Irfan vs State Of M.P.
2021 Latest Caselaw 4114 MP

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 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA
   & HON'BLE SHRI JUSTICE SUBODH ABHYANKAR

                    Criminal Appeal No.201/2009

                       Irfan s/o Abdul Hussain,
                   Age 21 Years, Occupation-Labour
                     R/o Mamta Colony Khajrana
                                 Indore

                                   vs.

                       State of M.P Through P.S
                            Khajrana Indore

                                 ******

Shri A.S.Rathore, learned counsel for the appellant. Smt.Mamta Shandilya, learned Govt. Advocate for the State.

Judgment (Delivered on 10.08.2021)

Per Vivek Rusia, J:

Appellant has filed the present appeal being aggrieved by the judgment dated 31.01.2009 passed by 11th Additional Sessions Judge, Indore in Sessions Trial No.465/07 whereby he has been convicted under section 302 IPC and sentenced to undergo life imprisonment with fine of Rs.500/-; in default of payment of fine, further RI for three months.

2. As per prosecution story complainant Mohd. Liyakat Kha lodged an FIR on 31.8.2007 near about 8 P.M that his uncle Mohd. Akram r/o Tanjeem Nagar, Murgi Kendra Ki Gali Kona Khajrana was engaged in the sale of eggs in front of his house. When Mohd. Akram was standing in front of his house his relative the appellant Irfan came on a motorcycle and took his uncle Mohd. Akram at one side of the Egg Stall and after some altercation followed by scuffle between Irfan took out a knife from his pocket and his two associates Moin and Ramu caught hold him and Irfan stabbed knife on his stomach.

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Thereafter they fled away from the spot from motorcycle . He was admitted in the Life Line Hospital. The FIR was registered as Ex.P/6. After the death of Mohd. Akram postmortem was carried out. The spot map was also prepared. The statement of witnesses was recorded and the accused were arrested. The charge sheet was filed against Ramu before the juvenile Court, but he was found more than 18 years of age, therefore, he was tried along with other two accused. Learned Sessions Court framed charge under section 302 read with section 34 against all the 3 accused. They abjured their guilt and pleaded for trial.

3. The prosecution has examined 15 witnesses and got exhibited 20 documents as Ex.P/1 to P/20. In defence the accused did not examine any witness but got exhibited 5 documents as Ex.D/1 to D/5 in the cross examination of PW/3.

4. After evaluating evidence came on record, learned ASJ has acquitted Moin and Ramu under section 302 read with section 34 IPC and convicted and sentenced the appellant as stated herein above, hence the present appeal before this Court.

We have heard learned counsel for the parties and perused the record.

5. Although learned counsel has assailed the impugned conviction and sentence on merit but by way of alternate submission, he has submitted at the most the case against the appellant would not fall under section 302 IPC as there was no premeditation and out of sudden provocation during scuffle the appellant has inflicted one stab injury to the deceased which turned into fatal and at the time of incident he was a youth of 21 years of age with no criminal past. He had no intention to cause the death of Mohd. Akram, therefore, the charge may kindly be converted from 302 to 304 Part II IPC and the sentence be reduced from life imprisonment to the period already undergone as he is in jail since 02.09.2007 and completed more than 14 years jail sentence. He has spent the best period of his life in the jail, therefore, as a reformative approach also he may kindly be released from jail.

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6. Learned Govt. Advocate has opposed the aforesaid prayer by submitting that the prosecution has successfully proved the charge under section 302 IPC against the appellant beyond reasonable doubt. He has inflicted stab injury on the vital part of the body with the intention to kill him. The eyewitnesses have fully supported the case of the prosecution, hence no leniency is liable to be shown and it is not a case of culpable homicide not amounting to murder and the appeal is liable to be dismissed.

7. So far the case of death of the deceased is concerned as per the postmortem report the death was due to shock and hemorrhage as a result of stab injury in the abdomen. The injury was caused by hard, sharp, and pointed object sufficient to cause death. The medical report has been proved by PW/1 Dr.N.M.Unda PW/1 who conducted the postmortem. There is no serious challenge to the finding recorded by the trial Court that Mohd. Akram died because of the injury sustained, hence the aforesaid findings are hereby affirmed.

