Mehboob Khan @ Babu vs State
2014 Latest Caselaw 2386 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Judgment delivered on: May 12, 2014
+       CRL.A. 455/1998
        MEHBOOB KHAN @ BABU                  ..... Appellant
                   Through  Mr. Mukesh Kalia & Ms. Sumita
                            Kapil, Advocates

                          versus
        STATE                                        ..... Respondent
                          Through     Ms. Richa Kapoor, APP for the
                                      State
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA

                              JUDGMENT

KAILASH GAMBHIR, J

1. Challenge in the present appeal is to the impugned judgment dated

18.07.1998 and order on sentence dated 23.07.1998 whereby the learned

Additional Sessions Judge had convicted the appellant for committing an

offence punishable under Sections 302/324 of the Indian Penal Code,

1860 (hereinafter referred to as 'IPC') and sentenced him to

imprisonment for life alongwith a fine of Rs.500/- under section 302 IPC

and in default of payment of fine to further undergo rigorous

imprisonment for a period of three months, and so far as the offence

under Section 324 IPC is concerned, the appellant has also been

sentenced to undergo rigorous imprisonment for a period of nine months.

2. The germane case of the prosecution in brief is summarized as

under:

"Deceased Shafiqan was a widow and had been residing at 231, Chatta Lal Mian near Bari Masjid alongwith her family. She has six daughters and three sons. PW- Sahana one of her daughter was married to the accused Mehboob Khan @Babu, who was the resident of Shastri Park, Seelampur, Delhi. Sahana was not happy at her matrimonial home. She was allegedly mal-treated by her husband Mehboob Khan. She was turned out from her house on 18.07.1994 by the accused Mehboob Khan after giving beating to her. She had come back to her mother's house after she was turned out by her husband. On 19.07.1994 at about 6:30pm deceased Shafiqan was present in her house alongwith her daughters Sahana and Sabana. Her another daughter Nagma, who was married in Meerut had also come to her mother's house about 15 days back and she was also present in the house of her mother at that time. Accused Mehboob Khan had then come to the house of her mother-in-law and had allegedly beaten his wife and when he was asked not to do so, he had left the house by extending threat to Safiqan and Sahana that he will teach them a lesson. It is also the case of the prosecution that at about 8.30 p.m. when deceased shafiqan was sitting in her house along with her daughters Nagma, Sahana and Sabana, accused Kazma Begum and her daughters Nazma the mother and sister of accused Meboob Khan had come to the house of deceased Safiqan and had started hurling abuses at Safiqan and her daughter Sahana. Accused mehboob Khan had followed his mother who had also come to the house of his mother-in-law accompanied by accused Safiq Ahmed, who was his friend and neighbour. Accused Mehboob Khan also hurled filthy abuse at his mother-in-law and his wife Sahana. This could not be tolerated by PW Nagma who asked accused Mehboob Khan not to hurl abuses on his mother and sister but this interference was not liked by accused Mehboob Khan, he had allegedly taken out a knife from the right side pocket of his pant and had stabbed PW Nagma on her right hand, as a result of which, she had started bleeding. When the deceased Safiqan came forward to rescue her daughter, accused Mehboob Khan had allegedly stabbed her twice in

her abdomen. Safiqan on receiving the said stab injuries had fallen down on the ground. All the three sisters had then made noise but accused Mehboob Khan, his mother Kazma Begum and his sister Nagma and his neighbour Shafiq Ahmed had meanwhile escaped from the house. PW Sabana had then informed the police, meanwhile, Abdul Sattar, the brother of Sabana had reached the house. He had allegedly removed his mother Safiqan Begum and his sister Nagma to JPN Hospital."

3. To prove its case, the prosecution examined as many as 26

witnesses. The statement of the appellant along with other accused

persons was recorded under Section 313 Cr.P.C. The accused was

confronted with the entire incriminating evidence adduced by the

prosecution and in response to various questions put to him, the accused

pleaded his innocence and false implication. Along with the appellant,

accused Mohd. Safiq Ahmed, Najma and Kazima Khatoon were also

charged for committing the offence punishable under Sections 302/324

IPC read with Section 34 IPC. Accused Mohd. Safiq and Najma were

acquitted by the learned trial court after giving them the benefit of doubt

and accused Kazima Khatoon died during the pendency of trial.

