Mohd. Abid v. The State

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ? SANJAY KISHAN KAUL, J.(ORAL)

1. The appellant is present in pursuance to production warrants issued yesterday. Learned counsel for the appellant, on instructions from the appellant, admits his guilt but confines his plea to the case being one of culpable homicide not amounting to murder punishable under Section 304 Part II or in the alternative under Section 304 Part I of the IPC and not of murder punishable under Section 302 of the IPC.

2. Raheemudin had a lathe machine factory at Shah Ganj. The deceased who was the brother of the Raheemudin used to work in the said factory. One Afzal was an employee in the factory. The appellant Mohd. Abid used to visit Afzal in the factory which was objected to by 2009:DHC:3645-DB account. On the fateful day i.e. 18.6.1990, the deceased along with Mohd. Zakir, PW[1] had gone to Rohtak Road for getting some iron hardened. At about 11.45 p.m., they returned back and the deceased parked the scooter at Hamdard Road, Opposite Gali Mir Afzal, Hauz Qazi. PW[1] Zakir went to have milk. Islamuddin, brother of the deceased was standing in the Gali and the deceased started conversing with him. At around 11.55 p.m., the appellant came and gave a hockey blow at the back of the deceased. The hockey broke into three pieces and thereafter the appellant is alleged to have taken out a knife and stabbed the deceased on the chest as well as on the right thigh. The deceased was rushed to the hospital and he died soon after admission in the hospital.

3. The appellant was arrested after completion of necessary investigation. He was sent for trial for having committed the murder of Shamimuddin punishable under Section 302 IPC. The charge was framed accordingly. The appellant pleaded not guilty to the charge and claimed to be tried.

4. On completion of the trial, the appellant was found guilty and convicted under Section 302 IPC in terms of the impugned judgment dated 17.5.1995 and was imposed a sentence of imprisonment for life and a fine of Rs.3,000/- in terms of the order dated 22.5.1995. The appellant has thus assailed the order of the trial Court in appeal.

5. Learned counsel for the appellant, on instructions from the appellant, who is present in custody, has not pressed the appeal on merits but he has assailed the impugned judgment on the ground that established and the offence committed by the appellant is culpable homicide not amounting to murder because there was no intention on the part of the appellant to cause death of the deceased, as such, the appellant could be convicted only under Section 304 Part II or at best under Section 304 Part 1 IPC.

6. As per the case of the prosecution, PW[1] Mohd. Zakir and PW[2] Islamuddin are the eye-witnesses to the occurrence. PW[1] Mohd. Zakir is a hostile witness. He had not supported the case of the prosecution. According to him, when the occurrence took place, he had already left the spot for taking milk in Gali Mir Kasim and when he returned back, he found the deceased Shamimuddin lying on the ground in the injured condition. From the testimony of PW[2] Islamuddin, it transpires that the background to the dispute was frequent visits of the appellant to meet his friend Afzal in the factory of the brother of the deceased during working hours which was objected to by the deceased. It appears from the evidence that on the fateful night, some altercation took place because of said reason. As per PW[2] Islamuddin, the appellant had attacked the deceased by striking him at his back with hockey stick which broke into three pieces and it was thereafter the appellant had inflicted the knife blow.

7. Learned counsel for the appellant has emphasised that from the aforesaid version of PW[2], it can be safely inferred that there was no intention on the part of the appellant to cause death of the deceased. He has submitted that had there been any intention to cause death of the deceased in natural course of circumstance, the appellant instead attacked the deceased with the knife. He has, thus, submitted that the learned trial Court has erred in concluding that the appellant had stabbed the deceased with intention to cause his death.

8. On the other hand, learned counsel for the State has submitted that given the nature of the injury and the manner in which the appellant has acted i.e. hitting the deceased with a hockey at his back which is a vital part of the body and thereafter stabbing him with knife clearly shows that he had every intention to cause death of the deceased. Thus, he has submitted that he has been rightly convicted for murder of the deceased punishable under Section 302 of the IPC.

9. We have considered the arguments advanced by learned counsels for the parties and have perused the record. PW[2] Islamuddin had deposed that the appellant initially hit his brother Shamimuddin with a hockey which broke due to the impact and then he took out a Churi from his pocket and gave a blow on the chest of Shamimuddin and gave another blow on his right thigh. One cannot lose sight of the fact that if the version of PW[2] is wholly true, then there has to be some time gap between the hitting of the deceased by the appellant with a hockey and the incident of stabbing. Admittedly PW[2] was present at the relevant time, therefore, it is not possible that he and the deceased would not have reacted within the time gap in which the appellant took out the churi. Therefore, in our view, a possibility cannot be ruled out that some altercation had taken place between the appellant and the deceased and his brother after the hockey blow, which resulted in appellant using the knife in the heat of the moment. the appellant under natural course of circumstance, would have straight away attacked the deceased with the knife and inflicted a vital blow. This was not so in the present case as the initial endeavour was only to cause an injury to the deceased with the hockey stick. Unfortunately, the knife blow landed on the chest of the deceased which proved to be fatal. The second injury on the thigh of the deceased was not on a vital part.

10. From the above, it is obvious that genesis of the occurrence is the deceased objecting to the visits of the appellant to their factory to meet Afzal during working hours. This motive obviously is not strong enough to prompt a person to do away with the life of someone. The factual matrix discussed above, in our view, negates the possibility of the appellant having stabbed the deceased with intention to cause his death and it appears that the unfortunate occurrence is the result of act committed in the heat of moment.

11. Learned counsel for the appellant referred to the elucidation in respect of the 4th exception of Sec. 300, IPC made in Ravindra Shalik Naik & Ors. Vs. State of Maharashtra, 2009 (2) SCALE 354 in para 6 as under:- “6. The Fourth Exception of 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. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acting 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 the 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 and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a 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 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'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat, (2003) (5) Supreme 223, Parkash Chand v. State of H.P. (2004) (11) SCC 381,; Byvarapu Raju v. State of A.P. and Anr., (2007) (11) SCC 218 and Buddu Khan v. State of Uttarakhand SLP (Crl.) No. 6109/08 disposed of on 12.1.2009”

12. Learned counsel for the appellant has also referred to the judgement in Pappu Vs. State of M.P., 2009 (4) SCALE 521 to make out a distinction between the offence of murder as against culpable homicide not amounting to murder as defined under Sec. 300, IPC in the following terms: “7. This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and `murder' its specie. All `murder' is `culpable homicide' but not vice-versa. Speaking generally, `culpable homicide' sans `special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, `culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as `murder'. The second may be termed as `culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is `culpable homicide of the grades. Culpable homicide of this degree is punishable under the second part of Section 304.