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SUPREME COURT OF INDIA
THE HONOURABLE MR. JUSTICE S.B. SINHA & THE HONOURABLE MR. JUSTICE ASOK KUMAR GANGULY
Mohd. Asif - Appellant
Versus
State of Uttaranchal - Respondent
CRIMINAL APPEAL NO.78 OF 2007
Decided on : 06-03-2009
(2006) 13 SCC 130; (2007) 10 SCC 168; (2007) 12 SCC 754 – Relied upon
(b) Indian Penal Code, 1860 – Section 299 – Culpable homicide – Deceased stabbed by appellant – Had to be operated upon – Despite the operation he could not be saved – But for the injury he would not have died – Act of appellant constitutes culpable homicide. (Para 10)
(c) Indian Penal Code, 1860 – Section 300 and 302 – Assault on deceased – No sudden provocation – Left lung of deceased infract and collapsed – Wound was so deep it ruptured kidney – Profuse bleeding – Appellant must have known that his act may cause death of deceased – Intervening ailment was not wholly unconnected with the injury – This case does not fall within purview of Section 304 Part II or Section 326 – Section 300 and 302 fully apply. (Para 12, 14)
AIR 1958 SC 465; 2008 (6) SCALE 433 – Relied upon
(2004) 13 SCC 231; (2004) 7 SCC 408 – Distinguished
Facts of the case:
The deceased was assaulted by Iqbal and the appellant in a cinema campus. While Iqbal held the deceased, appellant stabbed him with knife.
On hearing hue and cry people as also two constables came to the spot and the appellant was caught with the knife. Deceased died four days later in hospital.
Appellant was found guilty of commission of an offence punishable under Section 302/34 of the IPC and was sentenced to undergo R.I. for life.
An appeal was preferred there against, which has been dismissed by the High Court.
Finding of the Court:
Appellant has rightly been convicted u/s 302.
Result:
Appeal dismissed.
JUDGMENT :-
S.B. Sinha, J.
1. Khatima is a small town in the State of Uttaranchal. In a cinema theatre known as ‘Sharda a movie ‘Akhri Insaf was being exhibited at the relevant time. On or about 15.2.1981, Mohd. Saeed, the deceased, and his friend Shakeel Ahmad (PW 3) were watching the night show of the said movie in the said theatre. At about 10.30 p.m. Iqbal Ahmad (Iqbal), an associate of the appellant went inside the cinema hall and asked the deceased to come out therefrom. Meanwhile, the appellant waited outside. The deceased followed Iqbal and came out of the cinema hall. Iqbal and appellant started quarreling with the deceased. There was some heated exchange of words. Both the accused took out knives which they were carrying. Iqbal caught hold the deceased and appellant struck a blow with the knife on the back of the deceased. PW 1 - Kanhaiya Lal, a betel shopkeeper in the said theatre, PW-2 Hem Raj, gate-keeper of the cinema hall and PW-3 Shakeel Ahmad witnessed the said occurrence. Hearing the shouts and cries for help, PW-4 Constable Bachche Singh with another constable Bhishma Singh also reached the spot. Appellant was apprehended at the spot whereas Iqbal succeeded in running away. The knife used by the appellant was also recovered from him. The deceased was taken to a nearby hospital. He was referred to a hospital at Pilibhit. He died four days after the incident, i.e., on 20.2.1981.
2. A First Information Report (FIR) under Section 307 of the Indian Penal Code (IPC) was lodged on or about 16.2.1981. The case was subsequently converted to one under Section 302 of the IPC.
3. A dying declaration of the deceased was recorded by one Javed Usmani, Sub-Divisional Magistrate, Khatima on or about 15.2.1981, which reads as under:
"About 1 - 1-1/2 hours before, I was watching night show of movie at Sharda Cinema, then Iqbal s/o unknown Asif s/o unknown asked me to come out of the cinema hall. Iqbal had come to asked me to come out. I came outside. Iqbal started getting angry upon me, I said do not get angry upon me. There was hand-scuffle between me and Iqbal, and Iqbal drew out the knife. Asif was also scuffling with me and I was trying to keep myself away from them. Asif also drew out the knife and then Asif struck the knife blow at my back. Iqbal ran away from the spot after the knife blow was struck. Asif was apprehended by Shakeel s/o Farooq. Shakeel had come along with me to watch the movie. Beside Shakeel, there were two-three more persons who apprehended Asif, whom I do not know. There was no past enmity between me and Iqbal and Asif. Asif used to live at Mohalla Gotia near the Chakki in front of the house of Farooq Master. Iqbal used to live at Potters locality.
I had no past enmity with Asif but 3 -4 days before there was some altercation between Asif and me at Gotia Mohalla. It may be possible that because of this, todays incident took place."
4. Appellant was put to trial. He wasfound guilty of commission of an offence punishable under Section 302/34 of the IPC and was sentenced to undergo R.I. for life. An appeal was preferred there against, which has been dismissed by reason of the impugned judgment. However, as during the pendency of the said appeal Iqbal expired, the appeal filed by him stood abated.
5. Mr. K.V. Viswanathan, learned counsel appearing on behalf of the appellant would contend that the deceased having been given only a single blow and that too on a non vital part of the body, no offence can be said to have been committed by him under Section 302 of the Code. Drawing our attention to the post-mortem report, the learned counsel would urge that the deceased having died of pulmonary embolism and furthermore having regard to the fact that before the purported attack a scuffle had taken place and thus there being a sudden provocation, the High Court committed a serious error in holding that the appellant had the intention to cause murder of the deceased. In a case of this nature, Mr. Viswanathan would
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