Allahabad High Court
Jahid vs State Of U.P. on 17 January, 2017
Author: Bala Krishna Narayana
Bench: Bala Krishna Narayana
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 40 Case :- CRIMINAL APPEAL No. - 1682 of 1993 Appellant :- Jahid Respondent :- State Of U.P. Counsel for Appellant :- Mansoor Ahmad,A.R.Gupta,S.S.Tiwari,Sagir Ahmad,Sudhir Kr. Agarwal Counsel for Respondent :- D.G.A.,Ranjit Shome,Vijai Kumar Rathi Hon'ble Bala Krishna Narayana,J.
Hon'ble Arvind Kumar Mishra-I,J.
(Delivered by Hon'ble Bala Krishna Narayana,J.) Heard Sri Danish Iqbal Faridi, learned counsel for the appellant and learned AGA for the State.
This appeal has been filed by the appellant Jahid against the judgment and order dated 20th September 1993 passed by VIth Additional Sessions Judge, Bulandshahar in S.T. No.572 of 1991 (State Vs. Jahid) arising out of case crime no. 81 of 1991 under Section 302 IPC, P.S. Khurja Dehat, District Bulandshahar by which the accused appellant has been convicted and sentenced to undergo rigorous imprisonment for life under Section 302 IPC.
The prosecution case is that when Safat Khan son of Tariqat Ali had gone to the house of Aitmad Khan to ask milkmen, Mustafa Khan and Ali Hasan to collect milk from his house on 09.08.1991 at about 8.00 p.m., he found accused-appellant Jahid and his father Aitmad Khan quarrelling with each other. Jahid was abusing his father Aitmad Khan. Safat khan intervened and told Jahid not to abuse his own father and to be nice towards him, whereupon Jahid retorted by taunting that he was siding with his father and simultaneously fired at Safat Khan with a countrymade pistol and the shot so fired hit Safat Khan on his chest causing his instantaneous death. The occurrence was witnessed by milkmen, Mustafa Khan PW-3 and Ali Hasan PW-2 in the light of the lantern kept near the place of occurrence. Soon after the incident Tariqat Ali father of Safat Khan also arrived at the spot and saw the dead body of his son lying there. Tariqat Ali PW-1 got the report of the occurrence scribed by one Rafeeq Khan and lodged the same at P.S. Khurja Dehat on the same day at about 10.45 a.m., Ext.ka-1.
On the basis of the written report Ext.Ka-1 a case under Section 302 IPC was registered against the accused appellant Jahid. PW-7 S. I. Rajveer Puri started the investigation. He held the inquest over the dead body of the deceased and after observing the necessary formalities sent the dead body for post mortem examination in a sealed cover. PW-7 S. I. Rajveer Puri after completing the investigation submitted charge sheet against the accused-appellant under Section 302 IPC.
The learned VIth Additional Sessions Judge, Bulandshahar to whose Court the sessions trial no. 572 of 1991 was made over for trial of the accused from the court of Sessions Judge, Bulandshahar, on the basis of the material available on record, framed charge against the accused-appellant under Section 302 IPC. The accused pleaded not guilty and claimed trial.
The prosecution in order to prove its case examined as many as seven witnesses, PW-1 Tariqat Ali, informant, PW-2 Ali Hasan and PW-3 Mustafa was produced as witnesses of the fact, while PW-4 Dr. R.K.Mittal, PW-5 Constable Vishnu Dayal Tyagi, PW-6 Constable Kisan Singh and PW-7 S.I. Rajveer Puri, the investigating officer of this case were examined as formal witnesses. The accused appellant in his examination under Section 313 Cr.P.C. denied the various allegations made against him by the prosecution and alleged false implication due to enmity. The accused did not adduce any evidence in defence.
The VIth Additional Sessions Judge, Bulandshahar after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted the appellant under Section 302 IPC and sentenced him to imprisonment for life.
Hence this appeal.
Learned counsel for the appellant has submitted that the deceased Safat was shot dead by some unknown person in the darkness of night at about 8.00 p.m. and although no-one had either seen the incident or identified the assailants, the accused appellant was falsely implicated in the present case by the father of the deceased PW-1 Tariqat Ali due to previous enmity. He next submitted that it was virtually impossible for PW-2 and PW-3 to have seen the incident and identified the assailant from the place at which they were standing at the time of occurrence, considering the absence of any source of light at the place of incident and hence the recorded conviction of the appellant cannot be sustained. He also submitted that even if the prosecution case as spelt out in the FIR is admitted to be proved for the sake of argument, from the facts and circumstances of the present case, it is fully established that the accused was deprived of the power of self control by grave and sudden provocation caused by the deceased when he intervened in the quarrel between father and son, which led him to commit the offence. It is evident that the accused had neither any motive nor any intention to cause the death of the deceased nor the incident was either pre-planned or pre-meditated. He took out the countrymade pistol which he was perhaps carrying at the time of incident only when the deceased objected to his behaviour towards his father and shot him.
