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Judgment
In this appeal filed by the appellants under Section 374 (2)
Cr.P.C ., the judgment dated 09th July, 2013 passed by learned
Addl. Sessions Judge, Churu (Trial Court) in Session Case
No.23/2010 (9/2010) is under challenge, whereby the learned
trial court convicted the appellant for the offences u/s 302,
302/149, 460, 148 and 323/149 of IPC and passed following
sentence, which reads as under:
Accused- Rafique:
302 of IPC :-Life Imprisonment & fine of Rs.5000/-. In default of payment of fine, to further undergo six months'' simple imprisonment.
460 of IPC :- 7 Years'' R.I. and fine of Rs.1000/- each. In default of payment of fine, to further undergo 3 month''s S.I.
148 of IPC :- 6 Months'' Simple Imprisonment.
323/149 of IPC :- 3 Months'' Simple Imprisonment.
Other appellants:
[Azam Khan, Mohammed Ayub Khan, Khushi Mohammed, Ramzan Khan, and Bashir Khan]
302/149 of IPC :- Life Imprisonment & fine of Rs.5000/-. In default of payment of fine, to further undergo six months'' simple imprisonment.
460 of IPC :-7 Years'' R.I. and fine of Rs.1000/- each. In default of payment of fine, to further undergo 3 month''s S.I.
148 of IPC :- 6 Months'' Simple Imprisonment.
323/149 of IPC :-3 Months'' Simple Imprisonment.
Briefly stated, the facts of the case are that complainant,
Habib Khan S/o Asraf Khan (PW.2) submitted a written complaint
(Ex.P/1) at Police Station Dudhwakhara, District Churu, in which it
was averred that Zahira Bano, daughter of Azam Khan, got
married to his cousin nephew Mohd. Hussain S/o Najir Khan. After
marriage dispute arose between Mohd. Hussain and Zahira Bano,
therefore, their relations were was not cordial. On 10.12.2009 at
about 12.15 AM, Azam Khan, Major Khan, Nizam Khan, Mamu
Khan sons of Evaz Khan, Rafique Khan S/o Azam Khan, Shaukat
Khan, Habib Khan S/o Madari Khan, Ayub Khan s/o Asgar Khan,
all resident of Village Shahjusar and 3-4 other persons came to
the in-laws'' house of Zahira Bano on the vehicle bearing
registration number RJ-10-UA-1158. Other accused persons,
namely, Jazir Khan S/o Munir Khan came there on another vehicle
at the house of Mohd. Husain and all the persons started abusing
the family of the complainant and in-laws of Zahira Bano. It is
further alleged that Abbas Khans/o Mohideen Khan and some
more persons standing near the house of Mohd. Hussain, asked
them not to abuse the family members but accused Azam Khan
gave slap to Abbas and all accused persons caught Abbas
(deceased) and either accused Rafique Khan or Ayub Khan
inflicted injury on the testicles of Abbas Khan, due to said injury
Abbas Khan fell down at the place of occurrence, became
unconscious. The complainant, Habib Khan and Ayub Khan
immediately took injured Abbas to the Govt. Hospital, Churu,
where the doctors of Govt. Hospital, Churu declared him dead.
Upon the aforesaid written complaint (Ex.P/1), the S.H.O.,
Police Station- Dudhwakhara, registered an F.I.R. No.116/2009
(Ex.P/6) on 10.12.2009 against nine named accused persons and
commenced investigation. After completion of investigation a
charge sheet was filed only against six accused persons in the
court of learned Civil Judge (Jr. Division)-cum-Judicial Magistrate,
Churu, for the offences u/s 147, 148, 149, 460 & 302 of IPC .
The learned Magistrate committed the case for trial to the
court of learned Sessions Judge, Churu, but later on transferred to
the court of learned Addl. Sessions Judge, Churu, for trial.
The learned trial court after providing opportunity of hearing
framed charge against the all the accused appellants for the
offences under Sections 302, 302 / 149, 323 / 149 and 460 of IPC
but they denied the charges framed against them and prayed for
trial.
In the trial, to prove the prosecution case, 14 prosecution
witnesses were produced before the trial court in support of
prosecution case and thereafter the statements of all the accused
appellants were recorded under Section 313 of Cr.P.C., in which 5
accused appellants denied the allegations levelled by the
prosecution witnesses against them and said that they are
innocent and falsely implicated by the complainant party in the
case, they never went to the in-laws'' house of Zahira Bano.
However, accused appellant, Azam Khan, father of Zahira Bano,
gave following explanation with respect to incident in his
statement recorded under Section 313 of Cr.P.C., which reads as
under: -
"VERNACULAR MATTER OMITTED"
In defence, statements of three witnesses viz. DW.1
Mukarab Khan, DW.2 Zahira Bano (daughter of accused Azam
Khan) and DW. 3 Dr. Meghraj Saini, were recorded.
