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(V ° Reserved on:24^^ July.701R
Date of Decision: 01 August 9,01 R CRL.A.1166/2ni7
GULFAMANDANR . „ , Appellants
Represented by: Mr.Mohd.ParvezDabas, Advocate.
JUDGMENT
Section 304Part-II/34IPC and rigb^us,ppris|nnentfor a period ofsix monthsfortheoffencepunishable underSection448/34IPC.
2. Assailing the conviction,learned counsel for,the appellants contends that there was no allegation ofany head injuiy. Furthermore,as per the postmortem report,the deceased Mohd.Jamil was sufferingfrom bronchopneumonia and the same has been proved during the cross examination of Dr.Aistesh Bajwa(PW-1). '•
3. Processoflaw wassetinto motion on 2""June2012ataroimd 12:40 CRL.A,1166/2017 PageIof10 2018:DHC:9296 P.M. when a call was received pertaining to a quarrel having taken jjlace at Khureji Khas, Kasai Wali Gali, near MCD School. Aforesaid infoiination was lodged by DD No.28A(Ex.PW-3/A)and was assigned to SI. C.P Singh (PW-14)who along with Ct.Lakhan(PW-IO)wentto the spot. They found dead body ofa man lying on the ground floor atHouse No.92,Khureji Khas, Kasai Wali Gali, Delhi and the household articles were scattered. Mehrunisha was also present atthe spot.In the meantime.Beat Ct.Samman Khan(PW-13)also reached the spot.Crime team consisting ofphotographer Narender (PW-6) and finger print proficient under the supervision of SI Karamveercameto the spot.Dead.body was-sentthrough Ct.Samman Khan alongwith requestletter Ex.PW-l:4/A;,, ',,.
4. Statement ofMehrunisha was;rec6fd'ed:V Ex.PW-2/A wherein she stated that she stays at H.No 92;Kqsai Khuraji Khas,Delhi with her husband and children. She belongs: to Islamnagar, Kasba-Katholi, Thana-Katholi,Jila Muzafarnapar,4&af She has four kids out of which two are girls and two;ard bpysj^jH^'husband was having breathing problems since 5-6 months. ShefwasHl his treatment done at the Kingsway Camp Hospital. Whenever her husband used to feel better, he usedto putabiryanistall.Earlierth^sedto;statin Kotla Village.Shehad ^ taken the abovementioned house on rent for ?3,000/- per month. On 24'^ May2012,the dayshe had moved intothe house,she had giventhelandlady Mustar Jahan W/o Jafar Mohammad,?700/- and told her that she would be paying monthly rent from next month onwards. On E' June 2012 in the evening,the landlady Mustar Jahan came to her room and told her to move out of her house as she had to rent it out to a factory worker. She asked MustarJahanto give^sometime to find anew placeto stay butMustarJahan CRL.A.1166/2017 page2of10 ■w. refused to do so and asked her to move out by the next day. On 2"^ June 2012 at around 10:30 A.M., Mustar Jahan's son Gulfam disconnected the electricity of her house due to which she went to Mustar Jahan's room to enquire about the same. Gulfam then said that 'hamari light hain, hum aise hi karengey, tum makkan khali karo'. She pleaded in front of them to connect the light as her husband was unwell and she would move out as soon as she finds a room on ground floor, after which she came back to her room. After a while, Mustar Jahan and.Gulfam came to her room and started throwing her things out of the house and told her to move out right away as they had taken an advance from a factory worker. She then requested thiem for some time and asked them td-hot. tlurdwJi^r-S^ out and tried to stop them from throwing her articles, Theyjpqsfeft^ as a result of which she fell on the floor. Then both of thepi.^draggedher husband out of the room. I'' - I'" y.: Her husband started begging themt^to leave him as he was unwell but they didn't listen and instead Mustarjahanheldjiis, hands from the back while Gulfam kicked and punched him yvhfch mud.sfhim unconscious. When she raised an alarmboth of themran a^a^v.^PhfreM she called the police and by the time they arrived, her husbandhadpassed away.
