Delhi District Court
State vs Sohel Ahmed S/O Jameel Ahmad on 25 July, 2013
1
IN THE COURT OF SHRI SANJEEV KUMAR: ADDL.SESSIONS
JUDGE01: NORTH: ROHINI: DELHI
SC No.28/12
FIR No.569/11
PS: Sultanpuri
U/S 302/324 IPC &
25/27/59 Arms Act
State
VERSUS
Sohel Ahmed S/O Jameel Ahmad,
R/O P2/527, Sultanpuri, Delhi. ... Accused
Date of Institution:11.05.12
Date of Argument:05.07.12
Date of Decision:25.07.13
JUDGMENT
1. Brief facts of the prosecution case are that on 18.12.11, an information was received in PCR from phone no. 9278815093 that one person has been stabbed in quarrel at P1/806, Sultanpuri and said information was given by PCR in PS Sultanpuri and DD writer recorded the DD no.49A in this regard which was given to Kulvir Singh. He along with Ct. Prakash reached at the spot where Ct. Vijender met him and produced accused Sohel Ahmed and told that accused had stabbed Suresh Chand and his State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 1 of 56 2 son Laxman and injured have been removed to SGM Hospital. Thereafter SI Kulvir Singh reached at SGM Hospital and collected the MLC of injured Suresh Chand( since deceased) and injured Laxman. He recorded the statement of Suresh Chand.
2. Injured Suresh Chand (deceased) in his statement stated to IO that today i.e on 18.12.11 at about 7.45 pm he was at his house, at that time Sohel (accused) and Luvkush came to his house and Sohel asked him to give Rs.100/ otherwise he will attack on him. He think that Sohel is just joking and therefore refused to give him money. On this Sohel took out one knife from his pocket and attacked on him. On seeing this Luvkush run away. Sohel stabbed him in his abdomen and right thigh with knife and when he shouted his son came from the upstairs and apprehended Sohel but Sohel also stabbed his son but they managed to apprehend him and his son snatched knife from the hands of accused. Thereafter his family members brought him to the hospital.
3. SI Kulvir Singh/IO also met with the injured Laxman (PW1) who identified the knife which was handed over to him by Ct.Kulbir. IO prepared the sketch of knife and prepared pulunda of knife and seized the same. He recorded the statement of Laxman. State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 2 of 56 3 Accused Sohel was medically examined. Rukka was prepared by the IO. Accordingly on the basis of rukka FIR no.569/11 u/s 307 IPC and 27 Arms Act was registered in PS Sultanpuri.
4. Accused was arrested by the IO and he recorded confessional statement of accused. Prepared site plan. Recorded statements of other witnesses. In the meanwhile on 2.1.12 injured Suresh Chand expired and case was converted u/s 302 IPC besides Section 324 IPC and 25/27 Arms act. Thereafter investigation was assigned to Inspector K.P. Tomar. Thereafter IO got conducted the postmortem. He collected the postmortem report on which doctor has given cause of death as the septecemic shock. He sent the case property and weapon of offence to FSL and collected the opinion on MLC of injured Laxman, got prepared the scaled site plan, collected PCR form I, recorded statements of witnesses time to time and after completion of investigation filed the charge sheet u/s 302/324 IPC and 25/27 Arms Act and accused was put to trial.
5. After compliance of Section 207 Cr.P.C. Ld. MM has committed the case to the court of Sessions which was later on assigned to this court.
State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 3 of 56 4
6. Vide order dt. 13.7.12 charge u/s 324/302 IPC and u/s 25/27 Arms Act was framed against the accused to which he pleaded not guilty and claimed trial.
7. The prosecution has examined 24 witnesses i.e PW1 Laxman Gupta, PW2 Sushil Gupta, PW3 Dharmender, PW4 Ct. Vijender, PW5 Rajesh Gupta, PW6 W/Ct. Darshana, PW7 Ct. Manoj Kumar, PW8 HC Devender Singh, PW9 Ct. Gyan Singh, PW10 SI Kulvir Singh, PW11 Dr.Birjesh Singh, PW12 HC Govind Singh, PW13 SI Manohar Lal, PW14 Ct. Prakash Chand, PW15 Dr. Sandeep Sharma, PW16 Ct. Anil Kumar, PW17 HC Rajender Singh, PW18 Dr. Manoj Dhingra, PW19 Dr. Munish Wadhawan, PW20 Dr. Mahipal Singh, PW21 Dr.Vishnu Kumar Sharma, PW22 Dr. Manoj Dhingra, PW23 W/HC Rekha and PW24 Inspector K.P. Tomar.
8. The prosecution also proved documents i.e.sketch of knife as ExPW1/A, seizure memo of knife as ExPW1/B, arrest memo of accused as ExPW1/C, site plan ExPW1/D, statement of PW1 Laxman Gupta regarding identification of dead body as ExPW1/E, receipt of dead body as ExPW1/F, statement of PW5 Rajesh Gupta as ExPW5/A, computerized PCR form as ExPW6/A, another State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 4 of 56 5 computerized PCR form ExPW7/A, copy of FIR as ExPW8/A, endorsement on rukka as ExPW8/B, copy of DD no.49A as ExPW8/C, statement of Suresh Chand as ExPW10/A, rukka as ExPW10/B, personal search of accused ExPW10/C, disclosure statement of accused as ExPW10/D, seizure memo of sealed pulunda handed over by doctor as ExPW10/E, request for postmortem examination as ExPW10/F, form 25.35 as ExPW10/G, MLC as ExPW11/A, entries in register no.19 as ExPW12/A and B, road certificate as ExPW12/C and D, acknowledgment of receipt issued by FSL as ExPW12/E, site plan as ExPW13/A, finding of Dr. Inderpreet Singh as ExPW15/A and B, PM report as ExPW18/A, death summary as ExPW21/A, certificate of Dr. Saurabh Mittal as ExPW22/A, DD no.32A as ExPW23/A, knife as ExP1, clothes of accused ExP2, pant ExP3, and one baniyan ExP4. Ld. APP for State tendered in evidence FSL reports as ExPX and PY.
