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Judgment
[Dictated by Hon. Pramod Kumar Srivastava, J.]
Heard Sri Rishad Murtaza assisted by Sri Arnav Tikku and Ms. Aishwarya Mishra, learned counsel for the appellants and Sri Shiv Nath Tilhari, learned Additional Government Advocate for the State.
The present Criminal Appeal under Section 374(2) fo the Code of Cr.P.C. has been preferred against the judgment and order dated 16.10.1999 passed in Sessions Trial No. 16 of 1994 by learned IXth Additional Sessions Judge, Faizabad, convicting the appellants no. 1 and 2 under Sections 323/34 of IPC for a period of one year rigorous imprisonment and appellants no. 3 and 4 under Section 302/34 of the IPC for life imprisonment with a fine of Rs. 5000/- each and in default of payment of fine additional one year rigorous imprisonment.
Since appellant no. 1 Ajmatulnisha has died and the instant criminal appeal has already been dismissed as abated against her, therefore, it survives only for appellants no. 2 Kismatulnisha, appellant no. 3 Niyaj and appellant no. 4 Riyaj.
The instant criminal appeal is Factual matrix of the case is that on 30.09.1993 at about 06:30 A.M., informant's father Mohammad Sharif was brushing his teeth at the tap installed by Jal Nigam. Accused-appellants, namely, Ajmatulnisha and Kismatulnisha were hurling abuses because some child had defecated in the drain in front of their house. When Mohammad Sharif objected to they hurling abuses, they got angry and grappled Sharif's testicles and knocked him down. In the meantime, the accused-appellant Niyaz, who was having a spade handle and accused-appellant Riyaz having lathi in his hands, started to inflict blows with intention to kill the deceased-Mohammad Sharif. On this, informant-Raees, his sister Alimunnisha and villagers Mohammad Sharif S/o Mohammad Ghareeb, Mohammad Kaleem and Jameel rushed to rescue Mohammad Sharif. Then accused persons fled away leaving Mohammad Sharif in injured condition. Thereafter, when the informant was carrying his injured father to the hospital, on the way, the injured Mohammad Sharif passed away.
Upon written tehreer dated 30.09.1993 given by the informant Mohammad Raees, the First Information Report (hereinafter referred in short as “FIR”) had been lodged on the same day i.e. on 30.09.1993 at about 08:30 A.M. against the accused persons, namely, Ajmtulnisha, Kismatulnisha, Niyaj and Riyaj under Section 302/34 of the IPC.
After lodging of the FIR, the inquest of the dead body of the deceased was prepared and the same was sent for autopsy. During the course of investigation, Investigating Officer visited the place of occurrence and prepared site plan, recorded the statements of the witnesses and after concluding the investigation filed the chargesheet against the accused persons, namely, Ajmtulnisha, Kismatulnisha, Niyaj and Riyaj under Section 302 of the IPC.
Upon compliance of the mandatory provision of 207 of the Cr.P.C., the learned Chief Judicial Magistrate, Faizabad finding the case exclusively triable by the court of Sessions, committed the same to the court of Sessions vide order dated 05.01.1994 from where it is made over to court of Additional Sessions Judge, Faizabad for disposal according to law.
The learned trial court i.e. Additional Sessions Judge, Faizabad framed the charges on 09.09.1996 against the accused persons under Section 302 IPC read with Section 34 of the IPC and read over and explained to them for which they denied and claimed to be tried.
In order to prove its case the prosecution examined Mohd. Raees (PW-1), Mohd. Sharif (PW-2), Alimunnisha (PW-3), Dr. R.V. Singh (PW-4), Head Constable Chotan Yadav (PW-5), Sub Inspector Chandrawati Rai (PW-6).
[STATEMENTS OF PROSECUTION WITNESSES]
Mohd. Raees (PW-1) deposed that on 30.09.1993 at 6:30 A.M., his father Md. Shareef was brushing his teeth near a public hand pump in front of their house. Accused Ajmtulnisha and Kismatulnisha were abusing his family over a child defecating in a nearby drain. When his father objected, both women grabbed his father's testicles and knocked him down. Hearing his cries, PW-1 rushed out and saw accused Niyaj strike his father on the head with the handle of a spade (phawda) and accused Riyaz hit him with a lathi. While taking his father to Sadar Hospital Faizabad on a handcart, his father died on the way after which he wrote the report (Ex. Ka-1) and submitted it at Cantt Police Station.
On his Cross-Examination, he admitted that he did not explicitly mention in his written report or initial statement to the police that Niyaj specifically hit his father on the head with a spade handle. He stated that he saw no injuries on accused women Ajmtulnisha and Kismatulnisha. He denied that his father attacked the women or got injured by bricks or that he had a private hand pump at his home and was hiding that. He also stated that there was no enmity with the accused persons prior to the said incident.
Mohd. Sharif @ Babban (PW-2) in his statement deposed that he was at home at 6:30 A.M. on 30.09.1993 when he heard Ajmtulnisha and Kismatulnisha abusing the neighborhood over drain defecation. When Md. Sharif objected, Ajmtulnisha grabbed Sharif's testicles and Kismatulnisha grabbed his waist, causing his lungi to loose, then Niyaj hit Sharif on the head with a spade handle, causing him to fall, after which Riyaj struck him with a lathi. On hearing the commotion Kaleem and Jameel arrived at that place and Raees took the deceased on a wheel cart and was accompanied by his mother. Raees had asked him to bring paper from the market to write the police report.
