Chattisgarh High Court
Kalam Ansari vs State Of Chhattisgarh on 31 March, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal, Rajani Dubey
Cr.A.No.1188/2015
Page 1 of 10
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1188 of 2015
{Arising out of judgment dated 23-7-2015 in Special Sessions Trial
No.16/2014 of the Special Judge (SC/ST Prevention of Atrocities Act),
Surajpur}
Kalam Ansari, S/o Shri Aminuddin, Aged about 26 years, Occupation Driver,
R/o Village Dabgadi, Barbaspur, Police Station Pratappur, Distt. Surajpur
(C.G.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, Through the Station In-charge, Police Station Aadim
Jati Kalyan, Surajpur, Distt. Surajpur (C.G.)
---- Respondent
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For Appellant: Mr. Rishi Rahul Soni, Advocate.
For Respondent/State: Mr. Sunil Otwani, Additional Advocate General and
Mr. Sudeep Verma, Deputy Government Advocate.
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Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Smt. Rajani Dubey, JJ.
Judgment On Board (31/03/2022) Sanjay K. Agrawal, J.
1. Invoking jurisdiction of this Court under Section 374(2) of the CrPC, the appellant herein has called in question his conviction recorded under Sections 302 & 307 of the IPC and further called in question the sentences awarded to him i.e. imprisonment for life & fine of ₹ 1,000/- and rigorous imprisonment for seven years & fine of ₹ 500/-, with default stipulation, respectively, by the Special Judge (SC/ST Prevention of Atrocities Act), Surajpur, in Special Sessions Trial No.16/2014.
2. Case of the prosecution, in brief, is that on 24-2-2014 at about 9.30 Cr.A.No.1188/2015 Page 2 of 10 a.m., one Dhanushdhari (PW-1) - injured witness, was coming along with Ayodhya (deceased) (pillion rider) in his motorcycle bearing registration No.CG-15/CC-1497 from Gopalpur and proceeding towards Barbaspur, Police Station Pratappur, Distt. Surajpur and when they reached near Dabgadi Para, the accused / appellant who was coming in the pickup vehicle bearing registration No.UP-64/H-4048 by driving the same from opposite side (from Barbaspur towards Rajpur road) having noticed the presence of Dhanushdhari (PW-1) and identified him to be Dhanushdhari, suddenly turned the pickup vehicle in order to dash him with intention to cause his death {death of Dhanushdhari (PW-1)}. It is the further case of the prosecution that in order to save himself, Dhanushdhari (PW-1) moved his motorcycle down to road to the extent of 20 meters and despite that, the accused / appellant with intention to kill him, chased and dashed the motorcycle driven by Dhanushdhari (PW-1) over which Ayodhya was sitting as pillion rider, by his pickup vehicle and resultantly, Dhanushdhari (PW-1) & Ayodhya both suffered grievous injuries. The appellant herein immediately absconded from the spot and local persons of the locality who heard the noise of incident, reached to the spot and rescued Dhanushdhari (PW-1) & Ayodhya and escorted them to the Government Hospital where Ayodhya succumbed to death on account of the injuries sustained by him and Dhanushdhari (PW-1) suffered grievous injuries which were sufficient to cause death. Thereafter, the jurisdictional police took cognizance of the matter and registered first information report (FIR) on 24-2-2014 bearing Crime No.49/2014 in Police Station Pratappur, Distt. Surajpur for offence punishable under Section 307 of the IPC against the appellant herein and arrested the appellant on 26- Cr.A.No.1188/2015 Page 3 of 10 2-2014 vide Ex.P-18. During the course of investigation, the police also seized documents relating to general meeting and proceedings of Gram Sabha of Gram Panchayat Barbaspur dated 25-1-2014 vide seizure memo Ex.P-3 and general meeting as well as the proceedings have been described as Articles A-3 & A-2, respectively. Spot map Ex.P-13 was prepared by the concerned Patwari Ajit Pratul Ekka (PW-
9). Caste certificate of Dhanushdhari (PW-1) was seized vide Ex.P-2 and described as Article A-1. Dr. A.K. Vishwakarma (PW-3) examined the dead body of deceased Ayodhya and prepared postmortem report Ex.P-9. He also examined injured Dhanushdhari (PW-1) and medical report of his injuries was prepared vide Ex.P-8. Statements of witnesses were recorded under Section 161 of the CrPC..
