HIGH COURT OF CHHATTISGARH, BILASPUR CriminaLADDeal No.341 of 2003 '1., Mohd. Iqbal - Versus - State of Chhattisgarh JUDGMENT FOR CONSIDERATION Sd/- L.C. Bhadoo Judse HON'BLE MR. JUSTICE SUNIL KUNIAR SINHA Sd/" KumarSsnha POST FORPRONOUNCEMENT OF JUDGMENT ON/^^JANUARY, 2008 '••^•Bhadoo (^i APPELLANT: (In Jail) RESPONDENT: HIGH COURT OF CHHATTISG^RH^BILASPUR Criminal Appeal No.34Lof 2003 \ Mohd. Iqbal, S/o Sheikh Ibrahim, aged about 25 years, R/o Village: Idgahbhatha, Near Football Ground, Raipur, Distt. Raipur (C.G.) - Versus - State of Chhattisgarh {Criminal appeal under Section 374 (2) of Code of Criminal Procedure, 1973} <i r7" Appearance: ^ Mr. P.P. Sahu, counsel for the appellant. Mr. Akhil Mishra, Panel Lawyerforthe State/respondent. Divisipn Bench: Hon'ble Mr. L.C. Bhadoo and Hon'ble IWr. Sunil Kumar Sinha, JJ. JUDGMENT (Delivered on ' i^ ^January, 2008) The following iudsment ofthe Cpurt was delivered bv L.C. Bhadoo, J.: - 1. This appeal is directed against the judgment of conviction and order of sentence dated 25 January, 2003, passed by the 9 Additional Sessions Judge (FastTrack Court), Raipur in Sessions Trial No.163/2001, whereby & whereunder learned Additional Sessions Judge after holding appellant Mohd. Iqbal guilty for commission of offence under Sections 302 & 450 of the I.P.C., sentenced him to undergo imprisonment for life & pay a fine of Rs.500/-, in default of payment offine to further undergo R.l. for six months and to undergo R.l. for five years & pay a fine of Rs.200/-, in default of payment of fine to further undergo R.l. for three months, respectively. 2. Case of the prosecution, in brief, is that on 8-1-2001 Syed Rais Ahmed (PW-7) lodged Dehati Nalishi Ex.P-8 to the effect that on that day at about 9.30 a.m. his son Syed Kaleem left the house with his auto rickshaw, at that time, the hood made of resin ofthe auto rickshaw was damaged, as the same hit against the wooden & tile roof of the house of Mohd, Iqbal, on which Syed Kaleem left the place abusing. Earlier also in the same fashion, the hood of auto ric1<shawwas damaged because the same hit against the roof of the house of the accused and'at that time, Syed Kaleem asked Mohd. Iqbal to set right the roof of the house, but he did no care for it. K •^ ^.•St ^^:iS^t. .t.9 Sister of Mohd. Iqbal heard the abuses hurled by Syed Kaleem and she informed that fact to her brother. Hearing this, Mohd. Iqbal started quarreling with the wife of Syed Rais Ahmed namely, Rabia Syed. At about 11 a.m. Syed Rais Ahmed'was taking his breakfast and his son Syed Kaleem also returned for taking breakfast. When his son was washing his hands, the accused/appellant glong with co-accused Mohd. Sabir forcefully entered his house, while abusing asked his son Syed Kaleem as to why he was abusing his sister, after taking out the knife, he attacked on left side of chest and said that today he will finish him. On account of the knife injury blood started oozing out of the chest injury as also from the.mouth. Seeing this, the accused persons rafr aw^y. He took his son to Mekahara, where he was declared brought dead. \ 3. Receiving this information, Station House Officer, Police Station: Ajad Chowk, Raipur, registered F.1.R. Ex.P-14 and leftfor Mekahara where after giving notice Ex.P-1 to the Panchas, prepared inquest Ex.P-2 on the body of Syed Kaleem @ Kaleem. hle took into possession blood stained floor & plain floor after scratching the same from the place of occurrence under Ex.P-3. Site plan of the place of occurrence Ex.P-4 was prepared. Knife, the weapon of offence, was seized under Ex. P-6. The packet containing clothes of the deceased was seized under Ex.P-7. Site plan Ex.P-11 was prepared by the Halka Patwari. Merg Dehati Ex.P-9 & Merg intimation Ex. P-12 were given by Syed Rais Ahmed. 4. Body of Syed Kaleem was sent for post-mortem examination under Ex.P- 13. Dr. Ulhas Gonnade (PW-11), who conducted post-mortem, opined that the death is due to shock & haemorrhage as a result of stab injury. Injury was caused by hard & sharp penetrating, moderately heavy object. Death was homicidal in nature. Injury was sufficient to cause death in the ordinary course of nature. He prepared post-mortem reportEx.P-16. Seized articles were sent for chemical examination to Forensic Science Laboratory, Raipur, from where report Ex.P-18 was received. Knife, the weapon of offence, was sent to Mekahara for examination and opinion. The doctor after examination of.the knife gave report Ex.P-17. 