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2019 DIGILAW 2018 (ALL)

Mohammad Irfan v. State of U. P.

2019-08-28

MOHD.FAIZ ALAM KHAN, VED PRAKASH VAISH

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ORDER : Ved Prakash Vaish, J. 1. Heard Sri Farooq Ayoob, learned counsel for the appellant and Ms. Ruhi Siddiqui, learned AGA for the State. 2. This appeal is directed against the judgment and order dated 31.10.2011 passed by learned Additional Sessions Judge, Lucknow, in Session Trial No. 788 of 2007, whereby the appellant has been convicted for the offence under Sections 302 of Indian Penal Code, 1860 (hereinafter referred to as "I.P.C.") and sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/-, in default of payment of fine to further undergo further imprisonment for one year for the offence under Section 302 of I.P.C., and to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 10,000/-, in default of payment of fine to further undergo imprisonment for one year for the offence under Section 307 of I.P.C. 3. The case of prosecution is that on 25.05.2007, Mohd. Nafees S/o Sri Mohd. Ayub lodged a complaint that his elder sister, Smt. Noorjahan, wife of Sri Irfan came back to her parental house three days before as she was beaten by her husband and she became annoyed; on 24.05.2007, his brother-in-law (bahnoi) came to his house in the evening and wanted to take back Noorjahan but she refused to go with him, his brother-in-law went back; again at about 10:00 PM Mohd. Irfan came back and at that time his mother, Smt. Mohseena and his sister, Noorjahan along with her children were sleeping on the roof and complainant along with his father and another family members were on the ground floor, his brother-in-law went to the roof and started beating to Noorjahan, his mother tried to save Noorjahan then his brother-in-law threw down his mother from the roof; his brother-in-law again started beating to Noorjahan and her child, when the noise was raised, Irfan jumped from the roof and went away, the neighbourers tried to apprehend him but due to darkness he ran away. Complainant went to the roof and saw that there were injuries on forehead and head of his sister and she had already died, he saw that Kumari Julee, daughter of his sister and his mother had also received injuries. On the basis of said complaint, Case Crime No. 246 of 2007, under Sections 302/307 of I.P.C. was registered at Police Station-Madiyaon, District-Lucknow. On the basis of said complaint, Case Crime No. 246 of 2007, under Sections 302/307 of I.P.C. was registered at Police Station-Madiyaon, District-Lucknow. During investigation, statements of witnesses under Section 161 of Cr.P.C. were recorded, postmortem of the body of the deceased, Noorjahan was got conducted. On completion of investigation, chargesheet was filed. 4. The trial court found a prima facie case for the offence under Sections 302/307 of I.P.C. and accordingly the charge for the offence under Sections 302 and 307 of I.P.C. was framed on 29.10.2007. The appellant pleaded not guilty to the charge and claimed trial. 5. The prosecution, in support of its case, examined Nafees as PW-1 who proved his complaint as Ex. 6/1, Smt. Mohseena (mother of the deceased and injured) as PW-2, Constable Sanjay Singh as PW-3, who registered Case Crime No. 246/07 on the basis of complaint given by Mohd. Nafees, he has proved the copy of Case Crime No. 246/07 as Ex. 5/1, Dr. Awadhesh Kumar Agarwal (physician) from Dr. Ram Manohar Lohiya Hospital as PW-4, who conducted postmortem on the body of the deceased and proved the postmortem report as Ex. KA-3, Head Constable Mohd. Usman as PW-5, who recorded GD report No. 2 at 00.10 AM on 25.05.2007 and proved the same as Ex. KA-4, on the basis of which Case Crime No. 246/07 under Sections 302 and 307 of I.P.C. was registered, S.I. Sadhu Rai as PW-6 is the Investigating Officer, who prepared panchayatnama which is Ex. KA-5, he prepared other documents which are Ex. KA-6 to Ex. KA-9, he prepared seizure memo Ex. KA-10 to Ex. KA-13, Inspector Brij Bhushan Tiwari as PW-7, who is also the Investigating Officer, who prepared the chargesheet Ex. KA-14, S.O. Chandra Shekhar as PW-8, who prepared the site plan which is Ex. KA-15 and Julee, daughter of the deceased as PW-9. Thereafter, statement of the appellant/accused under Section 313 Cr.P.C. was recorded and incriminating evidence was put to him, appellant denied the same and stated that he is innocent. The appellant did not choose to lead any defence evidence. 6. After considering the evidence adduced by the prosecution, statement of appellant under Section 313 Cr.P.C. and arguments advanced on behalf of the appellant, the appellant was convicted and sentenced for the offence under Sections 302 and 307 of I.P.C. vide impugned judgment and order dated 31.10.2011. 7. The appellant did not choose to lead any defence evidence. 6. After considering the evidence adduced by the prosecution, statement of appellant under Section 313 Cr.P.C. and arguments advanced on behalf of the appellant, the appellant was convicted and sentenced for the offence under Sections 302 and 307 of I.P.C. vide impugned judgment and order dated 31.10.2011. 7. Learned counsel for the appellant submitted that there was no intention on the part of the appellant to cause death of his wife, Smt. Noorjahan, there was no motive on the part of the appellant to commit murder. In any event, it was contended that the assault was made in course of sudden quarrel, the appellant was not armed with any weapon and the case falls within forth exception of Section 300 of I.P.C. 8. On the other hand, learned AGA for the State submitted that the appellant caused injuries on the forehead i.e., vital part of deceased, Noorjahan which was sufficient in the ordinary course of nature to cause death. She also submitted that the appellant had the knowledge that the same would cause death of the deceased, Noorjahan. She further submitted that the appellant has been rightly convicted for the offence under Sections 302 and 307 of I.P.C. 9. We have given my thoughtful consideration to the submissions made by learned counsel for both the parties. We have also carefully gone through the material available on record. 