Mohd. Sharif vs State
2010 Latest Caselaw 5445 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+               Crl. Appeal No. 468/1999

%                                              Reserved on: October 29, 2010

                                              Decided on: 30th November, 2010
MOHD. SHARIF                                                    ..... Appellant
                                 Through:   Mr. Rajesh Mahajan, Advocate

                        versus
STATE                                                         ..... Respondent
                                 Through:   Mr. Manoj Ohri, APP for the State


Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                      Not necessary

2. To be referred to Reporter or not?                   Yes

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

MUKTA GUPTA, J.

1. This Appeal filed by Mohd. Sharif, the Appellant, challenges his

conviction under Sections 304 IPC and sentence of Rigorous Imprisonment

for seven years and a fine of `1,000/- and in default of payment of fine

Simple Imprisonment for six months, awarded by the learned Additional

Sessions Judge.

2. The case of the prosecution in brief is that on 19th September, 1991

Mohd. Sharif and his mother Manbari gave leg and fist blows to one

Kamruddin resultantly causing his death. The FIR was lodged on the

complaint of Suberati, the father of the deceased Kamruddin. Suberati was

not examined during the trial since he had expired, however, the prosecution

examined PW-1 Shaukat Ali, the neighbor and PW-3 Ms. Zehnab, the wife of

the deceased. According to Ms. Zehnab the Appellant along with his mother

gave leg and fist blows resulting in the death of Kamruddin. Even PW-1

states that he saw Kamruddin and the Appellant quarreling (fighting). The

father of Kamruddin and Sabir intervened and tried to separate them.

Kamruddin's father took Kamruddin with him and went out from that street.

3. Learned counsel for the Appellant contends that the statement of Ms.

Zehnab is full of contradictions and significant improvements and thus the

witness is not trust-worthy and no reliance can be placed on her testimony.

Though the testimony of PW-3 Zehnab implicates the mother of the Appellant

Manbari also but on the same evidence she has been acquitted by the learned

Trial Court. Ms. Zehnab improves her testimony to the extent that even she

introduces wooden weapons for beating and also implicates the daughter of

the Appellant. No weapon was recovered hence her testimony cannot be

believed. Moreover, Ms. Zehnab has deliberately introduced the story of

illicit relations between the father of the deceased and Manbari thus

introducing motive for the alleged incident. The learned Trial Court could not

have truncatedly believed the testimony of PW-3. Learned counsel also relies

on the testimony of PW-4 Dr. L.T. Ramani, who has opined that the cause of

death was due to shock and hemorrhage caused/resulting from blunt injury on

the kidney. The deceased died because he had a big stone in the kidney which

caused the rupture resulting in the death. Learned counsel contends that even

relying on the testimony of the witnesses this is a case of sudden quarrel by

fist and leg blows which would be an offence of causing hurt simple or

grievous punishable under Section 323 or 325 IPC. Learned counsel for the

Appellant relies on the decisions rendered in Dev Raj @ Polar v. State Govt.

of NCT of Delhi, 2010 [2] JCC 1174 and Om Singh @ OMI v. The State,

Delhi Adm., 2009 [4] JCC 3194 and Chanda v. The State, 17 (1980) DLT 242.

4. Learned APP for the State on the other hand contends that on the fateful

day three incidents took place. First was at the house of the deceased when he

taking lunch and Manbari Devi came and fought with them. The second at the

house of the accused where the deceased was called by Ms.Manbari and

assaulted along with the Appellant. The third incident was also on the street

which was also witnessed by PW-1. However, all three incidents were

witnessed by the wife of the deceased PW-3 Ms.Zehnab. The opinion of the

post mortem doctor is clear and the reason for the death is due to injury on the

left kidney by blunt force.

5. I have heard learned counsel for the parties and perused the records.

Though there are improvements in the statement of Ms. Zehnab but on the

material aspects she is consistent and states about the leg and fist blows given

by the Appellant at his house and also on the street whereafter the deceased

died. This testimony of PW3 - Ms. Zenab is duly corroborated by PW1, who

saw the Appellant quarrelling with the deceased in the street. Though this

witness has turned partially hostile, however, it is well settled that the

testimony of such a witness cannot be totally discarded.

6. The material issue which arises for consideration is in view of the

injuries on the deceased and the opinion of the cause of death, whether it is a

case of commission of offence falling under section 304 or 325 or 323 IPC.

It would be appropriate at this stage to reproduce the relevant portion of the

post mortem report of the deceased Kamruddin:-

"1. Linear scratch abrasion 3 cm. long on the medial end of right clevical.

