Murder and robbery convictions based on circumstantial evidence were upheld. The court held the chain of circumstances complete and rejected the claim that the homicide fell within Exception 4 to Section 300 IPC. Both appeals were dismissed, and the convictions and sentences sustained.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Judgment reserved on: 09.07.2018 % Judgment delivered on: 24.09.2018
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MR. JUSTICE I.S. MEHTA
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J U D G M E N T
VIPIN SANGHI, J.
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17.07.2012, Mohd. Iqhlak, accused no.2 has been identically punished for the aforesaid offences and he has similarly been treated insofar as benefit of Section 428 Cr PC is concerned. The aforesaid two appellants have preferred the present appeals.
“ One DD No.15B was recorded on 22.03.2010 at about 11:00AM about the dead body lying at C & D Block, near Railway Line, Haider Pur and Pipe Line in front of CNG Flats, Shalimar Bagh. This DD entry was handed over to SI Baljeet Singh, who left the spot with Ct. Sandeep and later on, he got registered the case under Section 302 IPC, on the same DD.
During investigation, copy of DD entry was collected. Photographs of the dead body were taken. Dead body was sent to mortuary of BJRM Hospital for postmortem. One shirt belonging to deceased Satish, from the place of occurrence, where the dead body was lying, was taken into possession. Call details were collected. Documents of one Anwar regarding his mobile phone were also collected on 28.03.2010.
Accused Mohd. Alam, Mohd. Iqhlak, Mohd. Saddam were arrested by preparing memos. Their personal searches were prepared. Accused persons pointed out the place of occurrence and also made the disclosure statements. One mobile phone belonging to the deceased was recovered from accused Mohd. Alam, which was sealed and seized in this case. One wrist watch belonging to the deceased was recovered from the accused Mohd. Saddam. One pant belonging to the deceased was recovered from Mohd. Iqhlak, which was sealed and seized, in this case. Accused Mohd. Iqhlak also got recovered a plastic pipe allegedly with which the deceased was
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beaten to commit the robbery and was sealed and seized, in this case.
I.O. also got conducted the TIP of the case property on 28.04.2010, wherein witness Deepak identified the trouser, mobile phone and wrist watch.
On completion of investigation, charge sheet was filed under Section 392/302/411/34 of IPC against the accused persons, which was committed to the Court of Session on 08.07.2010 and was received on 13.07.2010 ”.
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which points towards false implication. Ld. counsel further submits that the accused persons were only arrested after a gap of 8 days, thus, giving the prosecution ample time to plant evidence against them.
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night of 20.03.2010. The deceased– Satish was found dead near the railway line. The place where the dead body was found fell on the way from the house of Satish at Jahangir Puri to the shop/ godown of PW3 via Bypass. This is evident from the statement of PW3 wherein he stated that he while he was coming back to his shop on 22.03.2010, he saw a crowd near the railway line. He reached there and saw one naked dead body facing towards the ground which seemed to be of Satish from its appearance and built.
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was lying in naked position in a small pit with its face towards the ground. The crime team was called. There was no apparent injury mark on the body of the deceased. The same was sent to mortuary, where the autopsy surgeon orally told about the injuries on the testicles and private parts. The postmortem was done only at about 3:15 p.m. vide Ex. PW-13/A. On the basis of the opinion given by the doctor, on the copy of DD No.15B, SI Baljeet Singh made a ruqqa and sent constable Sandeep Singh to the PS for the registration of the case. After the registration of the case, the investigation was handed over to PW23. Thus, when the body of the deceased was discovered, it was not known as to whose body it was and whether the death was homicidal, or not. In these circumstances, in our view, the registration of the FIR cannot be said to be belated, and the registration of the FIR after the conduct of the postmortem appears to be in order in the factual context.
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for the appellants that, on the face of it, the body of the deceased showed that the death was homicidal.
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PW15/B from which he came to know that the last call- which was one SMS from the mobile phone of the deceased, was made at 8:22 p.m. on 20.03.2010 and after that his mobile phone had been switched off. Ex. PW 15/ B shows the IMEI of the mobile phone instrument of Satish as 354183030886300.
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was also residing nearby his shop. On 31.01.2010, Umesh Kumar had come to his shop. He, inter- alia, asked for a sim connection of Vodafone and handed over his identity proof i.e. copy of voter ID card and one photo on the application form and stated that he would collect the sim card later. Thereafter, he did not come back. He used the sim card issued in the name of Umesh Kumar for 2-3 days in his mobile phone. He stated that on 23.01.2010, Mohd. Alam accused – correctly identified in Court, came to his shop and asked for a sim card. He produced one mobile phone Nokia 1650 make and also got changed body of the same. He also handed over a copy of the voter ID card and photo. He also gave his contact number. PW-12 stated that he had handed over the activated sim card of PW9- Umesh Kumar to Mohd. Alam. He stated that he did not deposit the documents given by the accused Mohd. Alam to him. He stated that on 21.04.2010 or 22.04.2010, the police came to his shop and took into possession documents delivered to him by the accused Mohd. Alam. He identified the application form of Umesh along with his photograph and copy of voter ID card as Ex. PW-9/B, which bears his signatures and also the stamp of his shop Mittal Communication. He exhibited the documents submitted by Mohd. Alam as Ex. PW-12/A and the voter ID card of the accused Mohd. Alam as Ex. PW12/B. He admitted as correct that the mobile phone number of the sim card issued in the name of PW9- Umesh Kumar was 9953654659. He delivered the active sim card of mobile number 9953654659 to Mohd. Alam against Rs.80/-.
