Delhi High Court

Abdul Rasheed vs State on 2 April, 2014

Author: Kailash Gambhir

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Judgment delivered on: April 02, 2014
+       CRL.A.694/1999

        ABDUL RASHEED                                     ..... Appellant
                    Through:                  Mr. Pramod Swarup, Sr. Advocate
                                              with   Mr.    Akshay      Verma,
                                              Advocate.
                                 versus

        STATE                                             ..... Respondent
                                 Through:     Ms. Richa Kapoor, Additional
                                              Public Prosecutor for the State
+       CRL.A.1/2000

        MOHD. YAMEEN                                        ..... Appellant

                                 Through:     Mr. Pramod Swarup, Sr. Advocate
                                              with   Mr.   Akshay     Verma,
                                              Advocate.
                                 versus

        STATE                                             ..... Respondent
                                 Through:     Ms. Richa Kapoor, Additional
                                              Public Prosecutor for the State
+       CRL.A.4/2000
        ABDUL HAMID                                         ..... Appellant

                                 Through:     Mr. Pramod Swarup, Sr. Advocate
                                              with   Mr.   Akshay     Verma,
                                              Advocate.
                                 versus

        STATE                                             ..... Respondent
                                 Through:     Ms. Richa Kapoor, Additional
                                              Public Prosecutor for the State


Crl.A. Nos. 694/1999, 1/2000 & 4/2000                                  Page 1 of 22
 CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA

                                        JUDGMENT

KAILASH GAMBHIR, J

1. The challenge in these appeals is to the impugned judgment

dated 24.11.1999 and the order on sentence dated 29.11.1999, passed by

the learned Additional Sessions Judge thereby convicting these appellants

for an offence punishable under Section 302/34 of Indian Penal Code,

1860 (hereinafter referred to as IPC) and sentenced them to undergo

imprisonment for life with imposition of fine of Rs.50,000/- each and in

default of payment of fine to further undergo simple imprisonment for

five years each. The appellant Mohd. Yameen was also convicted for an

offence punishable under Section 27 of the Arms Act, 1959 and

sentenced to undergo R.I. for seven years with imposition of fine of Rs.

20,000/- and in default thereof to further undergo S.I. for two years.

The case of the prosecution in brief can be summarized as under:

'That on the intervening night of 21/22nd March 1996, at about 1 a.m., all the three accused persons had gone to the house of the deceased and knocked at his door. The deceased came out of his house and all the

three accused entered into a scuffle with him. One of the accused - Yameen brought a churri from his house and stabbed at his chest while the other two were holding the deceased as alleged. Mohd. Aashkin the deceased was removed to the hospital at about 1.20 a.m. on 22.3.1996. Report was made to the police in the said regard by the constable on duty, upon which police came to the hospital where injured was declared unfit for statement and accordingly, the police had gone to the spot where the statement of the complainant Hajra Begum wife of the deceased was recorded. On the basis of this statement, Inspector A.K. Khan prepared the rukka and got the case registered. The injured expired and accordingly the case was converted from section 307/34 of IPC to Section 302/34 IPC. During the course of investigation blood found at the spot was recovered, certain cloths of the decdeased as well as of the accused Mohd. Yameen were also got recovered. Accused persons were arrested and the exhibits were got chemically analysed. After the completion of the investigation charges were framed against all the three accused persons to which they pleaded not guilty and claimed trial.'

2. To prove its case, the prosecution had examined 21 witnesses.

Statements of all the accused persons were recorded under Section 313

Cr.P.C., and in response to the incriminating evidence put to them they

denied their involvement and claimed their false implication in the case.

In reply to the last question calling upon them to state anything else in

their defence, a common response was given which is reproduced as

under:

"I have been falsely and wrongly implicated in this case. In fact Aashkin was in habit of playing gambling and drinking. On the night of the incident, he was playing gambling with some unsocial elements and there was a fight between them and on account of that he sustained injuries. I along with Abdul Rashid and other people of the locality removed the deceased to the hospital-JPN. I remained there along with Abdul Rashid the whole night, but later on we were falsely implicated in this case, at the instance of the complainant since she used to keep enmity with us as there used to be quarrel amongst the ladies."

