j 'l "ssia. B """t 1 •-:::^r,\ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justjce Radhe Shvam Sharma Criminal Appeal No.186 of 1995 Jakir Hussain and others versus State of Madhya Pradesh (now State of Chhattisgarh) IN^S^.^^ ;s/«^^.^^ JUDGMENT FOR CONSIDERATION Sd/- Radhe Shyam Sharma Judge Hon'ble^Shri Sunil Kumar Sinha, J.: 'y^yrC^. y Sd/- Sunil Kumar Sinha Judge Postfor ^0-08-2011 Sd/- JUUOC-— ^f -08-2011 :'<:^ r?\ HIGH COURT QFCHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil KumarSinha and Hon'ble Shri Justice^adhe Shyam Sharma Criminal Appeal No.186 of 1995 Appellants 1. 2. 3. versus Respondent Jakir Hussain, aged 23 years; Ahmad Hussain, aged 26 years; Nasir Hussain, aged 21 years; All sons of Mohammed Hussain and residents of Bairan Bazar, Raipur, Tahsil and District Raipur, M.P. (now Chhattisgarh) State of Madhya Pradesh (now State of Chhattisgarh) Present: Smt. Renu Kochar, counsel for the appellants. Shri Ashish Shukla, Government Advocate and Shri Ravindra Agrawal, Panel Lawyerforthe State/respondent. Criminal Aepeal under Section 374(2) of the Code of Criminal Procedure JUDGIVIENT (Delivered on S cft. August, 2011) Per Radhe Shvam Sharma, J.: This appeal is directed against the judgment dated 30-1-1995 passed by 2 Additional Session Judge, Raipur in Session Trial No.65/1991. By the impugned judgment, appellant No.3 Nasir Hussain has been convicted under Section 302 of the Indian Penal Code and Section 25 of the Arms Act and sentenced to undergo imprisonment for life and rigorous imprisonment for one year with further direction to run the sentencesconcurrently and appellant No.1 Jakir Hussain and No.2 Ahmad Hussain have been convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. Case of the prosecution, in brief, is as under: On 23-11-1990, at about 9:30 A.M., Mohammed Salauddin (PW-4), who was neighbourer of the appellants, was getting some work done through some labourers for opening a new door towards the house of the appellants. When he was getting the wall of his house broken for fixing a door, it was objected by the appellants and co-accused Mohammed Hussain (acquitted). On this, a quarrel took place among them and there was severe exchange of abuse. Maternal uncle of Mohammed Salauddin (PW-4), namely, Syed Abid Ali (deceased), came there and tried to pacify the dispute. Appellant No.3 Nasir Hussain asked her sister Nazo Begum to bring a knife. She brought a knife from the house and gave it to appellant No.3 Nasir Hussain. Thereafter, appellant No.1 Jakir Hussain, appellant No.2 Ahmad Hussain and the acquitted accused Mohammed Hussain caught hold the deceased and appellant No.3 Nasir Hussain gave a knife blow on the neck of the deceased. The deceased was immediately taken to D.K.S. Hospital, Raipur, where he succumbed to the injury. Quresa Begum (PW-5) lodged First Information Report (Ex.P-5) and Merg Intimation (Ex.P-13) was also recorded. The investigating officer reached D.K.S. Hospital, Raipur, gave notice to Panchas and prepared inquest (Ex.P-10) on the body of the deceased. Dead body of the deceased was sent for post mortem. Post mortem examination was conducted by Dr. D.C.Jain (PW-1), who gave his report Ex.P-1, in which, he found a punctured wound of 3Vz inches on the middle of the neck of the deceased. The .,^-^f^^ 1 y!i^S^ 1 f''^.r- doctor opined that the cause of death was syncope due to massive bleeding and it was homicidal in nature. In further investigation, memorandum statement (Ex.P-8) of appellant No.3 Nasir Hussain was recorded under Section 27 of the Evidence Act on 30-11-1990 and at his instance, a knife was seized vide Ex. P-9. Blood stained soil and plain soil were also seized from the place of occurrence. After completion of the investigation, a charge-sheet was filed against the appellants and the co-accused Mohammed Hussain in the Court of Chief Judicial Magistrate, Raipur, who, in turn, committed the case to the Court of Session, from where it was received on transfer by the 2 Additional Session Judge, Raipur, who conducted the trial and convicted and sentenced the appellants as mentioned above. The learned Additional Session Judge acquitted the accused Mohammed Hussain of the charges framed against him. 3. Smt. Renu Kochar, learned counsel for the appellants argued that the evidence of Mohammed Salauddin (PW-4), Quresa Begum (PW-5), Afroz Jahan (PW-6) and Mohammed Qutubuddin (PW-7) are not retiable. They all are interested witnesses. There are many contradictions and omissions in the evidence of these witnesses. Quresa Begum (PW-5), who lodged the First Information Report (Ex.P-5), did not mention in the First Information Report about appellant No.1 and 2 regarding sharing of common intention by them. There is no clinching and reliable evidence against the appellants. Therefore, the conviction of appellant No.3 under ^^ Section 302 ofthe Indian Penal Code and appellant No.1 and 2 with the aid of Section 34 of the Indian Penal Code are not sustainable. 