Delhi High Court
Basiullah vs State on 30 May, 2016
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 465/2015
% Judgment reserved on: 24 th May, 2016
Judgment delivered on: 30th May, 2016
BASIULLAH ..... Appellant
Through : Ms. Rakhi Dubey, Advocate (DHCLSC)
Versus
STATE ..... Respondent
Through : Ms. Anita Abraham, APP for State
with SI Brij Mohan, PS - Welcome.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S SISTANI, J.
1. The present appeal has been preferred by the appellant under Section
374 (2) of the Code of Criminal Procedure and is directed against the
judgment dated 19.12.2014 and order on sentence dated 24.12.2014
passed by the Additional Sessions Judge, New Delhi in Sessions Case
No. 11/10, by virtue of which the appellant has been convicted under
Section 302 of the Indian Penal Code, and sentenced to undergo
rigorous imprisonment for life and to pay a fine of Rs. 50,000/- for the
offence punishable under Section 302 of the Indian Penal Code.
2. The brief facts of the case, as noted by the learned Trial Court are as
under:
"The accused has been sent up for trial on the
allegations that on 15.09.2009 at about 07.30 p.m.,
accused Basiullah went to the parental house of deceased
Salma Begum i.e. H. No. E49/L264, Gali No. 28, Janta
Colony, Welcome and asked about Salma. When Salma
came downstairs, accused took out a chhuri which he
was carrying with him and indiscriminately stabbed
Salma Begum. At that time, Shabiya Begum (PW1) was
also present there and on hearing the cries of Salma
Begum and Shabiya Begum, neighbours namely Fahim
(PW10) and Shammi (PW8) reached to their rescue.
PW10 Fahim saw Salma Begum lying on the floor and
accused Basiullah stabbing Salma Begum. When accused
Basiullah tried to flee, Faheem Ahmad and Shammi
overpowered him and snatched chhuri Ex.P1 from him.
Salma Begum was transported to GTB Hospital by her
brother Chand Babu (PW4). Somebody informed the
police and the information was recorded at PS Welcome
vide DD No. 22A (Ex.PW3/A).On receiving the
information, police reached at the spot and accused
Basiullah, alongwith knife Ex.P1, was handed over to the
police by PW10 Faheem and PW8 Shammi. On
23.09.2009, Salma Begum expired and on 24.09.2009,
post mortem on the body of deceased Salma Begum was
conducted by PW11 Dr. Meghali Kelkar who submitted
the post mortem report, Ex.PW11/A. PW11 Dr. Meghali
opined that Salma Begum died due to septicemic shock as
a result of antemortem injuries produced by a sharp
edged weapon and injury no. 1, as detailed in post
mortem report Ex.PW11/A, was found to be sufficient in
ordinary course of nature to cause death of Salma
Begum. During investigation, it was revealed that
accused Basiullah was married to deceased Salma
Begum. After the marriage, the accused demanded dowry
in the form of money from deceased Salma Begum and to
have his demands fulfilled, regularly harassed her and
beat her. Due to harassment, Salma Begum left the house
of the accused and came to her parental house. After the
completion of investigation, the accused was
chargesheeted for offences u/s 498A/ 302 IPC."
3. In order to bring home the guilt of the appellant the prosecution
examined 22 witnesses in all. The statement of the appellant was also
recorded under Section 313 of the Code of Criminal Procedure
wherein he pleaded his innocence by denying all the incriminating
circumstances and claimed to be falsely implicated.
4. Ms. Rakhi Dubey, learned counsel appearing on behalf of the
appellant during the course of arguments concedes that she does not
challenge the judgment of conviction on merits but only challenges the
order on sentence while doing so counsel submitted that on the basis
of allegations no case under Section 302 of the Indian Penal Code was
made out and the case was covered under Section 304 Part I of the
Indian Penal Code.
5. Learned counsel for the appellant argued that the unfortunate incident
transpired without premeditation in a sudden fight and in the heat of
the moment upon a sudden quarrel that erupted between the appellant
and the deceased. The counsel further argued that it is highly
improbable for the appellant to carry a knife of a length 30.5 cm,
which is proved vide Ex. PW-3/D on his person. The counsel urged
that the appellant lacked any preparation for the crime and picked the
knife Ex. P-1 on the spot from the household articles kept nearby upon
a sudden fight with the deceased, in a fit of rage.
