Rajasthan High Court - Jodhpur
Azam Khan & Ors vs State on 2 May, 2017
Author: G.K. Vyas
Bench: Gopal Krishan Vyas, G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 581 / 2013
1. Azam Khan S/o Evaz Khan,
2. Mohammed Ayub Khan S/o Asgar Khan,
3. Khushi Mohammed S/o Nizam Khan,
4. Ramzan Khan S/o Azam Khan,
5. Rafique S/o Azam Khan,
6. Bashir Khan S/o Madari Khan,
All by caste Kayamkhani, Residents of Sahajusar,
P.S.Dudhwakhara, District Churu (Raj.)
----Appellants
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. M.K. Garg.
For Respondent(s) : Mr. J.P.S. Choudhary, PP.
Mr. Manish Shishodia, for complainant.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI
JUDGMENT
[Per Hon'ble Mr. Justice G.K. Vyas] Date of Judgment: 2nd May, 2017.
In this appeal filed by the appellants under Section 374 (2) Cr.P.C., the judgment dated 09th July, 2013 passed by learned Addl. Sessions Judge, Churu (Trial Court) in Session Case (2 of 30) [CRLA-581/2013] No.23/2010 (9/2010) is under challenge, whereby the learned trial court convicted the appellant for the offences u/s 302, 302/149, 460, 148 and 323/149 of IPC and passed following sentence, which reads as under:
Accused- Rafique:
302 of IPC Life Imprisonment & fine of Rs.5000/-. In default of payment of fine, to further undergo six months' simple imprisonment.
460 of IPC 7 Years' R.I. and fine of Rs.1000/- each. In default of payment of fine, to further undergo 3 month's S.I. 148 of IPC 6 Months' Simple Imprisonment.
323/149 of IPC 3 Months' Simple Imprisonment. Other appellants:
[Azam Khan, Mohammed Ayub Khan, Khushi Mohammed, Ramzan Khan, and Bashir Khan] 302/149 of IPC Life Imprisonment & fine of Rs.5000/-. In default of payment of fine, to further undergo six months' simple imprisonment.
460 of IPC 7 Years' R.I. and fine of Rs.1000/- each. In default of payment of fine, to further undergo 3 month's S.I. 148 of IPC 6 Months' Simple Imprisonment.
323/149 of IPC 3 Months' Simple Imprisonment.
Briefly stated, the facts of the case are that complainant, Habib Khan S/o Asraf Khan (PW.2) submitted a written complaint (Ex.P/1) at Police Station Dudhwakhara, District Churu, in which it (3 of 30) [CRLA-581/2013] was averred that Zahira Bano, daughter of Azam Khan, got married to his cousin nephew Mohd. Hussain S/o Najir Khan. After marriage dispute arose between Mohd. Hussain and Zahira Bano, therefore, their relations were was not cordial. On 10.12.2009 at about 12.15 AM, Azam Khan, Major Khan, Nizam Khan, Mamu Khan sons of Evaz Khan, Rafique Khan S/o Azam Khan, Shaukat Khan, Habib Khan S/o Madari Khan, Ayub Khan s/o Asgar Khan, all resident of Village Shahjusar and 3-4 other persons came to the in-laws' house of Zahira Bano on the vehicle bearing registration number RJ-10-UA-1158. Other accused persons, namely, Jazir Khan S/o Munir Khan came there on another vehicle at the house of Mohd. Husain and all the persons started abusing the family of the complainant and in-laws of Zahira Bano. It is further alleged that Abbas Khans/o Mohideen Khan and some more persons standing near the house of Mohd. Hussain, asked them not to abuse the family members but accused Azam Khan gave slap to Abbas and all accused persons caught Abbas (deceased) and either accused Rafique Khan or Ayub Khan inflicted injury on the testicles of Abbas Khan, due to said injury Abbas Khan fell down at the place of occurrence, became unconscious. The complainant, Habib Khan and Ayub Khan immediately took injured Abbas to the Govt. Hospital, Churu, where the doctors of Govt. Hospital, Churu declared him dead.
Upon the aforesaid written complaint (Ex.P/1), the S.H.O., Police Station- Dudhwakhara, registered an F.I.R. No.116/2009 (Ex.P/6) on 10.12.2009 against nine named accused persons and commenced investigation. After completion of investigation a (4 of 30) [CRLA-581/2013] charge sheet was filed only against six accused persons in the court of learned Civil Judge (Jr. Division)-cum-Judicial Magistrate, Churu, for the offences u/s 147, 148, 149, 460 & 302 of IPC.
The learned Magistrate committed the case for trial to the court of learned Sessions Judge, Churu, but later on transferred to the court of learned Addl. Sessions Judge, Churu, for trial.
The learned trial court after providing opportunity of hearing framed charge against the all the accused appellants for the offences under Sections 302, 302/149, 323/149 and 460 of IPC but they denied the charges framed against them and prayed for trial.