10. In order to examine the merits of the contentions raised before the Court, let us examine the evidence that has come on record. As already noticed, there is no dispute as to the occurrence and the death of the deceased, Smt. Noorjahan as a result of inflictment of injuries by the appellant/accused. All that has to be examined by this Court is whether the offence falls within the purview of Section 302 of I.P.C. or Section 304 Part-I of I.P.C.. In light of this, we have to refer to the evidence from the limited point of view. 11. Now, we may discuss the legal aspect of this submission. Section 299 of I.P.C. defines a culpable homicide. Section 299 cover classes of cases where an act is done with the intention of causing death; or with the intention of causing such bodily injury as is likely to cause death; or with the knowledge that he is likely by such act to cause death. Section 299 of I.P.C. defines a culpable homicide. Section 299 cover classes of cases where an act is done with the intention of causing death; or with the intention of causing such bodily injury as is likely to cause death; or with the knowledge that he is likely by such act to cause death. In all these situations, it will amount to a culpable homicide. A culpable homicide would be murder, unless it falls within anyone of the Exceptions 1 to 5 to Section 300 of I.P.C. which would bring the offence outside the purview of Section 300 of I.P.C. and make it culpable homicide not amount into murder. 12. Once it falls in that class of cases, then it is permissible for the Court to impose milder punishment in terms of Section 304 Part-I or Part-II of I.P.C., as the case may be. Punishment under Section 302 of I.P.C. on the one hand, and Section 304 of I.P.C. on the other hand is divided by a fine line of distinction as to when a culpable homicide would or would not be murder. The provisions of Section 304 itself form a kind of exception to the applicability of Section 302 of I.P.C.. In other words, provisions of Section 304 Part-II of I.P.C. would apply only if it is not a murder. 13. The distinction between these two provisions is well settled. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. The judgment in the case of 'Rajwant v. State of Kerala', AIR 1966 SC 1874 is an apt illustration on this point. 14. The Hon'ble Supreme Court in the case of 'Virsa Singh v. The State of Punjab', AIR 1958 SC 465 explained the meaning and scope of clause (3) to Section 300 of I.P.C.. It was held as under:- "12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly the nature of the injury must be proved. These are purely objective investigations. It was held as under:- "12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." 15. Thus, according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be 'murder'. Illustration (c) appended to Section 300 clearly brings out this point. 16. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. 17. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. 17. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the first part of Section 304, Penal Code. 18. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages." 19. In the case of 'Thangaiya vs. State of T.N.', (2005) 9 SCC 650 , the Hon'ble Supreme Court pointed out the distinction between the two sections and observed as under:- "9. In the case of 'Thangaiya vs. State of T.N.', (2005) 9 SCC 650 , the Hon'ble Supreme Court pointed out the distinction between the two sections and observed as under:- "9. This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special" characteristics of murder is culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the gravest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 10. The academic distinction between "murder" and "culpable homicide not amounting to murder" has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences: Section 299 A person commits culptable homicide if the act by which the death is caused is done- Section 300 Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done. The following comparative table will be helpful in appreciating the points of distinction between the two offences: Section 299 A person commits culptable homicide if the act by which the death is caused is done- Section 300 Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done. INTENTION (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (1) with the intention of causing death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the the risk of causing death or such injury as is mentioned above." 20. Having considered the basic distinction between these offences, now we have to examine whether there was a sudden fight that would bring the case of the appellant within the ambit of Exception-4 to Section 300 of I.P.C. 21. It is an undisputed fact in the present case that the appellant went to the house of deceased, Noorjahan to take her back to her matrimonial home where the incident took place. It is not the case of prosecution that the appellant went to the spot with an intent to commit murder of the deceased or there was some premeditation or preparation to cause her death. Further, it is also not disputed that the appellant was not armed with any weapon and rather he picked up the weapon of offence from the spot itself. 