Allahabad High Court
Faim vs State Of U.P. on 6 August, 2024
Bench: Ashwani Kumar Mishra, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No.- 2024:AHC:126961-DB Court No. - 43 Case :- CRIMINAL APPEAL No. - 1973 of 2020 Appellant :- Faim Respondent :- State of U.P. Counsel for Appellant :- Ashok Pandey,Chandra Bhan Singh,Nazrul Islam Jafri(Senior Adv.),Sadaful Islam Jafri Counsel for Respondent :- Anand Kumar Singh,G.A. With Case :- CRIMINAL APPEAL No. - 1660 of 2020 Appellant :- Shameem And 5 Others Respondent :- State of U.P. Counsel for Appellant :- Mohd Shamim Khan,Mohd. Tasleem,Nazrul Islam Jafri(Senior Adv.),Sadaful Islam Jafri Counsel for Respondent :- Anand Kumar Singh,G.A. Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Dr. Gautam Chowdhary,J.
(Per: Hon'ble Ashwani Kumar Mishra,J.)
1. These two appeals are instituted by the accused appellants, namely, Faim, Shameem, Shakeel, Mumtyaz, Naim, Kadeer and Shafeeq against a composite judgment and order dated 02.03.2020, passed by the learned Additional District and Sessions Judge, Court No.3, Moradabad in Sessions Trial Nos.905 of 2015 (State Vs. Shameem and others) and 1095 of 2015 (State Vs. Shafeeq), arising out of Case Crime No.105 of 2015, under Sections 147, 148, 452, 323/149, 336/149 I.P.C., Police Station-Bhagatpur, District-Moradabad; whereby the appellants- Faim, Shameem, Shakeel, Mumtyaz, Naim, Kadeer & Shafeeq have been convicted and sentenced to two years imprisonment under Section 147 IPC alongwith fine of Rs. 2,000/-, each, and in default of payment of fine to undergo one month's additional imprisonment; sentenced to two years imprisonment under Section 148 IPC alongwith fine of Rs. 2,000/-, each, and in default of payment of fine to undergo one month's additional imprisonment; sentenced to five years imprisonment under Section 452 IPC alongwith fine of Rs. 5,000/-, each, and in default of payment of fine to undergo two months' additional imprisonment; sentenced to one year imprisonment under Section 323/149 IPC alongwith fine of Rs. 1,000/-, each, and in default of payment of fine to undergo 15 days' additional imprisonment; sentenced to two months' imprisonment under Section 336/149 IPC alongwith fine of Rs. 250/-, each, and in default of payment of fine to undergo one week's additional imprisonment. The accused appellant-Faim has also been convicted and sentenced to life imprisonment under Section 304(1) IPC alongwith fine of Rs. 25,000/-, and in default of payment of fine to undergo six months' additional imprisonment. All the sentences are directed to run concurrently.
2. Basis of prosecution case is the written report of Nafees (P.W.-1) scribed by Hethram (not produced), as per which on 01.05.2015 a quarrel took place between informant's cousin Kadir and his younger brother Anees regarding payment of wages to the labourers. It is for this reason that the accused persons, namely, Shameem, Shakeel & Mumtyaz sons of Kadeer, Naim & Faim sons of Hanif, Kadeer son of Naseer and Shafeeq son of Kadeer with a common intent and object entered the house of informant's younger brother Anees and started assaulting family members with sticks and batons. Accused Faim struck a blow of bottle (glass) on the head of informant's nephew Anus, aged about 14 years, as a result of which he sustained serious head injury. Stones pelting was also resorted to at the house of the informant as a result of which the informant and other family members sustained injuries. The nephew was rushed to the Government Hospital at Bhojpur. With these allegations the FIR was initially lodged at about 8:40 p.m. on 01.05.2015, under Sections 147, 149, 452, 323, 324 & 336 I.P.C. as Case Crime No. 92 of 2015. Six days later, injured Anus died during treatment at Medical College, Meerut on 06.05.2015. On the basis of subsequent information received, offence under Section 302 I.P.C. was added against the accused persons.
