Chattisgarh High Court
Yakinuddin @ Banti vs State Of Chhattisgarh on 20 June, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009
Page 1 of 22
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.671 of 2009
{Arising out of judgment dated 18-8-2009 in Sessions Trial No.108/2007 of
the Additional Sessions Judge (Fast Track Court), Rajnandgaon}
1. Fakruddin, S/o Basiruddin, aged about 30 years, R/o Ganjline,
Rajnandgaon (C.G.)
2. Nassu @ Jalaluddin, S/o Basiruddin Solanki, aged about 29 years,
R/o Purani Ganj Line, Rajnandgaon (C.G.)
---- Appellants
Versus
State of Chhattisgarh, through Police Station Rajnandgaon, Tahsil &
District Rajnandgaon (C.G.)
---- Respondent
Criminal Appeal No.649 of 2009
1. Sainuddin, S/o Jainuddin Solanki, aged 27 years, R/o Ganj Line,
Rajnandgaon (C.G.)
2. Mohammad Karim, S/o Mohd. Mainuddin, aged 22 years, R/o Tiranga
Chowk, Rajnandgaon (C.G.)
3. Peeru @ Peeruddin, S/o Jainuddin, aged 24 years, R/o Ganj Line,
Rajnandgaon (C.G.)
---- Appellants
Versus
State of Chhattisgarh, Through the District Magistrate, Rajnandgaon.
---- Respondent
Criminal Appeal No.713 of 2009
Yakinuddin @ Banti, S/o Bashiruddin Solanki, Aged about 32 years,
R/o Ganj Line, Rajnandgaon (C.G.)
---- Appellant
Versus
State of Chhattisgarh, Through Police Station Rajnandgaon, Tahsil
and District Rajnandgaon (C.G.)
---- Respondent
AND
Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009
Page 2 of 22
Criminal Revision No.577 of 2009
Jahin Khan, aged about 19 years, S/o Late Shri Pervez Gulkhan,
Student, R/o Bharkapara, Near Old Bus Stand, Rajnandgaon (C.G.)
(Complainant)
---- Petitioner
Versus
1. State of Chhattisgarh, Through the District Magistrate, Rajnandgaon
(C.G.)
(Prosecution)
2. Fakruddin, aged about 30 years, S/o Shri Basiruddin, R/o Ganjline,
Rajnandgaon (C.G.)
3. Sainuddin, aged about 27 years, S/o Shri Jainuddin Solanki, R/o
Ganjline, Rajnandgaon (C.G.)
4. Yakinuddin @ Bunty, aged about 32 years, S/o Shri Basiruddin
Solanki, R/o Ganjline, Rajnandgaon (C.G.)
5. Mohammed Karim, aged about 22 years, S/o Shri Mohammed
Mainuddin Solanki, R/o Tiranga Chowk, Rajnandgaon (C.G.)
6. Nassu @ Jalaluddin, aged about 29 years, S/o Shri Basiruddin
Solanki, R/o Old Ganjline, Rajnandgaon (C.G.)
7. Peeru @ Piruddin, aged about 24 years, S/o Shri Jainuddin, R/o
Ganjline, Rajnandgaon (C.G.)
(Accused persons)
---- Respondents
------------------------------------------------------------------------------------------------------
For Appellants in Cr.A.Nos.671/2009 & 713/2009: -
Mr. Rishi Rahul Soni, Advocate.
For Appellants in Cr.A.No.649/2009: -
Mr. Ashutosh Trivedi, Advocate.
For Applicant in Cr.Rev.No.577/2009: -
Mr. Shashi Bhushan Tiwari, Advocate.
For State / Respondent: -
Mr. Sudeep Verma, Deputy Govt. Advocate.
------------------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Sachin Singh Rajput, JJ.
Judgment On Board (20/06/2022) Sanjay K. Agrawal, J.
1. Since all the three criminal appeals and one criminal revision have Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 3 of 22 arisen out of one and same judgment dated 18-8-2009 passed by the Additional Sessions Judge (FTC), Rajnandgaon in Sessions Trial No.108/2007, they have been clubbed together, heard together and are being disposed of by this common judgment.
