Delhi District Court
The State vs Hasin Ahmed on 15 October, 2014
FIR No.01/2012
D.O.D 15.10.2014 P.S South Rohini
u/s 302 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 46/14
UID NO . : 02404R0088342012
FIR No :01/2012
P. S : South Rohini
u/s 302 IPC
The State versus Hasin Ahmed
S/O Abdul Rashid
R/o Footpath Kali Mata Mandir,
sector 3, Rohini Delhi .
Date of committal to session court : 02.04.2012
Date of argument : 30-09-2014
Date of order : 15-10-2014
JUDGMENT
1 Facts and circumstances giving rise to the present case, as per the story of the prosecution are that:
a) Smt Ganga Devi(PW2) and her son Sanjay(deceased) used to beg outside Kali Mata Mandir, Sector 3 Rohini, Delhi. Accused Hasin Ahmed also used to beg there. On 1.1.2012, a quarrel took place between accused Hasin Ahmed and Sanjay (deceased) over a blanket . It is alleged that accused Hasin Ahmed by holding hairs of Sanjay(deceased) , hit his head against the pavement forcibly and he continued doing the same till Sanjay SC No. 46/14 State vs Hasin Ahmed (Page 1 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC died.
b) It is the case of prosecution that Ram Brij (PW1) ,who was running a barber shop near Kali Mata Mandir , Smt Ganga Devi (PW2) mother of the deceased and Munni (PW3) witnessed the aforesaid incident. Ram Brij asked accused Hasin Ahmed not to do so but of no avail. Ram Brij (PW1) is shown to have called Ct. Shri Ram at the spot.
c) According to the case of prosecution on 1.1.2012, Constable Shri Ram (PW4) was posted at P.S South Rohini as constable and his duty, as beat constable, was outside Kali Mata Mandir and he was standing near the queue of devotees. On that day at about 10:45 a.m. , he heard noise of quarrel on the footpath between Mandir and outer ring road. In the meanwhile , one Ram Brij came to him and told him that one of the beggar is beating severely another beggar namely Sanjay on the road by pulling his hair. Constable Shri Ram reached at the spot and saw accused Hasin Ahmed hitting Sanjay(deceased) against the road by pulling his hair. Ct Shri Ram could save Sanjay from the clutches of accused Hasin Ahmed with great difficulty and he is shown to have informed the P.S South Rohini about the incident.
d) On receipt of said information , DD no.14/A was registered at P.S South Rohini and same was entrusted to Inspector Jai Prakash for investigation. Inspector Jai Prakash alongwith S.I Rohit and Const. Naresh, on receipt of said DD reached at the spot of incident found that a beggar was lying in a pool of blood and appears to be dead. They also found Constable Shri Ram present there, who had already apprehended accused Hasin Ahmed . Inspector Jai Prakash also met public witness Ram Birj and recorded his statement and on the basis of said statement present FIR was got registered. Crime team was also called at the spot . Crime team alongwith photographer reached there. Spot was inspected and SC No. 46/14 State vs Hasin Ahmed (Page 2 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC photographs were taken by the photographer. Inspector Jai Prakash prepared the site plan at the instance of Ram Brij .
e) It is further case of prosecution that Inspector Jai Prakash lifted the blood, blood stained earth and earth in three separate plastic containers and sealed with the seal of JP and seized the same. He also lifted a blood stained stone which was lying nearby and it was converted into parcel with the help of white cloth and was sealed and seized . Dead body of deceased was sent to the BSA hospital for postmortem,where Dr. J V Kiran conducted the postmortem on the body of deceased. Accused Hasin Ahmad was arrested and his personal search was conducted. His disclosure statement was also recorded.
f) On completion of investigation, accused Hasin Ahmed was chargesheeted for the offence u/s 302 IPC.
l) Vide order dated 29.03.2012, Ld MM took the cognizance of the offence and subsequently, since the offence u/s 302 IPC was exclusively triable by the court of sessions, therefore vide order dated 02.04.2012, case was committed to the court of sessions.
2 Vide order dated 11.05.2012, ld predecessor of this court decided the charge and accused was charged for the offence u/s 302 IPC to which he pleaded not guilty and claimed to be tried.
3 In order to prove its case, prosecution has
examined as many as thirteen witnesses. Here it
SC No. 46/14 State vs Hasin Ahmed (Page 3 of 54 )
FIR No.01/2012
D.O.D 15.10.2014 P.S South Rohini
u/s 302 IPC
would be appropriate to discuss, in brief, the
testimonies of prosecution witnesses which have come on record .
4 Public witnesses examined by the prosecution are being detailed as under:
i) PW1 Ram Brij :- He is the eye witness to the incident and maker of FIR.
He deposed that on 1.1.2012 , at about 10:45 am , he was present at his shop situated near Kali Mandir Temple and on hearing noise he reached near the spot and saw accused quarreling with deceased Sanjay on the issue of blanket. Accused was holding the hairs of deceased and he was hitting the head of deceased on the pavement forcibly. He asked the accused not to do so, but of no avail. He called Ct Shri Ram (PW4) at the spot . In the meantime , deceased Sanjay was already in pool of blood and was already dead.
ii) PW2 Smt Ganga Devi : She is mother of the deceased Sanjay and another eye witness to the incident. She deposed that she along with her son Sanjay used to beg at the Kali Mata Mandir, Delhi. On 1.1.2012, she and her son Sanjay (deceased) were begging . Accused hit the head of her son by holding his hairs on the pavement and he continued doing the same till he dead. She further deposed that accused was quarreling with her son on the issue of blanket and accused did not stop hitting her son's head on the pavement despite their efforts to stop him. Barber Ram Brij Called the constable from the temple . In the meantime, her son had expired and he was in pool of blood. Police officials reached there and her statement was recorded.
Iii) PW3 Munni : She deposed that on the day of new year she heard some noise coming from the footpath. She went there and saw that accused Hasin SC No. 46/14 State vs Hasin Ahmed (Page 4 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC Ahmed and deceased Sanjay are quarrelling on the point of snatching blanket. Accused had pushed Sanjay due to which Sanjay fell down on the floor and accused Hasin Ahmed thereafter, pelted stones on the head of Sanjay as a result of which blood started coming out from the head of Sanjay. PW3 was cross examined by ld APP for state on certain points and during her cross examination by ld APP , she admitted that deceased Sanjay fell down on the ground and accused was hitting his head against the floor by pulling his hairs and that they had tried to stop accused from doing so but he did not listen to them and kept on hitting the head of Sanjay on the floor forcefully.
