Madhya Pradesh High Court
Muhammad Rahees Khan vs The State Of Madhya Pradesh on 6 May, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 6 th OF MAY, 2025
CRIMINAL APPEAL No. 1058 of 2021
MUHAMMAD RAHEES KHAN
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sharad Verma, Advocate for the appellant.
Shri Nitin Gupta, Public Prosecutor for the respondent - State.
JUDGMENT
Per: Justice Vivek Agarwal
With the consent of learned counsel for the parties, heard finally.
This appeal under Section 374(2) of Code of Criminal Procedure,
1973, is filed by the appellant-Muhammad Rahees Khan S/o Shri Munna
Khan, being aggrieved of the judgment dated 12.02.2021, passed by II
Additional Session Judge, Hata, District Damoh (M.P.), in
S.T.No.100256/2016, whereby, appellant has been convicted under Section
302 of Indian Penal Code (hereinafter referred to as 'IPC' for short), for
which he is sentenced to undergo R.I. for life and fine of Rs.2,000/-, with
default stipulation of 02 months additional R.I..
2. As per the prosecution story, appellant Muhammad Rahees Khan is
son of the deceased. He was born from the first marriage. Thereafter,
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deceased had contacted second marriage and has children Roshni (PW/1),
Amzad Khan (PW/2), Salman Khan (PW/3) and Javed Khan (PW/4). It is
submitted that it's a case of single blow on account of demand for share in
father's property. It is thus submitted that it being a case of single blow, there
was no intention to cause death, there are no eye witnesses to the incident,
therefore, it's a good case to record acquittal in favour of the appellant and in
the alternative, it is pleaded that conviction be modified from one under
Section 302 IPC to 304 Part-I IPC.
3. Shri Nitin Gupta, learned Public Prosecutor, opposes the prayer and
submits that as per the report of Dr. R.P. Pyasi (PW/8), who had conducted
postmortem on the body of the deceased, there were four wounds on the
body of the deceased, namely, a stitched lacerated wound measuring 3" x
0.5" inch bone deep on the right parietal region of the head. There was a
contusion measuring 2" x 1 " inch on the right temporal part of the head.
There was a another contusion 1" x 1" inch on the left parietal area of the
head and both contusion was 2" x 1" on the occipital region of head. Thus, it
is not a case of acquittal.
4. It is also submitted that Dr. Brajesh Yadav (PW/6), opined in
relation to the query that the injury which was measuring 10 x 0.5 cm could
have caused death of the deceased Munna Khan.
5. After hearing learned counsel for the parties and going through the
record, Roshni (PW/1), is the daughter of the deceased. She admitted that
appellant Muhammad Rahees Khan, is her step brother. She admitted that at
the time of the incident between 1:00-1:30 hours, she was visiting her
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brother Saleem, who was residing in the neighbourhood. Her mother
Haseena Bi, was at home, but she is deaf and dumb. She stated that her
father Munna Khan had contacted first marriage with Salma Bi of Jabalpur.
Muhammad Rahees Khan is son from Salma Bi and is her step brother.
After marriage of her elder brother Amzad (PW/2), Rahees Khan used to
complain in the colony that he was not given proper treatment.
6. On the date of the incident, Rahees Khan had come to Hata from
Jabalpur. Her father was taking bath. Mother was alone. She was in
neighbourhood. Appellant had hit her father with an iron rod on the back
portion of head, as a result of which, when her father shouted, she came
running to the house and saw Rahees Khan running.
7. Roshni (PW/1), had seen her father lying in the bathroom. When
she called other persons, then they gathered. Her father was taken to Hata
hospital from where he was referred to Damoh.
8. This witness admitted that her father had not carried any partition in
his property and for last 4-5 years, Rahees Khan was demanding his share in
the property of his father. She admitted that no 'Marpeet' had taken place
with her father and there was enmity with Rahees Khan on account of his
demand for share in the property. She also admitted that her father was
taking bath in the bathroom and at that time, mother was not present. She
was present on the roof of the house at the time of the incident.
9. Smt. Haseena Bi (PW/9), is the wife of the deceased. She was
examined with the help of Roshni (PW/1), who claimed that she understands
sign language and converses with her mother in sign language. After having
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said in her examination-in-chief that she had seen the incident in cross-
examination, Smt. Haseena Bi (PW/9), admitted as has been done by Roshini
(PW/1), that when she had reached the bathroom, she had seen her husband
lying unconscious in the bathroom bleeding from head. Thus, it is evident
that there is no eye witness to the incident.
10. The circumstance which appears to be against the appellant is that
he was seen coming out of the house in the bathroom of which Munna Khan
was lying as deposed by Roshni (PW/1) as well as other witness Amzad
Khan (PW/2).
11. Amzad Khan (PW/2) and Salman Khan (PW/3), are not the eye
witnesses to the incident, inasmuch as, Roshni (PW/1), admitted that when
she had reached the bathroom of her house after hearing cries of her father,
then she had raised an alarm when other persons residing in the
neighbourhood had gathered.
12. Dr. Brajesh Yadav (PW/6), supported the case that there was one
wound on the right hand side of the head of the deceased measuring 10 x 0.5
cm which was fresh and bleeding. It was caused by hard and blunt object. In
the query report, Ex.P/8, this doctor also stated that said injury on the right
hand side of the head could have caused death.
13. Dr. R.P. Pyasi (PW/8), found certain contusions also besides the
injury measuring 3" x 0.5" inch, which caused death, but he opined that if
patient would have been given timely and proper higher treatment, then his
life could have been saved.
14. Therefore, when all these facts are taken into consideration, then
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none of the requirements of firstly to fourthly laid down in Section 300 IPC
are made out, but case falls within the clause (2) of Section 299 IPC, which
says that with the intention of causing such bodily injury as is likely to cause
death, conviction under Section 302 IPC will not be sustainable in the eyes
of law specially when this Court has observed that none of the ingredients of
Section 300 IPC are fulfilled in the present case and case will fall in second
clause of Section 299 IPC.
15. The Supreme Court in Mohd. Rafiq alias Kallu Vs. State of
Madhya Pradesh [(2021) 10 SCC 706], has held that if essential elements
show that appellant did not have any previous quarrel with deceased, there
was lack of animus act resulting in death was not premediated, though it
cannot be said that there was a quarrel caused by sudden provocation, when
the act appears to have been in the heat of passion, or rage, then appellant's
conviction under Section 302 not appropriate but the Supreme Court
convicted under Section 304 Part-I, as he had intention of causing such
bodily harm to deceased as was likely to result in his death.
16. In the present case, facts be relatable to the facts of the aforesaid
judgment in Mohd. Rafiq alias Kallu (supra), its ratio will be applicable to
the facts of the present case.
17. Accordingly, appeal is partly allowed. The impugned judgment of
conviction and sentence are hereby modified and conviction is modified from
under Section 302 IPC to Section 304 Part-I IPC. Appellant is directed to
undergo R.I. for 10 years with fine of Rs.5000/- (Rupees Five Thousand),
with default stipulation of two months R.I. Case property be disposed off as per
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the orders of the trial Court.
18. Record of the trial Court be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
A.Praj.
