Ali Jaan vs State & Ors.
2010 Latest Caselaw 2889 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of decision:2nd June,2010

+                        CRL.A. 696/2010

        ALI JAAN                             ..... Appellant
                         Through:   Mr.Tashriq Ahmad and
                                    Mr.Alam Mizaz, Advocates

                    versus

        STATE & ORS                    ..... Respondents
                         Through:   Ms.Richa Kapoor, 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)

Crl.M.A.No.7560/2010 (Exemption)

Allowed.

Crl.A.No.696/2010 & Crl.M.A.No.7561/2010(Delay)

1. Ali Jaan father of Mulla Ji (the deceased) has filed

the above captioned appeal and has sought delay to be

condoned in filing the appeal. The delay in filing the appeal is

of 58 days.

2. It is settled law that if issue arising in appeal is

meritorious and needs consideration and further, if a manifest

miscarriage of justice has resulted as a result of the view taken

by the learned Trial Judge, the Appellate Court has to be liberal

in condoning the delay in the appellant availing the appellate

remedy. Thus, we are considering, on merits, the view taken

by the learned Trial Judge, for if, we find that the view taken is

perverse or has resulted in a manifest miscarriage of justice,

we would be inclined to condone the delay in filing the appeal.

3. A two-fold grievance has been raised in the appeal

filed by Ali Jaan, the unfortunate father of Mulla Ji who suffered

an untimely death on 10.09.2006.

4. Two accused, Lakhan and Chander were sent for

trial. Case projected was that they owed money to Mulla Ji and

when Mulla Ji used foul words against them on account of the

two not returning his money, the two accused protested, Mulla

Ji slapped Chander. This act invited retaliation. The two

accused joined in a concerted action to cause injuries with

scissor to Mulla Ji and fled. Mulla Ji died as a result of the

injuries. The prosecution brought into aid two eye-witnesses.

Rahul Kumar PW-6 and Kavinder PW-8. The prosecution also

took the help, to prove a stated dying declaration, by

examining Mintoo PW-7.

5. Rahul Kumar PW-6 deposed :-

"On 8.9.2006, I was present in the aforesaid factory premises. After finishing their job that day, the accused persons left. At about 9:00 pm, they again returned. Shakil @ Mullaji was present in the factory

at that time. Mullaji demanded his money from accused Lakhan and Chander. They told that at that time there was no money with them to pay their debt to Mullaji. Mullaji and Lakhan and Chander reasoned with each other. Mullaji gave a slap to Chander. At that juncture, Chander exhorted Lakhan to caught hold of Mullaji and declared that day they will clear accounts of Mullaji. Chander lifted a scissor lying on a machine and gave a stab blow in his abdomen, thigh and other parts of the body. Thereafter, Lakhan and Chander ran away. Lakhan jump down from the roof while Chander went down stairs."

6. Kavinder PW-8 deposed:-

"On 8.9.2006, I was present in the factory. Some workers including Pintoo were on leave on the occasion of Suberaat. Myself, Rahul, Mullaji, Chander and Lakhan were present in the factory. About 5:00-6:00 pm, Chander, Lakhan and Mullaji had also left factory. They returned about 9:00 pm in the factory. All had consumed liquor. The factory was being run on the second floor. Chander, Lakhan and Mullaji came on the second floor of the factory. Mullaji demanded his money back from chander and Lakhan, who are real brothers. Rahul was also present there. Chander and Lakhan uttered that they were not having money at that time. Chander, Lakhan and Mullaji abused each other. Mullaji slapped Chander. On this, Chander exhorted Lakhan to hold Mullaji and further told that they will finished the account of Mullaji. Lakhan caught hold Mullaji by his hands. Chander picked up a scissors, lying on the machine and gave 3-4 scissors blows on the person of Mullaji. Mullaji sustained one scissors blow on his belly and other on the other side of the belly and third one on the thigh. Mullaji sat on the ground pressing his belly. Lakhan and Chander escaped from the spot."

7. Mintoo PW-7 deposed:-

"I went to arrange a vehicle and arranged a Maruti Van from Street No.9. By that time, Rahul Tomer also reached the factory. It was about 7:00 or 7:15 pm. Mullaji requested me to remove to a hospital and told that he was not in position to reach his house. Accordingly, myself and Rahul Tomer removed Mullaji to SDN Hospital. During my discourse with Mullaji, Mullaji had told me that an altercation had taken place between him and Lakhan and Chander on the matter of money and he has consumed liquor. Lakhan and Chander had stabbed him with scissor."

