Mohd. Sultan @ Kallu vs State
2011 Latest Caselaw 3202 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment delivered on 08.07.2011

+      CRL.A. 274/1997


MOHD. SULTAN @ KALLU                               ...      Appellant


                                - versus -


STATE                                              ...      Respondent

Advocates who appeared in this case:

For the Appellant         : Ms Reema Upadhaya, Amicus Curiae
For the Respondent        : Ms Richa Kapur


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

BADAR DURREZ AHMED, J

1. This appeal is directed against the judgment dated 31.05.1997 passed

by the learned Additional Sessions Judge, Delhi in Sessions Case

No. 33/1996 arising out of FIR 22/1992 under Section 302 IPC registered

at Police Station Bara Hindu Rao. By virtue of the impugned judgment,

the appellant has been found guilty and has been convicted for the offence

punishable under Section 302 IPC for having caused the death of Yasin.

The order on the point of sentence, which is also impugned in this appeal,

was passed by the learned Additional Sessions Judge on 04.06.1997,

whereby the appellant Mohd. Sultan @ Kallu was sentenced to undergo

imprisonment for life and to pay a fine of ` 500/- for the offence

punishable under Section 302 IPC and in default of the fine, he was to

further undergo rigorous imprisonment for two months. The appellant was

granted the benefit of provisions of Section 428 of the Code of Criminal

Procedure, 1973.

2. The case of the prosecution was that Mohd. Farukh and his brothers

Yasin and Yamin were engaged in the work of electroplating (nickel

polish) at house No. 6353, Gali Ishwari Prasad, Bara Hindu Rao, Delhi.

Mumtaz, their cousin (maternal uncle's son) was also working with them.

It is also the case of the prosecution that the appellant's brother Taslim

was also engaged in the same type of work of electroplating in the same

neighbourhood. It is alleged that on the night intervening 17/18 th,

September, 1992, some steel plates were stolen from the factory of the

complainant Mohd. Farukh. The said Mohd. Farukh and his brothers

doubted the involvement of the appellant Mohd. Sultan @ Kallu. They

also had conversations with regard to their suspicion with others in the

mohalla. On the night of 18.09.1992 at about 8 - 9:15 pm, the said Mohd.

Farukh and his brothers Yasin and Yamin as also their cousin Mumtaz

were discussing amongst themselves about the theft which had taken place

in their factory the previous night. It is alleged that at that time, the

appellant Mohd. Sultan @ Kallu came to the factory and immediately

started abusing the complainant Mohd. Farukh and questioned him as to

why his (Mohd. Sultan's) name was being mentioned with regard to the

theft of the steel plates which had taken place in the complainant's factory.

3. The prosecution case further is that the complainant Mohd. Farukh

denied that Mohd. Sultan's name was mentioned with regard to the theft

which had taken place but this did not pacify Mohd. Sultan @ Kallu and

he slapped Mohd. Farukh 2-3 times. Thereafter, Mohd. Sultan left the

factory while hurling abuses. Mohd. Farukh's brother Yasin asked Mohd.

Sultan @ Kallu not to abuse and upon this, Mohd. Sultan is alleged to have

stated that he would teach him a lesson. Immediately thereafter, Mohd.

Sultan ran towards his brother Taslim's factory and within minutes he

returned with a chhuri (knife) and immediately stabbed Yamin on the left

side of his chest. When Yasin and Mumtaz rushed to save Yamin, the

appellant Mohd. Sultan @ Kallu ran way towards Bara Hindu Rao along

with the knife. Thereafter, the complainant Mohd. Farukh and his brother

Yasin rushed Yamin to Hindu Rao Hospital in a three wheeler scooter. At

the said hospital, Yamin was examined by Dr Ravi Dutt Sharma at 9:55

pm and was declared as having been brought dead.

4. The prosecution examined as many as 17 witnesses in support of its

case against the appellant. The most important witnesses are PW8 Mohd.

Farukh, PW9 Yasin and PW10 Mumtaz, apart from PW1 Dr Ravi Dutt

Sharma, who proved the MLC Exhibit PW1/A, and PW5 L. K. Baruwa,

who conducted the post mortem examination on the dead body of the

deceased Yamin on 19.09.1992 and proved his report Exhibit PW5/A.