5 Following police officials were examined as prosecution witnesses:-
i) PW4 Ct. Shri Ram :- He was posted at P.S South Rohini as constable and on 1.1.2012 his duty was as beat constable outside Kali Mata Mandir and he was standing near the queue of devotees outside the Mandir. On that day at about 10:45 a.m , he heard noise of quarrelling on the footpath between Mandir and outer ring road. In the meanwhile, Ram Brij(PW1) came to him and told him that one of the beggar Hasin Ahmed is beating severely another beggar namely Sanjay on the road by pulling his hair. PW4 Shri Ram reached at the spot saw that accused Hasin Ahmed hitting Sanjay(deceased) on the road by pulling his hair. PW4 further deposed that he could save Sanjay from the clutches of the accused with great difficulty. He also noticed that Sanjay (deceased) was lying in a pool of blood due to the injuries caused by accused Hasin Ahmed and there were tiles on the footpath and there was blood on those tiles . He gave the information to the P.S South Rohini about the incident.
ii) PW5 Ct Sandeep : He was working as photographer in crime team . On 1.1.2012, he along with crime team staff reached the place of occurrence where SC No. 46/14 State vs Hasin Ahmed (Page 5 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC a dead body was lying in a pool of blood and at the instance of IO and crime team in charge , he took the photographs ExPW2/X1 to PW2/X6 and their negatives are ExPW5/X1 to PW5/X6.
iii) PW6 Inspector Anil Kumar : He was posted as crime team in charge , outer Distt. during relevant time. On 1.1.2012, he along with Const. Sandeep(PW5) reached at the spot and found one dead body . He inspected the spot and got the spot photographed by Const. Sandeep(PW5) . He prepared report ExPW6/A and handed over the same to the IO.
iv) PW7 Ct. Naresh : He is the witness who was with IO during investigation.
v) PW8 HC Ashwani Kumar : He is the duty officer who proved the registration of DD no.14 A ExPW7/A, registration of FIR ExPW8/A, endorsement on the rukka ExPW8/B and certificate u/s 65 B Evidence Act ExPW8/E.
vi) PW9 Inspector Manohar Lal : He is the witness who on 26.3.2012 at the request of the IO , inspected the spot and prepared rough notes and thereafter on the basis of same, prepared scaled site plan ExPW9/A .
vii) PW10 S.I Rohit : This witness was also with IO during investigation and has deposed on the lines of IO.
viii) PW11 HC Virender Singh : He is the witness who was posted as MHC(M) P.S South Rohini during relevant time and case properties and parcels were deposited with him.
ix) PW12 Ct. Dhuni Lal : He is formal witness who had dropped copies of FIR SC No. 46/14 State vs Hasin Ahmed (Page 6 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC at the residence of Ld Magistrate, residence of then DCP and Joint CP .
x) PW13 Inspector Jai Prakash : He is the IO of the present case who has carried out the investigation. He deposed that on 1.1.2012, he along with S.I Rohit(PW10) and Const. Naresh(PW7), on receipt of DD no. 14 A ExPW7/A, reached at the spot of incident i.e Footpath , Kali Mata Mandir , outer ring road opposite Manglam Paradise and found huge crowd collected there . He also noticed that a beggar was lying in a pool of blood and appears to be dead. Constable Shri Ram(PW4) was also present there , who had already apprehended accused Hasin Ahmed. He also met public witness Ram Birj(PW1) and recorded his statement ExPW1/A and prepared rukka and got registered the FIR through S.I Rohit. He further deposed that he called crime team at the spot . Crime team along with photographer reached at the spot. Constable Sandeep (PW5) took the photographs and Inspector Anil Kumar (PW6), Incharge Crime Team inspected the spot and prepared report ExPW6/A. PW13 further deposed that he prepared site plan ExPW13/A at the instance of Ram Brij(PW1) . He lifted the blood, blood stained earth and earth in three separate plastic containers and same were sealed with the seal of JP and seized vide seizure memo ExPW10/A , ExPW10/B and ExPW10/C respectively . He also lifted a blood stained stone which was lying nearby and same was converted into parcel with the help of white cloth and was sealed with the seal of JP and seized vide seizure memo ExPW10/D . Dead body of deceased was sent to the BSA hospital for postmortem. Accused Hasin Ahmed was arrested vide arrest memo ExPW10/E and his personal search was conducted vide memo ExPW10/F. disclosure statement ExPW10/G of accused Hasin Ahmed was recorded . after completion of investigation, he is shown to have filed charge sheet before the court.
SC No. 46/14 State vs Hasin Ahmed (Page 7 of 54 )
FIR No.01/2012
D.O.D 15.10.2014 P.S South Rohini
u/s 302 IPC
6 Here it is pertinent to note that accused did
not dispute the PM report, subsequent opinion and FSL results and same were given Ex ADV1, Ex ADV2, Ex ADV3 and Ex ADV4.
7 Thereafter prosecution evidence was closed and statement of accused u/s 313 Cr. PC was recorded. During the statement u/s 313 CrPC , accused denied the allegations. He opted to lead evidence in his defence and has examined Dr. Rajesh Kumar, Associate Professor Psychiatry , IHBAS as DW1 .
8 By examining DW1, accused has tried to bring on record that at the time when the offence was committed, he was suffering from Paranoid Schizophrenia.
9 During the argument , Ld cl for the accused submitted that in the present case from the record it is evident that accused was suffering from Paranoid Schizophrenia, which is a severe mental disease. He SC No. 46/14 State vs Hasin Ahmed (Page 8 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC has taken to me the testimonies of prosecution witnesses and contended that accused during the relevant time used to throw stones towards the public and he was being called 'Pagal'. By drawing my attention towards the orders of this court dated 03.07.2012 and 14.09.2012, Ld Cl submitted that accused was examined by the Medical Board of IHBAS and accused was diagnosed as a case of Paranoid Schizophrenia and consequently , was declared not to fit to stand trial. That being so, accused is protected by section 84 IPC.