5. After completion of investigation, charge sheet was filed in the Court of Judicial Magistrate, 1 Class, Raipur, against the accused/appellant and co- accused Mohd. Sabir, who in turn committed the case to the Sessions Judge, Raipur, from where learned 9 Additional Sessions Judge (F.T.C.), Raipur, received the caseon transfer for trial. T ''S"! ?!.:, 6. The prosecution in order to establish charge against the accused examined eleven witnesses. Statements of the accused persons were recorded under Section 313 of the Cr.P.C. in which they denied the material appearing against them, pleaded innocence and stated that they have been falsely implicated in the crime. Learned trial Court after hearing counsel for respective parties, convicted and sentenced accused/appellant Mohd. Iqbal as aforementioned, however, acquitted co-accused Mohd. Sabir. 7. We have heard Mr. P.P. Sahu, learned counsel for the appellant and Mr. Akhil Mishra, learnedPanel Lawyerforthe State/respondent. 8. Mr. P.P. Sahu has not dispi^ted the homicidal death of Syed Kaleem. Moreover, Syed Rais Ahmed (PW1'7), father of the deceased, has stated in his evidence that the accused/appellant attacked the deceased with a knife and ran away. Above ocular evidence is corroborated by the medical evidence of Dr. Ulhas Gonnade (PW-11), who conducted post-mortem on the body of Syed Kaleem. He has stated that on 8-1-2001, he conducted post-mortem on the body of Syed Kaleem and found that there w3s stab wound on the chest of the deceased which was 13 cms. below the sternal notch and 7.5 cms. on the outer side obliquely placed which was 3 cms. x 0.5 cms. in size, margins were clear cut, both the corners were triangular. After cutting the skin, injury was in the size of 3 cms. x 0.5 cms. between 4 & 5 intercostal space which was on lower portion of left lung, as a result of which lower corner of lung was cut in 3 cms. size and left side heart above the pericardium was cut, which was behind left ventricle, pericardium was cut from behind. The injury was extending from left side to right side. There was one litre blood in the plural cavity and about 100 ml. blood was in the stomach. Cause of death was on account of haemorrhage & shock and the injury was inflicted by hard & pointed heavy object. Injury was sufficient in the ordinary course of nature to cause death and death was homicidal in nature. In view of the above ocular and medical evidence, it is established that the death of Syed Kaleem was homicidal in nature. 9. As far as complicity of the accused in the crime in question is concerned, Syed Rais Ahmed (PW-7) is father of the deceased. He has stated in his evidence that at about 10.45 a.m. he was at his residence and was preparing to take breakfast, at that time, his son Syed Kaleem also returned to house for breakfast. He asked his son to take breakfast, but his son said that he is coming after washing his hands & mouth. As soon as his son came in the outside room, accused Mohd. Iqbal came there and asked his ^^!''"^^';!"T' t:' •^i?;il"" .^&;;"•J^ K KsSsS^ ; .'t 'tui^ son as to why he abused his sister, on which his son replied that the hood of his auto rickshaw was damaged, that is why he abused. At that moment, the accused attacked his son with a knife on left side of chest. He rushed towards the accused to catch him, but he ran away. Blood started oozing out of the injury and mouth of his son. Thereafter, he took his son in the auto rickshaw to Mekahara, where he was declared brought dead. Nazma Begum (PW-9), wife of the deceased, has corroborated the evidence of Syed Rais Ahmed (PW-7). -She has stated in her evidence that she was present at the time of occurrence and the accused attacked her husband.. In cross-examination of these witnesses, defence has not been able to bring anything on record which/: discredits the evidence of these two witnesses. The incident happened in,,the day light, that too in the house of these witnesses. Therefore, thereis no reason to doubt their lestimony. Even counsel for the appellant was not able to point out any infirmity in their evidence. Even though both the witnesses are related to the deceased being father & wife, but their testimony cannot be rejected out rightly on that count only. They are natural witnesses to the incident. In view of the evidence of these two witnesses, complicity of the accused in the crime in question is established. 10.As far as nature of offence is concerned, learned counsel for the appellant argued that as the deceased abused the sister of the accused in the morning, when the accused came to the house of the deceased to ask him as to why he abused his sister, there some altercation took place between the two and at the spur of the moment in a heat of passion, in a sudden fight, the accused attacked the deceased. Therefore, offence against the accused does not travel beyond Section 304 Part-11 of the I.P.C. He placed reliance on the judgment of the Apex Court rendered in the matter of Dharam & others v. State of Haryana (2007 Cri.L.J. 791). 