On his Cross-Examination, he stated that Mohd. Sharif died on his way to the hospital but exactly at which place he died, he does not know. He further stated that he took the pages from the shop at Tikawganj market and denied the allegation that no shop in the market opens before 10 A.M. He further stated that he took the paper to the police station and stayed there for about 2 hours and then left before Anees. He also stated that he did not make any statement to the Investigating Officer regarding the accused women grabbing the testicles of the deceased. He stated that Niyaj first struck the deceased on his head with a spade handle when the deceased fell down, Riyaj struck only one lathi blow on his chest. The accused persons Ajmtulnisha and Kismatulnisha were not caused injury by any one.
PW-3, Alimunnisha, daughter of deceased, has deposed that she was present inside the house at 6:30 A.M. when she heard verbal abuse near the hand pump regarding child defecation, her father tried to object Ajmtulnisha and Kismatulnisha, then they grappled the testicles of her father. Niyaj hit her father's head with a spade handle and Riyaj hit him with a lathi, her father fell down, he got injured and there was bleeding from injury and thereafter he became unconscious and scummed. She further stated that there was no child at her home at that time. She further denied to the suggestion that she is hiding her nephew’s age who was present in the house at that time. She reiterated that Niyaj struck her father's head with a spade. She also stated the hand pump is outside at the accused's door.
PW-4 Dr. R.V. Singh deposed that he had conducted the post-mortem of dead body of deceased Mohd. Sharif on 01.10.1993 he and found the following injuries:
Anti-mortem injuries:
1.A lacerated wound measuring 9 cm x 2 cm bone deep on the left side of the scalp above the eyebrow.
2.Abrasion marks (7 cm x 1 cm) on the right forearm.
Internal Examination:-
1.Large blood clot present beneath Injury No. 1. The frontal bone and parietal bone under Injury No. 1 were fractured. Brain membranes were congested and torn. Left frontal lobe of the brain was lacerated.
2.The entire left side of the brain was covered with blood clots. Brain on both sides was congested.
3.Lungs on both sides were congested. Heart was empty, weighing 180 grams. Teeth present: 16/16. Stomach was empty. Small intestine contained gases. Large intestine contained fecal matter and gases. Liver was congested. Gallbladder was full. Spleen congested, weight 60 grams. Both kidneys congested, weight 160 grams.
Cause of death:-
Due to coma resulting from head injuries. The injuries were about one day old. The death of the deceased occurred due to Injury No. 1.
He further stated in his Cross-Examination that Injury No. 1 is not possible by falling on stony ground or bricks during a scuffle. The margins of a lacerated wound during assault are irregular. He stated that he had not written in post-mortem report that the margins of the lacerated wound were irregular. Injury No. 1 was 7 cm x 2 cm bone deep. At the time of the post-mortem report, no injury on the testicle was found. Only 2 injuries on the deceased's body during the autopsy were found. He also stated that time of death could vary by 2 to 3 hours on either side. During autopsy, no foreign material in the teeth indicating datuan (used for brushing teeth) was found.
PW-5 Head Constable Chhotan Yadav deposed on the basis of written Taharir given by the complainant, he had lodged Chik FIR, Ex. Ka-3 on 30.09.1993 at 8:30 A.M and also entered it into GD Ex. Ka-4. He denied to the suggestion that the FIR was anti-timed.
PW-6 Sub Inspector Chandravati Rai, the Investigating Officer deposed that he inspected the crime scene on 30.09.1993, prepared site map (Ex. Ka-5), collected blood-stained and plain soil (Ex. Ka-6), recorded witness’s statements and after concluding investigation, submitted the charge sheet (Ex. Ka-7). He further stated that SI Ganga Prasad had prepared the inquest report (Panchayatnama, Ex. Ka-8).
On his Cross-Examination he stated that no datuan twig was found at the place of occurrence. He further stated that PW-1-Raees had stated during investigation that both women grabbed Sharif's private part and knocked him to the ground.
Statements of the accused persons were recorded under Section 313 Cr.P.C., wherein they denied the allegations, alleging false implication due to enmity. It was stated by Ajmtulnisha and Kismatulnisha that an altercation had taken place among them with regard to defecation of a child in the drain near their house, while the deceased began hurling abuses and hitting them with lathi and in their defence they hit him with brick because of which he got injured.
One defence witnesses Dr. S.S. Tiwari DW-1 has been examined on behalf of accused persons, who deposed that on 02.10.1993, he was posted as Medical Officer at District Hospital Faizabad and examined the injuries of Smt. Kismatulnisha, aged about 35 years. The following injuries were found on her body:
1.Lacerated wound 2.5 cm x 0.15 cm scalp deep, present on the left side of the head, 11 cm above the left ear, with clotted blood.
2.Complaint of pain on the left elbow; no visible injury.
Doctor had advised for X-ray of injury No. 1. The injury was caused by a blunt weapon (kundalay) and was approx. two days old.
On the same day, at 10:45 A.M., he also examined the injuries of Ajmatulnisha, aged about 40 years. The following injuries were found on her body:
1.Blue mark (contusion) 8 cm x 3 cm, 13 cm below the right knee; color blue.
2.Blue mark (contusion) 5 cm x 1.5 cm on the left leg, 10 cm below the knee; color blue.
He further stated that all injuries were simple in nature, caused by a blunt weapon (kundalay), and were approximately two days old. These injuries could have occurred on 30.09.1993 at 06:30 A.M. The injuries on both injured persons could have been caused by lathis. These injuries were within 2 days, i.e., 48 hours. He further stated that these injuries are of a superficial nature, but can extend deep inside.