10 Ld cl further argued that if this court is of the opinion that present case is not covered by section 84 IPC then he would urge that the case of accused would come under section 304 Part I IPC and not for the offence of murder under section 302 IPC as the act of accused was not planned and incident took place on the issue of one blanket only . In support of his argument, he has placed reliance on the following case laws:-
1. Vidhya Devi v. State of Rajasthan, 2004 CRI. L. J. 2332.
SC No. 46/14 State vs Hasin Ahmed (Page 9 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC
2. Shrikant Anandrao Bhosale v. State of Maharashtra,AIR 2002 SC 3399
3. Dahyabhai Chhaganbhai Thakker v.
State of Gujrat, AIR 1964 SC 1563
4. Jagtar Singh @ Jagga @ Ganja v. State of Delhi, 190(2012)DLT445
5.Suresh Sitaram Surve v. State of Maharashtra,2003 I AD(Cr) SC 21 11 Per contra, Ld Adll PP for the state contended that in the given facts and circumstances of the case no benefit under section 84 IPC can be given to the accused as there is nothing on record to show that at the time when offence was committed, accused was suffering from Paranoid Schizophrenia.
He further submitted that as per section 105Evidence Act , burden was upon the accused to prove the same but he has failed to discharge the same. Ld Adll PP further submitted that there is direct evidence to show that accused has committed the murder of Sanjay and prosecution has proved its case beyond reasonable doubt.
12 I have heard the Ld Addl. P P for the state and the ld Amicus curie for the accused . I have also perused the record very carefully.
SC No. 46/14 State vs Hasin Ahmed (Page 10 of 54 )
FIR No.01/2012
D.O.D 15.10.2014 P.S South Rohini
u/s 302 IPC
Death of Sanjay was homicidal in nature 13 The autopsy on the body of the deceased Sanjay was conducted by Doctor J.V Kiran Kumar . The PM report is ExADV1(admitted vide statement dated 3.7.2014) . According to PM Report following injuries on the body of deceased were noticed:-
External injuries :
1. Lacerated wound 1 cm X0.5 cm X scalp layers deep was present on inner aspect of left frontal region scalp placed 13 cm behind the middle of left eye brow.
2. Lacerated wound 2 cm X 1 cm X scalp layers deep was present on inner aspect of left parietal of scalp placed 17 cm behind the middle of left eyebrow.
3. Lacerated wound 1 cmX0.5cmX scalp layers deep was present on left temporal region of scalp placed 7 cm above and behind the left ear.
4) Lacerated wound 2 cm X 0.5 cm X bone deep was present on middle of occipital region of scalp.
5) Multiple abrasions over an area 6 cm X 4 cm present on inner aspect of left side of fore head.
6) Contusion reddish 3 cm X 2 cm present on right side of forehead placed 2 cm above middle of right eyebrow.
7) Contusion 4 cm X 3 cm present involving the upper part of pinna of right ear.
8) Abrasion 1 cm X 1 cm present on right nostril.
9) Abrasion 2 cm X 1 cm present on midline of front of chin placed 1 cm below the middle of lower lip.
SC No. 46/14 State vs Hasin Ahmed (Page 11 of 54 )
FIR No.01/2012
D.O.D 15.10.2014 P.S South Rohini
u/s 302 IPC
10) Avulsed laceration 3 cm X 1 cm X subcutaneous deep
present involving the back of thumb of right hand.
On Internal examination of Head Extravasation of blood was present over left frontal region, left temporal region, right temporal region and middle occipital region on reflection of scalp. Fracture involving base of skull extending from front aspect of left middle cranial fossa, across the body of sphenoid bone and involving the posterior aspect of right middle cranial fossa. Subdural hemorrhage was present over both cerebral hemispheres. Patchy subarachnoid hemorrhages were present over the brain . Contusions were present over the convexity of left frontal lobe, posterior aspect of convexity of right temporal lobe, whole base of left temporal lobe and posterior aspect of base of right temporal lobe. Petechial hemorrhages were present in the internal capsule on the left side.
14 As per PM report EXADV1, Doctor has opined that "the cause of death is craniocerebral consequent to blunt force trauma to the head. All injuries are antemortem, fresh in duration caused in the manner alleged in the history i.e by banging of head against a hard surface. The subsequent opinion given by Doctor J. V. Kiran Kumar is ExADV2 (admitted vide statement dated 03.07.2014. As per subsequent opinion the head injury mentioned in the PM report is sufficient to cause death in the SC No. 46/14 State vs Hasin Ahmed (Page 12 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC ordinary course of nature.
15 It is not the case of the accused that deceased Sanjay had not suffered aforesaid injuries. Although during the cross examination of material public witnesses suggestion was put that Sanjay was killed due to the motor vehicular accident but except this suggestion nothing has been brought on record in this regard by the accused. Whereas prosecution has been able to prove beyond reasonable doubt that deceased suffered homicidal death and the injuries caused on the person of Sanjay (deceased) were sufficient to cause death in ordinary course of nature. Accused has not disputed the postmortem report ExAdv1 and subsequent opinion ExADV2. Accepting the medical evidence, it is clear that Sanjay suffered a homicidal death on 01.01.2012.
Whether accused Hasin Ahmed had committed the murder of Sanjay?
16 Accused Hasin Ahmed is facing trial on the allegations that on 1.1.2012, he committed the SC No. 46/14 State vs Hasin Ahmed (Page 13 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC murder of fellow beggar namely Sanjay. PW1 Ram Brij is one of the eye witnesses who had seen the accused Hasin Ahmed killing Sanjay. The testimony of PW1 is the main platform upon which the case of the prosecution rests. His examination-in-chief is not so lengthy , therefore, same is being reproduced as follows:
" I am a barber by profession and having my sop near Kali Mandir Temple. On 1.1.2012, at about 10:45 am, I was present at my shop. I heard noise coming from the side of pavement. On hearing the noise, I reached near the spot and saw accused Hasin, present today in the court (correctly identified), was quarreling with Sanjay (deceased). Accused and deceased both were beggars by profession and were quarreling on the issue of blanket. The accused was holding the hairs of deceased and he was hitting the head of deceased on the pavement forcibly. I asked the accused not do so, but of no avail. I called Ct. Shri Ram at the spot by going there. In the meantime, the deceased was already in pool of blood and was already dead. Ct. Shri Ram had given a call at police station. SHO came at the spot. SHO recorded my statement which bears my thumb impression. My statement is now ExPW1/A bears my thumb impression at point A. I had shown the place where the occurrence had taken place to the IO..."