2. These three criminal appeals have been preferred by the accused / appellants under Section 374(2) of the CrPC against judgment convicting them for the offence punishable under Section 304 Part-II of the IPC and sentencing them to undergo rigorous imprisonment for seven years with fine of ₹ 500/- each, in default, to further undergo simple imprisonment for two months, whereas they have been acquitted of the charges under Sections 147, 148, 120B of the IPC and also under Section 302 of the IPC against which criminal revision has been preferred by the complainant under Section 397 read with Section 401 of the CrPC.
3. Two appellants in Cr.A.No.671/2009 namely, Fakruddin (A-1) & Nassu @ Jalaluddin (A-5); sole appellant in Cr.A.No.713/2009 namely, Yakinuddin @ Banti (A-3); and three appellants in Cr.A.No.649/2009 namely, Sainuddin (A-2), Mohammad Karim (A-4) & Peeru @ Peeruddin (A-6) were earlier charge-sheeted for offences under Sections 147, 148, 302, 120B, in alternative Section 302 read with Section 149 of the IPC, but they have been convicted only for offence under Section 304 Part-II of the IPC and they have been acquitted of the charges under Sections 147, 148, 120B and 302 read with Section 149 of the IPC, as such, the appellants in three criminal appeals have assailed their conviction for offence under Section 304 Part-II of the IPC, whereas Jahin Khan - the complainant has challenged their acquittal for the aforesaid offences by filing criminal revision and has Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 4 of 22 made prayer for passing appropriate order convicting the accused / appellants.
4. Case of the prosecution, in brief, is that on 10-7-2007 at about 11.15 p.m. - 11.30 p.m., Near Manav Mandir Chowk, Opposite Nohra Pan Centre, Rajnandgaon, the appellants have constituted unlawful assembly and in furtherance of their common object of causing simple hurt, they were armed with bamboo stick and wheel spanner, and thereafter, the members of unlawful assembly prepared themselves for murder of Paru @ Parvez and accordingly, they have entered into criminal conspiracy of causing death and caused the death of Paru @ Parvez. Further case of the prosecution is that on 10-7-2007 at 11 p.m., deceased Paru @ Parvez had gone to Nohra Pan Centre by his car for eating betel leaves, whereby tyre of his car got punctured on which he informed to his wife by cellphone asking her to send his son Jahin Khan (PW-18) and accordingly, his son Jahin Khan (PW-18) reached to the spot and started unbolting the stepney wheel, then, at that time, Fakruddin (A-1) came on the spot and thereafter, five other accused persons came on the spot and altercation took place between them and deceased Paru @ Parvez. It is the further case of the prosecution that when the accused persons started assaulting the deceased, Tulsi Mahobia (PW-4), Ravi Mahobia, who has not been examined, and Nadeem (PW-7) tried to intervene. The accused persons assaulted Paru @ Parvez by wheel spanner by which he suffered injuries and died on the spot. The deceased was taken to District Hospital, Rajnandgaon where he was declared brought dead. Death of the deceased was informed by the doctor to Police Station Basantpur vide Ex.P-19 and he was declared dead vide Ex.P-20.
Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 5 of 22 Accordingly, the police registered dehati nalishi report Ex.P-25 and on the basis of dehati nalishi, first information report was registered vide Ex.P-38 and morgue intimation was registered vide Ex.P-37. Inquest was conducted and thereafter, dead body was sent for postmortem on the application of the jurisdictional police vide Ex.P-27 and postmortem was conducted by Dr. R.R. Mandle (PW-20) vide Ex.P-28 in which cause of death was mentioned to be excessive intracranial bleeding due to head injury. Fakruddin (A-1) was taken into custody on that day and his memorandum statement was recorded vide Ex.P- 7 on the basis of which wheel spanner and motorcycle were seized vide Exs.P-8 & P-9, but wheel spanner was not sent for forensic examination. Similarly, on the basis of memorandum statement (Ex.P-1) of Peeru @ Peeruddin (A-6), bamboo stick was seized vide Ex.P-2, but it was also not sent for forensic examination. Bamboo stick was also seized on the basis of memorandum statement (Ex.P-
11) of Nassu @ Jalaluddin (A-5) vide seizure memo Ex.P-12 at his instance and it was also not sent for forensic examination.