The learned trial court after recording evidence of both the
sides finally heard argument of both the parties and held the
accused appellants guilty for committing offence of murder and
punished them vide judgment dated 09.07.2013 in Session Case
No.23/2010 (9/2010), whereby the accused appellant, Rafique
was convicted for the offences u/s 302, 460,148 and 323/149 of
IPC and other five appellants were convicted for the offence u/s
302/149, 460,148 and 323/149 of IPC and passed sentence
aforesaid. Being aggrieved and dissatisfied with the judgment
impugned, the instant appeal has been filed by the accused
appellants on various grounds.
Mr. M.K. Garg, learned counsel for the appellants without
disputing the incident on the date of occurrence submitted that it
is case of false implication of the appellants, which is apparent
from the fact that FIR was filed against nine persons, but after
investigation police filed charge sheet only against six persons, in
which the main allegation was levelled against accused appellant,
Rafique S/o Azam Khan for inflicting injury by knife on the person
of deceased Abbas Khan, but prosecution has miserably failed to
lead any evidence of actual motive of the incident, so also, failed
to prove its case beyond reasonable doubt against the accused
appellants because, entire case is based upon concocted story
framed by the complainant party so as to implicate whole of the
family of Azam Khan in the alleged offence of murder.
While inviting our attention towards the postmortem report
and statements of the complainant and eyewitnesses PW.8, it is
argued that there are major contradictions with regard to place of
injury, alleged to be caused by accused appellant, Rafique to the
deceased. In the written complaint (Ex.P/1), it is specifically
alleged that injury was caused either by accused Rafique or Ayub
Khan upon the testicles of deceased Abbas Khan, whereas PW.8
(Manudeen Khan) who is said to be eyewitness, stated in his
statement that accused appellant, Azam Khan inflicted injury upon
his mouth, at that time accused appellant, Rafique, Ayub, Ramjan,
Khushi Mohd. Bashir Khan, Habib Khan, Shaukan Khan, Azam Ali
Khan, after surrounding deceased, Abbas and accused, Ayub
caught hold of Abbas and the accused, Rafique caused injury by
knife upon the chest of deceased Abbas Khan and after inflicting
injury by knife, they ran away from the place of occurrence.
Learned counsel for the appellants submitted that there are
major contradictions in the statements of eye witnesses and the
author of FIR, Habib Khan who was present at the time of
occurrence, therefore, it is obvious that truth has not been
brought on record by the prosecution, even if the entire
prosecution evidence is accepted, then also, it is obvious that only
one injury was inflicted by knife by accused Rafique to the
deceased. The said incident took place in a spur of moment
because as per evidence on record, Zahira Bano, the daughter of
accused appellant Azam Khan, married with Mohd. Hussain, and
there was a dispute between Zahira Bano and Mohd. Hussain,
which compelled her to left matrimonial home to live with her
parents from last nine years on account of cruelty being
committed qua her. It is also argued that Najir Khan (father-in-
law), Mohd. Hussain, Sale Mohd. Mumtaj Khan and other persons
of in-laws of Smt. Zahira came to house of appellants and
requested the accused Azam Khan, to send Zahira Bano with
them. Upon such request of complainant party, Smt. Zahira Bano
went with to her matrimonial home at Village Sahajusar but on
the very next day, the husband of Zahira Bano made quarrel with
Zahira Bano, therefore, it is informed by her Bano telephonically
about ill-treatment being meted out with her to her father i.e.
appellant Azam Khan and prayed for rescue. Admittedly, accused
appellant Azam Khan and his family members went to the in-laws''
house of Zahira Bano, where he was informed by his daughter
that the in-laws are torturing her, therefore, when Azam Khan and
his family members tried to take Smt. Zahira Bano with them
from the house of Mohd. Husain, the deceased Abbas Khan and
other family members of Mohd. Hussain intervened and gave
threatening, so also tried to stop them, therefore, all of sudden
incident took place.