In the trial, to prove the prosecution case, 14 prosecution witnesses were produced before the trial court in support of prosecution case and thereafter the statements of all the accused appellants were recorded under Section 313 of Cr.P.C., in which 5 accused appellants denied the allegations levelled by the prosecution witnesses against them and said that they are innocent and falsely implicated by the complainant party in the case, they never went to the in-laws' house of Zahira Bano. However, accused appellant, Azam Khan, father of Zahira Bano, gave following explanation with respect to incident in his statement recorded under Section 313 of Cr.P.C., which reads as under: -
"ejs h i=q h tkfgjk dk fudkg uthj [kka ds cVs s ek-s gqlSu ds lkFk gqvkA ejs h iq=h ds ,d cVs h tks vkB lky dh gS o bjQku tks bl le; N% cjl dk gAS ek-s gqluS tks bl le; fon"s k eas jgrk gSA bl ?kVuk ls 7&8 ekg igys ejs h iq=h tkfgjk dks ek-s gqluS ds ?kj okykas us ekjihV fd;k vkSj mls ?kj ls fudky fn;k ftl dkj.k ejs s ?kj ihgj eas vk x;hA (5 of 30) [CRLA-581/2013] fnukd a 8-12-2009 dks esjs ?kj ekfs gnhu] eqdkjr S/o jghe [kka fuoklh jk.kklj] gchc [kk]a eqerkt [kk]a uthj [kka ejs k lxk lkys ekgs Een o ek-s gqluS ejs k tekbZ ejs s ?kj yus s vk;As ckrphr dh eS mudk Lokxr fd;k vkSj tkfgjk dks mlh fnu 8-12-09 dks bu ykxs ks ds lkFk Hkt s fn;kA bu ykxs kas us vk"oklu fn;k fd vc tkfgjk ds lkFk ekjihV o nqO;ogkj ugha fd;k tkoxs kA fnukd a 9-12-10 dks jkf= ds oDr tkfgjk us eq>s Vy s hQkus fd;k fd ejs s lkFk ek-s gqlSu us ekjihV dh gS vki yus s vk tkoks ugh rks ejs s lkFk vkjS ekjihV djxas s rc eSa lgtqlj ds dN q vkneh jk.kklj xkoa eas eqdkjr [kka S/o jghe [kka ds ?kj vk;s ckdh lc ogha :d x;s eSa vkSj s r [kk]a lkys ekgs Een S/o eSunw hu] ;klhu [kka S/o ekgs Eenw [kka "kkd tkfgjk ds lljq ky vk;As euaS s tkfgjk dks lkFk pyus dks dgk mleas tkfgjk] uthj [kka ds ckjry ds ikl xVs ij igqp a s rks vCckl us pkdw ls tkfgjk dk uke dkVuk pkgk rks eSua s chp cpko fd;k rks ejs s nkra rkMs + fn;As euaS s vCckl ls pkdw Nhudj cpko eas pkdw pyk;k rks vCck ds pkV yx x;hA ml le; vU/kjs k FkkA euaS s tkuc> w dj ugha ekjhA ejs s vtykok ekSds ij jQhd [kk]a jetku] [kq"kh ekgs Een] v;cq [kk]a c"khj [kka ekSdk ij ugha Fks ;s tkfgjk ds llqjky ugha x;As eSa funk's k gaw xyr rQrh"k dj a k;k x;k gSA"
geas eqyfteku cukdj >Bw k Ql In defence, statements of three witnesses viz. DW.1 Mukarab Khan, DW.2 Zahira Bano (daughter of accused Azam Khan) and DW. 3 Dr. Meghraj Saini, were recorded.
The learned trial court after recording evidence of both the sides finally heard argument of both the parties and held the accused appellants guilty for committing offence of murder and punished them vide judgment dated 09.07.2013 in Session Case No.23/2010 (9/2010), whereby the accused appellant, Rafique was convicted for the offences u/s 302, 460,148 and 323/149 of IPC and other five appellants were convicted for the offence u/s 302/149, 460,148 and 323/149 of IPC and passed sentence aforesaid. Being aggrieved and dissatisfied with the judgment impugned, the instant appeal has been filed by the accused (6 of 30) [CRLA-581/2013] appellants on various grounds.
Mr. M.K. Garg, learned counsel for the appellants without disputing the incident on the date of occurrence submitted that it is case of false implication of the appellants, which is apparent from the fact that FIR was filed against nine persons, but after investigation police filed charge sheet only against six persons, in which the main allegation was levelled against accused appellant, Rafique S/o Azam Khan for inflicting injury by knife on the person of deceased Abbas Khan, but prosecution has miserably failed to lead any evidence of actual motive of the incident, so also, failed to prove its case beyond reasonable doubt against the accused appellants because, entire case is based upon concocted story framed by the complainant party so as to implicate whole of the family of Azam Khan in the alleged offence of murder.
While inviting our attention towards the postmortem report and statements of the complainant and eyewitnesses PW.8, it is argued that there are major contradictions with regard to place of injury, alleged to be caused by accused appellant, Rafique to the deceased. In the written complaint (Ex.P/1), it is specifically alleged that injury was caused either by accused Rafique or Ayub Khan upon the testicles of deceased Abbas Khan, whereas PW.8 (Manudeen Khan) who is said to be eyewitness, stated in his statement that accused appellant, Azam Khan inflicted injury upon his mouth, at that time accused appellant, Rafique, Ayub, Ramjan, Khushi Mohd. Bashir Khan, Habib Khan, Shaukan Khan, Azam Ali Khan, after surrounding deceased, Abbas and accused, Ayub caught hold of Abbas and the accused, Rafique caused injury by (7 of 30) [CRLA-581/2013] knife upon the chest of deceased Abbas Khan and after inflicting injury by knife, they ran away from the place of occurrence.
Learned counsel for the appellants submitted that there are major contradictions in the statements of eye witnesses and the author of FIR, Habib Khan who was present at the time of occurrence, therefore, it is obvious that truth has not been brought on record by the prosecution, even if the entire prosecution evidence is accepted, then also, it is obvious that only one injury was inflicted by knife by accused Rafique to the deceased. The said incident took place in a spur of moment because as per evidence on record, Zahira Bano, the daughter of accused appellant Azam Khan, married with Mohd. Hussain, and there was a dispute between Zahira Bano and Mohd. Hussain, which compelled her to left matrimonial home to live with her parents from last nine years on account of cruelty being committed qua her. It is also argued that Najir Khan (father-in- law), Mohd. Hussain, Sale Mohd. Mumtaj Khan and other persons of in-laws of Smt. Zahira came to house of appellants and requested the accused Azam Khan, to send Zahira Bano with them. Upon such request of complainant party, Smt. Zahira Bano went with to her matrimonial home at Village Sahajusar but on the very next day, the husband of Zahira Bano made quarrel with Zahira Bano, therefore, it is informed by her Bano telephonically about ill-treatment being meted out with her to her father i.e. appellant Azam Khan and prayed for rescue. Admittedly, accused appellant Azam Khan and his family members went to the in-laws' house of Zahira Bano, where he was informed by his daughter (8 of 30) [CRLA-581/2013] that the in-laws are torturing her, therefore, when Azam Khan and his family members tried to take Smt. Zahira Bano with them from the house of Mohd. Husain, the deceased Abbas Khan and other family members of Mohd. Hussain intervened and gave threatening, so also tried to stop them, therefore, all of sudden incident took place.
