Madhya Pradesh High Court
Inshaf Khan vs The State Of Madhya Pradesh on 30 May, 2024
Author: Vivek Rusia
Bench: Vivek Rusia, Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 30 th OF MAY, 2024
CRIMINAL APPEAL No. 9804 of 2019
BETWEEN:-
INSHAF KHAN S/O SHRI MOHAMMAD KHAN, AGED - 25
YEARS, OCCUPATION: MAZDOORI, R/O GRAM DHEKAN
POLICE STATION PIPRAI, DISTRICT ASHOKNAGAR
(MADHYA PRADESH).
.....APPELLANT
(SHRI PADAM SINGH - ADVOCATE FOR THE APPELLANT)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION, PIPRAI, DISTRICT ASHOKNAGAR (MADHYA
PRADESH).
.....RESPONDENT
(SHRI LOKENDRA SHRIVASTAVA - PUBLIC PROSECUTOR FOR THE
RESPONDENT/STATE)
This appeal coming on for orders this day, Justice Vivek Rusia passed
the following:
JUDGMENT
Instead of hearing on I.A.No.8838/2024, which is third application under
Section 389(1) of Cr.P.C. for suspension of sentence and grant of bail to the
sole appellant - Inshaf Khan, the parties finally argued this appeal on merit.
2. This appeal has been filed by the appellant under Section 374 (2) of
Cr.P.C. against the judgment dated 30.09.3019 passed by the Second
Additional Sessions Judge, Mungaoli, District Ashoknagar in Sessions Trial
No.136/2016, whereby the sole appellant has been convicted under Section 302
of IPC and sentenced to undergo life imprisonment with fine of Rs.500/- and in
addition simple imprisonment of five days in default for payment of fine.
3. The prosecution story, in short, is as under :
On 05.06.2016 near about 2.00 p.m. Rajuddin Khan gave information to
the Police Inspector that his son Nizamuddin @ Chunna went to attend the
Walima in the house of Nazir Khan. Sabir, Inshaf, Aslam and Shahir were also
with him. In the afternoon, he received information from Mr. Khan that Nizam
sustained gun shot injury. He immediately rushed to the house of Sabir and
found his son lying dead with a bullet on his head. A Bharmar gun was lying
there. He is not aware how his son expired. Marg No. 16/2016 was registered
under Section 174 of Cr.P.C. on 05.06.2016. During the marg investigation, the
police recorded statements of eye witnesses; Sabir Khan, Aslam Khan, Jahid
Khan residents of Dhekan, drew spot map and gun was seized. The witnesses
disclosed that on 05.06.2016 deceased Nizam @ Chunna, Sabir Khan, Inshaf,
Aslam and Jahid all residents of Dhekan were sitting in the house of Sabir Khan
in village Tamasha. A gun was hanging on the wall. Accused Inshaf Khan took
out the gun and pointed towards Nizamuddin @ Chunna. He fired on right side
of the head and Nizamuddin @ Chunna died on the spot. At Police Station
Piprai, Crime No.93/2016 was registered and present appellant was taken in
custody. The gun was sent for ballistic examination vide Ex.P/17 and the
ballistic report (Ex.P/19) came according to which it was a muzzle loading
single barrel gun found in working condition and it was used for firing a gun
shot. After completing the investigation, charge sheet was filed before the
JMFC from where it was committed to Sessions Court. The sole charge under
Section 302 of IPC was framed and read over to the appellant, which he denied.
The prosecution was called upon to examine the witness. The prosecution
examined as many as 19 witnesses and exhibited 22 documents as Ex.P/ to
P/22. In defence, the appellant examined Sabir Ali as D.W.1 and exhibited
statement of Rajjo Bee as D/1. After evaluating the evidence came on record,
the learned Additional Sessions Judge convicted the appellant under Section
302 of IPC and sentenced as aforesaid. Hence present appeal before this
Court.