8. Discussing the testimony of the witnesses, the

leaned Trial Judge has taken a view that Rahul Kumar has no

where deposed that when Chander exhorted Lakhan to catch

hold of Mulla Ji and declared that they would clear the account

of Mulla Ji, Lakhan caught hold of Mulla Ji. No doubt PW-8 has

stated that on Chander's exhortation Lakhan caught hold of

Mulla Ji, but in view of the conflicting testimony view taken is

that Lakhan has to be acquitted.

9. The learned Trial Judge has also referred to

statement made first at point of time to the Investigating

Officer by Rahul Kumar being Ex.Pw-6/A in which Rahul Kumar

has not stated that when Chander gave the exhortation,

Lakhan caught hold of Mulla Ji.

10. It is urged by learned counsel for the appellant that

in view of the testimony of PW-8 as also the testimony of PW-

7, it is but apparent that even Lakhan participated by catching

hold of Mulla Ji.

11. It is settled law that where a view taken by learned

Trial Judge is a reasonable and a possible view, the Appellate

Court would not interfere merely upon the premise that

another view is equally plausible or may be a little better.

12. From the testimony of PW-6 and PW-8 it is to be

noted that on 08.09.2006 Mulla Ji demanded money from

Lakhan and Chander. They replied that they had no money.

Mulla Ji started reasoning with Lakhan and Chander and the

verbal altercation resulted in Mulla Ji giving a slap to Chander

who thereupon retaliated.

13. It is thus apparent that every-thing happened all of

a sudden. It was at the juncture when Mulla Ji gave a slap to

Chander that Chander exhorted. But it may happen that

before the person who receives exhortation reacts to the

exhortation, he who gives the exhortation has already

completed what he had desired to do. In the instant case it is

possible that before Lakhan could react to the exhortation by

Chander, Chander picked up the scissor lying on a machine

and stabbed Mulla Ji. In fact, if we read the testimony of PW-6,

this appears to what had happened.

14. It is thus not possible for us to conclude that given

the evidence before it, the view taken by the learned Trial

Judge is wrong or has resulted in miscarriage of justice.

15. As regards the stated dying declaration deposed to

by PW-7, suffice would it be to state that he has deposed that

Mulla Ji told him that Lakhan and Chander had stabbed him

with scissors. It be noted that witness has not stated that

deceased told him that Lakhan caught hold of the deceased

when Chander stabbed him.

16. Given the back drop of what happened, in layman's

words, anyone would say that Lakhan and Chander have

stabbed the deceased, but in a Court of law, as a matter of

fact only Chander would be the one who had stabbed the

deceased. As against Lakhan, his act has to be the one in

respect whereof deposition is given as to what Lakhan did.

Thereafter, with the aid of Section 34 it would be the duty of

Court to draw the requisite inferences required by law.

17. We do not find any error committed by the learned

Trial Judge while acquitting Lakhan.

18. The second issue raised in the appeal is that having

inflicted as many as four incised wounds on the person of

Mulla Ji, Chander cannot escape liability of being convicted for

the offence of murder.

19. The submission ignores Exception 4 to Section 300

IPC. As per Exception 4, culpable homicide is not murder if it is

committed without premeditation in a sudden fight in the heat

of passion upon a sudden quarrel and when the offender

having taken no undue advantage nor acted in a cruel or

unusual manner.

20. With reference to the testimony of Rahul Kumar it is

apparent that the accused did not visit the factory with any

premeditated intention. Their presence in the factory became

an opportunity for Mulla Ji to demand his money from them

and when they responded that they had no money to repay

the debt, Mulla Ji lost his cool. A verbal altercation ensued

with Mulla Ji as party No.1 and Lakhan and Chander as party

No.2. During the verbal altercation, Mulla Ji gave a slap to

Chander who instantly picked up a scissor lying on a machine,

meaning thereby he never came armed. Exception 4 to

Section 300 IPC is clearly attracted. It cannot be said that

Chander has acted with cruelty or has taken undue advantage.

21. Holding that the offence committed by Chander is

that of culpable homicide not amounting to murder, we find

that the sentence imposed upon Chander is to undergo RI for a

period of 10 years and pay fine in sum of Rs.5,000/-.

22. The sentence imposed is adequate; in any case

cannot be labeled as shockingly disproportionality low.

23. No case is made out to interfere with the view

taken by the learned Trial Judge.

24. Before concluding we may note that learned

counsel for the appellant has very ably rendered assistance

and along with the appeal has placed before us, for our perusal

and consideration, the testimonies of all the eye-witnesses.

25. We place on record our appreciation for the diligent

manner in which the young counsel has presented the appeal

before us.

26. Having concluding the discussion on merits, on the

issue of limitation, since the case sought to be projected in the

appeal is not a worthy case, we are not inclined to condone

the delay in filing the appeal.

27. The appeal, as well as the application seeking delay

to be condoned is accordingly dismissed.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

JUNE 02, 2010 'mr'