PW14 HC Hasmat Khan is the person in whose presence the appellant

Mohd. Sultan @ Kallu was arrested by Inspector Tulsi Ram from his

house at about 12:45 am on 19.09.1992 and the knife Exhibit P-1 was

recovered from the right pocket of the trouser of the appellant and the

same was seized vide seizure memo Exhibit PW10/B. The shirt and

baniyan (vest) of the appellant, which were blood stained, were also seized

by Inspector Tulsi Ram in the presence of PW14 Head Constable Hasmat

Khan vide seizure memo Exhibit PW10/C.

5. The learned counsel appearing on behalf of the appellant submitted

that although there are three purported eye witnesses, namely, PW8 Mohd.

Farukh, PW9 Yasin and PW10 Mumtaz, but they are all closely related to

the deceased Yamin. As pointed out earlier, PW8 Mohd. Farukh and PW9

Yasin are brothers of the deceased Yamim and PW10 Mumtaz is a cousin.

It was also contended by the learned counsel for the appellant that there

are serious discrepancies in the testimonies of the said three eye witnesses

and, therefore, their accounts cannot be taken to be credible. Apart from

this, the learned counsel for the appellant also submitted that the alleged

recovery of the knife Exhibit P-1 and the blood stained shirt and baniyan

(vest) was also not free from doubt. He submitted that it was improbable

that the appellant Mohd. Sultan @ Kallu would be wearing the same blood

stained clothes in the morning after the incident and would also be

carrying the murder weapon on his person. Finally, it was contended by

the learned counsel for the appellant that in the alternative this was a case

of culpable homicide not amounting to murder inasmuch as the incident,

even if it is assumed that the appellant was involved, was one which fell

within Exception 4 to Section 300 and was culpable homicide not

amounting to murder and, therefore, punishment for the same ought to be

under Section 304, Part-II.

6. The learned counsel for the State supported the decision of the

learned Additional Sessions Judge and submitted that this was a clear case

of murder and is fully supported by the eye witness accounts of PW8

Mohd. Farukh, PW9 Yasin and PW10 Mumtaz who were all natural

witnesses. Although there may be some small discrepancies in their

accounts, but that would not enable us to detract from the position that

they all saw Mohd. Sultan @ Kallu stabbing the deceased Yamin with a

knife which resulted in his death. The learned counsel for the State also

submitted that the arrest and recovery of the murder weapon as well as the

blood stained baniyan (vest) and shirt of the appellant Mohd. Sultan @

Kallu also stand established by virtue of the testimonies of the

Investigating Officer as also PW14 Head Constable Hasmat Khan.

7. First of all, let us examine the nature of the injuries on the body of

the deceased Yamin. As per PW1 Dr Ravi Dutt Sharma, who examined

Yamin on 19.09.1992, at about 9:55 pm, there was a clean incised would 1

inch length on the left side of the chest. This is also indicated in the MLC

Exhibit PW1/A. PW5 Dr L. K. Baruwa, who conducted the post mortem

examination on the dead body of the deceased Yamin found the following

injuries on the dead body:-

1. Abrasion over left side of chin in an area of 2 cm x 1.5 cm;

2. Incises wounds on the left side from the chest 9 cm below and slightly medial to the left nipple and the size of the injury was 2.5 cm x 1.5 cm x ? No other external injury was seen on the body.

8. Injury No. 2 had entered the left chest cavity through the 6 th

intercostal space and had cut the left lung on its lower lobe through and

through and then it pierced diaphragm and then it had cut the left dome of

liver and had a total depth of about 12 cms. According to PW5 Dr L. K

Baruwa, injury No.2 was ante mortem in nature and was caused by a sharp

edged weapon and was sufficient to cause death in the ordinary course of

nature and the death had resulted due to shock and haemorrhage on

account of the said injury. PW5 Dr L. K. Baruwa had also opined that

there were corresponding cut marks on the shirt and baniyan (vest) which

the deceased Yamin was wearing at the time of the incident and which was

found on his dead body at the time of the post mortem examination.

