Mohd.Hafeez vs Inzar Ahmed & Ors.

Through the instant Revision Petition, the petitioner (complainant first informant) has impugned the judgment/order of learned Sessions Judge,

Poonch dated 1/2 of August, 2005, primarily with regard to the acquittal earned by all respondents 1 to 6 (hereinafter referred to as accused) of

the main charge of Sections 302 and 307 RPC. They instead stand convicted and sentenced for lesser offences. To make it more clear, the

conviction and the sentence recorded by the trial Court qua each accused is reproduced as under: Inzar Ahmed

304 PartII RPC 5 years rigorous imprisonment and Rs. 1,000 as fine; in default, simple imprisonment for one month.

4/27 Arms Act 2 years rigorous imprisonment and Rs.500 fine; In default, simple imprisonment for 15 days.

148 RPC 3 years rigorous imprisonment.

447 RPC 2 months rigorous imprisonment.

324 read with 149 RPC Rigorous imprisonment for one year.

Mohd. Azam

326 read with 149 RPC 3 years rigorous imprisonment and Rs. 1,000 as fine; in default, simple imprisonment for one month.

324 RPC 1 year Rigorous imprisonment.

447 RPC 3 months rigorous imprisonment.

The trial Court has not imposed any separate sentence on him under Section 148 RPC.

Mohd. Bashir, Mst. Fatima Bi and Mst. Havela Khatoon

326/149 RPC 21/2 years rigorous imprisonment to each and Rs. 1,000/ fine to each; In default one month's simple imprisonment to each.

324/149 RPC One year rigorous imprisonment to each.

447 RPC 3 month's rigorous imprisonment to each.

Mst. Shamim Akhtar

324/149 4 months' rigorous imprisonment.

326/149 RPC 4 months' rigorous imprisonment and Rs.10,000/ fine; In default, two months simple imprisonment.

447 RPC 4 months rigorous imprisonment

No sentence under Section 147 RPC is imposed separately.

It is worth mentioning here that as the total period of detention of accused Mst. Shamim Akhtar as an undertrial prisoner was four months only,

therefore, keeping in view the fact that she was of the age of 22 years and having two milk sucking children, she was let off with the sentence

already undergone by her. During trial also, she was on bail considering that she had to delivery the child.

Admitted position is that none of the accused has preferred appeal against their conviction and sentence, as before the pronouncement of the

judgment, the sentence slapped upon them was already served by them as undertrial prisoners. Another admitted position is that State has also not

preferred an appeal against the acquittal earned by the accused for the charge of 302/307 RPC or even on the point of sentence.

The instant Revision Petition stands admitted vide order dated 3rd of November, 2006. I have heard Mr. A.V. Gupta, senior Advocate,

assisted by Mrs. Swati Gupta, learned counsel for the petitioners. Mrs. Sindhu Sharma, Advocate, appearing for the accused and Mr. B.S.

Salathia, learned Additional Advocate General. With their assistance, I have gone through the entire record.

Mr. Gupta submits that impugned judgment with regard to acquittal earned by the accused for the main offence of Section 302 read with

Section 149 RPC and also for the offence under Section 307 read with 149 RPC is not sustainable, for a very simple reason that once the trial

Court has returned a finding that unlawful assembly was formed by all the accused and they had trespassed into the land of the complainant, then

each one was liable for the act of other. Therefore, recording the conviction of accused Inzar Ahmed only substantively for the main charge may be

under Section 304 PartII RPC by the learned trial Court is bad on the face of it. According to Mr. Gupta, applicability of Section 149 RPC is writ

large in this case.

Expressing his grievance for diluting the main offence of Section 302 RPC, Mr. Gupta then submits, may be it is a case of only one injury on the

person of the deceased (Mohd. Raqeeb), allegedly attributed to accused Inzar Ahmed, it was found sufficient in the ordinary course of nature to

cause death and, therefore, there was no justification in diluting the main offence of Section 302 RPC to Section 304 PartII RPC even qua him.

