Mohd. Abid vs State
2010 Latest Caselaw 3252 Del

             THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment delivered on: 14.07.2010


+            CRL. A. 218/1997


MOHD. ABID                                               ... Appellant

                                    - versus -

STATE                                                   ... Respondent


Advocates who appeared in this case:
For the Appellant       : Ms Meena Chaudhary Sharma
For the Respondent      : Mr Jaideep Malik, APP

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

     1.    Whether Reporters of local papers may be allowed to
           see the judgment ?                                       Yes

     2.    To be referred to the Reporter or not?                   Yes


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

V.K. JAIN, J (ORAL)


1.           This appeal is directed against the judgment and

Order on Sentence, both dated 24th April 1997, whereby the

appellant was convicted under Section 302 of IPC and was

sentenced to undergo imprisonment for life and to pay fine of

Rs500/- or to undergo R.I. for 6 months in default.

2.           The case of the prosecution, as set out in the

statement of informant Bhim Singh, is that at about 6.45 PM

on 26th April 1992, deceased Anand bought two kulfis from a



CRL.A. No.218/1997                                                  Page 1 of 14
 vendor, near Barat Ghar Malkaganj, and gave one of them to

him to eat. Anand, after eating the kulfi, found it to be salty

and asked the kulfi vendor to give another kulfi to him. That

kulfi also was found to be salty. In the meanwhile, Bhola, a

friend of Anand, arrived there along with his two friends and

Anand got engaged in conversation with them. The appellant

Mohd. Abid, who was standing at the cart of kulfi vendor, told

Anand that he had taken 2-3 kulfis and asked him why he was

not paying money for those kulfis. Anand stated that he was

busy in conversation and would leave the spot only after

paying money for the kulfis. The appellant thereupon became

angry and had a scuffle with Anand. He, thereafter took out a

knife, threatened to do away with Anand and inflicted a knife

blow on the left side of his stomach. Anand, who had fallen

down on account of knife blow given on the left side of his

stomach, got up and tried to run away. The appellant then

gave another knife blow on the back side of his left shoulder

and ran away from the spot.

3.           The incident of stabbing is alleged to have been

witnessed by four persons namely, PW-2 Bhola, PW-3 Bhim

Singh, PW-4 Badri and PW-7 Mohan Lal. PW-2 Bhola, when

he was examined in chief, supported the prosecution and

stated that on 26th April 1992, when he reached DESU



CRL.A. No.218/1997                                     Page 2 of 14
 office/sub-station, where he found Anand eating Kulfi, which

he had obtained from a rehriwala and Abid was standing

nearby.      Mohan Lal and Badri, who had accompanied him,

were talking to Anand near rehri. Abid asked Anand to make

full payment to kulfiwala to which Anand replied saying that

he would go after making payment. According to the witness,

a quarrel then took place between Abid and Anand. Abid took

out a knife and stabbed Anand on his back side.        Another

blow, according to him was given in the abdomen of Anand,

who ran after the appellant for a few steps and then fell down.

He and Bhim Singh removed the injured to hospital in a cycle-

rickshaw. However, when this witness was further examined

on 27th September 1994, he turned hostile and claimed that

on that date a party was going on, in which 100 persons had

collected and while in the party he heard a noise. His younger

brother Sanjay came there and informed that a quarrel was

going on. When he reached the place of occurrence, he found

injured Anand and about 100 persons, who had collected

there. He along with 5-6 persons took Anand to hospital.

4.           PW-3 Bhim Singh supported the prosecution and

stated that on 26th April 1992, he along with Anand was going

to a park and on the way they found two ice-cream vendors

near the electric sub-station.   Anand purchased two kulfis



CRL.A. No.218/1997                                     Page 3 of 14
 from one of the vendors. Since the kulfis were salted, Anand

returned them to the vendor and sought another kulfis in lieu

of the salted kulfis.       In the meantime, Bhola, a friend of

Anand, came there along with his companions Badri and

Mohan. The appellant Abid told Anand that he had returned

2-3 kulfis and asked him why he was not making payment for

those kulfis.        Anand thereupon stated that he would leave

after making payment. According to the witness, the appellant

took out a knife and stabbed Anand in the left side of

abdomen, as a result of which he fell down. Anand then got

up but was again stabbed on the back side of his left shoulder.

The appellant then ran away from the spot.          PW-4 Badri

Prasad turned totally hostile and stated that on 26 th April

1992, at about 6.30-7.30 PM when he came back from the

park, he noticed a crowd near DESU office, where people were

saying that Anand had received stab injuries. He maintained

that he did not see the appellant giving knife blows to Anand.

This witness was cross-examined by the learned Addl. PP, but

nothing came out in his cross-examination which may connect

the appellant with the offence alleged to have been committed

by him. PW-7 Mohan Lal also did not support the prosecution

and stated that in the evening of 26th April 1992, he had gone

to Kamla Nagar Park with Badri.         He further stated that a



CRL.A. No.218/1997                                       Page 4 of 14
 quarrel was going on between Anand and another person,

whom he did not know by name, but could identify. He also

stated that the person, with whom Anand had quarrel, took

out a knife and stabbed in the abdomen of Anand. He also

stated that there was exchange of abuses between Anand and

that person, before Anand was stabbed and only one stab

injury was given. He stated that the accused present in the

Court was not the person, who had stabbed Anand.               This

witness was also cross-examined by the learned Addl. PP, but

nothing incriminating came out in the cross-examination,

which may establish that it was the appellant Abid, who had

stabbed deceased Anand.