9. PW8 Mohd. Farukh in his deposition stated that Yamin was his

younger brother and that he used to do electroplating work along with him

in Gali Ishwari Prasad at house No. 6353. He further stated that on

17.09.1992, some nickel plates were stolen from their factory and that he

had a talk with the appellant Mohd. Sultan's brother Taslim and also with

the landlord/ owner of the factory premises. He identified Mohd. Sultan

@ Kallu, who was present in court and who used to do electroplating work

in the same neighbourhood while Taslim used to do the work of pressing

clothes in Shish Mehal area. The witness further stated that when he

enquired from Taslim about the stolen articles, Taslim told him that his

brother Mohd. Sultan could do such type of work as he was in the habit of

stealing goods. This part of the testimony does not appear to be

believable. However, it does not detract from the eye witness account

given of the actual incident itself. PW8 Mohd. Farukh stated that on the

night of 17.09.1992 at about 9 pm, he, his younger brother Yamin and

cousin Mumtaz and another younger brother Yasin were sitting in the

factory premises and were discussing with each other as to what course of

action should be adopted with regard to the stolen goods. It is at that point

of time that Mohd. Sultan @ Kallu had come to their factory premises and

had started abusing him and questioned him as to why his name was being

taken with regard to the stolen goods. The witness further stated that

Mohd. Sultan @ Kallu also slapped him two times. On hearing the noise,

the residents of the locality had gathered there. However, Mohd. Sultan

stated that he would come back and would teach him a lesson. The

appellant Mohd. Sultan then appeared on the scene after 5 minutes and

started abusing him and his brothers. As Yamin intervened, Mohd. Sultan

@ Kallu stabbed him with a knife on the left side of his chest once. It was

further stated by this witness that when Mohd. Sultan @ Kallu again was

about to stab Yamin with the knife, Yamin caught hold of that knife and

Mohd. Sultan @ Kallu ran away from the scene leaving the knife in the

hand of his brother Yamin. Thereafter, he (PW8 Mohd. Farukh) and his

younger brother Yasin and cousin Mumtaz rushed Yamin to Hindu Rao

Hospital in a three wheeler scooter and the doctor, after examining him,

declared him to be dead.

10. PW9 Yasin narrated the same incident with regard to the theft

having taken place at their factory in the night intervening 16/17.09.1992.

According to him steel plates weighing about 54 kilograms had been

stolen from their factory, the value of which was about ` 9,000/-. The

steel plates had been received by them for doing the work of electroplating

(nickel polish). This witness also stated that they had talked about the

theft of the goods with their neighbours and had also had a talk with the

landlord of their factory premises. He further testified that on the night

intervening 17/18.09.1992, at about 9:15 pm, he, his brothers Mohd.

Farukh and Yamin and cousin Mumtaz were talking with regard to the

stolen goods and at that time Mohd. Sultan @ Kallu arrived at their factory

premises and started abusing Mohd. Farukh and also slapped him 2-3

times. He also questioned as to why his name was being dragged in

connection with the stolen goods. The appellant Mohd. Sultan @ Kallu is

stated to have left the place by uttering the words that he would come back

and would teach them a lesson. Mohd. Sultan @ Kallu then went to his

factory and brought back a knife with him within 5 minutes and stabbed

Yamin with the knife on his heart once and then ran away with the knife.

Thereafter, he (PW9 Yasin), his brother Mohd. Farukh and cousin Mumtaz

rushed in a three wheeler scooter rickshaw to Hindu Rao Hospital where

the doctor had declared him as having been brought dead. He further

stated that in the process his pants, which he was wearing, got blood

stained with the blood of Yamin and the same was given to the police vide

seizure memo Exhibit PW8/C. He also identified the blood stained clothes

of the deceased Yamin, being blood stained shirt Exhibit P-2, blood

stained pant Exhibit P-1, baniyan (vest) Exhibit P-4 and underwear Exhibit

P-5. In his cross-examination, this witness PW9 Yasin stated that the

incident had taken place around 9:15 pm and the initial abusing and

quarrel was between the appellant Mohd. Sultan @ Kallu and Mohd.

Farukh for about five minutes. It is further stated that Mohd. Sultan @

Kallu had slapped Mohd. Farukh about 3/4 times. Though nobody from

outside had come to intervene, he (PW9 Yasin), Yamin and PW10

Mumtaz intervened and pushed the appellant Mohd. Sultan @ Kallu out of

their premises. But, they did not close their factory premises. He stated

that Mohd. Sultan returned after 5/6 minutes and when he stabbed Yamin,

he saw the knife in his hand. He also stated that when Mohd. Sultan

returned, he (PW9 Yasin) was standing in front of the factory premises

with his brother Yamin and that Mohd. Farukh was inside the factory. He

further stated that when Mohd. Sultan @ Kallu stabbed his brother Yamin,

he (PW9 Yasin) was standing outside the factory while his brother Mohd.

