benefit of doubt = When he and Kishan Lal started running out, he heard Pritpal Singhal tell Roshan Lal to go outside, get the gun from the vehicle and that the fourth brother should not be spared. 35. It may be remembered that this witness survived the shooting with two bullets still lodged in his body. The office in which the firing took place was a small area. Yet this witness does not specify that the appellant shot him. He generally states that appellant and his father started firing at him and his brothers. Thus, it is difficult to say with certainty that the shots which hit Kishan Lal were fired by Suresh Singhal. 36. In these circumstances all that can be said is that a shot from the appellant may have hit Kishan Lal or may not have hit Kishan Lal. This benefit of doubt in law must go to the appellant. It is not possible for us to approve the observation of the High Court that because Suresh Singhal and Pritpal Singhal were armed “it is only the appellant and/or his father late Pritpal Singhal who could be responsible for the firing resulting in the murder of late Kishan Lal and the deceased-Shyam Sunder.We have already held that the appellant killed the deceased in the exercise of the right of private defence. Pritpal Singhal may or may not have acted out of the desire to protect Suresh. He did not share the same intention as that of Suresh. It is not possible to attribute common intention to kill the three brothers to both the appellant and his father. Hence, we allow this appeal partly and modify the impugned judgment and order passed by the High Court to the extent that the conviction of the appellant – Suresh Singhal under section 302 IPC for murder of Kishan Lal is set aside and his conviction under section 304 IPC is maintained. Since the appellant has already undergone a sentence of 13 ½ years as on date, we sentence him under section 304 IPC to the period already undergone. The appellant is in jail. He be released forthwith from the custody, if not required in any other case.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1548 OF 2011

SURESH SINGHAL                                     … APPELLANT(S)

VERSUS

STATE (DELHI ADMINISTRATION)                             …RESPONDENT(S)

JUDGMENT

S. A. BOBDE, J.

This appeal is directed against the judgment dated 01.09.2010 of

the Delhi High Court  in  Criminal  Appeal  No.232  of  1997  filed  by  the

appellant-Suresh Singhal against his conviction and the sentence awarded  to

him.  The appeal filed by the State seeking death penalty for the  appellant

and against the acquittal of Roshal Lal was dismissed by the High  Court  in

Criminal Appeal No.226 of 1997.

THE INCIDENT

2.    The appellant was prosecuted for the incident that occurred on the

04.03.1991 at about 5.15 pm.  The  deceased-Shyam  Sunder  and  Kishan  Lal,

both brothers, were killed in the incident at the office of  Lala  Harkishan

Dass located at Rajendra Park, Nangloi.  The  statement  of  Lala  Harkishan

Dass was recorded.  He had arranged a meeting for settling  a  dispute  that

had arisen between the  appellant  and  the  deceased.   The  appellant  had

apparently agreed to sell a property through a property dealer,  namely  the

deceased-Shyam Sunder. The purchasers were the Gurdaspur  Party.  Apparently

there was  some  misunderstanding  between  the  parties  and  eventually  a

meeting was arranged at the office of Lala Harkishan Dass.

3.    The deceased-Shyam Sunder and his two brothers Hans Raj

and Kishan Lal were already at the  office  of  Lala  Harkishan  Dass.   The

appellant-Suresh Singhal and  his  father  Pritpal  Singhal  accompanied  by

another man (Roshan Lal) reached the office at about 5.00 pm.   As  soon  as

they entered the office, there was an altercation between the appellant  and

the deceased.  The appellant took out his revolver and  shot  Shyam  Sunder.

Thereafter, the appellant and his father Pritpal Singhal who had come

to the office in a car, left the car behind and fled the place  in  the  car

of another visitor.

In the incident Shyam Sunder and Kishan Lal were killed.

4.    The Sessions Court convicted the appellant for  the  murder  of  Shyam

Sunder under Sections 302 and 304 read with Section 34 of Indian Penal  Code

(hereinafter referred to as ‘IPC’) for the murder of Kishan Lal.  His

co-appeallant-Pritpal Singhal who died on 28.03.2007,  during  the  pendency

of the suit was also convicted under Section 307 read  with  Section  34  of

IPC for attempting the murder of Hans Raj.  The third accused Roshan Lal

was acquitted.

WITNESSES TO THE SHOOTING

5.    The actual shooting  was  claimed  to  have  been  witnessed  by  Lala

Harkishan  Dass  (PW-2),  Hans  Raj  (PW-3)  and  Raj  Kumar  (PW-4).   Lala

Harkishan Dass (PW-2) was declared hostile.  Hans Raj (PW-3) is the  injured

eye-witness, and the brother of the deceased-Shyam Sunder.

