Chattisgarh High Court
Kalam Ansari vs State Of Chhattisgarh on 31 March, 2022
Cr.A.No.1188/2015
Page 1 of 10
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1188 of 2015
{Arising out of judgment dated 23-7-2015 in Special Sessions Trial
No.16/2014 of the Special Judge (SC/ST Prevention of Atrocities Act),
Surajpur}
Kalam Ansari, S/o Shri Aminuddin, Aged about 26 years, Occupation Driver,
R/o Village Dabgadi, Barbaspur, Police Station Pratappur, Distt. Surajpur
(C.G.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, Through the Station In-charge, Police Station Aadim
Jati Kalyan, Surajpur, Distt. Surajpur (C.G.)
---- Respondent
------------------------------------------------------------------------------------------------------
For Appellant: Mr. Rishi Rahul Soni, Advocate.
For Respondent/State: Mr. Sunil Otwani, Additional Advocate General and
Mr. Sudeep Verma, Deputy Government Advocate.
------------------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Smt. Rajani Dubey, JJ.
Judgment On Board
(31/03/2022)
Sanjay K. Agrawal, J.
1. Invoking jurisdiction of this Court under Section 374(2) of the CrPC, the
appellant herein has called in question his conviction recorded under
Sections 302 & 307 of the IPC and further called in question the
sentences awarded to him i.e. imprisonment for life & fine of ₹ 1,000/-
and rigorous imprisonment for seven years & fine of ₹ 500/-, with
default stipulation, respectively, by the Special Judge (SC/ST
Prevention of Atrocities Act), Surajpur, in Special Sessions Trial
No.16/2014.
2. Case of the prosecution, in brief, is that on 24-2-2014 at about 9.30
Cr.A.No.1188/2015
a.m., one Dhanushdhari (PW-1) - injured witness, was coming along
with Ayodhya (deceased) (pillion rider) in his motorcycle bearing
registration No.CG-15/CC-1497 from Gopalpur and proceeding towards
Barbaspur, Police Station Pratappur, Distt. Surajpur and when they
reached near Dabgadi Para, the accused / appellant who was coming
in the pickup vehicle bearing registration No.UP-64/H-4048 by driving
the same from opposite side (from Barbaspur towards Rajpur road)
having noticed the presence of Dhanushdhari (PW-1) and identified
him to be Dhanushdhari, suddenly turned the pickup vehicle in order to
dash him with intention to cause his death {death of Dhanushdhari
(PW-1)}. It is the further case of the prosecution that in order to save
himself, Dhanushdhari (PW-1) moved his motorcycle down to road to
the extent of 20 meters and despite that, the accused / appellant with
intention to kill him, chased and dashed the motorcycle driven by
Dhanushdhari (PW-1) over which Ayodhya was sitting as pillion rider,
by his pickup vehicle and resultantly, Dhanushdhari (PW-1) & Ayodhya
both suffered grievous injuries. The appellant herein immediately
absconded from the spot and local persons of the locality who heard
the noise of incident, reached to the spot and rescued Dhanushdhari
(PW-1) & Ayodhya and escorted them to the Government Hospital
where Ayodhya succumbed to death on account of the injuries
sustained by him and Dhanushdhari (PW-1) suffered grievous injuries
which were sufficient to cause death. Thereafter, the jurisdictional
police took cognizance of the matter and registered first information
report (FIR) on 24-2-2014 bearing Crime No.49/2014 in Police Station
Pratappur, Distt. Surajpur for offence punishable under Section 307 of
the IPC against the appellant herein and arrested the appellant on 26-
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2-2014 vide Ex.P-18. During the course of investigation, the police
also seized documents relating to general meeting and proceedings of
Gram Sabha of Gram Panchayat Barbaspur dated 25-1-2014 vide
seizure memo Ex.P-3 and general meeting as well as the proceedings
have been described as Articles A-3 & A-2, respectively. Spot map
Ex.P-13 was prepared by the concerned Patwari Ajit Pratul Ekka (PW-
9). Caste certificate of Dhanushdhari (PW-1) was seized vide Ex.P-2
and described as Article A-1. Dr. A.K. Vishwakarma (PW-3) examined
the dead body of deceased Ayodhya and prepared postmortem report
Ex.P-9. He also examined injured Dhanushdhari (PW-1) and medical
report of his injuries was prepared vide Ex.P-8. Statements of
witnesses were recorded under Section 161 of the CrPC..