4. At the outset, Mr. Mukesh Kalia, learned counsel for the appellant,

very fairly conceded to the findings of the learned trial court convicting

the appellant for committing an offence of culpable homicide. Learned

counsel for the appellant, however, laid serious challenge to the

conviction of the appellant under Section 302 IPC which as per the

learned counsel should have been under Section 304 IPC as the facts of

the case would clearly attract Exception 4 to Section 300 IPC.

5. To fortify his said submission, the learned counsel for the appellant

submitted that there was no motive or any kind of premeditation on the

part of the appellant to carry out the murder of his own mother-in-law,

deceased herein. Learned counsel also submitted that even the

prosecution has failed to prove any motive on the part of the appellant

which could actuate him to murder his mother-in-law. Learned counsel

further submitted that had there been any such kind of criminal intention

on the part of the appellant then at least he would not have taken along

his mother, sister and his neighbour Mohd. Safiq Ahmed to the house of

his in-laws. Learned also submitted that even as per the case of the

prosecution, the genesis of which was the first statement made by Nagma,

sister of appellant's wife, based on which the FIR was registered, a

sudden quarrel had taken place between the family members of both the

sides and there was exchange of abuses, when in the heat of passion and

charged atmosphere the appellant took out a knife from right pocket of

his trouser and hit on the right hand of Nagma resulting into simple

injuries and when his mother-in-law intervened then the appellant

inflicted two stab wounds in her abdomen. Learned counsel thus

submitted that all the ingredients of Exception 4 to Section 300 IPC are

fully satisfied in the facts of the present case because of there being no

motive or premeditation on the part of the appellant or any kind of other

enmity between the appellant and the deceased who happened to be his

mother-in-law and the said stab injuries caused to the deceased were not

directed towards her but in a sudden fight when his sister-in-law Nagma

had intervened during the exchange of the hot words between him and his

wife and mother-in-law, the said incident took place.

6. Learned counsel further argued that the appellant had not taken any

undue advantage or acted in a cruel or unusual manner in causing the said

two stab blows in the abdomen of the deceased and also the fact that the

injuries were not caused on the vital part of the body of the deceased.

7. Learned counsel further argued that deceased Safiqan was admitted

in hospital on 19.07.1994 at about 9.00 p.m. and she had died on

02.08.1994, i.e., after a gap of 14 days and cause of death of the deceased

as was opined by the doctor who had conducted the post mortem was as a

result of toxaemia and septicaemia and not because of the said two stab

injuries inflicted by the appellant.

8. Based on the above submissions, learned counsel for the appellant

argued that the facts of the case clearly attracts Exception 4 to Section

300 IPC and therefore, the conviction of the appellant by the learned trial

court under Section 302 IPC is illegal and perverse and the same may be

converted from Section 302 IPC to Section 304 IPC. Learned counsel

also brought to our attention that the appellant has already undergone 8

years (including remission earned) period of his sentence and his jail

conduct was found most satisfactory and even after his release on bail he

is leading an orderly and respectable life without being involved in any

kind of criminal activities. In support of his arguments, learned counsel

for the appellant placed reliance on the following judgments:

1. Ashok Kumar v. State, 2014 III AD (DEL) 139;

2. B.N. Kavatakar & Anr. v. State of Karnataka, 1994 Suppl. (1) SCC 304;

3. Tapas v. State of NCT of Delhi, 2014 AD (DEL) 309;

4. Rahmatulla v. State, 2014 11 AD (DEL) 626;

5. Krishna Tiwari v. State of Bihar, AIR 2001 SC 2410 and

6. Harish Kumar v. State, AIR 1993 SC 973

9. Per contra, Ms. Richa Kapoor, learned APP for the State, submitted

that the appellant has rightly been convicted under Section 302 IPC and

the case as proved by the prosecution cannot attract Exception 4 to

Section 300 IPC. To butterss her contention, learned APP pointed out that

the appellant had first visited the house of his in-laws on 19.07.1994 at

6.30 p.m. and started beating his wife with fists and slaps and when he

was dissuaded to do so by his sister-in-law and mother-in-law then he left

the place with the threats to teach lesson to his wife and mother-in-law.