3. The injured was medically examined on the date of incident by Dr. Pawan Kumar (P.W.-7). The injury report has been exhibited as Ka-7, wherein following solitary injury was noticed on the head of the deceased:-
"1. A lacerated wound about 3 c.m. X 0.5 c.m. X skin deep with around wound contusion present, oozing of blood present injury kept under observation adv. X-ray, CT scan head urgent call to surgeon patient in coma, wound laceration about about certain part of valt of skull. Complaint of vomiting, convulsion seen pupil semidilated, not react to light duration postponed due to patient seen. Opinion, injury no.1 kept under observation adv. X-ray, CT scan head urgent call to surgeon for further management primary management done, duration-fresh caused by hard and blunt object. "
4. After his death, inquest was conducted at about 9:30 a.m. on 06.05.2015. The inquest witnesses were of the view that postmortem be conducted to ascertain the cause of death. Body of deceased was accordingly sealed and sent for postmortem in which following injuries have been found on the deceased:-
"(i). On removal of surgical dressing from head an stitched wound shaped 21.0 c.m. long having 18 stitched present on right side of head 4.0 c.m. above right ear. On exploration hematoma found underneath the wound right parietal bone found fractured, extradural & subdural hematoma present. Brain meningis are congested."
5. The age of the deceased in the postmortem is specified as eight years. Statement of witnesses were recorded in the matter and ultimately a charge sheet came to be filed against the accused persons under Sections 147, 148, 149, 452, 323, 324, 336, 302 I.P.C., Police Station-Bhagatpur, District-Moradabad against six persons. The concerned Magistrate took cognizance on the charge sheet and committed the case to the Court of Sessions, where it got registered as Sessions Trial No. 905 of 2015. Charges were framed by the court of Sessions against the accused persons in the aforesaid sections, who denied the allegation and demanded trial.
6. During the course of trial following documentary evidences have been produced:-
"i. F.I.R., Ex.Ka.4, dt. 01.05.2015.
ii. Written Report, Ex.Ka.1, dt. 01.05.2015.
iii. Written Report, Ex.Ka.2, dt. 06.05.2015.
iv. Recovery Memo of a rod & 3 wooden stickes, Ex.Ka.15, dt. 03.06.2015.
v. Injury Report, Ex.Ka.7, dt. 01.05.2015.
vi. P.M. Report, Ex.Ka.3, dt. 06.05.2015.
vii. Panchayatnama, Ex.Ka.8, dt. 06.05.2015.
viii. Charge-sheet, Ex.Ka.17, dt. 04.07.2015.
ix. Charge-sheet, Ex.Ka.18, dt. 08.08.2015.
x. Charge framed by A.S.J., dt. 01.03.2016.
xi. Note framed by A.S.J., dt. 01.03.2016.
xii. Charge framed by A.S.J., dt. 01.03.2016.
xiii. Note framed by A.S.J., dt. 01.03.2016."
7. Nafees has been produced as P.W.-1, who has supported the prosecution case according to which on the date of incident a dispute occurred between the parties on account of payment to be made to the workers. It is alleged that the accused persons maintained enmity against the informants' side since the plot in-front of the house of the Kadeer had been purchased by them though the accused persons were also interested in buying it. It is then asserted that on the date of incident the elder son of Anees, namely, Asif had gone to the village market, where son of Kadeer, namely, Shameem met him and asked him to get him a cold drink. Asif apparently refused, whereafter an altercation took place but due to intervention of persons present there, it was resolved. It is thereafter that the accused persons came to the house of the informant's brother Anees, armed with baton and sticks. Accused Faim was carrying a glass bottle and accused Shakeel had an iron rod. All the accused persons started assaulting Anees and when the P.W.-1 intervened he was also assaulted by the accused persons. It was at this stage that Faim struck the blow of bottle on the head of the injured Anus. P.W.-1 has proved the written report on the basis of which the offence under Section 302 I.P.C. was later on added.
8. In the cross examination, P.W.-1 has admitted that criminal cases are pending against him. His statement under Section 161 Cr.P.C. was recorded on 09.05.2018. P.W.-1 has asserted that accused Faim caused the injury on the head of Anus while other family members sustained injuries at the hands of the other accused. P.W.-1 has denied the suggestion that on the date of incident accused Shakeel had come to lodge a complaint, whereafter the incident occurred.
9. Saleem, son of Md. Naib, is P.W.-2. He is a neighbour of P.W.-1. He had come to visit Anees on 01.05.2015 and was speaking to him when accused persons came abruptly and started hurling abuses. Accused persons had stick and batons in their hand with which they started assaulting family members. Brickbats were also thrown at him and others. It is then that accused Faim struck the solitary blow on the head of the deceased with a glass bottle, whereas Naim and Shameem assaulted on the head of Anus with iron rod and stick due to which he fell and started bleeding. In the cross-examination P.W.-2 has stated that he saw the incident from a distance of 2-3 meters. His house situated at a distance of 300-350 meters from the house of Anees. He has denied that in his statement to the I.O. he had alleged that Naim and Faim assaulted the deceased with stick. He has also denied the suggestion that he informed the I.O. that Saleem had caused the injury on deceased by a glass bottle.
