Mehboob Alam vs State
2010 Latest Caselaw 372 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Reserved on: 20th January, 2010
                      Judgment Delivered on: 22nd January, 2010

+                     CRL.APPEAL NO.763/2005

       MEHBOOB ALAM                         ......Appellant
           Through: Mr.Sumeet Verma, Advocate

                                 Versus

       STATE NCT OF DELHI                ......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.

1. Though the point urged is short and one would have

expected an instant decision, we were constrained to reserve

the appeal for pronouncing judgment for the reason by the

time arguments concluded there was hardly any time left to

pen the judgment.

2. Arguments were concluded on 20.1.2010.

3. With reference to the testimony of Ct.Ram Mehar

PW-3 and the testimony of HC Babu Lal PW-13 who had

apprehended the appellant at the spot itself, learned Trial

Judge has held that the prosecution has successfully

established that the appellant is guilty of the offence of having

murdered Ashiq on 2.5.2003.

4. Conceding that the testimony of the two police

officers was without blemish, only submission urged by

learned counsel for the appellant was that the act of the

appellant read in conjunction with the post-mortem report

Ex.PW-15/A of the deceased and the opinion of Dr.Manoj who

prepared the post-mortem report pertaining to the cause of

death would, at best, make out a case for conviction for the

offence of culpable homicide not amounting to murder.

5. The post-mortem report Ex.PW-15/A notes and

records the following external injuries on the body of the

deceased:-

"1. Laceration middle of the forehead, 3 cm above right eyebrow running upwards measuring 3 cm x 1 cm.

2. Contusion left shin linear measuring 3 cm x 2 cm.

3. Contusion and pressure marks seen on the neck below thyroid cartilage with finger impression, one on the right side and three on the left side."

6. As opined by Dr.Manoj, cause of death is, to quote:

"the death could have been by head injury".

7. It has to be noted at the outset that the head injury

is a laceration in the middle of the overhead 3 cm above right

eyebrow running upwards measuring 3 cm x 1 cm.

8. Internal examination recorded in the MLC shows the

internal injuries were sub arachnoid and subdural

haemorrhagic over frontal region. The trachea and breochi

showed large amount of congestion and contusion with lungs

congested. The stomach contained 100 ml liquid. What was

the liquid? Apparently liquor. We say so for the reason, as

deposed to by Ct.Ram Mehar PW-3 and as recorded in the

seizure memo Ex.PW-3/E, from the spot where Ashiq was

retrieved and the appellant was apprehended, a half liquor

bottle and an empty glass were recovered. The appellant was

medically examined on 3.5.2003 and as per MLC „Mark A‟ was

found intoxicated.

9. As deposed to by Ct.Ram Mehar and HC Babu Lal,

the two police officers were posted at Police Post Ranjit Nagar

under the jurisdiction of PS Patel Nagar and were on patrolling

duty, at 8:45 PM they reached Madhav Setu and heard sound

of water splashing in the drain under the bridge. They looked

down and saw the appellant holding a person by the neck and

attempting to drown him by pushing him in the stream of

water. They saw the appellant pushing a man 4 to 5 times in

water i.e. they saw the appellant catch hold of a man from the

scuff of his neck and thrust the head down. Obviously, the

victim would push himself back and the appellant would re-

push him down. HC Babu Lal jumped into the drain and

disentangled the appellant. Thinking that water had

congested the lungs of the victim they attempted to revive the

victim by making him lie on the ground and tried to pump out

the water but could not do anything. The Chowki In-charge

was informed who in turn informed the SHO. ASI Rajinder

Singh came to the spot and took the victim to the hospital.

They handed over the custody of the appellant to the SHO who

prepared the seizure memo.

10. A photographer was summoned who took 4

photographs Ex.PW-1/A-1 to ex.PW-1/A-4.

11. Drawing out attention to the said photographs

learned counsel pointed out that the deceased is lying nearly

nude with only a shirt which is upturned on the body. Counsel

stated that as told to him by his client, the deceased

attempted to sodomize the appellant who reacted when the

indecent overture was made. Counsel stated that the

appellant and the deceased were good friends and it is obvious

that both of them were consuming liquor when aforesaid

incident took place. Learned counsel highlighted the fact that

100 ml liquid was found in the stomach of the deceased and a

half bottle of liquor and a glass were recovered from the spot.

Arguing further, learned counsel urged that with reference to

the post-mortem report and the opinion pertaining to the

cause of death of the deceased the doctor has not recorded

that the injury caused on the deceased and in particular injury

No.1 was sufficient in the ordinary course of nature to cause

death. Counsel urges that the opinion recorded by the doctor

is that "the death could have been caused by head injury".

Thus, learned counsel urges that the offence made out is

culpable homicide not amounting to murder, punishable, at

best, under Section 304 Part-II IPC.

