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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  No(s). 1014 OF 2019 (Arising out of SLP(Crl.) No(s).9396 of 2010)

SITA RAM                                           Appellant(s)                                 VERSUS

STATE OF NCT OF DELHI                              Respondent(s)

J U D G M E N T BANUMATHI, J.:

Leave granted.

(2) This  appeal  arises  out  of  judgment  and  order  dated

15.02.2018 of the High Court of Delhi at New Delhi in Criminal

Appeal  No.333  of  2002  in  and  by  which  the  High  Court  has

affirmed the conviction of the appellant-Sita Ram (A-2) under

Sections  302  and  323  read  with  34  of  the  I.P.C.  and  the

sentence of life imprisonment imposed upon him.

(3) Briefly stated the case of the prosecution is that on 2nd

July, 1990 – 10:00 p.m., injured Kala Wati (PW-19), wife of

deceased-Mangal Singh, was going along with her husband to her

house after closing tea shop at Kardam Puri.  When they reached

near the shop of Girdhari Lal (A-1 since dead), they found the

appellant-Sita Ram (A-2), Ram Pal (A-3) and Ram Phal (A-3)

there.  Deceased-Mangal Singh asked Girdhari Lal (A-1) not to

tap/hook the electricity from the electric pole connecting his

house.  Girdhari Lal (A-1) got annoyed and objected to the

questioning  by  deceased-Mangal  Singh  and  all  the  accused

alleged to have abused deceased-Mangal Singh.  Ram Pal (A-3)

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gave the blow on the head of deceased-Mangal Singh and Sita Ram

(A-2) and Ram Phal (A-4) gave blows with Danda and hockey stick

respectively on deceased-Mangal Singh.  Kala Wati (PW-19), wife

of deceased, who tried to intervene also sustained injury on

her hand.  On hearing the noise Brij Mohan (A-5) came there.

When Raj Kumar (PW-9), Leela Wati (PW-4) and Jai Singh (PW-14)

came to save her, other accused caused injuries Jai Singh and

Raj Kumar (PW-9) and Leela Wati (PW-4).  Brij Mohan (A-5),

Subhash (A-9) and Rajender (A-6) are said to have attacked Raj

Kumar (PW-9) who also sustained injuries.  Injured were taken

to the hospital.  Mangal Singh succumbed to injuries.  On the

complaint lodged by Raj Kumar (PW-9), FIR was registered under

Sections 147, 148, 307 and 323 I.P.C. which was subsequently

altered  to  Section  302  I.P.C.   Dr.  M.P.  Sarangi  (PW-6)

conducted the post-mortem on the dead body of deceased-Mangal

Singh.  He noticed lacerated wound at the top of head of size 3

cm x 0.5 cms; lacerated wound on right parieto temporal region

of head of size 2 cm x 3 cm; lacerated wound of 1 cm x 5 cm

above the upper part of right ear etc.  He opined that injuries

no.1 to 3 were fatal and sufficient to cause death in the

ordinary course of nature.  On completion of the investigation,

the chargesheet was filed against A-1 to A-4 under Sections

325, 323 and 302 read with 34 I.P.C.

(4) To bring home the guilt of the accused, prosecution has

examined Kala Wati (PW-19), wife of the deceased, and Raj Kumar

(PW-9), son of the deceased, Leela Wati (PW-4), Jai Singh (PW-

14),  Vijay  Kumar  (PW-13)  and  other  eye-witnesses.   Upon

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consideration of the oral and documentary evidence, the Trial

Court  convicted  A-2  to  A-4  under  Section  302  read  with  34

I.P.C. and sentenced them to undergo life imprisonment. Brij

Mohan (A-5), Rajender (A-6) and Subhash (A-9) were convicted

under Sections 323 read with 34 I.P.C. and were sentenced to

undergo rigorous imprisonment for six months.  Rajesh (A-7) and

Manphool (A-8) were acquitted. Girdhari (A-1) died during trial

and the charges abated against him.   

(5) Being aggrieved, the accused preferred appeal before the

High  Court.   The  High  Court  vide  impugned  judgment  dated

15.02.2018 dismissed the appeal preferred the appeal by Sita

Ram  (A-2)  thereby  affirming  his  conviction  and  sentence  of

imprisonment imposed upon him by the Trial Court.  During the

pendency of the appeal before the High Court, Ram Pal (A-3) and

Ram Phal (A-4) also died and the charges stood abated against

them.  The appeal preferred by Brij Mohan (A-5), Rajender (A-6)

and Subhash (A-9) were partly allowed.  The High Court affirmed

their conviction under Sections 323 read with 34 I.P.C. but

reduced  the  sentence  of  imprisonment  to  the  period  already

undergone and enhanced the fine amount to Rs.10,000/-.  Being

aggrieved by dismissal of his appeal, the appellant-Sita Ram

(A-2) has preferred this appeal.