17 During his cross examination, PW1 replied that he is working as barber near Kali Mata Mandir for last 10-12 years and deceased Sanjay and accused Hasin Ahmed were known to him for about 6-7 months prior to the incident. He denied the suggestion that accused used to behave like a mad SC No. 46/14 State vs Hasin Ahmed (Page 14 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC person and he did not used to talk properly to anyone. He also denied the suggestion that accused used to throw stones against the wall. PW1 replied that police officials have lifted stone ExP-1 from the spot and the deceased was not his relative. He has also denied the suggestion that his thumb impression was obtained on blank papers and he has not seen the incident.
18 The testimony of PW1 has gone unrebutted and unchallenged on following material points:-
a) That PW1 was working as a barber in a shop near Kali Mata Mandir.
b) He reached near the spot and had seen
accused Hasin Ahmed quarreling with
deceased Sanjay on the issue of blanket and then accused smashing(thrashing) the head of the deceased by holding his hairs against the pavement forcibly.
c) He called Constable Shri Ram (PW4) at the spot and constable Shri Ram made a call to the police.
d) PW1 made a statement ExPW1/A on the basis of which present FIR was registered.
SC No. 46/14 State vs Hasin Ahmed (Page 15 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC 19 The testimony of PW1 finds support and corroboration from other witnesses. PW2 Smt Ganga Devi is the mother of the deceased Sanjay. She deposed that she along with her son Sanjay used to beg at the Kali Mata Mandir, Delhi. On 1.1.2012, she and her son Sanjay (deceased) were begging . Accused hit the head of her son by holding his hairs against the pavement and he continued doing the same till her son dead. She further deposed that accused was quarreling with her son on the issue of blanket and accused did not stop hitting her son's head on the pavement despite their efforts to stop him. Barber Ram Brij (PW1) called the constable from the temple . In the meantime, her son had expired and he was in pool of blood. Police officials reached there and her statement was recorded.
20 PW2 was also cross examined by the ld Amicus Curiae for the accused . However, her testimony on the aforesaid points has gone unchanged and nothing could be extracted or elicited SC No. 46/14 State vs Hasin Ahmed (Page 16 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC from her mouth which could be sufficient to disbelieve her version. Even during her cross examination, she replied that accused was not known to her prior to the incident and at the time of the incident both the legs of the accused were amputated. She further replied that PW1 Ram Brij is having a barber shop near spot. She tried to save her son from the accused. She denied the suggestion that her son Sanjay was killed due to some vehicular accident on the road.
21 PW3 Munni is another public witness who used to beg outside Kali Mata Mandir. She deposed that on the day of new year she heard some noise coming from the footpath. She went there and saw that a quarrel was taking place between accused Hasin and deceased Sanjay on the point of snatching blanket. Accused had pushed Sanjay due to which Sanjay fell down on the floor and accused Hasin thereafter pelted stones on the head of Sanjay as a result of which blood started coming out from the head of Sanjay. PW3 was cross examined by ld APP for state on certain points and during her cross SC No. 46/14 State vs Hasin Ahmed (Page 17 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC examination by ld APP , she supported the case of the prosecution while admitting that deceased Sanjay fell down on the ground and accused was hitting Sanjay on the floor by pulling his hairs and that they had tried to stop accused from doing so but he did not listen to them and kept on hitting the head of Sanjay on the floor forcefully.
22 PW3 was also put to cross examination by ld Amicus Curiae. During her cross examination, she admitted that accused Hasin is unable to move as he is not having both the legs but stated that accused was in possession of artificial legs and he used to do all the routine work by putting on artificial legs. She admitted that other person used to call the accused 'Pagal' as his mind is not working properly and at the time when the present incident took place, the accused Hasin was not in his fit state of mind. The mother of the deceased Sanjay was available at the temple itself at patri. While replying to a leading question put by ld APP for the state, PW3 stated that at the time when the incident took place , the SC No. 46/14 State vs Hasin Ahmed (Page 18 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC accused was in proper /fit state of mind.
23 PW1 Ram Brij has categorically stated that accused was holding hairs of the deceased Sanjay and he was hitting the head of Sanjay against the pavement forcibly. He asked the accused not to do so but of no avail. Then he called Ct. Shri Ram (PW4). Ct. Shri Ram has appeared in the witness box as PW4 and deposed that he was posted at P.S South Rohini as constable and on 1.1.2012 his duty was as beat constable outside Kali Mata Mandir and he was standing near the queue of devotees outside the Mandir. On that day at about 10:45 a.m , he heard noise which was regarding quarrel on the footpath between Mandir and outer ring road. In the meanwhile , Ram Brij(PW1) came to him and told him that one of the beggar accused Hasin is beating severely another beggar namely Sanjay on the road by pulling his hair. PW4 Shri Ram reached at the spot and found that accused Hasin Ahmed hitting Sanjay(deceased) on the road by pulling his hair. PW4 further deposed that he could save Sanjay from the clutches of the accused with great difficulty. He SC No. 46/14 State vs Hasin Ahmed (Page 19 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC also noticed that Sanjay (deceased) was lying in a pool of blood due to the injuries caused by accused Hasin and there were tiles on the footpath and there was blood on those tiles . He informed the P.S South Rohini and SHO about the incident. SHO Inspector Jai Prakash reached at the spot. Crime team was called at the spot and crime team inspected the site. He further deposed that he had already apprehended accused Hasin at that time and he handed over the custody of accused Hasin to SHO.
24 Even during cross examination, PW4 replied that he used to see accused almost every day and he also used to talk to accused. He denied the suggestion that accused was not in a fit state of mind at the time of alleged occurrence. He further denied that deceased Sanjay died in a motor accident.
