Important Point
Where during sudden quarrel, but there was no sudden fight, the accused inflicted sixteen incised wonds on his step mother and seven wounds on his sister out of which both the victims died, it could not be said that the accused had not taken undue advantage or acted in a cruel or unusual manner so as to get the benefit of Exception 4 to Section 300 of IPC.

Headnote:Indian Penal Code, 1860-Section 300, Exception 4-Culpable homicide not amounting to murder -Main requirements to attract Exception 4-There must be a sudden fight and accused has not taken undue advantage or acted in cruel or unusual manner-Accused, step son of deceased-During altercation with father step mother questioned deceased why he was quarreling, accused inflicted sixteen incised wounds on deceased-At that point sister of accused intervened on whom also accused inflicted seven wounds with dagger-Sister also died-Accised acted in a most cruel and unusual manner-No sudden fight though quarrel started suddenly-Requirement to attract Exception 4 to Section 300 not satisfied-Fact that accused and father reconciled and accused now the sole bread winner is irrelevant to question of conviction - High Court justified in altering death sentence into life imprisonment.
Held : Both the victims i.e. Zohra Bi and Gulzar were totally unarmed, they had not caused any injury to the appellant or Maqbool. Hence, it will be difficult to accept the contention that there was a sudden fight between the accused or the witness and the victims, even though the quarrel started suddenly. Secondly, in the present case, it will be difficult to hold that appellant had not taken any undue advantage or acted in a cruel manner. The injuries found by the Doctor, P.W. 12, who carried out the post-mortem examination on the body of the deceased Zohra Bi, aged 40 years, had found in all sixeen incised wounds, similarly, he had noted eleven incised wounds on the dead body of Gulzar, aged about 17 years. On the face of it, it is apparent that accused acted in a most cruel manner by inflicting number of dragger blows on a helpless step-mother and young sister. Hence, even assuming that there was no premeditation and the act was done in the heat of passion because of sudden quarrel between P.W. 1 on one side and Maqbool and appellant on other side and that appellant used the dagger which was brought out by his brother Maqbool for inflicting injuries, yet main requirements, viz., (i) it was sudden fight and (ii) accused have not taken undue advantage or acted in cruel or unusual manner of Exception 4 of Section 300 IPC are not satisfied. Further, the contention of the learned counsel for the appellant that P.W. 1 and the accused have reconciled and are staying together or that accused is sole earning member of the family would be totally irrelevant on the question of conviction and sentence of the accused for the offence of murder of his step-mother and sister. (Para 5)

Judgment

Shah, J.-The appellant Sikander @ Mohammad Shafiq is convicted under Section 302 of Indian Penal Code by the Additional Sessions Judge, Delhi, by judgment and order dated 5th/9th August, 1991 and was sentenced to death subjct to confirmation by the High Court. Appellant preferred Criminal Appeal No. 109 of 1991 against the conviction and sentence which was partly allowed. The order with regard to the death penalty was set aside and appellant was sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000/- in default thereof to undergo R. I for 18 months. Against the said judgment and order this appeal is filed.

2. The prosecution version as stated by P.W. 1 Ghulam Mohammad is that he was a resident of Delhi and was dealer and manufacturer of Umbrellas; he has got two wives known as Firdaus and Zohra Bi Noor Zahan. His first wife Firdaus is residing at House No. 377, Welcome Colony, Seelampur alongwith her three children, named, Mehboob, Ghulam Hassan and Shabana and her other three children have been residing with him at his House No. 1584, Turkman Gate. They are Sikander (appellant), Maqbool and Shamim. His second wife Zohra Bi Noor Zahan (deceased) had been residing with him alongwith her six children including daughter Gulzar Bano aged 17 years (deceased). He was also having a house at Bandra Road, Bombay where his first wife was residing earlier before she shifted to Welcome Colony, Seelampur. There was dispute between him on the one hand and his wife Firdaus and her children on the other with regard to the house at Bombay. The appellant-accused and his brother were insisting for the transfer of the said house in the name of their mother at the earliest. For transfering the said house in the name of his first wife, he went to Tis Hazari on 17th October, 1988 alongwith his son-in-law Aftab Ahmed and met his counsel who advised him to come on the next day. Hence, the said property could not be transferred in the name of his wife. At about 6.00 P.M., when he was sleeping in the house, he woke up on hearing the noise of a quarrel and saw Shamim, daughter of Firdaus abusing Zohra Bi. He slapped Shamim and asked her to desist from abusing Zohra Bi. After this the appellant and Maqbool came into the house, Maqbool went inside the room alongwith Shamim and then came out with a dagger. Maqbool abused him and stabbed on his left eye, he fell down. At that time, Zohra Bi intervened and protested saying as to why he was beating his handicapped father. At that time, appellant snatched away dagger from Maqbool and started stabbing Zohra Bi repeatedly. At that stage, his daughter Gulzar intervened and asked the appellant as to why he was stabbing Zohra Bi. Maqbool stated that she was the root of all troubles so the appellant started stabbing Gulzar at her abdomen, neck and other parts of her body. After sometime when persons collected outside, the appellant ran away. Within minutes Johra Bi and Gulzar died at the spot. Police recorded the statement of P.W. 1 Gulam Mohammad as FIR. Appellant as well as his brother Maqbool were chargesheeted. Maqbool was convicted under Section 307 and 324 of the Indian Penal Code. He has not preferred any appeal against his conviction.

3. After considering the evidence of the prosecution witnesses particularly P.W. 1 Ghulam Mohammad, P.W. 2 Mehtab Bano and P.W. 4 Biliquees Akhtar who have unequivocally deposed that both the deceased persons were killed by the appellant by inflicting dagger blows, the High Court has rightly arrived at the conclusion that accused is guilty for the offence for which he is charged. Mr. P.K. Jain, learned senior counsel for the appellant, has not raised any contention with regard to the conviction of the appellant. In this view of the matter, it is not necessary to discuss the evidence of the witnesses in detail. However, learned senior counsel Mr. Jain submitted that the appellant ought not to have been convicted under Section 302 IPC but at the

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1999 Supreme(SC) 438

Cases Referred (3)

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