2. Tiny abrasion 0.5 cm. x 0.5 cm. on the right elbow.

3. Two small abrasions of 0.5 cm. x 0.5 cm. each on the left knee. There was no other mark of violence or injury seen anywhere on the body.

On internal examination, scalp, skull bones and brain was found to be normal; neck structures normal; lungs were pale; there was massive haematoma in the left perinephric tissues, spreading to the right perinephric tissues and posterior abdominal and pelvic wall; there was no free blood in the abdominal cavity. There was evidence of bruising on the peritoneal surface on the left side lumber region. Stomach contained 6 ounces of semi digested food; There was blood clot surrounding left kidney. A large irregular renal stone was found in the blood clot close to pelvis of the kidney. The medial and anterior surface of kidney showed a tear close to the pelvis through which a large stone had come out from the kidney. Bladder contained little urine mixed with blood.

OPINION

Injuries were ante mortem caused by blunt force. Injury to the renal area was also ante mortem and caused by blunt force; death was due to shock and hemorrhage caused/resulting from blunt injury of kidney."

7. It would be thus evident from the testimony of PW-4 and his opinion

that due to the blunt force impact the renal stone tore the left kidney resulting

in death due to shock and hemorrhage. Knowledge about commission of a

crime imports a certainty and not merely a probability and this can be judged

from the nature of the act and the circumstances pertaining to the case. Death

caused without intention or knowledge, as in the instant case, cannot amount

to culpable homicide. Merely because death has been caused intention or

knowledge on the part of the accused is not to be assumed. I thus find force in

the contention of learned counsel for the Appellant that in the absence of

knowledge to the Appellant that the deceased had a big renal stone, injuries by

leg and fist blows cannot be said to fall within the ambit of commission of

offence under Section 304 IPC.

8. In Om Singh (supra) the deceased suffered as many as 14 injuries by

kicks and fist blows. The Division Bench of this Court held that the Appellant

cannot be attributed with the knowledge that such physical beating given by

them to the deceased with kicks and fist blows would result in unfortunate

demise and the only inference which could be gathered was that the

Appellants when started beating the deceased developed a common intention

to cause grievous hurt as while brutally kicking and giving fist blows, they

were supposed to have known that their collective acts would result in

grievous injury to the deceased. The conviction was altered to one under

Section 325/34 IPC.

9. In Dev Raj (supra) two fist blows directed one each towards the

occipital and parietal region resulted in extravasations of the arteries which in

turn caused hematoma. The injury was at the external surface of the brain

immediately at the point where the membrane enwombing the brain touching

the scalp. It was held that in a physical quarrel by fist and kicks it cannot be

said that the accused intended to cause the death of the deceased or even that

the accused had knowledge that their acts are likely to result in death much

less that the accused had the knowledge that the injuries in all probability

would cause the death of the deceased. No dangerous weapon had been used.

Thus the offence committed by the Appellant therein was held to be of

voluntarily causing grievous hurt.

10. Whether the fist and leg blows given by the accused amount to simple

hurt or grievous hurt would depend on a number of factors. When the act done

by the offender in the process of causing hurt is such as any person of

ordinary prudence knows it likely to cause grievous hurt, he may be taken to

have intended to cause grievous hurt or to have contemplated that grievous

hurt was likely to occur. If the act is such that nothing more than simple hurt

can reasonably be likely to ensue from it, although grievous hurt may

unexpectedly have ensued, the offender can be convicted of simple hurt only.

What the offender knew was likely to happen is a question of inference from

the nature of the act committed by the offender, his conduct and the

surrounding circumstances. The same would depend on a number of factors

such as the number of blows inflicted, the part of the body where the blows

are inflicted, force and impact by which they are inflicted.

11. Applying the principles laid down above I find that in the present case

repeated blows were given to the deceased on different occasions firstly at the

residence of the appellant and the secondly in the gali. Though the external

injuries on the body of the deceased were on right clavicle, right elbow, left

knee, however, he was given fist blows on the abdominal region also resulting

in blunt force impact on the kidney which was torn because of the stone

inside. The impact of the blow on the abdominal portion was so much that the

appellant can be attributed the intention or the knowledge that the same was

likely to cause grievous hurt. The appellant is thus liable to be convicted for

offences punishable under section 325 IPC.

12. The nominal roll of the appellant does not show any other involvement

or conviction in a criminal offence. Since the Appellant has already

undergone a sentence for a period of two years less two days as per the

nominal roll, ends of justice would be met if the sentence is modified to the

period already undergone.

13. The appeal is disposed of by modifying the conviction to one under

Section 325 IPC and the sentence for a period already undergone.

(MUKTA GUPTA) JUDGE

NOVEMBER 30, 2010 mm