6.    Two distinct versions about the actual shooting have arisen  from  the

deposition of the witnesses. One  version  is  that  there  was  no  scuffle

before which the appellant fired at the deceased.  The other is  that  there

was a scuffle in which the appellant was attempted to be strangulated.

NO SCUFFLE

7.    The first version is mainly deposed to by Hans Raj  (PW-3).  Hans  Raj

is the brother of the deceased.  He went to the  office  of  Lala  Harkishan

Dass where the parties had decided to  meet  to  resolve  the  dispute.   He

deposed that the moment the deceased entered the room, the  appellant  asked

his brother-the deceased, to tell him  what  had  happened  yesterday.   The

deceased got up and responded to it by asking the appellant whether  he  had

come to settle the dispute or to quarrel.  The  appellant  said  that  there

won’t be any quarrel but something different  would  happen.   This  witness

said

that “he then took out a revolver from his  coat  pocket  and  fired  at  my

brother-Shyam Sunder.”  This is  all  that  the  witness  stated  about  the

actual shooting. Thereafter this witness stated that he tried to catch  hold

of the appellant but the appellant exhorted his father  to  finish  all  the

brothers.  Thereafter, Pritpal Singhal took out a revolver from  his  pocket

and both

the appellant as well as Pritpal Singhal started firing at him and his

brother-Kishan Lal.  In the firing he was injured and  received  one  bullet

in his stomach. This version significantly does not  speak  of  any  scuffle

preceding the shooting. In the cross-examination later on,  he  specifically

stated in the cross-examination that there  was  no  scuffle  in  which  the

deceased tried to strangulate  the  appellant.  This  witness  thus  clearly

stated that the appellant shot the deceased as soon as he rose.

8.    The narration of this witness is significant since  he  suggests  that

the deceased was sitting when the appellant entered the room and after

a menacing exchange of words, shot the deceased as soon as he got up.

9.    Another witness Tarsem Kumar (P.W. 30) stated in his  deposition  that

“at that time, Shyam Sunder was sitting by my side on a  sofa  and  he  said

that he has been shot at with a bullet.  I  did  not  hear  anything  except

this.

I did not even hear the noise of firing”.

10.   PW-30 in his deposition suggests that the appellant shot him from  the

front as he got up.  This throws a doubt on the credibility of this  witness

because the entry wound of the bullet is on the back of  deceased,  and  not

in the front. Thus we are not inclined to accept the narration of PW-30  and

PW-3, who have both stated that the appellant fired at the deceased

from the front.

SCUFFLE

11.   The other  version  deposed  by  Subhash  Chand  Mahajan  (PW-23)  and

Sarover Kumar (PW-27)  is  that  there  was  a  scuffle  between  the  three

brothers i.e. deceased-Shyam Sunder, Kishan Lal and Hans Raj  on  one  hand,

and the appellant-Suresh Singhal on the other hand.  The deceased  tried  to

strangulate the appellant as they fell during the struggle,  and  thereafter

pulled out his gun and shot the deceased. He then  exhorted  his  father  to

shoot the others.

12.   Subhash Chand Mahajan (PW-23) stated in his cross examination that  he

saw the appellant on the floor being strangulated.  The witness stated  that

there was a scuffle and thereafter a shot fired.

13.   The other witness Sarover  Kumar  (PW-27)  belongs  to  the  Gurdaspur

Party and as such  is  not  a  direct  party  to  the  dispute  between  the

appellant and the deceased.  He stated that immediately after the appellant-

Suresh Singhal and Pritpal Singhal arrived, there was a scuffle between  the

appellant-Suresh Singhal on one hand and the three  brothers  including  the

deceased-Shyam Sunder on the other.  He deposed that there  were  shouts  of

“Chhodo Chhodo” during the scuffle and then the deceased-Shyam Sunder  cried

“Hai Mujhe Goli Lag Gayi” i.e. ‘I  have  been  shot’.   He  stated  that  he

immediately ran out of the side gate along with the other  persons  and  hid

behind the  cement  bags.   The  testimony  of  this  witness  has  remained

unshaken in cross-examination.  In fact in  cross-examination,  the  witness

stated that a scuffle took place within the twinkling of an  eye  after  the

appellant and the others entered the office.