4 . Learned counsel for the appellant submits that he is not assailing the
findings recorded by the trial Court as well as date of incident, cause of death,
presence of appellant and his complicity in the matter, medical report. spot map
and presence of eye witnesses on the spot. Therefore findings may be affirmed.
Learned counsel submits that even if the entire prosecution story is believed as
it is, the offence will not travel beyond Section 304 Part I of IPC. Hence, the
appellant has wrongly been convicted under Section 302 of IPC in absence of
any mens rea and motive in this matter. The appellant is not a habitual criminal.
By mistake he has fired a gun shot pointing the deceased, due to which he died.
Therefore, the sentence of life imprisonment is on higher side, which is liable to
be reduced to the period already undergone, which more than seven years.
5. Per contra, learned Public Prosecutor appearing for the
respondent/State submits that there is an evidence to that effect that there was
previous enmity between them and the appellant fired a gun shot from close
range with an intention to kill the deceased Nizam @ Chunna, who died on the
spot. The presence of the appellant and the use of fire arm by this appellant is
not in dispute. Hence, the conviction under Section 302 of IPC is not liable to
be interfered.
6 . We have heard learned counsel for the parties and perused the
record.
7. As per the statement of Rajuddin (P.W.4), father of the deceased,
on the date of incident the deceased Nizam alias Chunna alongwith his friend
Sabir Khan, Inshaf, Aslam, Zahid, all residents of Dhekan, went to village
Tamasha. In the house of Sabir they were enjoying the tea, but all of a sudden
they heard sound of a gun shot and smoke in the room. They saw the appellant
standing carrying a gun and the deceased lying in pool of blood. According to
Sabir Khan (P.W.1) he and Jahid went to Gram Tamasha and went to the house
of Nazir Beg. They met Inshaf and Aslam in the marriage. When they were
taking meal, they heard sound of gun shot. Likewise Jahid (P.W.2) also heard
sound of gun shot. Aslam (P.W.3) has narrated the story according to which
the gun was hanging on the wall. Inshaf took out the gun and pointed towards
Chunna and fired due to which Chunna fell down. In cross examination, he
admitted that on the date of incident there was no conversation and dispute
between the deceased and accused. All the five were talking happily with each
others. Rest of the witnesses are only hearsay witnesses who were not present
on the spot.
8. The prosecution examined Rajjo Bee as P.W.7, who is resident of
Gram Dhekan. According to her, there was previous enmity between the
appellant and the deceased. Appellant told her that one day he would kill
Chunna but when she was confronted with her police statement, she admitted
that in her police station (Ex.D/1) she did not disclosed this fact to the police.
Therefore, due to this omission and contradiction her deposition in the court is
liable to be discarded.
9. The gun which was used in the commission of this crime is
commonly known as Topidar Bharmar Gun. When it was hanging on the wall, it
was already loaded with the gun powder. It is not the case of the prosecution
that the appellant took out the gun, filled gun powder and thereafter fired by
aiming the deceased. As per the evidence of remaining three witnesses, who are
the close friends of the deceased and appellant, they were chatting happily
during the marriage after taking the meal and suddenly the appellant took out the
gun from the wall and fired a gun shot. It appears that accidentally the appellant
has fired the gun shot towards the deceased and he died on the spot. Therefore,
there was no intention of the appellant to kill the deceased as there was no
previous enmity between them. No dispute was arose on the spot before such
incident. There was no hot talks between them. Therefore, in view of the
aforesaid, we are of the considered opinion that the offence will fall under
Section 304 Part II of IPC.
10. The Hon'ble Supreme Court has held in Gurpal Singh v. State of
Punjab, AIR 2017 SC 471. Para 10 of the judgment reads thus: -
"10. However, in the singular facts of the case and noticing in particular,
the progression of events culminating in the tragic incident, we are inclined
to reduce the sentence awarded to him. Incidentally, the occurrence is of
the year 2004 and meanwhile twelve years have elapsed. Further, having
regard to the root cause of the incident and the events that sequentially
unfolded thereafter, we are of the comprehension that the appellant was
overpowered by an uncontrollable fit of anger so much so that he was
deprived of his power of self-control and being drawn in a web of action
reflexes, fired at the deceased and the injured, who were within his sight.