3. After completion of investigation, charge-sheet was filed against the appellant for offence under Sections 302, 307 & 427 of the IPC and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the Act of 1989'), before the jurisdictional criminal court which was committed to the Court of Sessions for hearing and disposal in accordance with law.
4. The trial Court has framed charges under Sections 302, 307 & 427 of the IPC and Section 3(2)(v) of the Act of 1989 against the appellant and proceeded on trial. The accused / appellant abjured guilt and entered into trial. The prosecution in order to bring home the offence examined as many as 11 witnesses and exhibited 23 documents Exhibits P-1 to P-23 and also demonstrated three articles. The appellant examined himself as defence witness (DW-1) apart from his statement under Section 313 of the CrPC in which he abjured guilt and pleaded innocence.
Cr.A.No.1188/2015Page 4 of 10
5. The trial Court after completion of trial and after appreciating oral and documentary evidence, acquitted the appellant herein under Sections 427 of the IPC & 3(2)(v) of the Act of 1989, but proceeded to convict him under Sections 302 & 307 of the IPC and sentenced him in the manner as mentioned in the opening paragraph of this judgment against which this appeal under Section 374(2) of the CrPC has been preferred.
6. Mr. Rishi Rahul Soni, learned counsel appearing for the appellant, would submit that the appellant has been falsely implicated and the prosecution has failed to prove the offence beyond reasonable doubt, therefore, he is entitled for acquittal. Alternatively, learned counsel would further submit that there was no dispute pending between the appellant herein and deceased Ayodhya, the appellant has no intention to cause the death of Ayodhya and there was neither any intention established nor any intention to kill Ayodhya, therefore, the case would fall within the meaning of Section 299 of the IPC and at the best, with the aid of Section 301 of the IPC, the appellant could have been convicted under Section 304 Part-II of the IPC. Since the appellant is in jail from 26-2-2014 i.e. since 8 years and he had already suffered the substantial jail sentence, he be sentenced to the period already undergone by him and the appeal be allowed in part.
7. Per contra, Mr. Sunil Otwani, learned Additional Advocate General, ably assisted by Mr. Sudeep Verma, learned Deputy Government Advocate, appearing for the State / respondent, would submit that since the appellant and others have encroached upon the Government land / Panchayat land, that is the reason that the appellant had revengeful attitude with the injured {Dhanushdhari (PW-1)} and he Cr.A.No.1188/2015 Page 5 of 10 wanted to kill him which is also apparent from the FIR Ex.P-23 lodged against the appellant and eight other persons and a resolution was passed by the Panchayat on 25-1-2014 to the effect that a school be constructed on the land in question. As such, the appellant intended to kill Dhanushdhari (PW-1) and the manner in which the appellant has dashed the motorcycle driven by Dhanushdhari (PW-1) goes to establish that he had intention to kill Dhanushdhari (PW-1). Learned Additional Advocate General would further submit that with the aid of Section 301 of the IPC, the appellant has rightly been punished under Section 302 of the IPC and the appeal deserves to be dismissed.