After having heard learned counsel for the parties and perusal of material available on record, the learned trial court passed the impugned judgment and order observing that prosecution has become successful in proving its case against the accused-appellants, Ajmtulnisha and Kismatulnisha for the offence under Section 323/34 of the IPC, while against Niyaj and Riyaj for the offence under Section 302/34 of the IPC and on that ground they were convicted and awarded the sentence as aforesaid.
Being aggrieved and dissatisfied from the impugned judgment and order, this criminal appeal has been filed.
SUBMISSIONS OF LEARNED COUNSEL FOR THE APPELLANTS:
Learned counsel for the appellants submits that there is material contradictions in the testimony of the prosecution witnesses and their evidence do not inspire confidence. Despite that, the learned trial court relied upon them and passed the impugned judgment and order, which is against the law. He further submits that prosecution story is not correct and true version has been prevented by the prosecution. He further submits that initially incident had been started when deceased inflicted blows on Ajmtulnisha and Kismatulnisha and consequently, they suffered injuries, which were corroborated by the defence witnesses S.S. Tiwari (DW-1) but the prosecution has not explained the injuries sustained by the accused-appellants Ajmtulnisha and Kismatulnisha. He further submits that since the prosecution has failed to explain the injuries sustained by Ajmtulnisha and Kismatulnisha, then it is apparent that true genesis of the occurrence has been suppressed by the prosecution. He further submits that while the deceased caused injuries to Ajmtulnisha and Kismatulnisha, then on using of their right of private defence, they pelted stones and pieces of bricks over the deceased. He also submitted that the alleged incident occurred suddenly in the passion of heat which was without any prior consultation. He next submitted that prosecution has failed to prove its case for intentionally causing death of the deceased by the accused persons. He also submitted that to take the recourse of the right of private defence, it is not required to be pleaded by the accused persons by way of producing any defence witness and if from the facts and circumstances it emerges, then it casts a duty upon the court to consider the same and thereafter any conclusion could be drawn, but the learned trial court did not consider this aspect in correct perspective and erroneously declined the right of private defence which had accrued to accused persons at the time of alleged incident. On the above grounds, learned counsel for the appellants submitted that the impugned judgment and order passed by the learned trial court is erroneous and perverse, which is liable to be set aside and the present appeal is liable to be allowed.
Learned counsel for the appellants has further submitted that self preservation is the prime instinct of every human being. The right of private defence is a recognized right in the criminal law, therefore, Section 96 of the Indian Penal Code, 1860 provides that nothing is an offence which is done in the exercise of the right of private defence.
To fortify his submissions, learned counsel for the appellants has relied on the judgment of Hon’ble Apex Court rendered in the case of James Martin Vs. State of Kerla reported in [AIROnline 2003 SC 829], wherein it has been held as under:
“1.Self-preservation is the prime instinct of every human being. The right of private defence is a recognized right in the criminal law. Therefore, Section 96 of Indian Penal Code, 1860 (in short ’the IPC’) provides that nothing is an offence which is done in the exercise of the right of private defence. The question is, as happens in many cases, where exercise of such rights is claimed, whether the "Lakshman Rekha", applicable to its exercise has been exceeded. Section 99 IPC delineates the extent to which the right may be exercised.”
Learned counsel for the appellants has further relied upon Paras 22 and 40 of the judgment of Hon’ble Apex Court rendered in the case of Suresh Singhal Vs. State (delhi Administration) reported in [AIROnline 2017 SC 532], which on reproduction read as under:
22.The right of private defence is contemplated by Section 97 of IPC which reads as follows:-
“Section 97. Right of private defence of the body and of property.— Every person has a right, subject to the restrictions contained in section 99, to defend—First — His own body, and the body of any other person, against any offence affecting the human body; Secondly —The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.”
In Darshan Singh vs. State of Punjab and Another, this court laid down the following principles which emerged upon the careful consideration and scrutiny of a number of judgments as follows:-
“58.The following principles emerge on scrutiny of the following judgments:
(i)Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits.
(ii)The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
(iii)A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv)The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.
(v)It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi)In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii)It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
(viii)The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix)The Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
(x)A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.
40.Hence, we allow this appeal partly and modify the impugned judgment and order passed by the High Court to the extent that the conviction of the appellant – Suresh Singhal under section 302 IPC for murder of Kishan Lal is set aside and his conviction under section 304 IPC is maintained. Since the appellant has already undergone a sentence of 13 ½ years as on date, we sentence him under section 304 IPC to the period already undergone. The appellant is in jail. He be released forthwith from the custody, if not required in any other case.”
Learned counsel for the appellants further submits that in a case under Section 302 of the IPC, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is very important but the prosecution has failed to explain the same.
In support of his submissions, learned counsel for the appellants has placed reliance on Para nos. 11, 16 and 17 of the judgment rendered in the case of Lakshmi Singh and Others etc. Vs. State of Bihar reported in [1976 CRI. L.J.1736], which are quoted as under:
"11.…………………..In State of Gujarat v. Bai Fatima (Criminal Appeal No. 67 of 1971 decided on March 19, 1975) (reported in AIR 1975 SC 1478) one of us (Untwalia, J.,) speaking for the Court, observed as follows:
"In a situation like this when the prosecution fails to explain the injuries on the person of an accused depending on the facts of each case, any of the three results may follow :
(1)That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2)It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3)It does not affect the prosecution case at all.
The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgement. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.
It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1)That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version.
(2)that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3)that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so asto throw doubt on the prosecution case.