According to explanation given by appellant, AzamKhan,
deceased Abbas Khan while showing knife gave threatening to
them and said that he would cut the ear and nose of Zahira Bano
if she will go back to the house her parent, and in the meanwhile,
Mohd. Hussain (husband Zahira Bano) forcibly snatched her son
and deceased Abbas made attack upon the accused appellant
Azam Khan in the dark, other persons inflicted injury to Abbas in
the said incident, due to said injury caused in quarrel, deceased
Abbas died. All these facts are not considered by the learned trial
court while holding appellants guilty. Learned counsel for the
appellant further argued that there is no allegation of the witness
for inflicting one injury except upon accused Rafique S/o Azam
Khan, in the postmortem report, only one injury was found upon
the chest caused by a sharp weapon. According to accused
appellants even if it is presumed that incident took place in the
house of Mohd. Hussain, (son-in-law of Azam Khan), then also it
cannot be said that there was no intention or motive to cause
death of Abbas Khan because all of sudden the incident took place
when accused appellant, Azam Khan, father of Zahira Bano, asked
Zahira Bano to come with him, and it was resisted by the family
members of Mohd Hussain as they were not agreeable to permit
Zahira Bano to left the house.
Learned counsel for the appellants vehemently argued that
as per facts of the case accused party went at the house of Zahira
Bano and Mohd. Hussain, for requesting in-laws not to torture
Zaihra Bano, but due to rude attitude and threats given by
deceased, Abbas Khan, for cutting ear and nose of Zahira Bano,
the incident took place in a spur of moment. Therefore, it is
obvious that except appellant, Rafique, there is no evidence to
connect the other five appellants with the alleged crime because
though they went to the house of Zahira Bano and Mohd. Hussain,
upon a telephone call being made by Zahira Bano, who was
harassed and tortured by her in-laws, and husband Mohd.
Hussain. It is further argued that in the FIR itself, it is specifically
accepted by the author of FIR, Habib Khan that quarrel took place
due to dispute in between Zahira Bano and Mohd. Hussain, but
the learned trial court has failed to consider the entire evidence in
right perspective, which is evident from the fact that all the
witnesses admitted in their statements that accused appellant,
Azam Khan along with allies went to the house of Mohd. Hussain
and when he tried to take his daughter, Zahira Bano with him
from her in-laws house, all the members of in-laws, including
husband, Mohd. Hussain refused to send Zahira Bano with them
and this was the reason or quarrel which took place all of sudden.
It is argued that PW.5, Najir Khan, father-in-law of Zahira
Bano stated in his statement that Zahira Bano left her house
before 25 months but after some time, he and his family members
went to the house of appellant, Azam Khan and made request to
send Zahira Bano back to his home and brought her back, but in
the night at about 10''O clock Mohd. Hussain and Zahira Bano
again made quarrel, therefore, Zahira Bano made a telephone call
to her father and reported the incident and asked to come soon. It
is admitted by the PW.5, Najir Khan, that family of Azam Khan is
reputed family and there are some more relations in both the
villages, there is no enmity between both the families. The
incident took place when they tried to stop Zahira Bano to go with
her father, therefore, it is obvious that occurrence took place all of
sudden, in which one stab injury was caused by accused
appellant, Rafique to Abbas, when he was surrounded by other
accused but this fact is not correct.
Learned counsel for the appellants invited our attention
towards the statements of DW.2, Zahira Bano, and submit that
she has categorically narrated the whole incident before the court
and said that occurrence took place in her presence due to quarrel
took place all of sudden, but the learned trial court disbelieved the
testimony of DW.2 Smt. Zahira Bano and committed a grave error
to convict the accused appellants for the offence of murder of
deceased Abbas Khan. There is no evidence to establish that
offence u/s 302/149 IPC is made out because as per prosecution
case, the accused party went to the house of Zahira Bano and
Mohd. Hussain, when accused appellant, Azam Khan was called by
his daughter, Zahira Bano, due to quarrel with her husband at her
in-laws'' house, therefore, prosecution has failed to prove the
allegations against Azam Khan, Mohammed Ayub Khan, Khushi
Mohammed, Ramzan Khan, and Bashir Khan because there is no
allegation against them for inflicting any injury to the deceased,
therefore, even if the entire prosecution evidence is accepted then
also it will revealed that accused appellant, Rafique (brother of
Zahira Bano) inflicted only injury by knife to the deceased in spur
of moment due to sudden provocation, as such, no offence under
Section 302 of IPC is made out against the accused Rafique,
because the offence cannot travel beyond offence u/s 304 Part I of
IPC as there is no evidence of motive or intention on record to
cause death of Abbas Khan.
Learned counsel for the appellants further argued that the
accused appellants Azam Khan, Mohammed Ayub Khan, Khushi
Mohammed, Rafique, Ramzan Khan, and Bashir Khan are entitled
to be acquitted from the charge levelled against them because
there is no evidence on record for causing any injury to the
deceased, and the conviction of accused appellant, Rafique, is
required to be altered from offence u/s 302 of IPC to offence
under Section 304 Part-I of IPC as the incident took place all of
sudden, that too, in spur of moment without any premeditation,
therefore, the appeal of Azam Khan, Mohd. Ayub Khan, Khshi
Mohd., Ramzan Khan and Bashir Khan, may kindly be accepted
and the impugned judgment dated 09.07.2013 may kindly be
quashed qua them, and the conviction of the appellant, Rafique
for the offences u/s 302 of IPC may kindly be altered to offence
u/s 304 Part-I of IPC .
