Hyder @ Munda vs State of M.P.

Rakesh Saksena, J.—Appellant has filed this appeal against the judgment dated 25th August, 2007 passed by Sessions Judge, Jabalpur in Sessions Trial No. 11/2007, convicting the appellant under Sections 302 and 323 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 1000/- and rigorous imprisonment for 2 1/2 months, on each count respectively. In short, the prosecution case is that on 27.11.2006, when complainant Sajjad was sitting in his house with his father Khaju Usman and elder brother Mohd. Afaq, at about 9.30 P.M. Nadira Bano reached there and informed that accused Hyder @ Munda, Sabir and Babloo were assaulting his brother Abbu @ Abrar. They all rushed to that spot and saw accused persons assaulting Abbu with fists. Accused Sabir was armed with sword. When they tried to save Abrar, accused persons scuffled with them. When accused Sabir started beating Sajjad, his father Khaju Usman came to rescue him. Accused Hyder @ Munda then dealt a knife blow in the abdomen of his father, as a result his intestine protruded out. On their shouting, people from the village gathered there. Sajjad went to police station Hanumantal and lodged the report Ex. P/ 1 at 9.45 P.M.. Police sent Khaju Usman to Victoria Hospital, Jabalpur. Dr. Gopal Tirthani (PW13) examined his injuries. When Khaju Usman was being shifted to a private hospital, he succumbed to his injuries.

Dead body of Khaju Usman was then brought to police station. Police conducted inquest proceedings and referred the body for postmortem examination to Medical College, Jabalpur. Dr. Mukesh Agrawal (PW14) performed postmortem examination of the body and found one stab injury on the left side of abdomen of deceased. Intestine was protruding out from the wound. He opined that cause of death of deceased was internal hemorrhage because of the stab injury. The injury was ante-mortem in nature.

During investigation, police prepared the spot map, seized plain and blood stained earth from the spot and arrested the accused persons. On the information given by accused Hyder, a Knife was recovered and seized vide seizure memo Ex. P/12. After completion of the investigation, charge sheet was filed against three accused persons and the case was committed for trial.

Accused persons abjured their guilt and pleaded false implication due to enmity.

On trial, after appreciation of evidence learned Sessions Judge held accused/appellant Hyder @ Munda guilty, convicted and sentenced him as mentioned above. Finding the evidence insufficient to hold co-accused Sabir and Babloo guilty under Sections 302 and 324 of the Indian Penal Code, learned Sessions Judge acquitted them of those charges. However, they were convicted u/s 323 of the Indian Penal Code. Aggrieved by his conviction and sentence, appellant has filed this appeal.

Learned Counsel for the appellant submitted that the learned Sessions Judge did not appreciate the evidence properly. He committed error in relying upon the evidence of Sajjad (PW1) and Abbu @ Abrar (PW2), who were close relatives of the deceased. Other witnesses Karim Ansari (PW7), Nadira Bano (PW8) and Hero @ Munna (PW16) did not support the prosecution case, therefore, they were declared hostile. Learned Counsel further submitted that even if the evidence adduced by the prosecution was accepted, learned trial Judge committed further error in holding the appellant guilty u/s 302 of the Indian Penal Code. In the facts and circumstances of the case, the appellant could have been held liable u/s 304-II of the Indian Penal Code only. He pointed out that appellant was arrested on 28.11.2006; since then he is continuously in custody. He has thus remained in jail for a period of about 5 years and 4 months. On the other hand, Learned Counsel for the State, submitted that appellant stabbed deceased when he tried to save his son Sajjad from being beaten. The injury was inflicted on the vital part like abdomen due to which intestines of deceased protruded out. Incident was witnessed by Sajjad, Abbu @ Abrar and Afaq, who categorically stated about the act of appellant. According to him, the conviction of appellant u/s 302 of the Indian Penal Code was justified and called for no interference.

We have heard the Learned Counsel for the parties and perused the impugned judgment and the evidence on record carefully.

It has not been disputed that the deceased died of homicidal injuries. It was stated by Sajjad (PW1) and Abbu @ Abrar (PW2) when accused Sabir and Babloo were assaulting them, deceased tried to rescue Sajjad, then appellant Hyder took out a knife from his trousers and dealt its blow in his abdomen, as a result of which, his intestines came out. Deceased was sent to Victoria Hospital, Jabalpur where his injuries were examined by Dr. Gopal Tirthani (PW13). Dr. Gopal found a stab injury/incised wound on the left side of his umbilicus having omentum prolapse. Injury was caused with hard and sharp object. Injury report Ex. P/15 was written and signed by him.