16.Finally we might stress, even at the risk of repetition, that the genesis and the origin of the present occurrence appears to be shrouded in deep mystery. The dramatic manner in which the assault is said to have started and the appearance of the accused led by Jagdhari Singh without any rhyme or reason and their assault on persons against whom they had neither any concern or animus introduces an element of inherent improbability in the case. According to the prosecution the main cause of the assault was the refusal of the deceasedChulhai Singh to demolish the Marwa which was constructed on the occasion of the marriage of Jaiwanti a daughter of the son of Chulhai Singh. Thereis no evidence to show that there was bad blood between Ramsagar Singh and Dasrath Singh on the one hand and their cousins Chulhai Singh and Ram Asrey on the other. On the other hand the evidence shows that even after the partition both the groups of the family were living in different portions of the same house, the courtyard being common. PW-6 Dasain Singh clearly admits that at the time of fixing the Marwa he had no quarrel with Dasrath Singh or Ramsagar Singh, i.e. about 3 days before the occurrence. If the relations between the parties were so cordial only 3 days before the occurrence, we fail to see how Dasrath Singh and Ramsagar Singh made a complete somersault and picked up a quarrel over the demolishing of a Marwa when they knew full well, as PW-1 would have us believe, that it was customary that the Marwa remained in its original position until a period of 11/2months had elapsed. After all Dasrath Singh and Ramsagar Singh also belonged to the same family and were bound to respect the family custom. It is difficult to believe that even if Dasrath Singh andRamsagar Singh would raise any objection, they would do so on the day on which Chaudhari ceremony of the marriage of Jaiwanti was held. It also sur-passes our comprehension that even if a petty objection was raised, it would culminate in the murder of two close relations by the accused Dasrath Singh and Ramsagar Singh with the aid of the other appellants. So far as the five appellants, namely, Jagdahri Singh, Jagdish Singh, Lakshmi Singh, Ramprasad Sah and Chhathu Singh are concerned, they had neitherany animus against the prosecution party nor any friendship with the accused Dasrath Singhand Ramsagar Singh and it is impossible to believe that these five persons would join hands with Dasrath Singh and Ramsagar Singh in the nefarious plan to kill two persons without any provocation, without any earthly reason and without any pertinent occasion. On the other hand the preponderance of probabilities seemsto indicate that theses five appellants had been falsely implicated by P.Ws 1 to 4 who were their sworn enemies and who must have made it a condition precedent for supporting the evidence ofP.W.6, if the five appellants are also brought in. In this view of the matter, the prosecution case itself becomes wholly improbable. Furthermore, if P.Ws. 1 to 4 and 6 could go to the extent of falsely implicating the five appellants headed by Jagdhari Singh without theirhaving participated in the occurrence, then the entire fabric of the prosecution case would collapse, and the fundamental part of the prosecution case would have to be disbelieved. It was, however, contended by the State that there was no reason to disbelieve the evidence with respect to Dasrath Singh and Ramsagar Singh, even if the other five appellants be acquitted. Where all the witnesses enter into a conspiracy to implicate five innocent persons in a murder case, then the backbone of the prosecution is broken, and it would be difficult for the Court to rely on such evidence to convict a single accused, particularly when the prosecution does not give and explanation for the grievous and other serious injuries on the person of Dasrath Singh. This is a case where it is not possible to disengage the truth firm falsehood, to sift the grain firm the chaff. The truth and falsehood are so inextricably mixed together that it is difficultto separate them. Indeed if one tries to do so, it will amount to reconstructing a new case for the prosecution which cannot be done in a criminal case.
17.Thus in view of the inherent improbabilities, the serious omissions and infirmities, the interested or inimical nature of the evidence and other circumstances pointed out by us, we are clearly of the opinion that the prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt. Normally this Court does not interfere in an appeal by special leave with concurrent finding of fact, but this is one of these cases where the judgement of the High Court is manifestly perverse and where the High Court has not considered important circumstances which completely demolishthe prosecution case. In fact the High Court has hardly made any real attempt to analyse or discuss the evidence and has merely affirmed the finding of the Sessions Judge by narrating the evidence relied upon by it. We have already pointed out that on one of the most important points arising in a criminal trail, namely, the non-explanation of the injuries on the person of the accused by the prosecution, the High Court has not only committed an error of fact but an error of law by showing a lack of proper appreciation of the principles decided by this Court. For these reasons, therefore, we think there are special circumstances in the present case which have compelled us to interfere in this appeal by special leave.”
Learned counsel for the appellants has further cited the judgment of Hon’ble Apex Court in the case of Ram Lal Vs. Delhi Administration reported in [1973 CRI. L.J. 17] and he relied on para nos. 5 and 8 of the judgment which are reproduced as under:
“5.The whole case seems to have proceeded on the assumption that only one blow was given on the head and that was given by appellant Ram Lal. The Additional Sessions Judge while framing the additional charge against the appellant for the substantive offence under S. 302-IPC mentioned that the evidence as recorded before the Committing Court disclosed that the appellant had given a fatal lathi stick blow on the head of Har Lal. The charge against him also as framed by him stated that the appellant had intentionally caused the death "by causing lathi blow" on the head of the deceased. The High Court also assumed that only one lathi blow was given on the head of the deceased and that blow proved fatal. Now all these assumptions are obviously not correct.