In support of his arguments, learned counsel for the
appellants invited our attention towards following judgments:
Suresh Sitaram Surve Vs. State of Maharashtra reported in
2003(1) WLC (SC) Criminal, 280,
Kalegura Padma Raod & Anr. Vs. The State of A.P. reported
in 2007(1) WLC (SC) Criminal 555,
State of HP Vs. Ram Pal reported in (2006) 2 SCC (Cri.) 165,
Arjun Vs. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506
Judgment of Division Bench of this Court in the case of Shiv
Kumar @ Pappu Vs. The State of Rajasthan reported in
2010(2) CJ (Cr.) (Raj.) 796.
Arjun & Anr. Vs. State of Chhattisgarh, reported in AIR 2017
SC 1150
Per contra, learned Public Prosecutor and learned counsel for
the complainant vehemently opposed the submissions made by
the learned counsel for the appellants and argued that no error
has been committed by the learned trial court in passing the
judgment impugned for the offence of committing murder of
deceased, Abbas Khan. Admittedly, occurrence took place in the
house of Mohd. Hussain and Zahira Bano, daughter of appellant,
Azam Khan, in which due to injury caused by accused appellant,
Rafique, by knife, Abbas died. The accused appellants are not
disputing the incident, therefore, it cannot be said that evidence of
the prosecution witnesses is far from the truth admittedly upon
phone call by Zahira Bano, all the appellants along with other
persons came to house of Mohd. Hussain and Zahira Bano and
they forcibly tried to take Zahira Bano with them from her in-laws
house, at that time, an objection was raised by the in-laws of
Zahira Bano and a scuffle took place in which all the accused
appellants surrounded the deceased Abbas and accused appellant,
Rafique S/o Azam Khan, inflicted injury upon the chest by knife,
which is vital part of the body, Abbas died due to said injury,
therefore, obviously it is a case in which the trial court has
properly assessed the entire evidence so as to hold accused
appellants guilty for offence of murder.
The appellants are not disputing the incident, but some of
the accused appellants are disputing their presence at the place of
occurrence whereas the eye witnesses of the case specifically
made allegation in their statements that accused appellants were
present at the time of occurrence and participated in it, therefore,
there is no strength in the arguments of the appellants that the
prosecution has failed to prove its case beyond reasonable doubt.
More so, entire prosecution case is based upon reliable testimony
of eye witnesses, which is corroborated by the medical evidence
also.
Learned counsel for the complainant and learned Public
Prosecutor further argued that all the accused appellants came at
the place of incident and made quarrel for the dispute arose in
between Zahira Bano and Mohd. Hussain, son-in-law of accused
appellant, Azam Khan and in that quarrel, innocent person, Abbas
Khan who has nothing to do with the dispute, was murdered by
the accused appellants. Therefore, there is no question to
disbelieve the prosecution evidence because the appellants are not
disputing the incident, in which deceased, Abbas died as result of
stab injury caused by accused, Rafique. Thus, prayed to dismiss
the appeal.
After hearing the learned counsel for the parties, we have
minutely scanned the entire evidence of the prosecution as well as
defence. As per prosecution case, FIR was registered upon a
written complaint (Ex.P/1) filed by complainant, Habib Khan S/o
Ashraf Khan (PW.2) at Police Station-Dudhwakhara, District
Churu. In the written complaint (Ex/P1) following allegations were
levelled by the complainant, Habib Khan, against the accused
party, which reads as under: - "VERNACULAR MATTER OMITTED"
Upon perusal of the aforesaid complaint, we find that there
was some quarrel in between Mohd. Hussain (nephew of
complainant) with his wife, Zahira Bano (daughter of accused
appellant Azam Khan), on 10.12.2009 at about 12.15 AM, Azam
Khan, Major Khan, Nizam Khan, Mamu Khan sons of Evaz Khan,
Rafique Khan S/o Azam Khan, Shaukat Khan, Habib Khan S/o
Madari Khan, Ayub Khan s/o Asgar Khan, all resident of Village
Shahjusar and 3-4 other persons came at the house of PW.5 Najir
Khan, father-in-law of Zahira Bano, in the vehicle bearing
registration number RJ-10-UA-1158. Soon after reaching to the
house of Najir Khan, they used filthy words and abused the family
members, at that time, Abbhas Khan, complainant and one Ayub
KhanS/o Mangu Khan, Ayub Khan S/o Bhanwaroo Khan, Aarif
Khan S/o Azim Khan etc. came there and Abbas (deceased) asked
them not to use filthy words, but accused Azam Khan gave one
slap to the deceased, Abbhas and thereafter all the persons
caught deceased, Abbas, and out of all persons, either Rafique
Khan or Ayub Khan inflicted injury by knife upon the private part
of Abhhas, due to said injury he fell down and became
unconscious. Complainant, Habib Khan and Ayub Khan, father of
Abbas, immediately took Abbas to the Govt. Hospital, Churu,
where doctors declared him dead.