5.           During postmortem, the following ante mortem

wounds were found on the body of the deceased:

             "2. Stitched wound 2½" long present
             transversely over left hypo-condrium
             region of abdomen (corresponding to injury
             No.1 of MLC).

             4. Stitched wound ½" long on the back of
             left shoulder"

6.           PW-16 SI Samarjeet Singh stated that on 30th April

1992, the appellant, who was in police custody, took them to

Jhuggi No. 83 and produced one bundle of clothes, which was

lying on the roof of the jhuggi.      He further stated that one

dagger Ex.P-1, blade of which was stained with blood, was also



CRL.A. No.218/1997                                        Page 5 of 14
 produced by the appellant.         PW-26 Inspector Bir Singh has

corroborated the deposition of PW-16 as regards recovery of

clothes and dagger at the instance of the appellant from

Jhuggi No.83. Blood of human origin was found on the clothes,

when examined in CFSL.            The origin of blood found on the

dagger could not be ascertained.

7.           After   arguments,    the   learned   counsel   for   the

appellant, on instructions from the appellant, who is present

in the Court, states that considering the evidence produced by

the prosecution during trial, she does not dispute complicity of

the appellant in the killing of deceased Anand and her only

contention is that the appellant ought to have been convicted

under Section 304 instead of Section 302 of IPC.

8.           Exception I to IV to Section 300 of IPC specify the

cases, where culpable homicide will not amount to murder.

Exception IV to Section 300 of IPC provides that culpable

homicide is not murder if (i) it is committed without

premeditation; (ii) it is committed in a sudden fight; and (iii)

the act is committed in the heat of passion upon a sudden

quarrel, provided the offender does not take any undue

advantage and does not act in a cruel and unusual manner.

9.           This Exception deals with a case where the heat

generated by passion clouds sober reasoning of the man and



CRL.A. No.218/1997                                           Page 6 of 14
 compels him to do an act which he, would not have done in a

sober state of mind. In such a case, there is no deliberation or

determination to fight with each other and the quarrel takes

place at the spur of the moment for which both the parties are

to be blamed. In a case of this nature, the quarrel may have

been started by one party, but it would not have taken a

serious turn had it not been aggravated on account of some

act or conduct of other party. The number of wounds suffered

by the deceased will not be a decisive factor to decide whether

a case falls under the main Section or it falls under Exception

IV to the Section, the requirement of the Section being that the

accused must have acted in a fit of anger and the occurrence

should not be premeditated or preplanned.

10.          In the present case, admittedly, there was no enmity

between the appellant and deceased Anand. Admittedly, there

was no preplanning or premeditation in causing death of

deceased Anand. In fact, the appellant and the deceased were

not even known to each other before this incident took place.

It has come in the FIR as well as in the deposition of witnesses

that a scuffle had preceded the stabbing of the deceased. The

site plan Ex.PW 23/C shows point „A‟ as the place where the

appellant is alleged to have grappled with deceased Anand,

meaning thereby that a grappling had taken place before the



CRL.A. No.218/1997                                       Page 7 of 14
 deceased was stabbed by the appellant.      In the Brief Facts

prepared by the Investigating Officer, it has been stated that

the appellant had picked up a quarrel with deceased Anand.

Thus it cannot be disputed that a quarrel had ensued between

deceased Anand and the appellant and during the course of

quarrel they had also grappled with each other. Ex.PW 9/A is

the MLC of the appellant at the time he was examined in

Hindu Rao hospital on 29th April 1992. The MLC shows that

injuries were found on the person of the appellant when he

was examined in the hospital. Presence of injuries on the

person of the appellant at the time of his examination in

hospital indicates that during the course of the quarrel, which

took place between him and deceased Anand, some injuries

though minor in nature, were caused by the deceased to the

appellant.

11. The facts and circumstances of the case leave no

reasonable doubt that the quarrel, which ensued between the

appellant and deceased Anand, was a sudden one for which

both the parties were responsible, though the extent of the

blame which can be apportioned to the deceased may be much

less than what can be apportioned to the appellant. Though it

has come in evidence that the appellant was carrying a

knife/dagger with him, he could not have been carrying the

weapon for the purpose of stabbing Anand since he could not

have foreseen or anticipated that there will be an altercation

followed by a quarrel between him and deceased Anand at the

cart of the kulfi vendor.

