SULTAN ALIAS KALLU MOHD Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 31.05.1997 passed by the learned Additional Sessions Judge, Delhi in Sessions Case No. 33/1996 arising out of FIR 22/1992 under Section 302 IPC registered at Police Station Bara Hindu Rao. By virtue of the impugned judgment, the appellant has been found guilty and has been convicted for the offence punishable under Section 302 IPC for having caused the death of Yasin. The order on the point of sentence, which is also impugned in this appeal, was passed by the learned Additional Sessions Judge on 04.06.1997, whereby the appellant Mohd. Sultan @ Kallu was sentenced to undergo imprisonment for life and to pay a fine of 500/- for the offence punishable under Section 302 IPC and in default of the fine, he was to further undergo rigorous imprisonment for two months. The appellant was granted the benefit of provisions of Section 428 of the Code of Criminal Procedure, 1973.

(2.) THE case of the prosecution was that Mohd. Farukh and his brothers Yasin and Yamin were engaged in the work of electroplating (nickel polish) at house No. 6353, Gali Ishwari Prasad, Bara Hindu Rao, Delhi. Mumtaz, their cousin (maternal uncle's son) was also working with them. It is also the case of the prosecution that the appellant's brother Taslim was also engaged in the same type of work of electroplating in the same neighbourhood. It is alleged that on the night intervening 17/ 18th, September, 1992, some steel plates were stolen from the factory of the complainant Mohd. Farukh. THE said Mohd. Farukh and his brothers doubted the involvement of the appellant Mohd. Sultan @ Kallu. THEy also had conversations with regard to their suspicion with others in the mohalla. On the night of 18.09.1992 at about 8-9:15 pm, the said Mohd. Farukh and his brothers Yasin and Yamin as also their cousin Mumtaz were discussing amongst themselves about the theft which had taken place in their factory the previous night. It is alleged that at that time, the appellant Mohd. Sultan @ Kallu came to the factory and immediately started abusing the complainant Mohd. Farukh and questioned him as to why his (Mohd. Sultan's) name was being mentioned with regard to the theft of the steel plates which had taken place in the complainant's factory.

(3.) THE learned counsel appearing on behalf of the appellant submitted that although there are three purported eye witnesses, namely, PW8 Mohd. Farukh, PW9 Yasin and PW10 Mumtaz, but they are all closely related to the deceased Yamin. As pointed out earlier, PW8 Mohd. Farukh and PW9 Yasin are brothers of the deceased Yamim and PW10 Mumtaz is a cousin. It was also contended by the learned counsel for the appellant that there are serious discrepancies in the testimonies of the said three eye witnesses and, therefore, their accounts cannot be taken to be credible. Apart from this, the learned counsel for the appellant also submitted that the alleged recovery of the knife Exhibit P-1 and the blood stained shirt and baniyan (vest) was also not free from doubt. He submitted that it was improbable that the appellant Mohd. Sultan @ Kallu would be wearing the same blood stained clothes in the morning after the incident and would also be carrying the murder weapon on his person. Finally, it was contended by the learned counsel for the appellant that in the alternative this was a case of culpable homicide not amounting to murder inasmuch as the incident, even if it is assumed that the appellant was involved, was one which fell within Exception 4 to Section 300 and was culpable homicide not amounting to murder and, therefore, punishment for the same ought to be under Section 304, Part-II.