Bansal, he found his cousin brother Honey having a tussle with other boys who were residing in the next gali as tenants and those boys had threatened to kill Honey. He saw Joginder @ Tuli and Avinash trying to rescue his cousin Honey from the hands of those boys when 7-8 boys pounced upon stating "gaon ka bada thekedaar banta hai isse aaj maar date hain" and immediately one short and stout boy stabbed Honey with a knife on his right side chest and another boy who had an iron rod, hit Honey on the head with the iron rod. The other boys were slapping and kicking Honey. In a little while, Honey fell down in injured condition and on seeing Honey in an injured condition, all the boys ran away into the gali adjacent to the Bansal General Store. Nitin Sansanwal picked up Honey and called people to help him remove Honey to the hospital. According to Nitin Sansanwal, Dinesh Bansal told him that the boys involved in the fight were tenants of Harish and the boy who had attacked Honey with the knife was Muninder Panjeta, the boy who gave the iron rod blow was Saurabh Yadav and the other boys were Narender, Raju Kumar, Himanshu Rathi and Charan Singh. Dinesh Bansal also told him that he was familiar to those boys as they used to purchase regularly from his store. When injured Honey was taken to Fortis Hospital by Nitin Sansanwal, the Doctor declared him brought dead.

4. After the arrest of the accused charge sheet was filed. Prosecution examined 41 witnesses. Statements of accused were recorded under Section 313 CrPC, however, they led no defence evidence. Before the Court, thus, the five eye witness