Farukh and Mumtaz were inside the factory premises. Upon Yamin being

stabbed, Mohd. Farukh and Mumtaz came to the spot within two minutes

and the appellant Mohd. Sultan @ Kallu had already run away when

Mumtaz and Mohd. Farukh reached the spot. Upon a court question being

put to this witness, he clarified that Mohd. Sultan was not seen running

away by Mohd. Farukh and Mumtaz. But, he ran away within his (PW9

Yasin's) view. Since the witness had given a new version in his cross-

examination, the learned APP had sought permission to cross-examine

him. He was allowed to do so. In the cross-examination by the learned

APP, the witness reverted to his original stand and stated that it is correct

that the incident was witnessed by him, his brother Mohd. Farukh and

cousin Mumtaz and it is also correct that when the accused Mohd. Sultan

ran away after inflicting the stab injury, he (PW9, Yasin), his brother

Mohd. Farukh and his cousin Mumtaz had seen him running away from

the spot.

11. PW10 Mumtaz, who is the third purported eye witness, deposed

more or less in the same lines as PW8 Mohd. Farukh. Although he

deposed that the initial incident took place at about 8:30 pm, when there

was an altercation between the appellant Mohd. Sultan @ Kallu and PW8

Mohd. Farukh. He stated that there was a heated exchange of words

between them and Mohd. Sultan @ Kallu slapped PW8 Mohd. Farukh 2/3

times. Thereupon, Mohd. Sultan rushed towards his brother Taslim's

factory, which was at a short distance in the same gali, saying that he

would teach them a lesson. Within 2-3 minutes, Mohd. Sultan returned

carrying a knife and immediately thereafter, he stabbed Yamin with the

knife on his chest. Yamin fell down on the ground and the appellant

Mohd. Sultan @ Kallu ran away towards Bara Hindu Rao with the knife.

Thereafter, he (PW10 Mumtaz), PW9 Yasin and PW8 Mohd. Farukh took

the injured Yamin in a three wheeler scooter rickshaw to Hindu Rao

Hospital, where the doctor, after examining Yamin, declared him to be

dead. PW10 is also a witness of the recovery of the knife from the

appellant Mohd. Sultan @ Kallu.

12. On going through the depositions of the three purported eye

witnesses, we find that there are some discrepancies with regard to the

time of the incident - whether it happened at 8:30 pm or around 9:15 pm ?

At one place PW8 Mohd. Farukh has also given the wrong date, that is,

17.09.1992, when, in fact, the incident took place on 18.09.1992. There is

also a discrepancy in the testimony of PW8 Mohd. Farukh, when he stated

that the assailant Mohd. Sultan @ Kallu left the knife in the hand of

Yamin, whereas the other two witnesses, namely, PW9 Yasin and PW10

Mumtaz stated that the appellant Mohd. Sultan @ Kallu ran away from the

scene with the knife. There are also other minor contradictions. However,

the most important aspect can be derived from the testimony of PW9

Yasin, who, in his cross-examination by the learned counsel for the

defence, stated that Mohd. Farukh and Mumtaz were inside the factory

when the incident of stabbing took place and arrived at the scene within

two minutes after Mohd. Sultan @ Kallu had run away. This testimony,

however, was got corrected by the prosecution, when the learned APP,

after getting permission from the court, cross-examined PW9 Yasin.

However, to our minds, this is a very material circumstance which casts

serious doubts on the factum of PW8 Mohd. Farukh and PW10 Mumtaz

being eye witnesses of the actual stabbing incident. Be that as it may, the

fact remains that even if we discount the testimonies of PW8 and PW10,

the testimony of PW9 Yasin remains with regard to the actual stabbing

incident. We also find that the trial court had serious doubts with regard to

the recovery of the knife from the pant worn by the appellant the next

morning. The trial court observed that the manner in which the knife is

stated to have been recovered did not appear to be convincing when no

independent witness of the locality was joined at the time of arrest of the

accused. However, the trial court observed that even if it is held that no

knife was recovered at the instance of the accused, the ocular version, as

given by the prosecution witnesses, was sufficient to link the appellant

Mohd. Sultan @ Kallu with the commission of the offence. We entirely

agree with this conclusion of the learned Additional Sessions Judge with

the rider that the testimonies of PW8 Mohd. Farukh and PW10 Mumtaz,

with regard to the actual stabbing incident, appear to us to be doubtful.

However, PW9 Yasin is clearly an eye witness of the actual stabbing

incident and that in itself is sufficient for us to conclude that it is the

appellant Mohd. Sultan @ Kallu who had stabbed the deceased Yamin

with a knife and caused him the injuries noted in the post mortem report

and which ultimately led to his death.