6. The counsel for the appellant drew the attention of this court to
Exception 4 of Section 300 of the Indian Penal Code and argued that it
was squarely covered under the exception of Section 300 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
offenders 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."
7. To substantiate her arguments, learned counsel for the appellant has
relied upon Ankush Shivaji Gaikwad vs. State of Maharashtra
reported in (2013) 6 SCC 770, wherein the Hon'ble Supreme Court in
Para 13 observed as under:
"13. In Surinder Kumar v. Union Territory,
Chandigarh (1989) 2 SCC 217, this Court held that if on
a sudden quarrel a person in the heat of the moment
picks up a weapon which is handy and causes injuries out
of which only one proves fatal, he would be entitled to the
benefit of the Exception provided he has not acted
cruelly. This Court held that the number of wounds
caused during the occurrence in such a situation was not
the decisive factor. What was important was that the
occurrence had taken place on account of a sudden and
unpremeditated fight and the offender must have acted in
a fit of anger. Dealing with the provision of Exception 4
to Section 300 this Court observed:
"7.... 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."
8. Per contra, Ms. Anita Abraham, learned Additional Public Prosecutor
appearing on behalf the State submits that the prosecution has been
able to prove its case beyond any shadow of doubt. The testimonies on
record proves the guilt of the appellant and the Trial Court has rightly
convicted the appellant for the offence punishable under Section 302
of the Indian Penal Code and hence the findings warrant no
interference, accordingly the appeal is liable to be dismissed.
9. We have heard learned counsel for the parties and considered their
rival submissions and also carefully examined the testimonies of
witnesses and other documents placed on record.
10. Before we deal with the rival submissions of counsel for the parties,
we deem it appropriate to refer to the testimonies of some of the
material witnesses in detail. The case of the prosecution rests upon
the testimonies of PW-1 Shabiya Begum, PW-10 Faheem Ahmed
(neighbour of the deceased) who had witnessed the incident. The
prosecution has further examined PW-4 Chand Babu (brother of the
deceased) and PW-8 Shammi (neighbour of the deceased). What,
therefore, needs to be seen is whether the prosecution has established
the incriminating circumstances upon which it places reliance beyond
reasonable doubt.
11. PW1 Shabiya Begum is a natural witness who witnessed the complete
incident of crime and deposed before the court as under:
"The marriage of deceased Salma daughter of my sister
Nafeesa was solemnized with accused Basiullah present
in the court. After marriage accused Basiullah started
living in rented house at Mangol Puri, Delhi. After
marriage the behavior of Basiullah towards Salma was
not good and he used to beat Salma. Accused Basiullah
was not doing any job and he used to demand money
from Salma to bring the same from her parents. Accused
Basiullah demanded cash amount of Rs. 2000/- after
about two months of his marriage and father of Salma
Sarifuddin my brother in law (behnoi) had given cash
amount of Rs. 2000/- to accused Basiulllah after
arranging the same from somewhere. Thereafter accused
Basiullah again started demanding cash amount from
Salma and he told Salma that if she would not fulfill his
demand he would sell the domestic articles (stridhan
articles).
In the year of 2009, month and date I do not remember
but it were days of Ramzan, accused came to the house of
Sarifuddin at about 7.30 pm. Since I along with my
family have been residing on the ground floor, he asked
me about Sarifuddin and I told him that Sarifuddin was
not present in the house at that time and would come till
9.00 pm. Accused called Salma from the first floor
through a child son of Chand (Chand is brother of
deceased). When Salma came down stairs from first
floor, accused started abusing her and gave a kick (leg)
blow to Salma due to which she fell down. On this
accused took out CHHURRI and gave Chhurri blows on
the person of Salma while she was lying on the ground.
When I tried to save Salma, accused tried to attack on me
with that chhurri. At that time I was holding my six
months son in my lap. When accused also tried to attack
me I raised alarm and called mohalla people. Mohalla
people came there on hearing my noise and accused also
attacked on those people with that chhurri which he was
holding at that time. Two mohalla people received
chhurri injuries on their person. The accused was
overpowered by the mohalla people. Salma was lying in
the pool of blood on the ground as there was heavy
bleedings from her injuries."