On the same day, he returned back at 8.30 p.m. along with his mother-

Kazima Khatoon, sister- Nazima Begum and neighbour- Mohd. Safiq

Ahmed and started hurling filthy abuses and when Nagma had intervened

to dissuade him from hurling such abuses he took out a knife from his

right pocket and hit Nagma in her right hand and when his mother-in-law

had intervened to save Nagma, he had inflicted two stab wounds in the

abdomen of his mother-in-law due to which she had immediately fallen

down. The contention raised by the learned APP for the State was that

there was a clear motive and premeditation on the part of the appellant

otherwise there could not have been any reason for him to have come

prepared by carrying a knife in his right pocket and also the fact that he

indiscriminately started inflicting stab blows first in the right hand of

Nagma and then two stab blows in the abdomen of his mother-in-law

which led to her immediate collapse. Learned APP also argued that as per

the post mortem report, injury Nos. 4 and 5 were held to be sufficient to

cause death of the victim in the ordinary course of nature singly or

collectively. Learned APP also submitted that on internal examination,

the doctor found that injury No.4 led to cutting of small intestine and

large intestine at three places. The contention raised by the learned APP

for the State was that the nature of the said two injuries clearly reflects

that with brute force the appellant had inflicted the said injuries and

therefore, he had acted in a most cruel and unusual manner without there

being any kind of provocation to cause such kind of serious injuries.

Learned APP also submitted that no sudden fight or quarrel had taken

place between the appellant and the deceased and it was the appellant

who had been hurling filthy abuses at his wife and mother-in-law and all

of sudden he took out a knife from his pocket and hit his sister-in-law and

then mother-in-law. Learned APP also argued that mere fact that the

deceased had succumbed to the injuries after a gap of 14 days due to

toxaemia and septicaemia can be of no help to the appellant as the death

of the deceased had taken place due to the said two stab injuries inflicted

by the appellant on a vital part of the body of the deceased. Learned APP

also argued that even the dagger used by the appellant was of a large size

with its blade of the size of 6.8 cm and the size of this knife itself reflects

the criminal intent of the appellant to carry out the murder of his mother-

in-law. To support her submissions, learned APP for the State placed

reliance on the judgment of this court in case of Wahid Ahmed v. State,

reported in 182 (2011) DLT 738.

10. We have heard learned counsel for the parties at a considerable

length and given our thoughtful consideration to the arguments advanced

by them.

11. This is an unfortunate case where mother-in-law, Safiqan was

murdered by her own son-in-law, the appellant herein when she had

intervened to save her other daughter who was inflicted with a knife on

her right hand simply because she wanted to dissuade her brother-in-law

not to hurl filthy abuses at his wife and mother-in-law. The appellant had

married Ms. Sahana two and a half years prior to the incident and she was

being mal-treated by her husband and was finally turned out from her

house on 18.07.1994. On 19.07.1994 at about 6.30 p.m. the appellant

came to the house of his mother-in-law and had allegedly beaten his wife

and when he was asked not to do so he left the house by extending threat

to his mother-in-law Safiqan and his wife Sahana to teach them a lesson.

Just after a gap of two hours he returned back along with his mother,

sister and a neighbour and then the incident in question took place and

mother-in-law became the ultimate victim at the hands of her own son-in-

law, the appellant herein.

12. The case of the prosecution is based on the testimonies of three

important eye witnesses and one amongst them was an injured eye

witness PW-3 Nagma. The incident in question had taken place at the

parental house of the wife of the accused/appellant and therefore, the

presence of all the said three eye witnesses at the spot of the crime was

quite natural. After having analysed the evidence of all the three eye

witnesses, the learned trial court found that the evidence of all the three

eye witnesses showing the involvement of the appellant/Mehboob

[email protected] Babu was quite, clear, consistent and direct with the commission

of the offence and nothing on record was brought to suggest that all the

three sisters were inspired by any ulterior motive or design to falsely

implicate the accused and to save the actual culprit of the crime. The

learned trial court also observed that the credit worthiness of these eye

witnesses could not be impeached by the defence as per their prolonged

cross-examination. The learned trial court also found that the evidence of

the said eye witnesses was in complete consonance with the medical

evidence proved on record by the prosecution.

