Mohd. Abid vs The State
2009 Latest Caselaw 3526 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Decided on:September 03, 2009

+      CRIMINAL APPEAL NO.122/1995

       MOHD. ABID                                     ..... Appellant
                          Through:   Mr. Rajesh Mahajan, Advocate.

                     Versus

       THE STATE                                      ..... Respondent

Through: Mr. Sunil 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 is present in pursuance to production warrants

issued yesterday. Learned counsel for the appellant, on instructions

from the appellant, admits his guilt but confines his plea to the case

being one of culpable homicide not amounting to murder punishable

under Section 304 Part II or in the alternative under Section 304 Part I

of the IPC and not of murder punishable under Section 302 of the IPC.

2. Raheemudin had a lathe machine factory at Shah Ganj. The

deceased who was the brother of the Raheemudin used to work in the

said factory. One Afzal was an employee in the factory. The appellant

Mohd. Abid used to visit Afzal in the factory which was objected to by

the deceased Shamimuddin and there was some acrimony on this

account. On the fateful day i.e. 18.6.1990, the deceased along with

Mohd. Zakir, PW1 had gone to Rohtak Road for getting some iron

hardened. At about 11.45 p.m., they returned back and the deceased

parked the scooter at Hamdard Road, Opposite Gali Mir Afzal, Hauz

Qazi. PW1 Zakir went to have milk. Islamuddin, brother of the

deceased was standing in the Gali and the deceased started

conversing with him. At around 11.55 p.m., the appellant came and

gave a hockey blow at the back of the deceased. The hockey broke

into three pieces and thereafter the appellant is alleged to have taken

out a knife and stabbed the deceased on the chest as well as on the

right thigh. The deceased was rushed to the hospital and he died soon

after admission in the hospital.

3. The appellant was arrested after completion of necessary

investigation. He was sent for trial for having committed the murder

of Shamimuddin punishable under Section 302 IPC. The charge was

framed accordingly. The appellant pleaded not guilty to the charge

and claimed to be tried.

4. On completion of the trial, the appellant was found guilty and

convicted under Section 302 IPC in terms of the impugned judgment

dated 17.5.1995 and was imposed a sentence of imprisonment for life

and a fine of Rs.3,000/- in terms of the order dated 22.5.1995. The

appellant has thus assailed the order of the trial Court in appeal.

5. Learned counsel for the appellant, on instructions from the

appellant, who is present in custody, has not pressed the appeal on

merits but he has assailed the impugned judgment on the ground that

as per the factual matrix, ingredients of Section 300 IPC are not

established and the offence committed by the appellant is culpable

homicide not amounting to murder because there was no intention on

the part of the appellant to cause death of the deceased, as such, the

appellant could be convicted only under Section 304 Part II or at best

under Section 304 Part 1 IPC.

6. As per the case of the prosecution, PW1 Mohd. Zakir and PW2

Islamuddin are the eye-witnesses to the occurrence. PW1 Mohd. Zakir

is a hostile witness. He had not supported the case of the prosecution.

According to him, when the occurrence took place, he had already left

the spot for taking milk in Gali Mir Kasim and when he returned back,

he found the deceased Shamimuddin lying on the ground in the

injured condition. From the testimony of PW2 Islamuddin, it transpires

that the background to the dispute was frequent visits of the appellant

to meet his friend Afzal in the factory of the brother of the deceased

during working hours which was objected to by the deceased. It

appears from the evidence that on the fateful night, some altercation

took place because of said reason. As per PW2 Islamuddin, the

appellant had attacked the deceased by striking him at his back with

hockey stick which broke into three pieces and it was thereafter the

appellant had inflicted the knife blow.

7. Learned counsel for the appellant has emphasised that from the

aforesaid version of PW2, it can be safely inferred that there was no

intention on the part of the appellant to cause death of the deceased.

