Delhi High Court
Mohd. Abid vs State on 14 July, 2010
Author: V.K. Jain
Bench: Badar Durrez Ahmed, V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 14.07.2010
+ CRL. A. 218/1997
MOHD. ABID ... Appellant
- versus -
STATE ... Respondent
Advocates who appeared in this case:
For the Appellant : Ms Meena Chaudhary Sharma
For the Respondent : Mr Jaideep Malik, APP
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may be allowed to
see the judgment ? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
V.K. JAIN, J (ORAL)
1. This appeal is directed against the judgment and Order on Sentence, both dated 24th April 1997, whereby the appellant was convicted under Section 302 of IPC and was sentenced to undergo imprisonment for life and to pay fine of Rs500/- or to undergo R.I. for 6 months in default.
2. The case of the prosecution, as set out in the statement of informant Bhim Singh, is that at about 6.45 PM on 26th April 1992, deceased Anand bought two kulfis from a CRL.A. No.218/1997 Page 1 of 14 vendor, near Barat Ghar Malkaganj, and gave one of them to him to eat. Anand, after eating the kulfi, found it to be salty and asked the kulfi vendor to give another kulfi to him. That kulfi also was found to be salty. In the meanwhile, Bhola, a friend of Anand, arrived there along with his two friends and Anand got engaged in conversation with them. The appellant Mohd. Abid, who was standing at the cart of kulfi vendor, told Anand that he had taken 2-3 kulfis and asked him why he was not paying money for those kulfis. Anand stated that he was busy in conversation and would leave the spot only after paying money for the kulfis. The appellant thereupon became angry and had a scuffle with Anand. He, thereafter took out a knife, threatened to do away with Anand and inflicted a knife blow on the left side of his stomach. Anand, who had fallen down on account of knife blow given on the left side of his stomach, got up and tried to run away. The appellant then gave another knife blow on the back side of his left shoulder and ran away from the spot.
3. The incident of stabbing is alleged to have been witnessed by four persons namely, PW-2 Bhola, PW-3 Bhim Singh, PW-4 Badri and PW-7 Mohan Lal. PW-2 Bhola, when he was examined in chief, supported the prosecution and stated that on 26th April 1992, when he reached DESU CRL.A. No.218/1997 Page 2 of 14 office/sub-station, where he found Anand eating Kulfi, which he had obtained from a rehriwala and Abid was standing nearby. Mohan Lal and Badri, who had accompanied him, were talking to Anand near rehri. Abid asked Anand to make full payment to kulfiwala to which Anand replied saying that he would go after making payment. According to the witness, a quarrel then took place between Abid and Anand. Abid took out a knife and stabbed Anand on his back side. Another blow, according to him was given in the abdomen of Anand, who ran after the appellant for a few steps and then fell down. He and Bhim Singh removed the injured to hospital in a cycle- rickshaw. However, when this witness was further examined on 27th September 1994, he turned hostile and claimed that on that date a party was going on, in which 100 persons had collected and while in the party he heard a noise. His younger brother Sanjay came there and informed that a quarrel was going on. When he reached the place of occurrence, he found injured Anand and about 100 persons, who had collected there. He along with 5-6 persons took Anand to hospital.
4. PW-3 Bhim Singh supported the prosecution and stated that on 26th April 1992, he along with Anand was going to a park and on the way they found two ice-cream vendors near the electric sub-station. Anand purchased two kulfis CRL.A. No.218/1997 Page 3 of 14 from one of the vendors. Since the kulfis were salted, Anand returned them to the vendor and sought another kulfis in lieu of the salted kulfis. In the meantime, Bhola, a friend of Anand, came there along with his companions Badri and Mohan. The appellant Abid told Anand that he had returned 2-3 kulfis and asked him why he was not making payment for those kulfis. Anand thereupon stated that he would leave after making payment. According to the witness, the appellant took out a knife and stabbed Anand in the left side of abdomen, as a result of which he fell down. Anand then got up but was again stabbed on the back side of his left shoulder. The appellant then ran away from the spot. PW-4 Badri Prasad turned totally hostile and stated that on 26 th April 1992, at about 6.30-7.30 PM when he came back from the park, he noticed a crowd near DESU office, where people were saying that Anand had received stab injuries. He maintained that he did not see the appellant giving knife blows to Anand. This witness was cross-examined by the learned Addl. PP, but nothing came out in his cross-examination which may connect the appellant with the offence alleged to have been committed by him. PW-7 Mohan Lal also did not support the prosecution and stated that in the evening of 26th April 1992, he had gone to Kamla Nagar Park with Badri. He further stated that a CRL.A. No.218/1997 Page 4 of 14 quarrel was going on between Anand and another person, whom he did not know by name, but could identify. He also stated that the person, with whom Anand had quarrel, took out a knife and stabbed in the abdomen of Anand. He also stated that there was exchange of abuses between Anand and that person, before Anand was stabbed and only one stab injury was given. He stated that the accused present in the Court was not the person, who had stabbed Anand. This witness was also cross-examined by the learned Addl. PP, but nothing incriminating came out in the cross-examination, which may establish that it was the appellant Abid, who had stabbed deceased Anand.
