Madhya Pradesh High Court

Zafar @ Munna vs The State Of Madhya Pradesh on 16 October, 2025

Author: Vivek Rusia

Bench: Vivek Rusia

                           NEUTRAL CITATION NO. 2025:MPHC-IND:30780



                                                                                             1                                 CRA-9564-2018

                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT I N D O R E
                                                     BEFORE
                                                   HON'BLE SHRI JUSTICE VIVEK RUSIA
                                                                                      &
                                        HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI

                                                          ON THE 16th OF OCTOBER, 2025
                                                        CRIMINAL APPEAL No. 9564 of 2018
                                                                        ZAFAR @ MUNNA
                                                                                 Versus
                                                      THE STATE OF MADHYA PRADESH
                           .............................................................................................................................
                           Appearance:
                                         Shri Yash Dixit and Shri Raghunandan Soni - Advocates for
                                         appellant.
                                         Shri Sonal Gupta - Additional Advocate General for the respondent /
                                         State.
                           .............................................................................................................................
                                                                                ORDER

Per: Justice Binod Kumar Dwivedi

This appeal is directed against the judgment and order dated

01/11/2018 passed in Registration No.500833/2012, whereby learned XX

Additional Sessions Judge, Indore (M.P.) has convicted the appellant under

Section 302 of Indian Penal Code, 1860 (hereinafter for short referred as, 'IPC')

for committing murder of Mehboob Khan and sentenced to undergo

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Imprisonment for Life with fine of Rs.10,000/- and in default of payment of

fine to further undergo rigorous imprisonment for one year.

2. It is admitted that Firdaus (PW-11) is wife and Tasmiya @ Saniya

(PW-35) is daughter of the appellant. It is also not in dispute that at the time of

incident, Firdaus (PW-11), daughter Tasmiya (PW-35), son Yavar and Aasif and

younger daughter Phalak were present on the spot. It is also not in dispute that

injuries have been caused to the deceased by knife, who was domestic help with

the appellant.

3. Prosecution story as having emerged during trial briefly stated is that

on 17/02/2012 an information was given to Police Station Pandhrinath that

Mehboob Khan resident of 122/2, Nagharsiddhi, Indore has been killed by the

appellant by stabbing in his bedroom. On this information, Head Constable

Dashrath Mandloi, who was on duty in Bombai Bazar Police Chowki came to

the house of the appellant with Constable Arun, where Tasmiya @ Saniya on

inquiry informed that a quarrel took place between servant Mehboob Khan and

appellant Zafar @ Munna. Deceased stabbed his father, the appellant Mehboob

Khan and on this appellant also in self defence stabbed Mehboob Khan, who is

lying in the injured state in bedroom and his father, who is also injured has been

taken to hospital by his mother, wife of appellant Firdaus (PW-11). On the first

floor of the house in bedroom of appellant, Mehboob Khan was found

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unconscious state with bleeding injuries on his face and stomach. He was taken

to the ground floor with the help of the persons present there and Constable

Manoj in auto-rickshaw took the injures Mehboob Khan to the Hospital, where

doctor declared him dead. The dead body of the deceased was sent to mortuary

and FIR (Ex.-P/7) was registered at Police Station Pandhrinath on 17/02/2012

at Crime No.46/2012 under Section 302 of IPC and investigation was ensued.

4. Merg was registered and from the spot i.e. house of the appellant a

knife, blood spilled on the floor, 6 currency notes of Rs.100/- denominations;

four notes of Rs.10/- denominations; 05 coins of Rs.1/- soiled with blood along

with footrest and sleepers were seized and seizure memo (Ex.-P/21) along with

search memo (Ex.-P/22) were prepared. On 18/02/2012 dead body was sent for

conducting postmortem.

5. Dr. Bharat Vajpayee (PW-24) conducted autopsy on the dead body

and found following injuries:

                                     i)     One incised wound on left eye size 2.1 cm;
                                     ii)    One incised wound on middle of the jaw size 3 x 1 x ½ cm;

iii) Four incised wounds below the left eye and cheek;

iv) One incised wound on left side of left eye size 1 x 1 / 2 x ½ cm;

v) One incised wound on middle of upper lips size 3 x 1 x ½ cm;

vi) One incised wound on eyebrow of left eye size 2 x 1 x ¼ cm;