3. In their defence, the accused persons examined DW-1 Moinuddin,

but his evidence was not taken into consideration, since he opted not to

participate in his cross examination.

4. Representing these appellants, Mr. Pramod Swarup, learned Senior

Advocate strongly argued that so far as the appellants Abdul Rasheed and

Abdul Hamid are concerned, the only evidence against them is that

they along with the co-accused Yameen had grappled with the deceased

and in the process he had fallen down. Except this limited role, no other

role had been attributed to them as per the deposition of PW-5 and PW-3,

the alleged eye witnesses of the incident. Counsel also submitted that it is

also an admitted case of the prosecution that all the three accused persons

were unarmed and they had no premeditated plan or design to carry out

the murder of the deceased. Counsel also submitted that it is also an

admitted case of the prosecution that it was Mohd. Yameen who brought

a churri/ knife from his jhuggi and had inflicted a single blow on the

person of the deceased. Learned counsel also submitted that so far the

appellants - Abdul Rasheed and Abdul Hamid are concerned, they did not

inflict any injury on the person of the deceased and therefore, they

cannot be held liable for the unilateral act committed by the other co-

accused Mohd. Yameen. Counsel also submitted that these two

appellants cannot be said to have shared any common intention with

Mohd. Yameen simply because they had not returned back to their

jhuggis when Mohd. Yameen had gone to his jhuggi to fetch a knife

and also because they never intervened to stop Mohd. Yameen from

inflicting churri blow on the chest of the deceased which is the only

reason given by the learned trial court to attribute these appellants

having shared common intention in committing the said offence.

5. Based on the above submissions, learned counsel for the appellant

urged for outright acquittal of the accused persons - Abdul Rasheed and

Abdul Hamid.

6. So far as the other appellant Mohd. Yameen is concerned, the

submission of the counsel was that he was unarmed when he along with

other co-accused persons called upon the deceased for talking to his uncle

Abdul Rasheed on a matter concerning a quarrel between the kids.

Counsel further submitted that even in the case of Mohd. Yameen he had

no premeditated plan or motive to commit the murder of the deceased as

he was absolutely unarmed when he had gone to call the deceased.

Counsel also submitted that due to sudden quarrel and in the heat of

passion, accused Mohd. Yameen had rushed to his jhuggi to bring a knife

(churri) and then inflicted a single blow on the right side of the chest of

the deceased without there being any intention to carry out his murder.

Learned counsel further urged that at best the case of the accused Mohd.

Yameen can attract Section 304 Part II IPC and in no manner it attracts

an offence punishable under Section 302 IPC. In support of his

arguments, counsel has placed reliance on the following judgments:

1. Jawahar Lal & Anr. Vs. State of Punjab (1983) 4 SCC 159;

2. Satish Narayan Sawant Vs. State of Goa (2009) 17 SCC 724;

3. Tapas Vs. The State of NCT of Delhi

7. Per contra, Ms. Richa Kapoor, learned APP for the State

vehemently contended that the impugned judgement of conviction and

the order on sentence passed by the learned trial court are well reasoned

orders on proper and objective analysis of the facts and evidence adduced

on record, and the findings arrived at by the learned trial court can

neither be termed as perverse nor illegal. She further argued that all the

three accused persons had approached the deceased at such odd hours of

the intervening night of 21/22.03.1996 and all of them shared a common

intention to carry out murder of the deceased. Learned counsel also

argued that the learned trial court has rightly held that both the said

accused persons - Abdul Rasheed and Abdul Hamid had caught hold of

the deceased and made him fell down, and they did not move from the

place even when the other co-accused Mohd. Yameen had gone to his

jhuggi to fetch a knife (churri). Learned trial court further held that these

two accused persons even did not intervene when the third accused

Mohd. Yameen had inflicted a stab blow on the chest of the deceased .

