Delhi High Court
Liaqat Ali vs State Of Nct Delhi on 10 November, 2009
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on : November 10, 2009
+ CRIMINAL APPEAL NO.123 /1995
LIAQAT ALI ..... Appellant
Through: Mr.K.B. Andley, Sr. Advocate
with Mr.M.L. Yadav, Advocate.
Versus
STATE OF N.C.T. DELHI ..... Respondent
Through: Mr. Pawan Sharma, APP
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may
be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in Digest ?
SANJAY KISHAN KAUL, J.(ORAL)
1. The appellant though having a good motive of preventing drug
consumption used wrong means by inflicting knife injuries on the
deceased and causing his death, which has resulted in order of
conviction under Section 302 IPC in terms of the judgment dated
5.4.1995 as also of conviction under Section 27 of the Arms Act and on
being sentenced to life imprisonment under Section 302 IPC and to pay
a fine of Rs.1,000/-, or in default of payment of fine, to undergo RI for
three months and for the offence under Section 27 Arms Act to
Crl.A.No.123/1995 Page 1 of 9
undergo RI for a period of one year and to pay a fine of Rs.500/- and in
default of payment of fine, to undergo further RI for one month, has
preferred this appeal.
2. Briefly put, case of prosecution is that that on the fateful morning
of 26.06.88 at about 7:00 a.m., some boys were taking smack in front
of the shop of the complainant and mohalla people were forbidding
them from taking smack in the market. In the meanwhile, the
deceased Ajay @ Bille reached there and announced that nobody
should prevent anyone from taking smack if he wishes to do so. On
this, the appellant Liaqat Ali intervened and stated that nobody would
be allowed to take smack in the market. This resulted in an altercation
and the appellant and the deceased Ajay grappled with each other.
The complainant Parvez intervened in that altercation. All of a sudden,
the appellant Liaqat fetched a knife from the shop of Parvez and
inflicted a knife injury on the shoulder of Parvez and thereafter gave
few blows on the chest and back of the deceased Ajay. As a
consequence, Parvez suffered simple injury and the injuries inflicted
upon the person of Ajay proved to be fatal.
3. Learned counsel for the appellant has submitted that the learned
Trial Court has found the appellant guilty on the basis of eye witness
account given by PW2 Ram Avtar and PW3 Kundan Lal, which is
partly corroborated by testimony of PW1 Parvez, the complainant. He
has submitted that from the testimony of PW2 and PW3, it is apparent
Crl.A.No.123/1995 Page 2 of 9
that the appellant was not carrying any arm with him. The incident
took place suddenly without any pre-meditation when the appellant
was trying to prevent taking of smack by some boys( an illegal act) in
the market and the deceased Ajay opposed the stand of the appellant
by challenging that anyone who wanted to take smack could do so. He
has pointed out that it has come in evidence that complainant Parvez
also intervened in the altercation and the appellant in the heat of
moment fetched a knife from the shop of the complainant Parvez and
stabbed him as well as the deceased, resulting in simple injury to the
complainant Parvez and death of the deceased. On the basis of
aforesaid facts, learned counsel for the appellant has argued that the
case of the appellant does not fall within the purview of Section 300
IPC and the offence committed by him amounted to culpable homicide
not amounting to murder punishable under Section 304 Part I IPC.
4. In order to appreciate the contention of learned counsel for the
appellant, it would be fruitful to have a look on the law relating to
culpable homicide. The distinction between two types of culpable
homicide i.e. murder and culpable homicide not amounting to murder
has been beautifully drawn by Hon'ble Justice Sarkaria in leading case
State of A.P. Vs. Rayavarappu Punnayya, AIR 1977 SC 45. The
relevant portion of the judgment is reproduced below:
"13. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its
specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally,
'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide
not amounting to murder'. For the purpose of fixing punishment, proportionate to
Crl.A.No.123/1995 Page 3 of 9
the gravity of this generic offence, the Code practically recognises three degrees
of culpable homicide. The first is, what may be called, culpable homicide of the
first degree. This is the gravest form of culpable homicide which is defined in
Section 300 as 'murder'. The second may be termed as 'culpable homicide of the
second degree'. This is punishable under the 1st part of Section 304. Then, there is
'culpable homicide of the third degree.' This is the lowest type of culpable
homicide and the punishment provided for it is, also, the lowest among the
punishments provided for the three grades. Culpable homicide of this degree is
punishable under the second Part of Section 304.
14. The academic distinction between 'murder' and 'culpable homicide not
amounting to murder' has vexed the courts for more than a century. The confusion
is caused, if courts losing sight of the true scope and meaning of the terms used by
the legislature in these sections, allow themselves to be drawn into minute
abstractions. The safest way of approach to the interpretation and application of
these provisions seems to be to keep in focus the key words used in the various
clauses of Sections 299 and 300. The following comparative table will be helpful
in appreciating the points of distinction between the two offences.
