Delhi High Court
Mohd. Sharif vs State on 30 November, 2010
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No. 468/1999
% Reserved on: October 29, 2010
Decided on: 30th November, 2010
MOHD. SHARIF ..... Appellant
Through: Mr. Rajesh Mahajan, Advocate
versus
STATE ..... Respondent
Through: Mr. Manoj Ohri, APP for the State
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Not necessary
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MUKTA GUPTA, J.
1. This Appeal filed by Mohd. Sharif, the Appellant, challenges his conviction under Sections 304 IPC and sentence of Rigorous Imprisonment for seven years and a fine of `1,000/- and in default of payment of fine Simple Imprisonment for six months, awarded by the learned Additional Sessions Judge.
Crl. App. No.468/1999 Page 1 of 8
2. The case of the prosecution in brief is that on 19th September, 1991 Mohd. Sharif and his mother Manbari gave leg and fist blows to one Kamruddin resultantly causing his death. The FIR was lodged on the complaint of Suberati, the father of the deceased Kamruddin. Suberati was not examined during the trial since he had expired, however, the prosecution examined PW-1 Shaukat Ali, the neighbor and PW-3 Ms. Zehnab, the wife of the deceased. According to Ms. Zehnab the Appellant along with his mother gave leg and fist blows resulting in the death of Kamruddin. Even PW-1 states that he saw Kamruddin and the Appellant quarreling (fighting). The father of Kamruddin and Sabir intervened and tried to separate them. Kamruddin's father took Kamruddin with him and went out from that street.
3. Learned counsel for the Appellant contends that the statement of Ms. Zehnab is full of contradictions and significant improvements and thus the witness is not trust-worthy and no reliance can be placed on her testimony. Though the testimony of PW-3 Zehnab implicates the mother of the Appellant Manbari also but on the same evidence she has been acquitted by the learned Trial Court. Ms. Zehnab improves her testimony to the extent that even she introduces wooden weapons for beating and also implicates the daughter of the Appellant. No weapon was recovered hence her testimony cannot be believed. Moreover, Ms. Zehnab has deliberately introduced the story of Crl. App. No.468/1999 Page 2 of 8 illicit relations between the father of the deceased and Manbari thus introducing motive for the alleged incident. The learned Trial Court could not have truncatedly believed the testimony of PW-3. Learned counsel also relies on the testimony of PW-4 Dr. L.T. Ramani, who has opined that the cause of death was due to shock and hemorrhage caused/resulting from blunt injury on the kidney. The deceased died because he had a big stone in the kidney which caused the rupture resulting in the death. Learned counsel contends that even relying on the testimony of the witnesses this is a case of sudden quarrel by fist and leg blows which would be an offence of causing hurt simple or grievous punishable under Section 323 or 325 IPC. Learned counsel for the Appellant relies on the decisions rendered in Dev Raj @ Polar v. State Govt. of NCT of Delhi, 2010 [2] JCC 1174 and Om Singh @ OMI v. The State, Delhi Adm., 2009 [4] JCC 3194 and Chanda v. The State, 17 (1980) DLT 242.
4. Learned APP for the State on the other hand contends that on the fateful day three incidents took place. First was at the house of the deceased when he taking lunch and Manbari Devi came and fought with them. The second at the house of the accused where the deceased was called by Ms.Manbari and assaulted along with the Appellant. The third incident was also on the street which was also witnessed by PW-1. However, all three incidents were witnessed by the wife of the deceased PW-3 Ms.Zehnab. The opinion of the Crl. App. No.468/1999 Page 3 of 8 post mortem doctor is clear and the reason for the death is due to injury on the left kidney by blunt force.
5. I have heard learned counsel for the parties and perused the records. Though there are improvements in the statement of Ms. Zehnab but on the material aspects she is consistent and states about the leg and fist blows given by the Appellant at his house and also on the street whereafter the deceased died. This testimony of PW3 - Ms. Zenab is duly corroborated by PW1, who saw the Appellant quarrelling with the deceased in the street. Though this witness has turned partially hostile, however, it is well settled that the testimony of such a witness cannot be totally discarded.
6. The material issue which arises for consideration is in view of the injuries on the deceased and the opinion of the cause of death, whether it is a case of commission of offence falling under section 304 or 325 or 323 IPC. It would be appropriate at this stage to reproduce the relevant portion of the post mortem report of the deceased Kamruddin:-
"1. Linear scratch abrasion 3 cm. long on the medial end of right clevical.