14.   The stark difference between the two versions is that of  the  scuffle

preceding the incident of the shooting.  Whether there was a scuffle or  not

determines the tenability of the main  submission  advanced  by  Mr.  Sushil

Kumar, the learned senior counsel, that the appellant acted in the  exercise

of his right of private defence and shot the  deceased.   It  may  be  noted

that, both the Sessions Court and the High Court have found that  there  was

a sudden fight in the course of which a common intention  developed  between

the appellant and his father  to  cause  the  death  of  the  deceased-Shyam

Sunder and Kishan Lal.

15.   Having closely examined the evidence, we are of the view that in  fact

a scuffle did take place.  In this scuffle, Shyam  Sunder  alone,  or  along

with his two brothers tried to  strangulate  the  appellant-Suresh  Singhal.

The appellant reached for his revolver, upon  which  the  deceased  released

him and turned around to run away. At this point the appellant shot at  him,

either still lying down or having got up.   This  probablizes  and  explains

the fact that it was not a close shot and that the bullet entered  the  body

below the right shoulder of the deceased at the back and travelled upwards.

NOT A CLOSE SHOT

16.   The shot in question was obviously not a close  shot.   There  was  no

blackening, tattooing or charring around the bullet entry wound.   In  fact,

the doctors specifically stated that the  shot  was  fired  from  a  distant

range.  It is well known that the shooting  from  close  quarters  chars  or

blackens the body. It would be germane to quote  from  “Modi’s  Textbook  of

Medical  Jurisprudence  and  Toxicology  (25th  Edition).  p.   631”    with

reference to the above:-

“When there is a close shot that is in the range of  powder  blast  and  the

flame is within one to three inches, for small arms there  is  a  collar  of

soot and grease (if present on the bullet)  around  the  circular  wound  of

entry. Singed hairs may be seen if the body is not  covered  with  clothing.

Partially burnt and unburnt grains of  powder  are  blasted  into  the  skin

causing a tattooing which cannot be easily wiped  off.  Wadding,  pieces  of

clothing or other debris may be found lodged in the wound. The  entry  wound

of a revolver fired very near or in  contact  with  the  skin  is  generally

stellate or cruciform in shape instead of being circular. When it  is  fired

beyond a distance of 12 inches, there are no powder marks of  soot  or  heat

effects around the wound. If the revolver is fired close  to  the  skin  but

held at an angle, the smudging and tattooing is limited only to one side  of

the bullet hole. The wound of  exit  is  often  larger  than  the  wound  of

entrance, and its edges are irregular and everted, but free  from  scorching

and tattooing.”

17.   The statement of the doctor that it was shot from a distant range  has

not been challenged in  the  cross-examination.   There  is  another  reason

which lends credence to the assumption that the  shot  was  not  fired  from

close quarters, and that is the fact that the bullet did not exit the  body.

Indeed this happens when the bullet being fired from a distance  loses  its

velocity.  We have made these observations to  support  the  inference  that

there is no reliable evidence to show that the appellant shot  the  deceased

at close quarters when he was being strangulated.  The shot was in

all probability fired when the deceased released the  appellant  during  the

scuffle, and on seeing him reach for his gun  moved  away  to  escape  after

turning around.

RECOVERY AND BALLISTIC EXPERT REPORT

18.   We must at this stage advert to the recovery from the scene and

the ballistic expert report. Altogether 7 bullets were fired, and no

empty cartridge cases were recovered from  the  scene  of  the  crime.   One

empty .32 bore Smith & Wesson revolver was recovered  from  Suresh  Singhal.

One .32 bore Smith & Wesson revolver was  recovered  from  Pritpal  Singhal.

One .22 HP rifle and nine empty cartridges  were  also  recovered  from  the

roof of Pritpal Singhal’s house.  One .32 bullet  was  taken  out  from  the

body of deceased-Shyam Sunder.  Three .32 bullets were  recovered  from  the

body of deceased Kishan Lal.

19.   The appellant and his father  both  had  licensed  revolvers  but  the

forensic report does not definitely disclose that the bullets came from  the

licensed guns belonging to the appellant and Pritpal Singhal.