It emerges from the complaint that quarrel took place due to
strained relations between Mohd. Hussain S/o Najir Khan with his
wife, Zahira Bano, and for the said reason all the accused
appellants came to the house of Najir Khan, upon phone call made
by Zahira Bano, where the occurrence in question took place in
which deceased, Abbas, died.
After registration of FIR, during investigation, the
postmortem of the body of Abbas was conducted and in the
postmortem report of Abbas Khan, the Medical Board gave opinion
that the cause of death is shock due to stab wound into the heart.
It is nowhere stated in the postmortem report that any other
injury was found upon the private part of the deceased. It is also
relevant to observe that one more injury report (Ex.P/15) of
Mainudeen Khan is on record, in which one simple injury is
reported, therefore, it is obvious that complainant and Mainudeen
and other persons were present at the time occurrence. We have
perused the statement of injured eye-witness, namely, PW.1-
Mohideen Khan (father of deceased, Abbas Khan), the said
witness stated in her statements that before 13 months at about
10.30 PM when he was sleeping in his house, his son Abbas
awaken him and informed that a dispute has arisen between
Mohd. Hussain and Zahira Bano, therefore, for the purpose of
intervention and settlement of dispute, Maqsuood Bhaiji is calling
you at the house of Najir Khan. Upon saying so, he and his son,
Abbas, went to the house of Najir Khan, where Najir Khan, and his
wife and son informed that due to some dispute between his
Mohd. Hussain and his wife Zahira Bano, his daughter-in-law
called her parents and they are coming soon from their village
Shahjusar. After some time, all the accused persons came to the
house of Najir Khan on two vehicles at the house of Najir Khan
and straightway went to the room of Zahira Bano. It is further
stated that he and his son Abbas, also went in the room of Zahira
Bano where Azam Khan was asking to his daughter that if you are
my daughter then come with me, upon asking, Zahira Bano,
immediately got ready to go with her father. At that time, when
Abbas Khan tried to reason with them, and made request to them
not to take Zahira Bano and resolve the dispute, however, Azam
Khan got annoyed and he slapped Abbas Khan. It is further stated
that in the meanwhile neighbour, Aarif also came there and made
request to the accused appellant, Azam Khan not to act in this
manner.
According to witness PW.1, hot discussion took place in
between the parties and in the scuffle, his son, Abbas was caught
by Ayub Khan while stating that you are over smart and
interfering in the matter, at that time, all of sudden, Rafique Khan
inflicted injury by knife upon the chest of deceased and due to
said injury he fell down. In the meanwhile, Habib Khan, Mushtaq
Khan, Mainudeen Khan, Ayub S/o Bhanwaroo Khan, Master Ayub
Khan etc. came on the spot and took injured, Abbas to hospital at
Churu, where doctor declared him dead.
Identical and almost similar statements have been given by
PW.2 Habib Khan, PW.3 Ayub Khan, PW.4 Ayub S/o Mangu Khan,
PW.5 Najir Khan (father of Mohd. Hussain), PW.6 Aarif Khan and
PW.8 Mainudeen Khan. None of the witnesses made allegation for
inflicting any injury to Abbas by other persons and the police after
investigation filed charge sheet only against six persons out of
more than nine persons, who were tried in Session Case
No.23/2010 (9/2010).
We have also considered the argument of learned counsel for
the appellants that no offence under Section 302 IPC is not made
from the evidence of prosecution against accused Rafique,
because the incident took place all of sudden when Azam Khan
went to the house of his son-in-law, Mohd. Hussain upon a phone
call made by his daughter, Zahira Bano on account of dispute with
her husband, where the incident took place. It emerges from the
arguments of learned counsel for the appellants that the
appellants are not disputing the incident but submits that all of
sudden incident took place due to quarrel and hot discussion in
between the parties, upon resistance made by the complainant
party, as accused appellant, Azam Khan asked his daughter to
come with them, which was resisted by deceased Abbas Khan and
other persons present, and during said quarrel, one injury was
inflicted by Rafique on the person of deceased. It is also true that
in the FIR allegation was levelled for inflicting injury on the private
part of Abbas Khan by the injured eye witness and other witnesses
that injury was caused by accused on the chest of Abbas.