2. Tiny abrasion 0.5 cm. x 0.5 cm. on the right elbow.
3. Two small abrasions of 0.5 cm. x 0.5 cm. each on the left knee. There was no other mark of violence or injury seen anywhere on the body.Crl. App. No.468/1999 Page 4 of 8
On internal examination, scalp, skull bones and brain was found to be normal; neck structures normal; lungs were pale; there was massive haematoma in the left perinephric tissues, spreading to the right perinephric tissues and posterior abdominal and pelvic wall; there was no free blood in the abdominal cavity. There was evidence of bruising on the peritoneal surface on the left side lumber region. Stomach contained 6 ounces of semi digested food; There was blood clot surrounding left kidney. A large irregular renal stone was found in the blood clot close to pelvis of the kidney. The medial and anterior surface of kidney showed a tear close to the pelvis through which a large stone had come out from the kidney. Bladder contained little urine mixed with blood.
OPINION Injuries were ante mortem caused by blunt force. Injury to the renal area was also ante mortem and caused by blunt force; death was due to shock and hemorrhage caused/resulting from blunt injury of kidney."
7. It would be thus evident from the testimony of PW-4 and his opinion that due to the blunt force impact the renal stone tore the left kidney resulting in death due to shock and hemorrhage. Knowledge about commission of a crime imports a certainty and not merely a probability and this can be judged from the nature of the act and the circumstances pertaining to the case. Death caused without intention or knowledge, as in the instant case, cannot amount to culpable homicide. Merely because death has been caused intention or knowledge on the part of the accused is not to be assumed. I thus find force in the contention of learned counsel for the Appellant that in the absence of Crl. App. No.468/1999 Page 5 of 8 knowledge to the Appellant that the deceased had a big renal stone, injuries by leg and fist blows cannot be said to fall within the ambit of commission of offence under Section 304 IPC.
8. In Om Singh (supra) the deceased suffered as many as 14 injuries by kicks and fist blows. The Division Bench of this Court held that the Appellant cannot be attributed with the knowledge that such physical beating given by them to the deceased with kicks and fist blows would result in unfortunate demise and the only inference which could be gathered was that the Appellants when started beating the deceased developed a common intention to cause grievous hurt as while brutally kicking and giving fist blows, they were supposed to have known that their collective acts would result in grievous injury to the deceased. The conviction was altered to one under Section 325/34 IPC.
9. In Dev Raj (supra) two fist blows directed one each towards the occipital and parietal region resulted in extravasations of the arteries which in turn caused hematoma. The injury was at the external surface of the brain immediately at the point where the membrane enwombing the brain touching the scalp. It was held that in a physical quarrel by fist and kicks it cannot be said that the accused intended to cause the death of the deceased or even that the accused had knowledge that their acts are likely to result in death much Crl. App. No.468/1999 Page 6 of 8 less that the accused had the knowledge that the injuries in all probability would cause the death of the deceased. No dangerous weapon had been used. Thus the offence committed by the Appellant therein was held to be of voluntarily causing grievous hurt.
10. Whether the fist and leg blows given by the accused amount to simple hurt or grievous hurt would depend on a number of factors. When the act done by the offender in the process of causing hurt is such as any person of ordinary prudence knows it likely to cause grievous hurt, he may be taken to have intended to cause grievous hurt or to have contemplated that grievous hurt was likely to occur. If the act is such that nothing more than simple hurt can reasonably be likely to ensue from it, although grievous hurt may unexpectedly have ensued, the offender can be convicted of simple hurt only. What the offender knew was likely to happen is a question of inference from the nature of the act committed by the offender, his conduct and the surrounding circumstances. The same would depend on a number of factors such as the number of blows inflicted, the part of the body where the blows are inflicted, force and impact by which they are inflicted.
11. Applying the principles laid down above I find that in the present case repeated blows were given to the deceased on different occasions firstly at the residence of the appellant and the secondly in the gali. Though the external Crl. App. No.468/1999 Page 7 of 8 injuries on the body of the deceased were on right clavicle, right elbow, left knee, however, he was given fist blows on the abdominal region also resulting in blunt force impact on the kidney which was torn because of the stone inside. The impact of the blow on the abdominal portion was so much that the appellant can be attributed the intention or the knowledge that the same was likely to cause grievous hurt. The appellant is thus liable to be convicted for offences punishable under section 325 IPC.
12. The nominal roll of the appellant does not show any other involvement or conviction in a criminal offence. Since the Appellant has already undergone a sentence for a period of two years less two days as per the nominal roll, ends of justice would be met if the sentence is modified to the period already undergone.
13. The appeal is disposed of by modifying the conviction to one under Section 325 IPC and the sentence for a period already undergone.
(MUKTA GUPTA) JUDGE NOVEMBER 30, 2010 mm Crl. App. No.468/1999 Page 8 of 8