Delhi High Court
Rabibul vs State on 31 October, 2014
Author: Pradeep Nandrajog
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: October 31, 2014
+ CRL. A. No.1186/2014
RABIBUL ..... Appellant
Represented by: Mr. K.Singhal, Advocate.
versus
STATE ..... Respondent
Represented by: Mr. Lovkesh Sawhney, APP
Inspector Prabhu Dayal, P.S. Narela.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J. (ORAL)
1. Learned counsel for the appellant Sh.K.Singhal, Advocate urges that
from the testimony of Rizwan PW-1, the injured eye-witness and that of
Jahid PW-3, it is apparent that the appellant had also received an injury on
his hand from a knife. Learned counsel submits that Rizwan has not told the
complete truth. Learned counsel further submits that the Investigating
Officer has withheld the medico legal report of the appellant who was taken
to Satyavadi Raja Harish Chandra Hospital, Narela for medical treatment on
November 17, 2010. Counsel prays that the case diary with the
Investigating Officer may be perused.
2. Inspector Prabhu Dayal from P.S.Narela is present with the case diary
and we find that lying therein is an OPD card of Satyavadi Raja Harish
Chandra Hospital, Narela having patient name: 'Rabibul' i.e. the appellant.
It shows that on November 17, 2010 the appellant was administered an anti
tetanus injection and a cut on his person was stitched. Unfortunately, the
OPD card simply records 'ASP Stitch'. Counsel urges that a careful reading
of the testimony of PW-1 would evince that a verbal altercation preceded the
physical fight during which appellant received an injury on his hand and the
deceased received a stab injury on the lateral side of the chest below the arm
pit. Counsel thus urges that the offence made out against the appellant is
that of culpable homicide not amounting to murder punishable under Section
304-II IPC.
3. The post mortem report Ex.PW-11/A would show that the deceased
received only one incised penetrating wound which was placed obliquely
over left side chest on the lower side at anterior axillary line about 22 cm.
below the left axilla piercing the left 9th inter coastal space, the weapon of
offence penetrated the spleen. It is apparent that the knife was struck from
the side beneath the arm pit.
4. The MLC Ex.PW-9/A of Rizwan PW-1, shows that he was examined
at Maharish Balmiki Hospital at 3.30 P.M. on November 17, 2010. He was
reeking with alcohol. His eyes were swollen with abrasions around the right
eye and right side of neck. He was administered a voveron injection.
5. The deposition of Rizwan who appeared as PW-1 brings out that
Bakar Id was celebrated on November 17, 2010. It was a holiday. After
consuming beer, he along with Jahangir (deceased) and Jahid (PW-3) were
proceeding towards their houses and as they crossed a masjid in JJ colony,
Bawana, the appellant, who had previous enmity with Jahangir, abused
Jahangir and took out a knife from his pant pocket and attacked Jahangir
who tried to snatch knife from the appellant and in the process appellant
received injury from the knife. But appellant managed to stab the deceased
under the arm pit and he ran away. As per him, he and Jahid tried to over
power the appellant, who managed to flee after inflicting fist blows on his
right eye and inflicting leg blows to Jahid.
6. The testimony of Jahid PW-3 is in sync with that of Rizwan.
7. Now, if appellant was armed with a knife, handle thereof would be in
the hand of appellant and if the deceased tried to snatch the knife from the
hand of the appellant, the deceased would have received a cut injury on his
hand and not that the appellant would receive a cut injury on his hand.
8. The greater probability appears to be that either the deceased or PW-1
or PW-3 also had a knife with them. There was a verbal altercation.
Everybody was drunk. During the altercation the appellant was assaulted
with a knife but he managed to defend himself using his hand and this
explains the appellant being injured with a knife on his hand. The appellant
managed to inflict a stab blow with a knife he was carrying on the person of
the deceased.
9. That Rizwan PW-1 and Jahid PW-3 have something to hide is
established by the fact that the two were not to be seen at the place of the
crime soon after the incident took place, and we say so with reference to the
testimony of Shaan Mohd. PW-6, who has deposed that on the day of Id, as
he was passing by the Masjid he saw a crowd and found Jahangir, a friend of
his, lying injured and therefore he removed Jahangir in a TCR to the
hospital. It is apparent that Rizwan and Jahid were scared. They were not
scared because their friend was assaulted and the assailant was armed with a
knife and thus they ran away. As per their testimony, after Jahangir was
stabbed, they challenged the appellant who struck fist blows on Rizwan and
kicked Jahid before he ran away. The two knew that during the altercation
even appellant had received an injury with a knife. Since the appellant, after
inflicting injury with his knife on Jahangir had ran away with the knife
common sense told them that if they told the complete truth they too would
have to explain as to why one of the three was carrying a knife.
10. The two eye-witness having spoken half truth and in view of their
conduct above-noted as also the fact that even appellant had received an
injury which required stitches to be put, in all probability on his hand, we
have to give the benefit of doubt to the appellant with respect to the offence
committed.
11. It appears to be a case where due to past enmity some hot words were
exchanged between the deceased and the appellant culminating in a combat
of strength. Whereas appellant managed to ward off the assault by using his
hand, as a shield, and in the process receiving an injury with a knife on his
hand, the deceased was not lucky. The fatal blow has been struck on the
side of chest and unfortunately for the deceased the spleen got cut. The
intention of the appellant obviously was to injure the deceased with a knife,
for which knowledge has to be attributed to the appellant that it was possible
that he is likely by such act to cause death.
12. Thus, we bring the curtains down by holding that the evidence on
record brings out the fact that the deceased died due to the stab injury caused
by the appellant during a sudden quarrel and the intention of the appellant
was not to cause the death of the deceased but only to injure him, but since a
knife was used knowledge has to be attributed to the appellant of knowing
that he was likely by such act to cause death. The offence committed is thus
culpable homicide not amounting to murder punishable under Section 304-II
IPC.
13. We dispose of the appeal altering the conviction of the appellant from
that of having committed an offence punishable under Section 302 IPC to
having committed an offence punishable under Section 304-II IPC. We
sentence the appellant to undergo rigorous imprisonment for five years and
pay fine in sum of ` 5,000/-, in default of payment of fine to undergo simple
imprisonment for two months.
14. Two copies of this decision would be sent to the Superintendent,
Central Jail, Tihar for his record and to be supplied to the appellant.
15. TCR be returned.
CRL.M.B. 10389/2014
Dismissed as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
OCTOBER 31, 2014
srb