25 From the testimony of PW1, PW2, PW3 and PW4, following circumstances stands established:
1 Accused and deceased Sanjay used to beg SC No. 46/14 State vs Hasin Ahmed (Page 20 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC outside Kali Mata Mandir , Sector 3, Rohini , Delhi.
2 There was a quarrel between deceased Sanjay and accused Hasin Ahmed over a blanket and accused hit the head of deceased Sanjay against the pavement forcefully by holding his hair .
3 PW1 Ram Brij was running a barber shop near the Kali Mata Mandir and he is one of the eye witness to the incident.
4 Constable Shri Ram (Pw4) was on duty on the day of incident at Kali Mata Mandir and he was called by Ram Brij(PW1) and he has also witnessed the incident.
5 PW2 Ganga Devi has also witnessed the incident of murder of deceased Sanjay which was committed by accused Hasin Ahmad.
26 Only on the basis of aforesaid testimonies there will be no difficulty in holding that accused Hasin Ahmad has committed the murder of Sanjay in the morning of 1.1.2012.
27 PW6 Insp. Anil Kumar was posted as incharge crime team , outer district . He was called SC No. 46/14 State vs Hasin Ahmed (Page 21 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC by the IO at the spot. He deposed that he along with constable Sandeep (PW5) reached at the spot and he inspected the spot and prepared report ExPW6/A . The said report has not been disputed. As per the report ExPW6/A, the place of occurrence has been shown near Kali Mata Mandir opposite Manglam Paradise on footpath. The detail of the deceased Sanjay have been mentioned. It has also reference about the quarrel between two beggars and the stone.
28 Constable Sandeep(PW5) who was with the crime team took photographs ExPW2/X1 to PW2/X6 and he also proved the negatives of those photographs as ExPW5/X1 to ExPW5/X6. These photographs have also not been disputed during the cross examination of PW5 Constable Sandeep . The photographs indicate that it is a clear cut case of murder. One stone is noticeable from the photograph near the dead body of the deceased . Dead body is lying on footpath, which also supports the story of the prosecution that murder took place on the footpath and negates the plea of the accused SC No. 46/14 State vs Hasin Ahmed (Page 22 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC that deceased died due to motor vehicular accident on the road.
29 PW7 Constable Naresh , PW8 HC Ashwini Kumar , PW10 S.I Rohit and PW 11 HC Virender are police officials from P.S Rohini South who assisted the IO PW13 Insp. Jai Prakash during investigation. PW10 S.I Rohit was posted as S.I at P.S South Rohini and he is shown to have reached at the spot on receipt of DD no.14 A along with Inspector Jai Prakash (PW13). He deposed that at the spot they found that a beggar was lying in a pool of blood and appeared to be dead. Ct. Shriram was also present there who had apprehended accused Hasin. S.I.Rohit(PW10)stated that it was the accused who had murdered the deceased . He further deposed that Insp Jai Prakash(PW13) lifted the blood, blood stained earth and earth in three plastic containers separately and were sealed with the seal of JP and were seized vide seizure memo ExPW10/A and ExPW10/B. IO also lifted blood stained big stone which was lying near the spot and it was converted into parcel and sealed with the seal of JP and seized vide seizure memo SC No. 46/14 State vs Hasin Ahmed (Page 23 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC ExPW10/D. The dead body of the deceased was removed to the mortuary of BSA Hospital. FIR was got registered through him by the IO . Accused Hasin was arrested vide ExPW10/E and his personal search was conducted vide memo ExPW10/F and his disclosure statement ExPW10/G was also recorded. The stone/concrete slab in question which was lifted from the spot , was produced before the court and it was identified by the prosecution witnesses as ExP-1.
30 Above referred stone ExP-1 and blood stained earth control lifted from the spot was sent for FSL examination. As per the FSL results ExADV3 and ExADV4 blood was detected on aforesaid case properties and it was found matched with the blood group of deceased Sanjay which further corroborates the case of prosecution that murder took place at footpath outside the Kali Mata Mandir, from where above mentioned properties are shown to have been lifted.
31 In the light of my aforesaid discussion, it stands proved beyond reasonable doubt that accused SC No. 46/14 State vs Hasin Ahmed (Page 24 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC Hasin Ahmed has committed the murder of Sanjay. Now, it is to be seen whether the case of accused comes with in the ambit of section 84 IPC ?
32 One of the contention projected by Learned Counsel for the accused is that at the time of the alleged incident, the accused was suffering from "Paranoid Schizophrenia" and, hence, he is entitled to the benefit of exception under Section 84 of Indian Penal Code.
33 The defence of insanity is recognized in India by virtue of Section 84 of the Indian Penal Code which reads as under:
Section 84 : Nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
34 A bare reading of Section 84 IPC reveals that the mental status of the accused has to be considered at the time of the doing of the act complained of. Thus, it would be useless evidence to simply prove that the accused suffered from SC No. 46/14 State vs Hasin Ahmed (Page 25 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC schizophrenia or any other psychiatric or psychological disorder. The second facet which emerges from a bare reading of Section 84 IPC is the proof of the fact that by reason of unsoundness of mind, at the time of commission of the offending act, the offender was either incapable of knowing the nature of the act or was incapable of knowing that what he is doing is wrong or contrary to law.
35 It is apparent that there is a distinction between medical insanity and legal insanity. From a doctor's point of view a patient of schizophrenia would be treated as a mentally sick person. But for the purposes of Section 84 IPC such a person would escape being classified as a normal person and to be treated insane vis-à-vis the offence only on proof of the cognitive faculties being impaired at the relevant time i.e. at the time the crime was committed.
36 Now, cognitive faculties can be impaired due to a psychological reason or an imbalance directly affecting the brain. In the latter situation would be idiots and lunatics. If proved to be an idiot SC No. 46/14 State vs Hasin Ahmed (Page 26 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC or a lunatic, where the disability of the brain is permanent, no further proof of the mental condition at the relevant time would be needed to discharge the onus which law places on the defence . The problem arises where insanity is taken up as a defence and sought to be proved not with reference to the accused being a lunatic or an idiot but suffering from a psychiatric or a psychological disability.
37 To put it in laymen's language, idiocy and/or lunacy may be called permanent insanity and a psychiatric or psychological disability which may be called temporary insanity.
