Rajasthan High Court - Jodhpur
Khalil Hussain vs State on 17 November, 2017
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 8 / 2016
Khalil Hussain S/o Abdul Rajak, by caste Muslim, R/o Bahar Ka
Sahar, Bhinder, District Udaipur
[presently lodged in Central Jail, Udaipur]
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Kalu Ram Bhati
For Respondent(s) : Mr. CS Ojha
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE MANOJ KUMAR GARG Judgment Per Hon'ble Mr. Justice Gopal Krishan Vyas Date of Judgment :: 17th Nov., 2017 In this cr. appeal filed by the accused appellant Khalil Hussain under Section 374(2) Cr.P.C., the judgment dated 16.12.2015 passed by the learned Addl. District & Sessions Judge NO.4, Udaipur in Sessions Case No.69/2014 is under challenged whereby the learned trial court convicted the accused appellant for offence under Section 302 IPC and under Section 4/25 of the Arms Act and passed following sentence:
(2 of 12) [CRLA-8/2016] Under Section 302 IPC Life imprisonment with fine of Rs.10,000/- and in default of payment of fine to further undergo three months RI.
Under Section 4/25 of the Arms
Act Two years SI with fine of
Rs.1,000/- and in default of
payment of fine to further
undergo one month SI.
As per facts of the case the complainant Ashiq Hussain, son of deceased Manjoor Hussain submitted a written report (Ex.P/6) at CHC Bhinder before the SHO Police Station Bhinder in which following allegations were levelled by him :-
^^lsokesa] Jheku Fkkusnkj lkgc iqfyl Fkkuk Hkh.Mj ftyk ¼mn;iqj½ izkFkhZ %& vkf'kd gqlSu s/o eUtqj gqlSu fiUtkjk fuoklh ckgj dk 'kgj Hkh.Mj fo"k; %& dkuwuh dkjokbZ djkus ckcrA egksn;th %& fuosnu gS fd vkt fnukad 27@3@13 dks lqcg djhc 9&10 cts esjs pkpk [kyhy gqlSu ds o esjs ikik ds vkil esa xkM+h fudkyus fd ckr dks ysdj fookn gks x;k esjs pkpk [kyhy gqlSu us xkM+h ugha fudky nh fQj le>kb'k ij esjs ikik xkM+h fudky dj mn;iqj x;s rFkk nksigj esa djhc 1&2 cts okil mn;iqj ls Hkh.Mj gkWLihVy ds ckgj xkM+h [kMh fd ml le; es FkksM+h gh nwj [kM+k Fkk rFkk esjs pkpk [kyhy gqlSu Hkh gksVy ds ikl [kM+k Fkk ftl us esjs ikik dks ns[k mlds ikl pkdw Fkk ftlls esjs ikik ij geyk dj pksV igwpkus yxk ml le; eksgEen bZj'kkn s/o vCnwy lRrkj us Hkh chp cpko fd;k ftlls muds Hkh pksV vkbZ ;s ?kVuk ns[k es ikl esa x;k rks esjs ikik eUtqj gqlSu dks ckb rjQ Qlyh ds uhps pkdw dk ?kgjk ?kko yxk gksdj [kwu fudy jgs Fks fQj eSus o vU; yksxksa us gkWLihVy yk, o iV~Vh ca/kokdj mn;iqj bykt gsrq jokuk gq, rFkk mn;iqj (3 of 12) [CRLA-8/2016] igqps mlds igys esjs ikik eUtqj gqlSu fd e`R;q gks xbZ ftudh yk'k okil Hkh.Mj ysdj vk, rFkk gkWLihVy eksjpjh esa ikik dh yk'k j[kh gSA eS fjiksVZ djrk gw dkuwuh dkjokbZ fd tk, osA vkf'kd** Upon aforesaid written complaint, FIR no.48/2013 was registered under Section 302/323 IPC and investigation was commenced by the SHO, Bhinder. During investigation, Panchnama of the dead body (Ex.P/1) was prepared at CHS, Bhinder and site plan (Ex.P/3) was prepared alongwith details of site on 28.3.2013. The post mortem of the dead body of the deceased Manjoor Hussain was conducted at CHC Bhinder on 27.3.2013 itself and post mortem report (Ex.P/13) was taken by the investigating officer for further investigation.