Learned APP further submitted that the contention raised by the learned

counsel for the appellant that these two accused persons never shared any

common intention with the third co-accused has no substance as the

common intention can develop even on the spur of the moment, without

there being any prior meeting of minds amongst the accused persons. So

far as the accused Mohd Yameen is concerned, contention raised by the

learned counsel was that he had inflicted a stab blow with a sharp edged

weapon of a long size on a vital part of the body of the deceased and the

injury was so penetrating that it entered the right chest cavity and after

cutting the ribs injured the substance of the liver. The contention raised

by the learned APP was that under no circumstance such an offence can

attract Section 304 Part II IPC, simply because of single knife blow

inflicted by the accused Mohd. Yameen. Counsel further contended that

the said offence would still attract Section 302 IPC, as the accused person

had a clear intention of inflicting such a severe blow which was

sufficient in an ordinary course of nature to cause death and the injury

was caused with a sharp edged weapon on a vital part of the body of

the deceased. In support of her arguments, learned APP for the State has

placed reliance on the judgment of this Court, in the case of Amiruddin

V. State (2010 )ILR 1 Delhi 267.

8. We have heard learned counsel for the parties at a considerable

length and given our thoughtful consideration to the arguments advanced

by them.

9. In the present case, criminal machinery was set in motion on the

first statement made by Smt. Hazara Begum - wife of the deceased. She

entered the witness box as PW-5. She was also an eye-witness of the

crime. PW-3 Abdul Khalid, son of the deceased was also present at the

scene of the crime. There can arise no dispute with regard to the killing

of the deceased Mohd. Aashkin on the intervening night of the

21/22.03.1996. The testimonies of both the eye-witnesses on material

facts remained consistent and therefore, we find no reason to disbelieve

their testimonies. The dispute between the parties was not a major

dispute. The same was on account of some verbal duel between them on a

matter concerning their kids. The exact dispute concerning the kids of

the parties never surfaced. As per the deposition of PW-3 and PW-5, the

family of the deceased Mohd. Aashkin went to sleep after taking their

meals but at about 12.00-12.30 midnight of 21/22.03.1996, accused

Mohd. Yameen knocked the door of their jhuggi so as to call Mohd.

Aashkin because his uncle Abdul Rasheed was calling him. PW-5 Smt.

Hazara Begum had opened the door and when she came out, Mohd.

Rasheed ( appellant in Crl. A. No. 694/1999) said in a loud voice "kya

jhagra kiya tumne", the lady told him to talk her in the morning. In the

meantime her husband Mohd. Aashkin along with her son Abdul

Khalid also came there, and soon thereafter, all the three accused

persons brawled with her husband and in the process, her husband had

fallen down. As soon as her husband fell off, Mohd Yameen rushed to

his jhuggi to bring a chhuri and then stabbed her husband on the right

side of his chest. The injured was immediately rushed to the hospital in a

TCR brought by some neighbour and within a short time the injured

succumbed to his injuries and was declared dead. The body of the

deceased was sent for autopsy and as per the post mortem report he had

received the following stab injuries on his external examination:

1. "Stab Wound 6 x 2.8 cm x chest cavity deep over right side middle front of chest. Both margins clean cut, both angles acute. The wound is almost transversally placed. The inner end being 12 cm to the right of midline and 10 cm below the right nipple and 129 cm from the right heel. On aligning the margin the wound is 6.2 cm long. Blood oozed on pressuring the chest wall.

2. Scratch abrasion 15 cm long, placed obliquely over the upper inner aspect of right arm extending to the right axillary.

3. Scratch abrasion 1-7 cm long over the outer aspect of lower end of right forearm.

4. Stitched surgical abrasive wound 3 cm long over right

side middle front of chest at the anterior axillary fold. The wound being 5.5 cm away and first lower to the right nipple."

10. As per the Post Mortem, the doctor opined that the deceased had

died due to haemorrhage and shock, consequent upon injuries to liver

and right kidney via injury no.1. All the injuries were opined to be ante

mortem and recent in duration. Injury no.1 could be caused by double

edged sharp penetrating object while injuries no. 2 and 3 were caused by

pointed object. It was also opined that injury no. 1 was sufficient to cause

death in an ordinary course of nature.

11. Considering the facts on record, there can arise no dispute with

regard to the factum of death of the deceased Aashkin on the intervening

night of 21/22.03.1996. There also remained no doubt that all three

accused persons were present at the scene of the crime and all of them

were unarmed when they had approached to knock the door of jhuggi of

the deceased. We also do not find any material on record which can

suggest that there was any kind of premeditated plan or prior meeting of

minds of these persons to develop a common intention to carry out the

murder of the deceased. In fact as per the prosecution case Mohd.