Section 299 Section 300
A person commits culpable Subject to certain exceptions, culpable
homicide if the act by which the homicide is murder if the act by which
death is caused is done - the death is caused is done -
INTENTION
a) With the intention of causing 1) with the intention of causing death; or
death; or 2) with the intention of causing such
b) With the intention of causing bodily injury as the offender knows to
such bodily injuries as is likely to be likely to cause the death of the
cause death; or person to whom the harm is caused; or
3) With the intention of causing bodily
injury to any person and the bodily
injury intended to be inflicted is
sufficient in the ordinary course of
nature to cause death; or
KNOWLEDGE
****
c) With the knowledge that the 4) with the knowledge that the act is so
act is likely to cause death imminently dangerous that it must in all
probability cause death or such bodily
injury as is likely to cause death, and
without any excuse for incurring the risk
of causing death of such injury as is
mentioned above.
15. Clause (b) of Section 299 corresponds with cls. (2) and (3) of Section 300.
The distinguishing feature of the mens rea requisite under Clause (2) is the
knowledge possessed by the offender regarding the particular victim being in such
a peculiar condition or state of health that the intentional harm caused to him is
likely to be fatal, notwithstanding the fact that such harm would not in the
ordinary way of nature be sufficient to cause death of a person in normal health or
condition. It is noteworthy that the 'intention to cause death' is not an essential
requirement of Clause (2). Only the intention of causing the bodily injury coupled
with the offender's knowledge of the likelihood of such injury causing the death
of the particular victim, is sufficient to bring the killing within the ambit of this
clause. This aspect of Clause (2) is borne out by illustration (b) appended to
Section 300.
16. Clause (b) of Section 299 does not postulate any such knowledge on the part
of the offender. Instances of cases falling under Clause (2) of Section 300 can be
where the assailant causes death by a fist blow intentionally given knowing that
the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart
and such blow is likely to cause death of that particular person as a result of the
rupture of the liver, or spleen or the failure of the heart, as the case may be. If the
assailant had no such knowledge about the disease or special frailty of the victim,
nor an intention to cause death or bodily injury sufficient in the ordinary course of
nature to cause death, the offence will not be murder, even if the injury which
caused the death, was intentionally given.
17. In Clause (3) of Section 300, instead of the words 'likely to cause death'
occurring in the corresponding Clause (b) of Section 299, the words "sufficient in
the ordinary course of nature" have been used. Obviously, the distinction lies
between a bodily injury likely to cause death and a bodily injury sufficient in the
ordinary course of nature to cause death. The distinction is fine but real, and, if
overlooked, may result in miscarriage of) justice. The difference between Clause
(b) of Section 299 and Clause (3) of Section 300 is one of the degree of
probability of death resulting from the intended bodily injury. To put it more
broadly, it is the degree of probability of death which determines whether a
culpable homicide is of the gravest, medium or the lowest degree. The word
"likely" in Clause (b) of Section 299 conveys the sense of 'probable' as
distinguished from a mere possibility. The words "bodily injury...sufficient in the
ordinary course of nature to cause death" mean that death will be the "most
probable" result of the injury having regard to the ordinary course of nature.
18. For cases to fall within Clause (3), it is not necessary that the offender
intended to cause death, so long as death ensues from the intentional-bodily injury
or injuries sufficient to cause death in the ordinary course of nature. Rajwant and
am. v. State of Kerala A.I.R. 1966 S.C. 1874 is an apt illustration of this point.
19. In Virsa Singh v. The State of Punjab, AIR 1958 SC 465 Vivian Bose J.
speaking for this Court, explained the meaning and scope of Clause (3), thus (at p.
1500) :
The prosecution must prove the following facts before it can bring a case under
Section 300, 3rdly'. First, it must establish, quite objectively, that a bodily injury
is present; secondly the nature of the injury must be proved. These are purely
objective investigations. It must be proved that there was an intention to inflict
that particular injury, that is to say, that it was not accidental or unintentional or
that some other kind of injury was intended. 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
was 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.
20. Thus according to the rule laid down in Virsa Singh's case (supra) even if the
intention of accused was limited to the infliction of a bodily injury sufficient to
cause death in the ordinary course of nature and did not extend to the intention of
causing death, the offence would be murder. Illustration (c) appended to Section
300 clearly brings out this point.
21. Clause (c) of Section 299 and Clause (4) of Section 300 both require
knowledge of the probability of the causing death. It is not necessary for the
purpose of this case to dilate much on the distinction between these corresponding
clauses. It will be sufficient to say that Clause (4) of Section 300 would be
applicable where the knowledge of the offender as to the probability of death of a
person or persons in general-as distinguished from a particular person or persons-
being caused from his imminently dangerous act, approximates to a practical
certainty. Such knowledge on the part of the offender must be of the highest
degree of probability, the act having been committed by the offender without any
excuse for incurring the risk of causing death or such injury as aforesaid.
