Mehmood vs The State (Delhi Admn.)

Sanjay Kishan Kaul, J.—The appeal is directed against the judgement dated 7.3.1996 of the Additional Sessions Judge convicting the appellant u/s 302 of the IPC for murder of Mohd. Afzal, the deceased and the order of sentence of even date whereby the appellant has been sentenced to undergo imprisonment for life and to pay fine of Rs. 2,000.00 and in case of default to pay fine to undergo further simple imprisonment for a period of four months. The appellant has also been convicted u/s 27 of the Arms Act and was directed to further undergo rigorous imprisonment for a period of one (1) year.

The factual matrix of the case is limited. The appellant and the deceased were neighbours residing in Gali No. 5, Chauhan Bangar, Delhi. On the fateful day of 8.1.1988 at about 1:30 p.m. an altercation ensued between the deceased and Shrimati Anarkali, mother of the appellant. In the evening at about 9:30 p.m. when the deceased was returning towards his house the appellant accosted him as to why he had abused his mother on that day? This resulted in exchange of hot words between the appellant and the deceased. The appellant entered into his house and came out with a chhuri (kitchen knife) whereafter he started abusing the deceased. On being asked not to do so the appellant stabbed the deceased on the left side of his armpit and on his chin as a result of which the deceased received injuries which he pressed with a sheet/shawl and rushed towards his house where he fell in front of his house. The appellant fled from the spot. This occurrence was witnessed by the neighbours including PW-1, Faqruddin, and PW-5, Akram. The case of the prosecution is based on the ocular testimony of PW-1, as PW-5 turned hostile during the recording of his testimony. The appellant was enlarged on bail in pursuance to the order dated 21.3.2002 but did not put an appearance for hearing of the appeal. The bailable and non-bailable warrants have remained unexecuted and the whereabouts of the appellant are not known. The surety has also sold the property and left and is not available. A status report in this behalf has been filed in Court which is taken on record.

We have gone through the record of the trial court and perused the impugned judgement as also the grounds of appeal.

The principal challenge is three-fold:

i. That PW-1 was a friend of the deceased and thus an interested witness.

ii. That the clothes of PW-1 were not seized.

iii. PW-5, the other eye witness, had turned hostile.

On perusal of the testimony we find that PW-1, the eye- witness, has withstood cross-examination and scene of the incident has been correctly related. There was also no reason for PW-1 to have falsely implicated the appellant as there is no past enmity. In fact, there was really no past enmity even between the appellant and the deceased other than the related incident which occurred in the morning of the fateful day when over some reason the deceased had abused the mother of the appellant. The appellant appears to have held a grudge on this account and in the evening accosted the deceased. The deceased instead of apologizing for the same sought to enter into an argument with the appellant, which escalated. In the heat of the moment the appellant rushed into the house to pick up a chhuri (kitchen knife) lying therein and came out to start abusing the deceased. When the deceased asked the appellant to stop abusing him the appellant inflicted two chhuri (kitchen knife) blows on him.

The post mortem was conducted by Dr. P.C. Dixit/PW-15, who has proved the post mortem report Ex PW 15/A. He has opined that injury No. 7 caused by a sharp-edged weapon was sufficient to cause death in the ordinary course of nature.

The result of the aforesaid is that we find no infirmity insofar as the appellant being guilty of causing the death of the deceased is concerned but a question arises whether the appellant should have been convicted u/s 302 of the IPC.

Learned Counsel for the State did seek to defend the impugned judgement in this behalf but cannot seriously dispute that the incident as narrated by PW-1, which forms the basis of the case of the prosecution, shows the incident occurred in the heat of the moment without the appellant taking any advantage of the situation. The chhuri (kitchen knife) was lying in the house. The dispute occurred in front of the house in the gali. The appellant rushed in and brought out the chhuri (kitchen knife) when further verbal argument ensued and the appellant inflicted the knife wounds on the deceased.

We are, thus, of the opinion that the present case falls within the fourth exception to Section 300 of the IPC and the appellant is thus liable to be convicted and sentenced u/s 304 Part II of the IPC instead of Section 302 of the IPC. The relevant provision is reproduced hereunder:

Section 300. Murder

---

---

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.

The applicability of the aforesaid provision has been elucidated in Ravindra Shalik Naik and Others Vs. State of Maharashtra, as under:

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 conduct of both parties puts them in respect of guilt upon equal footing. A ''sudden fight'' implies mutual provocation and blows on each side.

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, Prakash Chand Vs. State of H.P., Byvarapu Raju Vs. State of Andhra Pradesh and Another, and Buddu Khan v. State of Uttarakhand SLP (Crl.) No. 6109/08 disposed of on 12.1.2009

We may add that in Pappu @ Hari Om Vs. State of Madhya Pradesh, a distinction has been carved out between the offence of murder as against culpable homicide not amounting to murder as defined u/s 300 of IPC.

In the above referred case, the exchange of hot words between the accused and the deceased resulted in a shot being fired resulting in an injury on the chest of the deceased which was held to be a fit case for conviction u/s 304 Part II, IPC with a custodial sentence of eight years.

We have already concluded that case of the appellant comes within the fourth exception to Section 300 of the IPC, therefore, his conviction u/s 302 of the IPC cannot be sustained. As a result we set aside his conviction u/s 302 of the IPC and convict him u/s 304 Part II of the IPC for culpable homicide not amounting to murder.

We, however, do not find any infirmity in respect of conviction and sentence awarded u/s 27 of the Arms Act.

We find that the sentence of eight years against the appellant while sustaining the fine would suffice for the offence u/s 304 Part II of the IPC. The nominal roll shows that the appellant has been in custody for more than nine and a half years. The appellant has, thus, served the sentence imposed u/s 304 Part II of the IPC and Section 27 of the Arms Act as also the sentence against fine. The appellant is, thus, not required to be taken into custody.

The appeal is allowed to the aforesaid extent. The bail bond and the surety accordingly stand discharged.