9. Statement of accused u/s 313 Cr.P.C. was recorded in which all the incriminating evidence was put to accused but he denied the same and stated that at the time of incident, he was under the influence of intoxication and not able to even stand on his own. There was a crowd and public persons who were indulged in State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 5 of 56 6 attacking each other, he do not know how the deceased and witness got injured. He was called by Luvkush at the place of incident and they were having some sort of intoxication there. The accused did not prefer to lead defence evidence.
10. I have heard arguments from Shri A.K. Gupta,Ld. APP for the State and Shri Kundan Kumar, Amicus Curie for accused and gone through the record.
11. As stated above, the prosecution has examined 24 witnesses to prove its case.
12. PW1 Laxman is the injured as well as the sole eye witness, hence he is most material witness. He testified that he was standing on the roof of his house on18.12.2011 and at about 7.45 pm he came down and saw accused Sohel grappled his father and was having a knife in his right hand. He had given knife blow to his father as blood was oozing from his father. He tried to catch hold accused but accused attacked him with knife and gave blow on his right thigh and his head. There was one more boy namely Luvkush with accused who tried to save his father by grappling the accused so that he could save his father with knife. But on seeing that accused had already stabbed his father, Luvkush ran from there. State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 6 of 56 7 Public persons gathered there and accused was apprehended and knife was snatched from him. Knife was handed over to Ct. Vijender as his mother informed to the police and PCR Van came there. His fufa Rajesh Gupta also reached there and his father was taken to SGM Hospital on his motorcycle. PCR Van took him to SGM Hospital. He further testified that in the hospital SI Kulbir prepared the sketch of knife ExPW1/A which he snatched from accused Sohel earlier and seized the knife after converting into a pulunda. He further testified that his father expired on 2.1.12. He identified the knife as ExP1 and also identified the accused correctly. He also identified one sweater and one baniyan of accused as ExP2. He also identified his own dark brown colour pant as ExP3 and one baniyan ExP4 belonging to deceased.
In cross examination, he stated that he was working as temporary employee in NDPL and his duty hours starts from 10 am and expires after finishing of work as his job was of meter reader. He further stated that when he came down only his father, accused Sohel and Lavkush were there and public persons have come there after about half an hour and during this half hour he, his father and accused were having quarrel and he along with his father tried to State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 7 of 56 8 caught hold the accused Sohel. Accused had not received any injury till we were having quarrel and when accused tried to ran away he received injuries and then public persons apprehended him and gave him beatings. He further stated that his fufa came there only after arrival of the public persons. His mother had come down with him and he told her that, my father was injured and to make a call on 100 number and his mother made a call at 100 number from STD Booth near his house. He was not present when first knife was hit to his father, but 34 knife blows were given by the accused to his father in his presence, when he and his father were having quarrel with accused. He further stated that after snatching the knife he handed over the same to his mother and after taking the same his mother had gone to the staircase and sat there. He had taken the knife from his mother and given to Ct. Vijender Singh.
13. PW2 Sushil Gupta is a formal witness and deposed that 8 months ago, his bhabi i.e w/o deceased Suresh Chand Gupta made a telephone call at 100 number from his kiryana shop as he was also having a PCO in his shop.
14. PW3 Dharmender is also a formal witness. He stated that he was having SIM card no.9278815093 about one and half State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 8 of 56 9 year ago but said SIM has been lost.
15. PW4 Ct. Vijender is a material witness. He deposed that on 18.2.11, again said on 18.12.11, he was posted as constable in PS Sultanpuri and on that day he was on patrolling duty and when he reached at P1 block, Sultanpuri, he found there crowd. One person by the name of Sohel was apprehended by the public and public has given beatings to him. One Laxman was also found there who was having injuries and was having a knife with him and told that Sohel had caused injuries to him and his father. His father was already removed to hospital by his family members. In the mean while SI Kulbir along with Ct. Parkash reached there and he handed over knife and accused Sohel to SI Kulbir. The knife was seized by the SI Kuklbir after making the pulunda and seized vide memo ExPW1/B. In cross examination he stated that when he reached at the spot, there were about 4050 public persons. He found accused was sitting just besides the gate of the house on the road and public had already given beatings to him. He asked the public persons present there why accused had been apprehended by them on which Laxman told that accused has stabbed his father. He had State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 9 of 56 10 taken the knife from Laxman by bare hand. The other police officials reached there within 1015 minutes. Thus from his testimony it is proved that when he reached at spot accused Sohel injured Laxman (PW1) present there and he handed over the custody of accused to SI Kulbir Singh. It is also proved from his testimony that PW1 Laxman handed over knife to him which he handed over to PW SI Kulbir Singh.
16. PW5 Rajesh Gupta is also a material witness. He stated that on 18.12.11, he was present in his house and at about 8 pm, he was sitting outside his house, public already gathered there and he thought that public has gathered due to marriage in his neighbourhood on 17.12.11. He heard the noise of many persons and one person from the public had told to him that somebody had stabbed his brother in law (sala) who was residing in his neighbourhood around 10 houses from his house. There were many public persons gathered outside the house of his brother in law. From the window of said house, he saw that accused Sohel, his brother in law Suresh and his son Laxman were grappling each other. Accused Sohel was having knife in his hand and his brother in law and Laxman were trying to snatch the knife. He saw that State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 10 of 56 11 accused Sohel had given knife blow in the abdomen of his brother in law. Accused also gave blow to Laxman and he received injuries on his head and thigh. One person namely Raju @ Anand was inside the house and he asked Raju to snatch the knife from the accused. On seeing this he become apprehensive and made a call on phone no.5472410 of PS Sultanpuri from mobile phone of a public person. Raju @ Anand and Laxman managed to apprehend the accused and snatch the knife before the arrival of the police i.e Ct. Vijender. Laxman gave the knife to his mother. When Ct. Vijender came knife was handed over to Ct. Vijender by the mother of Laxman and accused was also handed over to Ct. Vijender. He took Suresh Chand to SGM Hospital on motorcycle of someone which was parked there. His brother in law expired on 2.1.12.
In cross examination, he stated that he had only one house in Delhi and his statement was recorded in PS on 2.1.12 and one constable had come to him and told to come in PS on that day. When he took the injured to hospital on motorcycle same was driven by some other person and his brother in law was sitting in between and he was sitting behind him. He do not know the name of person who was driving the motorcycle. He further stated that his State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 11 of 56 12 clothes were not having any blood stains at that time. He do not know whether said person had any blood stains on his clothes. Nothing has come out in his cross examination to discard his testimony.