38 Historical evolution of the law pertaining to the defence of insanity at a criminal trial is usually traced by the legal fraternity to the celebrated decision reported as 1843 RR 59: 8ER 718 (HL) R v. Daniel Mc Naughten. The defence of insanity in said case was set up on the evidence that the accused suffered from an insane delusion that the Prime Minister Sir Robert Peel had injured him.
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Mistaking the deceased for Sir Robert Peel, the accused killed him by shooting him. The jury returned the verdict of not guilty on the ground of insanity. The question of law pertaining to insanity was referred to the House of Lords. Five questions were posed to the House of Lords, as enunciated below:
1. What is the law respecting alleged crimes committed by persons afflicted with insane delusion, in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?
2. What are the proper questions to be submitted to the jury, when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?
3. In what terms ought the question. to be left to the jury, as to the prisoner's state of mind at the time when the act was committed?
4. If a person under an insane delusion, as to existing facts, commits an offence in consequence thereof, is he thereby excused?
1. Can a medical man conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as SC No. 46/14 State vs Hasin Ahmed (Page 28 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act, that he was acting. contrary to law, or whether he was labouring under any and what delusion at the time
39 Lord Chief Justice Tindal expressed opinion upon the above said terms of reference as follows:
Opinion upon Question 1 ...In answer to which question, assuming that your Lordships' inquiries are confined to those persons who, labour under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law; by which expression we understand your Lordships to mean the law of the land....
Opinion upon Question 2 and 3 ...These two questions appear to us to be more conveniently answered together, we have to submit our opinion to be, that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on SC No. 46/14 State vs Hasin Ahmed (Page 29 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC these occasions has generally been, whether the accused at the time of doing the act knew the difference between, right and wrong: which mode, though rarely; if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put. generally and in the abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that everyone must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course therefore has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require....
Opinion on Question 4 ...The answer must of course depend on the nature of the delusion: but, making the same assumption as we did before, namely, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self- defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to SC No. 46/14 State vs Hasin Ahmed (Page 30 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC punishment....
Opinion on Question 5 ...In answer thereto, we state to your Lordships, that we think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right....
40 The law afore-noted has come to be known as the Mc Naughten's Principles. Pithily stated, a person labouring under a delusion or a psychological or a psychiatric ailment would not be entitled to be acquitted on the ground of insanity unless it is established that at the time when the crime was committed he was suffering the delusion, psychological or psychiatric condition and was incapable of knowing the nature of his act or that he was not knowing that what he was doing was wrong or contrary to law.
41 In this connection uncontrollable or
irresistible impulses have to be factored and
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distinction drawn with precision for the reason a person acting under an uncontrollable or irresistible impulse would not be entitled to the defence of insanity.
42 It would be virtually impossible to lead direct evidence of what was the exact mental condition of the accused at the time of the commission of the crime. Thus, law permits evidence to be led where from the trier of the facts can form an opinion regarding the mental status of the accused at the time when the crime was committed. Thus, evidence which can be led can be characterized as of 'inferential insanity'. This evidence, common sense tells us would be the immediately preceding and immediately succeeding conduct of the accused as also the contemporaneous conduct of the accused.
43 Thus, with reference to the past medical evidence or the medical history of the accused as the backdrop, the duty of the Court is to evaluate the conduct of the accused before, at the time of and soon after the crime and then return a finding of fact, SC No. 46/14 State vs Hasin Ahmed (Page 32 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC whether the accused was of such unsound mind that by reason of unsoundness he was incapable of knowing the nature of the act done or incapable of knowing that the act was wrong or contrary to law.
44 It is also useful to refer Section 105 of the Indian Evidence Act, 1872 which reads as under:
105. Burden of proving that case of accused comes within exceptions.- When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
45 Though the burden of proving an offence is always on the prosecution and never shifts, however, the existence of circumstances bringing the case within the exception under Section 84 Indian Penal Code lies on the accused. Even if the accused establishes unsoundness of mind, Section 84 of the Indian Penal Code will not come to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. In SC No. 46/14 State vs Hasin Ahmed (Page 33 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC order to ascertain that, it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime. Behaviour of an accused pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain as to whether, he knew the consequences of the act done by him. Reference in this connection can be made to a decision of Hon,ble Supreme Court in the case of T.N. Lakshmaiah v.State of Karnataka , (2002) 1 SCC 219, State of M.P. v. Ahmadull , AIR 1961 SC 998.
46 With these provisions and settled law on the point, let us examine whether at the time of the incident, the accused Hasin Ahmed was suffering from Paranoid Schizophrenia, i.e., on 01.01.2012 and consequently was incapable of knowing the nature of the act done or incapable of knowing that the act was wrong or contrary to law.
47 Incident took place in the morning of new
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year of 2012. PW1 Rambrij who was running a barber shop near the place of incident, which is near to the Kali Mata Temple, during his cross examination has denied the suggestion that accused used to behave like a mad person and he did not used to talk properly to anyone and used to threw stones against the walls. But PW2 Smt Ganga Devi who is the mother of the deceased Sanjay, during her cross examination replied that accused used to behave like a mad person . PW3 Munni who was also a beggar , during her cross examination replied that accused was being called as "Pagal" as his mind was not working properly. She further admitted that at the time of incident , accused was not in fit state of mind . A court question was put to her as there was confusion about her stand regarding mental status of accused to which she replied that accused once behaved abnormally as he used to throw stones against the walls but at the time of incident he was eating biscuits and was in proper sense.
48 The testimonies of PW1 , PW2 and PW3 is
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relevant to know the past conduct of the accused
prior to the incident in question as there is no other evidence to that effect. The opinion of aforesaid witnesses are their individual opinions which may not be sufficient to arrive at a conclusion that previously also accused was insane. Different individual perceive things or happening differently. Calling a person 'Pagal' in a routine manner may be because of various reasons i.e being stubborn, aggressive nature, not being in happy mood for one reasons or another , quarrelsome etc., which in my opinion cannot be a base to hold that accused was legally insane .