To ascertain the nature and the part where injury was
caused, we have perused the statements of PW.9- Dr. Kamal
Kishore. PW.9- Dr. Kamal Kishore stated in his statements that on
10.12.2009 at about 11.15 AM, postmortem was conducted by the
Medical Board of deceased Abbas Khan and found that there was
one stab wound on the left side of chest measuring 2.5 x 1 cm,
and no other injury was found upon the body of deceased. As per
opinion of Medical Board, the cause of death was shock due to
said injury. Dr. Kamal Kishore (PW.9) gave following statement
with regard to injury, which reads as under:
"VERNACULAR MATTER OMITTED"
Upon consideration of above statement and the postmortem
report (Ex.P/14), it is obvious that there is an allegation for
inflicting one injury by knife upon the chest, the complainant,
Habib Khan (PW.2) stated in his complaint (Ex.P/1) that injury
was either caused by Rafique Khan or by Ayub Khan, but the
injured eye witness PW.1 stated that injury was caused by Rafique
Khan that too in a quarrel took place between the parties. The
investigating officer, PW.14- Arvind Kumar, stated before the
court that investigation was conducted by him, in which
statements of all witnesses were recorded independently and after
investigation charge sheet was filed against six accused persons
including Rafique Khan S/o Azam Khan, against whom there was
allegation for inflicting injury by knife upon the chest of deceased.
We have perused the statement of Azam Khan (appellant
No.1) recorded under Section 313 Cr.P.C. in which the incident is
not dispute but the allegation for inflicting injury by the accused
Rafique Khan is disputed by him. We have also perused the
statement of DW.2- Zahira Bano W/o Mohd. Hussain. The said
witness categorically stated that after her marriage, the behaviour
of her husband, Mohd. Hussain, and in-laws was so cruel and her
husband Mohd. Hussain, used to assault her in connection with
demand of dowry. From last so many years, their martial relations
turned sour, time and again quarrel took place in between them
though two issues were born out of their wedlock, namely, Anisha
and Irfan.
The witness DW.2 Zahira Bano, categorically stated in her
statement that due to quarrelsome and cruel behaviour by her
husband, Mohd. Hussain, and in-laws, she was living with her
parents, however, upon request made by her father-in-law, Najir
Khan (PW.5), with an assurance that she will not be ill-treated,
her father, Azam Khan sent her back to the in-laws'' house. Just
after next day of reaching her to in-laws'' house, her husband gave
beatings and tried to kill, and at that time she was saved by some
persons of the locality, therefore, a phone call was made to her
father, Azam Khan, for rescue and upon receiving said call, her
father, Azam Khan and his family members came to her in-laws''
house, where incident took place.
As per statement of DW.2, Zahira Bano, deceased Abbas was
having a knife and Abbas tried to cut her ear and nose, therefore,
to save her occurrence of quarrel took place, therefore, her father
and other family members cannot be held guilty for committing
offence u/s 302 and 302/149 of IPC because the incident took
place when deceased, Abbas, having knife tried to cut her nose
with a knife.
Upon assessment of statements of all the witnesses, it
emerges from the facts that all the witnesses are near relatives
and it is best known to the complainant party why Abbas,
neighbour of Mohd. Hussain, came on the spot, but this fact is
established that the evidence that in this case incident of death is
outcome of quarrel in between the parties. The witnesses are not
disputing the fact that there was dispute between Mohd. Hussain
and Zahira Bano, daughter of accused appellant, and father Azam
Khan and accused party were called by Zahira Bano, because
serious quarrel took place between Mohd. Hussain and Zahira
Bano.
Considering the entire evidence and the background of the
dispute, we are of the opinion that there was no pre-meditation or
motive, the injury of knife was inflicted by the accused, Rafique in
heat of passion in spur of moment; and the appellants had not
taken undue advantage or acted in a cruel manner because there
was no enmity in between the parties, therefore, we are of the
view that this case falls under the fourth exception of Section 300
of IPC. It is also obvious from the entire evidence that the
allegation for inflicting injury is only against, Rafique Khan, and
none else, however, presence of accused was natural because
Zahira Bano, daughter of accused appellant, Azam Khan, called
her family m embers due to dispute in between her and her
husband, Mohd. Hussain.