12. PW10 Faheem Ahmed (neighbour of the deceased) in his testimony
deposed as under:
"On 15.9.2009, in between 7.30 and 8 p.m., I was present
inside my house. I heard noise of cries of Salma Begum.
The house of Salma Begum is adjacent to my house. I
came out of my house. I saw that Basiullah, husband of
Salma Begum, assaulting Salma Begum with a knife.
Salma Begum was lying on the floor. Other persons of
the locality also gathered there. Sabia Begum who is
khala of Salma was also present there. Accused
Basiullah, present before the court, was trying to flee
from the spot after assaulting Salma. I alongwith my
neighbour Shammi over powered Basiullah with knife.
Shammi snatched the knife from the hands of Basiullah. I
had sustained minor injury in my right thigh. Shammi
had also sustained minor injury on his hand. Brother of
Salma Begum namely Chand and Smt. Sabia removed
Salma Begum to hospital."
13. PW8 Shammi (neighbour of the deceased) in his testimony deposed as
under:
"I heard cries of Sabiya. I immediately responded to her
voice and reached the house of Salma. Sabiya is khala of
Salma. I saw Basiullah, present before the court. He was
having a knife in his hand. As soon as Basiullah came out
of the house I with the help of Faheem overpowered him.
I snatched the knife from the hands of Basiullah. I also
sustained minor injury on my hand during this
overpowering but I had not got treated myself for my
injury."
14. PW4 Chand Babu, brother of the deceased, deposed as under:
"About 15 days prior to Ramzan, 2009, accused had
mercilessly beaten my sister and he set fire to my sister
Salma and then he himself ran away to Shahjahan Pur
where the accused was having permanent residence. My
sister had sustained burn injuries and we got her
medically treated. On 15.9.2009, accused had come to
my house. At that time I was on the third floor and my
khala (mausi) was on the ground floor of the house. My
daughter aged about 7-8 years had come to my house
saying that a quarrel had taken place. I had come down
on the ground floor and I had seen my sister had
sustained several knife blows. The accused had been
apprehended by public persons and he was also found to
be in possession of a knife.
xxxx
It is correct that on receipt of information I came
downstairs and I saw a knife in the hand of the accused."
15. It would also be relevant to refer to the testimony of PW-11, Dr.
Meghali Kelkar, Senior Demonstrator, Department of Forensic
Medicine, GTB Hospital, Delhi. The injuries described by PW-11 on
the body of the deceased read as under:
i) Stitched incised stab wound measuring 4 x 0.2 x 12 cm
vertically placed over right lower chest.
ii) Stitched incised wound measuring 8 x 0.2 cm x 2.5 cm
present obliquely on anteromedial aspect of right arm
with upper end 14 cm below shoulder tip.
iii) Stitched incised wound measuring 5.9 x 0.2 cm x 5 cm
present vertically on lateral aspect of right arm.
iv) Incised wound measuring 5.3 x 0.2 cm x 0.4 cm present
on lateral aspect of right arm horizontally.
v) Incised wound measuring 5.5 x 0.2 cm x 0.2 cm present
horizontally on left cubital fossa 26 cm below left
shoulder top.
vi) Incised wound measuring 3 x 0.1 cm x 0.2 cm present
obliquely on hypothhenar aspect of left hand palm.
vii) Stitched incised stab wound measuring 2.2 x 0.2 cm x 8.5
cm vertically placed on right temporal region.
viii) Stitched incised wound measuring 8.5 x 0.2 x 0.4 cm
vertically placed on right parieto - temporal region.
17. PW-11 further gave his opinion that the cause of death was
septicaemic shock which resulted due to antemortem injuries produced
by sharp edged weapon. Further, Injury no. 1 is sufficient to cause
death in the ordinary course of nature. PW-11 also examined the
weapon (knife) recovered from the possession of the accused and was
of the opinion that injury No. 1, 2, 3, 4, 5, 6 and 8 can be caused by the
given weapon or this type of weapon.
