Sharafat And Anr. vs State Of U.P.
2021 Latest Caselaw 1155 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

					                    	                      	
 
A.F.R.
 
Court No. - 49
 

 
Case :- CRIMINAL APPEAL No. - 1237 of 2013
 

 
Appellant :- Sharafat And Anr.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- ,Faraz Kazmi,Noor Mohammad
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Gautam Chowdhary,J.

1. Heard Shri Noor Mohammad, learned counsel for the appellants and learned AGA for the State.

2. This appeal has arisen from the judgement and order dated 22.02.2013 passed by learned Additional Sessions Judge, Saharanpur in S.T. No.2 of 2012, State of U.P. v. Sharafat and another (Crime No.308/11) under Section 304 I.P.C., Police Station Mandi, District Saharanpur and S.T. No.1 of 2012, State v. Sharafat (Crime No.309 of 2011) under Section 25/4 Arms Act, Police Station Mandi, District Saharanpur. The learned Sessions Judge convicted both the accused for life imprisonment under Section 302 read with section 34 of Indian Penal Code with fine of Rs.10,000/- and six months rigorous imprisonment under Section 25/4 of the Arms Act.

3. The factual scenario as it unfurls from the record and the F.I.R are that the accused in unison caused death of the deceased on 26.7.2011 at 3.45 p.m. when Bano and Khursheed had lodged the F.I.R. convening to the Police that her sister Riyashat who was wife of one Sharafat son of Saif Ali residing in Siraj Colony, Police Station Mandi was married before 12 years with Sharafat.

4. It is submitted by Shri Noor Mohammad that the prosecution started against both the accused who are brothers of the deceased for commission of offence under Section 304 of Indian Penal Code and the charge sheet was laid against them for commission of offence under Section 304 read with section 34 of Indian Penal code. The accused were committed to the court of session as the case was triable exclusively by the court of sessions.

5. It is admitted position of fact that both the accused are in jail since 26.7.2011 and might have been in jail even during the period of investigation before they were enlarged on bail.

6. The deceased girl had eloped with one another person. Sharafat-appellant is the brother and other is the husband. Brother is the accused appellant before us. Brother was trying to explain to deceased, Rasheed not to elope, she had a loving husband but she was bent on doing so in hit of the moment both the brothers caused death of their sister.

7. The prosecution examined several witnesses so as to bring home the charge framed against the accused as enumerated:

1.

Deposition of Bano

14.3.12

PW1

2.

Deposition of Khursheed

14.3.12

PW2

3.

Deposition of Gulista

19.3.12

PW3

4.

Deposition of Naseem

20.4.12

PW4

5.

Deposition of Dr. Manoj Kumar Chaturvedi

30.4.12

PW5

6.

Deposition of Veer Singh

1.6.12

PW6

7.

Deposition of Dal Chand

5.6.12

PW7

8.

Deposition of Subhash Chand

6.6.12

PW8

8. In support of ocular version following documents were filed:

First Information Report

26.7.11 & 26.7.11

Ex.Ka.17 & Ex. Ka.21

Written Report

26.7.11

Ex.Ka.1

Recovery Memo of blood stained, knife, plain earth and cloth

26.7.11

Ex. Ka.3, 8 and 12

Postmortem Report

27.7.11

Ex. Ka.4

Site Plan with Index

26.7.11 and 28.7.11

Ex.Ka.9, 13 and 19

9. Learned counsel for the appellant has contended that if this Court feels that the case is made out against the accused and they are not to be accorded benefit of doubt, he presses into service the provisions of Section 304 of I.P.C. According to learned counsel, the learned Judge could not have framed fresh charge after some of the witnesses had turned hostile. According to the learned Advocate, on the evidence of all the hostile witnesses and Sharafat has been sentenced to six months rigorous imprisonment for commission of the offence under Section 25/4 of the Arms Act (the said period is already over) has convicted the accused under Section 302 I.P.C. which could not have been done.

10. The following judgments of the Supreme Court are cited by the learned counsel so as to contend that offence under Section 302 is not made out would solely applying in the facts of this case:

(i) Suresh @ Kala v. State NCT of Delhi, Criminal Appeal No.1284 of 2019; decided on 27.8.2019.