49 It is not the case of accused that he was not able to do his daily routine work due to the alleged insanity. It has come on the record that a quarrel took place between him and deceased Sanjay over a blanket . Meaning thereby, his mind at the time of incident was working properly as he was claiming himself to be the rightful owner of the blanket , which indicates that he was very much capable to take decision. The process of decision SC No. 46/14 State vs Hasin Ahmed (Page 36 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC making requires application of mind which cannot be ignored in the present case. Accused Hasin Ahmad was arrested vide arrest memo ExPW10/E on the date of incident itself i.e on 1.1.2012. From the aforesaid inquiry there is no difficulty in saying that at the time of incident , accused was not insane .
50 As far as insanity of the accused after the incident is concerned , from the record it is evident that pursuant to the order of ld Predecessor of this court dated 3.7.2012, accused was ordered to be examined by the board of medical doctors. The board of medical doctors gave an opinion that the accused has been diagnosed as a case of paranoid schizophrenia and is not fit to stand trial. Accordingly, vide order dated 14.9.2012, ld Predecessor of this court , since the accused was not capable to understand the nature of proceedings the trial was postponed. Subsequently also pursuant to the order of this court, accused was medically examined. Ordersheet dated 14.8.2013 would indicate that ld predecessor of this court ordered SC No. 46/14 State vs Hasin Ahmed (Page 37 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC that trial of this court be proceeded further as accused found fit to stand trial.
51 This court received the case by way of transfer vide order dated 29.1.2014 and examined the accused to prima facie form an opinion regarding the mental condition of the accused. About eleven questions were put to the accused which were answered by the accused . From the said inquiry this court was of the opinion that no further medical examination of accused is required and ld counsel for the accused was given option to move an appropriate application as and when it appears to them that accused is not fit to stand trial. Not only that at the stage of recording the statement of accused u/s 313 CrPC again inquiries were made by this court to know if accused is fit to stand trial prima facie or require medical opinion. Certain questions were asked and the court did not find any reasons to hold that accused was not fit to stand further trial and require medical examination as per section 328/329 CrPC.
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52 Accused has examined Doctor Rajesh
Kumar as DW1 in his defence . Dr. Rajesh Kumar
DW1 testified about the disease paranoid
schizophrenia and its effect on a person. He deposed that on 31.7.2013, he had examined the patient accused Hasin Ahmad and he was diagnosed as a case of paranoid schizophrenia. He deposed that he cannot comment if he was a case of paranoid schizophrenia in January 2012 i.e on the date of incident as at that time, accused was not examined by them. DW1 further deposed that paranoid schizophrenia may get treated and patient is asymptomatic (free of symptoms) and this disease is treatable definitely. The testimony of DW1 does not indicate anything that on the date of incident i.e 1.1.2012, accused Hasin Ahmad was suffering from paranoid schizophrenia and he was insane .
53 In my opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and SC No. 46/14 State vs Hasin Ahmed (Page 39 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC not medical insanity. Expression "unsoundness of mind" has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer are not sufficient to attract the application of Section 84 of the Indian Penal Code.
54 I am of the opinion that in the present case accused Hasin Ahmed though suffered from certain mental instability even before and after the incident but from that one cannot infer on a balance SC No. 46/14 State vs Hasin Ahmed (Page 40 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC of preponderance of probabilities that the accused at the time of the commission of the offence did not know the nature of his act; that it was either wrong or contrary to law. In my opinion, the plea of the accused does not come within the exception contemplated under Section 84 of the Indian Penal Code.
55 The next contention of ld Amicus curiae of the accused was that if this court comes to the conclusion that accused Hasin Ahmed was not insane and he had committed the offence then the present case comes within the ambit of exception 4 attached to section 300 IPC as the act of the accused was not pre-meditated or planned one . He submitted that a quarrel took place between the accused and deceased Sanjay on the issue of the blanket and accused never intended to kill deceased Sanjay.
56 In the above context,I may refer to the decision in Virsa Singh v. State of Punjab, AIR 1958 SC 465, wherein it was laid down what is SC No. 46/14 State vs Hasin Ahmed (Page 41 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC required for the prosecution to prove to bring the case under Section 300 'Thirdly'. It has been stated therein that first, it must be established, quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved and these are purely objective investigations; thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended; and once these three elements are proved to be present, the enquiry proceeds further; and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Thereafter, it has been stated as follows:
"Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 'thirdly'. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between SC No. 46/14 State vs Hasin Ahmed (Page 42 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional."
57 In State of A.P. v. Rayavarapu Punnayya [(1976) 4 SCC 382 : 1976 SCC (Cri) 659], after referring to the law laid down in Virsa Singh case supra and Rajwant Singh v. State of Kerala [AIR 1966 SC 1874 : 1966 Cri LJ 1509] , Hon,ble Supreme Court proceeded to enunciate that:
" ... 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 causal 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 Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the SC No. 46/14 State vs Hasin Ahmed (Page 43 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC 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 Section 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 Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the first part of Section 304 of the Penal Code."
58 Recently, in Rampal Singh v. State of U.P. [(2012) 8 SCC 289 after referring to the pronouncements in Rayavarapu Punnayya supra, Vineet Kumar Chauhan v. State of U.P. [(2007) 14 SCC 660, Ajit Singh v. State of Punjab [(2011) 9 SCC 462 and Mohinder Pal Jolly v. State of Punjab [(1979) 3 SCC 30, the Hon,ble Supreme Court opined thus:
"... The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view i.e. by applying the 'principle of exclusion'. This principle could be applied while taking recourse to a two- stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of SC No. 46/14 State vs Hasin Ahmed (Page 44 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC the Code, that is, "culpable homicide"amounting to murder'. Then secondly, it may proceed to examine if the case fell in any of the Exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our Criminal Jurisprudence and are accepted as rights of the accused."
59 Time now to refer to a few decisions of Hon,ble Supreme Court where the court has held Exception 4 to Section 300 of the Indian Penal Code to be applicable and converted the offence against the accused in those cases from murder to culpable homicide not amounting murder. InSurinder Kumar v. Union Territory, Chandigarh , (1989) 2 SCC 217, Hon,ble Supreme Court held that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the Exception provided he has not acted cruelly. Hon,ble Supreme Court held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken SC No. 46/14 State vs Hasin Ahmed (Page 45 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300 Hon,ble Supreme Court observed:
".. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation;
(iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner.