Yameen had knocked at the door of the deceased so as to call him to

have a talk with Abdul Rasheed. It is also the case of the prosecution

that soon after deceased Aashkin along with his son came out of their

jhuggi, all the three accused persons grappled with the deceased and in

the process the deceased fell down. As a consequence, Mohd. Yameen

had gone to his jhuggi to bring a chhuri to inflict a stab blow on the right

chest of the deceased. This act of bringing the weapon at that moment,

was a unilateral act of the accused Mohd. Yameen and there is no

evidence adduced on record to suggest that the other two accused

persons also shared a common intention with him to stab the accused

with that weapon and kill him. Undeniably, the common intention

amongst assailants can even develop on the spur of the moment but then

the circumstances should clearly suggest and indicate that such common

intention was developed on the spur of moment. Direct proof of

common intention is seldom available and therefore, the intention on

the part of the assailants can only be inferred from the circumstances as

proved on record.

12. There can be no strait jacket formula based on which the common

intention can be inferred as proven facts of each case will be a

determinative factor. In Manubhai Chimanlal Senma(Senwa) & Ors.

Vs. State of Gujarat, (2004) 10 SCC 173, where also two accused

persons had caught hold of the deceased while the third accused person

had given knife blow as a result of which he had died, the Hon'ble

Supreme Court took a view that the two accused persons who were

unarmed were not sharing common intention with the third accused

person who had inflicted injuries to the deceased, therefore by a mere

fact that they had accompanied the main assailant to pick up a quarrel

with the deceased and being totally unarmed would not be sufficient to

attribute sharing of common intention by them along with the third co-

accused who was armed and had inflicted a knife blow to the deceased.

13. The facts of the case are almost identical to the fact of the above

cited case. Here the accused persons were totally unarmed and they

had accompanied the co-accused Mohd. Yameen to have a talk with

the deceased over some trivial issue concerning some fight amongst the

kids. Although, time was not right when they had gone for such a talk on

that silent night of 21/22.03.1996 and even despite the fact that PW-5 -

wife of the deceased had told them that they could talk to her in the

morning regarding such a petty issue, but in the meanwhile her husband -

deceased and her son Abdul Khalid came out and it is thereafter, that all

the three accused persons grappled with the deceased as a result of which

the deceased had fallen down. So far the role of these two accused

persons are concerned they had only grappled along with the third

accused with the deceased and no other role has been ascribed to them.

They were totally unarmed. They never had a common intention to

carry out the murder of the deceased and it is only the third accused who

had gone to his jhuggi to bring out the knife and to inflict stab injury on

the person of the deceased. To infer a common intention on a mere fact

that they had waited till Mohd. Yameen came back with a churri and did

not make any efforts to stop him from giving churri blow would not be

sufficient to enrobe or inculpate these persons along with the third co-

accused.

14. As per the settled principles as envisaged under Section 34 IPC,

we are not persuaded to the reasoning given by the learned trial court

that these two accused persons shared common intention with Mohd.

Yameen because of the said conduct of them not leaving the spot of

crime and not dissuading Mohd. Yameen from inflicting stab injuries.

15. These appellants, therefore, cannot be held guilty for committing

an offence punishable under Section 302 IPC by application of Section

34 IPC. The judgment of conviction and order on sentence passed

against them by the learned trial court is accordingly set aside. They shall

be set at liberty forthwith unless required in connection with any other

case.

16. Coming to the imposition of sentence to the third co-accused

Mohd. Yameen who is appellant in Crl. A. No. 1/2000. As per the

counsel for the appellant, at best the case of this appellant can fall under

Section 304 Part II IPC and accordingly, his conviction should be altered

from Section 302 IPC to Section 304 Part I or Part II IPC. The argument

of the learned counsel for the appellant was that the accused Mohd.