13. The weapon of offence was got recovered by the accused pursuant

to his disclosure statement. PW16- Dr. Anil Aggarwal who had

conducted the post mortem examination had confirmed in his post

mortem report Ex.PW16/A that injury Nos. 4 and 5 found on the person

of the deceased could be possible with the said dagger/chhuri (Ex. P4).

PW16- Dr. Anil Aggarwal was not cross-examined by the defence and

not even a single question was put to him either to dispute his report or to

dispute his opinion with regard to the possibility of infliction of stab

injuries with the said dagger produced before him. The learned trial court

is right in observing that since the report of the doctor was not challenged

and disputed by the accused, therefore, it stands proved by the

prosecution that it was the accused who was instrumental in causing

abdominal injuries on the person of deceased Safiqan.

14. We are also in agreement with the reasoning given by the learned

trial court that it was not expected either from PW3- Nagma, PW-4-

Sabana or for that matter PW-7 Sahana to have falsely implicated the

accused- Mehboob Khan @ Babu as none of these family members

would unnecessarily involve the appellant who was the husband of PW-7

Sahana and allowed real offender to go scot free.

15. Learned counsel for the appellant has not assailed the findings of

the learned trial court so far as his conviction for committing the culpable

homicide is concerned, and had confined his challenge to seek conversion

of the offence from Section 302 IPC to Section 304 IPC but yet we have

meticulously gone through the entire material on record to satisfy our

judicial conscience with regard to the said finding given by the learned

trial court and we have no hesitation in affirming the said view taken by

the learned trial court.

16. Now, the moot question is whether the offence in the facts of the

present case falls under the category of murder punishable under Section

302 IPC or culpable homicide not amounting to murder punishable under

Section 304 Part-I and II IPC. To deal with this question, let us first

reproduce the provisions which are as under:-

"299. Culpable homicide --

Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Explanation I -- A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2 --Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

Explanation 3 -- The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

"Section 300: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-- Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be in- flicted is sufficient in the ordinary course of nature to cause death, or--

Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.--When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:-- First.--That the provocation is not sought or voluntarily pro- voked by the offender as an excuse for killing or doing harm to any person.

Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

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 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. Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."

17. In the landmark judgment of Virsa Singh v. State of Punjab,

reported in (1958) 1 SCR 1495, the Supreme Court held that the

following are the four steps of inquiry involved in the offence of murder

under Section 300 IPC, clause thirdly:

"First, it must establish, quite objectively, that a bodily injury is present.

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and.

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature."

18. After laying down the aforesaid guidelines, the Hon'ble Judge

further went on to observe as under:-

"Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 'thirdly'. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature ( not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty

of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional."

19. As would be seen from the above observations and tests laid down

by the Apex Court, the determinative factor in Section 300 (thirdly) is an

intentional injury which must be sufficient to cause death in the ordinary

course of nature and it would be immaterial whether the offender had

knowledge that the act of that kind will result in death. To find out

whether the offender had intention to cause such fatal injury which in the

ordinary course of nature was sufficient to cause death, the factors which

are required to be kept in mind are -

i. The force with which the blow has been dealt with;

ii. The type of weapon used

iii. Vital or organ or the particular part of the body attracted;

iv. Nature of injury caused;

v. Origin and genesis of the crime and the circumstances attending upon the death. (Referred to Jagrup Singh vs. State of Haryana, (1981) 3 SCC 616: 2001 AIR SCW 1021)

20. On the touchstone of the legal position discussed above, let us

advert back to the facts of the present case to see whether the offence

committed by the appellant falls under Section 300 (thirdly) IPC. The

appellant in the present case had inflicted two knife blows on the

abdomen of his mother-in-law, the deceased herein and the said two

injuries caused by the appellant were found sufficient to cause death of

the deceased in the ordinary course of nature singly or collectively as per

the opinion given by the post mortem doctor. Taking into account the said

two stab injuries caused by the appellant on the vital part of the body of

the deceased it becomes quite apparent that the appellant had requisite

intention to cause bodily injuries of such a nature which in the ordinary

course of nature were sufficient to cause death of the victim, and

therefore, Section 300 (thirdly) IPC will be clearly applicable to the facts

of the present case.