5. On the basis of thevaTprementionedfSta^^ FIR No.222/2012 (Ex.PW-3/B) was registered at PS Jagat Puri for the offences punishable under Sections 304-11/448/34 IPG. Further investigation was handed over to Insp. O.P Jakhar who came at the spot around 7-7:15 PM where he met Mehrunisha who told him that Gulfam and Mustar Jahan had killed her husband. Insp. O.P Jakhar along with SI C.P Singh went to house No. 92, Third floor, KhurejiKhas,Kasai Wall Gall,Delhi where Gulfam andMustar i?. ^.,1. Jahan were found present. Gulfam was arrested vide arrest memo Ex.PW- CRLA. 1166/2017 Page[3] of10 % 10/A and his personal search was conducted vide memo Ex.PW-lO/B. His disclosure statement was recorded vide Ex.PW-lO/C. Mustar Jahan was arrested vide arrest memo Ex.PW-12/A and her personal search was conducted vide memo Ex.PW-2/F. Her disclosure statement was recorded videEx.PW-4/C.Aftercompletion ofinvestigation,charge-sheetwasfiled.
6. Mehrunisha(PW-2)deposed in sync with the statement made before the police.Shefurtherstated thatwhenher brotherIkrar(PW-4)and herson Mohd. Shakir went to the appellants to talk to them, Gulfam abused them and pushed Ikrar(PW-4)due to which he fell down on her son. Mustar Jahan told her brother 'Vw zyaada jiamdardi lekar aaya hain, teri bhen kamm kyo nahi khali kar roHi brotherand son came back.They were followed bythe app'eilahts;and daughter ofMustar Jahan, Khatija into her room. Mustar Jahan toldlher children that Mehrunisha would notvacatetheroom this way;a#d^kedthem tothrow outhergoods. When she objected,Khatija pulledger;fern Mustar Jahan slapped her and startedthrowing hergood^ &
7. Mohd. Ikrar (PW-4) ahd (PW-8) corroborated the testimony ofMehrunisha.
8. Dr. Aistesh Bajwa(PWH),:S^or^e^d|nt,Mortuary, Aruna Asaf Ali, Government Hospital stated that on 4^'^ June 2012, he conducted postmortem examination on the dead body ofJamil S/o Sultan aged about 45 years. On examination,clothes on the body were found intact.The dead body was poorly built; rigor mortis was absent. Postmortem staining was presentonthe back.Following externalinjuries werefound: i. Reddish brown abrasion 4.[2] x 3.[3] cm was present at right, gluetial reason, at outer aspect, 20.[1] cm below anterior CRL.A.1166/2017 Page4of10
9. superior iliac spine. ii. Palpable swelling was present atrightfronto parietal region of scalp.On dissectioninfiltration ofblood waspresent. On internal examination,sub scalp bruise was present atrightfronto parietalregion.Bones werefound intact.Multiple contusion was presentat rightfrontoparietalregion with cerebraloedema(sulci narrowed and gyrus flattened). The bilateral lungs were adherent to the chest wall. Multiple patches were present with area ofconsolidation and fibrosis.On dissection purulent discharge was present.It was opined that the injuries mentioned were ante-mortem in origin caused bybluht.force/surfaceimpact.Thecause ofdeath wasopinedtobecompreSsionybrainfTimesincedeath wasabout 2days.He prepared the postmortem,rdjioit wasproved videEx.PW- 1/A.His detailed subsequent oi5inipn,;w^:p^ vide Ex.PW-l/C wherein heopinedthatthefeaturesofbroncho-ipppUmoniaasmentionedinthishistopathologicalreporthadledto asphgiqlhi^.along with head iiyuryledto comato-asphyxiawhich was,sufBcd|||pldSea^^inanordinatycourse ofnature.HissubsequentopinWi^|#inuaiy2013wasproved vide Ex.PW-1/D whereinhe opined"head injuries mentioned inthepostmortem reportpersearesufficientto-iJause^pthjinan;|5a^^ courseofnaturein thiscase".In hiscrossexaminationhestatedthatitiscorrectthatincaseof prolongedillnessofchronicbronchopneumonia,ifremaineduntreated,may leadtodeath ofthepatientbutitwaswrongtosuggestthatitmayalsolead such apatientinto a state ofcoma.