10. P.W.-3 is Anees son of Babu, who is a contractual employee in the National Highway Authority. It is alleged that on the date of incident the accused persons entered his house and assaulted his son with glass bottle, iron rod, sticks etc. The enmity was in respect of the plot purchased by them. It is also stated that his elder son Asif had gone to the market and was drinking Pepsi when Kadeer, son of Shameem, came to the shop and asked Asif to also get him cold drink. Asif expressed his inability as he was not carrying money on which an altercation took place at about 7-8 p.m. It is thereafter that he returned home when the accused persons came armed with stick, baton, iron rod, brickbats, etc. After hurling abuses Faim struck the blow with glass bottle on the head of Anus, while Shakeel assaulted him with iron rod and Naim and Shameem assaulted the deceased with stick and baton. In the cross-examination, P.W.-3 has stated that in the incident other family members also sustained simple injuries. P.W.-3 also sustained injuries on his shoulder but the same was not medically examined. The report has been lodged in the matter by Nafees. In the cross-examination P.W.-3 has asserted that his statement in the examination-in-chief that light of the generator was available in the village was not informed by him to the I.O. He also claimed that accused persons assaulted him too with a stick. The earlier incident relating to buying a cold drink occurred around 4:00 p.m. He has supported the allegation with regard to enmity and has explained the manner in which deceased was assaulted by Faim with a glass bottle while other accused inflicted injuries by iron rod, stick, batons, etc.
11. P.W.-4 is a neighbour and was employed at Bhagatpur, which is at some distance from the place of incident. This witness has also explained the incident at the cold drink shop. He saw the incident from some distance. He had followed the accused persons on his own.
12. Dr. B.P. Singh has been produced as P.W.-5. He conducted the postmortem and proved the postmortem report. In his opinion, there was a solitary injury on the head of the deceased, which could have been caused by a glass bottle.
13. P.W.-6 is Kasim Ahmed, who was posted in the concerned Police Station and has proved the police papers.
14. P.W.-7 is Dr. Pawan Kumar, who had first examined the injured on the date of incident. This witness has specifically stated that only a solitary injury was caused to the deceased and that such injury could have been caused by the blow of a bottle.
15. P.W.-8 S.I. Ram Chandra Singh, P.W.-9 S.I. Ramveer Rathi and P.W.-10 Inspector Akhilesh Pradhan are all formal witnesses, who have explained the manner in which investigation was conducted and have also proved the police papers. Not much turns upon their testimony and, therefore, it is not necessary to refer to their testimony at any greater length.
16. The above evidence of prosecution has been confronted to the accused persons, who have stated that the evidence of prosecution is not reliable and that due to family enmity they have been falsely implicated.
17. On the basis of evidence led in the matter the court of Sessions has come to the conclusion that the prosecution has established the incident in which all the accused persons came armed to the house of Anees and assaulted Anus (deceased) with a bottle, due to which he ultimately died. Consequently, accused appellants are convicted and sentenced as per above.
18. Shri Ashok Pandey, assisted by Shri Sheresth Pandey, learned counsel appearing for the accused appellant-Faim and Shri N.I. Zafari, learned Senior Counsel assisted by Shri S.I. Zafari, learned counsel for the remaining appellants have been heard at length who contend that the conviction and finding of the accused appellants are unsustainable and that all the accused appellants are falsely implicated. It is submitted that though the witnesses alleged that all the accused persons came armed and assaulted different members of the family but except the solitary injury caused to the deceased Anus, none of the other family members have sustained any injury nor any injury report of any other person has been brought on record. It is also submitted that common object or common intent on part of the accused persons is also not established. Submission is that finding of guilt attributed to accused appellants, therefore, is unsustainable in law.
19. On behalf of the accused appellant-Fahim, Shri Ashok Pandey, learned counsel alternatively submits that even if the prosecution evidence is taken on its face value, it only reveals that a solitary blow of a glass bottle was the cause of injury to the deceased due to which he ultimately succumbed six days later. It is submitted that the offence at best would fall under 3rd category of Section 299 I.P.C. and thus it shall not fall within the purview of Section 300 I.P.C. It is, therefore, submitted that at best the accused appellant Faim could be punished under Section 304 part-II of the I.P.C., by the court of Sessions, and the court below erred in convicting the accused appellant Faim under Section 302 I.P.C. and sentencing him to life.