According to explanation given by appellant, AzamKhan, deceased Abbas Khan while showing knife gave threatening to them and said that he would cut the ear and nose of Zahira Bano if she will go back to the house her parent, and in the meanwhile, Mohd. Hussain (husband Zahira Bano) forcibly snatched her son and deceased Abbas made attack upon the accused appellant Azam Khan in the dark, other persons inflicted injury to Abbas in the said incident, due to said injury caused in quarrel, deceased Abbas died. All these facts are not considered by the learned trial court while holding appellants guilty. Learned counsel for the appellant further argued that there is no allegation of the witness for inflicting one injury except upon accused Rafique S/o Azam Khan, in the postmortem report, only one injury was found upon the chest caused by a sharp weapon. According to accused appellants even if it is presumed that incident took place in the house of Mohd. Hussain, (son-in-law of Azam Khan), then also it cannot be said that there was no intention or motive to cause death of Abbas Khan because all of sudden the incident took place when accused appellant, Azam Khan, father of Zahira Bano, asked Zahira Bano to come with him, and it was resisted by the family members of Mohd Hussain as they were not agreeable to permit (9 of 30) [CRLA-581/2013] Zahira Bano to left the house.
Learned counsel for the appellants vehemently argued that as per facts of the case accused party went at the house of Zahira Bano and Mohd. Hussain, for requesting in-laws not to torture Zaihra Bano, but due to rude attitude and threats given by deceased, Abbas Khan, for cutting ear and nose of Zahira Bano, the incident took place in a spur of moment. Therefore, it is obvious that except appellant, Rafique, there is no evidence to connect the other five appellants with the alleged crime because though they went to the house of Zahira Bano and Mohd. Hussain, upon a telephone call being made by Zahira Bano, who was harassed and tortured by her in-laws, and husband Mohd. Hussain. It is further argued that in the FIR itself, it is specifically accepted by the author of FIR, Habib Khan that quarrel took place due to dispute in between Zahira Bano and Mohd. Hussain, but the learned trial court has failed to consider the entire evidence in right perspective, which is evident from the fact that all the witnesses admitted in their statements that accused appellant, Azam Khan along with allies went to the house of Mohd. Hussain and when he tried to take his daughter, Zahira Bano with him from her in-laws house, all the members of in-laws, including husband, Mohd. Hussain refused to send Zahira Bano with them and this was the reason or quarrel which took place all of sudden.
It is argued that PW.5, Najir Khan, father-in-law of Zahira Bano stated in his statement that Zahira Bano left her house before 25 months but after some time, he and his family members went to the house of appellant, Azam Khan and made request to (10 of 30) [CRLA-581/2013] send Zahira Bano back to his home and brought her back, but in the night at about 10'O clock Mohd. Hussain and Zahira Bano again made quarrel, therefore, Zahira Bano made a telephone call to her father and reported the incident and asked to come soon. It is admitted by the PW.5, Najir Khan, that family of Azam Khan is reputed family and there are some more relations in both the villages, there is no enmity between both the families. The incident took place when they tried to stop Zahira Bano to go with her father, therefore, it is obvious that occurrence took place all of sudden, in which one stab injury was caused by accused appellant, Rafique to Abbas, when he was surrounded by other accused but this fact is not correct.
Learned counsel for the appellants invited our attention towards the statements of DW.2, Zahira Bano, and submit that she has categorically narrated the whole incident before the court and said that occurrence took place in her presence due to quarrel took place all of sudden, but the learned trial court disbelieved the testimony of DW.2 Smt. Zahira Bano and committed a grave error to convict the accused appellants for the offence of murder of deceased Abbas Khan. There is no evidence to establish that offence u/s 302/149 IPC is made out because as per prosecution case, the accused party went to the house of Zahira Bano and Mohd. Hussain, when accused appellant, Azam Khan was called by his daughter, Zahira Bano, due to quarrel with her husband at her in-laws' house, therefore, prosecution has failed to prove the allegations against Azam Khan, Mohammed Ayub Khan, Khushi Mohammed, Ramzan Khan, and Bashir Khan because there is no (11 of 30) [CRLA-581/2013] allegation against them for inflicting any injury to the deceased, therefore, even if the entire prosecution evidence is accepted then also it will revealed that accused appellant, Rafique (brother of Zahira Bano) inflicted only injury by knife to the deceased in spur of moment due to sudden provocation, as such, no offence under Section 302 of IPC is made out against the accused Rafique, because the offence cannot travel beyond offence u/s 304 Part I of IPC as there is no evidence of motive or intention on record to cause death of Abbas Khan.
Learned counsel for the appellants further argued that the accused appellants Azam Khan, Mohammed Ayub Khan, Khushi Mohammed, Rafique, Ramzan Khan, and Bashir Khan are entitled to be acquitted from the charge levelled against them because there is no evidence on record for causing any injury to the deceased, and the conviction of accused appellant, Rafique, is required to be altered from offence u/s 302 of IPC to offence under Section 304 Part-I of IPC as the incident took place all of sudden, that too, in spur of moment without any premeditation, therefore, the appeal of Azam Khan, Mohd. Ayub Khan, Khshi Mohd., Ramzan Khan and Bashir Khan, may kindly be accepted and the impugned judgment dated 09.07.2013 may kindly be quashed qua them, and the conviction of the appellant, Rafique for the offences u/s 302 of IPC may kindly be altered to offence u/s 304 Part-I of IPC.