According to him, even if it is said to be a case of fastening an individual liability, still accused Inzar Ahmed has no escape from 302 RPC as he

was one, who was armed with knife and caused the fatal blow. Assuming for the sake of argument although not admitted, the weapon of offence in

his hand and the damage caused by it, can comfortably take him within the mischief of Section 304 PartI RPC at least. Therefore, his conviction as

recorded under Section 304 PartII RPC, in any case, is bad and deserves to be modified.

Mr. Gupta then submits that diluting the other main offence from Section 307 RPC to Section 324 RPC by the trial Court again is not in the right

perspective. He submits that the injury received by one of the injured is on the vital part of the body, i.e., head, which is attributed to one of the

accused. This would bring the case within the mischief of Section 307 RPC. However, on a specific query put to Mr. Gupta, he fairly admits that

the injury on the head has been declared as simple in nature, although caused by sharpedged weapon.

This is all what is submitted by Mr. Gupta assailing the impugned judgment on merits. However, with regard to quantum of sentence, he submits

that the sentence awarded in this case is inadequate; it is rather ridiculous for the reason that one of the accused, namely, Mst. Shamim Akhtar, is

awarded sentence of only four months even after being convicted under Section 326 read with Section 149 RPC and this sentence does not

commensurate to the offence. The learned trial Court has shown a very lenient tilt towards the accused while imposing sentence.

Mr. Gupta lastly submits that, no doubt, in the instant revision, legally, the petitioner cannot ask for conviction of the accused under Section 302

RPC or even for Section 307 RPC, the main charges for which, they faced the trial, but it is a case which on account of aforesaid infirmity, calls for

the indulgence of this Court directing retrial in accordance with law.

Mr. Gupta has also relied upon the following two judgments in support of his case:

Arun Kumar and Anr. v. The State of U.P., AIR 1989 SC 1445

Ram Narain and Ors. v. The State of U.P., AIR 1971 SC 757

Per contra, Mrs. Sharma supports the impugned judgment and states that there is no infirmity apparent on record, which would call for

interference of this Court. Even otherwise, the complainant has a very limited right of being heard in a case of acquittal earned by the accused in a

State case, as the same cannot be converted into conviction. The yardstick of appreciating the prosecution case in a revision against acquittal is

entirely different.

Scope of revision by a complainant (first informant) in a State case against an order of acquittal is very widely discussed by Hon'ble Apex

Court in a judgment rendered in Bindeshwari Prasad Singh alias B.P. Singh and Others v. State of Bihar Now Jharkhand) and Another, 2002(4)

RCR (Criminal) 61, wherein heir Lordships have observed that:

In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in

exercise of its revisional jurisdiction. It is further observed that the High Court should not reappreciate the evidence to reach a finding different than

the one arrived at by the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in

such cases is not warranted. It is further observed by their Lordships that in exercise of revisional jurisdiction against an order of acquittal at the

instance of a private parts, the Court exercises only limited jurisdiction and should not constitute itself into an appellate court which has a much

wider jurisdiction to go into questions of facts and law and to convert an order of acquittal into one of conviction. It cannot be lost sight of that

when a retrial is ordered the dice is heavily loaded against the accused, and that itself must caution the Court exercising revisional jurisdiction.

Appreciating the present revision petition in the light of the aforesaid judgment rendered by the Apex Court, in my view, it does not call for

further discussion and deserves dismissal. But to be fair to Mr. Gupta let me set forth my reasons, may be in brief on merits as well.

In my considered view, the learned trial Court has rightly segregated the case of accused Inzar Ahmed with regard to the main offence so far

as applicability of Section 149 RPC is concerned. It has drawn the distinction holding that the common object of the unlawful assembly in the facts

of the present case, was not to cause the death of the deceased or such bodily injury, which was sufficient to cause death in the ordinary course of

nature; the common object was to cause hurt. This is the reason that qua other offences, viz., under Sections 326 and 324 RPC, the learned trial

Court has applied Section 149 RPC. This cannot be said to be an illegal approach apparent on record.

