Delhi High Court
Zulfikar vs State on 16 February, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI
Judgment reserved on : February 12, 2009
% Judgment delivered on : February 16, 2009
+ CRL.A. 57/2001
ZULFIKAR ..... Appellant
Through: Mr. Rajesh Mahajan, Advocate
versus
STATE ..... Respondent
Through: Mr. Pawan Sharma and Ms.Richa Kapoor
APPs for the State.
CRL.A. 631/2000
ALIMUDDIN ..... Appellant
Through: Mr. Rajesh Mahajan, Advocate
versus
STATE ..... Respondent
Through: Mr. Pawan Sharma and Ms.Richa Kapoor
APPs for the State.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.
1. Our apology for a brief judgment. Arguments
concluded in the two appeals at 4:30 PM on 12.2.2009, leaving
us no time to dictate judgment in open Court.
2. The facts are in a very narrow compass and indeed,
learned counsel for the appellant conceded that the entire
contours of the case of the prosecution, duly proved through the
testimony of the eye witnesses and in particular the injured eye
witness Rahisuddin PW-2, are to be found in the rukka Ex.PW-
2/A.
3. The police reached the place of the occurrence when
information conveyed was recorded vide DD No.20A at 11:55 AM
on 29.4.1996 informing the police that Danu has been injured.
Const.Surinder Singh PW-8 posted at the police chowki
accompanied by HC Devender Kumar PW-9 reached the place of
occurrence and learnt that the injured had been removed in a
PCR van to the hospital by Const.Sukh Ram Pal.
4. SI Jeet Singh PW-16, was also handed a copy of DD
No.20A and he also proceeded to the spot. Therefrom he went
to the hospital i.e. GTB Hospital since he was informed that
Danu Mia as also Rahisuddin were removed to the hospital. He
learnt that Danu Mia had died in the hospital and Rahisuddin
was given medical treatment for an injury on his hand.
Rahisuddin was suffering a superficial injury caused on his hand
by a sharp edged weapon. He made his statement Ex.PW-2/A
that 29.4.2006 was Bakr Id and everyone was in a festive mood
and taking dinner. Appellant Zulfikar came and accused Danu
Mia of defaming his sister. A verbal spat ensued between the
two and Alimmudin (Saleem) also came and joined. Zulfikar
caught the hand of Alimmudin to lead him out. Danu Mia
followed. All of a sudden, Alimudding took out a knife. He i.e.
Rahisuddin saw this and, to save Danu Mia attempted to snatch
the knife from the hand of Alimuddin upon which Alimuddin
inflicted a cut on his right hand. At that Zulfikar exhorted
Alimuddin to assault Danu (Mar Saale Danu Ko) at which
Alimuddin inflicted a stab blow on the right shoulder of Danu. A
crowd had gathered. Zulfikar was apprehended at the spot and
that he was brought to the hospital along with Danu.
5. It is not in dispute that Zulfikar was apprehended at
the spot and accused Alimuddin was apprehended soon
thereafter. It is also not in dispute that the weapon of offence
i.e. the knife used was recovered from a charpai in the house of
Alimuddin pursuant to his disclosure statement Ex.PW-16/H.
6. Salim PW-1, has corroborated what was disclosed to
the police by Rahisuddin who appeared as PW-2 and deposed
said facts and withstood cross examination.
7. As per the post-mortem report Ex.PW-4/A proved by
Dr.K.K.Banerjee who conducted the post-mortem of Danu on
30.4.1996, two injuries were seen on the body of Danu. The first
was an incised wound present on the right axilla in the front
starting from the tip of right shoulder cutting across the anterior
axillary fold, the tip of right axilla going 2.5 cms in front of
posterior axillary fold. The second wound was an incised
subcutaneous tissue deep wound on the lateral border of left
abdomen.
8. Unfortunately for Danu Mia, the first wound cut
through the blood vessels and resulted in excessive bleeding.
He died due to shock resulting from haemorrhage.
9. The learned Trial Judge has held that the testimony of
PW-1 and PW-2 establishes that Zulfikar exhorted Alimuddin and
pursuant to the exhortation Alimuddin stabbed Danu and since
Danu died, both appellants are liable to be convicted for the
offence of murdering Danu.
10. Learned counsel for the appellant after making us go
through the record and pointing out a discrepancy here or a
discrepancy there, but ultimately conceding that none was
material, restricted submissions to the plea that at best a case
for conviction under Section 304 Part II is made out.