In support of his arguments, learned counsel for the appellants invited our attention towards following judgments:
1. Suresh Sitaram Surve Vs. State of Maharashtra reported in (12 of 30) [CRLA-581/2013] 2003(1) WLC (SC) Criminal, 280,
2. Kalegura Padma Raod & Anr. Vs. The State of A.P. reported in 2007(1) WLC (SC) Criminal 555,
3. State of HP Vs. Ram Pal reported in (2006) 2 SCC (Cri.) 165,
4. Arjun Vs. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506
5. Judgment of Division Bench of this Court in the case of Shiv Kumar @ Pappu Vs. The State of Rajasthan reported in 2010(2) CJ (Cr.) (Raj.) 796.
6. Arjun & Anr. Vs. State of Chhattisgarh, reported in AIR 2017 SC 1150 Per contra, learned Public Prosecutor and learned counsel for the complainant vehemently opposed the submissions made by the learned counsel for the appellants and argued that no error has been committed by the learned trial court in passing the judgment impugned for the offence of committing murder of deceased, Abbas Khan. Admittedly, occurrence took place in the house of Mohd. Hussain and Zahira Bano, daughter of appellant, Azam Khan, in which due to injury caused by accused appellant, Rafique, by knife, Abbas died. The accused appellants are not disputing the incident, therefore, it cannot be said that evidence of the prosecution witnesses is far from the truth admittedly upon phone call by Zahira Bano, all the appellants along with other persons came to house of Mohd. Hussain and Zahira Bano and they forcibly tried to take Zahira Bano with them from her in-laws house, at that time, an objection was raised by the in-laws of Zahira Bano and a scuffle took place in which all the accused (13 of 30) [CRLA-581/2013] appellants surrounded the deceased Abbas and accused appellant, Rafique S/o Azam Khan, inflicted injury upon the chest by knife, which is vital part of the body, Abbas died due to said injury, therefore, obviously it is a case in which the trial court has properly assessed the entire evidence so as to hold accused appellants guilty for offence of murder.
The appellants are not disputing the incident, but some of the accused appellants are disputing their presence at the place of occurrence whereas the eye witnesses of the case specifically made allegation in their statements that accused appellants were present at the time of occurrence and participated in it, therefore, there is no strength in the arguments of the appellants that the prosecution has failed to prove its case beyond reasonable doubt. More so, entire prosecution case is based upon reliable testimony of eye witnesses, which is corroborated by the medical evidence also.
Learned counsel for the complainant and learned Public Prosecutor further argued that all the accused appellants came at the place of incident and made quarrel for the dispute arose in between Zahira Bano and Mohd. Hussain, son-in-law of accused appellant, Azam Khan and in that quarrel, innocent person, Abbas Khan who has nothing to do with the dispute, was murdered by the accused appellants. Therefore, there is no question to disbelieve the prosecution evidence because the appellants are not disputing the incident, in which deceased, Abbas died as result of stab injury caused by accused, Rafique. Thus, prayed to dismiss the appeal.
(14 of 30) [CRLA-581/2013] After hearing the learned counsel for the parties, we have minutely scanned the entire evidence of the prosecution as well as defence. As per prosecution case, FIR was registered upon a written complaint (Ex.P/1) filed by complainant, Habib Khan S/o Ashraf Khan (PW.2) at Police Station-Dudhwakhara, District Churu. In the written complaint (Ex/P1) following allegations were levelled by the complainant, Habib Khan, against the accused party, which reads as under: -
"lo s k eas Jheku Fkkukf/kdkjh egkns ;th] iqfyl Fkkuk nq/kok[kkjk fo'k; %& gR;k dk eqdnekntZ djus ckcrA egkns ;] fuons u gS fd eSa izkFkhZ gchc [kka S/o vljQ [kka tkfr dk;e[kkuh mez 45 o'kZ fuoklh jk.kklj dk gAaw vkte [kka dk;e[kkuh fuoklh lgtl w j dh yMd + h tkfgjk ckuks ifjokj eas ejs s Hkfrtk uthj [kka ds yMd + s ek-s gqluS dks C;kgh gqbZ gSA mudk fiNys dN q fnukas ls vkil eas eueqVko py jgk FkkA vkt fnukd a 10-12-09 dh jkf= dks djhc 12-15 AM ij vkte [kk]a et s j [kk]a futke] [kka ekxa w [kka iq=x.k ,os t [kk]a jfQd [kka iq= vkte [kka vkSj "kkSdr [kk]a gchc [kka i=q x.k enkjh [kk]a v;cq [kka iq= vlxj [kk]a tkfr dk;e[kkuh fuoklhx.k lgtl q j o yxHkx rhu&pkj vU; vkneh ,d xkMh+ jkfgukas u-a RJ-10 UA 115 o ,d xkMh+ vkSj es cSBd uthj [kka iq= euhj [kka tkfr dk;e[kkuh fuoklh jk.kklj ds ?kj vk;As vkrs gh xkyh&xykSt djus yxs ogka ij vCckl [kka S/o ekgs hnhu [kka mez djhc 27 o'kZ o eSa o v;qc [kka S/o ekxa w [kka dk;e[kkuh] v;qc [kka S/o Hkoa : [kka dk;e[kkuh] vkfjQ [kka S/o vthe [kka dk;e[kkuh oxSjg dbZ vkneh vk x;s vCckl us mUgas xkfy;ka fudkyus ls euk fd;k rks vkte [kka us vCckl ds FkIiM+ ekjk o lHkh us vCckl dks idM+ fy;kA mueas ls jfQd [kka ;k v;qc [kka us vCckl ds xqIrkxa ij pkdw ls okj fd;k vCckl ogha fxj x;k vkSj cgs k"s k gks x;kA eSa o v;cq [kka vCckl dks yds j ljdkjh vLirky pq: vk;As vLiky igqp a r s i gp aq rs vCck dh e`R;q (15 of 30) [CRLA-581/2013] gks xbZA vkt [kka oxSjgk ekjihV dh rS;kjh dj uthj [kka ds ?kj vk;s o uthj [kka ds ?kj vCckj ds lkFk ekjihV o pkdw dh ekjdj gR;k dh gSA fjikVs Z vkidks nrs k gaw dk;Zokgh djAs "