5. After completion of investigation, the accused / appellants were charged for the offences punishable under Sections 147, 148, 302, 302 read with Section 34 and 120B of the IPC by order dated 15-1- 2008, but later-on by order dated 1-4-2008, it was altered to Sections 147, 148, 302, 302 read with Section 34 and 120B of the IPC. The appellants abjured the guilt and entered into defence.
6. In order to bring home the offence, the prosecution has examined as many as 26 witnesses and exhibited 39 documents Exs.P-1 to P-39. The defence has examined three witnesses namely, Iqbal (DW-1), Najmuddin Solanki (DW-2) and Dr. Rajesh Sadani (DW-3) and Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 6 of 22 exhibited thirteen documents Exs.D-1 to D-13.
7. The trial Court after appreciating oral and documentary evidence on record came to the conclusion that death of the deceased was homicidal in nature and the prosecution has failed to prove the offence under Sections 147, 148 & 120B of the IPC beyond reasonable doubt and proceeded to acquit the accused / appellants from the aforesaid offences. The trial Court also did not found the appellants herein guilty for offence under Section 302 of the IPC, but found them guilty for offence under Section 304 Part-II of the IPC against which the appellants have preferred these appeals, whereas, the complainant has preferred revision against the acquittal of the accused / appellants for offence under Sections 302, 147, 148 & 120B of the IPC, and that is how the three appeals and one revision have been clubbed together and heard together analogously by us.
8. Mr. Rishi Rahul Soni, learned counsel appearing for the appellants in Cr.A.Nos.671/2009 & 713/2009, would submit that the trial Court has committed grave legal error in holding that offence under Section 304 Part-II of the IPC has been proved against the appellants, whereas no specific role has been attributed to the appellants and particularly, there is no evidence against Nassu @ Jalaluddin (A-5) and Yakinuddin @ Banti (A-3). Even otherwise, Tulsi Tamboli (PW-4), who is alleged eyewitness, has clearly stated in his statement before the Court in paragraph 12 that he did not know the five accused persons except Fakruddin (A-1) and similarly, Jahin Khan (PW-18) is not an independent witness. Mr. Soni, learned counsel, would further submit that on report of the appellants herein Fakruddin & Yakinuddin, Jahin Khan (PW-18) has been convicted under Sections 294, 323 & Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 7 of 22 506 of the IPC by the Juvenile Justice Board vide Ex.D-5 for assaulting and abusing Fakruddin (A-1), therefore, Jahin Khan (PW-
18) cannot be an independent witness and his testimony cannot be relied upon to convict the appellants. He would also submit that injuries on the body of Fakruddin vide Ex.D-10 and Yakinuddin vide Ex.D-11 have not been explained by the prosecution. As such, conviction of the appellants in Cr.A.Nos.671/2009 & 713/2009 under Section 304 Part-II of the IPC deserves to be set aside.
9. Mr. Ashutosh Trivedi, learned counsel appearing for the appellants in Cr.A.No.649/2009, would submit that Sainuddin (A-2) and Mohammad Karim (A-4) have not been named in the FIR or in any other proved document and no prosecution witnesses including Tulsi Tamboli (PW-
4) & Jahin Khan (PW-18) have stated any participation or role / overt act of the present three appellants in question and moreover, recovery of bamboo sticks from Peeru @ Peeruddin (A-6) and Nassu @ Jalaluddin (A-5) pursuant to the disclosure statements vide Exs.P-2 & P-12 would have no consequence as the said articles were neither sent for forensic examination nor there was bloodstain found on the said articles and merely on the basis of alleged recovery, no conviction can be recorded against the appellants. Even as per the medical opinion of doctor, no lacerated wound said to have been caused by bamboo stick, has been found on the body of the deceased. Therefore, conviction of all the present three appellants is liable to be set aside.
10. Mr. Shashi Bhushan Tiwari, learned counsel appearing for the complainant in all the three criminal appeals and for the applicant in Criminal Revision No.577/2009, would submit that the prosecution has Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 8 of 22 duly brought home the offences under Sections 147, 148 & 120B of the IPC against the accused / appellants, yet they have been acquitted from the said charges by recording a finding which is perverse to record and therefore the revision preferred by applicant Jahin Khan be allowed and the accused / appellants be convicted for offence under Sections 147, 148, 302 read with Section 149 and 120B of the IPC.