21. Now, the next vital question is whether the offence committed by

the appellant attracts Section 302 IPC or the same is covered under

Exception 4 to Section 300 IPC.

22. The appellant indisputably is the husband of PW7- Sahana and

son-in-law of deceased Safiqan. As per the case of the prosecution, the

appellant had turned his wife out of the matrimonial house just one day

prior to the incident and on the next day he reached the house of his

mother-in-law. First, he came alone at 6.30 p.m. when he was alleged to

have beaten his wife and when asked not to do so he left the house by

extending threat to deceased Safiqan and his wife Sahana that he will

teach them a lesson. After a gap of two hours he again came at 8.30 p.m.

but this time he was accompanied by his mother, sister and a neighbour.

The learned trial court in para 13 of the impugned judgment has observed

that the prosecution could not bring on record the exact cause of the

quarrel as neither PW3- Nagma, nor her sisters Sabana and Sahana could

explain in their entire evidence as to why the accused, his mother and

sister were abusing them on the date of incident. The learned trial court

further observed and rightly so that the only inference that can be drawn

was that perhaps the accused Mehboob Khan was insisting upon his wife

to accompany him while his wife Sahana who was not feeling

comfortable at her matrimonial house was not inclined to accompany her

husband and this could perhaps be the principal reason for ugly incident

which happened on that night. It is thus quite evident that the appellant

had no motive or any kind of premeditated plan to murder his mother-in-

law otherwise he would not have brought with him, his own mother,

sister and a neighbour. It is also quite apparent that the appellant had

never directed attack towards his mother-in-law as the appellant had

taken out the knife to hit his sister-in-law when she had interjected to

dissuade him not to hurl abuses on her mother and sister. The appellant

had inflicted a knife blow on the right hand of his sister-in-law PW-3 and

not any vital part of her body and it is later when his mother-in-law had

intervened to save her daughter, the appellant had inflicted two stab

injuries in her abdomen. It thus, appears to us, with enough clarity that

the appellant did not visit the house of his in-laws to carry out the murder

of his mother-in-law and his mother-in-law became a victim after she had

intervened to save her daughter from any further attack from the side of

the appellant/accused.