8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
9. The trial Court has categorically recorded a finding that since the appellant had land dispute with Dhanushdhari (PW-1) and others for which Dhanushdhari (PW-1) has lodged FIR against the appellant herein and eight others for offences punishable under Sections 147, 294, 506 Part-II of the IPC & Section 3(1)(x) of the Act of 1989, and on account of that on the fateful day, the appellant while driving the pickup van noticing Dhanushdhari (PW-1) on motorcycle and also identifying him, suddenly turned the said vehicle and dashed Dhanushdhari (PW-
1)'s motorcycle with intention to cause his death, and in order to save himself when Dhanushdhari (PW-1) moved vehicle down the road, then also, the appellant chased him and dashed the motorcycle driven by him going 20 meters down the road because of which deceased Ayodhya sitting as pillion rider on the motorcycle and Dhanushdhari (PW-1), both, suffered grievous injuries. This fact has been found Cr.A.No.1188/2015 Page 6 of 10 established by the trial Court by recording a detailed finding. The trial Court has further held that the appellant is guilty of offence under Section 302 of the IPC for causing the death of Ayodhya and also held the appellant guilty of offence under Section 307 of the IPC for causing grievous injuries which were sufficient to cause death of Dhanushdhari (PW-1). Conviction of the appellant for offence under Section 307 of the IPC recorded by the trial Court appears to be justified as it has clearly been established by the prosecution that on account of pending dispute between the appellant and Dhanushdhari (PW-1), the appellant had caused grievous injuries to Dhanushdhari (PW-1) which were sufficient to cause death. Injury report of Dhanushdhari (PW-1) Ex.P-8 states as under: -
1. Abrasion 2 c.m. x 2 c.m. over right knee anterior aspect.
2. Laceration superficial 2 c.m. x 0.5 c.m. x 1 m.m. over left knee anterior aspect.
10. Though the injuries said to have been inflicted to Dhanushdhari (PW-1) are simple in nature, yet, since the intention to cause death has been established, therefore, even though the injuries are simple in nature, conviction of the appellant under Section 307 of the IPC has rightly been recorded by the trial Court which we hereby affirm.
11. Now, coming to the conviction of the appellant under Section 302 of the IPC, apparently and admittedly, there was no dispute between the appellant herein and deceased Ayodhya, but since Ayodhya was pillion rider with Dhanushdhari (PW-1) with whom the appellant had dispute, the appellant did not have any intention to cause the death of Ayodhya or he had no knowledge that by such act he is likely to cause the death of Ayodhya. But, at this stage, it would be appropriate to notice Cr.A.No.1188/2015 Page 7 of 10 Section 301 of the IPC which states as under: -
"301. Culpable homicide by causing death of person other than person whose death was intended.--If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person, whose death he intended or knew himself to be likely to cause."
12. The above stated provision lays down that culpable homicide may be committed by causing the death of a person whom the offender neither intended, nor knew himself to be likely, to kill. It incorporates the doctrine of transferred malice.
13. The Supreme Court in the matter of Shankarlal Kacharabhai and others v. The State of Gujarat 1 has held that if a man by mistake, or e.g., by bad aim, causes injury to a person or property other than the person and property which he intended to attack, he is guilty of a crime of the same degree, as if he had achieved his object (it is technically called the theory of transferred malice).
14. In the matter of Mohd. Rafiq alias Kallu v. State of Madhya Pradesh2, in similar circumstances, the Supreme Court has altered conviction from Section 302 to Section 304 Part-I of the IPC.