4. On the contrary, Shri Ashish Shukla, learned Government Advocate and Shri Ravindra Agrawal, learned Panel Lawyer for the State/respondent, suppori:ing the impugned judgment, submitted that the prosecution has adduced sufficient evidence against the appellants. The learned Additional Session Judge convicted appellant No.1 and 2 with the aid of Section 34 of the Indian Penal Code, which is justified. They further submitted that the conviction and sentence awarded to the appellants does not warrant any interference by this Court. They placed reliance on Major Singh vs. State of Punjab, (2002) 10 SCC 60. 5. We have heard learned counsel for the parties at length and have perused the impugned judgment as also record of the session case. The conviction of appellant No.3 Nasir Hussain under Section 302 of the Indian Penal Code and the conviction of appellant No.1 and 2 under Section 302 read with Section 34 of the Indian Penal Code are based on the testimonies of Mohammed Salauddin (PW- 4), Quresa Begum (PW-5), Afroz Jahan (PW-6) and Mohammed Qutubuddin (PW-7), who are eye-witnesses of the occurrence and whose evidence are duly corroborated by the medical evidence. 6. In Dharnidhar vs. State of Uttar Pradesh and others, (2010) 7 SCC 759, the Hon'ble Supreme Court held as follows: "12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that /<-, (^) they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199, this Couri: had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213,paras23-24) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim. 24. From a perusal of the record, we find that the evidence of PWs 1 to 4 is clear and categorical in reference to the frequent quarrels between the deceased and the appellant. They have clearly and consistently supported the prosecution version with regard to the beating and the ill-treatment meted out to the deceased by the appellant on several occasions which compelled the deceased to leave the appellant's house and take shelter in her parental house with an intention to live there permanently. PWs 1 to 4 have unequivocally stated that the deceased feared -^>. threat to her life from the appellant. The aforesaid version narrated by the prosecution witnesses viz. PWs 1 to 4 also finds corroboration from the facts stated in the complaint." 13. Similar view was taken by this Court in Ram Bharoseyv. State of U.P., (2010) 1 SCC 722, where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same." 7. Mohammed Salauddin (PW-4) deposed that he was getting the wall broken through labourers for opening a new door towards Hussain's house. On this, the appellants started abusing him. Hearing the abuse, Syed Abid Ali (the deceased), Quresa Begum (PW-5) (mother of the deceased) and one Munnawar Sultana intervened. The deceased asked the appellants not to abuse and said that Mohammed Salauddin (PW-4) was breaking wall of his own house. The appellants caught hold the deceased. Appellant No.3 Nasir Hussain asked his sister to bring a knife. She brought a knife. Thereafter, appellant No.3 Nasir Hussain gave a knife blow on the neck of the deceased. Blood started oozing out. &-»-C-!E3>. I '^^^'^^, ^ ''SSiSiSisl !a ^. a s y/ wl-'j '-tti^-' VS!^ 8. Quresa Begum (PW-5) deposed that when Mohammed Salauddin (PW-4) was breaking the wall for opening a new door, the appellants started quarreling with him. Hearing noise, she and Abid (the deceased) came out. The deceased asked the appellants not to abuse. The appellants caught hold the deceased and appellant No.3 Nasir Hussain asked his sister Nazo to bring a knife. She brought a knife and gave it to appellant No.3 Nasir Hussain. Appellant No.3 Nasir Hussain gave a knife blow on the neck of the deceased. Blood started oozing out. Thereafter, the appellants fled from there. The deceased was taken to the hospital. 9. Mohammed Qutubuddin (PW-7) deposed that the appellants had asked Mohammed Salauddin (PW-4) not to break the wall. At that time, Syed Abid (the deceased) had also reached there. The deceased asked the appellants not to abuse and tried to pacify the dispute. Appellant No.1 Jakir Hussain and No.2 Ahmad Hussain caught hold the deceased and appellant No.3 Nasir Hussain asked his sister Nazo to bring a knife. Nazo brought a knife and gave it to appellant No.3 Nasir Hussain. Appellant No.3 Nasir Hussain gave a knife blow on the neck of the deceased. Blood started oozing out. Afroz Jahan (PW-6) also deposed in similar fashion. 