23. The evidence on record thus would clearly show that there was no

motive, enmity or premeditation on the part of the appellant due to which

the appellant had targeted his mother-in-law to annihilate her. In the

absence of any evidence brought on record by the prosecution to prove

the exact reason of fight between the appellant on the one hand and

family members of his wife on the other hand, the existing evidence on

record would clearly show that abuses were hurled by mother and sister

of the appellant to the deceased mother-in-law and Sahana- wife of the

appellant when they had visited their house at 8.30 p.m. Later, the

appellant also started abusing his mother-in-law and his wife and when

the appellant was told not to hurl abuses then he took out the knife from

his pocket and hit on the right hand of his sister-in-law. There was some

kind of quarrel or fight between the appellant and his family members

and the members of his in-laws' family and it appears to us that this fight

between the two families must have angered the appellant to first hit his

sister-in-law and then his mother-in-law with two stabs blows. PW7-

Sahana, the wife of the appellant in her cross-examination deposed that

her husband Mehboob Khan @ Babu had divorced her on the very same

day of incident when he first come at about 3.30 p.m. and then later at

6.00 p.m. and finally at 8.00 p.m. It is therefore, quite manifest that the

relations between the husband and wife became very acrimony and

embittered. PW7- Sahana was turned out from the matrimonial house by

the appellant on 18.7.1994 and then on the very next day appellant paid

at least three visits at his mother-in-law's house as per the deposition of

PW7 and two visits as per the statement of the complainant. The first

visit by the husband and the second visit when husband has accompanied

by mother, sister and a neighbour certainly gives an impression that there

was some kind of tussle between the appellant and his wife and one of

the possible reason could be that the appellant wanted his wife to return

back or his wife was reluctant to return back or may be because of the

alleged divorce given by the appellant to his wife. Whatever may be

genesis of dispute , there remains no doubt that the present appellant

caused injuries on the forearm of his sister-in-law Nagma and two stab

injuries on the abdomen of his mother-in-law and these injuries were

caused in a sudden fight and in the heat of passion without there being

any motive or premeditation.

24. Lot of stress was laid by the learned APP for the State on the

aspect that the appellant had taken undue advantage and acted in a cruel

manner in inflicting one after the other blow on vital part of the body of

the deceased. Learned APP for the State also raised a contention that the

appellant extended threat to teach a lesson to his wife Sahana and his

mother-in-law when he came at about 6-6.30 p.m. on the date of incident

and to accomplish the same he returned back with a knife in his pocket

and then killed his mother-in-law.

25. We have already discussed that the appellant had no motive or any

kind of premeditation to murder his mother-in-law and merely because he

had left the house of his mother-in-law at 6.30 p.m. with the alleged

threat that he would teach a lesson to his wife and mother-in-law cannot

lead us to believe that he in fact developed the intention of carrying out

the murder of his mother-in-law. We cannot lose sight of the fact that the

same threat was extended to his wife as well but nothing happened to her.

So far as the argument that the appellant had acted in a cruel and unusual

manner, let us first examine as to what injuries deceased had sustained as

per her post mortem report. PW-16 Dr. Anil Aggarwal conducted the post

mortem of the deceased and he found following external injuries on her

body:-

"1. Stitched operated wound 20 cm in length vertically placed over mid front of abdomen, 11 cm above the umbilicus and 9 cm below it. The wound is re-enforced by a plastic pipe.

2. Two drainage tube wounds each 2 cm long over right side of abdomen.

3. Colostomy wound 3 x 3 cm over right side of abdomen just to the right of injury No.1.

4. Infected stab wound 3.5 x 0.6 cm x abdominal cavity deep obliquely placed over left side of abdomen 7. 5 cm below and to the left of the umbilicus. Upper outer angle is sharp and the lower inner angle is rounded. This wound corresponds to injury No.1 mentioned in the MLC.

5. Infected stab wound 4. 2 cm x abdominal cavity deep over right side of abdomen 9 cm above and to the right of umbilicus. One angle acute, the other rounded. This injury corresponds to injury No.2 mentioned in the MLC."

And on internal examination of the body of the deceased, PW16-

Dr. Anil Aggarwal found the following internal injuries:

"On Internal Examination: There was a thick layer of foil smelling pus over the peritoneum. The small intestine contained semi liquid material and gases. Small intestines and large intestine are cut at 3 places vial injury No.4. Large intestines contained gases and faeces. The liver showed fatty changes. Both kidneys were pale, gall bladder was adherent to the under surface of liver. It showed a cut at the fundus 1.5 cm long which was stitched. This cut was caused via injury No.5. Both lungs were consolidated; the brain was swollen and congested. There was thin layer of pushover the brain."

As per the opinion of the PW16- Dr. Anil Aggarwal, the death in

the case was as a result of toxaemia and septicaemia consequent upon the

stab injuries, and the doctor also opined that injuries No. 1, 2 and 3 were

surgical in nature while injuries No.4 and 5 were sufficient to cause death

in the ordinary course of nature singly or collectively.

26. The death of the victim had taken place on 2 nd August, 1994, i.e.,

after a gap of 14 days. It was not a case of instant or spontaneous death.

The deceased as a result of stab injuries had also developed toxaemia and

septicaemia which ultimately became the cause of her death after a gap of

14 days.