(ii) Nandlal v. State of Maharashtra, (2019) 5 SCC 224;

(iii) Surain Singh v. State of Punjab, (2017) 5 SCC 796;

(iv) Deepak v. State of Uttar Pradesh, (2018) 8 SCC 228;

(v) Budhi Singh v. State of Himachal Pradesh, (2012) 13 SCC 663;

(vi) Atul Thakur v. State of Himachal Pradesh and others, (2018) 2 SCC 496.

11. Learned counsel for the State has taken us through the record and has contended that the vital part of the body was attacked by the appellant No.1 may be the deceased was sister but he was having knowledge and his intention was also there, otherwise he would not have inflicted blow on the vital part of the body by the instrument which was recovered as his behest.

12. We have not discussed the evidence of each witness in detail as most of them have turned hostile being family members. It was a moral conviction by the learned Session Judge, the informant Bano who is the wife of Khursheed has also not supported the prosecution witness who is the sister of the deceased. The incident occurred about eight months from the date of she given her deposition on 14.3.2014 nothing much turns on her turning hostile she claims herself to be a illiterate lady.

13. As far as PW-2 is concerned who is resident of the said place and knows the accused he has deposed that deceased Rasheed eloped with one Firoz son of Akbar and the brothers were annoyed and he did not see the incidence. PW-3, Gulista has also turned hostile and not supported the prosecution. Unfortunately, PW-4, Naseem has also turned hostile. The evidence of PW-5, Dr. Manoj Kumar Chaturvedi as in his postmortem report which we have narrated in the beginning and we do not wish to repeat the same.

14. The police authorities who were thereafter examined as it is ocular version stated that he has taken the statement of the witnesses thereafter the 313 statements are also recorded.

15. As such we are convinced that the evidence was very scanty and oral testimony on the record of the trial Judge was not so on which conviction could be returned leave apart under Section 302 I.P.C., but it appears that the learned Judge has convicted the accused on the basis of his own ideology and on the basis of the hostile witnesses PW-1, PW-3 and that finding of knife at the behest of the accused.

16. This is a case of no evidence, however, the accused are in jail since more than ten years. The learned Judge had relied on which could not have been made on the basis for conviction in fact the conviction of the accused should not have been recorded, but as the learned counsel has only for contending that it is not a case under Section 302 but case for lesser sentence we are constrained to decide.

17. This takes us to the issue of whether the offence would be punishable under Section 299 or Section 304 I.P.C.

18. Considering the evidence of these witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellants and admission on part of accused. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under:

"299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

19. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.

INTENTION

(a) with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to

cause death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to

cause the death of the person to whom the harm is caused;

KNOWLEDGE

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death.

(4) with the knowledge that the act is so immediately dangerous

that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

20. It is very clear from the F.I.R. though unsupported by the prosecution and other witnesses of facts that there was a heated discussion and during the quarrel one of the accused had tried to see that the deceased remaining in the four corners of the home or go back to her matrimonial home as she wanted to elope with a person though she was a married lady having four children.

21. The accused are the brothers of deceased, they are in jail for a period of more than 10 years. It is a matter of fact as it is transpires from the F.I.R. and as we have held that it is homicidal death but not murder. We hold the accused guilty for Section 304 of I.P.C. read with Section 34 but not with 302 read with Section 34 I.P.C. The punishment is reduced to seven years incarceration, the fine of Rs.10,000/- is reduced but Rs.1,000/- as the medical evidence as well as the evidence of hostile witnesses permit us to substitute, we are of the confirmed opinion that the punishment of seven years with fine reduced to Rs.1,000/- read with Section 34 if the fine is not paid, the sentence would be default sentence of three months.

22. While going through the record, we are convinced that the accused brothers had no intention of doing away of their sister but in hit of the moment the incident has occurred. Learned Judge instead of writing philosophy, if he did not think it was a case of acquittal but could have punished under Section 304 part I or II of I.P.C. which was attracted in the facts of this case.

23. Record and proceedings be sent back to the trial court.

24. This court is thankful to Shri Noor Mohmmad and learned AGA for ably assisting this Court in getting this old matter disposed off.

Order Date :- 20.1.2021

A.N. Mishra