11. Mr. Sudeep Verma, learned Deputy Government Advocate appearing for the State / respondent, would support the impugned judgment and submit that the prosecution has brought sufficient legal evidence in shape of oral, medical and documentary evidence to convict the accused / appellants under Section 304 Part-II of the IPC, as such, the trial Court has rightly convicted them for offence under Section 304 Part-II of the IPC.
12. 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.
13. Since the appellants have been convicted for offence under Section 304 Part-II of the IPC by the learned trial Court finding that death of the deceased was homicidal in nature, it would be appropriate to firstly consider whether the finding recorded by the trial Court holding the death of the deceased to be homicidal in nature is proper and in accordance with law.
14. The trial Court after taking into consideration the evidence of expert medical witness Dr. R.R. Mandle (PW-20) and considering the postmortem report Ex.P-28, particularly taking into consideration that the deceased had suffered injury on head thereby there was Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 9 of 22 excessive bleeding inside head on account of said injury and died, and that cause of death is excessive intracranial bleeding due to head injury, came to the conclusion that death of deceased Paru @ Parvez is homicidal in nature. After going through the record and after going through the postmortem report Ex.P-28, considering the finding of the trial Court and further considering the injuries which the deceased suffered on his head, we are of the considered opinion that the trial Court is absolutely justified in holding that the death of the deceased was homicidal in nature and we hereby affirm the finding so recorded by the trial Court in its report holding that the death of Paru @ Parvez is homicidal in nature.
15. The next question for consideration would be, whether the appellants have rightly been acquitted of offence under Sections 147, 148 and 120B of the IPC?
16. As noticed herein-above, the trial Court firstly framed charges against the appellants for offences under Sections 147, 148, 120B, 302 and 302 read with Section 34 of the IPC by order dated 15-1-2008, but later-on by order dated 1-4-2008, converted the same into Sections 147, 148, 120B, 302 and 302 read with Section 149 of the IPC. The trial Court after consideration of oral and documentary evidence available on record, in paragraph 18 of its judgment, came to the conclusion that altercation took place between Jahin Khan (PW-18) and accused Fakruddin (A-1) and thereafter, other accused persons came on the spot and started assaulting deceased Paru @ Parvez. The trial Court further recorded a finding that it is the wheel spanner which was owned by Paru @ Parvez by which the assault was made to Paru @ Parvez and none of the witnesses have stated before the Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 10 of 22 Court that the accused persons came on the spot armed with deadly weapons. Thereafter, the trial Court proceeded to hold that the prosecution has failed to prove that the appellants were the members of unlawful assembly as defined under Section 141 of the IPC and thereafter, proceeded to acquit them under Sections 147, 148 & 120B of the IPC. This finding of acquittal of the appellants for the aforesaid offences has been called in question by Jahin Khan (PW-18) - complainant herein.
17. Mr. Shashi Bhushan Tiwari, learned counsel for the complainant / applicant in Criminal Revision No.577/2009, has tried to demonstrate that acquittal of the appellants herein / respondents in criminal revision is bad in law, but could not demonstrate as to how their acquittal for the aforesaid offences is bad in law.
18. In our opinion, the trial Court has rightly held that no deadly weapons were being carried by the appellants. Except wheel spanner from Fakruddin (A-1) and bamboo sticks from Nassu @ Jalaluddin (A-5) & Peeru @ Peeruddin (A-6), nothing has been seized from the appellants. It has further been recorded by the trial Court that the wheel spanner which was seized from Fakruddin was owned by deceased Paru @ Parvez. To determine the existence of common object, the court is required to see the circumstances in which the incident had taken place and the conduct of the members of the unlawful assembly including the weapons they carried or used on the spot (see Roy Fernandes v. State of Goa and others1). In view of the finding of the trial Court, no fault can be found on the clear acquittal of the appellants herein under Sections 147, 148 & 120B of the IPC, as 1 (2012) 3 SCC 221 Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 11 of 22 constitution of unlawful assembly under Section 147 of the IPC was not found and no deadly weapon has been found and moreover, no common object of such assembly was found by the trial Court. The trial Court also found that there was no criminal conspiracy hatched up in terms of Section 120B of the IPC.
