Mushtak vs State
2010 Latest Caselaw 183 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                            Date of Decision: 14th January, 2010


+                   CRL.APPEAL NO.272/2004

       MUSHTAK                                   ......Appellant
           Through:     Mr.Rajesh Mahajan, Advocate.

                              Versus

       STATE                                 ......Respondent

           Through:     Ms.Richa Kapoor, A.P.P.


       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 the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

PRADEEP NANDRAJOG, J.(Oral)

1. The rukka prepared on the basis of the statement of

Musharraf PW-1 reads as under:-

"I have been living in Delhi for the last eight months. I had worked on a Tata vehicle in Badarpur for two months earlier and for the last six months I have been working in Patodi House as a rickshaw puller and ply cycle rickshaw on hire from Mohammad Deen a cycle rickshaw contractor. I sleep on the pavement, along

with me there are number of boys who ply the cycle rickshaw on hire from Mohammad Deen, the contractor Jabir S/o Nabi Mohammad, r/o village Sirsol, Distt. Badayun, U.P. (deceased) was one of them. One Mustak S/o Razzak a resident of the village of Jabir also works as a rickshaw puller. We all sleep on the pavement near the rickshaw garage in Patodi House. Jabir (deceased) and Mustak (accused) used to gamble by the spin of the coin. They had quarreled over this on many occasions. Yesterday night, I along with Jabir and some other rickshaw pullers including Yunus S/o Sukhey and Latif had slept on the pavement opposite house No.1510, Patodi House. Before this at about 10.00 PM Jabir and Mustak had quarreled with each other over a quilt. Mustak had given beating to Jabir and had also threatened "KI MAIN TUJHE DEKH LUNGA" thereafter Jabir had gone to ply my rickshaw. I had returned at about 12.00 AM and had settled near Jabir in the quilt of Yunus. At that time Jabir was awake. I had brought cigarette for him. He had smoked cigarette where after we all had gone to sleep. About half an hour before dawn I was about to get up in order to urinate. I saw Mustak who was coming from the shop of Mohammad Deen (contractor) and was having a rickshaw Dhura in his hand. As soon as he came there he gave blow with Dhura on the head of Jabir. The first blow, however fell on the ground. I asked him "KYA KAR RAHA HAI" but in the meanwhile he lifted the Dhura and again gave a blow with the same on the head and right ear of Jabir, which were not covered with the quilt. He ran away after throwing away the Dhura and also left the chappal worn by him in this commotion. On receiving the Dhura blow Jabir cried. I made Yunus and Latif to wake up and told them that Mustak had given a Dhura blow on the head of Jabir and had run away. We saw blood coming out of the mouth and ear of Jabir. I tried to wake up the other rickshaw pullers who were sleeping on the pavement but was unable to do as they were fast asleep. We all got frightened. Jabir had stopped breathing. We picked up our quilt and settled at some distance in front of him. After it was dawn I went to Kucha Chellan to a relation of Jabir,

namely Irfan who works on a wooden tall and belongs to his village. I told him about this incident and brought him to the spot. In the meanwhile somebody had rung up the police. I am an eyewitness to this occurrence Mustak has committed the murder of Jabir with the help of a rickshaw Dhura over petty quarrel. Action be taken against Mustak. I have heard my statement, which is true."

2. Musharraf has appeared as PW-1 and has supported

the case of the prosecution. After going through his deposition

and the cross examination, learned counsel for the appellant

concedes that there are no serious embellishments in the

testimony of Musharraf and there is no reason why his

testimony should not be believed.

3. Vide impugned judgment and order dated 28.1.2003

the appellant has been convicted for the offence of murder.

4. It has been held by the learned Trial Judge that the

testimony of PW-1 proves that there was previous hostility

between the accused and the deceased and that the two had a

quarrel at 9:00 PM. The weapon of offence used was a dhura

which was a lethal weapon and can be dangerous. It has been

held that the accused aimed the blow at the head; the situs of

the injury was a vital part of the body and hence offence

punishable under Section 302 IPC was made out.

5. With reference to the finding of there being past

enmity, sufficient would it be to state that as per Musharraf, the

accused and the deceased used to gamble by flipping a coin

and on many occasions they would quarrel. The accused and

the deceased are rickshaw pullers and are migrants to the city

of Delhi. That they used to regularly gamble and quarrel does

not mean that there was enmity between the two. The quarrel

with relation to gambling has to be understood as one being the

concomitant of the other. Gamblers do pick up petty quarrel

with each other accusing that one of the two is cheating. These

are petty quarrels and in our opinion the correct expression to

be used is not the word „quarrel‟ but the word „squabble‟.

6. As regards the issue that a dhura was used and the

opinion of the learned Trial Judge that the dhura is a dangerous

weapon, it may be noted that dhura is an axle. The sketch of

the axle in question has been drawn by the doctor who

conducted the post-mortem when he gave the opinion with

respect to the injuries caused by the axle i.e. the opinion

exhibited as Ex.PW-8/C.

7. The learned Trial Judge has thus incorrectly held that

a lethal weapon of offence was used. It is apparent that a

common object available with rickshaw pullers i.e. the axle has

been picked up and used. What we intend to convey is that the

appellant has not procured a weapon as conventionally

understood; intending to use the same for a particular purpose.

8. As per the post-mortem report Ex.PW-8/A, a single

blow was inflicted on the skull of the deceased. It is true that a

skull is a vital part of the body but what has been lost sight of

by the learned Trial Judge is the fact that a single blow was

inflicted when it was dark. As per Musharraf the blow was

inflicted half-an-hour before dawn. We note that the date of the

incident is the intervening night of 18th and 19th January 2001.

9. As held in the decision reported as Virsa Singh vs.

State of Punjab AIR 1958 SC 465, where it is found that there

was no intention to cause death and the death is a result of an

injury, it has to be ascertained whether the particular part of the

body on which the injury was caused was intended to be

injured. Whenever assaults took place in darkness and a single

blow is inflicted, view taken by the Courts is that it become

difficult to return a determinative finding that the blow was

directed on a particular part of the body or that it was intended

to cause the injury on the part of the body where the injury has

actually been caused.

10. In our opinion, the facts of the instant case do not

make out a case of the offence punishable under Section 302

IPC being committed. The act of the appellant at best makes

out the offence punishable under Section 304 Part-I IPC.

11. The appeal is partly allowed. The conviction of the

appellant for the offence of murder is set aside and the

appellant is convicted for the offence punishable under Section

304 Part-I IPC.

12. We inflict the sentence upon the appellant to

undergo rigorous imprisonment for ten years.

13. The appellant shall be entitled to the benefit of

Section 428 Cr.P.C.

14. Noting that the appellant is in jail since the time of

his arrest i.e. 19.1.2001 we direct that a copy of this judgment

and order be sent to the Superintendent, Central Jail, Tihar for

necessary action.

15. For the benefit of the Superintendent, Central Jail,

Tihar, we may note that as of today i.e. 14.1.2010 the appellant

has undergone an actual sentence of 5 days less than 9 years.

If appellant has earned remissions of 1 year and 5 days i.e. the

remaining unexpired portion of the sentence imposed upon him,

the appellant would be set free forthwith if not required in

custody in any other case.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE JANUARY 14, 2010 dk