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vii) One incised wound on the bridge of nose size 1.5 x ½ cm;

viii) One incised wound above the eye brow of left eye size 4 x 1 x ½ cm;

ix) One incised wound on the right shoulder size 3 x 1 x ¼ cm;

x) One incised wound below the injury mentioned at Sr. No.(ix) size 2 x 1 x ¼ cm;

xi) Two small incised wounds on right side of chin;

xii) One incised wound in middle of the chin size 3 x 1 / 2 x ½ cm;

xiii) One incised wound on right ring and lower part of the little finger size 2 x ½ x ½ cm;

xiv) One incised wound on the left side of left clevical bone size 4 x 2 x ½ cm;

xv) One stabbed wound size 3 x 1 x 8 cm, 06 cm left of the nipple which was going to left lung. In the cavity of lung 1.5 liter blood was found and lung was punctured and depressed. The aforesaid wound was going from right to back side and to right side up to some extent;

xvi) One incised wound on the lower bone of the chest size 8 x 3 x 6 cm. Right part of the liver was also damaged and 1.5 liter blood was present in the stomach;

xvii) One contusion abrasion size 2 x 1 cm was found present on lower side of right forearm; and xviii) 1 x 3 cm interrupted contusion abrasion was found on right arm, which was from upper side and going towards outside. Dr. Bharat Vajpayee (PW-24) opined that deceased has died due to

profuse bleeding from the injuries found on the body of the deceased and

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further said that the death was within 24 hours from the time of postmortem.

Dr. Bharat Vajpayee answered the queries by document (Ex.-P/20) and opined

that all the injuries can be caused by the knife. Knife was seal packed and

submitted for FSL examination.

6. After completion of investigation, charge sheet was filed before the

Judicial Magistrate First Class, Indore of competent local jurisdiction, who after

due compliance of Section 207 of Code of Criminal Procedure, 1973

(hereinafter for short referred as, 'Cr.P.C.') committed the case to the Court of

Session. Learned Sessions Judge made over the case to the Additional Sessions

Judge, who framed charge under Section 302 of IPC against the appellant and

read over to him, who abjured the guilt and claimed to be tried.

7. The prosecution in order to prove the case has examined as many as

35 witnesses. Apart that documents Ex.-P/1 to P/34 were also marked in

evidence. The incriminating circumstances appearing in the prosecution

witnesses against the appellant in prosecution evidence were brought to his

notice during his examination under Section 313 of the Cr.P.C.

8. The appellant has stated in response to the questions under Section

313 of the Cr.P.C. that he was attacked by the deceased with knife due to which

he was seriously injured and taken to the hospital by his wife Firdaus (PW-11)

and deceased was found in injured state in his bedroom. He has also admitted

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that at the time of incident his wife, younger daughter Falak, younger sons

Yavar and Aasif at about 08:30 pm had returned to the house from maternal

grand mother's house in Azad Nagar and in answer to the question No.20 he

has stated that Mehboob has assaulted him with knife, wherein he was seriously

injured. When Tasmiya and other family members came on the spot, Mehboob

Khan (the deceased) was trying to kill him. He has also admitted in question

No.22 that Tasmiya (PW-35) and Firdaus (PW-11) also received injuries in the

scuffle.

9. The date of the incident i.e. 17/02/2012 and time 08:00 to 08:30 pm

has also been admitted by the appellant in the question put to him under Section

313 of Cr.P.C. He has further admitted that when her wife Firdaus (PW-11)

came in to the room, the deceased was assaulting him with knife, wherein

Firdaus (PW-11) and Tasmiya (PW-35) have intervened, who were assaulted by

the deceased.

10. He has further admitted that he suffered injury on stomach and nearby

eye from where blood was oozing out and he was admitted for treatment in T.

Choithram Hospital. He has further admitted that the deceased was in service

with him and was residing nearby his house. He has admitted in answer to

question No.36 that he in the provocation and to save his wife and daughter,

snatched knife from the deceased and stabbed him with that knife. He has also

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admitted his arrest through arrest memo (Ex.-P/30).

11. In further questions, he has stated that he was admitted in ICU for

treatment and levelled allegations against the deceased that he stabbed him to

kill. He has taken a specific defense that his domestic help the deceased

Mehboob Khan stabbed him several times, in which he got seriously injured. At

the same time, his wife Firdaus (Ex.-P/11) and Tasmiya (PW-34) came there.

They have interfered and they were also attacked by the deceased in sudden

impulse in self defense snatched knife from Mehboob Khan and stabbed him.

He never intended to kill him.

