Md. Aazam @ Azam vs The State Of Bihar
2023 Latest Caselaw 4046 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.132 of 2020
       Arising Out of PS. Case No.-249 Year-2017 Thana- ARARIA District- Araria
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Md. Aazam @ Azam Son of Md. Rahman Resident of Village - Bochi, Ward No. 01 Ghurana Tola, Rampur Mohanpur East, P.S.- Araria (Bairgachhi), Distt

- Araria.

... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Anil Prasad Singh, Adv. For the Respondent/s : Mr. Ajay Mishra, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 25-08-2023

Heard Mr. Anil Prasad Singh, the learned

advocate for the appellant and Mr. Ajay Mishra for the

State.

The appellant stands convicted under Section

302 of the Indian Penal Code vide judgment dated

11.12.2019 passed by the learned 1 st Additional Sessions

Judge, Araria in Sessions Trial No. 368 of 2017 / C.I.S.

No. 368 of 2017 and by order dated 17.12.2019, he has

been sentenced to undergo imprisonment for life, to pay

a fine of Rs. 50,000/- and in default of payment of fine, Patna High Court CR. APP (DB) No.132 of 2020 dt.25-08-2023

to further suffer simple imprisonment for one year.

The appellant is alleged to have given a knife

blow which hit the deceased in his chest leading to his

death.

The appellant is the cousin of the deceased.

Bibi Nagina, the wife of the deceased, has

lodged the F.I.R. on 17.04.2017 at her house at about

07:45 PM alleging that on the same day at about 4

o'clock in the evening, her husband (deceased) had lef

home for taking tea at the shop of co-accused Lazim

(since acquitted). Shortly thereafer, a neighbour viz. Md.

Nauman (PW-1) informed her that the appellant is

fighting with her husband. On such information, she came

running to the tea shop of Lazim where she found that

her husband and the appellant were engaged in a scuffle.

In her presence, the appellant is alleged to have taken

out a knife from his pocket and hit her husband

(deceased). This was witnesses by Md. Lazim and Md.

Ishrail who did not do anything to stop the appellant from Patna High Court CR. APP (DB) No.132 of 2020 dt.25-08-2023

committing the murder. Afer committing the aforenoted

offence, the appellant along with Lazim and Ishrail ran

away. Many persons of neighbourhood had arrived, who

helped her in taking the deceased to the hospital but, the

deceased died on the way. The reason ascribed for the

appellant to kill the deceased was his opposition to the

illegal acts of the appellant.

On the basis of the aforenoted fardbeyan

statement of Bibi Nagina (PW 6), Araria (Bairgachhi) P.S.

Case No. 249 of 2017 dated 17.04.2017 was registered

for investigation for offences under Sections 302, 120B

and 34 of the Indian Penal Code against the appellant

and two others.

The Police submitted charge-sheet against

three accused persons including the appellant and the

case was tried. The Trial court, afer examining seven

witnesses on behalf of the prosecution, convicted and

sentenced the appellant as aforesaid but, acquitted the

two other accused persons namely Md. Lazim and Md. Patna High Court CR. APP (DB) No.132 of 2020 dt.25-08-2023

Ishrail, both of whom had been running their respective

tea shops near the place of occurrence.

Bibi Nagina (P.W. 6) has supported the

prosecution case at the trial and has claimed to be the

eye witness to the appellant having thrust a knife in the

body of the deceased. She has also alleged that Md.

Lazim and Ishrail (since acquitted) kept watching the

occurrence and never intervened. For the first time, she

stated before the Trial court that because of the deceased

having forbade the appellant from smoking Ganja, the

appellant started fighting with him and hit him with the

knife.