10. Dr. D.C.Jain (PW-1) deposed that he found a punctured wound of 3% inches on the middle of the neck of the deceased. He opined that the cause of death was syncope due to massive bleeding and it was homicidal in nature. "•s '/^A \ 11. We have perused the evidence of Mohammed Salauddin (PW-4), Quresa Begum (PW-5), Afroz Jahan (PW-6) and Mohammed Qutubuddin (PW-7) with utmost circumspection. These witnesses have specifically deposed that appellant No.3 Nasir Hussain assaulted the deceased with the knife and their evidence are duly corroborated by the medical evidence also. From the medical evidence, we find that the cause of death was syncope due to massive bleeding and it was homicidal in nature. Therefore, we do not find any infirmity in the finding recorded by the Additional Session Judge against appellant No.3 Nasir Hussain that it was he who caused injury on the neck of the deceased with the knife and the deceased died on account ofthe injury caused by him. 12. Now, we shall examine the conviction of appellant No.1 Jakir Hussain and No.2 Ahmad Hussain with the aid of Section 34 of the Indian Penal Code. 13. Implication of Section 34 of the Indian Penal Code can arise only when two conditions stand fulfilled, i.e., the mental element or the intention to commit the criminal act conjointly with another or others and the other is the actual participation in one form or the other in the commission of the crime. The common intention postulates the existence of a pre-arranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime. Section 34 of the r Indian Penal Code does not create any distinct offence but it lays down the principle of constructive liability. Section 34 of the Indian Penal Code stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be pre-arranged and pre-meditated concert between the accused persons for doing the act actually done though there might not be long interval between the act and the pre-meditation and though the plan may be formed suddenly. The prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34 of the Indian Penal Code, be it pre- arranged or on the spur of the moment, but it must necessarily be before the commission of the crime. To constitute common intention, it is necessary that intention of each one of the accused be known to the rest and shared by them. 14. In case in hand, the First Information Report (Ex. P-5) was lodged by Quresa Begum (PW-5), who is an eye-witness of the occurrence. In the First Information Report (Ex.P-5), it is mentioned that Syed Abid (the deceased) intervened. Appellant No.3 Nasir Hussain got annoyed and gave knife blow on the neck of the deceased. Appellant No.1 Jakir Hussain and No.2 Ahmad Hussain had caught hold. Quresa Begum (PW-5), after sending the deceased to D.K. Hospital, had gone to lodge the First Information Report (Ex. P-5). y^^ g • ••^.sgs-s-ss ;, "^^^' ->~'- 8&- 10 15. There appears to be no mention in the First Information Report (Ex.P-5) that firstly appellant No.1 Jakir Hussain and No.2 Ahmad Hussain caught the deceased and thereafter knife blow was given by appellant No.3 Nasir Hussain to the deceased. It appears that when appellant No.3 Nasir Hussain gave knife blow to the deceased, the two other appellants caught hold of the deceased to intervene. 16. It is true that a First Information Report is not supposed to be an encyclopaedia and should contain all details of the prosecution case, but it is essential that a First Information Report should contain basic prosecution case. In case in hand, there is no specific allegation in the First Information Report (Ex. P-5) against appellant No.1 Jakir Hussain and No.2 Ahmad Hussain about catching ofthe deceased by them to facilitate appellant No.3 Nasir Hussain to give knife blow to the deceased, which is fatal to the case of the prosecution. 17. In Ramashish Yadav and others vs. State of Bihar, AIR 1999 SC 3830, the Supreme Court held that "The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the ^ 11 attack. It can also be developed at the spur of the moment but there must be pre-arrangement or premeditated concert. This being the requirement of iaw for applicability of Section 34 of the Indian Penal Code, from the mere fact that accused "RP" and "RY" came and caught hold of deceased, whereafter 'SY' and 'SL' came with gandasa (chopper) in their hands and gave blows by means of gandasa (chopper), it cannot be said that the accused "RP" and "RY" shared the common intention with accused "SY" and "SL". Consequently, accused "RP" and "RY" cannot be held guilty of the charge under Section 302/34, IPC but accused "SY" and "SL" did commit the offence under Section 302/34, having assaulted deceased on his head by means of gandasa (chopper) on account ofwhich hedied." 18. In case in hand, it appears that the houses of the appellants and the deceased were adjacent to each other and Mohammed Salauddin (PW-4) was getting the wall of his house broken through labourers for opening a new door towards the house of the appellants and members of family of both the parties had gathered there, therefore, in these circumstances, presence ofappellant No.1 and 2 at the place of occurrence was natural and mere their presence and holding the deceased in the manner stated in the First Information Report (Ex. P-5) is not sufficient to draw an inference about sharing of common intention by them. 19. As stated above, there was absolutely no evidence of existence of pre-arranged plan or a prior concert. There was no ^..