8. Mohd. Liyakat Khan PW/3 lodged an FIR on 31.8.2007 at 8.00 p.m disclosing that his uncle Mohd. Akram was standing in Egg stall . Irfan came on a motorcycle with one associate and at that time his brother Zuber and Zakir were standing near the stall. Irfan took his uncle to one side and during conversation the scuffle took place. His uncle shouted and Irfan took out the knife and his one associate caught hold his uncle and Irfan inflicted the stab injury to him. He started bleeding and both of them fled away from the spot. He did not find the cash kept in his pocket and he immediately took him to Life Line Hospital. The FIR was registered for the offence under section 302 IPC vide Ex.P/6. The treating doctor Dr.R.Verma gave an opinion that the patient is not fit for the statement vide Ex.P/5. Thereafter he died and the postmortem was carried out. The Naksha Panchnama was prepared vide Ex.P/9. The treatment papers were collected from the Life Line Hospital vide Ex.P/16 to P/18. The appellant was arrested on 02.08.2007 vide Ex.P/11. The statement under section 27 of the Evidence Act was recorded vide Ex.P/12 and a button knife in the size

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of 13 inch was recovered from his possession on 02.09.2007 vide Ex.P/13. The another accused Ramu was arrested on 2.9.2007 and accused Moin was arrested on 5.9.2007. The statements of the witnesses were recorded under section 161 Cr.p.C. After completing the investigation, the police filed the charge sheet on 6.11.2007 against the appellant , Irfan and Moin also . The additional charge sheet was filed before the juvenile Court against Ramu but later on his trial was transferred to the Sessions Court as he was not found juvenile. The charge under section 302 read with section 34 was framed against all the 3 accused.

9. Initially, as per the statement of PW/3 Mohd. Liyakat Khan the FIR was lodged against Ifran and one unknown person. In the Court statement he has improved his version by stating that his uncle had a dispute with Irfan, Ramu Banjara and Moinuddin and Ramu Banjara and Moinuddin caught hold Mohd. Akram and Irfan inflicted the stab injury. He did not disclose the motorcycle number on which the appellant along with one another came on the spot. In his cross examination he stated that he lodged the report against 3 persons, but he was not aware as to why the police has registered the case against two persons. Mohd. Anis PW/5 has been examined as a seizure witness but he has turned hostile. Mohd. Waseem has been examined as PW/6 who signed the Ex.P/8 & P/9. Zubed Khan PW/7 has supported the case of the prosecution.

10. P.S.Rathore, ASI who recorded the FIR has been examined as PW/9 and in cross examination he has admitted that in the FIR the name of Moinuddin was not recorded. He has further admitted in the FIR that the name of Ramu was not recorded. Dr.Brajesh Lal who treated the deceased in Life Line Hospital, Indore on 31.8.2007 has been examined as PW/11 and according to him he found incised wound of 5 cm. X 2 cm. and at the time of admission he was conscious and capable to give the statement. After two hours he died, therefore, when he was admitted in the hospital, he did not disclose his statement. His dying declaration was not recorded. The time of

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admission is mentioned as 20:15 in the admission form. At 11.20 hrs. the doctor has declared that the patient is not fit for statement and thereafter he died in the night of 31.8.2007 and the dead body was sent for postmortem on 1.9.2007 at 10.30 a.m. Zakeer PW/13 has also supported the case of the prosecution.

11. Although the prosecution has not examined the eye witnesses in the Court despite they were named in the charge sheet but it is not mandatory for the prosecution to examine all the witnesses in the court. The prosecution has examined 3 eyewitnesses i.e. PW/3, PW/7 & PW/13 who have fully supported the case of the prosecution. Although the prosecution has not established the motive behind the offence committed by Irfan but there are sufficient evidence in respect of causing injury by the present appellant due to which Mohd. Akram died in hospital. As statement of PW/3, PW/7 & PW/13 deceased Mohd. Akram was selling eggs where the accused appellant came, took him to one side, had a conversation which has turned into a scuffle, took out the knife and stabbed him. Nobody has heard the conversation between them but the offence has been committed all of a sudden, however, the deceased was carrying a knife in his pocket, therefore, even if the prosecution has failed to prove the motive and mens rea which will not demolish the entire case of the prosecution.