When deceased was being shifted to some private hospital, he succumbed to his injuries on way. His dead body was brought to police station where Investigating Officer Mahendra Kumar Verma (PW20), in presence of Sajjad (PW1), conducted inquest proceedings and recorded memorandum Ex. P/13. Dead body was sent for postmortem examination to Medical College, Jabalpur. Dr. Mukesh Agrawal (PW14) conducted postmortem examination and found- (i) stab wound situated 2" lateral to umbilicus on left side, 2.5 cm in length x 1/2 cm width. Intestines were protruding out The wound was elliptical with clean cut margins. On opening abdomen, intestines were found perforated through and through. Inferior vena ceva was also found cut. About one liter blood was found filled in abdominal cavity. Depth of wound was 9 cm. In the opinion of doctor, cause of death was syncope due to internal hemorrhage. The postmortem report Ex. P/17 was written and signed by him. From the above evidence, it stands amply established that deceased died due to ante-mortem homicidal stab injury.

Next question before us is whether appellant caused injury to deceased which resulted into his death. Sajjad (PW1), the son of deceased stated that at about 9 O'' clock in the night on 27.11.2006 when he, his father and elder brother Afaq were sitting inside their house, Nadira Bano came there and informed that appellant, Babloo, Sabir and Ranu were assaulting Abrar. They rushed to ''Madar-chhalla'' ground and saw accused persons beating Abrar. When they tried to rescue Abrar, accused persons indulged in scuffle with them. When Sabir and Babloo started assaulting him, his father tried to save him then suddenly appellant took out a Chhuri from his trousers and stabbed it into the abdomen of his father due to which his intestines protruded out. On a shouting, accused persons ran away. He took his father to police station and lodged the report Ex. P/1. His father was taken to Victoria Hospital, Jabalpur for Medico Legal Examination. When he was being shifted to a private hospital, on way, he expired. The same story was repeated by Abbu @ Abrar (PW2). According to him, on 27.11.2006 accused persons started beating him. On the point of knife and sword, they carried him to ''Madar-chhala'' ground. Hyder assaulted him with a knife. When this information reached to his brother and father Khaju Usman, they came there and tried to rescue him. In the course of scuffle, suddenly appellant took out a Kattar which he had kept in his shoes and stabbed in the abdomen of his father. On hearing their screams, when people assembled there, accused persons ran away. As a result of injuries, his father died. Both these witnesses were subjected to a lengthy cross examination, but they remained firm and consistent through out.

Mohd. Afaq (PW5), who is also a son of deceased stated that while he was sitting with his father and brother, Nadira Bano informed them that appellant and other accused persons were beating his brother Abbu. When he, his brother and father went there and tried to intervene, accused persons started beating Sajjad. When his father tried to save Sajjad, appellant took out a Kattar and inflicted its blow in the stomach of his father.

Mohd. Sarafraj (PW3) another son of deceased stated that immediately after the occurrence when he reached police station, he came to know that appellant and other accused persons had assaulted his father.

The evidence of Sajjad (PW1) finds sufficient corroboration from the evidence of Abbu (PW2) and Mohd. Afaq (PW5). His evidence finds further support from the first information report Ex. P/l lodged by him within 15 minutes after the occurrence and by the medical evidence of Dr. Gopal Tirthani (PW13) and Dr. Mukesh Agrawal (PW14).

It is true that the aforesaid prosecution witnesses happened to be the close relatives of deceased, being his son, but merely on that ground their evidence cannot be discarded. There appear absolutely no reason for them to have falsely implicated the appellant. Of course, evidence of such witnesses required a closer scrutiny keeping the factor of their relationship in mind. Normally a close relative of the deceased would be most reluctant to spare real assailant and falsely mention the names of other persons as those responsible for causing injuries to deceased. Since, on a close scrutiny we find their evidence cogent, consistent and reliable, we hold that it has been established that appellant caused knife injury to deceased, as a result of which, he died.

The next question would be whether learned trial Judge was justified in holding the appellant guilty of the charge u/s 302 of the Indian Penal Code.

