Shahabuddin @ Kallu vs State
2013 Latest Caselaw 3436 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                       Judgment Reserved on: August 01, 2013
%                      Judgment Delivered on: August 05, 2013

+                        CRL.APPEAL NO.290/1998

      SHAHABUDDIN @ KALLU                     ..... Appellant
             Represented by: Ms.Saahila Lamba, Advocate
                                      versus
      STATE                                           ..... Respondent
                    Represented by:   Mr.Pawan Sharma, Standing Counsel
                                      (Crl.)
CORAM:
HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE V.KAMESWAR RAO

PRADEEP NANDRAJOG, J.

1. DD No.58-B was recorded by the Duty Officer P.S.Seelampur to the effect that a quarrel was taking place at House No.908, Gali No.6, Chaohan Bangar, Seelampur and thus SI Banney Singh PW-12 left the police station to investigate and on reaching the house learnt that the injured had been removed to GTB Hospital, therefore he proceeded to the hospital. Simultaneously Inspector Ram Kishan PW-14, the SHO of the Police Station, who had received information of a lady being stabbed in the house above noted also proceeded to the house and therefrom to GTB Hospital and in this manner SI Banney Singh and Inspector Ram Kishan found themselves in the company of each other at the hospital and the two found that Mst.Noorjahan was admitted at the hospital and the MLC Ex.PW-9/A, prepared by Dr.B.D.Singh PW-9, showed she being brought in an injured condition having an incised wound having width 3 cm on the abdomen at the

hospital by Giasuddin. She was conscious and oriented; a fact recorded in the MLC. It was also found by the two police officers that a boy named Shehnawaj, son of the appellant, was also brought to the hospital by one Irshad Ahmed and Dr.Davender PW-15 had prepared the MLC Ex.PW-9/B recording therein that the young boy had an incised wound measuring 5 x 0.5 x 0.5 cm on the neck and two incised wounds measuring 3 x 0.8 cm and 2 x 0.5 x 0.5 cm on the right shoulder. On the MLC Ex.PW-9/A, recording history how the patient had suffered the wound, Dr.B.D.Singh, the author of the MLC recorded : 'Allegedly stabbed by son'. On the MLC Ex.PW-9/B, giving the history how Shehnawaj had suffered the incised wounds, Dr.Davendar PW-15, the author of the MLC recorded: 'Alleged assault by father'.

2. Since Mst.Noorjahan was conscious and oriented, SI Banney Singh in the present of Inspector Ram Kishan, recorded her statement Ex.PW-12/A in which Mst.Noorjahan stated that at night at about 9.30 PM her son Shabuddin @ Kallu gave beating to his son Shehnawaj, aged about 8 years, uttering 'that since he used to roam around aimlessly the whole day he would teach him a lesson' and at that time her son was having a butcher's knife in his hand, which he placed on the neck of his son. She intervened and tried to snatch the knife from the hand of her son and in the process her grandson suffered injuries on his neck. Angered, her son uttered that he would put an end to her, and so uttering, thrust the knife in her abdomen. The son referred to in the statement by Mst.Noorjahan is none else other than the appellant.

3. Needless to state FIR for an offence punishable under Section 307 IPC was registered for the attempt to murder Mst.Noorjahan and for an

offence punishable under Section 324 IPC for the injuries caused to Shehnawaj.

4. Proceeding to the place of the occurrence, accompanied by Ct.Inderjeet PW-2, SI Banney Singh PW-12 picked up blood sample vide memo Ex.PW-2/A and on finding the appellant in the house arrested him and recorded the statement Ex.PW-2/C as per which appellant disclosed that he could get recovered the knife used to cause injuries to Noorjahan and Shehnawaj and thereafter got the knife Ex.P-1 recovered from the niche in the house which was seized vide memo Ex.PW-2/E.

5. Mst.Noorjahan died the same day after the FIR was registered and thus her body was seized and sent to the mortuary of the hospital where Dr.K.K.Bannerjee PW-10 conducted the post mortem and prepared the report Ex.PW-10/A recording therein that a single stab blow which had traversed the abdominal cavity had cut the inferior vena cava and the cause of death was shock due to haemorrhage. Thus, the offence of murder was added in the FIR.

