Anwar Ali vs State

Ajit Bharihoke, J.—Appellant Anwar Ali has been convicted and sentenced for offences punishable u/s 302 IPC and Section 27 of the Arms Act in terms of the impugned judgment and order on sentence both dated 27th August 1996 in Sessions case No. 24/1991, FIR No. 75/1991, Police Station Sarai Rohilla. Complainant Mohd. Ismail was running a garment fabrication factory at A-534/6, Shastri Nagar, Delhi. He was residing in a tenanted premises at A-235, Shastri Nagar, Delhi. Appellant Anwar Ali, deceased Mohiuddin and PW Sukhdev Singh were employees of the complainant, they were residing in the factory premises.

Briefly stated, case of the prosecution as revealed by the FIR is that on 21st March 1991 at about 10.15 pm, deceased Mohiuddin visited the house of the complainant Mohd. Ismail (PW-10). He was nervous and terrified. On being asked about the reason, the deceased told that a day earlier, he had a fight with the appellant on the issue of preparation of food and the appellant had threatened to kill him. He stated that in the evening also, the appellant had threatened him by showing a knife. At that juncture, at about 10.20 pm, the appellant also arrived at the house of the complainant. When the complainant asked the appellant about the reason for his quarrel with the deceased, the appellant instead of explaining the reason, retorted that "karan kya batana hai, main iska kaam hi tamam kar deta hoon" He whipped out a knife, tucked in his "dhub" (belt of his pant) and gave a blow to the deceased on his chest. The appellant, thereafter, fled away alongwith the knife. The complainant, Nissar Ahmed and Jai Singh ran after the appellant. Nissar Ahmed and Jai Singh continued to chase him but the complainant went to intimate the police about the incident and he conveyed the information on telephone No. 100. The appellant was apprehended by the police and the blood stained knife was recovered from him. The deceased was taken to Hindu Rao Hospital where he was declared brought dead.

Inspector Ram Janam Singh (PW25) recorded the statement of the complainant and sent it to the police station with his endorsement for the registration of the formal FIR. On completion of formalities of the investigation, the appellant was sent for trial. He was charged u/s 302 IPC and Section 27 of the Arms Act. The appellant pleaded not guilty and claimed trial.

On conclusion of the trial, the learned Additional Sessions Judge found the appellant guilty of the offence of murder of the deceased punishable u/s 302 IPC and also for the offence punishable u/s 27 of the Arms Act and convicted him accordingly. In terms of order on sentence dated 27th August 1996, the appellant was sentenced u/s 302 IPC to undergo imprisonment for life and also to pay a fine of Rs. 500/-, in default, to undergo rigorous imprisonment for a period of three months and for offence u/s 27 of the Arms Act, the appellant was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 200/-, in default, to undergo rigorous imprisonment for further period of one month. Feeling aggrieved by the impugned judgment of conviction and consequent order on sentence, Anwar Ali has preferred the instant appeal.

During arguments, on the instructions of the appellant, learned counsel for the appellant gave up the plea of the appellant against the finding of conviction u/s 27 of the Arms Act and also against the finding that the appellant did inflict stab injury upon the person of the deceased.

Learned counsel for the appellant has, however, submitted that conviction of the appellant u/s 302 IPC is unwarranted and actually the case of the appellant falls within the purview of Section 304 Part I IPC. In support of this contention, she has drawn our attention to DD No. 25A (Ex.PW25/K) wherein it is recorded that lady Constable Archana of police control room had conveyed the information to the police station that she had received a telephone call informing that a jhagra'' (altercation) was going on in House No. A-434/6, Shastri Nagar. She has submitted from the aforesaid DD report, it is evident that the deceased was stabbed in an altercation in the heat of moment, as such learned trial court ought not have drawn an inference that appellant had stabbed the deceased with intention to kill. Thus, she has urged us to set aside the conviction u/s 302 IPC and convert it into conviction u/s 304 Part I IPC.

Learned counsel for the State, on the other hand, has defended the conviction u/s 302 IPC. He has submitted that from the ocular evidence, the prosecution has been able to establish beyond doubt that the appellant followed the deceased to the house of the complainant and suddenly stabbed him on his chest which is a vital part of the body. According to him, the site of the blow itself is sufficient to infer that the appellant had every intention to kill the deceased, particularly when he visited the house of the complainant armed with a knife and suddenly stabbed the deceased.

We have considered the submissions made by learned counsel for the appellant as also learned counsel for the State and gone through the evidence on record as well as the impugned judgment.

PW10 Ismail has deposed in the court that on 21.03.1991 at about 10.15 PM, deceased Mohiuddin visited his house and told that appellant Anwar Ali had threatened to kill him and requested him to intervene. Two or three minutes later, appellant Anwar Ali also came there and when he (complainant) tried to counsel him, the appellant whipped out a knife from his right dhub (belt of the pant) and gave a knife blow on the chest of the deceased saying "what to talk of a quarrel, he would finish the job today". PW4 Nissar and PW11 Jai Singh have also deposed to the similar effect. We find that the learned Additional Sessions Judge has accepted the above stated ocular evidence of PW10 Ismail, PW4 Nissar and PW11 Jai Singh on the face value. He would have done better if he had taken pains to test the testimony of above witnesses on the anvil of other accompanying circumstances because it is a time tested saying "men may lie, but circumstances do not".