20.   Products of combustion of cartridge powder were detected only  in  the

barrel of the .32 revolver recovered  from  Pritpal  Singhal.   Products  of

combustion of cartridge powder could not be detected in the  barrel  of  the

revolver recovered from the appellant or the .22  HP  rifle.   All  the  .32

cartridge cases were found to have been fired  from  a  single  .32  calibre

fire arm, but none of them from any of the  two  .32  revolvers  which  were

seized.  The .32 lead bullet recovered from the body of deceased  was  fired

from .32 calibre fire arm.  The reports states that this bullet  could  have

been fired from the revolver seized from Pritpal Singhal, and not  from  the

revolver seized from the appellant.  However, a  definite  opinion  was  not

given for the want of sufficient characteristic marks on the crime  bullets.

The three bullets recovered from the  body  of  Kishan  Lal  could  not  be

linked with any of the .32 revolvers seized.  The  ballistic  expert  report

shows that none of the bullets were recovered from  the  .32  weapon  seized

from the appellant.

It is thus not possible to  determine  the  weapon  that  was  used  by  the

appellant–Suresh Singhal.

PRIVATE DEFENCE

21.   With regard to the evidence that the  appellant  was  being  assaulted

and in fact attempted to be strangulated, it needs to be considered  whether

the appellant shot the deceased in the exercise  of  his  right  of  private

defence.  Such a right is clearly  available  when  there  is  a  reasonable

apprehension of receiving the injury.

22.   The right of private defence is contemplated  by  Section  97  of  IPC

which reads as follows:-

“Section 97. Right of private defence of the body and  of  property.—  Every

person has a right, subject to the restrictions contained in section 99,  to

defend—

First — His own body, and the body of any other person, against any  offence

affecting the human body;

Secondly —The property, whether movable or immovable, of himself or  of  any

other person, against  any  act  which  is  an  offence  falling  under  the

definition of theft, robbery, mischief or criminal trespass, or which is  an

attempt to commit theft, robbery, mischief or criminal trespass.”

In Darshan Singh vs. State of Punjab and Another[1], this  court  laid

down the following principles which emerged upon the  careful  consideration

and scrutiny of a number of judgments as follows:-

“58.  The  following  principles  emerge  on  scrutiny  of   the   following

judgments:

(i) Self-preservation is the basic human instinct and is duly recognised  by

the criminal jurisprudence of all civilised countries. All free,  democratic

and civilised countries  recognise  the  right  of  private  defence  within

certain reasonable limits.

(ii) The right of private defence is available only to one who  is  suddenly

confronted with the necessity of averting an impending  danger  and  not  of

self-creation.

(iii) A mere reasonable apprehension is enough to put  the  right  of  self-

defence into operation. In other words,  it  is  not  necessary  that  there

should be an actual commission of the offence in order to give rise  to  the

right of private defence. It is enough if the accused apprehended that  such

an offence is contemplated and it is likely to be committed if the right  of

private defence is not exercised.

(iv) The right  of  private  defence  commences  as  soon  as  a  reasonable

apprehension arises  and  it  is  coterminous  with  the  duration  of  such

apprehension.

(v) It is unrealistic to expect a  person  under  assault  to  modulate  his

defence step by step with any arithmetical exactitude.

(vi) In private defence the force used  by  the  accused  ought  not  to  be

wholly disproportionate or much greater than  necessary  for  protection  of

the person or property.

(vii) It is well settled that even if  the  accused  does  not  plead  self-

defence, it is open to consider such a plea if  the  same  arises  from  the

material on record.

(viii) The accused need not prove the existence  of  the  right  of  private

defence beyond reasonable doubt.

(ix) The Penal Code confers the right of  private  defence  only  when  that

unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life  or

limb may in exercise of self-defence inflict  any  harm  even  extending  to

death on his assailant either when the  assault  is  attempted  or  directly

threatened.”

23.   Having regard to the above, we are of  the  view  that  the  appellant

reasonably apprehended a danger to  his  life  when  the  deceased  and  his

brothers started strangulating him after pushing him to the floor.

As observed by this Court a mere reasonable apprehension is  enough  to  put

the right of self-defence into operation and it is not necessary that  there

should be an actual commission of the offence in order to give rise  to  the

right of private defence.  It is enough if the  appellant  apprehended  that

such an offence is contemplated and is likely to be committed if  the  right

of private defence is not exercised.

24.   It was argued by Mr. P.K. Dey, learned counsel  for  the  State,  that

the deceased and his brothers were unarmed and there was  no  need  for  the

appellant to have used the gun.  Given the fact that the  deceased  and  the

others were attempting to strangulate the  appellant,  it  would  have  been

unrealistic to expect the appellant to “modulate his defence  step  by  step

with any arithmetical exactitude”.  This Court has held that  a  person  who

is in imminent and reasonable danger of losing  his  life  or  limb  may  in

exercise of self-defence inflict any harm even extending  to  death  on  his

assailant either when the  assault  is  attempted  or  upon  being  directly

threatened.