About the source of information which made

her go to the place of occurrence and be a witness to the

murder of her husband, she has disclosed that Nauman

(PW 1) had come in person and had told her about the

appellant fighting with the deceased. She had seen the

earlier part of the fight also because in her presence, the

knife blow was given to the deceased. The deceased was Patna High Court CR. APP (DB) No.132 of 2020 dt.25-08-2023

hit in his chest. She tied the wound of the deceased with

a towel. She never informed the police about the

occurrence as she became busy in taking the deceased

for treatment to the hospital. She did not even pick up

the weapon of assault which the appellant had thrown at

the place of occurrence. When on way, the deceased

died, she brought the dead-body to her home. Thereafer,

the police had arrived at her home. The police had taken

the blood stained clothes of the deceased but not of hers.

Nauman (P.W. 1), however, has some what

different story to narrate. Though he has supported the

prosecution case of the appellant having killed the

deceased but has not claimed himself to be related to

P.W.6. In fact, at the trial, he claimed to have called

P.W.6 on telephone and only then she arrived at the P.O.

He has also disclosed in his cross-examination that when

P.W. 6, the wife of the deceased, came to the P.O., by

that time, the deceased had already fallen on the ground

and several persons had assembled there. The police had Patna High Court CR. APP (DB) No.132 of 2020 dt.25-08-2023

not asked anything from him when he had come to the

P.O.

If the deposition of P.W.1 is scrutinized with

some circumspection, it would appear that P.W.6 might

not have actually seen the attack. She has claimed to

have learnt from Nauman (P.W.1) about the occurrence

but if Nauman would have gone in person to P.W.6,

perhaps he would also not be an eye witness to the

occurrence. He only claims to have informed the P.W.6

about the fight on telephone.

The other witnesses, namely, Ahwal Ahmad

(P.W. 2), who is the uncle of the deceased, Md. Farukh

(P.W.3) and Shamshad/brother of the deceased (P.W.4)

are only hearsay witnesses, who later came to learn that

the deceased was given a knife blow by the appellant.

Md. Quasim (P.W.5) was present when the

police had seized the weapon of assault viz. the knife and

had prepared the seizure list. He had put his signature on

the seizure list (Ext. 1).

Patna High Court CR. APP (DB) No.132 of 2020 dt.25-08-2023

The dead-body was put to postmortem

examination by Dr. Rajesh Kumar (P.W.7) who had found

one incised wound over the lef side of chest of the

dimension of 1" x 1/2" x cavity deep. The injury was

found to have been caused by a sharp cutting weapon

and the time fixed for death was 12 hours from the time

of postmortem examination. The death was, in the

opinion of P.W. 7, due to hemorrhage and shock as a

result of the aforenoted injury.

Rakesh Prasad/I.O. (P.W. 8) had arrested the

appellant and had recorded his confession (Ext. 7). In his

cross-examination, he has confirmed the fact that from

the P.O., the knife used for committing the crime was

seized but, he did not find any other incriminating article

or circumstance at the P.O. Nothing was found to be

destroyed at the tea shop to lend support to the fact that

there was a full-fledged fight between the appellant and

the deceased.

A conspectus of the entire evidence suggests Patna High Court CR. APP (DB) No.132 of 2020 dt.25-08-2023

that the deceased was related to the appellant. The Trial

court has rightly disbelieved the prosecution version of

the other accused persons having conspired with the

appellant to kill the deceased. The occurrence took place

in evening hours in front of the tea shop of co-accused

Lazim (since acquitted) who too was put on trial. There is

no evidence whatsoever that the appellant was always

insisting upon by the deceased not to smoke Ganja. For

the first time and only through the mouth of P.W. 6 did

this fact come to the fore that the reason for the fight

between the appellant and the deceased was the

deceased having forbade the appellant from smoking

Ganja.

We have no idea whether the deceased was

always being told by the appellant not to smoke Ganja or

it was the solitary instance which irked the appellant so

much that he started fighting with the deceased and also

thrust a knife in his body. In fact, even the other

witnesses including the brother of the deceased had no Patna High Court CR. APP (DB) No.132 of 2020 dt.25-08-2023

clue about the reason for the fight before the deceased

was hit by the knife. This, therefore, leads to the

inference that it was perhaps the solitary instance when

at a tea shop, the deceased, who is the cousin of the

appellant, asked him not to smoke Ganja. This obviously

cannot be called any provocation to commit a crime,

much less sudden and grave provocation. The appellant

cannot claim immunity on having committed the offence

out of sudden and grave provocation.

