Akhlak @ Bhura vs The State (G;N.C.T. Of Delhi)
2009 Latest Caselaw 81 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                          Crl. Appeal No. 736/2005

%                           Date of Order : January 14, 2009

AKHLAK @ BHURA                   ..... Appellant
             Through : Mr. Bhupesh Narula, Advocate


                                VERSUS


THE STATE (G;N.C.T. OF DELHI)           .....Respondent

Through : Ms. Richa Kapoor, APP

CORAM :-

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH

(1) Whether reporters of local paper may be allowed to see the judgment?

(2) To be referred to the reporter or not? Yes

(3) Whether the judgment should be reported in the Digest ? Yes

PRADEEP NANDRAJOG, J.(Oral)

1. Heard learned counsel for the parties.

2. Criminal law was set into motion when pursuant to

a telephonic call DD No. 6A, Ex.PW-4/B, was recorded by PW-

4, HC Sushila at 9.15 A.M. on 29.7.2002 at Police Station

Nangloi to the effect that at Rajdhani Park, New India Public

School, a person has been stabbed with a knife. Copy of the

DD entry was handed over to SI Babu Ram, PW-15, through

Const. Joginder, PW-8. Both of them reached the spot along

with Const. Subhash, PW-12, where they learnt that two

persons had been removed by the PCR Van to Sanjay Gandhi

Memorial Hospital by Const. Rakesh, PW-13, who had reached

the spot at around 9:10 A.M. when he received a call.

3. Leaving behind PW-12 at the spot, accompanied by

PW-8, PW-15, SI Babu Ram, reached the hospital where he

learnt that one out of the two persons who were stabbed,

namely Ehkam (Ahkam), was brought dead and the other,

Munir, PW-1, was admitted in an injured condition and was fit

to make a statement. PW-15, SI Babu Ram, recorded the

statement of Munir, Ex.PW-1/A, and made an endorsement

thereon, Ex.PW-15/A, and forwarded the same at 11:30 A.M.

for registration of a FIR. PW-4, HC Sushila registered the FIR,

being No. 663/2002 under Sections 302/307 IPC, Ex.PW-4/A.

PW-8, Constable Jogender thereafter handed over the FIR to

the SHO, Inspector Ran Singh, PW-18, who investigated the

crime.

4. At the Sanjay Gandhi Memorial Hospital, Ehkam

and Munir were examined by Dr. Ashish Sehgal, PW-3, who

recorded their MLC, Ex.PW-3/A and Ex.PW-3/B respectively.

5. Ex.PW-3/B, MLC of Munir, records the following

injuries:-

"(i) Penetrating wound of 2 cm in (L) lower chest 8 cm below left nipple.

(ii) Clean incised wound of 3.5 cm over middle third of (L) forearm."

6. Ehkam was declared dead when brought to the

hospital and hence his body was sent to the mortuary. On

30.7.2002, Dr. Komal Singh, PW-19, conducted the post-

mortem. As per the post-mortem report, Ex.PW-19/A,

following external injuries were noted by him on the body:-

"Clean incised wound in Suprasternal area of neck centrally placed in a vertical manner; size being 2.3 cm x 1 cm both angle acute."

7. On internal examination, undernoted injuries were

noted:-

"Leading to stab injury corresponding cut to neck muscle and other connective tissue finally penetrated the upper lobe (at it apex) of ® lung size being 1.5 cm x 1 cm x 1 cm; clotted blood present around"

8. He recorded his opinion that the cause of death

was haemorrhagic shock subsequent to penetrating injury to

the lung. He opined that the injury was sufficient to cause

death in the ordinary course of nature. All injuries were found

to be anti-mortem and of the same duration.

9. P.K.Madan, PW-10, a photographer, was

summoned at the site on 29.7.2002 itself. He took 7

photographs of the site of the incident, being Ex.PW-10/A8 to

Ex.PW-10/A14; negatives whereof were Ex.PW-10/A1 to

Ex.PW-10/A7. PW-18 prepared a rough site plan, Ex.PW-18/A

of the spot. Thereafter, Inspector Devender Singh,

Draftsman, Crime Branch, Delhi, PW-11, visited the site on

21.8.2002 and prepared the site plan to scale, Ex.PW-11/A.

10. Since Munir, PW-1, had disclosed the name of

assailant to be Akhlak @ Bhura i.e. the appellant, PW-18,

Inspector Ran Singh, SHO Police Station Nangloi went to the

residence of the accused and was informed that the accused

had fled to Goa. Information was flashed to the Police at Goa

where appellant was apprehended/detained. PW-9, S.I. Vipin,

brought the appellant on a transit remand to Delhi on

15.8.2002.