22. Further, it is also not disputed that the appellant was not armed with any weapon and rather he picked up the weapon of offence from the spot itself. 22. It is well settled law that for bringing Exception-4 to Section 300 of I.P.C. in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 23. The Fourth exception to Section 300 of I.P.C. covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, in both there is absence of premeditation. But, while in the case of Exception-1 there is total deprivation of self-control, in case of Exception-4 there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception-4 as in Exception-1, but the injury done is not the direct consequence of that provocation. In fact Exception-4 deals with the cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A sudden fight implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception-1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of forth exception 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 the forth exception all the ingredients mentioned in it must be found. It is to be noted that the fight occurring in Exception-4 to Section 300 of I.P.C. is not defined in the I.P.C. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have 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 to Section 300 of I.P.C., 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'. 24. At this stage, it is relevant to go through the testimonies of PW-1, Nafees and PW-2, Smt. Mohseena wherein it has come in evidence that the appellant started beating the deceased with the weapon (piece of wood) lying on the terrace of their house and thereafter he left the spot. Both the witnesses have also deposed that the appellant was asking the deceased to accompany him to his house and deceased was refusing and upon this scuffle took place. Further, though it has come in evidence of PW-4, Dr. Both the witnesses have also deposed that the appellant was asking the deceased to accompany him to his house and deceased was refusing and upon this scuffle took place. Further, though it has come in evidence of PW-4, Dr. Awadhesh Kumar that the death has been caused due to the head injury, however, it is not clear from the postmortem report that whether the injury in the present case has been caused by single blow or by multiple blows, thus, it cannot be said that the appellant took undue advantage or not. According to the postmortem report Ex. KA-3, the cause of death has been opined as 'the death is due to COMA, as a result of anti-mortem head injury'. 25. As we have discussed above, premeditation and intention to kill are two vital circumstances amongst others which are to be considered by the Court before holding the appellant/accused guilty of an offence under Sections 302 or 304 of I.P.C.. At the cost of repetition, we may notice that from the prosecution evidence, it is not established that the appellant had the intention to kill the deceased or it was a premeditated crime. Even if it is believed that the appellant used to have some quarrel with his wife (deceased), even then, beyond this factor, there is no evidence of animosity, premeditation or intention to kill. The appellant did gave a blow on the head of the deceased which proved fatal. The injuries No. 1 and 2 mentioned in postmortem report are possible by a single blow. This was a result of sudden fight when the deceased refused to accompany him to the matrimonial house. 26. Thus, in the facts of the present case, the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without having taken undue advantage and not having acted in a cruel or unusual manner and, therefore, it would bring the offence within the ambit of Exception-4 to Section 300 of I.P.C. Hence, Section 304 Part-I of I.P.C., is attracted as the appellant had caused such bodily injury to the deceased which, to his knowledge, was likely to cause death as he had inflicted injuries on the head of the deceased. Thus, the conviction of the appellant Mohd. Irfan is altered from Section 302 of I.P.C. to Section 304 Part-I of I.P.C. 27. Thus, the conviction of the appellant Mohd. Irfan is altered from Section 302 of I.P.C. to Section 304 Part-I of I.P.C. 27. As far as Section 307 of I.P.C. is concerned, there is mere testimonies of Nafees (PW-1) and Smt. Mohseena (PW-2) on record which suggest that the appellant pushed Smt. Mohseena from the terrace due to which she suffered injuries, however, neither there is any medical evidence on record nor there is any other evidence to prove even the basic ingredients of the offence under Section 307 of I.P.C.. Even Sri Nafees (PW-1) has merely stated that the appellant pushed Smt. Mohseena from terrace, however, he has not deposed whether Smt. Mohseena suffered any injury or not. Thus, merely on the basis of testimony of Smt. Mohseena (PW-2) itself, the appellant cannot be held guilty for the offence under Section 307 of I.P.C.. 28. Having held that the appellant is guilty of an offence under Section 304 Part-I of I.P.C., we award sentence of imprisonment for ten years and to pay fine of Rs. 10,000/- (Ten Thousand Rupees), in default of payment of fine to further undergo imprisonment for six months. Benefit of Section 428 Cr.P.C. be given to the appellant. 29. The appellant is stated to be in judicial custody. In case, the appellant has served the sentence, the appellant be released forthwith. A copy of this judgment be sent to the Superintendent Jail concerned for compliance. A copy of this judgment be also sent to the appellant through Superintendent Jail. 30. The appeal is disposed of accordingly. 31. Lower court record along with copy of this judgment be sent back to the trial court immediately.