Yameen was totally unarmed when he came to the jhuggi of the

deceased along with other two accused persons. Counsel also argued

that after a quarrel had taken place between the deceased and the

accused party, it was in a heat of passion that he rushed to his jhuggi and

brought out a churri to hit him with a single knife blow. Counsel also

submitted that in similar cases the view taken by the Apex Court is that

the case would not fall under Section 302 IPC and would attract Section

304 Part II IPC. Counsel also submitted that the appellant Mohd.

Yameen had already undergone six years of sentence and he was quite

young on the date of the commission of offence and just because of

losing his mental equilibrium, in a heat of passion he rushed to his jhuggi

to bring out a knife to hit the deceased, having no prior ulterior motives

or intention to kill the deceased, the accused cannot be made to suffer his

entire life. We find considerable merit in the submission of the learned

counsel for the appellant. In the matter of Tapas Vs. The State of NCT

of Delhi, this Court held as under:

"17. In the matter of Kulwant Singh vs. State of Punjab reported in AIR 1982 SC 126 wherein the accused gave one blow with a dagger and the blow landed in the epigastria area. The deceased succumbed to the injury. The learned trial Court found that the accused committed the offence without any premeditation. The learned Judge also found that there was no prior enmity. He also recorded that a short, quarrel preceded the assault. However learned trial Court convicted the appellant for an offence under Section302 Penal Code and sentenced him to suffer imprisonment for life. When the matter was before the High Court it was urged that in the circumstances of the case part I of Section 300 would not be attracted because it cannot be said that the accused had the intention to commit the murder of the deceased. The Hon'ble Supreme Court held as under:

More often, a suggestion is made that the case would be covered by part 3 of Section 300Penal Code in that not only the accused intended to inflict that particular injury but the injury intended to be inflicted was by objective medical test found to be sufficient in the ordinary course of nature to cause death. The question is in the circumstances in which

the offence came to be committed, could it ever be said that the accused intended to inflict that injury which proved to be fatal. To repeat, there was an altercation. There was no premeditation. It was something like hit and run. In such a case, part 3 of Section 300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be-likely to cause death and the case would accordingly fall under Section 304 Part II Penal Code.

18. In the matter of Jagrup vs. State of Haryana reported in AIR 1981 SC 1552, wherein on the fateful evening the marriage of one Tej Kaur was performed. Shortly thereafter, the appellant Jagrup Singh armed with a gandhala, his brothers Billaur Singh armed with a gandasa and Jarmail Singh and Waryam Singh armed with lathies emerged suddenly and made a joint assault on the deceased Chanan Singh and the three eyewitnesses, Gurdev Singh, PW 10, Sukhdev Singh, PW 11 and Makhan Singh, PW 12. The deceased along with the three eye-witnesses was rushed to the Rural Dispensary, Rori where they were examined at 6 pm by Dr. Bishnoi, PW 3, who found that the deceased had a lacerated wound 9 cm x 11/2 cm bone deep on the right parietal region, 9 cm away from the tip of right pinna; margins of wound were red, irregular and were bleeding on touch; direction of wound was anterior-posterior. The deceased succumbed to the injuries. Doctor who performed an autopsy on the dead body of the deceased. In his opinion, the death of the deceased was due to cerebral compression as a result of the head injury which was sufficient in the ordinary course of nature to cause death. In the background of these facts, the Hon'ble Supreme Court held as under:

In our judgment, the High Court having held that it was more probable that the appellant Jagrup Singh had also attended the marriage as the collateral, but something happened on the spur of the moment which resulted in the infliction of the injury by Jagrup Singh on the person of the deceased Chanan Singh which resulted in his death, manifestly erred in applying Clause Thirdly of Section 300 of the Code. On the finding that the appellant when he struck the deceased with the blunt side of the gandhala in the heat of the moment, without pre-meditation and in a sudden fight, it cannot be said that the accused intended to kill the deceased. The result, therefore, is that the conviction of the appellant under Section 302 is altered to one under Section 304, Part II of the Indian Penal Code. For the altered conviction, the appellant is sentenced to suffer rigorous imprisonment for a period of seven years."