After post mortem, the dead body of the deceased was handed over to complainant Aasiq Hussain, son of the deceased Manjoor Hussain vide Ex.P/7. The accused appellant Khalil Hussain, brother of the deceased, was arrested vide Ex.P/17 on 28.3.2013 at 4.30 pm. Thereafter, upon his information under Section 27 of the Evidence Act, one knife of 29.5 cm was recovered in front of two witnesses Mohd. Aslam and Bheru Lal vide Ex.P/10 and as per recovery memo, the blood was found upon knife and said knife was sealed and taken in possession at the place of recovery itself. In the incident, one eye witness Irshad Mohd. received injury, therefore, he was medically examined and injury report was prepared and obtained for the investigation by the medical officer of CHC, Bhinder. The statements of all the prosecution witnesses were recorded under (4 of 12) [CRLA-8/2016] Section 161 Cr.P.C. and after completing investigation, charge- sheet was filed against the accused appellant in the court of Judicial Magistrate, Binder from where case was committed to the court of Sessions Judge, Udaipur and later on transferred to the court of Addl. District & Sessions Judge No.4, Udaipur for trial.
The learned trial court after providing an opportunity of hearing framed charge against the accused appellant Khalil Hussain under Section 302 IPC and under Section 4/25 of the Arms Act, but accused appellant denied the allegations and prayed for trial. In the trial statements of 17 prosecution witnesses were recorded and 25 documents were exhibited to prove the prosecution case and, thereafter, statements of accused appellant was recorded under Section 313 Cr.P.C. in which he refuted all the allegations made by the prosecution witnesses and said that he has been falsely implicated in this case.
In defence, no oral evidence is produced but four documents were exhibited in defence.
The learned trial court after recording evidence of the prosecution as well as defence proceeded to hear final arguments and thereafter, convicted the accused appellant for offence under Section 302 IPC and 4/25 of the Arms Act and passed the sentence mentioned above vide judgment dated 16.12.2015 in Sessions Case No.69/2014.
At the threshold learned counsel for the appellant argued that the accused appellant Khalil Hussain as well as the deceased Manjoor Hussain are real brothers and as per allegations, only one injury was inflicted by the accused appellant in spur of moment, (5 of 12) [CRLA-8/2016] which resulted into death but there is no evidence of motive. The incident took place for some minor dispute and in anger the said injury was inflicted by the accused appellant which resulted into death, therefore, in absence of any evidence of intention and motive the finding for offence under Section 302 IPC recorded by the trial court is not sustainable in law because as per entire evidence of prosecution, offence cannot travel beyond offence under Section 304 Part II IPC. Without disputing occurrence, the only argument of the learned counsel for the accused appellant is that finding of conviction recorded by the learned trial court under Section 302 IPC may kindly be altered to the offence under Section 304 Part II IPC and the sentence may also be reduced to already undergone because accused appellant and deceased are real brothers. In support of his arguments, learned counsel for the appellant invited our attention towards the judgments of (i), Balu Vs. State of Maharashtra reported in AIR 2015 SC 949 (ii) D.B. Criminal Jail Appeal No.384/2006 : Khemla Vs. State of Rajasthan, decided on 21.1.2016 and (iii) Kalaram Vs. State of Rajasthan reported in 2015(1) CJ(Cri.)(Raj.) page 180.
Per contra, learned Public Prosecutor submits that the injury by knife was caused by the accused appellant to the deceased with the intention to kill him which is evident from the fact that injury was caused on chest which resulted into the death. Chest is vital part of the body, therefore, prayer of the accused appellant to alter the finding of guilt for offence from 302 IPC to 304 Part II deserves to be rejected because intention can be gatherd from the place of injury caused by the accused appellant.