27. In Surrender Kumar v. Union Territory, Chandigarh, 1989 2

SCC 217, the Apex Court held that the number of wounds caused during

the occurrence was not the decisive factor and what was important was

that the occurrence had taken place on account of sudden and

unpremeditated fight and the offender must have acted in a heat of anger

and not in a cruel manner. Following paras of the judgment are as under:-

"... To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.

12. In Sukbhir Singh v. State of Haryana : (2002) 3 SCC 327, the Appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the Appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court this Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 of Section 300 Indian Penal Code. In cases where after the injured had fallen down, the Appellant did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. The Court observed:

...All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 Indian Penal Code. After the injuries were inflicted and the injured had fallen down, the Appellant is not shown to have inflicted any other injury upon his person when he was in a

helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with Bhala caused injuries at random and thus did not act in a cruel or unusual manner."

28. In the facts of the present case, the appellant in the heat of the

moment took out a knife from his pocket and caused injuries first to his

sister-in-law and then his mother-in-law. The stab injuries caused to the

mother-in-law which ultimately proved fatal but yet it cannot be said that

the accused acted in a cruel manner and had taken undue advantage. We

also do not subscribe to the argument of the learned APP that the accused

brought the knife with an intention to kill his mother-in-law as the

circumstances do not suggest any such intention of the accused.

29. Scrutinising the aforesaid well established legal principles, we are

of the considered view that the case of the appellant clearly falls within

Exception 4 to Section 300 IPC.

30. The next question as to whether the case falls under Section 304 of

Part I or Part II of IPC, the distinction between the two Parts of Section

304 of IPC was drawn up by the Apex Court in Alister Anthony Pareira

v. State of Maharashtra (2012) 2 SCC 648, in the following words:

..... For punishment Under Section 304 Part I, the prosecution must prove: the death of the person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause

death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death...

31. It will also be useful to refer the decision of the Apex Court

in Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh:

(2006) 11 SCC 444 wherein the Apex Court enumerated some of the

circumstances relevant in finding out whether there was any intention to

cause death on the part of the accused and observed as under:

...Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls Under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable Under Section 302, are not converted into offences punishable Under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable Under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there

was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention...

32. In Nanak Ram v. State of Rajasthan, reported in 2014 III AD

(S.C.) 239, the Supreme Court observed-

"17..... Heat of passion requires that there must be no time for the passions to cool down and in this case the parties have worked themselves into a fury on account of the verbal altercation in the beginning. Out of the 9 injuries, only one injury was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. This goes to show that in the heat of passion upon a sudden quarrel the accused had caused injuries on the deceased. That being so the Exception 4 to Section 300 IPC is applicable."

"18.........looking at the nature of injuries sustained by the deceased and the circumstances the conclusion is irresistible that the death was caused by the acts of the accused done with the intention of causing such bodily injury as is likely to cause death and therefore, the offence would squarely come within the first part of Section 304 IPC and the appellant would be liable to be convicted for the said offence."

33. In Rampal Singh v. State of U.P. reported in (2012) 8 SCC 289,

the Supreme Court while altering the conviction from Section 302 IPC to

Section 304 Part-I IPC observed as follows:

"20. In order to hold whether an offence would fall under Section 302 or Section 304 Part I of the Code, the courts have to be extremely cautious in examining whether the same falls under Section 300 of the Code which states whether a culpable homicide is murder, or would it fall under its five exceptions which lay down when culpable homicide is not murder.

21. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of this section includes only those cases in which offence is really 'murder', but mitigated by the presence of circumstances recognized in the exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular.

25. Classification of an offence into either Part of Section 304 is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of pre-meditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view, i.e., by applying the 'principle of exclusion'. This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, 'culpable homicide amounting to murder'. Then secondly, it

may proceed to examine if the case fell in any of the exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused."

30........ It is clear that the Appellant had not committed the crime with any pre-meditation. There was no intention on his part to kill. The entire incident happened within a very short span of time. It is true that there was knowledge on the part of the Appellant that if he used the rifle and shot at the deceased, the possibility of the deceased being killed could not be ruled out. He was a person from the armed forces and was fully aware of consequences of use of fire arms. But this is not necessarily conclusive of the fact that there was intention on the part of the Appellant to kill his brother, the deceased. The intention probably was to merely cause bodily injury. However, the Court cannot overlook the fact that the Appellant had the knowledge that such injury could result in death of the deceased."