12. Learned counsel for the State urged that from the

testimony of the two police officers it is apparent that the

appellant intended to cause the death of the deceased whose

head he was repeatedly thrusting inside the drain where water

was flowing. Counsel urged that but for the two police officers

intervening; the appellant would have certainly drowned the

deceased. That the deceased died because his forehead

struck some hard object resulting in internal injury to the brain

is just a matter of chance. With respect to the plea urged by

learned counsel for the appellant that the appellant had

informed the counsel that during liquor session the deceased

attempted to sodomize the appellant and the appellant acted

in defence, learned counsel urged that no such defence has

been predicated at the trial. The appellant has not even taken

said defence when examined under Section 313 Cr.P.C.

13. From the photographs of the dead body of the

deceased which were taken at the spot itself it is apparent that

the deceased is completely naked save and except a shirt on

his person which has been tucked up. That the deceased

consumed liquor is a fact proved from the post-mortem report

and that a half liquor bottle and a glass were recovered from

the spot. Even the appellant was intoxicated.

Notwithstanding that the appellant has taken no such defence

of an indecent exposure but the photographs do show an

indecent exposure by the deceased.

14. As held in the decision reported as Kashiram & Ors.

vs. State of M.P. (2002) 1 SCC 71, notwithstanding the fact

that an accused has made no suggestions to the witnesses of

the prosecution pertaining to a defence and has not even

taken a defence while leading evidence in rebuttal, but if a

probable defence emerges from the evidence led by the

prosecution at a criminal trial pertaining to serious offences, it

is the duty of the Court to see whether there is a possibility of

something having happened as urged during arguments.

15. From the testimony of the two police officers it is

difficult to draw conclusive opinion that the appellant was

intending to cause the death of the deceased.

16. Absence of any possible motive even attempted to

be proved is another handicap in the instant case. We add a

caveat; absence of motive is not to be treated as fatal to the

case of the prosecution, where otherwise, the prosecution has

successfully established its case.

17. The distinction between murder and culpable

homicide not amount to murder has been laid down by the

Supreme Court in a number of decisions and we do not intend

to be academic by referring to the case law. To summarize,

we may state that the law declared is that if on referring to a

Section 300 IPC, the Court is of the opinion that the killing does

not come within any one of the four clauses than one has to

refer to Section 299 IPC. If the killing comes within the second

part of Section 299 IPC, that which relates to the intention of

causing a bodily injury likely to cause death, it comes under

Section 304 Part-I IPC and if there is no intention but only

knowledge, that is to say, if there is no intention to cause

death or a bodily injury likely to cause death, but only

knowledge that death is likely to be caused, the offence is

under Section 304 Part-II IPC. Cases under exceptions to

Section 300 IPC will fall under Section 304 Part-I IPC if death is

caused by an act done with the intention of causing death or

done with the intention of causing a fatal injury. The offence

would be murder if the act and the intention are covered by

either of the four clauses of Section 300 IPC. Clause-1 and

Clause-2 in their application do not create much problem. But

Clause-3 and Clause-4 in their applicability do create

problems. The best way to appreciate Clause-4 is to keep in

mind illustration (d) to Section 300 IPC.

18. Problems do arise when Clause-3 of Section 300

IPC, which refers to a bodily injury sufficient to cause death is

to be contrasted with Section 299 IPC, where reference is

made to the bodily injury likely to cause death. The distinction

between the two is one of degree, for the reason the

expression „likely to cause death‟ connotes that there is a less

probability of death and the expression „sufficient to cause

death‟ means that the probability of death is greater. But, it is

easy to state so but very difficult to apply in relation to the

facts.

19. This problem is extremely grave in India for the

reason we find witnesses tend to use vague words while

describing an event and do not state the same with precision.

The prosecutors tend to make their witnesses speak without

precision and the result is, if we may use the expression:

„blogged statements made by the witnesses‟. Even when the

doctors are examined, in borderline cases, no questions are

put to the doctor concerned, who has conducted the post-

mortem, to throw light on the grey areas.

20. This has happened in the instant case. A violent

blow on the forehead while the victim was being thrust down

and probably hit a hard surface has produced contusions and

extravasation of blood on the surface of the subcutaneous

tissue of the brain. A somewhat situation existed in the

decision reported as Reg vs. Govinda ILR (1876) 1 Bom.342. It

was held in the said case that the offence was culpable

homicide not amounting to murder.

21. The facts of the case were that the accused in the

said case kicked his 15 years old wife and struck her several

times on which she fell on the ground and the accused put his

one knee on the chest and struck her two or three times on the

face. One of the two blows, having been violent, took effect on

the girl‟s left eye producing contusion. The skull was not

fractured (as in the instant case) but the blow caused an

extravasation of blood in the brain and the girl died as a

consequence, either on the spot or very shortly thereafter.

22. Taking guidance from the said decision, we hold

that the offence committed by the appellant is culpable

homicide not amounting to murder.

23. We sentence the appellant to undergo

imprisonment for the period already undergone noting that as

per the nominal roll of the appellant sent to this Court, as of

today, the appellant has already undergone a sentence of 6

years 8 months and 16 days and he had earned remissions of

1 year 4 months and 3 days.

24. Copy of this order be sent to the Superintendent,

Central Jail, Tihar with a direction that if not required in any

other case, the appellant be set free forthwith.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE JANUARY 22, 2010 dk