11. The accused was interrogated by PW-18 and he

made a disclosure statement, Ex.PW-16/A, in presence of PW-

16, Const. Kuldeep Kumar, informing that he could get

recovered a knife used for committing the crime as also the

blood stained clothes which he was wearing at the time of the

incident.

12. Since the accused had made a disclosure

statement and volunteered to get recovered the weapon of

offence i.e. the knife used to commit the crime, as also the

blood stained pant and shirt which he was wearing at the time

of the incident, Const. Kuldeep Kumar, PW-16, accompanied

by PW-18, Inspector Ran Singh and PW-6 Mohd. Ahmad Ali

Khan, a public witness went along with the accused, to be led

to the place wherefrom accused stated that he could get the

recoveries effected. Accused led the team to Azad Hind

Gram, Tourist Spot, Tikri Kalan, Main Rohtak Road, Delhi and

went near a wall between the tourist spot and petrol pump

and vide pointing out memo, Ex.PW-6/E, pointed out a stone

and from there under, got recovered a blood stained pant; a

blood stained shirt as also a knife which were seized vide

seizure memo Ex.PW-6/C and Ex.PW-6/D.

13. Before it was sealed, a sketch of the knife was

drawn being Ex.PW-6/B.

14. Needless to state, the appellant was sent for trial.

A charge under Section 302 IPC was framed for having

murdered Ehkam. A charge under Section 307 IPC was

framed for attempting to murder Munir.

15. PW-1 Munir, PW-5 Shahabir, PW-6 Mohd. Ahmad Ali

Khan, PW-7 Manzoor, and PW-17 Shamshad, were cited as the

eye-witnesses since during investigation, their statements

were recorded under Section 161 Cr.P.C. The police officers

and the doctors named hereinabove who were associated

with the registration of the FIR and conduct of investigation

were also examined. They proved the facts aforenoted.

16. PW-1, Munir, supported the prosecution and stated

that he along with Ehkam were residing as tenants in a room

in property No. A-75, Rajdhani Park. He stated that the

accused and one Salman, had also taken on rent a room in

the same building. That all were working as Mistry, doing

moulding work of furniture. He stated that three days prior to

29.7.2002 (the date of the incident), Ehkam had abused him

at which the accused had said that no abusive language

should be used and if in future any was used, he would cut

their necks. He further deposed that he and the deceased

were boxing on 29.7.2002 at around 8.00 A.M. The accused

came and heard their voices and thought that the two were

teasing him. Accused took out a knife and stabbed Ehkam on

the neck. He i.e. PW-1, tried to intervene. He too was

stabbed in the stomach by the accused. He tried to run away.

He was stabbed again by the accused on his left arm.

Thereafter, the accused ran away. He stated that the police

recorded his statement, Ex.PW-1/A in the hospital and his

blood stained clothes were seized by the police vide memo

Ex.PW-1/B.

17. On being cross-examined, with reference to the

weapon of offence i.e. the knife, Ex.P-1, recovered pursuant

to the disclosure statement made by the appellant and at the

instance of the appellant, he stated that the knife used for

commission of the offence was bent. He admitted that the

knife shown to him in court had a straight blade. In cross-

examination he stated that he did not tell the police about

any incident having taken place 3 to 4 days prior.

18. PW-5 turned hostile, but admitted being a resident

of A-75, Rajdhani Park (the place of the incident) and engaged

in the work of wooden moulding. He stated that he was not

present when the incident took place and that when he

reached the spot the police had already made a visit. On

cross examination by the learned public prosecutor he stated

that he was taken to the Police Station where his signatures

were obtained on blank papers. He denied the incident as

disclosed by Munir.

19. Relevant would it be to note that on being cross-

examined by the learned Public Prosecutor, he admitted that

the injured Munir and Ehkam had been removed from the

spot to the hospital by the PCR Van, but went on to state that

by that time the accused had run away.

20. PW-6, Mohd. Ahmad Ali Khan also turned hostile

and did not support the prosecution pertaining to the

recoveries effected at the instance of the accused pursuant to

his disclosure statement Ex.PW-16/A. However, it would be

relevant to note that on being cross-examined by the public

prosecutor he admitted; "It is correct that I have seen the

sketch of the chhuri which is Ex.PW-6/B and it was prepared in

my presence and bear my sign at point A. It is also correct

that recovery memo of the clothes and chhuri Ex.PW-6/C also

bears my sign at point A. It is also correct that recovery

memo of chhuri and pointing out memos which are Ex.PW-D

(Sic ? Ex.PW-6/D) and Ex.PW-6/E also bear my sign at point A

on each. I can identify the chhuri and clothes if shown to

me."