The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.
60 The next question then is whether the case falls Under Section 304 Part I or Part II of the Indian Penal Code. The distinction between the two parts of that provision was drawn by Hon'ble Supreme Court in Alister Anthony Pareira v. State of Maharashtra , (2012) 2 SCC 648, in the following words:
"..... For punishment Under Section 304 Part I, the prosecution must prove: the death of the person in SC No. 46/14 State vs Hasin Ahmed (Page 46 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death...."
61 Reference may also be made to the decision of Hon,ble Supreme Court in Singapagu Anjaiah v. State of Andhra Pradesh, (2010) 9 SCC 799 where Hon,ble Supreme Court observed:
"... In our opinion, as nobody can enter into the mind of the accused, its intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused..."
62 I may lastly refer to the decision of Hon,ble Supeme Court in Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh , (2006) 11 SCC 444 where the Court enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the SC No. 46/14 State vs Hasin Ahmed (Page 47 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC accused. The Hon'ble Supreme Court observed:
".Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls Under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable Under Section302, are not converted into offences punishable Under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable Under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and SC No. 46/14 State vs Hasin Ahmed (Page 48 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC there may be several other special circumstances with reference to individual cases which may throw light on the question of intention..."
63 According to the prosecution , there was a dispute between the accused and the deceased over a blanket. From the aforesaid analysis of evidence and case laws as discussed herein above, it becomes abundantly clear that the accused Hasin Ahmed was driven to the crime which was not premeditated and the occasion had sprung up at the moment, gradually leading to the point when the accused Hasin Ahmed lost his self-control and inflicted the injuries on the deceased Sanjay . As such no weapon of offence is shown to have been used by the accused . Circumstances suggest that the act in question was in the course of sudden quarrel or sudden fight between the accused and the deceased. Record does not indicate that there was some prior enmity between them. That being so, this court is of the opinion , therefore, that the offence made out against the accused Hasin Ahmed is Under Section 304 Part I IPC.
SC No. 46/14 State vs Hasin Ahmed (Page 49 of 54 )
FIR No.01/2012
D.O.D 15.10.2014 P.S South Rohini
u/s 302 IPC
64 Accordingly, accused Hasin Ahmed stands
convicted for offence u/s 304 Part 1 IPC .
Announced in the open (Rajesh Kumar Goel) Court today i.e 15.10.2014 ASJ-5, North Rohini Court IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH), ROHINI , DELHI SESSION CASE NO. : 46/14 UID NO . : 02404R0088342012 FIR No :01/2012 P. S : South Rohini u/s 304 part I IPC The State versus Hasin Ahmed S/O Abdul Rashid R/o Footpath Kali Mata Mandir, sector 3, Rohini Delhi .
ORDER ON SENTENCE 18.10.2014 Present: Sh Ashok Kumar , ld Addl PP for the state.
Convict Hasin Ahmed produced from JC. Sh Sanjeev Kumar , Ld Amicus Curiae for the accused.
I have heard both the sides on the quantum SC No. 46/14 State vs Hasin Ahmed (Page 50 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC of sentence. I have also perused the record.
It was argued by the ld counsel for the
convict that there is not even a single aggravating
circumstance against the convict rather there are enormous mitigating circumstances in favour of the accused viz i) admittedly he was not armed with any weapon , ii) the incident occurred at the spur of moment , iii) the mens rea was very feeble i.e on account of a dispute regarding blanket ,iv) both his legs were amputated , v) he is a known case of schizophrenia , vi) till date his parents or native place is not
(ii) known and vii) the offence was not executed in a diabolical or barbaric manner.
Ld counsel for the convict further submitted that convict has been in JC for the last about 2 years and 10 months and prayed to sentence convict for the period already undergone.
On the other hand, ld Adll PP for state in the given facts and circumstances, imprisonment of 10 years would SC No. 46/14 State vs Hasin Ahmed (Page 51 of 54 ) FIR No.01/2012 D.O.D 15.10.2014 P.S South Rohini u/s 302 IPC be sufficient . He submitted that the due to the act of the convict one life has been lost .
In a case State of M.P Vs Najab Khan & Ors. , 2014 II AD (S.C) 194, It was held that " In view of the above, we reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. 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 accused, the nature of weapon used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is 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. The Courts must not only keep in view the rights of the victim of the crime but also the
(iii) society at large while considering the imposition of appropriate punishment" .
After considering the entire facts and
circumstances of the present case and the discussion made
SC No. 46/14 State vs Hasin Ahmed (Page 52 of 54 )
FIR No.01/2012
D.O.D 15.10.2014 P.S South Rohini
u/s 302 IPC
herein above, the convict Hasin Ahmed is sentenced R.I for
Seven years along with fine of Rs 2000/- u/s 304 Part I IPC , in
default of payment of fine six months S.I .
Fine not paid by convict Hasin Ahmed.
Benefit of section 428 CrPC shall be given to the convict for the period already undergone by him during the trial, as per rules.
Keeping in view the physical and mental condition of the convict , Jail authorities are directed to get convict Hasin Ahmed periodically examined as per the requirements keeping in view the previous medical history of the convict. Needless to mention that convict shall be provided wheelchair or artificial legs as per rules and jail manual and also the requirement of the convict.
Keeping in view the facts and circumstances of the case , a recommendation is made u/s 357 A CrPC to North District Service Legal Authority to award appropriate compensation to the legal heirs of deceased Sanjay under the Delhi Victim Compensation Scheme 2011 or under any such scheme applicable.
SC No. 46/14 State vs Hasin Ahmed (Page 53 of 54 )
FIR No.01/2012
D.O.D 15.10.2014 P.S South Rohini
u/s 302 IPC
(iv)
Convict has been informed that he has a right to prefer an appeal against this judgment . He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Ld Secretary, Delhi High Court Legal Services Committee, 34-37,Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of cost.
Copy of this order and judgment be sent to Ld Secretary, North District Legal Service Authority , Rohini Court for necessary compliance.
File be consigned to record room after necessary compliance.
( Rajesh Kumar Goel) ASJ-5, North / 18.10.2014 SC No. 46/14 State vs Hasin Ahmed (Page 54 of 54 )