Upon perusal of the aforesaid complaint, we find that there was some quarrel in between Mohd. Hussain (nephew of complainant) with his wife, Zahira Bano (daughter of accused appellant Azam Khan), on 10.12.2009 at about 12.15 AM, Azam Khan, Major Khan, Nizam Khan, Mamu Khan sons of Evaz Khan, Rafique Khan S/o Azam Khan, Shaukat Khan, Habib Khan S/o Madari Khan, Ayub Khan s/o Asgar Khan, all resident of Village Shahjusar and 3-4 other persons came at the house of PW.5 Najir Khan, father-in-law of Zahira Bano, in the vehicle bearing registration number RJ-10-UA-1158. Soon after reaching to the house of Najir Khan, they used filthy words and abused the family members, at that time, Abbhas Khan, complainant and one Ayub KhanS/o Mangu Khan, Ayub Khan S/o Bhanwaroo Khan, Aarif Khan S/o Azim Khan etc. came there and Abbas (deceased) asked them not to use filthy words, but accused Azam Khan gave one slap to the deceased, Abbhas and thereafter all the persons caught deceased, Abbas, and out of all persons, either Rafique Khan or Ayub Khan inflicted injury by knife upon the private part of Abhhas, due to said injury he fell down and became unconscious. Complainant, Habib Khan and Ayub Khan, father of Abbas, immediately took Abbas to the Govt. Hospital, Churu, where doctors declared him dead.
It emerges from the complaint that quarrel took place due to (16 of 30) [CRLA-581/2013] strained relations between Mohd. Hussain S/o Najir Khan with his wife, Zahira Bano, and for the said reason all the accused appellants came to the house of Najir Khan, upon phone call made by Zahira Bano, where the occurrence in question took place in which deceased, Abbas, died.
After registration of FIR, during investigation, the postmortem of the body of Abbas was conducted and in the postmortem report of Abbas Khan, the Medical Board gave opinion that the cause of death is shock due to stab wound into the heart. It is nowhere stated in the postmortem report that any other injury was found upon the private part of the deceased. It is also relevant to observe that one more injury report (Ex.P/15) of Mainudeen Khan is on record, in which one simple injury is reported, therefore, it is obvious that complainant and Mainudeen and other persons were present at the time occurrence. We have perused the statement of injured eye-witness, namely, PW.1- Mohideen Khan (father of deceased, Abbas Khan), the said witness stated in her statements that before 13 months at about 10.30 PM when he was sleeping in his house, his son Abbas awaken him and informed that a dispute has arisen between Mohd. Hussain and Zahira Bano, therefore, for the purpose of intervention and settlement of dispute, Maqsuood Bhaiji is calling you at the house of Najir Khan. Upon saying so, he and his son, Abbas, went to the house of Najir Khan, where Najir Khan, and his wife and son informed that due to some dispute between his Mohd. Hussain and his wife Zahira Bano, his daughter-in-law called her parents and they are coming soon from their village (17 of 30) [CRLA-581/2013] Shahjusar. After some time, all the accused persons came to the house of Najir Khan on two vehicles at the house of Najir Khan and straightway went to the room of Zahira Bano. It is further stated that he and his son Abbas, also went in the room of Zahira Bano where Azam Khan was asking to his daughter that if you are my daughter then come with me, upon asking, Zahira Bano, immediately got ready to go with her father. At that time, when Abbas Khan tried to reason with them, and made request to them not to take Zahira Bano and resolve the dispute, however, Azam Khan got annoyed and he slapped Abbas Khan. It is further stated that in the meanwhile neighbour, Aarif also came there and made request to the accused appellant, Azam Khan not to act in this manner.
According to witness PW.1, hot discussion took place in between the parties and in the scuffle, his son, Abbas was caught by Ayub Khan while stating that you are over smart and interfering in the matter, at that time, all of sudden, Rafique Khan inflicted injury by knife upon the chest of deceased and due to said injury he fell down. In the meanwhile, Habib Khan, Mushtaq Khan, Mainudeen Khan, Ayub S/o Bhanwaroo Khan, Master Ayub Khan etc. came on the spot and took injured, Abbas to hospital at Churu, where doctor declared him dead.
Identical and almost similar statements have been given by PW.2 Habib Khan, PW.3 Ayub Khan, PW.4 Ayub S/o Mangu Khan, PW.5 Najir Khan (father of Mohd. Hussain), PW.6 Aarif Khan and PW.8 Mainudeen Khan. None of the witnesses made allegation for inflicting any injury to Abbas by other persons and the police after (18 of 30) [CRLA-581/2013] investigation filed charge sheet only against six persons out of more than nine persons, who were tried in Session Case No.23/2010 (9/2010).