The facts do not commend to conclude that the appellant had the intention
of eliminating any one of those fired at, though he had the knowledge of
the likely fatal consequences thereof. Be that as it may, on an overall
consideration of the fact situation and also the time lag in between, we are
of the view that the conviction of the appellant ought to be moderated to
one under Sections 304 Part 1 IPC and 307 IPC. Further, considering
the facts of the case in particular, according to us, it would meet the ends
of justice, if the sentence for the offences is reduced to the period already
undergone. We order accordingly."
11. The Hon'ble Supreme Court in the case of Arjun & Another v.
The State of Chhattisgarh reported in AIR 2017 SC 1150 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 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'."
12. The Hon'ble Supreme Court has laid down in Prabhakar Vithal
Gholve v. State of Maharashtra, AIR 2016 SC 2292 that if the assault on
deceased could be said to be on account of the sudden fight without
premeditation, in heat of passion and upon a sudden quarrel, Conviction of the
appellant cannot be sustained under Section 302 of IPC and altered to one
under Section 304 Part-I of IPC.
13. In Sikandar Ali v. State of Maharashtra, AIR 2017 SC 2614,
the Court altered the conviction under Section 302 IPC to one under Section
304 part-2 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."
14. In the case of Premchand v. The State of Maharashtra
(Criminal Appeal No. 211 of 2023 ) reported in 2023 (2) S.C.R. 119, the
apex court has recently held, as under :-
"24. Exception 4 to section 300, IPC ordains that culpable homicide is
not murder 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 or acted in a cruel or unusual manner. The
explanation thereto clarifies that it is immaterial in such cases which party
offers the provocation or commits the first assault. Four requirements
must be satisfied to invoke this exception, viz. (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 or unusual manner.
25. Taking an overall view of the matter, we are inclined to the opinion
that the appellant was entitled to the benefit of Exception 4 to section
300, IPC."
15. The Hon'ble Apex Court laid down in Madhavan & Others v.
State of Tamil Nadu reported in AIR 2017 SC 3847 that: -
"8 . Notably, the High Court has not considered the issue of quantum of
sentence at all, but mechanically proceeded to affirm the sentence awarded
by the Trial Court. From the factual position, which has emerged from the
record, it is noticed that there was a preexisting property dispute between
the two families. The incident in question happened all of a sudden without
any premeditation after PW1 questioned the appellants about their
behaviour. It was a free fight between the two family members. Both sides
suffered injuries during the altercation. The fatal injury caused to Periyasamy
was by the use of thadi (wooden log) which was easily available on the spot.
The appellants, on their own, immediately reported the matter to the local
police alleging that the complainant party was the aggressor. No antecedent
or involvement in any other criminal case has been reported against the
appellants. Taking oral view of the matter, therefore, we find force in the
argument of the appellants that the quantum of sentence is excessive."
16. In Chand Khan v. The State of Madhya Pradesh reported in
2006 (3) M.P.L.J. 549 , the Division Bench of this Court has also converted
the conviction of the appellant in attaining facts and circumstances of the case.
Para - 10 & 11 of the judgment are relevant which read thus: -
"1 0 . If the present case is considered in the light of the aforesaid
decisions of the Supreme Court, it would show that the appellants caused
single injury on the head of the deceased by farsa, which is a sharp edged
weapon, but unfortunately Aziz Khan (PW-11) and Ishaq Khan (PW-13)
have stated that he gave lathi blow on the head of the deceased. Even
after considering this contradictory evidence it has to be taken into
consideration that it is a case of single farsa blow inflicted by only
appellant Chandkhan and appellant Naseem inflicted only lathi blow on
the nonvital part of the body and in the absence of this evidence that the
injury no.(i) was sufficient to cause death in the ordinary course of nature
and also looking to the various other circumstances like that the accused
as well as the deceased are close relatives and the deceased was a
person of criminal background and the incident started because of the
abuses made first by the deceased himself, we find that the case will not
fall within the purview of section 300, Indian Penal Code but it will fall
under section 304 Part II, culpable homicide not amounting to murder.
