SIKANDER ALIAS MOHAMMAD SHAFIQ Vs. STATE DELHI ADMN

JUDGEMENT

(1.) The appellant Sikander alias 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.

(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 along with 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 Sikandar (appellant), Maqbool and Shamim. His second wife Zohra Bi Noor Zahan (deceased) had been residing with him along with 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 along with 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 along with 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 Sections 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, 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 v. Union Territory, Chandigarh, (1989) 2 SCC 217 at 220 : (AIR 1989 SC 1094 at p. 1096).