19. At this stage, it was fervently contended by learned counsel for the appellants that since the appellants were charged for offences punishable under Sections 147, 148, 120B, 302 & 302 read with Section 149 of the IPC by order dated 1-4-2008, therefore, they could not have been convicted for offence under Section 304 Part-II of the IPC independently, as Section 149 of the IPC does not constitute any distinct offence and there was no charge under Section 304 Part-II read with Section 34 of the IPC, even the trial Court did not convict them for offence under Section 304 Part-II of the IPC with the aid of Section 34 of the IPC.
20. This argument raised on behalf of learned counsel for the appellants deserves to be rejected for more than one reason. Firstly, the appellants have also been charged for offence under Section 302 of the IPC independently by order dated 1-4-2008 and in alternative, they were charged for offence under Section 302 read with Section 149 of the IPC. If the case of the accused persons falls within any of the exceptions to Section 300 of the IPC, then they can be convicted under Section 304 Part-II or Part-I of the IPC, therefore, conviction of the appellants for offence under Section 304 Part-II of the IPC cannot be assailed on this ground. Even otherwise, the Supreme Court in the matter of Rohtas and another v. State of Haryana2 considered the 2 AIR 2021 SC 114 : AIROnline 2020 SC 900 Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 12 of 22 question, whether a charge framed with the assistance of Section 149 of the IPC can later be converted to one read with Section 34 of the IPC or even a simplicitor individual crime? Their Lordships considered and reviewed all the earlier case laws on the point including the Constitution Bench decision in the matter of Willie (William) Slaney v. State of MP3 and relying upon the decision in the matter of Nallabothu Venkaiah v. State of Andhra Pradesh4 holding that "the conviction under Section 302 simpliciter without aid of Section 149 is permissible if overt act is attributed to the accused resulting in the fatal injury which is independently sufficient in the ordinary course of nature to cause the death of the deceased and is supported by medical evidence", observed in paragraphs 20, 21 and 22 of the report as under: -
"20. The above-extracted position of law was further concretised in Willie (William) Slaney v. State of MP 3 and by the majority in Chittarmal v. State of Rajasthan5. The permissibility of convicting an accused individually under a simplicitor provision after group conviction with the aid of Section 149 of IPC fails, was further explored in Atmaram Zingaraji v. State of Maharashtra6, wherein this Court held that:
"4. The next question that falls for our determination is whether, after having affirmed the acquittal of all others, the High Court could convict the appellant under Section 302, I.P.C. (simpliciter). The charges framed against the accused (quoted earlier) and the evidence adduced by the prosecution to bring them home clearly indicate that according to its case, the nine persons arraigned before the trial Court and, none others, either named or unnamed (totalling minimum five or more persons) formed the unlawful assembly. Consequent upon the acquittal of the other eight the appellant could not be convicted with the aid 3 AIR 1956 SC 116 4 (2002) 7 SCC 117 5 (2003) 2 SCC 266 : (AIR 2003 SC 796) 6 (1997) 7 SCC 41 : (AIR 1997 SC 3573) Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 13 of 22 of Section 149, I.P.C., more particularly, in view of the concurrent findings of the learned Courts below that the other eight persons were not in any way involved with the offences in question.
5. The same principle will apply when persons are tried with the aid of Section 34, I.P.C. In the case of Krishna v. State of Maharashtra7, a four Judge Bench of this Court has laid down that when four accused persons are tried on a specific accusation that only they committed a murder in furtherance of their common intention and three of them are acquitted, the fourth accused cannot be convicted with the aid of Section 34, I.P.C. for the effect of law would be that those who were with him did not conjointly act with the fourth accused in committing the murder.
6. In either of the above situations therefore the sole convict can be convicted under Section 302, I.P.C. (simpliciter) only on proof of the fact that his individual act caused the death of the victim. To put it differently, he would be liable for his own act only. In the instant case, the evidence on record does not prove that the injuries inflicted by the appellant alone caused the death; on the contrary the evidence of the eye-witnesses and the evidence of the doctor who held the post-mortem examination indicate that the deceased sustained injuries by other weapons also and his death was the outcome of all the injuries. The appellant, therefore, would be guilty of the offence under Section 326, I.P.C. as he caused a grievous injury to the deceased with the aid of jambia (a sharp-cutting instrument)."