We are inclined to  think  that  the  appellant  had  been  put  in  such  a

position.

25.   We have no doubt that the appellant exceeded the power  given  to  him

by law in order to defend himself but we are of the view that  the  exercise

of  the  right  was  in  good  faith,  in  his  own  defence   and   without

premeditation.  In this regard,  it  would  be  apposite  to  reproduce  the

observation of Sessions Court which is as follows:-

“Since I feel that the prosecution witnesses are  hiding  something  at  the

introduction stage of the story, I  will  not  impute  a  prior  concert  or

intention to the accused.  I have no doubt that tempers  got  fayed  at  the

spot itself and whatever happened was not  a  result  of  prior  meeting  of

minds amongst the accused persons.”

26.   The High Court has also observed as follows:-

“In the facts and circumstances of the case, we find it difficult to  accept

that the murder of Shyam Sunder and Kishan  Lal  had  been  preplanned.  Had

Suresh Singhal and his father late Pritpal Singhal  preplanned  the  murder,

they would have chosen some other place to execute their plan and would  not

have done it in the office of the informant, in the presence of a number  of

persons.  The convict Suresh Singhal and his  father  late  Pritpal  Singhal

knew that a number of persons including the informant  Lala  Harkishan  Dass

and the members of the Gurdaspur Party would be present  in  the  office  of

the informant on  that  day  and  in  the  event  of  Krishan  Lal  and  his

brother(s) having murdered there, all these persons would  be  eye-witnesses

against them.  It is,  therefore,  highly  unlikely  that  they  would  have

planned to commit murders at that place.  It is true that both of them  were

armed with loaded revolvers when they came to the office  of  the  informant

on that day.  But that in our view, in the facts and  circumstances  of  the

case, does not necessarily mean that they had preplanned the murder,  though

it does show that they were fully prepared to meet any  eventuality  and  go

to any extent including use of the firearms they were carrying with them.”

27.   The homicide in the present case thus does not  amount  to  murder  in

the view of Exception 2 to  Section  300  of  IPC[2].   We  agree  with  the

observations of the Sessions Court and the High Court that the homicide  was

not the result of premeditation but rather, as the  evidence  suggests,  the

shooting took place in a sudden fight in the heat  of  passion.  It  is  not

possible to accept the argument of the prosecution that the  appellant  took

undue advantage of the situation and used the gun even though the  deceased-

Shyam Sunder and his brothers were unarmed. Given the murderous  assault  on

the appellant and the possibility of being attacked again, may be with  arms

or may be with the help  of  the  other  persons,  it  is  not  possible  to

attribute undue advantage to have been taken by the appellant.   In  such  a

situation it would be unrealistic to expect the appellant to  calmly  assess

who would have the  upper  hand  before  exercising  his  right  of  private

defence.

28.   In the circumstances of the case and  the  findings  of  the  Sessions

Court and the High Court, we find that the homicide falls  within  Exception

4 to Section 300 of IPC[3] and does not amount to murder.

29.   Mr. Sushil Kumar,  the  learned  senior  counsel  for  the  appellant,

argued that since the evidence  states  that  the  shot  was  fired  from  a

distance and the deceased was on top of the appellant in the course  of  the

scuffle during which he was being strangulated, the fatal  shot  could  have

only been fired by Pritpal Singhal. According to  the  learned  counsel,  he

was the only other person who had a gun and had  every  reason  to  exercise

the right of private defence to protect his son from strangulation.

30.   It is not possible for us to accept the argument that  merely  because

Pritpal Singhal had a gun, and that he could have used it to save  his  son,

he fired the shot.  There is no foundation in the evidence  of  any  of  the

witnesses to suggest  that  Pritpal  Singhal  fired  at  the  deceased-Shyam

Sunder from any place  in  the  room  to  save  his  son.   Even  otherwise,

shooting at two people grappling on the floor would have been a  risk  since

the shot could have injured either or both persons.  It  is  therefore,  not

possible for us to accept this submission.

31.   The strong possibility is that  there  was  a  scuffle  in  which  the

appellant was pinned to the floor and attempted to be  strangulated  by  the

deceased. The appellant may have pulled out his  gun  and  upon  seeing  the

gun, the deceased may have released the appellant and started  running  upon

which the appellant fired the shot which hit him from the back  side.   This

also explains the trajectory of the shot in which  the  bullet  entered  the

body below the right shoulder, and travelled upwards without exiting.