13. This takes us to the alternative plea taken by the learned counsel for

the appellant that the offence would not be murder but would be culpable

homicide not amounting to murder and would fall within Exception 4 of

Section 300 IPC, which reads as under:-

"300. Murder. -

       Exception 1. -    xxxx        xxxx        xxxx          xxxx
       Exception 2. -    xxxx        xxxx        xxxx          xxxx
       Exception 3. -    xxxx        xxxx        xxxx          xxxx

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 without the offender's having taken undue advantage or acted in a cruel or unusual manner.

Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault."

14. It is clear from the testimonies of PWs 8, 9 and 10 that there was no

previous enmity between the appellant Mohd. Sultan @ Kallu and Yamin

and his brothers and cousin. It is also apparent from their testimonies that

a theft had taken place in the night intervening 17/18.09.1992 in the

factory of Mohd. Farukh and his brothers. There was a heated exchange of

words on the next night around 9:15 pm between Mohd. Sultan @ Kallu

and PW8 Mohd. Farukh, in which the appellant Mohd. Sultan is said to

have questioned Mohd. Farukh as to why the former's name was being

dragged in connection with the theft of the previous night. The altercation

between the two escalated and resulted in Mohd. Sultan @ Kallu slapping

Mohd. Farukh 2/3 times. On the intervention of the other brothers and

cousin Mumtaz, Mohd. Sultan left the premises threatening to teach them a

lesson. He went to his brother's factory nearby in the same gali and

returned with a knife within 2-3 minutes and immediately thereupon

stabbed Yamin who was standing outside the factory with PW9 Yasin.

This incident was, of course, seen by PW9 Yasin. Immediately thereafter,

Mohd. Sultan @ Kallu ran away from the scene. This is clearly a case of

culpable homicide. It would not be murder and would fall under

Exception 4 if it was committed without premeditation, in a sudden fight

in the heat of passion upon a sudden quarrel and without the offender

having taken undue advantage or acted in a cruel or unusual manner.

There is no doubt in our minds that the incident took place without

premeditation and the time gap between the heated exchange of words and

the second incident of stabbing is only of 2-3 minutes, which clearly

indicates that it was a sudden fight and there was no time for the tempers

to have cooled so as to allow in the concept of premeditation. The tempers

had not cooled and, therefore, in our view, the stabbing incident has to be

regarded as in the course of a sudden fight in the heat of passion upon a

sudden quarrel.

15. A similar situation had arisen in the case of Sukhbir Singh v. State

of Haryana: (2002) 3 SCC 327. In that case also there was no enmity

between the parties. The occurrence had taken place when Sukhbir Singh

got mud splashes on account of sweeping of a street by Ram Niwas and a

quarrel ensued. The deceased slapped the appellant for no fault of his.

The quarrel was sudden and on account of the heat of passion. The

accused went home and came armed in the company of others without

telling them of his intention. The time gap between the quarrel and the

fight was a few minutes only. The Supreme Court observed that it was,

therefore, probable that there was insufficient lapse of time between the

quarrel and the fight which meant that the occurrence was sudden within

the meaning of Exception 4 of Section 300 IPC.

16. It has now to be examined as to whether the offender had taken

undue advantage or acted in a cruel or unusual manner. We see no

evidence of this inasmuch as the appellant Mohd. Sultan @ Kallu had only

given one knife blow. Even the post mortem report indicates a single stab

injury. Thus, we are clearly of the view that this is a case of culpable

homicide not amounting to murder within the ambit of Exception 4 of

Section 300 IPC. However, we are not in agreement with the learned

counsel for the appellant that this is a case which would fall under Section

304, Part-II. Mohd. Sultan certainly knew, even if it is assumed that it was

not intended to cause the death of Yamin, that by stabbing Yamin on the

left side of the chest in a deep thrust, it would result in causing such bodily

injury as was likely to cause death.

17. Therefore, we are of the view that the appellant Mohd. Sultan @

Kallu should be punished under Section 304, Part-I. His conviction for

murder is set aside. He is, however, convicted for committing culpable

homicide not amounting to murder in view of Exception 4 of Section 300

IPC and he is awarded a sentence of imprisonment for a term of 10 years

as also a fine of ` 500/- and in default whereof, he has to further undergo

rigorous imprisonment for two months. His conviction and sentence stand

altered accordingly.

18. The appellant Mohd. Sultan @ Kallu has already undergone the

entire period of the sentence, as also the in default period. Consequently,

he does not require to suffer any further incarceration. His bail bonds

stands cancelled and the surety stands discharged. The appeal is allowed

partly, as indicated above.

BADAR DURREZ AHMED, J

V. K. JAIN, J JULY 08, 2011 SR