He lastly submitted that since the present case squarely falls under exception (iv) to section 300 IPC, the recorded conviction of the appellant under Section 302 IPC is liable to be altered to one under Section 304(ii) IPC and the sentence of rigorous imprisonment for life awarded to him by the trial court palliated to imprisonment for a lesser period.
Per contra Sri A.N.Mulla, learned AGA appearing on behalf of the State made his submissions supporting the recorded conviction of the appellant under Section 302 IPC and the awarded sentence of imprisonment for life to him. He also submitted that the prosecution case stood proved to the hilt from the ocular testimony of PW-1 and PW-2 which finds further corroboration from the medical evidence on record. It is not correct to argue that there was no source of light at the place of occurrence. It is proved from the evidence of PW-2 and PW-1 and the site plan that the crime scene was illuminated with light emitting from the two lit lanterns kept near the place of occurrence, one of which was duly seized by the investigating Officer from the crime scene. The conviction of the appellant under Section 302 IPC recorded by the trial court or the awarded sentence merit no interference. The impugned judgement and order do not suffer from any illegality, infirmity or irregularity by this Court requiring any interference by this Court.
We have heard learned counsel for the parties and carefully scanned the entire lower court records. The two questions which arises for our consideration in this appeal are :- (i) whether the prosecution has been able to prove its case against the accused appellant beyond all reasonable doubts and (ii) whether in the facts and circumstances of the case and on the basis of the evidence on record, the recorded conviction of the appellant under Section 302 IPC is liable to be altered to one under Section 304(ii) IPC and the awarded sentence of imprisonment for life palliated to a sentence of lesser period of imprisonment.
As far as the first ground on which learned counsel for the appellant has challenged the impugned judgement and order is concerned, we have already noted that the prosecution in order to prove its case had examined as many as seven witnesses PW-1 Tariqat Ali who is the informant had deposed that on 09.08.1991 at about 8.00 p.m., his son Safat had gone to the house of Aitmad Khan to ask milkmen, Mustafa and Ali Hasan to collect milk from his house. On noticing appellant Jahid abusing his father, Aitmad Khan, his son Safat told Jahid that it was not proper on his part to abuse his own father on which appellant Jahid retorted by shouting that Safat was siding with his father and simultaneously fired at Safat with a countrymade pistol causing his instantaneous death. The occurrence was witnessed by Ali Hasan and Mustafa in the light of lit lanterns. PW-1 had arrived on the spot soon after the incident. After Ali Hasan and Mustafa had narrated the entire incident to him, he got the written report of the occurrence scribed by one Rafeeq and lodged the same at P.S. Khurja Dehat. P.W.-1 proved the written report of the incident as Ext. Ka-1.
Both PW-2 Ali Hasan and PW-3 Mustafa in their evidence recorded during the trial fully corroborated the prosecution case as spelt out in the FIR in all material points.
PW-4 Dr. R.K.Mittal who had conducted the autopsy of the dead body of the deceased Safat Khan on 10.08.1991 at 3.30 p.m. noted following ante mortem injuries on his dead body:- (i) multiple gunshot wounds of entries in an area of 30 x 20 cm, front of chest mostly on right side size 1.5 cm x 1.5 cm x cavity deep. No blackening or tatooing around the wound. On internal examination the doctor noted multiple ruptures in right lungs due to small pellets and about 2 ps clotted blood in right chest cavity. He recovered 15 pellets from the body. Pericardium was ruptured. Left venticle was also ruptured due to pellet. One pellet was recovered from mycardium. Vessels were lacerated. He opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries, he proved the post mortem of the deceased Ext. Ka-3 and identified the pellets recovered from the dead body of the deceased which were marked as material Ext. Ka-2 to 16.
According to PW-1 it was possible that the deceased had died on 09.08.1991 at about 8.00 p.m. PW-5 Constable Vishnu Dayal Tyagi proved the Check FIR Ext.Ka-4 and corresponding G.D. entry Ext. Ka-5.
PW-6 Constable Kisan Singh deposed that he along with Home Guard Tejpal had brought the dead body of the deceased in a sealed condition from the place of occurrence to the District Hospital and handed it over to the doctor along with the necessary papers.
