Irfan @ Baccha vs State Of M.P.
2021 Latest Caselaw 6588 MP

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        THE HIGH COURT OF MADHYA PRADESH
                  BENCH AT INDORE
           D.B.:Hon'ble Shri Justice Vivek Rusia
          Hon'ble Shri Justice Shailendra Shukla, JJ.
                     Criminal Appeal No.851/2009
Appellant:             Irfan @ Baccha S/o-Babbu Kha
(In-Jail)              Ilal Gose Wale Ka Makan,6th Lane,
                       Chanduwala Road, Chandan Nagar,
                       Indore , M.P.
                                      Versus
Respondent:            State of M.P.
                       through P.S.- Chandan Nagar
                       District-Indore (M.P.)
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For Appellant (s)             :Ms. Poornima Kanoongo through Legal Aid,
For Respondent (s)            :Ms. Mamta Shandilya, Govt. Advocate
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                             JUDGMENT

(Heard on 08/10/2021) (Delivered on 21/10/2021) PER VIVEK RUSIA, J:-

The appellant has filed the present criminal appeal against the judgment dated 25.04.2009 passed by the learned 4 th Additional Session Judge, Indore, in S.T. No.259/2008 whereby he has been convicted under Section 302 of the IPC and sentenced to undergo life imprisonment with a fine of Rs.5,000/- and also convicted under Section 25(1)B read with section 27(1) of the Arms Act and sentenced to undergo three years of R.I. with fine of Rs.1,000/- and six months additional R.I. in default of fine. Both the sentences are directed to run concurrently.

2. The prosecution story of this case in short is as under:-

i). Begum Bi D/o Gabbu (complainant) was married to [email protected] Baccha S/o Babbu Kha (appellant) in the year 2000. The divorce took place between them by way of mutual consent on 25.09.2007. On 20.01.2008 near about 3 during the procession of the Moharram this appellant came in front of Aslam's shop at chanduwala road with a knife in his hand. The deceased [email protected] Julfikar was there and the

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appellant told that he is responsible for his divorce and with the intention to kill stabbed the knife in his abdomen. The aforesaid incident was witnessed by Gabbu. Aarif, Irfan, Babu and Ajaj Hussain. They all rushed towards Jullu @ Julfikar to save him by that time the appellant -Irfan fled away. The injured [email protected] Julfikar was taken to the hospital by auto rikshaw from where he was referred to the M.Y. Hospital, Indore. From the district hospital death information was sent to the police station and it was registered in the Rojnamcha (daily diary) Exhibit-P/5. The police reached the M.Y. Hospital, on the information given by Gabbu the father of the deceased a Dehati Nalshi Exhibit-P/1 was recorded. Since the incident took place within the jurisdiction of police station-Chandan Nagar therefore, FIR was lodged at police station-Chandan Nagar on 20.01.2008 under section 307 of the IPC against this appellant. The deceased underwent surgery in the M.Y. Hospital and died on 21.01.2008 at 7 a.m. The information was sent to the police station and accordingly a charge under section 302 of the IPC was added in the FIR. The police reached the M.Y. Hospital and drew a Naksha Panchayatnama Exhibit-P/4 and a dead body was sent for postmortem. Postmortem was carried out by Dr. Lanjewar and submitted a report vide Exhibit-P/18. He found five surgical stick wounds over the body and opined that death was due to cardio- respiratory failure and as a result of injuries to the visceral organs of the body and its complication. He has further opined that the injuries are homicidal in nature and are caused by sharp and hard penetrating objects within the 24 hours prior to the death. The police have arrested this appellant on 20.01.2008 vide arrest memo Exhibit-P/11. On his disclosure, a knife length 16 inches was recovered and seized vide memo Exhibit-P/13. The bloodstain clothes of the deceased and knife were sent to the FSL vide draft memo Exhibit-P/14. The police recorded the statements of the witnesses and completed the charge sheet. The charge-sheet was filed before the J.M.F.C. on 14.05.2008 and the same was committed to the trial court and the charges under Section 302 of the IPC and Section 25(1)B read with section 27(1) of

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the Arms Act were framed. The appellant denied the charges and pleaded for trial hence, the prosecution was called upon to establish the charges. The prosecution has examined as many as 14 witnesses as P.W.-1 to P.W-14 and got exhibited 18 documents as Exhibit-P/1 to Exhibit-P/18. In defense the appellant did not examine any witnesses and pleaded for false implication.

ii). After appreciating the evidence that came on record vide judgment dated 25.04.2009 the learned fourth Additional Sessions Judge, has convicted the appellant and sentenced as stated above hence, the present criminal appeal before this Court.