17. In Jawahar Lal & Anr. Vs. State of Punjab, (1983) 4 SCC 159,

also the accused hit the deceased with a knife blow in front of left side

of his chest and as per the autopsy report the injuries were found

sufficient in an ordinary course of nature to cause death. The Apex

Court took a view that the accused could be attributed the knowledge that

he was likely to cause an injury which was likely to cause death. The

relevant paras of the said judgment is reproduced as under:

"17.......we should also not further dilate on this point in view of the decision of this Court in Jagrup Singh v. State of Haryana : 1981CriLJ1136 . In that case after referring to the

evidence, this Court held that the appellant gave one blow on the head of the deceased with the blunt side of the gandhala and this injury proved fatal. The Court then proceeded to examine as to the nature of the offence because the appellant in the case was convicted for an offence under Section 302. Undoubtedly, this Court said that there is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304, Part II of the Code. The Court then proceeded to lay down the criteria for judging the nature of the offence. It may be extracted;

The whole thing depends upon the intention to cause death, and the case may be covered by either clause Firstly or clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstance attendant upon the death.

18. We may point out that decision in Jagrup Singh's Case 1981CriLJ1136 was subsequently followed in Randhir Singh @ Dhire v. State of Punjab Decided on September 18. 1981 and in Kulwant Rai v. State of Punjab Decided on August 7, 1981 (Criminal Appeal No. 630 of 1981).

19. Having kept this criteria under view, we are of the opinion that the offence committed by the 1st appellant would not be covered by clause Thirdly of Para 3 of Section 300 and therefore, the conviction under Section 302, I.P.C. cannot be sustained.

20. What then is the offence committed by the 1st appellant ? Looking to the age of the 1st appellant at the time of the occurrence, the nature of the weapon used, the circumstances in which one blow was inflicted, the time of the day when the occurrence took place and the totality of

other circumstances, namely, the previous trivial disputes between the parties, we are of the opinion that the 1st appellant could be attributed the knowledge that he was likely to cause an injury which was likely to cause death. Accordingly, the 1st appellant is shown to have committed an offence under Section 304, Part II of the Indian Penal Code and he must be convicted for the same and sentenced to suffer rigorous imprisonment for five years maintaining the sentence of fine."

18. In similar circumstances, the Apex Court in Satish Narayan

Sawant Vs. State of Goa, (2009) 17 SCC 724 held as under:

"27. The aforesaid principles have been consistently followed by this Court in several decisions. Reference in this regard may be made to the decision of this Court in Ruli Ram v.

State of Haryana (2002) 7 SCC 691; Augustine Saldanha v. State of Karnataka (2003) 10 SCC 472; State of U.P. v. Virendra Prasad (2004) 9 SCC 37; Chacko v. State of Kerala (2004) 12 SCC 269; S.N. Bhadolkar v. State of Maharasthra (2005) 9 SCC 71; and Jagriti Devi v. State of H. P. JT 2009 (8) SC 648.

28. 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 accused-appellant 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 No. 1 and all other injuries were superficial in nature. So, it was only Injury No. 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. Records clearly establish that there was indeed a scuffle

between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. There is, therefore, provocation and the incident happened at the spur of the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC but it is a case falling under Section 304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.

29. Accordingly, we convict the appellant under Section 304, Part II of IPC and sentence him to undergo imprisonment for a period of 7 years. His bail bonds shall stand cancelled and the appellant shall surrender immediately to serve out the remaining period of sentence."

19. In the light of the aforesaid legal position, as discussed above and

adverting to the facts of the present case, we find ourselves in agreement

with the contentions raised by the learned counsel for the appellant that

the appellant Mohd. Yameen had no intention to carry out the murder of

the deceased. The fight between the accused and the deceased was

sudden and it was under the heat of passion that the accused Mohd.

Yameen had rushed to his jhuggi to bring a churri so as to hit the

deceased on his right chest. As per the post mortem report, the injury

no.1 was proved sufficient to cause his death in an ordinary course of

nature and this injury was quite a penetrating one, as it was caused by a

double edged sharp object. The accused thus can be attributed sufficient

knowledge to cause death of the deceased by inflicting injury on the right

side of his chest.

20. While maintaining the sentence of Mohd. Yameen under Section

27 of the Arms Act, 1959, we set aside his conviction under Section 302

IPC and accordingly, convict him under Section 304 Part II IPC and

sentence him for a period already undergone by him.

21. Appellant is on bail. His bail bonds are discharged. The case of the