We have also considered the argument of learned counsel for the appellants that no offence under Section 302 IPC is not made from the evidence of prosecution against accused Rafique, because the incident took place all of sudden when Azam Khan went to the house of his son-in-law, Mohd. Hussain upon a phone call made by his daughter, Zahira Bano on account of dispute with her husband, where the incident took place. It emerges from the arguments of learned counsel for the appellants that the appellants are not disputing the incident but submits that all of sudden incident took place due to quarrel and hot discussion in between the parties, upon resistance made by the complainant party, as accused appellant, Azam Khan asked his daughter to come with them, which was resisted by deceased Abbas Khan and other persons present, and during said quarrel, one injury was inflicted by Rafique on the person of deceased. It is also true that in the FIR allegation was levelled for inflicting injury on the private part of Abbas Khan by the injured eye witness and other witnesses that injury was caused by accused on the chest of Abbas.
To ascertain the nature and the part where injury was caused, we have perused the statements of PW.9- Dr. Kamal Kishore. PW.9- Dr. Kamal Kishore stated in his statements that on 10.12.2009 at about 11.15 AM, postmortem was conducted by the Medical Board of deceased Abbas Khan and found that there was (19 of 30) [CRLA-581/2013] one stab wound on the left side of chest measuring 2.5 x 1 cm, and no other injury was found upon the body of deceased. As per opinion of Medical Board, the cause of death was shock due to said injury. Dr. Kamal Kishore (PW.9) gave following statement with regard to injury, which reads as under:
"fnukd a 10-12-09 dks eSa Hkjfr;k gkLs ihVy pq: eas ,e- t-s ds in ij ruS kr FkkA ml jkt s e`Rrd vCckl i=q ekfs gnhu [kka tkfr dk;e[kkuh mez 27 o'kZ fuokl jk.kklj dk "ko ijh{k.k djus ds fy;s ih-,e-vk-s efs Mdy ckMs Z dk xBu fd;k Fkk ftleas ejs s vykok MkW- vkuUn "kekZ o bZdjke gqluS Hkh lnL; Fk]s ckMs Z }kjk e`Rrd ds "ko dk ijh{k.k fd;kA eRrd dh f"kuk[r eqLrd [kka iq= vljQ [kka o tkQj [kka iq= QStq [kka us dh Fkh "ko ijh{k.k fjikVs Z ds vuqlkj euaS @ s geus 10-12-2009 dks 11-15 cts lqcg "kofpr iMk+ Fkk] vkSlru lkekU; dn dkBh dk Fkk] vk[a ks vk/kh [kqyh gqbZ Fkh] jkbZxj ekfs VZl ekt S nw Fkh] tks Hkkx tehu ls yxs gq;s Fks mu ij ikLs VekVZe lVfas Mx ekStnw Fkh "kjhj ihyk iM x;k Fkk diMk+ s ij [kuw yxk gqvk FkkA mlds ek= ,d pkVs Fkh ftldk o.kZu it s u-a 4 ij fd;k x;k gSA vk[a kkas dh iqrfr;ka xMh+ gqbZ gSA nkus kas QasQMs+ ihys Fks ck;as Nkrh ij ?kqlk gqvk ,d ?kko Fkk ?kko 2-5 x 1 l-s eh FkkA ân; dk nk;ka o ck;ka Hkkx eas [kuw ugha FkkA iVs ds vUnj ihyk gjs jxa nzO; inkFkZ FkkA NkVs h vkra eas v/k iDdk Hkkt s u FkkA o nq?kufnr xSl Fkh cMh+ vkra eas fQDy eSVy ds lkFk nq?kZUFk ;qDr xl S FkhA ftxj] ihyhgko o xqnZs [kuw fudyus ds dkj.k ihys FksA eq=k"k; eas de ek=k eas i"s kkc FkkA e`Rrd ds "kjhj ij fuEu pkVs as Fkh %& pkVs Nkrh ds lkeus o ck;as Hkkx ij Fkh ?kqlk gv q k ?kko 2-5 l-s eh yEck o ,d l-s eh- pkSMk+ o 7-5 l-s eh- xgjk lkFk eas tek gqvk [kqu Fkk FkkMs k+ lk M<s k+ Fkk ?kko dh tks ekftZu Fkh lkiZ lkQ lqFkjh mij dh rjQ Fkh nckus ls gok ds lkFk jDr fudy jgk FkkA ?kko dh Nkrh ds lkeus ls yds j ân; ds ck;as Hkkx rd xgjk FkkA tks bUtjh Fkh oks ,UVhekVs Ze FkhA ckMs Z dh jk; ds vuqlkj e`Rrd dh e`R;q dk dkj.k "kkds Fkk tks fd ân; ds vUnj LVis cqUM ds dkj.k gqvk gAS ikLs VekVZe fjikVs Z inz "kZ ih&14 gS ftl ij ,s ls ch ckMs Z dh jk; gS lh ls Mh ejs s gLrk{kj gSA bZ ls ,Q MkW vkuUn "kekZ ds gLrk{kj gS th ls ,p MkW bdjke gqlSu ds gLrk{kj gS ftUgas eSa igpkurk gaw o ân; ij tks pkVs vkbZ Fkh oks lkiZ pkdw ds yxus ls vk ldrh gSA"
(20 of 30) [CRLA-581/2013] Upon consideration of above statement and the postmortem report (Ex.P/14), it is obvious that there is an allegation for inflicting one injury by knife upon the chest, the complainant, Habib Khan (PW.2) stated in his complaint (Ex.P/1) that injury was either caused by Rafique Khan or by Ayub Khan, but the injured eye witness PW.1 stated that injury was caused by Rafique Khan that too in a quarrel took place between the parties. The investigating officer, PW.14- Arvind Kumar, stated before the court that investigation was conducted by him, in which statements of all witnesses were recorded independently and after investigation charge sheet was filed against six accused persons including Rafique Khan S/o Azam Khan, against whom there was allegation for inflicting injury by knife upon the chest of deceased.