Upon assessment to evidence, we find that occurrence took
place all of sudden due to sudden scuffle/quarrel on the spot when
Azam Khan asked his daughter to come with him but in-laws of
Zahira Bano, were not allowing her to go with father, therefore,
we are of the opinion that it is a case in which trial court has
committed a grave error to convict the accused appellant, Rafique
Khan, for the offences u/s 302 and all other accused appellants for
offence u/s 302/149 of IPC, because there is no evidence of pre-
meditation or motive to cause death of deceased, Abbas, more so,
there was no quarrel in between deceased and the accused party.
Admittedly, deceased Abbas Khan, himself came on the spot to
intervene for settlement between the parties and all of sudden,
when occurrence took place, and injury was caused to him, which
resulted into death. There is no evidence on record for
commission of offence by accused appellants Azam Khan,
Mohmmed Ayub Khan, Khushi Mohammed, Ramzan Khan, and
Bashir Khan for offence u/s 302/149 of IPC or for offence u/s 460,
148, 323/149 of IPC, for the reason that there is no allegation
against them for inflicting any injury except their presence on the
spot. Therefore, except accused, Rafique, all other accused
appellants deserve to be acquitted from the alleged offences.
Similarly, the finding of guilt recorded by the learned trial
court against accused appellant, Rafique Khan, for offence u/s 302
of IPC is not sustainable in law in view of law laid down by Hon''ble
Apex Court in the case of Arjun & Ors. Vs. State of Chhatisgarh
(supra) because the occurrence took place all of sudden and there
is no allegation of taking undue advantage by the accused
appellants for inflicting repeated injuries. Therefore, as per
evidence the offence against the accused appellant, Rafique Khan,
cannot travel beyond offence under Section 304 Part-I of IPC, in
the light of following judgments of Hon''ble Apex Court viz. (i)
Suresh Sitaram Surve Vs. State of Maharashtra reported in
2003(1) WLC (SC) Criminal, 280, (ii) Kalegura Padma Raod & Anr.
Vs. The State of A.P. reported in 2007(1) WLC (SC) Criminal 555,
(iii) State of HP Vs. Ram Pal reported in (2006) 2 SCC (Cri.) 165,
and (iv) Arjun Vs. State of Maharashtra reported in 2012 Cr.L.R.
(SC) 506 and judgment of Division Bench of this Court in the case
of Shiv Kumar @ Pappu Vs. The State of Rajasthan reported in
2010(2) CJ (Cr.) (Raj.) 796 and in the case of Arjun & Anr. Vs.
State of Chhattisgarh, reported in AIR 2017 SC 1150.
In the case of Shiv Kumar @ Pappu Vs. State of Rajasthan,
in almost identical facts, the carbonate bench of this Court while
relying upon the aforesaid principles converted the conviction from
offence under Section 302 IPC to Section 304 Part I IPC and
following adjudication is made by this court in paras nos.33, 34
and 35, which reads as under: -
"33. Common object is to be inferred from the acts, behaviour and other surrounding elements, including conduct and reaction prior and after. In certain circumstances, different may be object at different intermittent stages, in determining common object, the conduct of each member of the unlawful assembly before or at the time of incident and even after is relevant. Here no else other than Shiv Kumar carried any article for causing injury and nothing to suggest that knife with Shiv Kumar was in knowledge of any other member of unlawful assembly. No injury even of hard object is only Shiv Kumar ran away and others though disbursed soon but not so much hurriedly, therefore, in the opinion of the Court, only common object of causing but could have been and so stands proved. Therefore, members, other than Shiv Kumar common object only was of causing simple injuries. Hon''ble the Apex Court has also observed in (i) 2009 (10) SCC 773 Pandurang Chandrakant v. State of Maharashtra and (ii) 2009 (7) SCC 415 Akbar Shekh v. State of West Bengal, that when many who participated in the commission of crime, are to be convicted with the aid of S.149, needed is consideration of particular fact situation, including overt act proved. Here, it was only Shiv Kumar who stabbed and became away runningly fast.
Accordingly, appellants other than Shiv Kumar (Satiya @ Satyanarain, Balia, Purshottam Lal & Omprakash @ Kalu) are held guilty of offences punishable under Sections 147, 323 read with S.149 IPC and also S.145 Railways Act.
For the aforesaid reasons, appellant Shiv Kumar is to held guilty of S.304 Part I IPC and also of S.147 IPC and S.145 Railways Act. Appellants Satiya, Balia, Purshottam and Omprakash are guilty of offences under Sections 147, 323 read with S.149 IPC and also S.145 Railways Act. All are to be acquitted if the offences of S.302 or 302 read with S.149 IPC .