12. To prove his defense, appellant has examined Dr. Chandrashekhar

Chamaniya (DW-1), Dr. Ashwini Das (DW-2) and Dr. Arjun Wadhwani (DW-

3). Learned trial Court after appreciating the evidence available on record vide

impugned judgment convicted the appellant for murder of deceased Mehboob

Khan under Section 302 of IPC and sentenced to undergo as mentioned

hereinabove which gave rise to this appeal.

13. Challenging the conviction and sentence, it is submitted on behalf of

the appellant that he has no intention to commit murder of the deceased. He

was attacked by the deceased with knife and he along with his wife Firdaus

(PW-11) and daughter Tasmiya (PW-35), who came to save him, were also

attacked and they got injured. Appellant got serious injury and in grave and

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sudden provocation to exercise right of self defense for himself, his wife and

daughter, he snatched knife from the hand of the deceased and caused injuries

to the deceased by that knife, therefore, he was well within his right to self

defense provided under law for his person and person of the wife and daughter.

He could not have been held guilty for the offence under Section 302 of IPC.

Learned trial Court has failed to appreciate the evidence in the right perspective

and defense taken by the appellant, which has properly proved has been

discarded for holding him guilty under Section 302 of IPC, which is

unsustainable. It comes under exception (1) of Section 300 of IPC.

14. To buttress his submission, learned counsel for the appellant has

placed reliance on para 18 of the judgment by the apex Court in the case of

Dharam and Others Vs. State of Haryana reported in (2007) 15 SCC 241.

He has further placed reliance on the judgment delivered by the apex Court in

the case of Patori Devi and Another Vs. Amar Nath and Others reported in

1988 (1) SCC 610 and Birju Vs. State of Madhya Pradesh reported in (2014)

3 SCC 421. On these submissions, he has urged the Court to acquit the

appellant from the charges. Alternatively, he has argued that utmost this case

can travel to Section 304-I of IPC for exceeding the right of private defense and

therefore, if Court finds appellant guilty, his sentence may be altered from 302

to Section 304-I of IPC.

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15. Sounding contra note, learned counsel for the State has submitted that

the appellant is known criminal having record of 25 cases. He has murdered his

domestic help without any reason. Evidence available on record proves that.

Learned trial Court has appreciated the evidence available on record in right

perspective and held guilty the appellant for offence under Section 302 of IPC

and sentenced accordingly, which is appropriate. No fault can be found with in

convicting and sentencing the appellant, therefore, prays for dismissing the

appeal as it is devoid of any substance.

16. In reply, learned counsel for the appellant submitted that out of 25

cases, he has been convicted only in 05 cases. Mere criminal record cannot

deprive him of right of self defense provided under the law.

17. Heard and considered the rival submissions raised at bar and perused

the record.

18. Dr. Chandrashekhar Chamaniya (DW-1) has stated that on 17/02/2012

he was posted in Surgical Department of Choithram Hospital along with Dr.

Neela Ojha. He was told that some case of stab injury is there. On examination

he found stab injuries on stomach and chest and on both the hands of the

appellant Zafar Baig. During the operation in huge quantity blood was found in

stomach and in the left lobe of the liver. Injury was 3 inch deep and was

bleeding. Liver was repaired. No other organ except liver was damaged. Report

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(Ex.-P/28) was recorded by Dr. Neela Ojha. He has further opined that injury

found in the liver of the appellant was sufficient to cause death. This witness

has been cross-examined, but nothing has surfaced to demolish the testimony of

this witness.

19. Dr. Ashwini Das (DW-2) has also stated before the Court that the

above fact that Jafar Baig was admitted in the Choithram Hospital for the

treatment of injuries on his stomach and hands, which were told to have been

sustained during some quarrel. In emergency ward he was operated. In his right

hand a 'V' shaped injury was also found. Veins of two figures of left hand were

also found cut/damaged. Tendons and tissues were repaired. He has proved

notes prepared during surgery from Ex.-D/12 to D/12 written by his junior Dr.

Suyash.

20. Dr. Arjun Wadhwani (DW-3) has proved notes (Ex.-D/16), which was

prepared during treatment of appellant Zafar Baig, who has suffered injury in

index finger of left hand and index finger of right hand where flexor tendon

were found. Thus, it is not in dispute that the deceased was assaulted by the

appellant, who got several injuries, which resulted in his death. In the same

incident, the appellant, his wife Firdaus (PW-11) and daughter Tasmiya @

Saniya (PW-35) have also been found injured, which is proved by the evidence

available on record.