(6) We have heard Mrs. Bharti Tyagi, learned counsel appearing

for  the  appellant  and  Mr.  K.M.  Natraj,  learned  Additional

Solicitor General appearing for the respondent-State, and also

perused  the  impugned  judgment  and  the  evidence/materials  on

record.

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(7) The evidence of the injured eye-witnesses, Kala Wati (PW-

19)  and  Raj  Kumar  (PW-9),  is  impliedly  corroborated  the

evidence of Leela Wati (PW-4) and Jai Singh (PW-14).  Since,

Kala Wati (PW-19) sustained injuries, being injured witness,

the  evidence  of  Kala  Wati  stands  on  higher  footing.   The

evidence  of  all  witnesses  are  cogent  and  consistent  that

deceased-Mangal Singh was attacked by accused no.1 to 4 with

hockey stick and danda.  Accused Girdhari (A-1), Ram Pal (A-3)

and Ram Phal (A-4) are dead.

(8) Mrs.  Bharti  Tyagi,  learned  counsel  appearing  for  the

appellant-Sita Ram (A-2), has submitted that the occurrence was

not premeditated one and that only deceased-Mangal Singh and

his wife-Kala Wati (PW-19) while on the way back from tea shop

to their house questioned Girdhari (A-1) as to the alleged

tapping of the electricity which resulted in oral quarrel and,

therefore, the entire occurrence has happened in a heat of

passion  and,  therefore,  the  High  Court  was  not  right  in

convicting the appellant under Section 302 read with 34 I.P.C.

and the act of the accused squarely falls under Exception 4 to

Section 300 I.P.C.

(9) Mr.  K.M.  Natraj,  learned  Additional  Solicitor  General

appearing for the respondent-State, has taken us through the

evidence  and  reiterated  the  findings  of  the  High  Court  to

submit that the High Court has rightly convicted the appellant-

Sita Ram (A-2) under Section 302 read with 34 I.P.C. and there

is no ground warranting interference with the impugned judgment

of the High Court.

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(10) The only question falling for consideration is whether the

conviction of the appellant under Section 302 read with 34

I.P.C. can be sustained.  As pointed out by learned counsel for

the  appellant  that  there  was  no  premeditation  for  the

occurrence.  On 2nd July, 1990 at 10:00 p.m. when deceased-

Mangal Singh and his wife-Kala Wati (PW-19) were returning back

to their house after closing their tea shop, on the way they

questioned  Girdhari  (A-1)  as  to  his  alleged  tapping  the

electricity  from  electric  pole.   This  has  led  to  oral

altercation between the parties, during which the appellant-

Sita Ram (A-2), Girdhari (A-1), Ram Pal (A-3) and Ram Phal (A-

4) have attacked deceased-Mangal Singh with hockey stick and

danda.  It is to be pointed out that the accused were not armed

with weapon earlier; it appears that they have picked hockey

stick and danda during the course of the sudden fight.

(11) In order to attract Exception 4 to Section 300 I.P.C. the

following ingredients have to be established :

(i)  The  crime  must  be  committed  without premeditation;

(ii) It must be committed in a sudden fight in the heat of passion upon a sudden quarrel;

(iii) The  Offender  should  not  have  taken  undue advantage;

(iv) The  Offender  should  not  have  acted  in  a cruel or unusual manner;

(12) As  discussed  earlier  the  occurrence  was  without

premeditation and sudden fight between the parties started in

the heat of passion upon a sudden quarrel.  The occurrence

happened  when  deceased-Mangal  Singh  as  his  way  back  home

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questioned  Girdhari  (A-1)  as  to  his  conduct  of  tapping

electricity from the pole.  The appellant-Sita Ram (A-2) was

not  pre-armed  and  other  accused  were  also  not  pre-armed.

Though, deceased-Mangal Singh has sustained as many as nine

injuries, except injury no(s).1 to 3 which are the injuries

caused on the head and all other injuries are on the hand,

shoulder, arms etc.

(13) Considering  the  nature  of  the  injuries  sustained  by

deceased-Mangal Singh, it cannot be said that the appellant-

Sita Ram (A-2) and other accused have taken undue advantage of

deceased-Mangal Singh in attacking him.  Having regard to the

facts  and  circumstances  of  the  case,  in  our  view,  the

conviction of the appellant-Sita Ram (A-2) under Section 302

read with 34 I.P.C. deserves to be modified under Section 304

Part II I.P.C.

(14) In  the  result,  the  conviction  of  the  appellant  under

Section 302 read with 34 I.P.C. is modified under Section 304

Part II I.P.C.  The appellant-Sita Ram is sentenced to undergo

rigorous imprisonment for a period of eight years.  The appeal

is partly allowed.

.........................J.                 (R. BANUMATHI)

.........................J.         (A.S. BOPANNA)

NEW DELHI, JULY 09, 2019.