8.No attempt was made to identify the internal injury with either or both the external injuries found on the head. It is quite possible on that evidence to infer that only one of these two injuries may have been responsible for death or both. The difficulty then arises which was the injury caused by the appellant. The finding of the High Court was that the appellant Ram Lal had given only one blow with the stick on the head and not more than one. In that case it will be very difficult to say whether the blow given by him was the one which ultimately proved to be fatal. Mr. Khanna, appearing on behalf of the Delhi Administration, contended that since the High Court came to the definite conclusion that the other assailants had not given any blow on the head of the deceased it must be assumed that both these blows had been given by Ram Lal, appellant. But that would be contrary to the finding of the High Court which has specifically come to the conclusion that only one blow with the stick had been given by the appellant on the head of the deceased. It was essential in this case, in order to bring home the offence of murder to the appellant, that the lathi blow given by him on the head had proved fatal. Since the evidence clearly discloses that two lathi blows had been given on the head and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have given the blow which did not prove fatal. In these circumstance, the appellant's conviction under S. 302-IPC was plainly incorrect. He and his companions had the common intention to cause grievous hurt and hence he can be convicted only under Section 325 r/w Section 34. Since in pursuance of the common intention he had given a blow with a lathi on the head which is a vital part of the body he is not entitled to the same consideration as the others in the matter of sentence because the others had given blows on non-vital parts. Therefore, we set aside the conviction under S. 302-IPC and convict the appellant under S. 325 r/w 34 and sentence him to 5 years rigorous imprisonment in respect of the offence committed with regard to deceased Har Lal. We do not interfere with the rest of order passed against him by the High Court.”
SUBMISSIONS OF LEARNED AGA FOR THE STATE
Per contra, learned AGA for the State has submitted that before the learned trial court, the prosecution has adduced sufficient evidence to prove its’ case beyond reasonable doubt. Learned trial court after considering the entire facts, evidences and circumstances in its entirety, rightly observed that the prosecution has been successful in proving the charge levelled against the accused persons. He next submits that right of private defence can only accrue when there is apprehension of causing grievous hurt or death to life and property arises. But in the present case, when the deceased was knocked down by Ajmtulnisha and Kismatulnisha, then there was no occasion for accruing the right of private defence. He further submits that accused persons were the aggressors who had assaulted the deceased and at that time, the accused persons Niyaj and Riyaj were having deadly weapons from which they inflicted blows upon the deceased.
Learned AGA further submits that accused persons Niyaj and Riyaj had inflicted blows on the vital part of the body of deceased and the weapons used were handle of spade and Lathi and they were having intention to kill the deceased. Therefore, the learned trial court has correctly convicted them for the charge levelled against them and there is no illegality or perversity in the impugned judgment and order passed by the trial court and, as such, the present criminal appeal is devoid of merits and is liable to be dismissed.
To substantiate his contentions, learned AGA has relied upon the following cases:
State of Madhya Pradesh V/s Ramesh [2004LawSuit(SC)1364]
Gopal & Anr V/s State of Rajasthan [2013LawSuit(SC)38]
Vishvas Aba Kurane V/s State of Maharashtra [1978LawSuit(SC)18]
Gunnana Pentayya @ Pentadu V/s State of Andhra Pradesh [2008LawSuit(SC)1296]
Anil Kumar V/s State of Uttar Pradesh [2004LawSuit(SC)1045]
Raj Kumar Singh @ Raju @ Batya V/s State of Rajasthan [2013LawSuit(SC)408]
We have heard learned counsel for the parties and perused the material available on record.
For determination of appeal, the following point is formulated:
“Whether findings and observations given by the learned trial court are erroneous and perverse and, consequently, the conviction and sentence is likely to be set aside ?”
To arrive the right conclusion of the case, firstly we have to consider the manner of assault.
Dr. R.V. Singh (PW-4), who had conducted the autopsy of the dead body of the deceased, deposed that he found lacerated wound in the shape of 9 cmx 2 cm x bone deep longitudinally placed left side scalp 7 cm above eyebrow in part partial area and another injury of linear abrasion 7 cm x 1 cm on left arm was found and cause of death was opined due to head injury. As per statement of Raees (PW-1) Mohammad Sharif @ Babban (PW-2) and Alimunnisha (PW-3), the accused-appellant Niyaj inflicted blows with the handle of a spade, while accused-appellant Riyaj inflicted blows with lathi upon the deceased.
Accused persons did not deny the injuries sustained by the deceased. They only disputed that the injuries sustained by the deceased were not caused by appellants convicts Niyaj and Riyaj through handle of a spade and lathi. In this regard, appellants-convicts Ajmtulnisha and Kismatulnisha had given statements under section 313 Cr.P.C. that they were pelting stones in their right of private defence, which caused injuries to Mohd. Sharif. However, appellants Riyaj and Niyaj did not utter a single word that how the deceased suffered injuries. They only stated that being son of Ajmtulnisha and Kismatulnisha, they have falsely been implicated.
Thus, from the evidence adduced by the prosecution and the statements given by the accused persons and from the cross-examination of the prosecution witnesses, it has been established that death of the deceased Mohammad Sharif was homicidal.
Now the question arises that whether right of private defence had accrued to the appellants in the given circumstances.
In this regard, Hon’ble Apex Court in the case of Madhya Pradesh Vs. Ramesh reported in [2004 Law Suit (SC)1364] held that:
“Section 96 of the Indian Penal Code and Section 105 of the Indian Evidence Act, 1872 do not define the expression right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea Section 105 of the Indian Evidence Act, 1872, the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution.
Taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea - A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a change to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death- Sections 102 and 105, IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, or commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues, In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private-defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived.
Dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, to adopt tests by detached objectivity which would be so natural in a Court room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a The right of private man in ordinary times or under normal circumstances defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right or defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.
The right of private defence does not include a right to launch an offensive, particularly when the need to defend no longer survived. However, there are some minor or superficial injuries suffered by the accused that shall not affect a credible and cogent prosecution version even if the prosecution has not explained the injuries.
In view of the principle laid down by Hon’ble Apex Court as aforesaid and perusal of material available on record, it reveals that the incident began when the deceased was brushing his teeth at a tap of Jal Nigam. The convicts Ajmtulnisha and Kismatulnisha were hurling abuses since some child had defecated in the drain in front of their house. When the deceased objected to they hurling abuses then they knocked down the deceased grappling his testicles. From the statement of Raees (PW-1), it emerged that the deceased was not having any weapon in his hands at that time. On his cross-examination, no such fact has emerged that deceased started to beat the appellants Ajmtulnisha and Kismatulnisha. In this regard, cross-examination of Raees (PW-1) is relevant, wherein he deposed that on the point of defecation, no altercation had taken place earlier. No prior enmity existed among them. He also stated that prior to the said incident, deceased was brushing his teeth with neem ki daatun and, on the suggestion given by the defence side, he has stated that on the issue of defecation altercation had not taken place among his sister and accused persons. He also denied the suggestion that his deceased father started to beat Ajmtulnisha and Kismatulnisha and in defence they were pelting stones, as a result of which the deceased suffered injuries.
Another witness Mohammad Sharif @ Babban Riyaj (PW-2) has also stated that Ajmtulnisha and Kismatulnisha knocked down the deceased Mohd. Sharif by grappling his testicles due to which deceased’s lungi had opened and then deceased sat down. In his cross-examination, he has denied the suggestion that the accused appellants Ajmtulnisha and Kismatulnisha were beaten by the deceased.
Ajmtulnisha (PW-3), who was the injured witness, had stated that on the point of defecation in the drain in front of house of accused, Ajmtulnisha and Kismatulnisha were hurling abuses and when the deceased objected, then they after grappling the deceased, knocked him down. On being cross-examined, no such material fact emerged out which may reveal that the deceased was having any object or weapon in his hands at the time of alleged incident or he used any weapon.
Thus, from the evidence of above witnesses, it is established that at the time of alleged incident, deceased was brushing his teeth and he was having no weapon in his hands.
Now the next question arises that when deceased was not armed with any weapon or object of assault then how apprehension of death or grievous hurt arises?
On perusal of material available on record, it is evident that in the statement under Section 313 of the Cr.P.C., the appellants Ajmtulnisha and Kismatulnisha had stated that in self defence they pelted brick stones. It is true that to invoke the right of private defence, it is not necessary to disclose the specific averment by the accused persons in their statements or adducing the defence in this regard.
Learning counsel for appellants emphasized on the point that at the time of the alleged incident, Ajmtulnisha and Kismatulnisha had suffered injuries and no explanation has been offered from the side of the prosecution. Thus, injuries found on the person of the appellants, which shows that they were initially assaulted, then on their defence, they had pelted brick stones. To substantiate, his contention, learned counsel submits that the accused persons had adduced the defence witness, namely, Dr. S.S. Tiwari (DW-1) who had deposed that on 02.10.1993, he was posted as medical officer in the District Hospital, Faizabad and on that day he had medically examined Kismatulnisha at 10:30 A.M. and found the following injuries:
(i)Lacerated wound 2.5 cm x 0.15 cm x scalp deep of the head and above the 11 c.m. from the left ear hematoma was present.
(ii)Complaint of pain on the left elbow, no visible injuries, no visible injury was found.
Doctor has opined that above injuries were caused by hard and blunt object and duration was two days old and for injury no. 1, X-ray was advised.
On the same day at about 10:45 A.M., appellant- Ajmtulnisha was medically examined, wherein following injuries were found on her body.
(i)Contusion 8 cm x 3 cm and 13 cm below in the right knee.
(ii)Contusion 5 cm x 1.5 below the below 10 cm of the left knee.
Both the injuries were simple which were caused by hard and blunt object. On his cross examination, doctor has admitted that all these injuries were superficial in nature.
On the basis of these injuries, learned counsel for the appellants tried to establish that when Ajmtulnisha and Kismatulnisha had sustained injuries then they exercised their right of defence.
In the case of James Martin verses state of Kerala (Supra) Hon’ble Apex Court held as under:-
“17.In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Similar view was expressed by this Court in Biran Singh v. State of Bihar (AIR 1975 SC 87). (See: Wassan Singh v. State of Punjab (1996) 1 SCC 458, Sekar alias Raja Sekharan v. State represented by Inspector of Police, T.N. (2002 (8) SCC 354).
18.As noted in Butta Singh v. The State of Punjab (AIR 1991 SC 1316), a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private-defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.
19.The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. (See Vidhya Singh v. State of M.P., AIR 1971 Supreme Court 1857 ). Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which could be so natural in a Court room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances.”
In the case of State of Gujarat Vs. Bai Fatima reported in AIR1975 SC 1478 in which Hon’ble Apex Court discussed the law laid down as under:
“…………….(1)That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2)It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3)It does not affect the prosecution case at all.
………….(1)That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version.
(2)That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3)That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.”