We have perused the statement of Azam Khan (appellant No.1) recorded under Section 313 Cr.P.C. in which the incident is not dispute but the allegation for inflicting injury by the accused Rafique Khan is disputed by him. We have also perused the statement of DW.2- Zahira Bano W/o Mohd. Hussain. The said witness categorically stated that after her marriage, the behaviour of her husband, Mohd. Hussain, and in-laws was so cruel and her husband Mohd. Hussain, used to assault her in connection with demand of dowry. From last so many years, their martial relations turned sour, time and again quarrel took place in between them though two issues were born out of their wedlock, namely, Anisha and Irfan.
The witness DW.2 Zahira Bano, categorically stated in her (21 of 30) [CRLA-581/2013] statement that due to quarrelsome and cruel behaviour by her husband, Mohd. Hussain, and in-laws, she was living with her parents, however, upon request made by her father-in-law, Najir Khan (PW.5), with an assurance that she will not be ill-treated, her father, Azam Khan sent her back to the in-laws' house. Just after next day of reaching her to in-laws' house, her husband gave beatings and tried to kill, and at that time she was saved by some persons of the locality, therefore, a phone call was made to her father, Azam Khan, for rescue and upon receiving said call, her father, Azam Khan and his family members came to her in-laws' house, where incident took place.
As per statement of DW.2, Zahira Bano, deceased Abbas was having a knife and Abbas tried to cut her ear and nose, therefore, to save her occurrence of quarrel took place, therefore, her father and other family members cannot be held guilty for committing offence u/s 302 and 302/149 of IPC because the incident took place when deceased, Abbas, having knife tried to cut her nose with a knife.
Upon assessment of statements of all the witnesses, it emerges from the facts that all the witnesses are near relatives and it is best known to the complainant party why Abbas, neighbour of Mohd. Hussain, came on the spot, but this fact is established that the evidence that in this case incident of death is outcome of quarrel in between the parties. The witnesses are not disputing the fact that there was dispute between Mohd. Hussain and Zahira Bano, daughter of accused appellant, and father Azam Khan and accused party were called by Zahira Bano, because (22 of 30) [CRLA-581/2013] serious quarrel took place between Mohd. Hussain and Zahira Bano.
Considering the entire evidence and the background of the dispute, we are of the opinion that there was no pre-meditation or motive, the injury of knife was inflicted by the accused, Rafique in heat of passion in spur of moment; and the appellants had not taken undue advantage or acted in a cruel manner because there was no enmity in between the parties, therefore, we are of the view that this case falls under the fourth exception of Section 300 of IPC. It is also obvious from the entire evidence that the allegation for inflicting injury is only against, Rafique Khan, and none else, however, presence of accused was natural because Zahira Bano, daughter of accused appellant, Azam Khan, called her family m embers due to dispute in between her and her husband, Mohd. Hussain.
Upon assessment to evidence, we find that occurrence took place all of sudden due to sudden scuffle/quarrel on the spot when Azam Khan asked his daughter to come with him but in-laws of Zahira Bano, were not allowing her to go with father, therefore, we are of the opinion that it is a case in which trial court has committed a grave error to convict the accused appellant, Rafique Khan, for the offences u/s 302 and all other accused appellants for offence u/s 302/149 of IPC, because there is no evidence of pre- meditation or motive to cause death of deceased, Abbas, more so, there was no quarrel in between deceased and the accused party. Admittedly, deceased Abbas Khan, himself came on the spot to intervene for settlement between the parties and all of sudden, (23 of 30) [CRLA-581/2013] when occurrence took place, and injury was caused to him, which resulted into death. There is no evidence on record for commission of offence by accused appellants Azam Khan, Mohmmed Ayub Khan, Khushi Mohammed, Ramzan Khan, and Bashir Khan for offence u/s 302/149 of IPC or for offence u/s 460, 148, 323/149 of IPC, for the reason that there is no allegation against them for inflicting any injury except their presence on the spot. Therefore, except accused, Rafique, all other accused appellants deserve to be acquitted from the alleged offences.
Similarly, the finding of guilt recorded by the learned trial court against accused appellant, Rafique Khan, for offence u/s 302 of IPC is not sustainable in law in view of law laid down by Hon'ble Apex Court in the case of Arjun & Ors. Vs. State of Chhatisgarh (supra) because the occurrence took place all of sudden and there is no allegation of taking undue advantage by the accused appellants for inflicting repeated injuries. Therefore, as per evidence the offence against the accused appellant, Rafique Khan, cannot travel beyond offence under Section 304 Part-I of IPC, in the light of following judgments of Hon'ble Apex Court viz. (i) Suresh Sitaram Surve Vs. State of Maharashtra reported in 2003(1) WLC (SC) Criminal, 280, (ii) Kalegura Padma Raod & Anr. Vs. The State of A.P. reported in 2007(1) WLC (SC) Criminal 555,
(iii) State of HP Vs. Ram Pal reported in (2006) 2 SCC (Cri.) 165, and (iv) Arjun Vs. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506 and judgment of Division Bench of this Court in the case of Shiv Kumar @ Pappu Vs. The State of Rajasthan reported in 2010(2) CJ (Cr.) (Raj.) 796 and in the case of Arjun & Anr. Vs. (24 of 30) [CRLA-581/2013] State of Chhattisgarh, reported in AIR 2017 SC 1150.
In the case of Shiv Kumar @ Pappu Vs. State of Rajasthan, in almost identical facts, the carbonate bench of this Court while relying upon the aforesaid principles converted the conviction from offence under Section 302 IPC to Section 304 Part I IPC and following adjudication is made by this court in paras nos.33, 34 and 35, which reads as under: -
"33. Common object is to be inferred from the acts, behaviour and other surrounding elements, including conduct and reaction prior and after. In certain circumstances, different may be object at different intermittent stages, in determining common object, the conduct of each member of the unlawful assembly before or at the time of incident and even after is relevant. Here no else other than Shiv Kumar carried any article for causing injury and nothing to suggest that knife with Shiv Kumar was in knowledge of any other member of unlawful assembly. No injury even of hard object is only Shiv Kumar ran away and others though disbursed soon but not so much hurriedly, therefore, in the opinion of the Court, only common object of causing but could have been and so stands proved. Therefore, members, other than Shiv Kumar common object only was of causing simple injuries. Hon'ble the Apex Court has also observed in
(i) 2009 (10) SCC 773 Pandurang Chandrakant v.