17. PW6 W/Ct. Darshana is a formal witness and deposed that on 18.12.11 at about 7.55 pm she received information from phone no.9278815093 regarding the quarrel at P1/806, Sultanpuri and she recorded the information in computer and filled the PCR form.
18. PW7 Ct. Manoj Kumar is a formal witness and deposed that on 18.12.11 at about 7.56 pm he received information from phone no.9278815093 regarding the stabbed at P1/806, Sultanpuri. He recorded the said information in computer and filled the PCR form.
19. PW8 HC Devender Singh is a formal witness and deposed that he received rukka at about 11 pm and on his instructions FIR no.569/11 u/s 307 IPC and 25/27 Arms Act was registered. He also recorded DD no.49A. In cross examination he stated that it took about 35 minutes in registration of FIR.
20. PW9 Ct. Gyan Singh is a formal witness and took five State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 12 of 56 13 sealed parcels along with FSL form for depositing in FSL. He was not cross examined.
21. PW10 SI Kulvir Singh is the IO of the case and he deposed that on 18.12.11 he received DD no.49A and thereafter he along with Ct. Parkash reached at spot and there was crowd in the gali and Ct. Vijender met him there who already handed over the accused Sohel Ahmed. Ct. Vijender told him that accused was beaten by public and was saved by him. Ct. Vijender also told him that knife was handed over by Laxman who told that accused stabbed him and his father with that knife. He along with Ct. Parkash and accused reached at SGM Hospital where he found Suresh Chand admitted and under treatment. He recorded his statement. Laxman was also found admitted in hospital who identified the knife. He measured the knife and seized after preparing pulunda. He prepared rukka and sent Ct. Parkash for getting the FIR registered. Statement of Laxman was recorded. Accused was also got admitted in hospital and medically examined. Accused was interrogated and arrested vide memo ExPW1/C, his personal search was conducted vide ExPW10/C and he made disclosure statement ExPW10/D. On 24.12.11, he again reached State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 13 of 56 14 SGM Hospital for recording the supplementary statement ExPW10/D of Suresh Chand and on 2.1.12 received information from SGM Hospital that Suresh Chand has expired. Thereafter he along with Inspector K.P. Tomar reached SGM Hospital and inquest proceedings were conducted and after the postmortem dead body was handed over to the relatives. On 17.2.12 he along with SI Manohar Lal and IO reached at the spot and SI Manohar Lal took rough notes and measurements for preparing scaled site plan.
In cross examination he stated that he received DD no. 49A at 8 pm in PS. It took about 1012 minutes to reach at spot on his personal bike. There were about 7080 public persons and at that time he did not make any of them witness as accused was in injured condition. He tried to interrogate pubic witness but no one was found there. At that time he was not able to enter in the house and had not seized anything. Ct. Vijender only handed over him knife and accused. He further stated that spot had already been destroyed so he had not taken any photograph of the spot as many public persons present there. He recorded the statement of Laxman twice except the statement of identification of dead body. He further stated that Laxman had not told him in his statement that his mother State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 14 of 56 15 had made telephone call to PCR from a PCO situated in another gali at a distance of 500 mts. from the spot.
22. PW11 Dr. Brijesh Singh deposed that on 18.12.11 he examined Suresh Chand who was brought to the hospital with alleged history of physical assault by some sharp weapon. On examination he found: i. Incised wound 2 X 1 cm (depth could not be assessed as wound was very deep) over front of abdomen.
ii. Incised wound 2 X 1X 2 cm over lateral aspect of right thigh.
iii. Incised wound over right leg 2 X 1 X 0.5 cm. He prepared MLC ExPW11/A. He was not cross examined.
23. PW12 HC Govind Singh is the MHC(M) and a formal witness.
24. PW13 SI Manohar Lal is a formal witness who prepared scaled site plan ExPW13/A. In his cross examination he stated that he reached at the spot at about 3.30/4 pm on 17.2.12.
25. PW14 Ct. Prakash Chand has participated in the investigation along with SI Kulbir Singh and stated the same facts as State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 15 of 56 16 SI Kulbir Singh. In cross examination he stated that they reached at the spot at about 8.30/9.00 pm and remained for about 30 minutes. Many public persons were present there. IO had not recorded the statement of any public person in his presence. I cannot say what inquiry was conducted by SI Kulbir Singh as he was at a distance from SI Kulbir Singh. He was not aware about the proceedings conducted by SI Kulbir Singh at the spot. He had not signed any document at that time. The accused was under the influence of intoxication but he cannot say about the type of intoxicant. Accused was in sitting position. He did not inquire from accused as accused was not in position to say anything and voluntarily stated that accused was under heavy influence of intoxication.
26. PW15 Dr. Sandeep Sharma proved the finding ExPW15/A of Dr. Inderpreet Singh on MLC ExPW11/A i.e MLC of deceased Suresh Chand.
27. PW16 Ct. Anil Kumar is a formal witness and deposed that on 18.12.11 at about 7.57 pm he received information from one Sushil Gupta from phone no. 9873239044 that one person had been stabbed and has been caught at P1/806 Sultanpuri and said information was recorded in computer and he filled the PCR form State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 16 of 56 17 ExPW16/A. He was not cross examined.
28. PW17 HC Rajender Singh deposed that on 18/19.12.11 he received a call at 7.55 pm regarding quarrel at P1/806, Sultanpuri, he immediately rushed to spot where injured who was having number of knife wound was found and public persons apprehended one person who stabbed Laxman and having knife in their possession and his name was revealed as Sohel Ahmed. Accused and knife was given under custody of Ct. Vijender and they came to know that in the incident father of Laxman namely Suresh Chand was also received injury and was taken to hospital by pvt. person. Injured Laxman was removed to SGM Hospital.
In his cross examination, he stated that they remained at the spot for 57 minutes. He was not associated in the apprehension of accused. The incident had happened at 7.45 pm as per the details mentioned in the call received by them. They had not made any inquiry from public persons who apprehended accused.