11 . Consequently, appeal is partly allowed. Conviction of appellants
under section 302/34 Indian Penal Code, is set aside and instead they are
convicted under section 304 part II, Indian Penal Code, .........."
17. In the case of Ankush Shivaji Gaikwad v. State of Maharashtra
reported in (2013) 6 SCC 770, the Supreme Court of India has held as under:-
"10. On behalf of the appellant it was contended that the appellant's case fell
within Exception 4 to Section 300 IPC which reads as under:
Exception 4.Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion
upon a sudden quarrel and without the offender's having taken
undue advantage or acted in a cruel or unusual manner.
11. It was argued that the incident in question took place on a sudden fight
without any premeditation and the act of the appellant hitting the deceased
was committed in the heat of passion upon a sudden quarrel without the
appellant having taken undue advantage or acting in a cruel or unusual
manner. There is, in our opinion, considerable merit in that contention. We
say so for three distinct reasons:
11.1. Firstly, because even according to the prosecution version, there was
no premeditation in the commission of the crime. There is not even a
suggestion that the appellant had any enmity or motive to commit any offence
against the deceased, leave alone a serious offence like murder. The
prosecution case, as seen earlier, is that the deceased and his wife were
guarding their jaggery crop in their field at around 10 p.m. when their dog
started barking at the appellant and his two companions who were walking
along a mud path by the side of the field nearby. It was the barking of the
dog that provoked the appellant to beat the dog with the rod that he was
carrying apparently to protect himself against being harmed by any stray dog
or animal. The deceased took objection to the beating of the dog without in
the least anticipating that the same would escalate into a serious incident in
the heat of the moment. The exchange of hot words in the quarrel over the
barking of the dog led to a sudden fight which in turn culminated in the
deceased being hit with the rod unfortunately on a vital part like the head.
11 . 2 . Secondly, because the weapon used was not lethal nor was the
deceased given a second blow once he had collapsed to the ground. The
prosecution case is that no sooner the deceased fell to the ground on
account of the blow on the head, the appellant and his companions took to
their heels a circumstance that shows that the appellant had not acted in an
unusual or cruel manner in the prevailing situation so as to deprive him of the
benefit of Exception 4.
11.3. Thirdly, because during the exchange of hot words between the
deceased and the appellant all that was said by the appellant was that if the
deceased did not keep quiet even he would be beaten like a dog. The use of
these words also clearly shows that the intention of the appellant and his
companions was at best to belabour him and not to kill him as such. The
cumulative effect of all these circumstances, in our opinion, should entitle the
appellant to the benefit of Exception 4 to Section 300 IPC."
18. In view of the above discussion and verdicts of the Apex Court, the
Criminal Appeal is partly allowed. We hereby confirm all the findings given by
the learned Sessions Judge except the conviction which is hereby altered to
Section 304 Part II of IPC, instead of Section 302 of IPC and accordingly
sentence is reduced from Life Imprisonment to the period already undergone.
The fine amount is maintained as imposed by the trial Court. The appellant be
set free, after depositing the fine amount, if not deposited, if he is not required
to keep in jail in any other case.
19. Record of the trial Court be sent back along with a copy of this
judgment. The copy of this order be sent to jail authorities by faster mode.
(VIVEK RUSIA) (SANJEEV S KALGAONKAR)
JUDGE JUDGE
SP
SANJEEV
KUMAR
PHANSE
2024.06.01
11:23:58 +05'30'