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21. Dr. Sharad Dubey (PW-29), who has referred the appellant Zafar Baig

to ICU has also stated that he found a 3 inch stabbed wound in the chest of the

appellant, which was from the bone of the chest to stomach. He also found 3 x

1 cm CIW and 1 x 1 cm CIW and also 2 x 1 cm, which is mentioned in the

MLC report (Ex.-P/26) prepared by this witness.

22. From the testimony of the aforesaid doctors, Dr. Chandrashekhar

Chamaniya (DW-1), Dr. Ashwini Das (DW-2) and Dr. Arjun Wadhwani (DW-3)

along with the the admissions made by the appellant in his answers to the

questions put to him in the examination under Section 313 of Cr.P.C., it is found

prove that he has sustained injuries, which were serious in nature.

23. Firdaus (PW-11) and Tasmiya @ Saniya (PW-35) have also proved

defense story by their statements. Injuries found on the person of the Firdaus

(PW-11) and Tasmiya (PW-35) have been proved by Dr. Vibhuti Pathak (PW-

26).

24. Dr. Neela Ojha (PW-28) has also proved the injuries found on the

body of the appellant. This witness in para 3 has opined that injuries found on

the person may be self inflicted but looking to the nature it is difficult to accept

the aforesaid opinion.

25. From the aforesaid evidence in the form of admission by the appellant

and adduced by the prosecution, it is well proved that the injuries found on the

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body of the deceased were caused by the appellant during the scuffle between

him and the deceased. It is also proved that the appellant was also seriously

injured in the incident. Prosecution has not proved the genesis of the incident

but what transpires from the evidence available on record is that it is a case

where there was sudden dispute between the appellant and the deceased, who

was armed with knife, who not only attacked on the appellant but wife of the

appellant Firdaus (PW-11) and daughter Tasmiya (PW-35) who intervened to

save the appellant, right of self defense has been taken by the appellant.

Therefore, the only fact which remains to be examined is that whether the

appellant has any right of private defence and if so, to what extent; and whether

he has exceeded in the exercise of right of private defence.

26. In Section 96 of the IPC, right of private defence has been given to

the public mentioning therein that nothing is an offence which is done in

exercise of right of private defence. It is not in dispute that burden of proving

private defence is on the person who takes the plea. Section 97 of the IPC

provides that that the right of private defence is available for the body and also

for the property.

27. Section 100 of the IPC provides that when the right of private defence

of body extends to causing death. Since this provision is applicable in the

instant case, therefore, it is apposite to reproduce the same, which runs, as

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under: -

"100. When the right of private defence of the body extends to causing death.--The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:--

First.--Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly.--Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly.--An assault with the intention of committing rape; Fourthly.--An assault with the intention of gratifying unnatural lust;

Fifthly.--An assault with the intention of kidnapping or abducting;

Sixthly.--An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. Seventhly.--An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act."

28. Section 102 of IPC provides that right of private defence of the body

commences as soon as reasonable apprehension of danger to the body arises

from an attempt or threat to commit the offence though the offence may not

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have been committed and it continues as long as such apprehension of danger

of body continues.

29. Learned counsel appearing for the appellant has placed reliance on

the judgment delivered by the Apex Court in case of Dharam (Supra), wherein

Sections 96 to 105 of IPC have been analyzed for the right of private defence,

relevant paragraphs No.15 to 19 are reproduced, as under: -

"15. Section 96 IPC provides that nothing is an offence which is done in exercise of the right of private defence. The expression "right of private defence" is not defined in the section. The section merely indicates that nothing is an offence which is done in the exercise of such right. Similarly, Section 97 IPC recognises the right of a person not only to defend his own or another's body, it also embraces the protection of property, whether one's own or another person's against certain specified offences, namely, theft, robbery, mischief and criminal trespass. Section 99 IPC lays down exceptions to which rule of self-defence is subject. Section 100 IPC provides, inter alia, that the right of private defence of the body extends, under the restrictions mentioned in Section 99 IPC, to the voluntary causing of death, if the offence which occasions the exercise of the right be an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. In other words, if the person claiming the right of private defence has to face the assailant, who can be reasonably apprehended to cause grievous hurt to him, it would be open to him to defend himself by causing the death of the assailant.

16.The scope of right of private defence is further explained in Sections 102 and 105 IPC, which deal with commencement and continuance of the right of private defence of body and property respectively. According to these provisions the right commences as soon as a reasonable apprehension of danger to

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the body arises from an attempt or threat, to commit offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as reasonable apprehension of the danger to the body continues (see Jai Dev v. State of Punjab [AIR 1963 SC 612 :

(1963) 1 Cri LJ 495] ).