21. Thereafter, the sealed pulanda duly sealed with

the seal of the court was opened. Knife, Ex.P-1, was identified

by him but he stated that he had seen the same in the police

station. The blood stained pant, Ex.P-5, and the blood stained

shirt, Ex.P-6, seized by the police at the time of the recovery

on being pointed out by the accused were identified by him.

It is relevant to note that qua these he did not say that he had

seen them in the police station.

22. PW-7, Manzoor admitted being a resident of the

neighbouring flat and knowing the appellant, Ehkam and

Munir; but denied having witnessed any quarrel, much less

appellant inflicting any injury on Ehkam and Munir. However,

it is relevant to note that on being cross examined by the

learned public prosecutor he admitted having telephoned the

police.

23. Shamshad, PW-17 admitted being a resident of

Rajdhani Park and engaged in wooden moulding work. He

admitted that Ehkam, the appellant, Shahabir, Manzoor and

Munir were residing in the same building and all being

engaged in the work of wooden moulding. He stated that

there were ten rooms in the building and that he was a

resident of room No.8. He denied being present at the spot

when the incident took place. During cross examination by

the learned prosecutor he admitted having told the police

that 3 days prior the accused had a quarrel with Ehkam and

Munir and that he had pacified them. He stated that both

parties had threatened to kill each other.

24. Learned Trial Judge has held the appellant guilty of

the offence under Section 302 IPC holding that evidence on

record establishes his intention to kill Ehkam. He has been

convicted for the offence under Section 307 IPC for

attempting to kill Munir. The appellant has been sentenced to

undergo imprisonment for life for the offence of murder as

also to pay a fine of Rs.500/-, in default to undergo RI for 6

months. For the offence punishable under Section 307 IPC he

has been sentenced to undergo RI for 5 years and to pay a

fine of Rs.300/-, in default to undergo RI for 2 months. Both

sentences have been directed to run concurrently.

25. At the hearing today, Sh.Bhupesh Narula, learned

counsel for the appellant made a feverish attempt to argue

that being a friend of the deceased, Munir was an unreliable

witness. Counsel urged that if testimony of Munir is to be

discarded there was no evidence against the appellant.

Alternatively, learned counsel urged that as deposed by

Munir, the appellant felt offended by the sounds being made

by Munir and the deceased when they were boxing and hence

there was a provocation. Counsel urged that exception 4 to

Section 300 IPC stood attracted and hence it was not a case

of murder.

26. Pertaining to the first plea urged by learned

counsel, we see no reason to disbelieve Munir whose

presence at the spot cannot be disputed for the reason from

the site of the incident he was removed to the hospital along

with the deceased as proved by S.I. Ran Singh, PW-14. His

presence gets further fortified by the fact that MLC Ex.PW-3/A

and Ex.PW-3/B pertaining to the deceased and Munir were

recorded by PW-3 at 9:40 A.M. evidencing that Munir was

present with the deceased when both were injured. The other

prosecution witnesses may have turned hostile but we find

that there are traces of them not speaking truthfully. As

noted above, Manzoor, PW-7 denied being present when the

incident took place but admitted having telephoned the

police. He has not explained as to what was the occasion for

him to make a telephonic call to the police. Similarly, PW-6,

Mohd. Ahmad Ali Khan may have denied his presence when

the incident took place or his being present when the

recoveries were effected pursuant to the disclosure statement

of the accused, but, his having admitted that the sketch of

the chhuri, Ex.PW-6/B, was prepared in his presence and he

signed the same at point A as also his having signed the

recovery memos Ex.PW-6/D and Ex.PW-6/E, shows his

presence at the time when recoveries were effected pursuant

to the disclosure statement made by the appellant; and at the

instance of the appellant. It is also important to note that he

identified the pant and the shirt, Ex.PW-5 and Ex.PW-6

respectiely as those of the appellant. Now, if the sketch of

the knife was prepared in the presence of PW-6, it obviously

had to be pursuant to the recovery effected in the presence of

PW-6. That Munir stated in evidence that the knife used to

commit the crime was bent and the fact that the knife

recovered as the weapon of offence was straight is of not

much importance, being a minor discrepancy. Possibility of

Munir imperfectly recollecting the physical description of the

knife cannot be ruled out.

