IN TtE HIS1 COURT OF JUDICATURE AT JAB&LPUB (M.P.) CRMINAL APPE&L N0._2^?_ /1999 • •tvto1J"1 <-' ^pellant lifohda Akram Khan aged about 20 years S/o Mobd.Hanif allas Akbar T/O Amarpar, Thana ladvar, District Shahasl (M.P.) v_e_a_ s y s Bespondent S-tate of Madhya Pradesh • s^; w, 1.1 GaiMINAL APPEAL niBER SECTIOK 374 OF THE CRIMINAL PROCSDURE 80DE.1973 'IBIH^T^I ^A.' -ff/ If HIGH COURT OP JUDICATURJE AT BILASPURtCHHATTISGARHl (DIVISION BENCHI CRIMINAL APPBAL 0.928 OP 1999 Mohd. Akram Khan - Versus - State of Chliattisgarh JUDGMENT FOR CONSIDERATi HON'BLE THE CHIEF JUSTICE Sd/- L.C.Bhadoo Judge Sd/- ChiefJustice POST FOR JUDGMENT iON^(%- MQVEMBER, 3004 Sd/- JUDOE ^fc£_,.l1.2004 ^[ HIGH COURT OF JODICATURE AT BILASPUR (CHHATTISGARH) DIVISION BBNCH* CORAM: HOM'BLB SHRI A.S.V. MOORTHY, C.J. & HON'BLE SHRI L.C. BHADOO J. CruninalAppeal N0. 928 of 1999 Mohd. Akram Khan Vs. State of M.P. (Now 'State of Chhattisgarh') Present; Sbri Abhay Tnvari, counsel for appellant. Shri Ravindra Agarwal, Panel Lawyer for fhe State. ^- JVD6MENT (DeUvered 3^<- November, 2004) The following judginent ofthe Court was deUvered by Justtce L.C. Bhadoo. The appellant naiaely Matimood Akram Khan has preferred ftus appeal under section 374 (2) of the Cnminal Procedure Code being ^grieved by the judginent of convictioa and sentence dated 26fh Februaiy, 1999 passed by the Sessions Judge, Raipur ia Sessions Trial No. 15/98 whereby leanaed Sessions Judge after holding the accused/appellant guilty for commission ofthe offence Tinder section 302 of the Indian Penal Code sentenced tiim to undei^o imprisoiunent for Ufe. Co-accuscd Mahendra Kuinar was also tried vrith the present accused/appeUaiit for conunission of fhe offence under scction 201 ofthe Indian Penal Code. He was held giulty for commission ofthe offence under section 201 ofthe I.P.C. aud was sentenced r ,.»Sesi •.^e/SS^» ^.;^^i"-"" to undergo rigorous iniprisoninent for 2 years aad to pay a fine of Rs. 500/- ia default of payment of fine amoiuit to further undergo one monfh's r^orous imprisorunent. 3. Briefly stated prosecution case necessaiy for fhe disposal of fhis appeal is fhat deceased Abdul Gaffar was workiag as driver iu the Oberoy Traasport Compaay, Raipur. The accused/appeUaxit was also working as driver ia the same coiapaay. On 10.11.1997, soiae dispute took place between the accused/appeUant and deceased in connectiqn with the traasportation of goods, The accused/appeUaut inynedigtely left the scene aad after soine time came with a knife and stebbed to Abdul Gaffar on stoinach aad chest. The offence was witaessed by the helper namely Suresh Udiya and other persons of Oberoy Transport Coiapaay. The iajured Abdul Gaffar was munediatefy taken to fhe Gayatri Hospital aad was adiiutted fhere where he gave the stateiaent Ex.P/25 to B. K. Uikey, Inspector, Police Station - Sarswati Nagar. Said Shri B. K. Uikey after recordiag the evidence Ex.P/25 forwarded the same to the PoUce Station - Amaaaka in whose jurisdiction the ofFence was coinnutted. On receiving fhe stateinent the In-chaige, Police Station Amanaka registered fhe case under F.I.R. Ex-P/23 for fhe ofFence uitder section 307 of fhe I.P.C. Thereafter, the Police Station Amanaka received iafonnation froia Gayatri Hospital fhat the iajured Abdul Gaffar succumbed to the iajuries ia fhe early hours of 11.11.1997 at 2.35 a.m. Therefore, fhe offence was converted iato section 302 of fhe I.P.C.. Mahendra Kuiaar Mishra (P.W.18) took up the investigation, he reached to fhe Gayatri Hospital. After giving notice Ex.-P/13 to fhe witnesses, he prepared Paachnama ofthe body of the deceased Ex.P/14. The postmortem was conducted by Dr, Sanjay Kumar Dadu (P.W.7), he after conducting fhe post niortem prepared report Ex.