6. The FSL report which is lying in the judicial record as an un-exhibited document would evidence that on the knife Ex.P-1, human blood of the same group as that of the deceased was detected i.e. Group-B.

7. For reasons unknown Giasuddin who happened to be the brother of the appellant and was the person who had removed Mst.Noorjahan to the hospital was not examined as a witness. Shehnawaj the son of the appellant and the deceased, who was injured as noted above, was examined as PW-7 and we find that he turned hostile, obviously being tutored, for the reason he admitted being beaten by his father but denied that his grandmother tried to save him. He stated that since there was no electricity he could see anything

and thus did not know who killed his grandmother. But stated that he did not see a knife in his father's hand.

8. Now, if one pierces through the testimony of Shehnawaj, one finds that he admits his father beating him and saw no knife in the hand of his father, but simultaneously claims that he could not see who caused the death of his grandmother because there was no light; meaning thereby that appellant was very much present in the house when the incident took place, and we simply highlight that when examined under Section 313 Cr.P.C. he claimed to be in his shop. We note that the time of the incident is 9.30 PM. The appellant is a butcher by profession. He sells chicken. The knife Ex.P- 1, sketch whereof is Ex.P-2/D, would reveal that it is a typical butcher knife having blade length 21.5 cm and thickness 10 cm.

9. At 9.30 PM it is roasted (tandoori) chicken which is sold and not raw chicken. Be that as it may, two dying declarations of the deceased, the first made to Dr.B.D.Singh as recorded in the MLC and the second made to SI Banney Singh and Inspector Ram Kishan as per the statement Ex.PW-12/A stood duly proved at the trial and form the basis of appellant's conviction.

10. Pertaining to a dying declaration the settled legal position is that if a Court is satisfied that the maker of the statement was conscious and oriented and was not under any influence to falsely state a fact pertaining to the death of the maker, the dying declaration has to be accepted and needs no corroboration.

11. But, in the instant case we find sufficient corroboration to the dying declaration Ex.PW-12/A.

12. Let us revisit the dying declaration. We have summarized the same in paragraph 2 above, and re-note the same:-

at night at about 9.30 PM her son Shabuddin @ Kallu gave beating to his son Shehnawaj, aged about 8 years uttering 'that since he used to roam around aimlessly the whole day he would teach him a lesson' and at that time her son was having a butcher knife in his hand which he placed on the neck of his son. She intervened and tried to snatch the knife from the hand of her son and in the process her grandson suffered injuries on his neck. Angered, her son uttered that he would put an end to her and so uttering thrust the knife in her abdomen.

13. The first statement that at night at about 9.30 PM her son Shabuddin @ Kallu gave beating to his son Shehnawaj is corroborated by the testimony of Shehnawaj PW-7 who said that he cannot say whether his grandmother intervened to save him when his father was beating him. The corroboration is to the fact that the appellant was beating Shehnawaj. The second statement in Ex.PW-12/A that appellant placed a butcher knife which he was having in his hand on the neck of her grandson is corroborated from the MLC Ex.PW-9/B of Shehnawaj which records an incised wound on the neck of Shehnawaj. Her third statement that when she intervened and tried to snatch the knife from the hand of her son, her grandson got injured is also corroborated by the MLC Ex.PW-9/B which records two incised wounds on the shoulder of Shehnawaj.

14. We note that no suggestion has been put to Dr.B.D.Singh PW-9 the author of the MLC Ex.PW-9/A that he falsely or wrongly recorded the fact that the history of the stab wound on the person of Mst.Noorjahan as told to him was that the appellant had stabbed his mother.

15. Looked at from any angle we concur with the view taken by the learned Trial Judge that the prosecution has successfully established

appellant having stabbed his mother and that the weapon of offence was Ex.P-1, a butcher's knife, and the cause of death of Mst.Noorjahan was the fatal injury of the inferior vena cava being cut when Ex.P-1 pierced the stomach muscles and reached the inferior vena cava, causing excessive blood loss.

16. The only question which survived to be considered is whether the offence committed by the appellant is one of murder or culpable homicide not amounting to murder punishable under the first part of Section 304 IPC.