3. After completion of investigation, charge-sheet was filed against the
appellant for offence under Sections 302, 307 & 427 of the IPC and
Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (for short, 'the Act of 1989'), before
the jurisdictional criminal court which was committed to the Court of
Sessions for hearing and disposal in accordance with law.
4. The trial Court has framed charges under Sections 302, 307 & 427 of
the IPC and Section 3(2)(v) of the Act of 1989 against the appellant
and proceeded on trial. The accused / appellant abjured guilt and
entered into trial. The prosecution in order to bring home the offence
examined as many as 11 witnesses and exhibited 23 documents
Exhibits P-1 to P-23 and also demonstrated three articles. The
appellant examined himself as defence witness (DW-1) apart from his
statement under Section 313 of the CrPC in which he abjured guilt and
pleaded innocence.
Cr.A.No.1188/2015
5. The trial Court after completion of trial and after appreciating oral and
documentary evidence, acquitted the appellant herein under Sections
427 of the IPC & 3(2)(v) of the Act of 1989, but proceeded to convict
him under Sections 302 & 307 of the IPC and sentenced him in the
manner as mentioned in the opening paragraph of this judgment
against which this appeal under Section 374(2) of the CrPC has been
preferred.
6. Mr. Rishi Rahul Soni, learned counsel appearing for the appellant,
would submit that the appellant has been falsely implicated and the
prosecution has failed to prove the offence beyond reasonable doubt,
therefore, he is entitled for acquittal. Alternatively, learned counsel
would further submit that there was no dispute pending between the
appellant herein and deceased Ayodhya, the appellant has no intention
to cause the death of Ayodhya and there was neither any intention
established nor any intention to kill Ayodhya, therefore, the case would
fall within the meaning of Section 299 of the IPC and at the best, with
the aid of Section 301 of the IPC, the appellant could have been
convicted under Section 304 Part-II of the IPC. Since the appellant is
in jail from 26-2-2014 i.e. since 8 years and he had already suffered the
substantial jail sentence, he be sentenced to the period already
undergone by him and the appeal be allowed in part.
7. Per contra, Mr. Sunil Otwani, learned Additional Advocate General,
ably assisted by Mr. Sudeep Verma, learned Deputy Government
Advocate, appearing for the State / respondent, would submit that
since the appellant and others have encroached upon the Government
land / Panchayat land, that is the reason that the appellant had
revengeful attitude with the injured {Dhanushdhari (PW-1)} and he
Cr.A.No.1188/2015
wanted to kill him which is also apparent from the FIR Ex.P-23 lodged
against the appellant and eight other persons and a resolution was
passed by the Panchayat on 25-1-2014 to the effect that a school be
constructed on the land in question. As such, the appellant intended to
kill Dhanushdhari (PW-1) and the manner in which the appellant has
dashed the motorcycle driven by Dhanushdhari (PW-1) goes to
establish that he had intention to kill Dhanushdhari (PW-1). Learned
Additional Advocate General would further submit that with the aid of
Section 301 of the IPC, the appellant has rightly been punished under
Section 302 of the IPC and the appeal deserves to be dismissed.
8. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the record
with utmost circumspection.