-P/6. The Investigating Officer duriiig fhe invest^ation also took iato possession the treataient papers Ex.-P/lO froin the hospital. Ex.-P/12 dying declaiation was recorded by fhe treating doctbr Dr. Arun Mandharia ia the presence of ofher Doctor (P.W.10) AMulesh Dubey. The Investigatmg Of&cer also took into possession the blood staiaed clofhes of the accused aad also the blood stauied clothes of fhe .i^:^? ...-^iesSB' .--ifS'as ^-S3:KKas-I? 6. deceased. In the police custody the accused/appeUant gave informatioa Ex.P/16 ia which he stated that he gave the kaife to Mahendra Manikpuri and thereafter he reached to Mahendra Kumar Maaikpuri, who gave nieinoranduin Ex.P/18 and in piu-suaat to which the knife was recovered fix>ia water near the raUwav station. The blood stained clothes were sent for examination to tbe Porensic Science Laboratoiy, Raipur &oin where fhe report Ex.P/40 was received, fixiia where tfae blood stauied articles were setit for fhe exaaunation by the serologist and the serologist report. Ex.P/39 was received from Calcutta. ASter coiaplction of the investigation the chargc sheet was filed agauist the accused/appeUant alongwith co-accused. The prosecution in order to prove the offence ^ainst the accused/appeUant examined ui all 20 witnesses and on the other hand the stateinent of the accused/appeUadt was recorded under section 313 of thc Cr.P.C. ia which he denied the prosecution atlegation aad stated that he has been falsely implicated in the crime. •' We have heard Shri Abhay Tiwari, leamed counsel for the accused/appellant aad Shri Ravindra Agarwal, leamed Panel lawver for the State. As far as fhe question ofdeath ofAbdul Gaffar being homicidal is concemed, leamed counsel for the accused/appeUaat has iiot disputed this fact. Even otherwise, as per the evidence of P.W.7 Dr. Saajay Kumar Dadu who conducted the postmortein on 11.11.1997 has stated that he saw the stitehed wound on the stomach ofthe deceased and in bis opinion the cause ofdeafh of Abdul Gafifar was shock as a result of fhe excessive bleeding aad stab iajiuy on the stomach aud fhe deafh was honucidal la nature. Therefore iu view of the above, evidence and also the dyiag declaration ofAbdul Gaffar Ex.P/ 12 aad Ex.P/25 it staads proved that the death ofAbdul GafTarwas homicidal in nature. Now, coining to the question of involveinent of the accused/appeBant in conunissiou ofthe inurder ofAbudl Gaffar is concemed, eyewitness Suresh Udiya has not been produced in y^ ^>-J^^?' fhe witaess box, aad ofher witaesses have tumed hostile, therefore, fhe conviction rests on fhe dyuig declaration of the deceased i.e. Ex.P/12 recorded by Dr. Arun Mandharia aad Ex.P/25 recorded by B.K.Uikey, as also the circumstantial evidence ttiat the knife was recovered at the iastetnce of fhe accused/appeUant and blood ofthe blood-group ofthe deceased and accused was fouad on fhe clofhes of the deceased aad cut of knife were found- on fhe clothes of the deceased correspondiug to the uijuries on the body of deceased Abdul Gaffar. -/ 8. Learaed counsel for the- accused/appeUant has also not challenged fhe conviction but he simply aiyied that the accused assaulted to fhe deceased in a sudden quarrel aad in a heat of passion wifhout iatention to coinnut murder of deceased Abdul GafFar, therefore, the ofFence does not travel beyond section 304 Pt.II ofthe I.P.C., therefore, he has been wrongly cbnvicted under section 302 ofthe I.P.C.. 9. In fhe dying declaration Ex.P/12 which was recorded by Dr. Arun Mandharia (P.W. 15) the deceased Abdul Gaffar has clearly stated that fhe accused/appeUant stabbed Tiim with a fenife. Said dying declaration has been proved by Dr. Arun Mandharia aud by Dr. Akhilesh Dubey (P.W.10) who assisted in the treatment, has stated that the dying declaration was given iu his presence by Abdul Gaffar and was recorded by Dr. Arun Mandharia. Apart from that aaother dyiag declaration ia fhe form of merg intunation (Ex. P/25) was recorded by B.K.Uikey Inspector, Police Station Sarsvati Nagar aad the same has been proved by B.K. Uikey (P.W.19) ia which he has stated that Bx.