17. Sh.Pawan Sharma, learned Standing Counsel for the State urged that there may be no intention surfacing attributable to the appellant to murder his mother, but the fact that he was a butcher by profession and knew how lethal and dangerous would be the knife Ex.P-1 if used as a weapon of offence to pierced the stomach of an old women, would require knowledge to be attributed to the appellant that he was knowingly committed an act which was so eminently dangerous that it would in all probability cause death. Per contra, Ms.Saahila Lamba, the learned Amicus Curiae appointed by the Court urged that Exception 4 to Section 300 IPC would be attracted for the reason notwithstanding the fact that the appellant had a butcher's knife in his hand, the statement Ex.PW-12/A would reveal that the appellant was angry with his son Shehnawaj, aged 8 years, because Shehnawaj used to roam around aimlessly and the appellant was simply trying to intimidate Shehnawaj for the benefit of Shehnawaj and unfortunately Mst.Noorjahan intervened because the manner in which the appellant was trying to chasten his son was improper and this annoyed the appellant who in the heat of the passion stabbed his mother, but only once.

18. Ex.PW-12/A, the statement of Mst.Noorjahan would evidence that the

appellant was angry with his son Shehnawaj because Shehnawaj used to roam around aimlessly the whole day. Any father would be angered to find a son aged 8 years roaming around aimlessly. Any father would chasten such a son. An educated father would sit down with the son and talk to the son and make him see logic and reason. But unfortunately for the appellant he happens not to be an educated father and we find that lack of education being evidenced from the fact that he is barely literate enough to pen the letters forming his words Shahbuddin in Devnagri script. Though the manner of chastening the son would ex facie be cruel for the reason to traumatize a 8 years old son by placing a knife on his neck would be cruel, appellant's motive was pious because he was a concerned father and did not want his son to roam around the whole day but rather spend time meaningfully so that the son could make a career for himself. It is not that the appellant gave beating to his son for the reason the MLC records neither bruises nor lacerated nor contused wounds. So annoyed and angry was the appellant with his son and so overcome was he by the strong desire to reach the desired end i.e. to chasten the son he used means which were not justified. The annoyance and anger turned to the grandmother i.e. appellant's mother when, on being horrified to see what her son was doing to her grandson, she intervened to snatch the knife from the hand of the appellant and in the tussle the possibility of the knife piercing the stomach of Mst.Noorjahan cannot be ruled out; in any case it is an unfortunate case where the son had no intention to injure his mother, much less cause any particularly injury to her; and least bit to murder his mother.

19. Facts pertaining to the decision reported as (2003) 3 SCC 528 Ghapoo Yadav & Ors. vs. State of M.P., were that there was a simmering dispute

between the families of the accused and the deceased with respect to the boundary of the land owned by them which were adjoining. In spite of a demarcation report settling the dispute in favour of the family of the deceased which report was not to the liking of the family of the accused a quarrel ensued on a tree being cut by the deceased and the family of the accused enquiring as to why he did so to which the reply was that who were they to ask him why had he cut a tree belonging to him and this verbal spat led to a scuffle and finally to an assault at which the deceased received life threatening injuries. Setting aside the conviction of the accused for the offence punishable under Section 302 IPC and holding him guilty under Section 304 IPC the Supreme Court observed that it was a case of a sudden fight with no previous deliberation or determination to fight; a verbal altercation led to a quarrel resulting in death and since no further injuries were inflicted after the victim was injured and in a helpless condition, the offence could not be murder.

20. The instant case has a somewhat similarity and accordingly we hold that the offence committed by the appellant is not murder but culpable homicide not amounting to murder punishable under Section 304 IPC and for which we sentence the appellant to under rigorous imprisonment for 10 years.

21. We note that in view of Shehnawaj PW-7 not supporting the case of the prosecution the appellant has been acquitted for the charge for having committed an offence punishable under Section 324 IPC.

22. The appellant shall surrender forthwith and we cancel the bail bonds and the surety bonds.

23. The appellant shall be entitled to benefit of Section 428 Cr.P.C.

24. LCR be returned.

(PRADEEP NANDRAJOG) JUDGE

(V. KAMESWAR RAO) JUDGE AUGUST 05, 2013 skb