In view of the above and on perusal of the record, as discussed earlier that the deceased was not having any weapon in his hands at the time of the alleged incident and he was brushing his teeth at a tap of Jal Nigam when accused appellants Ajmtulnisha and Kismatulnisha, after grappling his private part, knocked him down and thereby his lungi opened and he sat down, then the question arises as to how it can be accepted that there was any apprehension of grievous hurt or death to the appellants. On applying all the principles and guidelines given by Hon’ble the Apex court, this stand taken by the accused persons did not squarely fit in the facts and circumstances of the present case. Although it is true that the appellants-convicts Ajmtulnisha and Kismatulnisha also suffered injuries but they were not grievous in nature, as doctor opined that those injuries are superficial in nature and as per the law laid down in the case of Ramesh (supra), where injuries are superficial in nature, these shall not affect a credible and cogent prosecution version.
The next point to be discussed is as to whether the testimony of the prosecution witnesses of the facts are cogent and credible which inspire confidence?
It has been discussed earlier that prosecution witness Alimunnisha (PW-3), an eye witness of the incident, whose evidence has already been analyzed, in the cross examination of the said witness, nothing adverse has emerged out which may help the accused persons. Her presence is also not controverted and her testimony would be at a higher pedestal than other witnesses.
Raees (PW-1), who is the son of the deceased, has narrated the whole incident in his cross-examination. On being cross-examined by the defence, he corroborated his earlier version as he has stated that, upon hearing the noise, when he reached on the spot, he saw that accused Niyaj having handle of spade and accused Riyaz through Latthi were inflicting blows to the deceased, although, he did not disclose the part of the body which was affected by beating.
Apart from this, another witness Mohammad Sharif (PW-2), who is the neighbour of the deceased, has also corroborated the prosecution case, stating that Ajmtulnisha and Kismatulnisha were hurling abuses and when the deceased objected, then they grappled his testicles and knocked him down and thereafter accused Niyaz inflicted blows with handle of spade and Riyaj with lathi.
Here it is also pertinent to mention that those witnesses of the facts are not residing far away from the place of occurrence, as two of them PW-1 and PW-3 were kith and kin of the deceased, while PW-2 was residing 50 meters away from the residence of deceased. Thus, their presence on the spot cannot be doubted and there are no material discrepancies which arose in their testimony. Thus, their testimony inspires confidence.
Learned counsel for appellants has vehemently argued that the accused persons had no common intention to kill the deceased and the incident had taken place at the spur of moment in the passion of heat. It is not a case of the prosecution that after altercation, accused persons went to their home and came with deadly weapons and then assaulted the deceased. He also argued that the alleged offence is squarely covered in the exception of Section 300 of IPC which comes in the category of culpable homicide not amounting to murder. As is evident from the record that one blow of handle of spade was infected on the head of the deceased and one injury of lacerated wound was found as anti-mortem injury and another injury which was in the shape of linear abrasion was found on the left arm of the deceased, which was caused by lathi and death of the deceased was on account of head injury.
Before entering into the question of modifying the conviction from Section 302 IPC to Section 304 IPC and thereby reducing the sentence, it is expedient to refer to the settled legal principles laid down by the Hon'ble Supreme Court.
The Hon’ble Supreme Court in the case of Harendra Nath Mandal vs. State of Bihar; (1993) 2 SCC 435 has held that Section 304 does not create an offence but provides the punishment for culpable homicide not amounting to murder. In view of Section 299 of the Penal Code, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely, by such act, to cause death, commits the offence of culpable homicide. In view of Section 300 of the Penal Code, except in cases covered by the five exceptions mentioned therein, culpable homicide is murder. It is well known that if a death is caused and the case is covered by any one of the five exceptions of Section 300 then such culpable homicide shall not amount to murder. Section 304 provides punishment for culpable homicide not amounting to murder and draws a distinction in the penalty to be inflicted in cases covered by one of the five exceptions, where an intention to kill is present and where there is only knowledge that death will be a likely result, but intention to cause death or such bodily injury which is likely to cause death is absent. To put it otherwise if the act of the accused falls within any of the clauses (1), (2) and (3) of Section 300 but is covered by any of the five exceptions it will be punishable under the first part of Section 304. If, however, the act comes under clause (4) of Section 300 i.e. the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death but without any intention to cause death and is covered by any of the exceptions, it will be punishable under the second part. The first part of Section 304 applies where there is guilty intention whereas the second part applies where there is guilty knowledge. But before an accused is held guilty and punished under first part or second part of Section 304, the death must have been caused by him under any of the circumstances mentioned in the five exceptions to Section 300, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. So far the present case is concerned, when death itself had not been caused, there was no occasion for convicting the appellant under Section 304 of the Penal Code.
At this juncture, it would be apposite to refer to a decision of Hon’ble Supreme Court in Kunwar Pal v. State of Uttarakhand, (2014) 12 SCC 434 : (2014) 6 SCC (Cri) 778, wherein the Hon’ble Apex Court in a similar situation observed as under: (SCC p. 438, paras 12 & 14).
“12.In these circumstances, we find that the intention of the appellant to kill the deceased, if any, has not been proved beyond a reasonable doubt and in any case the appellant is entitled to the benefit of doubt which is prominent in this case. It is not possible therefore to sustain the sentence under Section 304 Part I IPC, which requires that the act by which death is caused, must be done with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death. Though it is not possible to attribute intention it is equally not possible to hold that the act was done without the knowledge that it is likely to cause death. Everybody, who carries a gun with live cartridges and even others know that firing a gun and that too in the presence of several people is an act, is likely to cause death, as indeed it did. Guns must be carried with a sense of responsibility and caution and are not meant to be used in such places like marriage ceremonies. ***
14.In the present case, we are of the view that the appellant is guilty of committing the act which caused the death of the deceased since the act was done with the knowledge that is it likely to cause death within the meaning of Section 304 Part II IPC. In the circumstances, the appeal is allowed in part, however, we reduce the sentence imposed upon the appellant to a period of 7 (seven) years without making any alteration in the fine amount imposed by the trial court and confirmed by the High Court [Kunwar Pal v. State of Uttaranchal, 2012 SCC OnLine Utt 2972] .”