20. Shri Vikas Goswami, learned A.G.A. has supported the judgment of the court below for the reasons assigned therein. He submits that the testimony of eye witnesses are reliable and since death has been caused on account of injury inflicted upon deceased, as such the finding of conviction and sentence merits no interference. It is also submitted that there was an unlawful assembly with common intent and object and all the accused appellants were the aggressor, who not only unauthorizedly entered the house of Anees armed with baton, sticks & iron rod but assaulted the informants' family members as well as the deceased.
21. We have heard learned counsel for the parties and have carefully perused the record including the original records of the trial court.
22. It is undisputed that the accused persons as well as the family of the deceased are closely related and are otherwise neighbours. Case of the prosecution is that the accused persons started maintaining grudge against the informant's family only because a plot situated in-front of the house of accused persons was bought by the informant's side although the accused party intended to buy it. On this aspect the testimony of P.W.-1 is relevant. In his cross-examination P.W.-1 has stated that his brother Anees is a contractual employee. Plot in-front of the house of the Kadeer was purchased by the P.W.-1 and P.W.-3. There was no litigation in respect of this property. No registered sale deed of the plot was executed or produced during trial and the transfer was made apparently on deficient stamp without its registration etc. The transfer deed of the alleged transaction has not been produced. The prosecution witnesses moreover assert that they have further sold this plot without any sale deed executed by them as per law. P.W.-2 has not said anything about the enmity. P.W.-3 moreover has stated that the incident occurred on account of purchase of plot by them in-front of the house of the accused. P.W.-3 however has not explained the manner in which the plot was bought.
23. P.W.-3 while endorsing the version of P.W.-1 about the grudge being maintained by the accused persons due to purchase of plot and has further asserted that due to the above enmity the accused persons resorted to quarrel/fight on slightest pretext. On 01.05.2015, his elder son Asif had gone to market and was having cold drink when Shameem came and asked Asif to get him a cold drink. On refusal to do so, Shameem held the collar of Asif and hurled abuses and assaulted him but the issue was resolved on the intervention of persons present there.
24. From the prosecution evidence though motive is not fully substantiated yet it does appear that the relations between the parties got strained on account of purchase of a plot by informants (P.W.-1 & P.W.-3). Some incident also occurred on the relevant date i.e. 01.05.2015 when Shameem misbehaved with Asif and assaulted him after he refused to buy cold drink.
25. Statement of prosecution witness, therefore, supports the prosecution case about some incident occurring earlier in the day between the family. No injury was caused to any one of them. It is soon thereafter that the accused persons allegedly came to the house of the informant's brother when the incident occurred. The nature of evidence regarding enmity is not very strong. However, it does appear that there were some differences between the cousins and in the evening hours an altercation took place between Shameem and Asif.
26. The accused persons came to the house of P.W.-3 thereafter. Though it is alleged that all accused persons had iron rods, stick, batons, brickbats, etc., but it does not appear that any injury was caused to any of the family members of the informant. Though it is asserted by the prosecution witnesses that informant side was assaulted with iron rod, sticks, brickbats, etc., but none of the persons has explained the actual injury nor any of the alleged injury was medically examined. Prosecution witnesses have admitted that their injuries were never got examined. We are, therefore, not inclined to accept the prosecution case that all the accused persons came heavily armed with iron rod, sticks and batons and assaulted the informant's side. Had it been so, some injury ought to have been caused to other persons and the fact that none of the accused got their injuries examined, medically, creates a doubt upon the prosecution case of other family members sustaining injury.
27. The only injury caused is to the deceased Anus, which has already been noticed above. All the prosecution witnesses are consistent that it was accused Faim who struck the solitary blow on the head by a glass bottle. The injury report and the postmortem also clearly shows existence of a solitary injury on the head/ skull of the deceased. P.W.-7 is the doctor, who first examined the deceased and has specifically stated that there is no other injury on the deceased.
28. The prosecution witnesses appear to have exaggerated the incident inasmuch as the alleged eye witnesses have specifically asserted that other accused assaulted (appellants other than Faim) the deceased with iron rod, sticks etc. However, no such injuries found on the head of the deceased.