29. PW18 Dr. Manoj Dhingra and PW19 Dr. Munish Wadhawan conducted the postmortem on the dead body of deceased and deposed same facts. They deposed on 02.01.2012, the dead body was brought by Ct. Bajrang Singh from PS Sultanpuri State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 17 of 56 18 with the alleged history of stabbing with knife on 18.12.2011 at about 7.45 pm and taken to SGM Hospital, where during treatment he expired on 02.01.2012 at about 12.45pm. They observed following external injuries:
a) Laprotomy wound 30cm long in midline of abdomen with intestine covered with yellowish foul smelling puss exposed.
b) Stitch wound partially healed 3cm in length on lateral aspect of right leg, 6cm above right ankle joint.
c) Stitch wound partially healed 3.2cm in length on lateral aspect of right thigh, 10cm below right anterior superior illiac spine.
d) Drainage wound oval in shape, 1cm in diameter on left side of abdomen.
They further deposed that caused of death in this case is speticemic shock, a net sequale of intra abdominal organ injuries. All injuries are ante mortem in nature. Time since death as per hospital record. The detailed PM Report is Ex.PW18/A. PW18 also given opinion regarding nature of injures on the MLC of accused ExPW15/C as simple in nature on encircled portion B. He also given opinion at point B on MLC ExPw15/B of PW1 Laxman and as simple and sharp. He also given opinion at point B on MLC ExPW11/A of Suresh Chand and opinion the nature State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 18 of 56 19 of injuries as simple and sharp.
30. PW19 also proved the death certificate of Suresh Chand in the handwriting of Dr. Saurabh Mittal and signed by him at point A on certificate Ex.PW19/A.
31. Both PW18 and PW19 in cross examination stated that manifestations of septicemia in the body were present at the external injuries mentioned above and along with internal organs of the body and injury no.1 on the PM Report also showed pus showing septicemic symptoms. Thus from the testimony of PW18 and 19 it is proved that deceased had died due to injuries caused by accused Sohel Ahmed.
32. PW20 Dr. Mahipal Singh deposed that on 18.12.2011, he examined Laxman s/o. Suresh Chand Gupta in the casualty ward of SGM Hospital, with the alleged history of physical assault with sharp object as told by the patient himself. After preliminary examination, he found following injuries: Incised wound over vertex of scalp 4cmX1cmX1cm. Incised wound over right thigh 2cmX2cmX1cm.
PW20 further deposed that after giving first aid, the patient was referred to Ortho Deptt. for further examination and management and proved the MLC as Ex.PW15/B. He had also State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 19 of 56 20 sealed the cloth of the patient and handed over to the IO. On 18.12.2011, he also examined Sohel Ahmad S/o. Jameel Ahmad in the casualty ward of SGM Hospital, with the alleged history of physical assault beating by public persons as told by the person who brought him in the hospital. After preliminary examination, he found following injuries:
1. Bruises all over the face.
2. Abrasion over left side of forehead.
3. Swelling and bruises over right hand and right forearm.
4. Swelling and abrasion over back.
After giving first aid, the patient was referred to Ortho and Surgical Deptt. for further examination and management and proved the MLC as Ex.PW15/C. He had also sealed the cloth of the patient i.e. blood stained white TShirt and blue colour jacket and handed over to the IO. He was not cross examined.
33. PW21 Dr.Vishnu Kumar Sharma deposed that on 18.12.11 one patient Suresh Chand was brought in the casualty ward at about 8.30pm and after preliminary examination he was referred to Ortho and Surgery Opinion. On examination found following injuries: State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 20 of 56 21
1. Incised wound of size 2X1X2cm over front of abdomen at infra umblical level in right paramedian area.
2. Incised wound of 2X1X2cm over lateral aspect of right thigh.
3. Incised wound of 2X1X5cm over right leg.
Patient was admitted in the Surgery Department. PW21 further deposed that patient was given primary treatment i.e. Nil by mouth, naso gastric intubation. The patient was expired during treatment on 02.01.2012 at 12.45pm due to septicemia and acute renal failure. He also proved the death summary Ex.PW21/A, prepared by Dr. Chitranjan.
In cross examination he denied the suggestion that patient had died due to negligence of the hospital staff or that the patient was not given properly and timely treatment. He also denied the suggestion that the patient had died as a consequence of injuries mentioned in the MLC.
34. PW22 Dr. Manoj Dhingra appreared in place of Dr. Sourabh Mittal and is not a material witness.
35. PW23 W/HC Rekha proved the DD no.32 A as ExPW23/A. She was not cross examined.
36. PW24 Inspector K.P. Tomar is the IO of the case. He State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 21 of 56 22 deposed that on 2.1.12 investigation of this case was handed over to him and after receiving the information that Suresh Chand had expired vide DD no.32A ExPW23/A he went to SGM Hospital where he prepared the inquest papers. Accordingly doctor conducted the postmortem at the SGM Hospital Mortuary. After postmortem dead body was handed over to the relatives of the deceased. He added Section 302 IPC in the case on the basis of postmortem, collected PCR form, obtained the opinion of the doctor regarding injuries of injured Laxman, obtained the postmortem report and scaled site plan.
37. It is argued by the Ld. APP for the State that from the statement of ExPW10/A of deceased Suresh Chand, which is recorded by PW10 SI Kulbir Singh it is proved that accused Sohel Ahmed had committed the murder of the deceased and also caused injuries to PW1 Laxman. He further argued that said statement ExPW10/A after the death of deceased Suresh Chand shall be treated as dying declaration and same is admissible in evidence u/s 32 of Indian Evidence Act. Ld. APP further argued that PW1 Laxman also testified that accused Sohel had stabbed him and his father and his testimony is also corroborated by other witnesses as State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 22 of 56 23 well as FSL report ExPX, as per which blood of Bgroup was found on the blood stained clothes of deceased and accused and injured Laxman. It is further argued by Ld. APP that in the knife also human blood was found. He further argued that testimony of PW1 is corroborated by PW5 and other witnesses therefore, in these circumstances, accused is liable to be convicted for offence u/s 302 IPC.