Appellant Shiv Kumar is in custody since March, 3, 2000 and by now, has suffered imprisonment little more than ten years. All other circumstances remaining normal, he should have also earned remission so now, therefore, in the opinion of the Court, sentence for the period already undergone with fine of Rs.10,000/- shall be just and appropriate. Other appellants, broadly remained in custody for about four months so for them also for the offences they have been guilty, sentence of period already undergone shall meet ends of justice."
In the case of Arjun & Anr. Vs. State of Chhattisgarh (supra)
the Hon''ble Apex Court in almost similar circumstance held as
under: -
"19. The point falling for consideration is whether the conviction of the appellants under Section 302IPC is sustainable. As discussed earlier, the evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which resulted in altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident
occurred due to a sudden fight which, in our view, falls under exception (4) of Section 300 IPC.
To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. Union Territory of Chandigarh (1989) 2 SCC 217, (AIR 1989 SC 1094, Para 6), it has been explained as under:-
"7. 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. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.............."
Further in the case of Arumugam vs. State, Rrepresented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590, in support of the proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under:-
"9. .......
"18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender?s 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 the Penal Code, 1860. 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 had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and 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 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?."
The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre-meditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken "undue advantage" or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC .
When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling
under Section 304 Part I IPC. The conviction of the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that of the period already undergone.
In the result, conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the sentence is reduced to the period already undergone and these appeals are partly allowed accordingly. The appellants are ordered to be released forthwith unless required in any other case."
In view of above discussion, we are of the opinion that all
the prosecution witnesses, who were present on the spot, are
interested and relatives of complainant party, therefore, they did
not narrate altogether different story but proved the fact on oath
that some incident took place in the house of Najir Khan and
Mohd. Hussain, in which one injury was inflicted by the accused
appellant, Rafique S/o Azam Khan by knife on the person of
deceased, Abbas. Upon assessment of entire evidence and
considering the fact that there is no independent witness to prove
the actual incident, we are unable to accept the allegations of
prosecution witnesses as a whole except the fact that one injury
by knife was inflicted by accused appellant, Rafique to the
deceased. Therefore, the finding of learned trial court to hold
accused appellants, Azam Khan, Mohammed Ayub Khan, Khushi
Mohammed, Ramzan Khan and Bashir Khan, for offence u/s
302/149, 460, 148 & 323/149 of IPC is not sustainable in law,
therefore, the conviction and sentence passed against them for
aforesaid offences, deserves to be quashed and they deserve to
be acquitted.
However, upon assessment of entire evidence on record as
per recent judgment of Hon''ble Apex Court in the case of Arjun &
Anr. Vs. State of Chhattisgarh reported in AIR 2017 SC 1150
(supra), we are of the opinion that offence against accused
appellant, Rafique S/o Azam Khan, cannot travel beyond offence
u/s 304 Part-I of IPC, therefore, the finding of guilt recorded by
the trial court against accused appellant, Rafique, for offence
under Section 302 of IPC is hereby altered to offence u/s 304
Part-I of IPC .
Consequently, the instant criminal appeal is allowed qua
accused appellants, namely, Azam Khan, Mohammed Ayub Khan,
Khushi Mohammed, Ramzan Khan, and Bashir Khan. The
judgment impugned dated 09.07.2013 passed by learned Addl.
Sessions Judge, Churu, in Session Case No.23/2010 (9/2010) qua
them, is hereby quashed and set aside and, they are accordingly,
acquitted.
So far as other accused appellants, namely, Azam Khan,
Khushi Mohammed, Ramzan Khan, and Bashir Khan are
concerned, their sentence, has already already suspended,
therefore, their bail bonds are discharged. Accused appellant
No.2, Mohammed Ayub Khan S/o Asgar Khan, is in custody, he
may be released forthwith.
However, the instant criminal appeal, qua accused appellant
Rafique S/o Azam Khan, is hereby partly allowed, the finding of
conviction recorded against the accused appellant, Rafique, for
offence u/s 302 of IPC, vide judgment dated 09.07.2013 passed
by learned trial court, is hereby altered to offence u/s 304 Part-I
of IPC and the sentence of life imprisonment is hereby reduced to
ten years'' R.I. The conviction of the accused appellant, Rafique,
for offences u/s 460, 148 and 323/149, is hereby quashed and set
aside. The order of fine imposed by the learned trial court against
the accused appellant, Rafique, is hereby maintained.
Keeping in view, however, the provisions of Section 437A
Cr.P.C. the accused appellants are directed to forthwith furnish
personal bonds in the sum of Rs.20,000/- and a surety bond in
the like amount each, before the learned trial court, which shall be
effective for a period of six months to the effect that in the event
of filing of Special Leave Petition against the judgment or for grant
of leave, the appellants, on receipt of notice thereof, shall appear
before Hon''ble the Supreme Court.