9. The trial Court has categorically recorded a finding that since the
appellant had land dispute with Dhanushdhari (PW-1) and others for
which Dhanushdhari (PW-1) has lodged FIR against the appellant
herein and eight others for offences punishable under Sections 147,
294, 506 Part-II of the IPC & Section 3(1)(x) of the Act of 1989, and on
account of that on the fateful day, the appellant while driving the pickup
van noticing Dhanushdhari (PW-1) on motorcycle and also identifying
him, suddenly turned the said vehicle and dashed Dhanushdhari (PW-
1)'s motorcycle with intention to cause his death, and in order to save
himself when Dhanushdhari (PW-1) moved vehicle down the road, then
also, the appellant chased him and dashed the motorcycle driven by
him going 20 meters down the road because of which deceased
Ayodhya sitting as pillion rider on the motorcycle and Dhanushdhari
(PW-1), both, suffered grievous injuries. This fact has been found
Cr.A.No.1188/2015
established by the trial Court by recording a detailed finding. The trial
Court has further held that the appellant is guilty of offence under
Section 302 of the IPC for causing the death of Ayodhya and also held
the appellant guilty of offence under Section 307 of the IPC for causing
grievous injuries which were sufficient to cause death of Dhanushdhari
(PW-1). Conviction of the appellant for offence under Section 307 of
the IPC recorded by the trial Court appears to be justified as it has
clearly been established by the prosecution that on account of pending
dispute between the appellant and Dhanushdhari (PW-1), the appellant
had caused grievous injuries to Dhanushdhari (PW-1) which were
sufficient to cause death. Injury report of Dhanushdhari (PW-1) Ex.P-8
states as under: -
1. Abrasion 2 c.m. x 2 c.m. over right knee anterior aspect.
2. Laceration superficial 2 c.m. x 0.5 c.m. x 1 m.m. over left knee
anterior aspect.
10. Though the injuries said to have been inflicted to Dhanushdhari (PW-1)
are simple in nature, yet, since the intention to cause death has been
established, therefore, even though the injuries are simple in nature,
conviction of the appellant under Section 307 of the IPC has rightly
been recorded by the trial Court which we hereby affirm.
11. Now, coming to the conviction of the appellant under Section 302 of the
IPC, apparently and admittedly, there was no dispute between the
appellant herein and deceased Ayodhya, but since Ayodhya was pillion
rider with Dhanushdhari (PW-1) with whom the appellant had dispute,
the appellant did not have any intention to cause the death of Ayodhya
or he had no knowledge that by such act he is likely to cause the death
of Ayodhya. But, at this stage, it would be appropriate to notice
Cr.A.No.1188/2015
Section 301 of the IPC which states as under: -
"301. Culpable homicide by causing death of person other
than person whose death was intended.--If a person, by
doing anything which he intends or knows to be likely to
cause death, commits culpable homicide by causing the
death of any person, whose death he neither intends nor
knows himself to be likely to cause, the culpable homicide
committed by the offender is of the description of which it
would have been if he had caused the death of the person,
whose death he intended or knew himself to be likely to
cause."
12. The above stated provision lays down that culpable homicide may be
committed by causing the death of a person whom the offender neither
intended, nor knew himself to be likely, to kill. It incorporates the
doctrine of transferred malice.
13. The Supreme Court in the matter of Shankarlal Kacharabhai and others
v. The State of Gujarat 1 has held that if a man by mistake, or e.g., by
bad aim, causes injury to a person or property other than the person
and property which he intended to attack, he is guilty of a crime of the
same degree, as if he had achieved his object (it is technically called
the theory of transferred malice).
14. In the matter of Mohd. Rafiq alias Kallu v. State of Madhya Pradesh2, in
similar circumstances, the Supreme Court has altered conviction from
Section 302 to Section 304 Part-I of the IPC.