5. During postmortem, the following ante mortem wounds were found on the body of the deceased:
"2. Stitched wound 2½" long present transversely over left hypo-condrium region of abdomen (corresponding to injury No.1 of MLC).
4. Stitched wound ½" long on the back of left shoulder"
6. PW-16 SI Samarjeet Singh stated that on 30th April 1992, the appellant, who was in police custody, took them to Jhuggi No. 83 and produced one bundle of clothes, which was lying on the roof of the jhuggi. He further stated that one dagger Ex.P-1, blade of which was stained with blood, was also CRL.A. No.218/1997 Page 5 of 14 produced by the appellant. PW-26 Inspector Bir Singh has corroborated the deposition of PW-16 as regards recovery of clothes and dagger at the instance of the appellant from Jhuggi No.83. Blood of human origin was found on the clothes, when examined in CFSL. The origin of blood found on the dagger could not be ascertained.
7. After arguments, the learned counsel for the appellant, on instructions from the appellant, who is present in the Court, states that considering the evidence produced by the prosecution during trial, she does not dispute complicity of the appellant in the killing of deceased Anand and her only contention is that the appellant ought to have been convicted under Section 304 instead of Section 302 of IPC.
8. Exception I to IV to Section 300 of IPC specify the cases, where culpable homicide will not amount to murder. Exception IV to Section 300 of IPC provides that culpable homicide is not murder if (i) it is committed without premeditation; (ii) it is committed in a sudden fight; and (iii) the act is committed in the heat of passion upon a sudden quarrel, provided the offender does not take any undue advantage and does not act in a cruel and unusual manner.
9. This Exception deals with a case where the heat generated by passion clouds sober reasoning of the man and CRL.A. No.218/1997 Page 6 of 14 compels him to do an act which he, would not have done in a sober state of mind. In such a case, there is no deliberation or determination to fight with each other and the quarrel takes place at the spur of the moment for which both the parties are to be blamed. In a case of this nature, the quarrel may have been started by one party, but it would not have taken a serious turn had it not been aggravated on account of some act or conduct of other party. The number of wounds suffered by the deceased will not be a decisive factor to decide whether a case falls under the main Section or it falls under Exception IV to the Section, the requirement of the Section being that the accused must have acted in a fit of anger and the occurrence should not be premeditated or preplanned.
10. In the present case, admittedly, there was no enmity between the appellant and deceased Anand. Admittedly, there was no preplanning or premeditation in causing death of deceased Anand. In fact, the appellant and the deceased were not even known to each other before this incident took place. It has come in the FIR as well as in the deposition of witnesses that a scuffle had preceded the stabbing of the deceased. The site plan Ex.PW 23/C shows point „A‟ as the place where the appellant is alleged to have grappled with deceased Anand, meaning thereby that a grappling had taken place before the CRL.A. No.218/1997 Page 7 of 14 deceased was stabbed by the appellant. In the Brief Facts prepared by the Investigating Officer, it has been stated that the appellant had picked up a quarrel with deceased Anand. Thus it cannot be disputed that a quarrel had ensued between deceased Anand and the appellant and during the course of quarrel they had also grappled with each other. Ex.PW 9/A is the MLC of the appellant at the time he was examined in Hindu Rao hospital on 29th April 1992. The MLC shows that injuries were found on the person of the appellant when he was examined in the hospital. Presence of injuries on the person of the appellant at the time of his examination in hospital indicates that during the course of the quarrel, which took place between him and deceased Anand, some injuries though minor in nature, were caused by the deceased to the appellant.
11. The facts and circumstances of the case leave no reasonable doubt that the quarrel, which ensued between the appellant and deceased Anand, was a sudden one for which both the parties were responsible, though the extent of the blame which can be apportioned to the deceased may be much less than what can be apportioned to the appellant. Though it has come in evidence that the appellant was carrying a knife/dagger with him, he could not have been carrying the CRL.A. No.218/1997 Page 8 of 14 weapon for the purpose of stabbing Anand since he could not have foreseen or anticipated that there will be an altercation followed by a quarrel between him and deceased Anand at the cart of the kulfi vendor.
12. Though according to the witnesses when the appellant asked Anand to pay the price of the kulfi, which he had bought, the deceased maintained that he would leave the spot after paying the price of the kulfi. We are not inclined to accept this part of the deposition of the witness for the simple reason that had the deceased agreed to pay the price of salted kulfis, there would have no further altercation and no quarrel would have taken place between the appellant and the deceased. Considering the normal course of human conduct, when asked by the appellant to pay the price of kulfis, the deceased must have resisted paying the same on the ground that since the kulfis were salty, he was not bound to pay any price for them to the kulfi vendor. The altercation must have accelerated and quarrel must have ensued only on account of the refusal of the deceased to part with money for the kulfis purchased by him.
