Khurshid vs The State
2010 Latest Caselaw 2156 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of Decision : 23rd April, 2010


+                          CRL.A. 383/2010


        KHURSHID                                         ..... Appellant
                           Through:      Ms.Nilofar Qureshi, Advocate

                      versus


        THE STATE (N.C.T. OF DELHI)          ..... Respondent
                       Through: Mr.M.N.Dudeja, APP


         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment and order dated

27.01.2010, the appellant has been convicted for the offence

of having murdered Tehsheem Khan @ Taslim Khan at about

11:15 PM on 01.05.2006 at Nawab Road within the jurisdiction

of P.S. Sadar Bazar.

2. As per the prosecution, a motive proved through

the testimony of Mohd.Mansoor Khan PW-1, who is the brother-

in-law of the accused is that the deceased used to brag that he

was having illicit relationship with the wife of accused and

humiliated by these taunts, the accused did the offending act.

3. It may be noted that the deceased is the son of one

Robesha, the sister of Mohd.Mansoor Khan. In other words,

the deceased was the nephew of Mohd.Mansoor Khan and the

accused is the brother-in-law of Mohd.Mansoor Khan.

4. PW-1, PW-10, PW-14, PW-15 and PW-17 were cited

as eye-witness, all of whom have supported the case of the

prosecution, having deposed that on 01.05.2006 they were at

Nawab Road at 11:15 PM having seen of Manne Khan who took

a train to go to his village and all of a sudden, the accused

took out a knife and inflicted a solitary blow on the person of

the deceased. They raised a hue and cry which attracted the

attention of the police and the accused was apprehended at

the spot with a chhuri.

5. The police personnel who caught the appellant at

the spot as deposed to by Ct.Balbir Singh PW-11 is himself.

6. As deposed to by him, from 8:00 PM on 01.05.2006

till next day morning i.e. 8:00 AM on 02.05.2006 he and

Ct.Ikramuddin were deputed at picket duty at Nawab Road. At

about 11:15 PM he heard noise from in front of shop of Salim

Murgewala. He saw a person lying injured at the cover of a

sewer chamber and saw another person with a knife in his

right hand who was running towards Nawab Road, Basti

Harphoolsingh. His instinct told him that the person who was

running obviously was the one who had caused injuries to the

person lying on the road. He chased him and apprehended

him. The person apprehended was the accused from whose

hand he took possession of a blood stained chhuri which he

handed over to the Investigating Officer who reached there

after the FIR was registered and since the clothes of the

appellant were stained with blood, they were taken into

possession by the Investigating Officer.

7. It is true that all the eye-witnesses who are from

the same village and are inter-related to each other as also the

deceased and the accused have deposed to a property dispute

involving the family of the accused and PW-16 who is the co-

brother of the accused, but from said fact alone, it would be

difficult to draw a conclusion that all the eye-witnesses have

gagged up to falsely implicate the accused; having a motive.

If at all, only PW-16 had a motive to falsely implicate the

accused and not the others.

8. But, there is independent corroboration to the

involvement of the appellant in the crime which has surfaced

through the testimony of Ct.Balbir Singh PW-11, against whom

no such motive can be alleged.

9. Ct.Balbir Singh had deposed events which may be

called res gestae evidence. Suffice would it be to state that if

a person is lying injured on the road and at that very moment

another person with a knife in his hand is seen running away

and is apprehended at the spot, said fact and conduct of

running away would be sufficient evidence, without any further

proof, to hold against the guilt of the person, unless the said

person proves a fact which breaks the inference on which the

assumption of guilt is premised.

10. Further incriminating evidence against the

appellant is that lungi Ex.P-5 which appellant was wearing

when he was apprehended as also the knife recovered from his

hand when he was apprehended, vide FSL report Ex.PX have

been found to be stained with human blood of group 'A', which

is the blood group of the deceased.

11. Thus, with reference to the eye-witness account,

the account of res gestae deposed to by PW-11 and the

forensic evidence in the form of the report of the serologist we

agree with the reasoning of the learned trial judge that the

prosecution has successfully established that the fatal blow

with the knife on the abdomen of the deceased was inflicted

by the appellant.

12. Unfortunately, from the fact that death has

resulted, without any enquiry whether the act of the appellant

constitutes the offence of culpable homicide not amounting to

murder, finding returned is that in view of the motive i.e. the

bragging of the deceased that he was having illicit relationship

with the wife of the accused which led the accused to do the

act it has been held that the intention of the accused was to

kill the deceased.

13. Now, the appellant, who was armed with a knife has

inflicted only a solitary stab blow on the abdomen of the

deceased. Having an opportunity to inflict many more blows,

the appellant has inflicted only one blow. He did so when he

and the deceased were walking back in the company of as

many as five relatives. As deposed to by the said five

relatives, the appellant took out the knife from his lungi and all

of a sudden inflicted one stab blow on the person of the

deceased. There were neither any altercations nor any

provocation which preceded the assault.

14. With reference to the motive, it is apparent that the

appellant was chocked with pent up feelings and when his

emotions over came him, little realizing that there were five

other relatives who were seeing what he did and could have

apprehended him at the spot, unmindful of the consequences,

the appellant stabbed the deceased.

15. Now, the time of the incident is 11:15 PM. It was

dark. None can say with certainty that the intention was to

strike a blow at any particular part of the body. But, it can be

said with safety that there was an intention to cause a serious

injury to the deceased for the reason, a knife having blade of

12 cm was used.

16. The post-mortem report Ex.PW-9/A of the deceased

proved at the trial by Dr.K.M.Panigrahi shows that the knife

pierced the skin at the abdomen and cutting through the

muscles underneath ended up at the pancreas. Unfortunately,

the abdominal aorta was cut which resulted in excessive

bleeding and hence death due to shock.

17. Under the circumstances it would be difficult to

concur with the view taken by the learned trial judge that it

can be safely said that the intention of the accused was to kill

the deceased.

18. The fact that a knife, having blade of 12 cm was

used would require knowledge to be imputed to the appellant

that if his blow struck a vital part of the body of the deceased

there was every likelihood of an injury being caused which

could result in the death of the deceased.

19. Thus, the offence committed by the appellant would

be culpable homicide not amounting to murder.

20. In our opinion the appropriate sentence which the

appellant should be required to undergo is RI for a period of 10

years.

21. The appeal stands disposed of modifying the

conviction of the appellant from the offence punishable for the

offence of murder to the offence of culpable homicide not

amounting to murder.

22. For the offence committed by the appellant we

sentence him to undergo RI for a period of 10 years.

23. The appellant shall be entitled to the benefit of

Section 428 Cr.P.C.

24. Since the appellant is in jail, we direct that a copy of

this decision be sent to the Superintendent Central Jail Tihar,

to be made available to the appellant after making entry in the

jail record pertaining to the modified sentence which the

appellant has to suffer.

PRADEEP NANDRAJOG, J

SURESH KAIT, J APRIL 23, 2010 'mr'