15. A three Judge Bench of the Supreme Court in the matter of Kashiram
and others v. State of M.P.3, in case of accidental injury attracting
applicability of "transferred malice" under Section 301 of the IPC,
converted the conviction from Section 302 of the IPC to Section 304
Part-II of the IPC by observing as under: -
1 AIR 1965 SC 1260
2 (2021) 10 SCC 706
3 (2002) 1 SCC 71
Cr.A.No.1188/2015
"31. ... So also his subsequent fire aimed at complainant
Sundera but which accidentally hit Jamuni Bai Dhoban
would also be punishable under Section 304 Part II IPC with
the aid of Section 301 IPC. If he had injured the
complainant Sundera, he would have been liable to be
convicted under Section 304 Part II IPC. Inspite of
complainant Sunder alias Sundera having escaped unhurt
and yet Jamuni Bai Dhoban having been injured though not
aimed at, on the doctrine of "transferred malice" as
contained in Section 301 IPC the liability of the accused
remains the same. In the FIR, the version of Sundera was
that Jamuni Bai had intervened to rescue him when she got
injured. This story was abandoned by Sundera whilst in
witness box and he maintained that though the second shot
by accused Ramesh was aimed at him it hit Jamuni Bai
instead of him. No prosecution witness states where the
gun held by accused Ramesh was aimed at. Prosecution
version coming through the three eyewitnesses that
accused Ramesh was in a standing posture, facing them,
when he fired the gun, is not supported by, rather belied by,
medical evidence. The fact remains that Jamuni Bai was
neither aimed at nor intended to be harmed by accused
Ramesh. In case of accidental injury attracting applicability
of "transferred malice" under Section 301 IPC and having
held that the act of the accused was covered by Section 304
IPC, the court should lean in favour of convicting the
accused under Part II of Section 304 if it is in doubt as to
which one of the two parts of Section 304 IPC would be
attracted. This would be consistent with the basic tenet of
extending benefit of doubt in criminal jurisprudence.
Accordingly, we hold the accused Ramesh guilty under
Section 304 Part II for causing the death of Jamuni Bai.
32. In similar circumstances this Court has held in
Yogendra Morarji v. State of Gujarat4, Dev Raj v. State of
H.P.5 and Tarachand v. State of Haryana6 the act of the
accused falling under Exception II to Section 300 IPC and
hence punishable under Section 304 IPC and not under
Section 302 IPC. In Yogendra Morarji case this Court has
also observed that this was a circumstance which could be
taken into account in mitigation of the sentence."
16. Reverting to the facts of the case in the light of the aforesaid principles
of law laid down by the Supreme Court, it is quite vivid that in the
4 AIR 1980 SC 660
5 AIR 1994 SC 523
6 AIR 1971 SC 1891
Cr.A.No.1188/2015
present case, deceased Ayodhya was neither aimed at nor intended to
be harmed by the appellant herein and Dr. A.K. Vishwakarma (PW-3)
has branded the injuries sustained by deceased Ayodhya to be
accidental. It is admitted position on record that dispute was between
the appellant herein and Dhanushdhari (PW-1) and since the deceased
was pillion rider on the motorcycle being run by Dhanushdhari (PW-1),
he suffered injuries when the appellant intended to cause injury to
Dhanushdhari (PW-1), therefore, in that case, applying the doctrine of
transferred malice as contemplated under Section 301 of the IPC, the
accused / appellant herein deserves to be convicted under Section 304
Part-II of the IPC as held by their Lordships of the Supreme Court in
Kashiram (supra), for causing the death of Ayodhya.
17. Accordingly, the appeal is partly allowed. Conviction of the appellant
under Section 302 of the IPC is set aside and he is convicted under
Section 304 Part-II of the IPC and sentenced to the period already
undergone by him. The appellant is in jail since 26-2-2014 and thereby
he had already served more than 8 years of jail sentence. However,
conviction and sentences imposed upon the appellant under Section
307 of the IPC are maintained. The appellant be released forthwith, if
not required in any other case.
18. This Court appreciates the assistance rendered by Mr. Sunil Otwani,
Additional Advocate General, and Mr. Sudeep Verma, Deputy
Government Advocate.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
Soma
Cr.A.No.1188/2015
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1188 of 2015
Kalam Ansari
Versus
State of Chhattisgarh
Head Note
Appellant's conviction under Section 302 of the IPC is modified under Section
304 Part-II of the IPC, applying the doctrine of transferred malice.
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/kkjk 302 ds rgr~ nks"kfl)h dks Hkkjrh; n.M lafgrk dh /kkjk 304 Hkkx-II esa mikarfjr
fd;k x;k gSA