He has submitted that had there been any intention to cause death of

the deceased in natural course of circumstance, the appellant instead

of striking the deceased at his back would have straight away

attacked the deceased with the knife. He has, thus, submitted that

the learned trial Court has erred in concluding that the appellant had

stabbed the deceased with intention to cause his death.

8. On the other hand, learned counsel for the State has submitted

that given the nature of the injury and the manner in which the

appellant has acted i.e. hitting the deceased with a hockey at his back

which is a vital part of the body and thereafter stabbing him with knife

clearly shows that he had every intention to cause death of the

deceased. Thus, he has submitted that he has been rightly convicted

for murder of the deceased punishable under Section 302 of the IPC.

9. We have considered the arguments advanced by learned

counsels for the parties and have perused the record. PW2 Islamuddin

had deposed that the appellant initially hit his brother Shamimuddin

with a hockey which broke due to the impact and then he took out a

Churi from his pocket and gave a blow on the chest of Shamimuddin

and gave another blow on his right thigh. One cannot lose sight of the

fact that if the version of PW2 is wholly true, then there has to be

some time gap between the hitting of the deceased by the appellant

with a hockey and the incident of stabbing. Admittedly PW2 was

present at the relevant time, therefore, it is not possible that he and

the deceased would not have reacted within the time gap in which the

appellant took out the churi. Therefore, in our view, a possibility

cannot be ruled out that some altercation had taken place between

the appellant and the deceased and his brother after the hockey blow,

which resulted in appellant using the knife in the heat of the moment.

If there was an intention to kill as projected by the prosecution, then

the appellant under natural course of circumstance, would have

straight away attacked the deceased with the knife and inflicted a

vital blow. This was not so in the present case as the initial endeavour

was only to cause an injury to the deceased with the hockey stick.

Unfortunately, the knife blow landed on the chest of the deceased

which proved to be fatal. The second injury on the thigh of the

deceased was not on a vital part.

10. From the above, it is obvious that genesis of the occurrence is

the deceased objecting to the visits of the appellant to their factory to

meet Afzal during working hours. This motive obviously is not strong

enough to prompt a person to do away with the life of someone. The

factual matrix discussed above, in our view, negates the possibility of

the appellant having stabbed the deceased with intention to cause his

death and it appears that the unfortunate occurrence is the result of

act committed in the heat of moment.

11. Learned counsel for the appellant referred to the elucidation in

respect of the 4th exception of Sec. 300, IPC made 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"

12. Learned counsel for the appellant has also referred to the

judgement in Pappu Vs. State of M.P., 2009 (4) SCALE 521 to make

out a distinction between the offence of murder as against culpable

homicide not amounting to murder as defined under Sec. 300, IPC in

the following terms:

"7. This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC 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 the gravity of the generic offence, the IPC practically recognizes 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 first 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.

8. The academic distinction between `murder' and `culpable homicide not amounting to murder' has always vexed the Courts. 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 keywords 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.

13. 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 Sec. 304 Part II, IPC with a custodial

sentence of eight years.

14. The legal principles enunciated aforesaid, in our view, would

squarely apply to the facts of the present case wherein also possibility

cannot be ruled out that the stab wound inflicted on the deceased in

the heat of moment and there was no intention on the part of the

appellant to cause death of the deceased. Once there are two

possible views, the view in favour of the accused must prevail and

benefit of doubt has to go to the appellant. Thus, in our considered

view, the instant case falls within the category of culpable homicide

not amounting to murder punishable under Section 304 Part I IPC.

15. The order on sentence is accordingly modified and the appellant

is sentenced to undergo rigorous imprisonment for a period of 10

years and also to pay a fine of Rs.3,000/-, in default of payment of

fine, he shall undergo R.I. for further period of six months.

16. The result is that the appeal is partially allowed and the

impugned judgment of conviction and the order on sentence are

modified accordingly.

SANJAY KISHAN KAUL, J.

SEPTEMBER 03, 2009                        AJIT BHARIHOKE, J.
gm