38. On the other hand Ld. Amicus Curie for accused has argued that accused has been falsely implicated in this case as he do not know what had happened as he was heavily drunk at the time of incident and was not even in a position to stand on his own and there was a crowd of public people who are attacking each other in which deceased Suresh Chand and his son Laxman might have caused injuries but accused has been falsely implicated in this case. Ld. Amicus Curie further argued that even if for the sake of argument, it is presumed that accused has caused injuries to Suresh Chand, even then from the evidence it is established that accused has no intention to commit the murder of Suresh Chand because they have no previous enmity. Hence at this stage offence u/s 304 IPC is made out against the accused.
State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 23 of 56 24
39. I have considered the argument and gone through the record. The accused has been charged for committing the murder of Suresh Chand u/s 302 IPC.
40. The case of the prosecution is based upon testimony of eye witness/ injured PW1 Laxman, PW5 Rajesh Gupta and also on the statement of deceased Suresh Chand ExPW10/A which was recorded when he was alive, and after his death has become dying declaration.
41. Dying declaration is admissible in evidence by virtue of Section 32 of Indian Evidence Act, despite same being hearsay. Section 32 of the Indian Evidence Act is reproduced as under :--
32.Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. --Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases.
(1) when it relates to cause of death. --
When the statement is made by a person as to State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 24 of 56 25 the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
42. Law of dying declaration is by now almost settled. In Vikas and Anrs. Vs State of Maharashtra Appeal (Crl.) 321/06, dated 25.01.2008, Indian Kanoonhttp..// indiankanoon. org/ doc/401547/ it is observed by Judges of Hon'ble Supreme Court that Clause (1) of Section 32 of the Act has been enacted by the Legislature advisedly as a matter of necessity as an exception to the general rule that hearsay evidence is no evidence and the evidence which cannot be tested by cross examination of a witness is not admissible in a Court. But the purpose of cross examination is to test the veracity of the statement made by a witness. The requirement of administering oath and crossexamination of a maker of a statement can be dispensed with considering the situation in which such statement is made, namely, at a time when the person making the statement is almost dying. A State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 25 of 56 26 man on the deathbed will not tell lies. It has been said that when a person is facing imminent death, when even a shadow of continuing in this word is practically over, every motive of falsehood is vanished. The mind is changed by most powerful ethical and moral considerations to speak truth and truth only. Great solemnity and sanctity, therefore, is attached to the words of a dying man. A person on the verge of permanent departure from his earthly world is not likely to indulge into falsehood or to concoct a case against an innocent person, because he is answerable to his Maker for his act. Moreover, if the dying declaration is excluded from admissibility of victim may be the only eyewitness of a serious crime. Exclusion of his statement will leave the court with no evidence whatsoever and a culprit may go unpunished causing miscarriage of justice"
43. In Khushal Rao V State of Bombay, 1958 SCR 552, also it is held that :--
a statement by a dying person as to cause of death has a special sanctity which should on first principles be respected if it is credible and trustworthy. There should not be any evidence to the effect that the statement was a result of tutoring, prompting or a product of imagination. Further the deceased should be in fit state of mind State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 26 of 56 27 to make the statement. This caution and care has to be taken as the deceased is not subjected to crossexamination. The court must be fully satisfied that the dying declaration impress a truth on it, after examining the circumstances in which the dying person had made the exparte statement. If on such examination, the court is satisfied that the declaration was the true version of the occurrence, conviction could be solely based on it.
44. Statement of a dying person is sufficient to convict a person without any corroboration, if court find the same trustworthy and reliable. In Atbir vs Govt of NCT of Delhi (2010) 9 SCC 1, the Supreme Court after analyzing number of previous judgments on dyingdeclaration, in Para 16 observed as under: "The analysis of the above decisions clearly shows that :--
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 27 of 56 28 law that the dying declaration cannot form the sole basis of conviction unless it is corroborated.
The rule requiring corroboration is merely a rule of prudence.
(v)Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi)A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii)Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii)Even if it is a brief statement, it is not to be discarded.
(ix)When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x)If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
45. In Surinder Kumar V State of Haryana, 2011 (12) Scale 172, the dying declaration was rejected because it did not State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 28 of 56 29 inspire confidence. There were infirmities and contradictions as to the occurrence.
46. In Paparambaka Rosamma and Others V State of A.P., (1999) 7 SCC 695 it has been observed that where conviction is solely based on the dying declaration, the Court has to consider carefully the dying declaration and the evidence of the witnesses supporting it. Care should be taken to ensure whether it is established that the dying declaration was genuine, true and free from doubts and was recorded when the injured was in a fit state of mind.
47. Now reverting back to the present case PW10 has testified that on receiving DD no.49A he along with Ct. Parkash reached at spot i.e P1/806, Sultanpuri where he came to know that injured has already been taken to hospital. Thereafter he reached at the hospital and recorded statement of injured Suresh Chand(since deceased) ExPW10/A which was signed by Suresh Chand at point A, he attested his signature and put his signature at point B. Nothing has come out in his cross examination which can discard his testimony that he has not recorded the statement of Suresh Chand when he was alive.
State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 29 of 56 30
48. PW 14 Ct. Parkash Chand also corroborated the testimony of PW10 as he admitted the suggestion that rucca was prepared on the statement of Suresh father of Laxman. He also testified that he took rucca to PS and got the FIR registered. PW8 HC Devender has testified that he received at 11.00pm rucca from Ct. Parkash which was sent by SI Kulbir and on the basis of the rucca FIR ExPW8/A has been registered. Time of registration of FIR is 23.05 hours. As per MLC of deceased Suresh Chand he was brought to the hospital at 8.30 pm therefore there is no delay in recording the FIR. There appear to be no reason why PW8 and PW 14 will deposed falsely hence, in these circumstances, I do not find any ground to disbelieve that the statement ExPW10/A is not given by victim Suresh Chand. Since in statement ExPW10/A Suresh Chand had categorically stated that accused had came to his house along with one Lavkush on 18.2.11 at about 7.45 pm and he asked from him Rs.100/ and stated that if he will not give then he will attack upon him but he refused to give him money therefore accused took out the knife from his pocket and attacked upon him on which Lavkush ran away. He stabbed on his stomach and right thigh, in the mean while his son also came there on hearing shouting from State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 30 of 56 31 upstairs and tried to apprehend the accused and also made call to the police when his son tried to apprehend the accused, accused also stabbed him. Thereafter he and his son managed to apprehend the accused and snatched the knife from the accused. In the mean while neighbours came and apprehended the accused. The dying declaration ExPW10/A is also corroborated with the MLC ExPW11/A, as per which accused had following injuries :
1. Incised wound 2 X 1 cm (depth could not be assessed as wound was very deep) over front of abdomen.
2. Incised wound 2 X 1X 2 cm over lateral aspect of right thigh.
3. Incised wound over right leg 2 X 1 X 0.5 cm.
49. In the postmortem report also the external injuries are mentioned : (1) Laprotomy wound 30cm long in midline of abdomen with intestine covered with yellowish foul smelling puss exposed.