PW-7 Rajveer Puri who had investigated the matter deposed that after the registration of the case he had recorded the statement of Head Moharrir and collected the copy of the FIR, G.D., as well as jild panchayat. He could not start the inquest due to non availability of light on the spot. He recorded the statements of informant and other eye witnesses nominated in the FIR. On 10.08.1991, early in the morning at 5.30 a.m. he held the inquest over the dead body of the deceased Safat and prepared the inquest report, photo lash, challan lash, letter to CMO and letter to R.I. Ext.ka-6 to Ext.ka-11. He also prepared and filed the true copy of the check FIR and the G.D. entry on the record of the case and proved the same as Ext. Ka-12 and 13. He got the dead body of the deceased sealed and dispatched for post mortem examination along with the documents Ext.Ka-7 to Ext.Ka-13 through Constable Kisan Singh and Home Guard Tejpal. He also inspected the place of occurrence and prepared the site plan Ext.Ka-15. He also collected plain and blood stained earth and kept the same in separate containers and prepared the recovery memo Ext.Ka-14. He proved the charge sheet (Ext. Ka-16) submitted by him in this case after completing the investigation.
Witnesses of fact as well as formal witnesses produced by the prosecution during the trial for proving its case were subjected to gruelling cross examination by the defense counsel but he failed to elicit anything from them which may render their evidence unreliable or unworthy of credit. Both the eye witnesses of the occurrence PW-2 and PW-3 fully corroborated the prosecution case as spelt out in the FIR in all material particulars including the time, place, manner of assault, identity of the accused and the weapon used. We do not find any reason to discard the unimpeachable evidence of the prosecution witnesses and to take a view contrary to the one taken by the trial court. Upon a wholesome and critical appreciation, the ocular testimony of the prosecution witnesses which stands fully corroborated from the medical evidence on record appears to be wholly reliable and trustworthy. We do not find any merit in the first ground on which the learned counsel for the appellant has assailed the impugned judgment and order.
Coming to the second ground on which the learned counsel for the appellant has challenged the impugned judgement and order that the instant case falls under exception (iv) of Section 300 IPC and not under Section 302 IPC, it would be useful to extract the Section 300 IPC with all its exception.
"MURDER- DEFINITION & MEANING OF MURDER- SECTION- 300- Except in the case hereinafter expected, Culpable Homicide is Murder, if the act by which the death is caused is done with the intention of causing the death of the person, or-
Secondly- If it is done with the intention of causing such type of bodily injury as the offender knows to be likely to cause the death of the person to whom the harm of such injury is caused, or-
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause the death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exceptions of Murder-
Exception-1- When Culpable homicide is not a murder-
Culpable homicide is not a murder when the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos-
First- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing. or doing harm to any person.
Secondly- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly- That the provocation is not given by anything done in the lawful exercise of the right of private defense.
Exception 2- Culpable homicide is not murder if the offender, in the exercise of good faith of the right of private defense of a person or property, exceeds the power given to him by law and causes the death of that person against whom he is exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defense.
Exception 3- Culpable homicide is not murder if the offender, being a public servant or aiding. a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.-
Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Exception 5- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
In order to examine the second ground on which the learned counsel for the appellant has assailed the accused-appellant's conviction under Section 302 IPC that the instant case falls under exception (iv) of Section 300 IPC and not under Section 302 IPC, we find that perusal of facts already recapitulated above reveal that there was no previous enmity between the accused and the deceased on the date and at the time of incident. Deceased Safat Khan had gone to the house of Aitmad Khan, father of the accused-appellant, to ask milkmen Mustafa Khan and Ali Hasan to collect milk from his house and on hearing the accused appellant Jahid and his father Aitmad Khan quarrelling with each other and Jahid using abusive language against his father, deceased Safat Khan intervened and told Jahid not to abuse his father and to be nice towards him, on which the accused-appellant retorted by taunting that the deceased was siding with his father and shot Safat Khan with a countrymade pistol. The incident happened because accused-appellant felt that the deceased should not have come in the way of quarrel which he was having with his father. The only fault of the deceased was that when the accused abused his father he interceded and told accused-appellant that he should behave nicely which further annoyed him and led him to cause the single firearm injury to the deceased.