22. From the above conspectus, it emerges 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 jade found in the affirmative, the stage for
considering the operation of Section 300, Penal Code is reached. This is [the 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, Penal Code.
23. The above are only broad guidelines and not cast-iron imperatives. In most cases,
their observance will facilitate the task of the court. But sometimes the facts are so
inter-twined and the second and the third stages so telescoped into each other, that it
may not be convenient to give a separate treatment to the matters involved in the
second and third stages.
34. In that case, the existence of both these elements was clearly established by
the prosecution. There was bitter hostility between the warring factions to which
the accused and the deceased belonged. Criminal litigation was going on between
these factions since long. Both the factions had been proceeded against under
Section 107, Cr. P.C. The accused had therefore a motive to beat the deceased.
The attack was premeditated and pre-planned, although the interval between the
conception and execution of the plan was not very long. The accused had
purchased tickets for going further to Narasaraopet, but on seeing the deceased,
their bete noir, alighting at Nekarikal, they designedly got down there and trailed
him. They selected heavy sticks about 3 inches in diameter, each, and with those
lethal weapons, despite the entreaties of the deceased, mercilessly pounded his
legs and arms causing no less than 19 or 20 injuries, smashing at least seven
bones, mostly major bones, and dislocating two more. The beating was
administered in a brutal and reckless manner. It was pressed home with an
unusually fierce, cruel and sadistic determination. When the human conscience of
one of the shocked bystanders spontaneously cried out in protest as to why the
accused were beating a human being as if he were a buffalo, the only echo it
could draw from the assailants, was a minacious retort, who callously continued
their malevolent action, and did not stop the beating till the deceased became
unconscious. May be, the intention of the accused was to cause death and they
stopped the beating under the impression that the deceased was dead. But this
lone circumstance cannot take this possible inference to the plane of positive
proof. Nevertheless, the formidable weapons used by the accused in the beating,
the savage manner of its execution, the helpless state of the unarmed victim, the
intensity of the violence caused, the callous conduct of the accused in persisting in
the assault even against the protest of feeling bystanders-all, viewed against the
background of previous animosity between the parties, irresistibly lead to the
conclusion that the injuries caused by the accused to the deceased were
intentionally inflicted, and were not accidental. Thus the presence of the first
element of Clause Thirdly of Section 300 had been cogently and convincingly
established."
5. In the light of the above enunciated principle of law, on analysis
of the factual matrix of this case, certain aspects that come to the fore
are that the incident took place because of a sudden altercation
between the appellant and the deceased when the appellant took a
stand that nobody would be permitted to take smack in the market and
the deceased took the opposite stand that anyone who wished to take
smack was within his right to do so. It is also apparent from the
evidence on record that the appellant was not carrying any arms and in
the heat of moment, he had brought the knife from the shop of PW1
Parvez who also intervened in the altercation. Thus, this is not a case
in which it can be said that the appellant had inflicted injuries on the
person of the deceased with the intention to kill him or that he had the
intention to cause such bodily injuries to the deceased which would be
sufficient to cause death in the ordinary course of nature. In the given
factual matrix, it appears that the appellant, who was trying to prevent
some boys from committing an illegal act of taking smack got provoked
by the uncalled for interference and encouragement given by the
deceased to those boys to take smack and in a fit of anger, he picked
up the knife from the shop of complainant Parvez and inflicted knife
wounds on the person of the deceased. From the above factual
position, it is difficult to infer that the appellant actually took undue
advantage of the situation or he even acted in a cruel manner. It is
apparent from the facts of this case that in a fit of anger, because of
improper act of the deceased Ajay in encouraging the boys to take
smack, appellant lost his sense of discrimination and gave knife blows
to the deceased, which blows unfortunately fell on chest and back of
the deceased and proved to be fatal. Therefore, in our view, the act of
the appellant is covered by the Fourth Exception to Section 300 IPC.
Therefore, he is not guilty of murder, and his wrongful act amounts to
culpable homicide not amounting to murder. Thus, the conviction of
the appellant under Section 302 IPC is not sustainable. It is accordingly
modified and converted into conviction under Section 304 Part I IPC.
However, conviction of the appellant under Section 27 Arms Act is
maintained.
6. We have heard learned counsel for the respective parties on the
point of sentence. While sustaining the sentence awarded under
Section 27 of the Arms Act, we feel that a sentence of 10 years
imprisonment for the offence punishable under Section 304 Part I IPC
shall suffice in the present case. Both the sentences shall run
concurrently. Needless to say that the appellant will get benefit of
Section 428 Cr.P.C. and in case he has already served the complete
sentence and is not wanted in any other case, appellant shall be
released forthwith.
7. The appeal is accordingly partially allowed to the aforesaid
extent.
SANJAY KISHAN KAUL, J.
NOVEMBER 10, 2009 AJIT BHARIHOKE, J.
pst