27. Even otherwise, learned counsel for the appellant

could not point out any infirmity in the testimony of Munir.

28. There is no merit in the first submission made by

learned counsel for the appellant. Even the conduct of the

appellant of absconding is relevant and points towards his

guilt. He was not to be found in his house after the incident.

29. Pertaining to the second submission made, suffice

would it be to state that to bring a case within exception 4 to

Section 300 IPC, it has to be established that the offence was

committed without pre meditation in a sudden fight in the

heat of passion upon a sudden quarrel and without the

offender having taken undue advantage or acted in a cruel or

unusual manner.

30. Where is the evidence of a sudden quarrel? None

has been shown. As per the testimony of Munir, on

29.7.2002, at 8:00 A.M. when he and the deceased were

boxing, the appellant came there and on hearing their voices.

Thinking that he was being teased he took out a knife from

his pocket and stabbed the deceased on his neck. When

Munir intervened the appellant stabbed him in the stomach.

When he i.e. Munir started running, the appellant inflicted

another stab wound on his left arm. It is also important to

note that no such theory of a sudden quarrel was ever

projected by the appellant when evidence was being

recorded. When examined under Section 313 Cr.P.C.,

appellant denied his involvement and his presence at the spot

at the time of the occurrence.

31. That the appellant was armed with a knife and

pounced upon the deceased and inflicted the stab wound

shows his pre-determination and acting without any

provocation or a quarrel. It has also to be noted that Munir,

who intervened, probably to save his friend, was also

attacked twice.

32. It is trite that a mental attitude i.e. the intention or

the knowledge of the offender has to be gathered by the

Court from the conduct of the accused. By intention, it means

the expectation of the consequences; for a man would expect

the natural consequences of his act and therefore, in law, is

presumed to intend them. Further, presumption is that a man

knows the probable result of his conduct. As per the first

clause of Section 300 IPC, culpable homicide is murder if the

act by which the death is caused is done with the

intention of causing death. The second clause is attracted

where an act is done with the intention of causing such bodily

injury as the offender knows to be likely to cause the death.

The mental attitude to be considered, while appreciating the

second clause, is two fold. First, whether the intention is to

cause bodily harm and the second, whether there is a mental

knowledge that death will be the likely consequence of the

intended injury. The third clause discards subjective

knowledge. The focus of consideration is to see, from the act

done, whether an intention of causing the specific bodily

injury is emerging, and thereafter to see whether the bodily

injury intended to be inflicted is sufficient in the ordinary

course of nature to cause death. The fourth clause

comprehends the commission of imminently dangerous acts

which must, in all probability, cause death.

33. The distinction between knowledge contemplated

by the third limb of Section 299 IPC and the knowledge

contemplated by clause 4 of Section 300 IPC is one of degree.

34. While determining intention or knowledge, the

manner in which the weapon of offence is used becomes

relevant. In the decision reported as 1979 Crl. LJ (Guj) 334

Satish Vs. State of Gujarat, the accused plunged a big knife in

the chest of the deceased without any exchange of words,

causing death. An inference of intention to cause death was

drawn. Similarly, in the decision reported as 1995 Crl. LJ 1742

(Del) Dalip Kumar Vs. State a single blow with a screw driver

on the head of the deceased, given with great velocity, was

held to be indicative of an intention to kill.

35. Where the weapon of offence is a knife having a

blade of 10.05 cm; total length of the knife being 21.05 cm,

as is the length of the knife in the instant case, culpability of

intention or culpability qua knowledge, that if the knife is

used with great force while attacking a person on a vital part

of the body, is very strong.

36. The sketch of the knife used in the instant case

evidences it having a blade of 10.05 cm. The injury on the

deceased as per the post-mortem report, as noted in paras 6

and 7 above, shows the ferocity of the blow. The injury is

directed on a vital part of the body, namely the suprasternal

area of the neck. The velocity of the blow can be gathered by

the fact that the right lung lobe was penetrated up to 1 cm.

Human anatomy tells us that to penetrate from the

suprasternal area of the neck and reach the lung, the knife

had to cut through a distance of approximately 6 cms.

37. We concur with the reasoning of the learned Trial

Judge that the evidence on record establishes that the

appellant intended to cause the death of deceased Ehkam.

38. No submissions have been made pertaining to the

conviction of the appellant pertaining to the finding of guilt for

the offence under Section 307 IPC.

39. We find no merit in the appeal.

40. The appeal is dismissed.

(PRADEEP NANDRAJOG) JUDGE

(ARUNA SURESH) JUDGE January 14, 2009 Jk/mm