11.0n the other hand, learned Panel Lawyer for the State/respondent supported the judgment of the trial Court. 12.1n order to bring the offence within the four corners of Exception 4 to Section 300 ofthe I.P.C., Exception 4 can be invoked ifthe death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. 13.1n the present case, admitted position is that on the fateful day, in the morning, when deceased Syed Kaleem was leaving his house along with ^^ ^s:atS;l»' iIi"i;!tSIS!S? his auto rickshaw, resin roof of the auto rickshaw was damaged, as the same hit against the wooden roof of the house of the accused, then he abused the sister of the accused saying that why the roof is not being set right, on earlier occasion ateo hood of auto rickshaw was damaged, and left the place. Thereafter, when the accused returned to his house, his sister informed him about the abuses hurled by the deceased. When the deceased returned to his house, at about 11 a.m. the accused went to his house with a knife and asked him as to why he abused his sister, to which the deceased replied that hood of auto rickshaw was damaged that is why he abused. Without waiting further, the accused took out the knife and attacked on chest of the decea§'ed as a result of which the deceased sustained fatal injury and left lung.& hsgrt were damaged on account ofthe stab injury. Before he was taken to the hospital he died. 14.Above facts suggest that at the time of commission of crime there was no fight, even the accused came prepared with knife and when the deceased replied that as the hood of auto rickshaw was damaged, because the same hit against the roof of the house of the accused, the accused without waiting further immediately took out the knife and stabbed on the chest of the deceased. There was no quarrel between the two. The accused came with a knife that means he came prepared. Therefore, ingredients of Exception 4 to Section 300 ofthe I.P.C. are not attracted in this case. 15.As far as intention is concerned, in the matter of Thangaiya v. State of Tamil Nadu (2005 Cri.L.J. 684), the Apex Court had laid down some factors which are to be considered to ascertain intention ofthe accused viz., the nature of weapon used, the size of weapon, place of assault, facts leading to assault and part of body where injury is inflicted. In the present case, the accused came with a dangerous weapon (knife), he chosen left side of chest of the deceased to attack where he attacked with such a force that injury in the size of 3 cms. x 0.5 cms. was caused, as a result ofwhich left lung and left side of heart were damaged, even left ventricle and pericardium were cut. Therefore, he attacked the deceased on vital part of the body. Lookjng to size of weapon, place where the injury was inflicted, which damaged heart and lung of the deceased and he died within no time, it can be inferred thaf the accused came prepared with a knife. All these factors suggest that the accused inflicted the injury with a knife with intention to cause death of the deceased. In the circumstances, intention of , the accused to cause death was writ large and we do not find any force in „ theargument oflearned counsel forthe appellant. ^f- ^i". /y li' 1 ^^i-'-'^'i^i^ 16.As far as judgment of the Apex Court in the matter of Dharam (supra) cited by learned counsel for the appellant is concerned, in that case, parties were real brothers and their heirs, there was a dispute regarding land between the parties and in that base, both the parties sustained injuries and defence of the accused persons was that they attacked the deceased party in the right of private defence.. The Apex Court held that "the question which requires serious consideration is whether having regard to the peculiar circumstances in which' the incident took place and the fact that the deceased and the appellants happened to be blood relations, this particular injury, which was found to be sufficient in the ordinary course of nature to cause death in the instant c^&e, was an injury intended by the appellants. Having regard to the nature of the injuhes sustained by both the closely related parties, we are of the view that the fatal injury was not inflicted with the intention to cause death or an injury likely to cause death of the deceased". That is why the Court reached to the conclusion that offence against the appellants under Section 304 Part-11 of the I.P.C. was made out, as such, this decision is clearly distinguishable on facts from the present case. 17.1n the result, for the foregoing reasons, we do not find any illegality or infirmity in the judgment of the trial Court and the accused has rightly been convicted for offence under Sections 302 & 450 of the I.P.C. The appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Soma Sd/- L.C. Bhaduo Judge Sd/- Sunil Kumar Sinha Judse