29. Absence of injury or report in respect thereof creates a serious doubt on the prosecution case with regard to assault by other accuseds. The allegation that other accused assaulted the deceased or other family members got injured is disbelieved.
30. The only part of the prosecution case which does find support from the evidence on record is that Faim entered the house of P.W.-3 and during altercation between the members of both sides caused the solitary blow with a glass bottle due to which Anus fell and ultimately died six days later.
31. When the evidence is analysed in its entirety, we find that there was some differences between the family members and on a trivial issue an altercation took place between the two families and in a sudden rage accused Faim struck on the head of deceased with a glass bottle as a result of which he died six days later.
32. From the evidence brought on record, it does not appear that there was any intention on part of accused Faim to kill the deceased. The case in hand will not fall in the first two categories of Section 299 I.P.C., inasmuch as there is neither any intention to commit murder nor there is intention to cause such bodily injury as would result in the death of the deceased. On fact this case will fall in third category of Section 299 I.P.C. and would clearly be executed from the ambit of Section 300 I.P.C. The guilt of accused Faim, therefore, would only fall under Section 304 part-II I.P.C. The conviction and sentence awarded to accused Faim of life imprisonment under Section 302 I.P.C., therefore cannot be sustained.
33. The issue as to in what circumstances conviction would fall under Section 304 part-I I.P.C. or under Section 304 part-II I.P.C. has been elaborately discussed in the recent judgement of Hon'ble Supreme Court in Anbazhagan Vs. The State, Represented by the Inspector of Police, 2023 0 Supreme(SC) 646. The important principles on the above aspect have been culled out by the Hon'ble Court in para 60 of the judgment which is reproduced hereinafter:-
"60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:-
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate : 'A' is bound hand and foot.
'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases: (I) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."
34. When the evidence is examined in its entirety, we find that the solitary injury caused to deceased was by the blow of a bottle on the head of the deceased as a result of which he died six days later. There is no evidence on record to prove intention to commit murder. The case in hand, therefore, falls under Section 299 I.P.C. (III-category) and consequently accused appellant Faim can only be punished under Section 304 part-II I.P.C.
35. Causing a solitary blow with a glass bottle on the head of the deceased, as a result of which he died six days later, in an incident caused on account of an altercation due to a trivial matter would not justify the sentence of life. In our opinion, the nature of solitary injury caused to the deceased by a glass bottle may at best justify sentence of five years to the accused appellant Faim. In that view of the matter, the conviction and sentence of the accused appellant Faim stands modified and substituted with conviction under Section 304 part-II I.P.C. and sentence of five years. The imposition of fine is sustained alongwith default sentence. The Criminal Appeal No. 1973 of 2020 filed by the accused appellant Faim is accordingly allowed in part.
36. So far as the other appeal of accused appellants, Shameem, Shakeel, Mumtyaz, Naim, Kadeer and Shafeeq is concerned, we do not find any evidence to show that these accused came armed with sticks, batons and iron rod and assaulted family members of informant. Admittedly, no injury is caused to anyone except the solitary injury on the head of deceased Anus. Although, the witnesses have stated that accused persons also struck blow of rod and stick on the head of Anus but such version does not find support from the medical evidence available on record. We are, therefore, not inclined to accept the version of prosecution witnesses that all the accused persons came armed with iron rod, sticks, batons, etc., and assaulted the informant's side. Consequently, the conviction and sentence of all the appellants under Sections 147, 148, 452, 323/149, 336/149 I.P.C., Police Station-Bhagatpur, District-Moradabad, in Criminal Appeal No.1660 of 2020, therefore, cannot be sustained. Criminal Appeal No. 1660 of 2020 filed by the Shameem and others vs. State of U.P. succeeds and is allowed and all the accused appellants are acquitted of the charges levelled against them by granting them benefit of doubt.
37. For the reasons and discussions held above in the Criminal Appeal No. 1660 of 2020 filed by the Shameem and others vs. State of U.P. succeeds and is allowed. The conviction and sentence of the accused appellants are hereby set aside.
38. The accused-appellants, namely, Faim, Shameem, Shakeel, Mumtyaz, Naim, Kadeer and Shafeeq would be released, forthwith, unless they are wanted in any other case, subject to compliance of Section 437-A Cr.P.C.
Order Date :- 6.8.2024 Anurag/-
(Dr. Gautam Chowdhary,J.) (Ashwani Kumar Mishra,J.)