18. As the learned counsel for the appellant has limited his arguments to
assail the order on sentence, the question which arises before us is
whether the conviction of the appellant under Section 302 of the
Indian Penal Code is sustainable or whether the case of the appellant
falls within the purview of Section 304 of the Indian Penal Code as
submitted by the counsel for the appellant.
19. The next question for consideration is whether the evidence brought
on record by the prosecution, establishes against the appellant a case
of "murder" or in the alternative a case of "culpable homicide not
amounting to murder"?
Section 300: Murder
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 inflicted 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 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.
20. The aforesaid Section provides five such exceptions wherein the
culpable homicide would not amount to murder. Under Exception 4,
death of a person would not be considered murder if it is committed
without premeditation in a sudden fight in the heat of passion upon a
sudden quarrel and without the offender has taken undue advantage or
acted in a cruel or unusual manner. The Explanation provided makes
it clear that it is immaterial as to which party offers provocation or
commits the first assault.
21. It is contended by the learned counsel for the appellant that there was
no intention on the part of the appellant to cause death of the deceased
and, hence, attracts the provision of Section 304 Part I of the Indian
Penal Code which deals with culpable homicide not amounting to
murder. It is contended that the quarrel took place on the spur of the
moment and the prosecution has failed to prove any prior enmity
between them. The counsel further contended that the unfortunate
incident took place in the heat of the moment without the appellant
having taken undue advantage or acting in a cruel or unusual manner
and therefore, intention to cause death cannot be attributed to the
appellant. Hence, the act of the appellant will not fall under
Section 302 of the Indian Penal Code but under Section 304 Part I. In
light of these contentions, it is necessary to look into the ingredients of
the relevant provision. Section 304 of the Indian Penal Code reads as
under:
Section 304: Punishment for culpable homicide not amounting to
murder
Whoever commits culpable homicide not amounting to murder shall
be punished with imprisonment for life, or imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine, if the act by which the death is caused is done with the
intention of causing death, or of causing such bodily injury as is likely
to cause death,
OR
with imprisonment of either description for a term which may extend
to ten years, or with fine, or with both, if the act is done with the
knowledge that it is likely to cause death, but without any intention to
cause death, or to cause such bodily injury as is likely to cause death.
22. In Sukhbir Singh v. State of Haryana reported in (2002) 1 SCR 1152,
wherein two fatal blows were inflicted by the appellant therein by a
bhala on the upper right portion of chest of the deceased, the Hon'ble
Apex Court opined as under:
"19. The High Court has also found that the occurrence
had taken place upon a sudden quarrel but as the
appellant was found to have acted in a cruel and unusual
manner, he was not given, the benefit of such exception.
For holding him to have acted in a cruel and unusual
manner, the High Court relied upon the number of
injuries and their location on the body of the deceased. In
the absence of the existence of common object, the
appellant cannot be held responsible for the other
injuries caused to the person of the deceased. He is
proved to have inflicted two blows on the person of the
deceased which were sufficient in the ordinary course of
nature to cause his death. The infliction of the injuries
and their nature proves the intention of the appellant but
causing of such two injuries cannot be termed to be either
in a cruel or unusual manner. 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 IPC. 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."
(Emphasis Supplied)
23. In Sandhya Jadhav v. State of Maharashtra reported in 2006 Cri LJ
2111, the Hon'ble Supreme Court came to the conclusion that the
Courts are bound to consider a large number of factors for arriving at
an opinion as to whether the fight was sudden or not and/or whether
the deceased has taken undue advantage of the situation in the
following words:
"9. The Fourth Exception to Section 300 IPC covers acts
done in a sudden fight. The said Exception deals with a
case of prosecution not covered by the First Exception,
after which its place would have been more appropriate.
The Exception is founded upon the same principle, for in
both there is absence of premeditation.....
.... The help of Exception 4 can be invoked if death is
caused (a) without premeditation; (b) in a sudden fight;
(c) without the offender having taken undue advantage or
acted in a cruel or unusual manner; and (d) the fight
must have been with the person killed. To bring a case
within Exception 4 all the ingredients mentioned in it
must be found. It is to be noted that the "fight" occurring
in Exception 4 to Section 300 IPC is not defined in IPC.
