MADAN LAL GAGAR Vs. STATE

JUDGEMENT

(1.) Madan Lal Gagar has assailed the order dated 30/03/1996 passed by Additional Sessions Judge, Delhi thereby convicting him of offences under Sections 302/332/353 read with Section 34 of I PC and sentencing him to life imprisonment and fine of Rs.1500.00 and in default of payment of fine simple imprisonment for two months., The impugned order of conviction and sentence have been assailed, primarily on the grounds:-

(2.) In order to appreciate the challenge brief facts relevant for our consideration are, that constable Onkanwar Singh (Public Witness-6) was on patrol duty nearjhuggi of K- Block, Jahangirpuri on 6/12/1988. At about 7.45 P.M. constable Bhupender Singh the deceased came there and informed that SHO was calling him at the police station. On receiving this information constable Onkanwar Singh Public Witness-6 alongwith the deceased constable Bhupender Singh started proceeding towards the police station. Hardly had they reached jhuggies of K-Blocknear Shiv Temple on the main road at about 8 P.M. they saw ,three persons namely the appellant, his brother Sardari Lai Dhari and co-accused Mehar Dass coming from the opposite side. They were bad characters of the area, therefore these constables knew them from before. Constable Bhupender Singh confronted them by saying to accused Sardari Lal Dhari and Madan Lal Gagar that there were several complaints against them for selling smack. Being confronted was not liked by the accused persons hence the appellant threatened the deceased by saying Chal sale bhag yahan se, tere jaise kai dekhe hain" (Bastered go away we have seen several persons like you). Deceased Bhupender Singh told the appellant that he would complain this to the SHO. On this the accused got enraged and shouted, "Tujhejinda jane denge to report karega" (If you are left alive only then you would be able to report). Accused Sardari Lal and Mehan Dass exhorted to Madan Lal alias Gagar thus; "Maar Sale Ko, peit phad do" (Beat the bastered and rip apart his stomach). Appellant suddenly took out his dagger from the right dub of the pant and gave a knife blow on the left side chest of deceased Bhupender Singh. Constable Onkanwar Singh raised alarm and tried to save by waiving his stick towards the accused persons. On this the accused left the deceased but tried to attack him. He saved himself by raising alarm and also waiving the stick. On hearing the alarm accused ran away. Constable Omkanwar Singh Public Witness-6 chased them but the accused made good their escaped under the cover of darkness. In the meantime constable Satpal who was on duty picked up deceased Bhupender Singh from the spot and removed the deceased to Hindu Rao hospital. FIR was recorded on the statement of Constable Onkanwar Singh Public Witness-6 at 8.50 P.M. subsequent -the accused persons were arrested near ISBT and thereafter challan was filed.

(3.) Mr.Naveen Thakur appearing as Amicus Curiae for the appellant contended that the incident happened at the spur of the moment. The three accused persons namely Madan Lal alias Gagar, his brother Sardari Lal Dhari and the co-accused Mehan Dass reached the spot by chance. They were coming from the opposite direction. They were not aware that they would meet Constable Bhupender Singh and Public Witness-6 at the place of occurrence. Nor it was prosecution's case that the accused persons had any intention or pre-meditated to kill Constable Bhupender Singh. In fact deceased Bhupender Singh confronted the accused and reminded them of their involvements in the sale of smack which allegations according to Mr.Thakur were false. Mr.Thakur then contended that it was in fact the deceased who provoked the accused by levelling false allegations. Till then there was no plan to harm or kill Constable Bhupender Singh. Therefore from the facts of this case it cannot be inferred that there was pre-meditation or intention on the part of the accused persons kill constable Bhupender Singh. It happened suddenly and at the spur of the moment. Omkanwar Singh Public Witness-6, the author of the FIR had nowhere stated that there was any motive on the part of the accused person to kill the deceased or that the accused had any grauge against the deceased. Hence there was of intention on the part of the accused persons to kill the deceased. It is established fact on record that the appellant gave a single blow on the left side of the chest of the deceased and that too on being provoked by the co-accused who have only been convicted under Section 326 Indian Penal Code. There was no specific charge framed under Section 302 against the appellant hence he could not have been convicted under Section 302 Indian Penal Code particularly when co-accused have been convicted under Section 326 Indian Penal Code.