(2) Stitch wound partially healed 3cm in length on lateral aspect of right leg, 6cm above right ankle joint.
(3) Stitch wound partially healed 3.2cm in length on lateral aspect of right thigh, 10cm below right anterior superior illiac spine.
(4) Drainage wound oval in shape, 1cm in diameter State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 31 of 56 32 on left side of abdomen.
50. Hence in these circumstances, I do not find any ground to disbelieve that Suresh Chand had not given any dying declaration ExPW10/A or that same was effect of tutoring or he was not in a position to give statement. He survived for almost 15 days, which dispel any suspicious that he was not in a position to give statement. PW10 SI Kulbir had no reason to record false statement of Suresh Chand. Hence Thus from the dying declaration ExPW10/A, it is proved beyond reasonable doubt that accused has stabbed the deceased Suresh Chand and PW1 Laxman.
51. Besides this PW1 Laxman had also categorically testified that on hearing the noise of his father he came down and saw accused Sohel grappled his father and was having a knife in his right hand. He had given knife blow to his father as blood was coming out. He tried to catch hold accused but accused attacked him with knife and gave blow on his right thigh and his head. There was one more boy namely Luvkush with accused who tried to save his father by grappling the accused so that he could save his father with knife. But on seeing that accused had already stabbed his father, Luvkush ran from there. Public persons gathered there and State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 32 of 56 33 accused was apprehended and knife was snatched from him. Police came and apprehended the accused. Nothing has come out of his cross examination which can discard his testimony. He has identified the knife by which injuries were caused to deceased as ExP1. His testimony is duly corroborated by his MLC ExPW15/B, from which it is evident that PW1 has received injuries i.e over his right thigh. Nothing has come out in his cross examination to discard his testimony. The testimony of injured witness is to be given utmost importance as his injury is the guarantee of his presence at the spot. He has no motive to falsely implicating the accused because he has no enmity with the accused. In his statement u/s 161 Cr. PC given to the police he has stated the same facts with no major contradictions. Moreover PW1 knows very well that if he implicate the accused then real culprit will go scot free which in my view he will not like. The testimony of PW1 is supported by his MLC ExPW15/B, as per which he has incised wound over thigh (2 cm X 2 cm X 1 cm) and incised wound over vertex of scalp (4 cm X 1 cm X 1 cm). As per opinion of Dr.Inderpreet Singh the injuries were caused by sharp weapon. Hence it is proved that he was stabbed with knife. State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 33 of 56 34 Hence in view of above facts and circumstances, I find his testimony consistent, cogent and trustworthy and same is sufficient to convict the accused. From his testimony it is proved that accused stabbed his father Suresh Chand with knife ExP1 which caused his death and accused also caused injury to him by giving knife blow.
52. Further PW5 Rajesh Gupta also corroborated the testimony of PW5. He had testified that on 18.12.11, some body from the public person told him that Rajesh bhai tum yahan bethe ho tumhare sale ko kissi ne chaku maar diya hai. Thereafter he went to the house of his brother in law (sala) Suresh Chand (deceased) who was residing in the neighbourhood around 10 houses from his house. He saw many public persons gathered outside the house of his brother in law. He somehow managed to go near the house and from the window of said house, he saw that accused Sohel, his brother in law Suresh and his son Laxman were grappling each other. Accused Sohel was having knife in his hand and his brother in law and his son Laxman were trying to snatch the knife from him and accused Sohel gave knife blow in the abdomen of his brother in law and thereafter he made call to police from his phone no.5472410 and police station Sultanpuri from mobile phone of a public person. State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 34 of 56 35 Nothing has come out of his cross examination which can discard his testimony.
53. Further PW4 Ct. Vijender also corroborated the testimony of PW1 and PW5 that on 18.12.11 he was on patrolling duty and at about 8/8.30 pm when he reached at P1 block, Sultanpuri, he found crowd and one person namely Sohel i.e accused was beaten by public. One Laxman was also found having injuries and having a knife and he was having knife with him and told that Sohel had caused injuries to him and his father. He handed over the knife and accused to him. PW10 SI Kulbir along with PW14 Ct. Parkash reached there and he handed over him knife and accused Sohel. Hence he also established the presence of accused on the spot.
54. PW17 HC Rajender Singh has also corroborated the testimony of PW1, PW4 and PW5. He had testified that he was working I/C of PCR van and on receiving information he reached at the spot and found one injured having number of knife wound. Public persons had apprehended one person who has stabbed Laxman and his name was revealed as Sohel Ahmed and he was in custody of Beat Ct.Vijender. He took Laxman to hospital State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 35 of 56 36
55. PW10 SI Kulvir Singh, PW14 Ct. Parkash also testified that testimony when they reached at the spot on receiving DD no.49A, PW4 Ct. Vijender was present with accused Sohel Ahmed and he handed over knife and custody of accused Sohel to SI Kulbir. In their cross examination also nothing has come out which can discard their testimonies.
56. Besides this accused has not disputed his presence at spot in his statement 313 Cr. PC. On perusal of his MLC EXPW 15/ C it is evident that accused had also received injuries. He has swelling and bruises over right hand which prove that he has received this injury when deceased and PW1 tried to apprehend him.