It takes two to make a fight. 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.
A fight is a combat between two or more persons whether
with or without weapons. It is not possible to enunciate
any general rule as to what shall be deemed, to be sudden
quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the proved
facts of each case. For the application of Exception 4, it
is not sufficient to show that there was a sudden quarrel
and there was no premeditation. It must further be
shown that that the offender has not taken undue
advantage or acted in cruel or unusual manner. The
expression "undue advantage" as used in the provision
means "unfair advantage."
24. In the case decided by this Court in Crl. A. No. 134/2009 titled as
Jagtar Singh @ Jagga @ Ganja vs. State of Delhi, there were two
injuries on the neck and two in the chest, of the deceased, caused by a
sharp edged weapon. There were other minor injuries and abrasions;
in all there were nine injuries. According to the doctor who conducted
the post mortem of the deceased, the shock caused as a result of the
injuries to the neck and chest was sufficient to cause death in the
ordinary course of nature. The surrounding circumstances in the case
pointed to some previous quarrel between the deceased and the
appellant; the latter was agitated and confronted the deceased in the
first part of the incident; on the day of occurrence. It was held by this
Court that though the appellant inflicted several blows some of which
were fatal, it is clear that he did not set out with a pre-mediated
intention to kill the deceased. The facts clearly established an offence
under Section 304 Part I of the Indian Penal Code in which intention
was to cause such bodily injuries as would have resulted in death in
the ordinary course of nature.
25. However, upon anxious consideration of the matter we are persuaded
to accept the alternative limb of submission advanced by the learned
counsel for the appellant that the present case would fall within the
ambit of Section 304 Part I of the Indian Penal Code.
26. The unfortunate incident seems to have erupted at the spur of the
moment. PW4 Chand Babu in his testimony deposed that the appellant
had beaten the deceased and he brought his sister back to his house.
Later, the appellant had come to his house and taken the deceased with
him. No evidence had been put forth by the prosecution to proof the
beating of the deceased by the appellant, in absence of any evidence
thereof, this version of the prosecution cannot be trusted. From the
testimony of PW4 it can be inferred that the appellant wanted the
deceased to live with him. However, from the testimony of PW4
Chand Babu, it seems that the deceased was not interested to go with
the appellant. PW4 deposed in his cross examination, "My sister had
gone back once with the accused unwillingly." It is in evidence that on
the day of the incident, the deceased was at her father's house and
when she came downstairs, her denial to go back with the appellant
became a reason for the sudden quarrel and the appellant assaulted the
deceased.
27. It is the case of the prosecution that the appellant stabbed the deceased
through knife Ex. P-1. It has further emerged from the testimony of
PW1 Shabiya Begum that the appellant took out churri and stabbed
the deceased. However, PW1 did not state any detail of the fact that
from where the churri was taken out. It is highly improbable for the
appellant to carry a knife of length 30.5 cm on his person. It cannot be
accepted that the appellant was armed with a knife when he reached at
the deceased's house. Thus, there is every possibility of the appellant
picking knife in a fit of rage from the household articles kept nearby.
Also, there is no evidence on record to support any preparation or
planning done by the appellant to kill the deceased.
28. So far as the injuries sustained by the deceased are concerned, it
would be relevant to peruse the testimony of doctor who conducted
post mortem. PW11 Dr. Meghali Kelkar in his testimony deposed that
injury No. 1 i.e. "Stitched incised stab wound measuring 4 x 0.2 cm x
12 vertically placed over right lower chest, 3 cm from midline and 19
cm below right clavicle" was sufficient to cause death in the ordinary
course of nature. Though, the appellant inflicted several blows on the
deceased but as per the medical opinion injury No. 1 is proved to be
fatal. The law on this aspect is well settled.
29. In the case of Arun Raj vs. Union of India and Ors. reported in
(2010) 6 SCC 457, the Hon'ble Supreme Court held as under:
".... the appellant's learned Counsel contended that the fact
that there was one single blow struck, proves that there was
no intention to cause death. In support of the plea, reliance is
placed on the decisions of this Court in the case of Bhera v.