(emphasis supplied)
21. This position of law has finally been summed up very succinctly in Nallabothu Venkaiah v. State of Andhra Pradesh4:
"24. Analytical reading of catena of decisions of this Court, the following broad proposition of law clearly emerges; (a) the conviction under Section 302 simpliciter without aid of Section 149 is permissible if overt act is attributed to the accused resulting in the fatal injury which is independently sufficient in the ordinary course of nature to cause the death of the deceased and is supported by medical evidence; (b) wrongful acquittal recorded by the High Court, even if it stood, that circumstance would not 7 (1964) 1 SCR 678 : (AIR 1963 SC 1413) Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 14 of 22 impede the conviction of the appellant under Section 302 r/ w Section 149 I.P.C. (c) charge under Section 302 with the aid of Section 149 could be converted into one under Section 302 r/w Section 34 if the criminal act done by several persons less than five in number in furtherance of common intention is proved."
(emphasis supplied)
22. Although both Section 34 and 149 of the IPC are modes for apportioning vicarious liability on the individual members of a group, there exist a few important differences between these two provisions. Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC assigns liability merely by membership of the unlawful assembly. In reality, such 'common intention' is usually indirectly inferred from conduct of the individuals and only seldom it is done through direct evidence.8
21. In view of the authoritative pronouncement of their Lordships of the Supreme Court in Rohtas (supra), it is quite vivid that in the instant case even the charge under Section 302 of the IPC was already framed by the trial Court against all the appellants herein individually and also with the aid of Section 149 of the IPC and therefore their conviction for offence under Section 304 Part-II of the IPC can be sustained, if found sustainable on merit after consideration in the later part of this judgment. It was found by the trial Court that the overt act attributed to each of the appellants herein has resulted in the death of the deceased and is supported by medical evidence.
22. Now, on the basis of aforesaid parameters, we shall now proceed to consider the cases of each of the appellants that whether the appellants' conviction for offence under Section 304 Part-II of the IPC is well merited?
Fakruddin (A-1): -
23. It is the case of the prosecution that the tyre of the car of deceased 8 Mahbub Shah v. Kine Emperor, AIR 1945 PC 118, Pp. 153-154.
Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 15 of 22 Paru @ Parvez got punctured Near Manav Mandir Chowk, Opposite Nohra Pan Centre, Rajnandgaon, and he immediately called his wife over cellphone and asked her to send his son Jahin Khan (PW-18) who reached there and thereafter started unbolting the stepney, at that very time, Fakruddin (A-1) came there and other accused persons (not named) also came. According to the statement of Tulsi Mahobia (PW-4), who was owner of Nohra Pan Centre, when the son of the deceased - Jahin Khan (PW-18) came to the spot, this witness Tulsi Mahobia (PW-4) and Jahin Khan (PW-18) started changing the punctured wheel, then only Fakruddin (A-1) came and there was some altercation between Paru @ Parvez and Fakruddin which he could not hear, thereafter the assault started and other accused persons also came and Fakruddin (A-1) caused injury on the head of Paru @ Parvez by wheel spanner by which he fell down on the spot and accused / appellant Fakruddin also assaulted him by wooden stick and other accused persons also started bearing the deceased by hands & fists. Son of the deceased Jahin Khan (PW-18) reported the matter to the police then the wheels of investigation started running. On the memorandum statement of Fakruddin (A-1) recorded vide Ex.P-7, wheel spanner has been recovered from his possession vide Ex.P-8 and his motorcycle has been recovered vide Ex.P-9. Tulsi Mahobia (PW-4) has been subjected to lengthy cross-examination on behalf of the defence / Fakruddin, but in paragraph 12, he has clearly stated that he has named Fakruddin before the police. Nothing has been extracted to disbelieve the statement of eye witness Tulsi Mahobia (PW-4). He has refuted the suggestion that he has not seen causing assault by wheel spanner and stick to Tulsi Mahobia (PW-4).
Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 16 of 22
24. Similar statement has been made by son of the deceased Jahin Khan (PW-18). Though he has been convicted on the report of Fakruddin (A-1) & Yakinuddin @ Banti (A-3) vide Ex.D-5 by the Juvenile Justice Board, but the fact remains that he was eyewitness to the incident and he has reached first to the spot and has witnessed the incident. As such, Tulsi Mahobia (PW-4) and Jahin Khan (PW-18) have been consistent in their statements that accused Fakruddin has caused wheel spanner injury / blow to the deceased on his head by which the deceased suffered grievous injury and died thereafter.