57. There is scientific evidence in the form of FSL report which also corroborate the testimony of PW1. From the testimony of PW10 it is proved that doctor has handed over the aforesaid clothes of deceased, PW1 and of accused to him along with blood of deceased which he seized vide seizure memo ExPW10/E which is also corroborated from MLC of deceased ExPW11/A of accused ExPW15/B. From the testimony of PW12 HC Govind Singh it is proved that SI Kulvir Singh handed over to him four pulundas and he State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 36 of 56 37 made entry in this regard in register no.19 ExPW12/A. From the testimony of PW12 HC Govind (MHCM) and document ExPW12/A it is proved that SI Kulbir had deposited the clothes and blood of deceased with him. Further from the testimony of PW12 it is proved that the pulundas containing aforesaid clothes, blood and knife were sent to FSL on 22.2.12 vide RC ExPW12/D through Ct. Gyan Singh (PW9). Both PW9 and PW12 were not cross examined. Hence their testimonies remained unchallenged. Hence it is proved that clothes of deceased, accused and PW1 along with knife were deposited in the FSL.
58. The FSL report ExPX and EXPY proved that blood of 'B' group was found on the baniyan ExP4 of victim Suresh, trouser ExP3 of PW1 Laxman and Tshirt ExP2 of accused which corroborated the case of prosecution that the victim Suresh was stabbed and blood came out and clothes of victim Suresh, PW1 Laxman and accused got blood stains. As per FSL report, human blood was also found on the knife ExP1, though no blood group is mentioned, but it is not much material and proved that deceased and PW1 were stabbed with the same knife. Same is incriminating circumstances against the accused.
State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 37 of 56 38
59. Therefore, in view of the testimonies of aforesaid witnesses, I held that the prosecution has been able to prove beyond reasonable doubt that accused Sohel Ahmed had stabbed deceased Suresh Chand due to which he died. From the postmortem report ExPW15/A it is proved that deceased Suresh had died due to the injuries caused by accused and also injured PW1 Laxman causing him hurt.
60. The another argument of Ld. Amicus Curies that there was no previous enmity between the accused and deceased Suresh Chand and accused was under the influence of liquor therefore he was not knowing anything about his act and he has no intention to commit the murder of Suresh Chand (deceased). Hence at the best accused can be convicted for offence u/s 304 instead of u/s 302 IPC.
61. Section 299 IPC deals with culpable homicide. It reads as under :
299. Culpable Homicide : Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 38 of 56 39 homicide. Section 299 has following essentials:
1. Causing of death of a human being.
2. Such death must have been caused by doing an act
i) with the intention of causing death; or
ii) with the intention of causing such bodily injury as is likely to cause death; or
iii)with the knowledge that the doer is likely by such act to cause death.
62. Section 300 IPC deals with murder. It reads as under :
300. Murder : Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death; or 2ndly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 39 of 56 40 likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1....
Exception 2....
Exception 3....
Exception 4....
Exception 5....
63. In section 300 IPC, the definition of culpable homicide appears in an expanded form. Each of the four clauses requires that the act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done:
i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or
iii)with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not amounting to murder.
64. Section 302 IPC deals with punishment for murder. It reads as under : State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 40 of 56 41
302. Punishment for Murder : Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
65. In Laxminath V State of Chhattisgarh AIR 2009 (SC) 1383 Hon'ble Supreme Court has made distinction between Section 299 and 300 IPC as under: The academic distinction between 'murder and culpable homicide not amount to murder' has always vexed the Courts. The confusion is cause, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will he helpful in appreciating the points of distinction between the two offences".
Section 299 Section 300
A person commits culpable Subject to certain exceptions,
homicide, if the act by which culpable homicide is murder,
the death is caused is done if the act by which the death is
(a) with the intention of caused is done.
causing death
1) With the intention of causing death;
State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 41 of 56
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2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;
(b) with the intention of causing such bodily 3) With the intention of causing bodily injury injury as is likely to to any person, and the bodily injury cause death; intended to be inflicted is sufficient in the ordinary course of nature to cause death;
(c) With the knowledge 4) With the knowledge that the act is that .... the act is likely so imminently dangerous that it must to cause death. in all probability cause death, or such bodily injury as is likely to cause death.
9. "Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death", is not an essential requirements of clause (2). Only the intention causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim., is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 42 of 56 43 appended to Section 300.
Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of section 300 can be where the assailant causes death by a fistblow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of the particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special rality of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 43 of 56 44 Section 299 conveys the sense of probable as distinguished from a mere possibility. The words"bodily injury.... sufficient in the ordinary course of nature to cause death" result of the injury, having regard to the ordinary course of nature.
10. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of Kerala, (AIR 1966 SC 1874) is an apt illustration of this point.
66. In case State of Andhra Pradesh vs Rayavarapu Punnayya & Another, 1977 AIR 45, 1977 SCR (1) 601, Hon'ble Supreme Court observed as under : "Whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death, leads to the, second stage for, considering whether that act of the accused amounts to culpable homicide as defined in s.299. If the answer to this question is prima facie found State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 44 of 56 45 in the affirmative, the stage for considering the operation of s. 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in s. 300, if the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of s.304, depending, respectively, on whether the second or the third clause of s.299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in s.300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of s.304, Penal Code".
67. It was further observed as under : "In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of this first degree. This is the gravest form of State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 45 of 56 46 culpable homicide which is defined in s.300 as 'murder'. The second may be terms as 'culpable homicide of the second degree'. This is punishable st under the 1 part of s.304. Then, there is 'culpable homicide of the third degree.' this is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of s.304".
68. Now reverting back to the prosecution case, it is evident from the dying declaration of victim Suresh ExPW10/A and testimony of PW1 Laxman that accused had intentionally stabbed the deceased, though he may not have any motive to commit the murder of deceased, because there is no evidence that he has any previous enmity. But motive developed on the spot itself. Suresh Chand (deceased) had stated in his dying declaration that accused ask Rs.100 from him and stated that if he (Suresh) will not give the amount he will stabbed him and when victim refused he took out the knife and stabbed him. Accused came in the house of victim with knife which prove that he came to the house with pre planned thinking that if victim will refused he will kill him. He may be under the influence of liquor as claimed by the Ld.Amicus Curie though State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 46 of 56 47 there is no evidence in this regard, but it is not the case of accused that he was forced by some one to drink liquor so that any benefit could be given to him. Even otherwise he may have no motive to kill the Suresh (deceased). But it cannot be said that he had no intention to cause the death of deceased. He intentionally gave knife blow to deceased in his abdomen which is vital part of body with full force which is prove from testimony of PW11 Dr. Brijesh Singh that wound on abdomen was so deep that he could not assess its depth. PW 19 Dr. Manish Wadhawan that wound was 30 cm long in midline of abdomen with intestine hence act of accused was so dangerous and he knew that death could be caused by said act, therefore in these circumstances, in my opinion the case of the accused do not come within the ambit of Section 304 IPC but it is culpable homicide amounts to murder. Hence I convict the accused u/s 302 IPC for committing the murder of Suresh Chand and u/s 324 IPC for causing hurt to PW1 Laxman and u/s 27 Arms Act for using the knife for committing the aforesaid crime. However he is acquitted u/s 25 Arms act as sanction u/s 39 Arms Act is not filed by the prosecution.