\ [ ( A 12 evidence at all of prior meeting of minds and in facts and circumstances of the case, the conduct of appellant No.1 Jakir Hussain and No.2 Ahmad Hussain would show that they never shared a common intention with appellant No.3 Nasir Hussain for inflicting knife injury to the deceased by appellant No.3 Nasir Hussain. Therefore, the conviction of appellant No.1 Jakir Hussain and No.2 Ahmad Hussain with the aid of Section 34 of the Indian Penal Code cannot be sustained. 20. Smt. Renu Kochar, learned counsel for the appellants argued that the deceased sustained a solitary knife blow on the neck. Prior to the incident, there was severe exchange of abuse between appellant No.3 Nasir Hussain and the deceased. Therefore, the incident took place in sudden quarrel and act of appellant No.3 Nasir Hussain would not be punishable under Section 302 of the Indian Penal Code. Instead, he would be liable for punishment under Section 304 ofthe Indian Penal Code. 21. Now, we shall examine the matter in light of the provisions of Section 302 vis-a-vis Section 304 ofthe Indian Penal Code. 22. Section 304 of the Indian Penal Code provides the punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300 of the Indian Penal Code, and cases in which the crime is culpable homicide not amounting to murder, that means, where / 13 there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 of the Indian Penal Code applies where there is intention, whereas the second part applies where there is knowledge but the important thing is that before holding the accused guilty under any part of Section 304 of the Indian Penal Code, it has to be observed that a death must have been caused by him under any of the circumstances mentioned in the five Exceptions to Section 300 of the Indian Penal Code, 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. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304 of the Indian Penal Code, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a pari:icular result may happen by doing a thing. 23. In Jagtar Singh vs. State of Punjab, (1983) 2 SCC 342, the Hon'ble Supreme Court held as follows: "8. The next question is what offence the appellant is shown to have committed? In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was of a trivial I "T y ^ ^F^' ^BiSaSi^ 14 nature and even in such a trivial quarre! the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. Therefore, the appellant is shown to have committed an offence under Section 304 Part II of the IPC and a sentence of imprisonment for five years will meet the ends ofjustice." r^ •\ 24. In Satish Narayan Sawant vs. State of Goa, (2009) 17 SCC 724, the Hon'ble Supreme Court held as follows: "40. That being the well-settled legal position, when we test the factual background of the present case on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident. The place of occurrence is a residence inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon. Initially the appellant-accused also did not have any weapon with him but during the course of the incident he went inside and got a knife with the help of which he stabbed the deceased. PW 7 in his cross-examination has categorically stated that death due to stab injury was in consequence of Injury 1 and all other injuries were superficial in nature. So, it was only Injury 1 which was fatal in nature. Factually therefore, there was only one main injury caused due to stabbing and that also was given on the back side of the deceased and therefore, it cannot be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness." ,^°^ .^ 15 25. It appears that when Mohammed Salauddin (PW-4) was getting the wall of his house broken through labourers for opening a new door towards Hussain's house, appellant No.3 Nasir Hussain objected it. At that time, the deceased and some other persons reached the place of occurrence and thereafter some quarrel began and on a spur of the moment appellant No.3 Nasir Hussain gave a solitary knife blow to the deceased which caused the above injury, which was not intended. Therefore, on the above principles, we are of the opinion that the conviction of appellant No.3 Nasir Hussain under Section 302 of the Indian Penal Code cannot be sustained and in the above facts and circumstances of the case, in our considered opinion, appellant No.3 Nasir Hussain would be liable for punishment under Section 304 Part II ofthe Indian Penal Code. 26. For the foregoing reasons, the appeal is partly allowed. The conviction and sentence awarded to appellant No.1 Jakir Hussain and No.2 Ahmad Hussain under Section 302 read with Section 34 of the Indian Penal Code is set aside. They are acquitted of the charges framed against