10. Gulfam m hisstatementrecordedunderSection313Cr.P.Cstatedthat he wasinnocentand had beenfalsely implicated in the presentcase. When thisincidentoccurred,hehadcomefrom hisshopand wastakingrestinthe CRLA.1166/2017 Page5of10 w V house. After hearing noise, he came down and saw that Mohd. Jamil was lying on the floor. Some neighbours had also gathered there. He called his father who along with some neighbours put Jamil on a cot and thereafter he was sentto the shop by his father.
11. Mustar Jahan in her statement recorded under Section 313 Cr.P.C stated that she was innocent and had been falsely implicated in the present case. She stated that Mehrunisha took one room ofher house on rent on 24^^ May2012.Mehrunishatook this room for only"7-8 days and paid only for 7- 8 days which amounted to about?700/- and she promised them to vacate the house afterthe abovementioned dufatipn.Mehrunisha was goingto shiftto a room in House No 62, Kasai Wali Gali,.^elhf'and she told her that her husband had expired. Some ofher:'houkeb61'd'articles were inside the rented room and some were lying outside,/Since theri she did not vacate the room, nor paid the rentor electricity bill. j, <
12. Mohd. Iqbal (DW-l).state4|thi? or 29'^ March 2012, Mehrunishacameto hisHouse:NoiS[2];|SHip^l(p^ Gali,KhurejiKhas,in search ofa room. He showed her^an^empt^^^ which she was ready to take and informed him that she would come to reside with her husband in 2 to 4 days. On 2 June 2012'aftabout^8.00-8:3^ she came to the room and took the key of the abovementioned room. She gave him ?500/- in advance and then after putting some clothes in the room,she went to take remaining articles. When he came back from work in the evening,he learnt thather husband had expired as he wasill. Aftertwo days Mehrunishacame back to take her belongings and advance and informed him that she would be retaining her previousroom. CRL.A.1166/2017 Page6of10 'w' W
13. High Court of Rajasthan in the decision reported as 2009 SCO OnLine Raj3492:(2010)1 RLW 631 State v. Goru while considering the issue whetherthe offence in such asituation would be culpable homicidenot amounting to murder punishable under Section 304 Part-II IPG or grievous hurtpunishableunder Section325IPG orhurtpunishable underSection323 IPG and observed as under:
16. In view ofthe above referred to authoritative passages on Science ofMedicaljurisprudence it cannot be gainsaid that enlarged and diseased spleen itself is sensitive and it is vulnerable and susceptible to rupture by a slightest force. Now, therefore, the question which requires to be considered is as to whether the accused have committed the ojfence of culpable homicide notamounting to murderpunishable under Section 304 PartIIofIPC or grievous hurtpunishable under Section 325oftheIPCor hurtpunishable underSection 323of theIPC.
17. A similar question arose before the Calcutta High Court way back in 1920 in the case ofEmperor v.Saberali Sarkar, AIR 1920 Calcutta 401. In that case, the accused, having found that a young man had approached his kept mistressfor thepurpose ofhavingsexualintercourse with her,thoughtthat he would bejustified in teaching him a lesson by giving him a good thrashing. He accordingly sentfor the brother ofthe young man,andin thepresentofthe villagersgave him agood beating by kicks and blows, which resulted in his death. The deceased was of a weak constitution and had an enlarged spleen, and it appeared that when the villagers told the accused that he was about to kill the young man by his kicks and blows, he observed that' the deceased was merely pretending and gave him some more strokes with a cane. The accused was thereupon charged with an offence under S. 304. Thejuryfound him guilty under S. 323. The Sessions Judge disagreed with thejury and being ofopinion that the accused wasguilty underS. 325,referred the matter to the High Court CRL.A.1166/2017 under Section 307 of the Old Code. In the aforesaid fact situation, the High Courtheld that in the circumstances ofthe case it was doubtful whether the accused had either intended or knew it to be likely that he would cause grievous hurt and as the case seemed to be on the border line between Ss. 323 and 325 the accused might be given the benefit ofthe doubt andshould be convictedofan offence underS. 323.