(6 of 12) [CRLA-8/2016] While inviting attention towards the statement of PW--13 Dr. Rajesh it is submitted that as per the opinion of the doctor injury was serious in nature upon the chest of the deceased, and, deceased died due to excessive bleeding from the injury caused by knife, therefore, prayer of the accused appellant to alter the finding of conviction from offence under Section 302 IPC to offence under Section 304 Part II IPC may kindly be rejected.
After hearing learned counsel for the parties, we have perused the FIR submitted by son of the deceased PW--4 Ashiq Hussain, so also, considered the statement of independent witnesses Irshad Mohd. In the examination-in-chief the injured eye witness Irshand Mohd. (PW--1) gave following statements, which reads as under:
^^27-03-2013 dh ckr gSA le; djhc ,d ct jgh FkhA eSa mn;iqj ls Hkh.Mj x;k FkkA Hkh.Mj esa ljdkjh gkWLihVy ds ckgj [kyhy gqlSu cSBk FkkA mlds lkFk esjk NksVk HkkbZ jbZl eksgEen Hkh cSBk gqvk FkkA oks pk;s ds Fksys ij cSBs gq, FksA ogkW Qhj eatqj gqlSu vk;k tks xkM+h ysdj vk;kA fQj ogka [kyhy eksgEen cSBk gqvk Fkk vkSj xkyh xykSp gqbZA fQj eatqj fups mrjkA fQj xkyh xykSp gksus ds ckn gkFkk ikbZ gqbZ FkhA gkFkkikbZ ds ckn eS NqM+kus x;kA rks [kyhy gqlSu us esjs nkfgus gkFk ij dksuh ds mij okj fd;k ftlls esjs gkFk ij yxhA esjs pDdq yxus ds ckn fQj eatqj gqlSu ds pDdq yxk fn;kA oks pDdq eatqj ds flus esa yxkA fQj eatqj gqlSu dks gkWLihVy ysdj x;sA eatqj gqlSu dks ?kk;y voLFkk esa gkWLihVy ysdj x;kA gkWLihVy ys tkus ds ckn mldksa ogka ls mn;iqj ds fy, jsQj dj fn;kA eatqj gqlSu dks pkdq yxk rc jbZl eksgEen] NksVw] eatqj dk csVk vkf'kd FksA eatqj ds flus esa yxh Fkh vksj CyMhax gksus yxh fQj vLirky ys x;sA esjs pskV yxh mldk MkWDVjh djok;k FkkA esjs pksVksa dk MkWDVjh eqvk;kuk Hkh.Mj gkWLihVy esa djok;k FkkA** (7 of 12) [CRLA-8/2016] In the cross-examination, it is specifically stated by injured eye witnesses that ";g ckr lgh gS fd jbZl eksgEen] NksVq] vkf'kd gqlSu] 'kkg:[k gqlSu] ;g lc ekSds ij ugha Fks ;s lc esjs Qksu djus ds ckn esa vLirky esa vk;s FksA** In view of the above it is clear that the author of the FIR Ashiq Hussain was not present when incident took place but there is no question to disbelieve the testimony of PW--1 Irshad Mohd.
in which he has categorically stated that a quarrel took place in between the deceased Manjoor Hussain and Khilil Hussain who was already sitting when Manjoor Hussain came on his vehicle at the place of occurrence.
We have also perused the statement of PW--13 Dr Rajesh.
The said witness has categorically stated in his statement that only one injury was found upon the body of the deceased. Other part of the body was found in order and due to the said injury deceased died due to excessive bleeding.
In our opinion, it is not a case that accused appellant with preparation went to the place of occurrence with intention to cause death of the deceased, who was real brother of the accused, but injury was inflicted by him in a quarrel took place in between them by knife upon chest, which resulted into death.
As per evidence, incident took place, all of sudden in between the brothers at the place of occurrence where accused appellant was already sitting therefore, obviously it cannot be said that it is a case for offence under Section 302 IPC but at the same time, we cannot lose sight of the fact that injury was caused upon (8 of 12) [CRLA-8/2016] the chest by knife which is vital part of the body and there is no allegation of repeated blow, therefore, the arguments of learned counsel for the appellant to alter the finding of conviction from offence under Section 302 to 304 Part I IPC can be accepted instead of Section 304 part II IPC.