Case of the prosecution is that the police machinery came into motion on 21.03.91 at 10.30 PM on receipt of information conveyed by lady Constable Archana of police control room which was recorded as DD No. 25A (Ex.PW25/K). PW10 complainant Mohd. Ismail has deposed that after the stabbing incident, he rang up telephone No. 100 to inform the police about the occurrence at his house. Therefore, it is apparent that the telephonic information mentioned in DD report Ex.PW25/K has to be the information conveyed to the control room at telephone No. 100 by the complainant Mohd. Ismail. Perusal of DD No. 25A reveals that it is recorded therein that some unknown person has informed about a jhagra (altercation) at House No. A-434/6, Shastri Nagar, Delhi which incidentally was the house of the complainant. If that position is true, then it is apparent that whole truth has not surfaced in the testimony of eye witnesses PW4 Nissar, PW10 Ismail and PW11 Jai Singh. They in their testimony have projected as if the appellant followed the deceased to the house of the complainant and suddenly stabbed him in his chest which version is belied by the facts detailed in DD No. 25A. If some jhagra (altercation) had taken place before the stabbing, then there is a strong possibility that the appellant might have stabbed the deceased in the heat of moment as a consequence of sudden altercation in the house of the complainant. The motive to kill, as projected in the case of the prosecution, is an earlier altercation which took place a day earlier between the deceased and the appellant at the factory of the complainant on a minor issue of preparation of food, that too has not been proved by leading evidence. Otherwise also, the motive as projected by the prosecution is too weak to draw an inference that it would have prompted the appellant to kill the deceased.

The lack of motive as also the contents of DD report Ex.PW-25/K discussed above lead us to an inference that a possibility cannot be ruled out that the ocular witnesses have held back the background facts of altercation which led to stabbing of the deceased. Thus, there is a strong possibility that the appellant might have stabbed the deceased in the altercation which took place at the house of the complainant, details of which have not come on record. In this view of the matter, the benefit of ambiguity left in prosecution evidence must go to the appellant to justify an inference of a possibility that the appellant had no intention to cause the death of the deceased and occurrence took place at the spur of moment in an altercation.

Learned counsel for the appellant in support of her plea has referred to the judgments of the Apex Court. Learned Counsel submitted by relying on Tholan Vs. State of Tamil Nadu, , that where in a sudden fight a single blow given with a knife was held to fail within Section 304 Part II of the IPC, a sudden fight like the present one where a single blow is given on the chest would also invite the same provision. The relevant observations are reproduced as under:-

There arose a situation in which appellant probably misguide by his own egocentric nature objected as to why Sampat should ask him to leave the place and in this background he gave one blow with a knife which landed on the right side chest of the deceased, which has proved fatal. Could the appellant be said to have committed murder? In other words, whether Part I or Part III of Section 300, I.P.C. would be attracted in the facts of this case. Even Mr. Rangam learned Counsel for the State of Tamil Nadu could not very seriously contend that the appellant intended to commit murder of Sampat. His submission was that at any rate appellant when he wielded a weapon like a knife and gave a blow on the chest, a vital part of the body, must have intended to cause that particular injury and this injury is objectively found by the medical evidence to be fatal and therefore Part III of Section 300 would be attracted. On this aspect, the decisions are legion and it is not necessary to recapitulate them here merely to cover idle parade of familiar knowledge. One can profitably refer to Jagrup Singh vs. State of Haryana, Randhir Singh vs. State of Punjab, Kulwant Rai vs. State of Punjab and Hari Ram vs. State of Haryana. To this list two more cases can be added Jagtar Singh vs. State of Punjab and Ram Sunder vs. State of U.P. Having regard to the ratio of each of these decisions, we are satisfied that even if Exception I is not attracted the requisite intention cannot be attributed to the appellant. But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation, he would be guilty of committing an offence u/s 304 Part II of the Indian Penal Code. Having regard to the circumstances of the case a sentence of 5 years would be quite adequate.

Learned counsel also referred to the elucidation in respect of the 4th exception of Section 300 of the IPC made in Ravindra Shalik Naik & Ors. vs. State of Maharashtra, 2009 (2) Scale 354 in para 6 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 Vs. State of Gujarat, , Prakash Chand Vs. State of H.P., ,; Byvarapu Raju Vs. State of Andhra Pradesh and Another, and Buddu Khan vs. State of Uttarakhand SLP (Crl.) No. 6109/08 disposed of on 12.1.2009.

The legal principles enunciated aforesaid, in our considered view, would squarely apply to the facts of the present case which is a case of a single blow. There is no evidence of any previous rivalry between the appellant and the deceased. No motive on the part of the appellant to cause death of the deceased is proved. The occurrence admittedly had taken place at the house of the complainant. However, the version of the complainant and other witnesses regarding the appellant having stabbed the deceased immediately on his arrival is belied by the information contained in DD No. 25-A dated 21st March 1991, Police Station Sarai Rohilla purportedly recorded on the basis of information conveyed by the complainant. Since there is a gap in the prosecution evidence regarding the background facts which led to the incident, the benefit of ambiguity and confusion, under law, must go to the accused.

In view of the above, we find it difficult to conclude that the unlawful act committed by the appellant falls within the parameters of Section 300 IPC which defines culpable homicide amounting to murder, as it falls within the fourth exception to Section 300 IPC. The offence committed by the appellant, in our considered view, falls within the definition of culpable homicide not amounting to murder and the appellant is liable to be convicted u/s 304 Part I IPC and not u/s 302 IPC. The conviction of the appellant u/s 302 IPC, is converted into the conviction u/s 304 Part I IPC. As a consequence, we set aside the sentence awarded to the appellant for offence u/s 302 IPC and convert it into the sentence of rigorous imprisonment for a period of 10 years and also to pay a fine of Rs. 5000/-, in default, to undergo rigorous imprisonment for a further period of one year. So far as sentence u/s 27 Arms Act is concerned, it is maintained as it is. The appeal is partly allowed to the aforesaid extent.