The second vital aspect is diluting the main offence of Section 302 RPC to a lesser offence, i.e., Section 304 PartII RPC for which aforesaid

InzarAhmed stands conviction and sentenced substantively. Admittedly, the deceased has received only one injury in this occurrence at the hands

of accused Inzar Ahmed with a knife. This injury is on the buttock of the deceased. It is not a case of repeated blow. As per opinion of Dr.

Zulfikar Ahmed, the knife injury was caused on the back of the buttock resulting into severing of major blood vessels causing massive hemorrhage.

No doubt, that this injury on the buttock has proved to be fatal, but keeping in view the totality of facts and circumstances, the approach adopted

by the learned trial Court in altering the conviction of aforesaid Inzar Ahmed to Section 304 PartII substantively is in the right perspective.

The Apex Court in case titled State of Andhra Pradesh v. Rayavarapu Pannaya and Another, reported in (1976) 4 SCC 382, laid down the

test rather provided and prescribed how to make or mark a distinction that whether offence falls under Section 302 IPC or 304 PartI IPC and

304 PartII IPC. It would be profitable to reproduce paras 12 and 21 of the said judgment:

In the scheme of the Penal Code, 'Culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not viceversa.

Speaking generally, 'culpable homicide' sans 'special characteristics of murder', it 'culpable homicide not amounting to murder'. For the purpose of

fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognizes three degrees of culpable homicide. The first

is, what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in Section 300 as

'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under first part of Section 304. Then, there is

'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among

the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable

homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be

considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such

casual connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts

to 'culpable homicide' as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the

operation of Section 300, Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the

prosecution bring the case within the ambit of the any of the found clauses of the definition of 'murder' contained in Section 300. If the answer to

this question is in negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of

Section 304, depending respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive,

but the case comes within any of the exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder',

punishable under the first part of Section 304, Penal Code.

Their Lordships of Hon'ble Apex Court in a very recent judgment rendered in Rajpal and Ors v. State of Haryana 2006 (3) RCC 209, while

reiterating the aforesaid view, have observed that the academic distinction between 'murder' and culpable homicide not amounting to 'murder' has

always vexed the Courts and a confusion is caused, and if the Courts lose sight of the true scope and meaning of the terms used by the legislature

in these sections, and allow themselves to be drawn into minute abstractions. In order to adopt a safest approach to the interpretation and

application of the provisions of Section 299 and Section 300IPC, their Lordships, while giving broad guidelines, advised the Courts to keep in

focus the key words used in various clauses of aforesaid two sections. It is further observed that sometimes, the facts are intertwined and the

second and the third stages so telescoped into each, that it is not convenient to give a separate and clear cut treatment to a matter involved with

regard to second and third stage and, therefore, each case has to be seen on its own facts.

In the present case, for the sake of repetition, I may observe here that it does not fall in the first form, the gravest form, to define it as 'murder'.

It cannot be termed as culpable homicide of second degree falling within the mischief of Section 304 PartI. Therefore, it will fall within the ambit of

Section 304 PartII only, as already held by the learned trial Court. This is very sound approach in the right direction within the legal parameters. In

my view, on this aspect, perhaps, the present case does not call for any further discussion.

The controversy raised by Mr. Gupta with regard to the charge of Section 307 RPC is again of no advantage to him. Admittedly, there is no

such injury on the vital part on the person of any of the injured from the complainant side, which would bring it legally within the mischief of Section

307 RPC. There is no medical evidence to support it. I do not find any manifest illegality in it. So, argument advanced by Mr. Gupta on this count

also fails.

At the same time, I am unable to find any fault with regard to the sentence imposed qua any of the accused. Much has been said about Mst.

Shamim Akhtar, but she has been let of with imprisonment for four months only, as her case was distinguishable; she being aged hardly 22 years

and having two breastsucking children. So, on this aspect also, the approach of the learned trial Court is faultless, whereby no miscarriage of

justice is caused.

At the end, I may say here that the aforesaid two judgments cited by Mr. Gupta in support of his case are not at all applicable to the facts of

the case and, therefore, he cannot derive any advantage from them.

As a sequel to what is said hereinabove, the instant revision petition fails on all counts. Hence dismissed.