We have perused the medical evidence and find that there is only one firearm wound on the person of the deceased. It is true that seat of the injury caused by the accused-appellant to the deceased was such that it caused his instantaneous death but admittedly the shot was fired at the time when it was dark and only dim light emitting from the two lanterns was available on the spot. Thus it cannot be said that the shot fired by the accused-appellant was intentionally aimed by him at the chest of the deceased. None of the two eye witnesses have deposed that the accused-appellant had fired at the deceased with the intention of causing his death. In view of the above, it cannot therefore be said with certainty that the accused intended to cause the very injury that he inflicted. There being neither any evidence on record nor it being the case of the prosecution that the act was pre-meditated or pre-planned, we see that the conditions for the applicability of exception (iv) are clearly satisfied and the incident hereunder would fall under exception (iv) to Section 300 IPC.
It is true that the Apex Court in paragraph 29 of its judgment in the case of Pulicherla Nagaraju Vs. State of A.P., reported in 2006(11) SCC 444 has osbserved that whether there was an intention to cause death is to be gathered from several circumstances, and one of the circumstances mentioned in the said paragraph is whether the weapon was carried by the accused or picked up from the spot. If it was carried by the accused right from the beginning that should be a circumstance to indicate that there was an intention to cause death if it was used attacking the deceased on a vital part of the body. However, when the weapon was not initially in the hand of the accused, but was picked up from the spot during the altercation, then it cannot be said that it is a case under Section 302 IPC, rather it is only a case of culpable homicide not amounting to murder which comes under Section 304 IPC. However the aforesaid observation of the Apex Court in the case of Pulicherla Nagaraju (supra), was explained by the Apex Court in Muthu Vs. State By Inspector of Police, Tamil Nadu, 2007 Law Suit (SC) 1206 in paragraphs 10 and 11 of the aforesaid judgment, which read as under:-
"10. The observation of the court in the above decision that "it is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II" cannot, in our opinion, be understood to mean that the court should somehow try to find out some way of treating the offence to be under Section 302 IPC. In our opinion, there is a clear distinction between a case of premeditated attack with intention to cause death and a case where there was no such pre-meditated intention and death was caused in the heat of the moment or fit of anger during an altercation or quarrel.
11. No doubt, even in the heat of the moment or fit of anger one should not attack somebody since human beings are different from animals inasmuch as they have the power of self-control. Nevertheless, the fact remains that in the heat of the moment and in a fit of anger people some times do acts which may not have been done after premeditation. Hence the law provides that while those who commit acts in the heat of the moment or fit of anger should also be punished, their punishment should be lesser than that of premeditated offences. It is for this reason that exceptiion I and IV have been inserted in Section 300 IPC."
In view of the foregoing discussions, we hold that the conviction of the accused for the offence under Section 302 IPC cannot be sustained. The question which next arises for our consideration is that whether the accused-appellant is liable to be convicted under part (i) or part (ii) of Section 304 IPC.
Section 304 IPC is quoted below as hereunder:-
"304. Punishment for culpable homicide not amounting to murder whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with the imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
The Apex Court in the case of Camilo Vaz Vs. State of Goa reported in 2000 Law Suit (SC) 708 has analyzed Section 304 IPC in paragraph 14 of its aforesaid judgment and held as hereunder:-
" 14. This section is in two parts. If analyzed the section provides for two kinds of punishment to two different situations. (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here important ingredient is the "intention"; (2) if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on vital part of the body with such a force that the person hit meets his death, knowedge has to be imputed to the accused. In that situation case will fall in Part II of Section 304 IPC as in the present case. We are also not oblivious of the fact that other four accused who were similarly convicted with the appellant with the aid of Section 149 IPC have been held guilty only for offence under Section 326 IPC."
A wholesome and critical view of the evidence on record and the facts of the case reveals that the incident was neither pre-meditated nor pre-planned nor the accused had taken any undue advantage or acted in a cruel or an unusual manner.
In our opinion on the facts of the case the act committed was done with the knowledge it is likely to cause death without any intention to cause death or cause such bodily injury as is likely to cause death hence the offence comes under part (ii) of Section 304 IPC.
For the reasons given above the appellant is acquitted of the offence under Section 302 IPC. Recorded conviction of the accused appellant under Section 302 IPC is altered to one under part (ii) of Section 304IPC and the sentence awarded by the trial court is substituted by 10 years imprisonment. The accused appellant is in jail. He shall be released after serving out the remaining part of the sentence as modified hereinabove.
The appeal is allowed in part. The impugned judgment and order dated 20.09.1993 passed by VIth Additional Sessions Judge, Bulandshahar in S.T. No.572 of 1991 (State Vs. Jahid) arising out of case crime no. 81 of 1991 under Section 302 IPC, P.S. Khurja Dehat, District Bulandshahar stands modified to the extent indicated hereinabove.
There shall however be no order as to costs.
Order Date :- 17.1.2017 Abhishek Sri.