The Court dismissed the appeal against conviction and sentence for murder under Section 302 IPC and grievous hurt under Section 323 IPC. Holding that the killing involved premeditation and a cruel manner of inflicting multiple wounds, it was not a sudden fight under Exception 4.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
$~R-117
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DEEPAK KASHYAP ..... Appellant Through: Ms. Kaveeta Wadia and Mr.Shashank Tripathi, Advocate. versus STATE ..... Respondent Through: Mr. Hirein Sharma, APP for State
CORAM: JUSTICE S.MURALIDHAR JUSTICE I.S.MEHTA
O R D E R % 19.03.2018
Dr. S. Muralidhar, J. :
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sentenced to imprisonment for life with a fine of Rs.25,000/-, and in default of payment of fine to undergo simple imprisonment („SI‟) for two months. For the offence under Section 323 IPC, he was sentenced to SI for two months with a fine of Rs. 1,000/-, and in default of payment of fine to undergo SI for two days.
Case of the prosecution
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was the wife of Deepak; that they had been married two years earlier; they have one child; that Deepak had inflicted multiple stab wounds on her and she died at the spot itself. It also noted that at the spot, the mother of Radha, Smt. Janki Devi had tried to save her and suffered a knife injury on her left hand and she had been taken to the hospital as a result. It was noted that there were quarrels taking place between the husband and wife for some days earlier and that the husband was suspicious of the wife.
Investigation
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body which was lying in a pool of blood. Blood stained mud was picked up. A blood stained white scarf was also recovered from under the dead boy. From the spot a blood stained knife was picked up and its sketch prepared (Ex. PW-8/G). The paper cover of the knife was packed in a different transparent packet. PW-22 also picked up two pairs of slippers which were sealed in two separate parcels. On the search of the jeans of the deceased, PW-22 found one mobile phone. The kangans and pyjebs of the deceased were also removed and seized.
Post mortem
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directed slightly oblique, entered into chest cavity through the left second inter costal space and penetrated the Aorta (about 1 cm long cut). Total depth of the wound was 10-11 cm from the skin. Injury No. 2 cut the underlying tissues cleanly and entered into the right chest cavity through right fifth inter costal space, punctured the right pleura and penetrated the lower lobe of right lung about 3 cm deep and 2 cm long. Total depth of wound from skin was about 14-15 cm. Injury No. 3 cut the underlying tissues cleanly, entered into the peritoneal cavity and penetrated into right lobe of liver near its junction with left lobe about 4 cm deep and the total depth of the wound was 11 cm.
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Evidence of PW-5
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Two or three persons also called the police. One of them called from the mobile number of PW-5 as well.
Statement of the accused under S. 313 Cr PC
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under construction in the area of Burari. After some time he again called and stated that the Appellant should reach PS Burari. While on his way to the house under construction, the Appellant met PW-8 and his friend, whereupon he accompanied them to PS Burari where the police asked him to call his mother and sisters and then he was detained and not let off. He denied having raised any demand of Rs.7 lakhs from his wife or his motherin-law that day. The Appellant denied the entire incident as spoken to by PW-5.
Defence witnesses
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PW-21. He also confirmed that his motorcycle bearing no.DL-8CN-6289 was borrowed by the Appellant and he had seen it parked inside the PS when he went there.
Contentions of the Appellant
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truthful or reliable witness. On the contrary, she appears to be a natural witness. The incident took place at the site of construction of her new house. The police did find her in a pit in an injured condition struggling to get out.
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Nature of the offence
“To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in the Indian Penal Code. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue
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advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".”
(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.
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to be taking undue advantage of the vulnerability of the victim. Further, when the offender is shown to have used the weapon, the Court has to further ascertain whether the offender in using such weapon acted in a cruel or unusual manner. Here the nature of the weapon, the manner in which it was wielded, the place on the body where injuries were caused and the number of the injuries would be important factors to determine if the offender acted in a cruel or unusual manner.”
“7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly........”
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Section 302 IPC. Consequently, the Court is unable to find any error having been committed by the trial Court either in the matter of convicting the Appellant of the offences punishable under Section 302 IPC or even as regards the offence under Section 323 IPC. The eye witness testimonies having been completely corroborated by the medical evidence, there is no scope for taking a different view either on the conviction or on the sentences awarded to the Appellant.
S. MURALIDHAR, J. I.S. MEHTA, J. MARCH 19, 2018 Pratima/‘anb’
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3 issues framed by the court
Whether the offence committed by the appellant falls within Exception 4 to Section 300 IPC regarding culpable homicide not amounting to murder.
Whether the conviction and sentence for murder under Section 302 IPC and Section 323 IPC were erroneous.
Whether the incident constituted a sudden quarrel in the heat of passion without premeditation or cruel manner.
Colour shows how this judgement treated each authority
Ghapoo Yadav v. State of M.P. (2003) 3 SCC 528Explained¶80
Brij Mohan Vs. State, Crl.A.No.170/2002Explained¶85
Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217Explained¶96
Sekar @ Raja Sekharan Vs. State, (2002) 8 SCC 354Referred¶98
Rakesh Vs. State of Madhya Pradesh, (2007) 14 SCC 504Referred¶98
3 provisions across 1 enactments
Deepak Kashyap
State
S. Muralidhar
I.S. Mehta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