13. In the present case, two blows were given to deceased Anand. The knife blow given in the abdomen was found to be 2 ½ inch long whereas the injury on the back of his left CRL.A. No.218/1997 Page 9 of 14 shoulder was found to be ½ cm long. The injury in the abdomen being the first injury must have been given in the heat of passion on account of quarrel, followed by the grappling that took place. It has come in the evidence that when Anand got up after receiving first injury, the second injury was given on the back side of his left shoulder. Had the intention of the appellant been to kill Anand seeing that the first blow given by him had not proved to be fatal for Anand, the second blow would have been given on some vital part of the body instead of giving at the back of his shoulder so that there was no chance of survival of the deceased.
14. In Prakash Chand vs. State of H.P.: 2004 (11) SCC, there was a quarrel between the deceased and the accused when the dogs of the accused entered the kitchen room of the deceased. Consequent to the verbal altercation that ensued, the accused went to his room, took out his gun and fired a gun shot at the deceased, as a result of which pellets of the gun shot pierced the chest of the deceased, resulting in his death. It was held by the Supreme Court that proper conviction of the accused would be under Section 304 Part I of IPC and not under Section 302 thereof.
In Posuram Deshmukh vs. State of Chhatisgarh:
AIR 2009 SC 2482, the deceased had blocked the water course CRL.A. No.218/1997 Page 10 of 14 to the field of the accused and he refused to remove the blockade despite request from the accused and some altercation took place between them. The accused persons, one of whom was carrying a square iron plate fitted at the one end of a stick and the other who was carrying ladhi attacked the deceased with the weapons they were carrying, causing his death. It was held by the Supreme Court that appropriate conviction of the appellant/accused would be under Section 304 Part I of IPC.
In Shaikh Azim vs. State of Maharashtra: 2008 (11) SCC 695, the deceased and his son were present at their house alongwith other family members. They noticed some filth thrown in the backyard of their house from the side of the house of the accused and expressed their displeasure in this regard. The family members of the accused also abused them. One of the accused holding a stick, the other holding an iron rod and the third accused holding the stick, came out of their house and gave blows on the head of the deceased. When his son rushed to his rescue, the accused also gave injuries to him with iron rod and sticks. The deceased succumbed to the injuries caused to him. It was held that the appropriate conviction of the appellant/accused would be under Section 304 Part I of IPC.
CRL.A. No.218/1997 Page 11 of 14
In Sekar vs. State: 2002 (8) SCC 354, there was exchange of hot words between the deceased and accused on release of a sheep which was destroying the crops of the deceased. The accused and others got the sheep untied which led to exchange of hot words between the parties. When the deceased fell down after the accused had given injuries on his head and left shoulder, the accused again inflicted another blow on his neck. It was held that the case was covered by Exception IV to Section 300 of IPC.
In Surinder Kumar vs. Union Territory: AIR 1989 SC 1094, there was a heated argument between the parties followed by uttering of filthy abuses. The appellant/accused got enraged, picked up a knife from the kitchen and gave one blow on the neck of the witness and three knife blows, one on the shoulder, the second one the elbow and the third one the chest of the deceased. The Supreme Court convicted the appellant under Section 304 of IPC.
15. In the facts and circumstances of the case, we are of the view that since there was no premeditation or preplanning, there was no previous enmity between Anand and the appellant, the appellant had no motive to commit murder of the deceased and the injuries were caused to the deceased during the course of a quarrel and in a heat of passion on a CRL.A. No.218/1997 Page 12 of 14 very trivial matter involving a few rupees towards payment of the price of kulfis purchased by the deceased, the case is clearly covered under Exception IV to Section 300 of IPC. We accordingly alter the conviction of the appellant from Section 302 to Section 304 Part II of IPC.
16. The learned counsel for the appellant after verifying from the record states that the appellant has already spent more than six years in Jail, excluding the remission earned by him during the period he remained in custody. This statement is not disputed by the learned counsel for the respondent and is also otherwise borne out from the record of the case, which includes the nominal roll dated 06.06.1998.
Admittedly, the appellant comes from a weaker section of the society who could not even engage a counsel of his choice and an Amicus Curiae had to be appointed by this Court to represent him in this appeal. The appellant, who is present in the Court, states that he has six children, including three daughters, to take care of. The learned counsel for the respondent fairly concedes that the appellant has no previous conviction and is not involved in any other case. Taking into consideration all the facts and circumstances of the case, including economic and social status of the appellant, he is sentenced to undergo R.I. for the period already spent by him CRL.A. No.218/1997 Page 13 of 14 in custody and is also sentenced to pay fine of Rs 500/- or to undergo S.I. for two weeks, in default. He is granted two weeks to deposit the fine.
V.K. JAIN, J BADAR DURREZ AHMED, J JULY 14, 2010 Ag/bg CRL.A. No.218/1997 Page 14 of 14