Further, there is no question to disturb the finding for offence under Section 4/25 of the Arms Act because accused appellant is not disputing the incident.
In case of Balu Vs. State of Maharashtra reported in AIR 2015 SC 949 the Hon'ble Supreme Court after considering a number of judgments gave following verdicts which reads as under:
"18. Applying the aforesaid principle of law to the facts of the case in hand and keeping the same in consideration when we examine the evidence of the prosecution, we find that this is a case where the appellants should have been convicted for the offence punishable under Section 304 Part-I instead of Section 302 IPC.
19. It is for the reason that firstly, neither there was any motive and nor any intention on the part of any of the appellants to eliminate Savitribai. Secondly, there was no enmity of any kind with Savitribai in person with any of the appellants. Thirdly, the appellants had gone there to take possession of the cattle shed and not with an intention to kill any member of the family of Madhavrao Renge. Fourthly, if at all, if there was some kind of animosity or jealousy then it was towards A-1 whose panel had won the election. Savitribai had nothing to do with election because she never contested the election. Fifthly, despite the appellants armed with weapons, none of them inflicted any injury or gave blow to Savitribai but single blow was inflicted only on Madhavrao, who fortunately survived. Sixthly, Savitribai died due to sustaining of burn injuries, which she suffered because the appellants ablazed the cattle shed by pouring kerosene on it. In other words, if the appellants had not ablazed the cattle shed then the incident of death of Savitribai would not have (9 of 12) [CRLA-8/2016] occurred. Eighthly, it was a fight on a spur of moment between the two male groups on the issue of taking possession of cattle shed with no intention to kill any one and lastly, in the absence of any overt act attributed to any of the appellants towards Savitribai for inflicting any injury to her, the appellants could not have been convicted for an offence of committing murder of Savitribai so as to attract the rigour of Section 302 IPC and instead they should have been convicted for an offence of culpable homicide not amounting to murder under Section 304 Part I IPC.
20. In the light of foregoing discussion, we allow the appeals in part. The appellants are accordingly convicted for an offence punishable under Section 304 Part-I IPC instead of Section 302 IPC and each of the appellants is hereby awarded 7 years RI.
21. So far as the conviction and sentence awarded by the courts below under various other sections, as specified above, are concerned, they are upheld calling no interference. All the sentences shall run concurrently."
In D.B. Criminal Jail Appeal No.384/2006 : Khemla Vs. State of Rajasthan, decided on 21.1.2016, this Court had occasioned to decide similar controversy in which after following the judgments of Hon'ble Supreme Court in case of State of HP Vs. Ram Pal reported in (2006) 2 SCC (Cri.) page 165 and Arjun Vs. State of Maharashtra reported in 2012 Cr.L.R.(SC) 506 and Dayanand Vs. State of Haryana reported in 2008 Cri.L.J. 2975 held that if occurrence took place in sudden provocation then the conviction can be altered from offence under Section 302 IPC to Section 304 Part I IPC. The following adjudication was made by this Court in aforesaid case of Khemla, which reads as under
"After perusing the aforesaid judgments in the light of the evidence of present case, we are of the opinion that even if the entire evidence is accepted in toto then also, it emerges from the statements of eye witnesses that complainant (eye witness, accused appellant and deceased Virma are closed relatives, they were sitting together for protection of their crop (10 of 12) [CRLA-8/2016] in their agricultural field and all of sudden quarrel took place in which injuries were inflicted by the accused appellant to the deceased by knife. Meaning thereby, it is a case in which there was no pre- meditation and the act was committed in heat and passion. Therefore, we deemed it appropriate to accept the prayer of the accused appellant to convert the conviction from offence under Section 302 IPC to Section 304 Part I IPC while maintaining the conviction under Section 4/25 of the Arms Act.