11. From the testimony of Rahisuddin PW-2, it is
important to note that the accused Alimudding had reached
after co-accused Zulfikar had reached and that the altercation
between Zulfikar and Danu Mia had commenced before accused
Alimuddin reached. It is thus obvious that Zulfikar and
Alimuddin did not reach the place of the occurrence with any
pre-determined intention and that none was sharing the
intention of the other. It is also apparent that the scuffle took
place on account of a grievance of Zulfikar against Danu Mia
that Danu Mia was spreading rumors about his sister. It is also
important to note that as per his initial statement to the police,
when Alimuddin intervened in the spat between Zulfikar and
Danu, Zulfikar caught the hand of Alimuddin and attempted to
take him away from the spot and Danu Mia followed. We note
that neither PW-1 and PW-2 have stated as to what happened
which provoked Alimuddin to take out a knife and assault Danu
when Rahisuddin intervened but could not prevent Alimuddin
from attacking Danu.
12. Obviously, something must have happened and
probably it had to be a provocation from the deceased.
13. We say so for the reason, in the sequence of event
Rahisuddin has said that when Zulfikar and Danu were having a
spat, Alimudding arrived and joined issues and at that Zulfikar
attempted to remove Alimuddin from the spot and Danu Mia
followed them.
14. It is true that a common intention can surface at the
spur of the moment and need not necessarily be the result of a
pre-planned meeting of the minds.
15. It is true that when a provocation, in all probability,
was given by Danu, Zulfikar did exhort Alimuddin but the words
'mar saale ko' need not necessarily imply to kill a person. They
can also mean to beat a person.
16. Learned counsel for the State had urged that where a
co-accused is having a knife in the hand and the other co-
accused gives an exhortation, it can reasonably be inferred that
the exhortation was to attack with the weapon of offence in
hand.
17. Yes, this would be the ordinary inference which every
reasonable and prudent person would draw.
18. To that extent, it certainly can be said that Alimuddin
attacked Danu on the exhortation of Zulfikar and that by giving
the exhortation Zulfikar intended that Alimuddin should attack
Danu with the knife. It has to be noted that as per the evidence,
Alimuddin was having the knife in his hand when the exhortation
was given.
19. But, where the origin of the fight is a sudden quarrel
and it becomes difficult to ascertain as to who started the fight,
the benefit of the lesser inference to be drawn qua the guilt has
to be given to the accused.
20. As noted above, but for Danu Mia following the
appellants, his life was not in danger. He followed them and
probably said something which the witnesses could not hear
which provoked Zulfikar to give the exhortation and triggered
Alimuddin to launch the attack.
21. It has to be noted that a mild cut on the abdomen
which is skin deep and a stab wound on the shoulder has been
inflicted by Alimuddin. The MLC shows that the stab wound is
on the upper right shoulder and has cut at the right axilla in the
front starting from the tip of the shoulder; cutting anteriorly
through the axillary fold, had reached the front of posterior
axillary fold.
22. In a layman's language the stab wound is at the
shoulder at the collar bone and has moved down and backwards
along the shoulder.
23. No vital organ of the body is situated in said part of
the body. Unfortunately, an artery got cut and the result was
Danu Mia suffering excessive bleeding.
24. It cannot be said that the nature of injury was such
that in all probability, the probability being a near certainty,
Danu Mia would have died. It is a case where the injury was
likely to cause death, and hence the offence is not of murder but
is of culpable homicide not amounting to murder.
25. The level of knowledge that death would ensue has
to be low in the instant case. It has to be noted that one out of
the two stab wounds is too superficial and the other is also not
of a kind which can be called imminently dangerous.
26. Part II of Section 304 IPC and not Part I thereof is
attracted.
27. On the sentence, we note that Alimuddin had been in
judicial custody for 7 years and 4 months as on 20.11.2003
when his sentence was suspended and he was admitted to bail.
We note that appellant Zulfikar has remained in judicial custody
for 5 years when his sentence was suspended on 17.7.2002.
28. In our opinion ends of justice would be met if the
sentence imposed upon the appellants is directed to be for the
period already undergone.
29. The appeals are partially allowed.
30. Impugned judgment convicting the appellants for the
offence of murder is modified, in that, the appellants are
convicted for the offence of culpable homicide not amounting to
murder and are convicted under Section 304 Part II IPC. The
sentence imposed upon them, is for the period already
undergone.
31. Since the appellants are on bail, the bail bond and
the surety bonds shall stand discharged.
PRADEEP NANDRAJOG, J.
ARUNA SURESH, J.
February 16, 2009
mm