17.To put it pithily, the right of private defence is a defensive right. It is neither a right of aggression nor of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. Necessity must be present, real or apparent (see Laxman Sahu v. State of Orissa [1986 Supp SCC 555 : 1987 SCC (Cri) 173 : AIR 1988 SC 83]).

18.Thus, the basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. We may, however, hasten to add that the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon a host of factors like the prevailing circumstances at the spot, his feelings at the relevant time, the confusion and the excitement depending on the nature of assault on him, etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence.

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19. It is trite that the burden of establishing the plea of self- defence is on the accused but it is not as onerous as the one that lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea of self-defence to the hilt and may discharge the onus by showing preponderance of probabilities in favour of that plea on the basis of the material on record (see Munshi Ram v. Delhi Admn. [AIR 1968 SC 702 : 1968 Cri LJ 806], State of Gujarat v. Bai Fatima [(1975) 2 SCC 7 :

1975 SCC (Cri) 384 : AIR 1975 SC 1478] and Salim Zia v. State of U.P. [(1979) 2 SCC 648 : 1979 SCC (Cri) 568 : AIR 1979 SC 391] )."

30. Hon'ble the Apex Court has aptly elaborated on the right of private

defence and held that in disturbed equilibrium of mind, it cannot be expected

from a person under threat of his life to apply the force weighed in golden

scale.

31. In the instant case, the appellant has taken a specific defence that he

was attacked by the deceased and when his wife Firdaus (PW-11) and daughter

Saniya came to intervene, they were also assaulted by the deceased and also got

injuries.

32. It has been found proved from the statement of Dr. Chandrashekhar

Chamniya (DW-1), Dr. Ashwini Das (DW-2), Dr. Arjun Wadhwani (DW-3), Dr.

Vibhuti Pathak (PW-26), Dr. Ramesh Mehta (PW-27), Dr. Neela Ojha (PW-28)

and Dr. Sharad Dubey (PW-29), as discussed herein above, and that the present

appellant suffered injuries and in his stomach, damaging his liver and his wife

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Firdaud (PW-11) and daughter Tasmina @ Saniya (PW-35) also suffered

injuries. The appellant has also taken a defence that he snatched knife from the

deceased and by that knife he also attacked him to save himself and his wife

and daughter, which has ultimately resulted in his death. Learned trial Court has

appreciated the evidence in this regard and in para 47 of the impugned

judgment held that if the version of the appellant is accepted and when knife

from the deceased was snatched, thereafter deceased was disarmed. The

appellant, his wife, his son and daughter being four in number could have

overpowered him and threat to their life had come to an end. Thereafter, there

was no reason to assult the deceased in the manner in which he has been

assaulted by the appellant, which in itself prove that the appellant had intention

to kill the deceased. But, here when we scrutinize the evidence available on

record, in the light of judgment in case of Dharam (Supra), we find that any

set pattern of response cannot be expected from all the persons. It depends upon

man to man how any one reacts in given set of facts and circumstances.

33. In the instant case, when it has been proved that the appellant has

sustained grievous stab injury damaging his liver and his wife and daughter

have also got injuries in the incident, then the reasoning given by the trial

Court, that the appellant has no right of private defence cannot be accepted. But

it is apparent from the face of record that right of private defence has been

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exceeded to by the appellant. He should have stopped causing injuries to the

deceased when he he was disarmed. Thus, we are of the considered view that

though there was a right of private defence available to the appellant, but here

he has exceeded that right, which brings offence in the purview of Section 304

Part-I of the IPC.

34. Therefore, in our considered opinion, the appellant is liable to be

punished under Section 304 Part-I of the IPC instead of Section 302 of the IPC.

The learned trial Court has not adverted to this factual and legal aspect of the

matter, as mentioned above, therefore, the conviction recorded against the

appellant deserves to be modified.

35. Resultantly, the appeal is partly allowed. The conviction of the

appellant is altered from Section 302 of IPC to Section 304 Part-I of IPC. In the

facts and circumstances of the case, when the appellant has already served out

more than thirteen years of jail sentnece (he is in continuous custody since

26.02.2012, as mentioned in para 59 of the impugned judgment), therefore, in

the facts and circumstances of the case, ends of justice will be served, if he is

sentenced to the period already undergone by him with fine of Rs.10,000/-

(Rupees Ten Thousand Only). He is awarded jail sentence for the period

already undergone. In default of payment of fine, the appellant shall have to