Consequently, on the basis of above discussions, the instant jail appeal is hereby partly allowed. The impugned judgment dated 10.4.2006 passed by the learned Addl. Sessions Judge (Fast Track) No.1, Udaipur in Sessions Case No.171/2005 is hereby modified and the conviction and sentence of the accused appellant under Section 302 IPC is set aside and he is held guilty for offence under Section 304 Part I IPC and punished with the sentence of 10 years RI with fine of Rs.5,000/- while maintaining the conviction and sentence for the offences under Sections 4/25 of the Arms Act.
In case of Kalaram Vs. State of Rajasthan reported in 2015(1) CJ(Cri.)(Raj.) page 180, the Division Bench of this Court gave following verdict to altered the offence from Section 302 IPC to Section 304 IPC Part I IPC. The Paras nos. 17 and 18 of the said judgment are as follows:-
"17. The most important witness is Ms. Rekha, daughter of deceased Smt. Desu and accused appellant Kalaram. Ms. Rekha, a minor girl of 13 years, stated that in early morning of fateful day her father went out to meet natural call. On return he washed his hands and then gave an axe blow on the right temporal region of her mother. Her mother before the incident prepared tea and that was to be consumed by the deceased and this witness. In cross-examination this witness stated that the dispute occurred between her mother and father due to preparing of tea. As per this witness accused immediately on entering into house instructed Smt. Desu to prepare tea and thereafter due to some dispute he under provocation gave a single axe blow to Smt. Desu. This witness reiterated that the quarrel occurred due to the issue of preparing tea. The statement made by this girl clearly indicates that the accused inflicted bodily injury to deceased Smt. Desu on being provoked by the (11 of 12) [CRLA-8/2016] circumstances due to some quarrel in relation to making morning tea. The bodily injury was given by an axe at a vital part of the body, thus, no doubt exists that the accused must have been knowledge that bodily injury given by him may cause death. However, the intention of causing murder as required under Section 300 Indian Penal Code is conspicuously absent in present set of facts. The crime committed by the accused appellant, thus, is not a murder but an offence described under Section 304 Part-I Indian Penal Code.
18. The result of the discussions made and finding arrived as above is that conviction of accused appellant kalaram for the offence punishable under Section 302 Indian Penal Code is not justified. The appeal, thus, deserves acceptance in part. Accordingly, the same is partly allowed. The conviction of the accused recorded for an offence punishable under Section 302 Indian Penal Code is set aside. The sentence awarded too is set aside. The accused appellant, however, is convicted for an offence punishable under Section 304 Part-I Indian Penal Code and he is sentenced to undergo rigorous imprisonment for a period of ten years with a fine of Rs. 10,000/-. In the event of default in payment of fine the accused appellant is required to undergo three months simple imprisonment."
We have considered the evidence of this case in the light of above judgments.
In our opinion, there is strength in the argument of learned counsel for the appellant that as per evidence on record, the offence cannot travel beyond offence under Section 304 Part I IPC.
In view of above discussions, this cr. appeal is partly allowed. The conviction and sentence passed against the accused- appellant Khalil Hussain by the learned Addl. Sessions Judge No.4 Udaipur vide judgment dated 16.12.2015 passed in Sessions Case No. 69/2014 for offence under Section 302 IPC is hereby quashed and the same is hereby altered to the offence under Section 304 (12 of 12) [CRLA-8/2016] Part I IPC and sentence of life imprisonment is reduced to seven years while maintaining the order of fine. The finding of conviction and sentence recorded against the accused appellant for the offence under Section 4/25 of the Arms Act is hereby maintained.
We have considered the case for compensation to the victim, wife of the deceased under Section 357A of Cr.P.C. and find that it is fit case to grant compensation to the wife of the deceased, therefore, we direct that the accused appellant Khalil Hussain shall pay compensation of five lac Rupees. The said amount shall be deposited in the trial court within three months after serving sentence of 7 years. In the event of depositing the amount of five lac rupees, it shall be disbursed to the wife of the deceased and if wife is not survive, the same may be reimburse to the legal heirs of the deceased after inquiry of legal heirs. In the event of default of payment of compensation, the accused appellant shall further undergo sentence for three years more.
(MANOJ KUMAR GARG) J. (GOPAL KRISHAN VYAS) J. cpgoyal/ps