32.   In these circumstances, we are of the  view  that  Suresh  Singhal  is

undoubtedly guilty of causing death to Shyam Sunder with  the  intention  of

causing death or of causing such bodily injury  as is likely to cause  death

and therefore guilty of the offence under Section 304 of the  IPC.   We  are

informed that the appellant has already undergone a sentence of 13  ½  years

as on date.  We thus sentence him to the period already undergone.

KISHAN LAL’S DEATH

33.   The appellant has also been convicted under Section 302  IPC  for  the

murder of Kishan Lal. Hans Raj (PW-3) deposed that the  appellant  fired  at

his brother, and when he (PW-3) and his brothers-Raj Kumar and  Kishan  Lal,

tried to catch hold of the appellant,  the  appellant  told  his  father  to

finish all the brothers.  He then stated that Pritpal  Singhal  took  out  a

revolver from his pocket and both  the  appellant  and  his  father  started

firing at him and

his brother-Kishan Lal.  He stated that  he  received  two  bullets  on  his

stomach, and one bullet grazed him over  the  neck  portion  in  the  front.

When he started running out, he was hit by another bullet  on  the  back  of

his right shoulder.

34.   When he and Kishan Lal started running out, he heard  Pritpal  Singhal

tell Roshan Lal to go outside, get the gun from the  vehicle  and  that  the

fourth brother should not be spared.

35.   It may be remembered that this witness survived the shooting with  two

bullets still lodged in his body.  The  office  in  which  the  firing  took

place was a small  area.   Yet  this  witness  does  not  specify  that  the

appellant shot him.  He generally  states  that  appellant  and  his  father

started firing at

him and his brothers. Thus, it is difficult to say with certainty  that  the

shots which hit Kishan Lal were fired by Suresh Singhal.

36.   In these circumstances all that can be said is that a  shot  from  the

appellant may have hit Kishan Lal or may not  have  hit  Kishan  Lal.   This

benefit of doubt in law must go to the appellant.

37.   For the reasons stated above specifically that  Hans  Raj  (PW-3)  did

not specify that the appellant shot him.  There is a serious  doubt  whether

it can be held as having  been  proved  beyond  reasonable  doubt  that  the

appellant attempted to murder Hans Raj for which he has been convicted.

38.   It is not possible for us to  approve  the  observation  of  the  High

Court that because Suresh Singhal and Pritpal  Singhal  were  armed  “it  is

only

the  appellant  and/or  his  father  late  Pritpal  Singhal  who  could   be

responsible

for the firing resulting in the murder of late Kishan Lal and  the

deceased-Shyam Sunder.

39.   We have already held that the appellant killed  the  deceased  in  the

exercise of the right of private defence.  Pritpal Singhal may  or  may  not

have acted out of the desire to protect Suresh.  He did not share  the  same

intention as that  of  Suresh.  It  is  not  possible  to  attribute  common

intention to kill the three brothers to both the appellant and  his  father.

40.   Hence, we allow this appeal partly and modify  the  impugned  judgment

and order passed by the High Court to the extent that the conviction of  the

appellant – Suresh Singhal under section 302 IPC for murder  of  Kishan  Lal

is set aside and his conviction under section 304 IPC is  maintained.  Since

the appellant has already undergone a sentence of 13 ½ years as on date,  we

sentence him under section 304 IPC to the  period  already  undergone.   The

appellant is in jail.  He be released forthwith from  the  custody,  if  not

required in any other case.

….………………………………..J.

[S.A. BOBDE]

….………………………………..J.

[L. NAGESWARA RAO]

New Delhi

February 02, 2017

———————–

[1]    (2010) 2 SCC 333

[2]    “Exception 2. – Culpable homicide is not murder if the  offender,  in

the exercise in good faith of the right of  private  defence  of  person  or

property, exceeds the power given to him by law and causes the death of  the

person  against  whom  he  is  exercising  such  right  of  defence  without

premeditation, and  without  any  intention  of  doing  more  harm  than  is

necessary for the purpose of such defence.”

[3]    “Exception 4.-Culpable homicide is not  murder  if  it  is  committed

without premeditation in a sudden fight  in  the  heat  of  passion  upon  a

sudden quarrel and without the offender’s having taken  undue  advantage  or

acted in a cruel or unusual manner.”

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