We have also found from the evidence that

several persons were taking tea at the shop of Md.

Lazim. There was another tea shop situated near by. The

fight appears to have continued for sometime or else

P.W. 6 would not have got the time to come from her

home to witness the fight or at best having seen the

deceased having fallen down on the ground with knife

injury.

That nobody intervened or stopped the

appellant further reflects that nobody had the idea that Patna High Court CR. APP (DB) No.132 of 2020 dt.25-08-2023

the fight would take such an ugly turn. Thus, it would not

be too far off the line to presume that it was a general

fight between two brothers over some issue which was

not overtly known. The appellant was not carrying the

knife in open. In fact, the allegation is that he took out

the knife in a flash of tamper and used it for hitting the

deceased. The onlookers thus cannot be said to have

been frightened in coming forward to disengage the

appellant and the deceased fighting with each other

because of the fear of being hurt.

As noted above, the knife was concealed. This

takes us to the manner of occurrence. In no time, the

appellant took out the knife from his pocket and hit the

deceased. We have noted that there was no intervention

from any of the onlookers. Had the appellant intended to

kill the deceased, he might have repeated the blow. The

allegation which gets confirmed by the postmortem report

is of giving one knife blow only. Thereafer, the knife was

thrown by the appellant and he ran away, only to be Patna High Court CR. APP (DB) No.132 of 2020 dt.25-08-2023

apprehended a short while thereafer.

Thus, the appellant acted irresponsibly but,

even in that fit of passion, knowing fully well the

consequences of his act. Nonetheless, it would be to

much to say that he intended to cause the death of the

appellant. The annoyance definitely was not so much as

to kill the deceased. Any person would have the

knowledge that a knife injury could be fatal. The part of

the body where the deceased was hit was vital and such

naivete cannot be attributed to the appellant that he did

not know that such knife injury is likely to cause grievous

bodily injury and perhaps death also.

Thus, we find that the appellant comes under

Exception 4 to Section 300 of the IPC, which provides

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's having taken undue advantage or acted in a

cruel or unusual manner. There is one knife blow and the Patna High Court CR. APP (DB) No.132 of 2020 dt.25-08-2023

appellant threw the knife on the ground and ran away.

We, therefore, find that the appellant is not

guilty of murder but of culpable homicide not amounting

to murder, punishable under Section 304 of the I.P.C.

However, we do reckon that the appellant may

not have harboured the intention of causing death of the

deceased but, surely of causing such bodily injury which

is likely to cause death.

For these reasons, we find the conviction and

sentence of the appellant under Section 302 IPC and the

sentence of imprisonment of life to be bad in the eyes of

law.

The same is, therefore, set aside.

The appellant is convicted for the offence

under Section 304 IPC.

The appellant is the cousin of the deceased.

There is no prior enmity. The act has been consummated

without any depravity of cruelty.

We, therefore, are of the view that rigorous Patna High Court CR. APP (DB) No.132 of 2020 dt.25-08-2023

imprisonment for ten year for the offence under section

304 (Part 1) of the IPC would be sufficient to meet the

end of the justice.

We, therefore, modify the conviction of the

appellant to Section 304 (Part 1) IPC and the sentence to

be imposed upon him to be rigorous imprisonment for ten

(10) years.

The fine of Rs. 50,000/- imposed by the Trial

court is not required to be interfered with.

The appeal is thus partially allowed and the

conviction and sentence are altered, as noted above.

                                                                            (Ashutosh Kumar, J)


                                                                        ( Alok Kumar Pandey, J)
rishi/amitkr
AFR/NAFR                  AFR
CAV DATE                  NA
Uploading Date            31.08.2023
Transmission Date         31.08.2023