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PETITIONER: SIKANDER @ MOHD. SAFIQ

       Vs.

RESPONDENT: THE STATE (DELHI ADMN.)

DATE OF JUDGMENT:       06/04/1999

BENCH: G.B.Pallanaik, M.B.Shah

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  subject   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.   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 transferring  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  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

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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.    After  considering  the   evidence   of   the prosecution  witnesses  particularly P.W.1  Gulam  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.   R.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 most he could be convicted under Part I  of Section  304  IPC.  It is submitted that admittedly this  is not  a  premeditated murder and the offence is committed  on the  spur  of  the  moment   because  of  grave  and  sudden provocation.   He  submitted that there was no intention  on the  part  of the appellant to use even dagger  but  because Maqbool  brought  it  out  from the room  and  when  he  was inflicting  some  blows to his father, he snatched away  the same  and  because of serious altercation between  him,  his father   and  deceased  mother   and  sister,  the  incident occurred.   It is also submitted that at present, he is  the sole  earning member of the family;  P.W.1 has also filed an affidavit  to  the effect that he is staying with his  first wife  Firdaus and children including that of deceased  wife; he  is a victim of paralysis of neck and mostly confined  to bed  and  appellant is the sole bread- earner of the  entire family  and looks after him as well as his large family.  It is  the  contention  of  the  learned  senior  counsel  that considering the fact that incident took place because of the sudden  fight  and in a heat of passion without there  being any  premeditation, the case would fall only under Exception 4  of Section 300 IPC.  He submitted that number of injuries received  by  the  victim is not the relevant factor  to  be taken  into  consideration for deciding whether the  offence would  be covered by Exception 4 of Section 300 IPC and  the relevant  consideration  is  the sudden  and  unpremeditated fight.   In  support of his contention, he relied  upon  the decision  of  this  Court  in   Surinder  Kumar  vs.   Union Territory,  Chandigarh,  1989(2)  SCC 217 at  220.   In  the aforesaid  case after analysing the ingredients of Exception 4  of  Section  300  IPC,   the  Court  observed  as  under: "Exception  4 to Section 300 reads as under :  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 offender having taken undue advantage or acted in a cruel or unusual manner.

     Explanation.-  It  is immaterial in such  cases  which party offers the provocation or commits the first assault.

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     To  invoke  this exception four requirements  must  be satisfied,  namely,  (i) it was a sudden fight;  (ii)  there was  no premeditation;  (iii) the act was done in a heat  of passion;   and  (iv) the assailant had not taken  any  undue advantage  or  acted  in a cruel manner.  The cause  of  the quarrel  is not relevant nor is it relevant who offered  the provocation  or  started the assault.  The number of  wounds caused  during  the occurrence is not a decisive factor  but what  is  important  is that the occurrence must  have  been sudden  and unpremeditated and the offender must have  acted in  a  fit of anger.  Of course, the offender must not  have taken any undue advantage or acted in a cruel manner."

     In  the  said case after considering the proved  facts that  all  of a sudden quarrel took place when the  deceased and the witness entered the room occupied by the accused and his family members and had demanded vacant possession of the kitchen,  witness  uttered filthy abuses in presence of  the sister  of  accused  which finally led to  heated  arguments between  the  deceased and the witness on one side  and  the accused on the other.  At that stage, witness took out a pen knife  from his pocket, the accused went in the kitchen  and returned  with a knife and in the ensued fight between  them few  injuries  were caused to the deceased out of which  one proved  to be fatal.  In such circumstances, the Court  held that  the act would be covered by Exception 4 of Section 300 IPC  and  offence would be punishable only under Part  I  of Section  304  IPC.   As against that, in the  present  case, facts  are  totally different, firstly, there was no  sudden fight  between  the  accused and the deceased  Zohra  Bi  or daughter Gulzar.  Intervention of Zohra Bi at the stage when the  accused Maqbool was inflicting injuries on her  husband and  protesting by saying as to why a handicapped father was being  beaten would not amount that there was fight  between the  appellant and the deceased.  Similarly, intervening and entreating  the  accused not to inflict blows on her  mother Zohra  Bi  by  deceased  Gulzar also  cannot  be  termed  as "fight".   As  such there was no "fight" between  P.W.1  and accused  Maqbool  or  the appellant, it was  only  a  verbal quarrel.   "Fight"  postulates  a bilateral  transaction  in which  blows are exchanged between the parties (Re:  Bhagwan Munjaji  Pawade  vs.  State of Maharashtra, 1978(3) SCC  330 and   Narayanan  Nair  Raghwan  Nair   vs.   The  State   of Travancore-Cochin,  AIR  1956  SC 99).   Further,  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 sixteen  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 dagger 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

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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.  In the result,  the appeal fails and is dismissed accordingly.  Bail bond stands cancelled.   Appellant must surrender forthwith to serve the sentence.