3. Learned counsel for the appellant has argued that the appellant has been falsely implicated because the complainant was annoyed with him as he had deserted his daughter. The prosecution has not examined any independent witnesses to establish the charges against him. All the witnesses are related to the deceased. Hence their testimony cannot be relied on. It is further submitted that the knife said to have been seized from the present appellant was not produced during the trial before the Court. As per the prosecution witnesses, the divorce between the appellant and Begum Bi had taken place on 25.09.2007 by way of mutual consent therefore, there was no enmity between the appellant with the deceased and there was no reason for the appellant to stab the brother of the Begum Bi on the day of Moharram. Since the prosecution has failed to establish the motive behind the crime hence the conviction of the appellant is bad in law and is liable to be quashed. Alternatively, it is further submitted that the appellant is in jail since the date of arrest. He has undergone more than 13 years of the sentence. He is a first offender. It is further submitted that even if the case of the prosecution is treated to be proved then it is a case of culpable homicide not amounting to murder therefore the conviction of the appellant may kindly be converted from section 302 of the IPC to section 304 (Part-1) of the IPC and for which he has already suffered the sentence. It is further submitted that the deceased was a known criminal of the locality and he had enmity with the various persons and

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by taking the advantage of the crowd during Moharram he was stabbed by unknown persons. No FSL report has been received to establish the blood on the knife. The seizure witnesses have been turned hostile therefore, the appellant is entitled to acquittal.

4. Learned Govt. Advocate for the respondent/State opposes the aforesaid argument by submitting that the testimony of the relatives cannot be discarded because they are related to the deceased. They all are an eyewitness. The appellant was annoyed with the deceased because of the divorce. In the case where there is direct evidence by way of eye-witness is there then the motive is not required to be established in each and every case. If we accept the contention of the appellant that there was mutual consent in a divorce then there can't be an enmity behind the false implication of the present appellant by the related witnesses. The appellant's culpability is established beyond doubt that he has rightly been convicted under section 302 of the IPC and no alteration or reduction in sentence and conviction is permissible and the appeal is liable to be dismissed.

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

5. The prosecution has examined P.W.-1 Gabbu who is the father of the deceased who deposed that on 20.01.2008 he was present and watching the procession of Moharram. His Son Julfikar, Aarif, Irfan, Babu were also present along with him. Irfan came there and alleged Julfikar that he is responsible for the divorce with his wife and took out the knife and flicked injuries on the left side of the abdomen and fled away. The injured was immediately taken to the hospital where he died. In the cross-examination, he was admitted that the divorce took place with the mutual consent of the parties. He has denied that his son is involved in extortion of money and other miscreants have assaulted him. He was further given suggestions about the colour of the shirt etc. but that is not much relevant because this appellant was ex-son-in-law of the P.W.-1 therefore there cannot be any mistake in his identification. Irfan P.W.-2 was also present on the spot and fully

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supported the case of the prosecution. He was also cross-examined on the point of colour and design of the shirt and the deceased has had enmity with other persons. P.W.-3 Begum Bi is the ex-wife of the appellant and deposed that the divorce took place with mutual consent but there was enmity with this appellant after the divorce. Farida P.W.- 4 wife of the deceased was examined she has stated her husband had no enmity with others. She has also supported the case of the prosecution. Likewise, Babu P.W.-5 and Mohd. Aslam P.W.-6 has supported the case of the prosecution. The prosecution has also examined Aarif P.W.-10, Ajaj Hussain P.W.-11 as an eyewitness who has supported the case of the prosecution. Naushad Ahmed, P.W.-12, and Mohd. Ameen P.W.-13 seizure witnesses have turned hostile but they have admitted their signature over the seizure and arrest memos. Therefore, on the basis of direct evidence of eyewitness, the appellant has rightly been convicted under section 302 of the IPC.