-P/25 was given by Abdul Gaffar while he was adiiutted in Gayatn Hospital. Therefore, iu view of fhe above dyiug declaration, we are of fhe opinion that learued trial Court has r^htly held fhat the accused/appeUaatwas author ofthe crime iu questiou. 10, Apart from that, the clofhes of the deceased were recovered by the Investigatmg OfScer duruig the uivestigation the clothes were stained with blood and the saine were seat by the poUce for serologist examination and serologist in his report Ex.P/39 has inentioned that the shirt, baaiyan and fuU. pant weic found w Kv~, '^taiSSiS^^s .•S^S'^'S^ ;?<S^s£i§^' ,{,:•*•: Wt—-•:»--->-;|...^.y l:si$iliiSS stamed wifh human blood of Group - 'A', aad as per fhe blood report of Ex.-P/10 of Gayatri Hospital the blood group of the deceased was 'A". Therefore, based on fhe serologist report aad the blood report of Gayatri Hospital it stands proved (hat the blood, wluch was found on the clofhes offhe accused, was offhe deceased. In addition to that, corresponduig to the stab injuries on the bodv of deceased the cuts were foimd in fhe shirt aiid baaiyan. of - the deceased. Therefore, above circuinstaatial evidence corroborate^ fhe dyiag declaration of the deceased. Therefoie, the involveinent of fhe accused ia stabbing Abdiil GafFar stands proved by fhe ample evidence adduced toy fhe prosecution. 11. Now conung to the question that in the facts and circuinstances of the case as to which oflFence was cominitted by fhe accused/appeUaiit; ia order to appreciate fhe ai^uments of leamed counsel for the appeUaat if we look iuto fhe dying declaration Ex.P/25 aad Ex.P/12 given by tfae deceased, in both these documents it is steted bv Abdul Gaffar that the v^ ~ • accused/appeUant and fhe deceased were workiug as driver ui Oberoy Transport Coinpany and on the fateful day i.e. 10.11.1997 at about 5.30 p.ia. ia the eveniag sonie dispute took place betroeen the two regardiag traasportation of goods, ia fsxsst of the transport coiapaay, accused Mohd. Ala-aDi Khan left fhe scene but after sometune he came wifh a kmfe and he stabbed on the chest aad stoinach. Ifwe look into the above facts there was no previous eiunity between the two and fhe act of the accused was not preplanned aad pre-concerted. Soiue dispute arose between the accused and deceased on a sniaU inatter. AU of a sudden aad in a heat of passion the accused brought knife and assaulted the deceased, thcrefore, froin fhe above evidence it camiot be inferred that the accused/appeUaat stabbed the deceased with iatention to cause such bodUy iajuiy which ia all probabiU.ly was sufficient to conmut murder of deceased Abdul GafFar. Thc act of fhe accused squarely faU under exception 4 of SeGtion 300 which says that 'culpable hoinicide is not luuider if it is conunitted wifhout preineditation ia a sudden fight, ia the heat of a passion upon a sudden quarrel aad wifhout tfae ...!gi^ offenders having taken undue advant^e or acted ia a cruel or unusual inaaner. For this view, we are fortified by the decision of tfae HonTik Apex Court in fhe matter of Maiiesh Vs. State of M.P. reported in 1996 (6) Supreme Cases 609. Tbe facts offhat case were fhat the deceased objected to the appeUant not let lus catUe daau^e fhe crop. The appeUant bowever did not pay aay heed to thc request of fhe deceased and insisted that he would graze the catfle in that field aad altercation ensued between fhe deceased and the accused. In