15. A three Judge Bench of the Supreme Court in the matter of Kashiram and others v. State of M.P.3, in case of accidental injury attracting applicability of "transferred malice" under Section 301 of the IPC, converted the conviction from Section 302 of the IPC to Section 304 Part-II of the IPC by observing as under: -
1 AIR 1965 SC 1260 2 (2021) 10 SCC 706 3 (2002) 1 SCC 71 Cr.A.No.1188/2015 Page 8 of 10 "31. ... So also his subsequent fire aimed at complainant Sundera but which accidentally hit Jamuni Bai Dhoban would also be punishable under Section 304 Part II IPC with the aid of Section 301 IPC. If he had injured the complainant Sundera, he would have been liable to be convicted under Section 304 Part II IPC. Inspite of complainant Sunder alias Sundera having escaped unhurt and yet Jamuni Bai Dhoban having been injured though not aimed at, on the doctrine of "transferred malice" as contained in Section 301 IPC the liability of the accused remains the same. In the FIR, the version of Sundera was that Jamuni Bai had intervened to rescue him when she got injured. This story was abandoned by Sundera whilst in witness box and he maintained that though the second shot by accused Ramesh was aimed at him it hit Jamuni Bai instead of him. No prosecution witness states where the gun held by accused Ramesh was aimed at. Prosecution version coming through the three eyewitnesses that accused Ramesh was in a standing posture, facing them, when he fired the gun, is not supported by, rather belied by, medical evidence. The fact remains that Jamuni Bai was neither aimed at nor intended to be harmed by accused Ramesh. In case of accidental injury attracting applicability of "transferred malice" under Section 301 IPC and having held that the act of the accused was covered by Section 304 IPC, the court should lean in favour of convicting the accused under Part II of Section 304 if it is in doubt as to which one of the two parts of Section 304 IPC would be attracted. This would be consistent with the basic tenet of extending benefit of doubt in criminal jurisprudence.
Accordingly, we hold the accused Ramesh guilty under Section 304 Part II for causing the death of Jamuni Bai.
32. In similar circumstances this Court has held in Yogendra Morarji v. State of Gujarat4, Dev Raj v. State of H.P.5 and Tarachand v. State of Haryana6 the act of the accused falling under Exception II to Section 300 IPC and hence punishable under Section 304 IPC and not under Section 302 IPC. In Yogendra Morarji case this Court has also observed that this was a circumstance which could be taken into account in mitigation of the sentence."
16. Reverting to the facts of the case in the light of the aforesaid principles of law laid down by the Supreme Court, it is quite vivid that in the 4 AIR 1980 SC 660 5 AIR 1994 SC 523 6 AIR 1971 SC 1891 Cr.A.No.1188/2015 Page 9 of 10 present case, deceased Ayodhya was neither aimed at nor intended to be harmed by the appellant herein and Dr. A.K. Vishwakarma (PW-3) has branded the injuries sustained by deceased Ayodhya to be accidental. It is admitted position on record that dispute was between the appellant herein and Dhanushdhari (PW-1) and since the deceased was pillion rider on the motorcycle being run by Dhanushdhari (PW-1), he suffered injuries when the appellant intended to cause injury to Dhanushdhari (PW-1), therefore, in that case, applying the doctrine of transferred malice as contemplated under Section 301 of the IPC, the accused / appellant herein deserves to be convicted under Section 304 Part-II of the IPC as held by their Lordships of the Supreme Court in Kashiram (supra), for causing the death of Ayodhya.
17. Accordingly, the appeal is partly allowed. Conviction of the appellant under Section 302 of the IPC is set aside and he is convicted under Section 304 Part-II of the IPC and sentenced to the period already undergone by him. The appellant is in jail since 26-2-2014 and thereby he had already served more than 8 years of jail sentence. However, conviction and sentences imposed upon the appellant under Section 307 of the IPC are maintained. The appellant be released forthwith, if not required in any other case.
18. This Court appreciates the assistance rendered by Mr. Sunil Otwani, Additional Advocate General, and Mr. Sudeep Verma, Deputy Government Advocate.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
Soma
Cr.A.No.1188/2015
Page 10 of 10
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1188 of 2015
Kalam Ansari
Versus
State of Chhattisgarh
Head Note
Appellant's conviction under Section 302 of the IPC is modified under Section 304 Part-II of the IPC, applying the doctrine of transferred malice. fo}s"k ds varj.k ds fl)kar dks ykxw djrs gq, vihykFkhZ dh Hkkjrh; n.M lafgrk dh /kkjk 302 ds rgr~ nks"kfl)h dks Hkkjrh; n.M lafgrk dh /kkjk 304 Hkkx-II esa mikarfjr fd;k x;k gSA