25. Dr. R.R. Mandle has been examined as PW-20. He has only found some scratches on the hands of deceased Paru @ Parvez (injuries No.4 to 7), but in paragraph 6, he has clearly stated that though the deceased was not having any external injury on head, but he was having excessive bleeding inside the head. He has accepted the suggestion put to him that even if a person is assaulted by hard object, though external injury is not found, but some times, still that person suffers grievous injury inside head. In paragraph 21, he has clearly stated that there was excessive bleeding inside head and brain on account of which the deceased died.
26. As such, the two witnesses Tulsi Mahobia (PW-4) and Jahin Khan (PW-18) have clearly stated that head injury was caused by Fakruddin (A-1). Dr. R.R. Mandle (PW-20) in his evidence and in his postmortem report Ex.P-28 has clearly stated that though no external injury was there on the body of the deceased, but, yet, he has suffered excessive head injury and on account of intracranial bleeding due to head injury, he died.
27. Now, the question for consideration would be, whether the nature of Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 17 of 22 offence would fall under Exception 4 to Section 300 of the IPC attracting Section 304 Part-II of the IPC?
28. The Supreme Court in the matter of Arjun and another v. State of Chhattisgarh9 has elaborately dealt with the issue and observed in paragraphs 20 and 21 as under :-
"20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh10, it has been explained as under:(SCC p. 220, para 7) "7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly."
21. Further in Arumugam v. State11, in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under: (SCC p. 596, para 9) "9. .... '18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be 9 (2017) 3 SCC 247 10 (1989) 2 SCC 217 11 (2008) 15 SCC 590 Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 18 of 22 noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".'"
29. In Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the same would be a case of Section 304 Part-I of the IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of the IPC.
30. Reverting to the facts of the case in the light of the aforesaid principles of law, it is quite vivid that at the time of incident, son of the deceased Jahin Khan (PW-18), who came to the spot on the phone call of the deceased, was changing the wheel of the car of the deceased which got punctured and at that time, on some pretext, dispute arose between Fakruddin (A-1) and deceased Paru @ Parvez and then assault was made by Fakruddin to the deceased. Scuffle took place between the deceased and the accused persons; firstly, accused Fakruddin (A-1) assaulted the deceased and thereafter, other accused persons also assaulted the deceased, therefore, there was no premeditation on the part of the accused and the dispute arose in the Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 19 of 22 spur of moment and on sudden fight, the assault was made. As such, the trial Court finding that there was no intention to cause death, but appellant Fakruddin (A-1) knew that since the injury is being caused on head by wheel spanner, though it is not apparent as external injury, but he must have had knowledge that his act is likely to cause death, came to the conclusion that offence would fall within the ambit of Section 304 Part-II of the IPC and proceeded to convict the appellant under Section 304 Part-II of the IPC which in our considered opinion is strictly in accordance with law in view of the decision of the Supreme Court in Arjun (supra). Therefore, the appeal preferred by appellant No.1 Fakruddin (A-1) deserves to be dismissed. Nassu @ Jalaluddin (A-5): -
31. Tulsi Mahobia (PW-4), who is eyewitness, has clearly stated before the Court in paragraph 12 that except Fakruddin (A-1), he was not knowing the names of any other accused. Though the name of Nassu @ Jalaluddin (A-5) finds place in the FIR Ex.P-38 and Dehati Nalishi Ex.P-25, but on his memorandum statement Ex.P-11, bamboo stick has been seized vide Ex.P-12. Though recovery is said to have been made pursuant to the disclosure statement of Nassu @ Jalaluddin (A-
5), but no blood was found on the said bamboo stick seized from the possession of this accused, nor it was stained with blood and therefore it has not been sent for forensic examination. Even otherwise, no lacerated wound said to have caused by this accused / appellant by the said bamboo stick has been found over the body of deceased Paru @ Parvez. Merely on the basis of recovery of bamboo stick, it cannot be held that it was the present accused / appellant who caused the death of deceased Paru @ Parvez. Jahin Khan (PW-18) Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 20 of 22 also in his statement before the Court in paragraph 11, has stated that he was not knowing the names of accused persons which includes Nassu @ Jalaluddin (A-5). As such, on the basis of weak piece of evidence which is only recovery, it would be unsafe to convict the accused independently for offence under Section 304 Part-II of the IPC, as the prosecution has failed to prove that it is the appellant who has caused blow on the deceased by which he suffered injury and died subsequently. Therefore, the trial Court is unjustified in convicting the accused / appellant under Section 304 Part-II of the IPC. We hereby set-aside the conviction / sentence of this appellant for offence under Section 304 Part-II of the IPC.