that process fhe appeUant dealt a pharsa blow on the he&d of the deceased Knshna Kiunar as a result ofwhich he died on the spot. On these facts Hon'ble Apex Court held fhat ia these circzunstaaces, tbe accused during a sudden quarrel without any preineditation assaulted the deceased therefore the offeace wffl faU within Exception-4 to ."Section 300 of the I.P.C. therefore fhc accused was held guilty under Section 304 Part I ofthe I.P.C. In another case ofState of Rajastliaa Vs. Satyanarayaa reported in 1998 (1) Snptesae 433 HonTsle Apex Court took the similar view. The fact of that case was fhat accused Satyaaarayqa was neighbour of Bhima. Some quarrel took place between Bhoridevi, wife of Bhima and the accused and there was exchaage of words between her aad accused Satyaaarayan. In fhat process the accused assaulted Bhoridevi with aa iron pipe. He also iajured Ram Gopal and then went back to hls house. By that tune Kesar Lal (deceased), brother of Bhima, went near the house of accused and sterted questioning the accused as to why he was quarreUing Uke that in the inorning. Thereupon fhe accused came out of his house wifh a laufe and infUcted a blow on the abdoinen of Kesar Lal as a result ofwhich his nitestines came out and he died. The accused i-aa away firoin that place. On fhese facts, the Hon'ble Apex Court Iield that the respondent had not auned the blow on any vital part of Ram Gopal or Kesar Lal. The blow was auned at Ram Gopal but as he inoved aside, it landed on the stomach of Kesar Lal, Therefore, the Court held that the appeUaat should have been convicted xinder Section 304 Part-I of the I.P.C. aad not under Section 302. Smularly in the case of Shanmugam alias Kulaadatvelu Vs. State of TarnU Wadu, reported m 2003 1. »I ^»i,(inBi*;T- Si.l";^;°i:;;35g9! S.'.^WWSs^ • •k'l'-f'h .--g'H' ^-:i,';.^h-' ^";: Cr.L-J. 418 the Hon'ble Apex Court held fhat the genesis ofthe iacident as brought out by the prosecution is traceable to a petty quarrel wtuch would have been sparked off by the adxnoiution given by the deceased for his alleged misbehavior in whisfling. AU of a sudden, be entered his house, picked up fhe weapon and attacked aad iaflicted injuries on fhe deceased, The facts of that case were that on 17.11.1989 fhe deceased went to the land close to his fields to fetch water flx>in the bore weU. When he found his elder brofher i,e. the accused whistUng at fhat place, he questioned TiiTn as to why he was whistlmg at a place fi-equented by ladies. The accused haviag got enraged at fhis, ran towards his hut; the deceased foUowed Tiim aud queried as to why he was runiung. Witfain a few minutes, he came out of his hut wifh a sphere, hiding himself alongside the adjoimng com- field and pounced on the deccased aad stebbed liim on his abdomen and chest. On these facts fhe HonTile Apex Court held fhat the offence against the accused was niade out uader section 304-1 oftheI.P.C. / 12. Therefore, in view ofthe above facts ofthe present casc, we are of fhe opiaion that the offence committed by tfae accused does not travel bevond section 304-Pt.I ofthe I.P.C.. 13. In the result, the appeal of the accused/appeUant is partly aUowed. White settiag aside the conviction and sentence under section 302 of the I.P.C., instead thereof the appellant is convicted under scction 304-1 of the I.P.C. and sentenced to undergo rigorous impnsorunent of 7 years aad to pay a fine of Rs. 1000/-, in default of payment of fine amount to further undergo 5 monfhs r^orous imprisoiunent. The period for which the accused/appellant remauied in fhe police custody and judicial custody durmg iiivestigation and trial, is enttfled for fhe set off agauist tbe seutence awarded to him. Sd/- ChiefJustice r~ Sd/- L.G.Bhadoo Judge 1 ".'hakur