12. Now the issue remains for consideration by us is as to whether the death of Mohd. Akram was a murder or culpable homicide not amounting to murder.

13. The Hon'ble Supreme Court in the case of Arjun and Anr. Vs. State of Chhattisgarh - AIR 2017 SC 1150 has held as under:

20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. Union Territory of Chandigarh (1989) 2 SCC 217 : (AIR 1989 SC 1094, Para 6), it has been explained as under:

"7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The

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cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.............."

21. Further in the case of Arumugam v.

State,Represented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590 : (AIR 2009 SC 331, Para

15), in support of the proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under:

"9. .......

"18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'."

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14. The Hon'ble Supreme Court has laid down in Prabhakar Vithal Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if assault on deceased could be said to be on account of sudden fight without pre-meditation, in heat of passion and upon a sudden quarrel, convic- tion of the appellant cannot be sustained under S. 302 and altered to one under Section 304 Part-I of IPC.

15. In Sikandar Ali Vs. State of Maharashtra, AIR 2017 SC 2614, the Court altered the conviction u/s 302 IPC to one u/s 304 part- II IPC in the following circumstances:

"7. We have no doubt about the complicity of all the accused in the homicide of Sarfraj. A-1 attacked the deceased with the knife and caused injury on his neck which resulted in his death. The other accused assisted him in committing the crime by holding the hands of the deceased. However, the only question that falls for our consideration is whether the accused are liable to be punished for an offence under Section 302 IPC. After considering the submissions made by the counsel for the Appellants and scrutinising the material on record, we are of the opinion that the accused are not liable to be convicted under Section 302 IPC. We are convinced that there was neither prior concert nor common intention to commit a murder. During the course of their business activity the accused reached the dhaba where the deceased was present. An altercation took place during the discussion they were having behind the dhaba. That led to a sudden fight during which A-1 attacked the deceased with a knife. Exception 4 to Section 300 is applicable to the facts of this case. As we are convinced that the accused are responsible for the death of Sarfraj, we are of the opinion that they are liable for conviction under Section 304 part II of the IPC. We are informed that A-1 has undergone a sentence of seven years and that A-2 to A-4 have undergone four years of imprisonment. We modify the judgment of the High Court converting the conviction of the accused from Section 302 to Section 304 part II of the IPC sentencing them to the period already undergone. They shall be released forthwith."

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16. In view of the above judgments passed by Apex Court it is correct that appellant Akram was carrying a knife and inflicted the stab injury on the vital part of the body and thereafter fled away from the spot. The presence of Moinuddin & Ramu Banjara are doubtful and they have been acquitted from the charge. On the same set of evidence, the present appellant has been convicted and sentenced. It is not a case of the prosecution that Irfan came there with an intention to kill Mohd. Akram. He took him to one side and they had a conversation and thereafter a scuffle took place and thereafter he inflicted the stab injury to the deceased. Had there been any intention he would have caused various stab injuries to him but after one stab injury he fled away, therefore, his offence falls under the exception (II) of section 304 IPC as he has committed the offence out of anger and passion and there was no-premeditation to commit the crime.

17. Keeping in view the aforesaid factors it becomes evident that the case of the appellant would fall under Section 304 IPC as the incident took place due to a sudden altercation between the appellant and the deceased, therefore, we of the opinion that it was an offence which would be covered by Section 304 Part-II IPC and not under section 302 IPC.

18. In view of the above discussion and verdicts of the Apex Court, the criminal appeal is partly allowed. The culpability of the appellant is maintained but conviction is altered to section 304 Part II of IPC, instead of Section 302 of IPC and accordingly sentenced him to the period of 10 years with a fine of Rs.10,000/-. The appellant be released from jail after depositing difference amount of fine, if he is not required in any other case.

19. This criminal appeal is partly allowed. Record of trial court be sent back along with copy of this judgment.

         (VIVEK RUSIA)                           (SUBODH ABHYANKAR)
            JUDGE                                      JUDGE
hk/
            Digitally signed by HARI KUMAR C G
            NAIR
            Date: 2021.08.10 18:16:22 +05'30'