The aforesaid view in Kunwar Pal (supra) was reiterated by the Hon’ble Apex Court in Bhagwan Singh v. State of Uttarakhand, (2020) 14 SCC 184, observing as follows:
“15.The facts and circumstances of the instant case, however, do not permit to draw such a conclusion. We have already rejected the prosecution version to the extent that the appellant aimed at Smt Anita and then fired the shot(s). The evidence on record contrarily shows that the appellant aimed the gun towards the roof and then fired. It was an unfortunate case of misfiring. The appellant of course cannot absolve himself of the conclusion that he carried a loaded gun at a crowded place where his own guests had gathered to attend the marriage ceremony. He did not take any reasonable safety measure, like to fire the shot in the air or towards the sky, rather he invited full risk and aimed the gun towards the roof and fired the shot. He was expected to know that pellets could cause multiple gunshot injuries to the nearby persons even if a single shot was fired. The appellant is, thus, guilty of an act, the likely consequences of which including causing fatal injuries to the persons being in a close circuit, are attributable to him. The offence committed by the appellant, thus, would amount to “culpable homicide” within the meaning of Section 299, though punishable under Section 304 Part II IPC.”
Similarly, in Jaswant Singh vs. State of Uttarakhand, (2020) 14 SCC 184, the Hon'ble Apex Court reiterated the principles governing the distinction between murder and culpable homicide not amounting to murder based on sudden provocation, lack of premeditation, and absence of intention to cause death.
In the present case as it is apparent that prior to beginning of the marpit, altercation took place where Ajmatulnisha and Kismatulnisha were hurling abuses due to defecation by a child in front of the drain near her house and on objection made by the deceased, the incident took place. It is also evident from the record that injured persons were present on the spot. It is not a case of prosecution that after altercation they went to their home for taking the weapons or they returned from home having deadly weapons in their hands. Thus, we do not find any glaring illegality or perversity in the basic factual findings arrived at by the trial court. However, we note that the appellants and deceased were neighbours and relatives. On the issue of defecation of a child in front of Jal Nigam Tap, a sudden altercation took place and on incitement the appellants caused injury to deceased with a lathi and wooden handle which are not the deadly weapons.
It is noticeable that the incident occurred all of a sudden, as earlier we have discussed that they did not return from the home having any arms or deadly weapon but it demonstrates that the incident took place all of a sudden in heat of passion, without any pre-planning or pre-meditation and without any established prior enmity between the appellant and deceased. From perusal of the record, it also established that there were no repeated blows thus, if the intention of the accused persons was to kill the deceased then they would definitely have inflicted the blows upon the deceased, but the blow was inflicted on the vital part of the head of the deceased and frontal and parental bone was fractured. Thus, it is established beyond reasonable doubt that the appellants Riyaz and Niyaz caused the death of the deceased fully knowing that such bodily injury caused by them is likely to be cause death, but without intention to cause death. Therefore, we are inclined to convert the conviction of the appellants Riyaz and Niyaz from section 302 of the IPC to Part II of Section 304 of the IPC.
Accordingly, the conviction and sentence of the appellants Riyaj and Niyaj under section 302/34 of the IPC is set aside and same is altered/modified to Part II of Section 304 of the IPC under which they stand convicted.
Having convicted the appellants Riyaj and Niyaj under Part II of Section 304 of the IPC, the next consideration is as to quantum of punishment which is to be imposed under Part II of the Section 304 of IPC. Section 304 provides that whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
Considering the facts and mitigating circumstances of the present case, as the incident having taken place way back 33 years ago and the appellants Riyaj and Niyaj are now advanced in age and after the said incident, no criminal antecedents have been reported against the convicts-appellants, we are of the view that the ends of justice will be served if the appellants Riyaj and Niyaj are sentenced for a period of ten years rigorous imprisonment and also fine of Rupees 5000/- each, which shall be paid to the legal heirs of the deceased-Mohammad Sharif within a period of 30 days from the date of judgment and in default of such payment, they shall undergo additional simple imprisonment for 3 months. The period already undergone by the appellants Riyaj and Niyaj in the present case shall be set off under Section 428 of the Cr.P.C./528 of the BNSS, 2023.
The other conviction and sentence under Section 323/34 of IPC, passed against the appellants Ajmatulnisha and Kismatulnisha is, however, upheld.
The appellant no. 1-Ajmatulnisha has passed away during pendency of this criminal appeal and appeal has already been been dismissed as abated against appellant no. 1-Ajmatulnisha.
The appellants-convicts Kismatulnisha, Niyaj and Riyaj are on the bail. Their bail bonds and personal bonds stand cancelled and sureties stand discharged. They are directed to surrender before the trial court forthwith and the learned trial court shall send them to jail for serving the sentence. If they do not surrender before the court, then the learned trial court will take coercive steps to procure their presence.
The record of trial court be sent back for necessary compliance.
Accordingly, the instant criminal appeal is partly allowed and the conviction and sentence of the appellants, Niyaj and Riyaj is modified as above.