18. In the caseRamakrishna Panickerv.State ofKerala AIR 1959 Kerala 372, before Kerala High Court the victim was having a spleen ofdiseased condition which got ruptured.In the saidfactsituation, Kerala High Court held that when the injury is notserious and there was no intention to cause death or grievous hurt, nor did the accused have knowledge that it was likely to cause grievous hurt or death, he is guilty of causing hurtandnotdeath even though death is caused.Itwas further heldthattherefore wherefrom thecircumstancesofthe case it is impossible to draw an inference that the accused would have intended to give the deceased anything more than a beating or thrashing to teach him a lessonfor usingfoul language to him, a police officer, it would not bepossible to attribute to him the requisite intention or knowledge merely becauseofthe diseasedcondition ofthespleen ofthe deceased which got ruptured. In such circumstances his conviction under Section 304cannotstand.
19. A similar question arose before a Division Bench of AllahabadHigh Courtin the case ofSriPrakash v. The State, 1990 Cr.LJ486.In thatcase, the beatinggiven by the accused to a child has resulted into the death ofthe child. However, there was no visible injuriesfoundon the dead-body. Beating given to the child, therefore, could not be severe. On medical evidence, spleen ofthe child wasfound to be ruptured and, therefore, enlargedspleen could only be the reason ofdeath. The accused was not knowing ofthe enlarged spleen ofthe deceased. On thefact situation, the Division Bench held that the accusedcould not be heldguilty underSection 304ofIPC CRL.A.1166/2017 „ „ Page8of10 w andfurther held thatconviction will beproper underSec. 323 andnotunderSec.325ofIPC.
20. Applying theprinciples laid down by three High Courts in the above referredjudgments and thepassages quoted by us from the MedicaljurisprudenceofDr.ModiandDr.Jhala and Raju to thefacts ofthepresentcase, itcannotescapefrom the conclusion that the deceased Onkar died in an ordinary incident which has resulted into quarrel between the complainantandthe accusedpartyandaccusedA-1 Goru and A-3 Hajari got excited and gave lathi blows to the deceased whose spleen asper the medical evidence was ruptured as it was enlarged and diseased. Therefore, neither intention nor knowledgecan beattributedtotheaccusedforcausingmurder or culpable homicide not amounting to murder ofdeceased Onkar. However, the deceased has also received multiple fractures of7th, 8th and 9th ribs, therefore, at the most the office underSection 325ofIPCisprovedagainstaccusedA-
14. Case of the prosecutic^Jfr^th^:statement of Mehrunisa is that Mustar Jahan caught hold and Gulfam kicked and punched him..Thus it canh;M;^|g|.t» appellants assaulted the deceased withanintentiontokillhim.Thoughinthesubsequentopinionthe postmortem doctor opined,tliat the, head injuries,perse were sufficient to cause death in the ordinary course ofnature bhtthe doctor also opined that features of broncho-pneumonia has led to asphyxia which along with the head injurylead to comato asphyxia which was sufficientto cause death in the ordinary course ofnature. It is thus evident that because the deceased was suffering from broncho pneumonia it aggravated the cause ofdeath of the deceased. CRL.A.1166/2017 „ „ Page9of10 w
15. In viewofthefactsdiscussed aboveandthelaw laid downconviction ofthe appellants is converted to one for offence punishable under Section 325 and 448 read with Section 34IPG.As per the nominal rolls appellant Gulfam has undergone imprisonmentfor a period of[3] years[3] months and 15 days including remissions. Further Mustar Jahan has undergone imprisonmentfor a period ofnearly 1 year 3 months.Thusthe sentence of the appellantsis modifiedtothe period undergone.
16. Appeal is disposed of. Superintendent, Central Jail, Tihar is directed toreleasethe appellantsforthwithifnotrequiredin any othercase.
17. Copy ofthis order be sent to Superintendent, Central Jail, Tihar for updation ofthe Jail record.
18. Trial Courtrecord be sentiback..■ '
JUDGE AUGUST 01,2018 'yo'