Mehmood vs The State (Delhi Admn.)
2009 Latest Caselaw 4384 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                                     Date of decision: 29.10.2009


+                               CRL. A. No.130 of 1996


MEHMOOD                                                         ...APPELLANT
                                Through:        Nemo.


                                          Versus


THE STATE (DELHI ADMN.)                                     ...RESPONDENT
                    Through:                    Mr. Sunil Sharma, APP.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                           No

2.        To be referred to Reporter or not?                            No

3.        Whether the judgment should be                                No
          reported in the Digest?


SANJAY KISHAN KAUL, J. (Oral)

1. The appeal is directed against the judgement dated

7.3.1996 of the Additional Sessions Judge convicting the

appellant under Section 302 of the IPC for murder of Mohd.

Afzal, the deceased and the order of sentence of even date

whereby the appellant has been sentenced to undergo

imprisonment for life and to pay fine of Rs.2,000.00 and in

case of default to pay fine to undergo further simple

imprisonment for a period of four months. The appellant

has also been convicted under Section 27 of the Arms Act _____________________________________________________________________________________________

and was directed to further undergo rigorous imprisonment

for a period of one (1) year.

2. The factual matrix of the case is limited. The appellant and

the deceased were neighbours residing in Gali No.5,

Chauhan Bangar, Delhi. On the fateful day of 8.1.1988 at

about 1:30 p.m. an altercation ensued between the

deceased and Shrimati Anarkali, mother of the appellant.

In the evening at about 9:30 p.m. when the deceased was

returning towards his house the appellant accosted him as

to why he had abused his mother on that day? This

resulted in exchange of hot words between the appellant

and the deceased. The appellant entered into his house

and came out with a chhuri (kitchen knife) whereafter he

started abusing the deceased. On being asked not to do so

the appellant stabbed the deceased on the left side of his

armpit and on his chin as a result of which the deceased

received injuries which he pressed with a sheet/shawl and

rushed towards his house where he fell in front of his

house. The appellant fled from the spot. This occurrence

was witnessed by the neighbours including PW-1,

Faqruddin, and PW-5, Akram. The case of the prosecution

is based on the ocular testimony of PW-1, as PW-5 turned

hostile during the recording of his testimony. The appellant

was enlarged on bail in pursuance to the order dated

21.3.2002 but did not put an appearance for hearing of the

appeal. The bailable and non-bailable warrants have

remained unexecuted and the whereabouts of the appellant

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are not known. The surety has also sold the property and

left and is not available. A status report in this behalf has

been filed in Court which is taken on record.

3. We have gone through the record of the trial court and

perused the impugned judgement as also the grounds of

appeal.

4. The principal challenge is three-fold:

i. That PW-1 was a friend of the deceased and thus

an interested witness.

ii. That the clothes of PW-1 were not seized.

iii. PW-5, the other eye witness, had turned hostile.

5. On perusal of the testimony we find that PW-1, the eye-

witness, has withstood cross-examination and scene of the

incident has been correctly related. There was also no

reason for PW-1 to have falsely implicated the appellant as

there is no past enmity. In fact, there was really no past

enmity even between the appellant and the deceased other

than the related incident which occurred in the morning of

the fateful day when over some reason the deceased had

abused the mother of the appellant. The appellant appears

to have held a grudge on this account and in the evening

accosted the deceased. The deceased instead of

apologizing for the same sought to enter into an argument

with the appellant, which escalated. In the heat of the

moment the appellant rushed into the house to pick up a

chhuri (kitchen knife) lying therein and came out to start

abusing the deceased. When the deceased asked the

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appellant to stop abusing him the appellant inflicted two

chhuri (kitchen knife) blows on him.

6. The post mortem was conducted by Dr.P.C.Dixit/PW-15,

who has proved the post mortem report ExPW15/A. He has

opined that injury no.7 caused by a sharp-edged weapon

was sufficient to cause death in the ordinary course of

nature.

7. The result of the aforesaid is that we find no infirmity

insofar as the appellant being guilty of causing the death of

the deceased is concerned but a question arises whether

the appellant should have been convicted under Section

302 of the IPC.

8. Learned counsel for the State did seek to defend the

impugned judgement in this behalf but cannot seriously

dispute that the incident as narrated by PW-1, which forms

the basis of the case of the prosecution, shows the incident

occurred in the heat of the moment without the appellant

taking any advantage of the situation. The chhuri (kitchen

knife) was lying in the house. The dispute occurred in front

of the house in the gali. The appellant rushed in and

brought out the chhuri (kitchen knife) when further verbal

argument ensued and the appellant inflicted the knife

wounds on the deceased.

9. We are, thus, of the opinion that the present case falls

within the fourth exception to Section 300 of the IPC and

the appellant is thus liable to be convicted and sentenced

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under Section 304 Part II of the IPC instead of Section 302

of the IPC. The relevant provision is reproduced hereunder:

"Section 300. Murder

-----

-----

Exception 4-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner."

10. The applicability of the aforesaid provision has been

elucidated in Ravindra Shalik Naik & Ors. Vs. State of

Maharashtra; 2009 (2) SCALE 354 in para 6 as under:-

"6. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side.

The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight _____________________________________________________________________________________________

suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acting in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat, (2003) (5) Supreme 223, Parkash Chand v. State of H.P. (2004) (11) SCC 381,; Byvarapu Raju v. State of A.P. and Anr., (2007) (11) SCC 218 and Buddu Khan v. State of Uttarakhand SLP (Crl.) No. 6109/08 disposed of on 12.1.2009"

11. We may add that in Pappu Vs. State of M.P.; 2009 (4)

SCALE 521 a distinction has been carved out between the

offence of murder as against culpable homicide not

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amounting to murder as defined under Section 300 of

IPC.

12. In the above referred case, the exchange of hot words

between the accused and the deceased resulted in a shot

being fired resulting in an injury on the chest of the

deceased which was held to be a fit case for conviction

under Section 304 Part II, IPC with a custodial sentence of

eight years.

13. We have already concluded that case of the appellant

comes within the fourth exception to Section 300 of the IPC,

therefore, his conviction under Section 302 of the IPC

cannot be sustained. As a result we set aside his conviction

under Section 302 of the IPC and convict him under Section

304 Part II of the IPC for culpable homicide not amounting

to murder.

14. We, however, do not find any infirmity in respect of

conviction and sentence awarded under Section 27 of the

Arms Act.

15. We find that the sentence of eight years against the

appellant while sustaining the fine would suffice for the

offence under Section 304 Part II of the IPC. The nominal

roll shows that the appellant has been in custody for more

than nine and a half years. The appellant has, thus, served

the sentence imposed under Section 304 Part II of the IPC

and Section 27 of the Arms Act as also the sentence against

fine. The appellant is, thus, not required to be taken into

custody.

_____________________________________________________________________________________________

16. The appeal is allowed to the aforesaid extent. The bail

bond and the surety accordingly stand discharged.

SANJAY KISHAN KAUL, J.

OCTOBER 29, 2009                                            AJIT BHARIHOKE, J.
b'nesh

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