12. Though according to the witnesses when the

appellant asked Anand to pay the price of the kulfi, which he

had bought, the deceased maintained that he would leave the

spot after paying the price of the kulfi. We are not inclined to

accept this part of the deposition of the witness for the simple

reason that had the deceased agreed to pay the price of salted

kulfis, there would have no further altercation and no quarrel

would have taken place between the appellant and the

deceased. Considering the normal course of human conduct,

when asked by the appellant to pay the price of kulfis, the

deceased must have resisted paying the same on the ground

that since the kulfis were salty, he was not bound to pay any

price for them to the kulfi vendor. The altercation must have

accelerated and quarrel must have ensued only on account of

the refusal of the deceased to part with money for the kulfis

purchased by him.

13. In the present case, two blows were given to deceased

Anand. The knife blow given in the abdomen was found to be

2 ½ inch long whereas the injury on the back of his left

shoulder was found to be ½ cm long. The injury in the

abdomen being the first injury must have been given in the

heat of passion on account of quarrel, followed by the

grappling that took place. It has come in the evidence that

when Anand got up after receiving first injury, the second

injury was given on the back side of his left shoulder. Had the

intention of the appellant been to kill Anand seeing that the

first blow given by him had not proved to be fatal for Anand,

the second blow would have been given on some vital part of

the body instead of giving at the back of his shoulder so that

there was no chance of survival of the deceased.

14. In Prakash Chand vs. State of H.P.: 2004 (11) SCC,

there was a quarrel between the deceased and the accused

when the dogs of the accused entered the kitchen room of the

deceased. Consequent to the verbal altercation that ensued,

the accused went to his room, took out his gun and fired a

gun shot at the deceased, as a result of which pellets of the

gun shot pierced the chest of the deceased, resulting in his

death. It was held by the Supreme Court that proper

conviction of the accused would be under Section 304 Part I of

IPC and not under Section 302 thereof.

In Posuram Deshmukh vs. State of Chhatisgarh:

AIR 2009 SC 2482, the deceased had blocked the water course

to the field of the accused and he refused to remove the

blockade despite request from the accused and some

altercation took place between them. The accused persons,

one of whom was carrying a square iron plate fitted at the one

end of a stick and the other who was carrying ladhi attacked

the deceased with the weapons they were carrying, causing his

death. It was held by the Supreme Court that appropriate

conviction of the appellant/accused would be under Section

304 Part I of IPC.

In Shaikh Azim vs. State of Maharashtra: 2008 (11)

SCC 695, the deceased and his son were present at their

house alongwith other family members. They noticed some

filth thrown in the backyard of their house from the side of the

house of the accused and expressed their displeasure in this

regard. The family members of the accused also abused them.

One of the accused holding a stick, the other holding an iron

rod and the third accused holding the stick, came out of their

house and gave blows on the head of the deceased. When his

son rushed to his rescue, the accused also gave injuries to him

with iron rod and sticks. The deceased succumbed to the

injuries caused to him. It was held that the appropriate

conviction of the appellant/accused would be under Section

304 Part I of IPC.

In Sekar vs. State: 2002 (8) SCC 354, there was

exchange of hot words between the deceased and accused on

release of a sheep which was destroying the crops of the

deceased. The accused and others got the sheep untied which

led to exchange of hot words between the parties. When the

deceased fell down after the accused had given injuries on his

head and left shoulder, the accused again inflicted another

blow on his neck. It was held that the case was covered by

Exception IV to Section 300 of IPC.

In Surinder Kumar vs. Union Territory: AIR 1989

SC 1094, there was a heated argument between the parties

followed by uttering of filthy abuses. The appellant/accused

got enraged, picked up a knife from the kitchen and gave one

blow on the neck of the witness and three knife blows, one on

the shoulder, the second one the elbow and the third one the

chest of the deceased. The Supreme Court convicted the

appellant under Section 304 of IPC.

15. In the facts and circumstances of the case, we are of

the view that since there was no premeditation or preplanning,

there was no previous enmity between Anand and the

appellant, the appellant had no motive to commit murder of

the deceased and the injuries were caused to the deceased

during the course of a quarrel and in a heat of passion on a

very trivial matter involving a few rupees towards payment of

the price of kulfis purchased by the deceased, the case is

clearly covered under Exception IV to Section 300 of IPC. We

accordingly alter the conviction of the appellant from Section

302 to Section 304 Part II of IPC.

16. The learned counsel for the appellant after verifying

from the record states that the appellant has already spent

more than six years in Jail, excluding the remission earned by

him during the period he remained in custody. This statement

is not disputed by the learned counsel for the respondent and

is also otherwise borne out from the record of the case, which

includes the nominal roll dated 06.06.1998.

Admittedly, the appellant comes from a weaker

section of the society who could not even engage a counsel of

his choice and an Amicus Curiae had to be appointed by this

Court to represent him in this appeal. The appellant, who is

present in the Court, states that he has six children, including

three daughters, to take care of. The learned counsel for the

respondent fairly concedes that the appellant has no previous

conviction and is not involved in any other case. Taking into

consideration all the facts and circumstances of the case,

including economic and social status of the appellant, he is

sentenced to undergo R.I. for the period already spent by him

in custody and is also sentenced to pay fine of Rs 500/- or to

undergo S.I. for two weeks, in default. He is granted two

weeks to deposit the fine.

V.K. JAIN, J

BADAR DURREZ AHMED, J JULY 14, 2010 Ag/bg