State of Maharashtra and (ii) 2009 (7) SCC 415 Akbar Shekh v. State of West Bengal, that when many who participated in the commission of crime, are to be convicted with the aid of S.149, needed is consideration of particular fact situation, including overt act proved. Here, it was only Shiv Kumar who stabbed and became away runningly fast.
(25 of 30) [CRLA-581/2013]
34. Accordingly, appellants other than Shiv Kumar (Satiya @ Satyanarain, Balia, Purshottam Lal & Omprakash @ Kalu) are held guilty of offences punishable under Sections 147, 323 read with S.149 IPC and also S.145 Railways Act.
35. For the aforesaid reasons, appellant Shiv Kumar is to held guilty of S.304 Part I IPC and also of S.147 IPC and S.145 Railways Act. Appellants Satiya, Balia, Purshottam and Omprakash are guilty of offences under Sections 147, 323 read with S.149 IPC and also S.145 Railways Act. All are to be acquitted if the offences of S.302 or 302 read with S.149 IPC.
36. Appellant Shiv Kumar is in custody since March, 3, 2000 and by now, has suffered imprisonment little more than ten years. All other circumstances remaining normal, he should have also earned remission so now, therefore, in the opinion of the Court, sentence for the period already undergone with fine of Rs.10,000/- shall be just and appropriate. Other appellants, broadly remained in custody for about four months so for them also for the offences they have been guilty, sentence of period already undergone shall meet ends of justice."
In the case of Arjun & Anr. Vs. State of Chhattisgarh (supra) the Hon'ble Apex Court in almost similar circumstance held as under: -
"19. The point falling for consideration is whether the conviction of the appellants under Section 302IPC is sustainable. As discussed earlier, the evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which resulted in altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident (26 of 30) [CRLA-581/2013] occurred due to a sudden fight which, in our view, falls under exception (4) of Section 300 IPC.
20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. 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 vs. State, Rrepresented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590, 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 (27 of 30) [CRLA-581/2013] 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‟."
22. The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre-meditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken "undue advantage" or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC.
23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling (28 of 30) [CRLA-581/2013] under Section 304 Part I IPC. The conviction of the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that of the period already undergone.
24. In the result, conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the sentence is reduced to the period already undergone and these appeals are partly allowed accordingly. The appellants are ordered to be released forthwith unless required in any other case." In view of above discussion, we are of the opinion that all the prosecution witnesses, who were present on the spot, are interested and relatives of complainant party, therefore, they did not narrate altogether different story but proved the fact on oath that some incident took place in the house of Najir Khan and Mohd. Hussain, in which one injury was inflicted by the accused appellant, Rafique S/o Azam Khan by knife on the person of deceased, Abbas. Upon assessment of entire evidence and considering the fact that there is no independent witness to prove the actual incident, we are unable to accept the allegations of prosecution witnesses as a whole except the fact that one injury by knife was inflicted by accused appellant, Rafique to the deceased. Therefore, the finding of learned trial court to hold (29 of 30) [CRLA-581/2013] accused appellants, Azam Khan, Mohammed Ayub Khan, Khushi Mohammed, Ramzan Khan and Bashir Khan, for offence u/s 302/149, 460, 148 & 323/149 of IPC is not sustainable in law, therefore, the conviction and sentence passed against them for aforesaid offences, deserves to be quashed and they deserve to be acquitted.
However, upon assessment of entire evidence on record as per recent judgment of Hon'ble Apex Court in the case of Arjun & Anr. Vs. State of Chhattisgarh reported in AIR 2017 SC 1150 (supra), we are of the opinion that offence against accused appellant, Rafique S/o Azam Khan, cannot travel beyond offence u/s 304 Part-I of IPC, therefore, the finding of guilt recorded by the trial court against accused appellant, Rafique, for offence under Section 302 of IPC is hereby altered to offence u/s 304 Part-I of IPC.
Consequently, the instant criminal appeal is allowed qua accused appellants, namely, Azam Khan, Mohammed Ayub Khan, Khushi Mohammed, Ramzan Khan, and Bashir Khan. The judgment impugned dated 09.07.2013 passed by learned Addl. Sessions Judge, Churu, in Session Case No.23/2010 (9/2010) qua them, is hereby quashed and set aside and, they are accordingly, acquitted.
So far as other accused appellants, namely, Azam Khan, Khushi Mohammed, Ramzan Khan, and Bashir Khan are concerned, their sentence, has already already suspended, therefore, their bail bonds are discharged. Accused appellant No.2, Mohammed Ayub Khan S/o Asgar Khan, is in custody, he (30 of 30) [CRLA-581/2013] may be released forthwith.
However, the instant criminal appeal, qua accused appellant Rafique S/o Azam Khan, is hereby partly allowed, the finding of conviction recorded against the accused appellant, Rafique, for offence u/s 302 of IPC, vide judgment dated 09.07.2013 passed by learned trial court, is hereby altered to offence u/s 304 Part-I of IPC and the sentence of life imprisonment is hereby reduced to ten years' R.I. The conviction of the accused appellant, Rafique, for offences u/s 460, 148 and 323/149, is hereby quashed and set aside. The order of fine imposed by the learned trial court against the accused appellant, Rafique, is hereby maintained.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants are directed to forthwith furnish personal bonds in the sum of Rs.20,000/- and a surety bond in the like amount each, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(G.R. MOOLCHANDANI)J. (GOPAL KRISHAN VYAS)J. DJ/-