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issued in the name of Umesh Kumar. On 25.03.2010, PW-23 obtained the CDR Ex.PW 14/D and after going through the same, he found two calls were received on the mobile phone instrument of the deceased (IEMI No. 354183030886309) from another mobile number 9953905326 and in the evening two outgoing calls were made on the same Vodafone number.
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he did not remember whether the mobile number 9953654659 was of the accused Mohd. Alam at that time, as whenever he used to call him only his name used to appear on the screen of his mobile phone.
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correctly identified Mohd. Alam in Court. PW 16 further stated that when he was working with accused Mohd. Alam, Mohd. Alam was not having any mobile phone with him. However, Mohd. Alam had noted his (PW 16) mobile phone number in his diary. He, however, denied having received any call from Mohd. Alam. This denial is, however, contradicted by the CDR referred to above, and to that extent the statement of Mantoo Sahni- PW16 cannot be accepted. However, what is pertinent is that he admits to have known the accused- Mohd. Alam and that Mohd. Alam had taken down the mobile number of PW16 in his diary. This statement of PW16, coupled with the CDR of the mobile no. 9953654659 used by the accused Mohd. Alam corroborates the testimony of PW12 that he gave the said sim card issued in the name of Umesh Kumar PW9 to the accused Mohd. Alam.
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identified the black striped pant of his brother, seized vide Ex. PW 18/L. In his cross- examination, PW1 stated that he is able to recognize the black striped pant because he had himself given the said pant to his brother Satishdeceased. Even the I.O- PW22 correctly identified the said pant seized vide seizure memo Ex PW18/L in Court. Nothing came out from the crossexamination of these prosecution witnesses to disbelieve their testimony. Moreover, in his statement recorded under section 313 Cr.P.C, Mohd. Iqhlak did not give any explanation about the possession of the pant of the deceased, nor did he state that he was not wearing those pants at the time of his arrest. A2 Mohd. Iqhlak does not say that he removed the said pants from the dead body of the deceased which he found lying on the railway track.
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their testimonies before the Court, both the I.O. – PW22 and the doctor who conducted the Post- Mortem of the deceased- PW13 correctly identified the PVC pipe. Moreover, as per the seizure memo of the pipe Ex. PW 18/P, the PVC pipe was recovered from the bushes near railway line. The pipe was not recovered from an open barren land, such that it would be visible to any person who may visit the place. The pipe was recovered from the bushes near the railway line indicating that the same was lying hidden and as such it was only known to the A2, as to where the PVC pipe was kept. Thus, in view of the subsequent opinion of PW13 and the nature of injuries sustained by deceased- Satish, the only possible inference which can be drawn is that the accused persons had used the said PVC pipe to cause the injuries to the deceased. The recovery of the said PVC pipe at the instance of A2 Mohd. Iqhlak establishes his knowledge that the pipe was lying in the bushes, and his knowledge that it was used at the time of commission of the crime. Its use is corroborated by the Post Mortem report and the doctor‟s opinion. A2 has not explained the source of his said knowledge, which clearly points to his involvement in the homicide of the deceased.
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prosecution has successfully established the chain of circumstances in the present case. There is sufficient evidence on record which points to the guilt of the accused. The call detail records of accused- Mohd. Alam; the recovery of the mobile phone instrument of the deceased from the accusedMohd. Alam; the medical evidence available on record; the recovery of the pant and the PVC pipe from and at the instance of A2; and; the consistent testimonies of the prosecution witnesses point to the guilt of the two accused.
“8. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
9. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not
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otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A “sudden fight” implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact
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and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage.”
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(VIPIN SANGHI) JUDGE
(I.S. MEHTA) JUDGE
SEPTEMBER 24, 2018
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2 issues framed by the court
Did the circumstantial evidence establish a complete chain proving the appellants' guilt for murder and robbery?
Was the homicide covered by Exception 4 to Section 300 IPC?
Colour shows how this judgement treated each authority
Prabhu v. State of UPDistinguished¶48
AIR 1963 SC 1113 · Who else cites this
Kallo Passi v. StateDistinguished¶48
(2009) 2 JCC 1206
Sandhya Jadhav v. StateApplied¶50
(2006) 4 SCC 653 · Who else cites this
3 provisions across 2 enactments
MOHD. ALAM
MOHD. IQHLAK
STATE
VIPIN SANGHI
I.S. MEHTA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