State of Rajasthan: (2000) 10 SCC 225, Kunhayippu v. State
of Kerala: (2000) 10 SCC 307, Masumsha Hasansha
Musalman v. State of Maharashtra (2000) 3 SCC 557, Guljar
Hussain v. State of U.P. 1993 Supp (1) SCC 554, K.
Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC
309, Pappu v. State of M.P. (2006) 7 SCC 391, Muthu v.
State by Inspector of Police, Tamil Nadu (2007) 12 Scale
795. A brief perusal of all these cases would reveal that in all
these cases there was a sudden and instantaneous altercation
which led to the accused inflicting a single blow to the
deceased with a sharp weapon. Hence, there has been
conviction under Section 304 Part II as delivering a single
blow with a sharp weapon in a sudden fight would not point
towards intention to cause death."
30. The similar issue of single stab injury to the deceased was dealt by the
Hon'ble Supreme Court in Sudhakar vs. State of Maharashtra
reported in (2012) 9 SCC 725, wherein the accused inflicted single
blow which unfortunately caused severe damage to the vital organs
resulted in the death of the deceased. The Apex Court while
converting the offence from Section 302 to Section 304 held as under:
"9. Going by the narration of the facts disclosed, there
was nothing to suggest that there was any premeditation
in the mind of the Appellant to cause the death of the
deceased. Taking into account the statement of P.W. 1
that the deceased was under the influence of liquor and
that whenever he was under the influence of liquor he
used to throw the household articles and create a ruckus
in the house was a factor which created a heat of passion
in the Appellant who as a father was not in a
position to tolerate the behaviour of his son whose
misbehaviour under the influence of liquor was the
torment. Therefore, unmindful of the consequences,
though not in a cruel manner the Appellant inflicted
a single blow which unfortunately caused severe
damage to the vital organs resulting into the death of the
deceased. In such circumstances, as rightly contended by
Learned Counsel for the Appellant, we are convinced
that the offence alleged and as found proved against the
Appellant can be brought under the First Part of Section
304 of Indian Penal Code. Accordingly, while affirming
the conviction of the Appellant, we are only altering the
same as falling under Section 304 Part I of Indian Penal
Code in place of Section 302 of Indian Penal Code."
31. Applying the law laid down by the Hon'ble Supreme Court in the case
of Sudhakar (supra), we are of the considered view that the evidence
adduced by the prosecution falls short of bringing the case within the
ambit of Section 302 of the Indian Penal Code and the offence
committed by the appellant is covered by Section 304 Part I of the
Indian Penal Code. The prosecution failed to prove the intention of the
appellant to cause the death. It, thus, stands proved that the
unfortunate incident took place on account of sudden quarrel between
the deceased and the appellant; there was no pre-mediation; no animus
and motive to kill the deceased. Therefore, having regard to the
totality of the evidence on record, we have no hesitation in coming to
the conclusion that the present case does not fall within the ambit of
Section 302 of the Indian Penal Code. The aforesaid facts when
analyzed in conjunction with the attending circumstances enwombing
the present incident, strongly dispels the possibility that the appellant
harboured an intention to kill the deceased.
32. Keeping in view, we are of the opinion that the conviction of the
appellant should be altered from Section 302 to one under
Section 304 Part I of the Indian Penal Code thereof. We are being
informed by the learned counsel for the appellant that the appellant
has continuously been in jail for about 6 years and 5 months. In view
of the statement made by learned Counsel for the appellant, we are of
the opinion that the ends of justice would be met if we modify the
sentence awarded to the appellant and sentenced to undergo rigorous
imprisonment for a period of eight years. The fine imposed upon
the appellant Basiullah is unaltered. As noticed, the Trial Court had
not mentioned any sentence in default of payment of fine. Thereby, an
additional sentence of 6 months in default of payment of fine is
imposed on the appellant.
33. The appeal is partly allowed and orders of conviction and sentence are
modified in the above terms.
34. Trial Court Record be returned.
35. Copy of this decision be sent to the Superintendent- Central Jail, Tihar
for updating the jail record.
G. S. SISTANI, J
SANGITA DHINGRA SEHGAL, J
MAY 30, 2016
gr//