Announced in open court (SANJEEV KUMAR)
Dt.25.07.13 ASJ01, NORTH, ROHINI, DELHI
State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 47 of 56
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IN THE COURT OF SHRI SANJEEV KUMAR: ADDL.SESSIONS JUDGE01: NORTH: ROHINI: DELHI SC No.28/12 FIR No.569/11 PS: Sultanpuri U/S 302/324 IPC & 25/27/59 Arms Act State VERSUS Sohel Ahmed S/O Jameel Ahmad, R/O P2/527, Sultanpuri, Delhi. ... Convict ORDER ON SENTENCE 05.08.13 Present: Shri A.K. Gupta, ld. Addl. PP for the State.
Convict Sohel Ahmed in JC with Shri Kundan Kumar, Amicus Curie for accused.
Argument heard.
1. The Convict has been convicted for offence u/s. 302 IPC.
2. It is submitted by the Ld. Amicus Curie for convict Sohel Ahmed that he is aged about 20 years and having old aged State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 48 of 56 49 mother and one brother. Ld. Amicus Curie stated that he is not the previous convict and his antecedents are clear. Therefore he prayed that lenient view be taken.
3. On the other hand, ld. Addl. PP for the State submits that convict had committed the murder of victim Suresh Chand after stabbing him in his abdomen and right thigh and also gave knife blow to PW1 Laxman when he tried to save his father. Thus the convict has taken a valuable life hence, he should be given maximum sentence, as prescribed under the statute.
4. I have heard the argument and gone through the record.
5. The protection of society by stamping out criminal activity is essential function of State. It can be achieved by imposing appropriate sentence. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the convict, the nature of weapons used and all other attending circumstances are relevant facts for imposing appropriate sentence. Any definite formula relating to imposition of sentence cannot be laid down. The object of sentencing is that the offenders does not go State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 49 of 56 50 unpunished and the justice be done to the victim of crime and the society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. The measure punishment in a given case must depend upon the gravity of the crime; the conduct of the offender and the defence less and unprotected state of the victim. Imposition of appropriate punishment is the way adopted by the courts for responding the society's desire for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
6. It was held in the case of Siddarama & Ors. V State of Karnataka, (2007) 1 SCC (Cri) 72 : the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 50 of 56 51 be. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences relating to narcotic drugs or psychotropic substances which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
7. Section 302 IPC provides only two sentences i.e. Death Sentences and imprisonment for life and fine.
8. It is now settled by the Higher Courts that Death penalty is to be awarded in those cases, which falls within the category of "rarest of rare cases".
9. In case Bachan Singh V State of Punjab, AIR 1980 SC 898 it was observed that a real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 51 of 56 52 rare cases when the alternative option is unquestionably foreclosed.
10. In case Machhi Singh V State of Punjab, AIR 1983 SC 957, the guidelines are laid down which are to be kept in view, considering the question whether the case belongs to the rarest of rare category. It was observed that the following questions may be asked and answered as a test to determine the 'rarest of the rare' case in which death sentence can be inflicted:--
a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
11. In case Machhi Singh, the guidelines were culled out which are to be applied to the facts of each individual case where the question of imposition of death sentence arises. The following preposition emerges from the Bachan Singh's case: i. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
ii. Before opting for the death penalty the State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 52 of 56 53 circumstances of the 'offender' also required to be taken into consideration along with the circumstances of the 'crime'.
iii. Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
iv.A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
11. In case Bablu @ Mubarak Hussain V State of Rajasthan, AIR 2007 SC 697, the Supreme Court observed as under :-
In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 53 of 56 54 death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:
i. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. ii. When the murder is committed for a motive which evinces total depravity and meanness; e.g murder by hired assassin for money or reward or a coldblooded murder for gains of a person vis avis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.
iii. When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
iv.When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
12. In this case, convict Sohel Ahmed had committed the State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 54 of 56 55 murder of victim Suresh Chand by causing injury to him by knife though victim Suresh Chand had no fault. The convict did not stop to this only but when PW1 Laxman tried to save his father, convict also gave knife blow to Laxman. The act of convict is quite grave, however, the act of accused does not come within the ambit of rarest of rare crime so that death sentence could be imposed.
13. Therefore, I sentenced the convict for Life Imprisonment for offence u/s 302 IPC and fine of Rs.20,000/, in default of payment of fine, the convict shall undergo further SI for six months.
14. Further I sentenced the convict three years RI for offence u/s 324 IPC for voluntarily causing hurt to PW1 Laxman and also imposed a fine of Rs.5000/ in default of fine, three months SI.
15. I also sentenced the convict for five years RI for offence u/s 27 Arms Act for using the knife which is an arm and also imposed fine of Rs.5000/ in default three months SI.
12. The case property is confiscated to the State. All the sentences shall run concurrently. Benefit of Section 428 Cr.P.C be given to the convict. Committal warrant be issued against the convict. A copy of the judgment and order on sentence be supplied State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 55 of 56 56 to the convict free of cost forthwith. The file be consigned to the record room.
13. The Amicus Curie is discharged from the case with thanks for his able assistance. The certificate of his fee as per High Court Rules be issued to him.
Announced in open court (SANJEEV KUMAR) Dt.05.08.13 ASJ01, NORTH, ROHINI, DELHI State V Sohel Ahmed SC No.28/12 FIR No.569/11 PS Sultanpuri Page no. 56 of 56