Yakinuddin @ Banti (A-3) - Cr.A.No.713/2009: -
32. Though the present accused / appellant has been named in the Dehati Nalishi and in the FIR, but except that there is nothing on record, even there is no recovery from him of any kind of article said to have been used in the offence in question. Even Tulsi Mahobia (PW-4) and Jahin Khan (PW-18) have made statements that they did not know the present appellant and the prosecution has failed to prove that he has assaulted the deceased by which he suffered injury and died subsequently. Therefore, the trial Court is unjustified in convicting the accused / appellant under Section 304 Part-II of the IPC and his conviction & sentence are hereby set-aside.
Sainuddin (A-2), Mohammad Karim (A-4) and Peeru @ Peeruddin (A-
6) - Cr.A.No.649/2009: -
33. Out of these three accused persons, from Peeru @ Peeruddin (A-6) vide memorandum statement Ex.P-1, bamboo stick has been seized vide Ex.P-2, but during the course of examination, seizure witnesses Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 21 of 22 namely, Satish Vargese (PW-1) and Prashant Nilamkar (PW-3) both have turned hostile and they have not supported the case of the prosecution. As such, even the recovery pursuant to the memorandum statement has not been proved by the prosecution.
Though in the test-identification parade, only Peeru @ Peeruddin (A-
6) has been identified by Tulsi Mahobia (PW-4), but in paragraph 11, he has stated that he has seen Allu (Peeru) in the police station on the date of incident. Except Peeru @ Peeruddin (A-6), no test- identification parade has been conducted on behalf of the prosecution which makes the story of the prosecution against these appellants doubtful. So far as Sainuddin (A-2) and Mohammad Karim (A-4) are concerned, no overt act resulting into death of any person is said to have been attributed to these appellants for independently holding them guilty for offence under Section 304 Part-II of the IPC, which is sine qua non for conviction of accused under Section 304 Part-II of the IPC. Therefore, the trial Court is unjustified in convicting the present accused / appellants under Section 304 Part-II of the IPC. Criminal Revision No.577/2009
34. This Court in the foregoing paragraphs has already held that the acquittal of the respondents / accused for offences under Sections 147, 148 & 120B of the IPC is justified and well merited. This Court has also held that conviction of appellant Fakruddin (A-1) under Section 304 Part-II of the IPC is justified and in accordance with law and in respect of the remaining accused persons, this Court has held that there is no evidence against them and therefore they have been acquitted of the charge under Section 304 Part-II of the IPC. As such, we do not find any force in this criminal revision.
Cr.A.Nos.671/2009, 649/2009, 713/2009 & Cr.Rev.577/2009 Page 22 of 22 Conclusion: -
35. Criminal Appeal No.671/2009 so far as it relates to Fakruddin (A-1) is hereby dismissed, however, it is allowed qua Nassu @ Jalaluddin (A-
5) and his conviction and sentences under Section 304 Part-II of the IPC are set aside and he is acquitted of the said charge. He is on bail. He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.
36. Criminal Appeal No.713/2009 preferred by Yakinuddin @ Banti (A-3) is hereby allowed and his conviction and sentences under Section 304 Part-II of the IPC are set aside and he is acquitted of the said charge. He is on bail. He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.
37. Criminal Appeal No.649/2009 preferred by Sainuddin (A-2), Mohammad Karim (A-4) and Peeru @ Peeruddin (A-6) is also hereby allowed and their conviction and sentences under Section 304 Part-II of the IPC are set aside and they are acquitted of the said charge. They are on bail. They need not surrender. However, their bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.
38. Criminal Revision No.577/2009 preferred by complainant Jahin Khan is hereby dismissed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Soma