Learned Counsel for the appellant placing reliance on the case of Bunnilal Chaudhary Vs. State of Bihar, submitted that there was no evidence from which it could be inferred that appellant intended to cause death of deceased. The stab injury was caused in the abdomen and only one blow was inflicted, at the most appellant could be held liable for culpable homicide not amounting to murder, especially in the circumstances when suddenly deceased intervened in the quarrel.

In case of Bunnilal Chaudhary (supra), the Apex Court observed in paras 10 and 11:

We have given our thoughtful and anxious consideration to the rival contentions of the Learned Counsel. The next question is what is the offence which is brought home to Bunnilal Chaudhary (A1) ? It is not in dispute that the injury inflicted on the left side of the chest of the deceased is single one. On examination, Dr. Vijay Kumar found the injury situated above nipple on the left side of the chest extending 1" x 1/2" penetrating wound. On dissection, left lung was found penetrated. Dr. Vijay Kumar has not opined that the injury was sufficient in the ordinary course of nature to cause death. That was not even stated to be likely to cause death. No attempt was made by Bunnilal Chaudhary to cause serious injury on any vital part of the body of the deceased. There was no motive or intention of Bunnilal Chaudhary to have murdered Shambhu Raut. Therefore, the question is whether be offence can be said to be covered by clause (iii) of section 300 of the IPC.

That section requires that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts: the first part is a subjective one which indicates that the injury must be an intentional one and not an accident one; the second part is objective in that looking at the injury intended to be caused, the Court must be satisfied that it was sufficient in the ordinary course of nature to cause death. We think that the first part is complied with, because the injury which was intended to be caused was the one which was found on the person of Shambhu Raut. But the second part, in our opinion, is not fulfilled because but for the fact that the injury caused had penetrated the lung, death might not have ensued. In other words, looking at the matter objectively, the injury, which Bunnilal Chaudhary intended to cause, did not include specifically the cutting of the left lungs but to wound Shambhu Raut in the neighbourhood of the nipple on left side of chest. Therefore, we are of the opinion that clause (iii) of section 300 does not cover the case. Inasmuch as death has been caused, the matter must still come within at least culpable homicide not amounting to murder. There again, section 299 is in three parts. The first part takes in the doing of an act with the intention of causing death. As we have shown above, Bunnilal Chaudhary did not intend causing death and the first part of section 299 does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause death and that also, as we have shown above, was not the intention of Bunnilal Chaudhary. The matter, therefore, comes within the third part. The act which was done was done with the knowledge that Bunnilal Chaudhary was likely by such act to cause the death of Shambhu Raut. The case falls within the third part of section 299 and will be punishable under the second part of section 304, IPC as culpable homicide not amounting to murder.

In the light of above propositions, if we examine the facts of the instant case, we find that originally the incident of beating was going on between accused persons and Abrar. On receiving information about his beating, when deceased and other prosecution witnesses reached at the place of occurrence, accused persons indulged in scuffle with Sajjad (PW1). With a view to rescue Sajjad, when deceased intervened, appellant suddenly took out a knife and dealt its blow in his abdomen. Admittedly, the assault was not repeated on the deceased. The act of appellant could be held to be abrupt and sudden. In these circumstances, it cannot be held with certainty that he intended to cause such injury as was objectively found on the body of deceased. Apart from it, it was not stated by the doctor that injury was sufficient in ordinary course of nature to cause the death of deceased. Dr. Mukesh Agrawal (PW14), who conducted postmortem examination stated that by the injury death of deceased was possible. In these circumstances, we are of the opinion that the case of appellant falls within the ambit of offence of culpable homicide not amounting to murder punishable u/s 304 of the Indian Penal Code. However, since the appellant wielded weapon like knife, it can be inferred with certainty that he knew that his act was likely to cause death of deceased making him liable to be punished u/s 304-II of the Indian Penal Code.

We, accordingly, alter the conviction of appellant Hyder @ Munda from Section 302 of the Indian Penal Code to Section 304-II of the Indian Penal Code and in lieu of sentence of imprisonment of life imposed on him, sentence him to rigorous imprisonment for seven years and to pay fine of Rs. 1000/- with default stipulation of two months simple imprisonment. The conviction and sentence of appellant u/s 323 of the Indian Penal Code is affirmed. The appeal is partly allowed to the extent indicated above.