34. In Mangesh v. State of Maharashtra, reported in (2011) 2 SCC

123, the Supreme Court observed as under:

"12............The fact that the Appellant stabbed the deceased twice in the thigh and only once in the chest is indicative of a lack of intention to cause death. Had the Appellant intended to kill the deceased, it is unlikely that he would flee from the scene without having inflicted more injuries on the deceased.

14. ....................... Therefore, it is a clear cut case of loss of self control and in the heat of passion, the Appellant caused injuries to the deceased. By no means, can it be held to be a case of premeditation.

15. .............Death of the deceased was not instantaneous rather he died on third day of the incident. The Appellant has not taken any undue advantage or acted in cruel or in unusual manner. Undoubtedly, injury No. 1 had been caused on the vital part of the body of the deceased but it must also be borne in mind that when a person loses his sense he may act violently and that by itself may not be a

ground to be considered against him while determining the nature of the offence.

17. Thus, the facts and circumstances of the case require alteration of conviction of the Appellant from Section 302 IPC to Section 304 Part-I IPC."

35. In Jagriti Devi v. State of Himachal Pradesh (2009) 14 SCC 771,

it was held that the expressions "intention" and "knowledge" postulate

the existence of a positive mental attitude. It was further held that when

and if there is intent and knowledge, then the same would be a case under

first part of Section 304, IPC and if it is only a case of knowledge and not

intention to cause murder by bodily injury, then the same would be a case

of second part of section 304 IPC. To quote:

Section 300 Indian Penal Code further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge, then the same would be a case of Section 304 I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 II. The aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of this Court.

(m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

36. In the instant case, based on the evidence on record, we have no

hesitation in holding that there was no intention on the part of the accused

to cause death of the deceased. According to PW-16 Dr. Anil Aggarwal,

the death of the deceased was as a result of toxaemia and septicaemia

consequent upon the stab injuries inflicted, and the doctor also opined

that the injuries No.1, 2 and 3 were surgical in nature while injuries No.4

and No.5 were sufficient to cause death in the ordinary course of nature

singly or collectively. The accused, Mehboob Khan had no motive or

premeditation to cause death of the deceased as the appellant inflicted

two stab abdominal injuries to the deceased after she had interjected to

save her daughter, who was first attacked by the appellant. the accused

got angered and irritated by the interference of PW-3 Nagma who was

trying to dissuade him from hurling abuses at her mother and sister and

inflicted stab injury on her hand after taking out a knife from his pocket.

Whatever may be cause of provocation, the two stab injuries i.e., one

after the other was caused by the appellant with the intent to cause such

bodily injury which was likely to result in the death of the deceased.

37. We are, therefore, of the considered view that the appellant had the

requisite intention that the injury which was caused by him on the vital

part of his body, was likely to cause his death and therefore, the case

would more appropriately fall under Section 304 Part I of the IPC.

38. On the issue of sentence, we note that the appellant has already

undergone a sentence of eight years including the period of remittance

earned by him. The nominal roll do not evidence his involvement in any

other offence and do not even raise any doubt on the conduct of the

appellant during his period of incarnation. Therefore, in the facts of the

present case, convicting the Appellant and sentencing him for the period

already undergone by him by resorting to Section 304 Part I of the Indian

Penal Code will meet the ends of Justice.

39. In view of the aforesaid, the appeal filed by the appellant is partly

allowed and the conviction of the appellant is modified from Section 302

IPC to Section 304 (Part I) and accordingly sentence imposed upon the

appellant is modified from life imprisonment to sentence already

undergone by him.

40. Appellant is on bail. His bail bonds are discharged. The case of the

appellant is set at rest.

41. A copy of this judgment be sent to the Jail Superintendant for

information and compliance.

42. Accordingly, the appeal filed by the appellant stands disposed of in

the aforesaid terms.

KAILASH GAMBHIR, J.

SUNITA GUPTA, J.

MAY 12, 2014 v