6. So far as the nature of death is concerned after sustaining the injuries the deceased was initially taken to the district hospital Dhar Road, Indore. As per the medical report there was a stab injury 1.5 X 1.5 half inch and from where he was referred to M.Y. Hospital and he was admitted there and operation was carried out but he succumbs to the injuries. The stab injury was so deep that it has cut the internal organs. The surgery was carried out to repair all the internal organs but the deceased but summed. The police have seized all the documents relating to the treatment and operations and filed them along with the charge sheet but the same has not been exhibited as the treating doctor was not called. In this treatment sheet, there is the consent given by the relative that they are ready for operation without waiting for a blood test report from the pathology and there is no arrangement of blood in the hospital. In such a condition this operation was carried out and the deceased died. Therefore, there is a possibility that he died not because of the sole stab injuries but due to the failure of the operation. Therefore, the deceased died because the operation had to be carried out due to the stab injury caused by the appellant. Thus, this

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is the case of a single stab injury and he died because of an unsuccessful operation.

The Hon'ble Supreme Court has also held in the case of Arjun and Anr. Vs. The state of Chhattisgarh, AIR 2017 SC 1150 that:

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 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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In a case of Stalin v. State, reported in (2020) 9 SCC 524 the Supreme Court of India has held that

11. As per Exception IV to Section 300 IPC, culpable homicide is not mur- der if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage and not having acted in a cruel or unusual manner. In the present case, at the place of incident the beer was being served; all of them who participated in the beer party were friends; the starting of the incident is narrated by PW 3, as stated hereinabove. Therefore, in the facts and cir- cumstances, culpable homicide cannot be said to be a murder within the definition of Section 300 IPC and, therefore, in the facts and circumstances of the case narrated hereinabove and the manner in which the incident started in a beer party, we are of the opinion that Section 302 IPC shall not be attracted.

12. Now, the next question which is posed for consideration of this Court is whether the case would fall under Section 304 Part II IPC? Considering the totality of the facts and circumstances of the case and more particularly that the accused inflicted the blow with a weapon like knife and he inflicted the injury on the deceased on the vital part of the body, it is to be presumed that causing such bodily injury was likely to cause the death. Therefore, the case would fall under Section 304 Part I IPC and not under Section 304 Part II IPC.

13. In view of the above and for the reasons stated above, the appeal is al- lowed in part. The impugned judgment [Stalin v. State, Criminal Appeal (MD) No. 122 of 2016, order dated 18-1-2017 (Mad)] and order passed by the High Court confirming the conviction of the accused for the offence punishable under Section 302 IPC is hereby modified from that of under Section 302 IPC to Section 304 Part I IPC. The accused is held guilty for the offence punishable under Section 304 Part I IPC and sentenced to un- dergo 8 years' RI with a fine of Rs 10,000 and, in default, to further un- dergo one year RI. The appeal is allowed to the aforesaid extent. Therefore, the case falls under the category of exception 4 of section 300 of the IPC and according to which culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. Hence, he is liable to be punished under section 304 part-II of the IPC because the act was done with the knowledge that it is likely to cause death but without any

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intention to cause death or to cause such bodily injury as is likely to cause death. Accordingly, we convert the conviction from section 302 of the IPC to Section 304 part-II of the IPC and reduced the sentence from life imprisonment to the period already undergone by the appellant. Since there is a recovery of the knife from the appellant and for which he was not having the license to carry hence we maintained the conviction under the arms act. Hence the appeal is partly allowed.

7. Let the copy of this judgment be sent to the concerned Jail and the trial Court along with the record.

           (VIVEK RUSIA)                                       (SHAILENDRA SHUKLA)
               JUDGE                                                 JUDGE
  Ajit/-




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                Date: 2021.10.21 17:04:02 +05'30'