Munna Pahalwan vs State of U.P.

R. K. Agrawal, J.

Aggrieved by the order dated June 10, 1988, passed by Sri U.S. Tripathi, Additional Sessions Judge, Sultanpur, convicting the appellant for offence under Sections 302, 324 and 323 I.P.C. and sentencing him to undrgo life imprisonment, two years R. I. and six months R. I. respectively, has preferred this appeal. Six other Coaccused persons, who were also tried along with the present appellant, have, however, been acquitted by the learned Additional Sessions Judge.

The incident admittedly took place on June 14, 1985, at about 12 noon in the Masjid situate in Mohalla Gangaganj, Majra Sarwanpur, Police Station Amethi, district Sultanpur. According to the prosecution, on that day at about 11.30 p.m. deceased Ahmad Ali alias Lallan and his brothers Mohammad Ali P.W. 1 and Shaukat Ali P.W. 2 were cleaning the aforesaid Masjid for making preparations for performing Namaz of Alwida in the month of Ramzan. At that time accused Munna and one Afaque came in the said Masjid and asserted that they would also perform Alwida Namaz in that Masjid. Mohammad Ali P.W. 1 objected and asked the accused and Afaque that the said Masjid belonged to him exclusively and that they had no right to perform Namaz in the said Masjid. Thereupon accused Munna took out a Danda lying in the courtyard of the Masjid and rushed towards Mohammad Ali P.W. 1 and gave one Danda blow to Mohammad Ali. On hue and cry being made deceased Ahmad Ali, Shaukat Ali P.W.2, Sant Ram P.W. 3 and others came there. When Ahmad Ali proceeded to rescue Mohammad Ali P.W. 1 accused Munna took out a knife from his pocket and stabbed Ahmad Ali and at that time other accused persons also came there. After getting knife injury Ahmad Ali fell down. Mohammad Ali P.W. 1 and Shaukat Ali P.W. 2 caught hold of Munna accused inflated knife injury on Shaukat Ali P. W. 2 also Smt. Hamida Begum, mother of the deceased Ahmad Ali came on the spot to intervene and she also received knife injuries. Mohammad Ali caught hold of Munna from behind and in the scuffle Munna accused again caused injury to Mohammad Ali P. W. 1. In the said scuffle Munna also received some injuries.

Accused Munna was apprehended on the spot. Mohammad Ali and others brought the accused to police station. Ahmad Ali, who had received injuries was also brought to police station. The First Information Report Exhibit Ka1 was also lodged by Mohammad Ali P. W. 1 at the Police Station Amethi at 12.55 p.m. and the case was registered with reference to general Diary Exhibit Ka5 under Sections 147/148/324/307 I.P.C. Accused Munna was taken into custody by the police and knife Exhibit I was also deposited at the police station and recovery memo Exhibit Ka6 was prepared. All the injured were sent to Primary Health Centre for medical examination and on way Ahmad Ali succumbed to injuries and there after his dead body was brought to the Masjid. On getting information about the death of Ahmad Ali the case was altered to Section 302 I.P.C. with reference to General Diary Exhibit Ka7.

S. I. Munshi Lal P. W. 9 was entrusted with the investigation. He went to the Masjid, inspected the dead body of Ahmad Ali deceased, prepared relevant documents and sent the dead body for postmortem. He interrogated Mohammad Ali P. W. 2 and Sant Ram P. W. 3. On June 15, 1985 he went on the spot and inspected the same and prepared the siteplan Exhibit Ka19 and had taken the blood stained and ordinary clay from the spot. On June 19,1985 he interrogated Shaukat Ali P. W. 2 & other witnesses.

Dr. S. K. Kulshrestha P. W. 4 had conducted the postmortem examination on the dead body on June 14,1985 at 11.30 p.m. and prepared postmortem report Exhibit Ka3 which gives the following details :

Incised wound on forehead right side started from medial part of left eyebrow going upward towards right and 2 cm. above the right eyebrow, wound tapering downward, margins sharp.

Punctured wound margins clean cut, elliptical in shape 2 cm. x 1 cm. x cavity deep. Probe passing into the abdominal cavity medially and upward posteriorly on opening the abdominal cavity. Upper part of the descending colon through and through cut, mesenteric artery is also cut along with cut mark is seen over the abdominal aorta. Abdominal cavity contains about one and a half liter blood.

According to the Doctor the death was caused on account of shock and haemorrhage as a result of the aforesaid antemortem injuries.

Dr. S. C. Yadav P. W. 6 had examined the injuries of Shaukat Ali P. W. 2. The Doctor found the following injuries on the person of Shaukat Ali P. W. 2:

(1) Incised wound L shaped 4 1/2 cm. x 1/2 cm. on right side front of chest 13 cm. above umblicus at 11 O''clock position 1 cm. lateral to mid line.

(2) Incised wound 1.5 cm. x. 0.3 cm. x muscle deep on right side chest 15 cm. above umblicus.

(3) Lacerated wound 1 cm. x. 0.3 cm. x muscle deep on right side hand near base of right thumb inner aspect.

(4) Incised wound 0.5 cm. x. 0.2 cm. x skin deep on tip of right index finger.

All the injuries except injury No. 1 was simple. Injury No. 1 was kept under observation. Injuries 1, 2 and 4 could be caused by knife and injury No. 3 could be caused by a lathi.

Dr. R. K. Gupta P. W. 8 had examined the injuries of Mohammad Ali P. W. 1. He had one abrasion and one contusion on the right index finger and an abrasion 1/2 cm. x 1/2 cm. on the left side of nose.

Dr. R. K. Gupta had also examined the injuries of Smt. Hamida Begum and found one incised wound 1 1/2 cm. x 0.3 cm. on the anterior aspect of right forearm. The said injury was simple.

After completing the investigation the Investigating Officer submitted chargesheet against the appellant and other accused persons.

The accused pleaded not guilty and alleged that he has been falsely implicated in this case. The accusedappellant in his written statement filed under Section 313 Cr. P.C. alleged that he had gone to offer prayer in the Masjid. There Mohammad Ali, Shaukat Ali and Ahmad Ali had not permitted him to perform Namaz, but he insisted that he would perform Namaz as he was doing earlier. On this an altercation took place and several persons had gathered. Thereupon Shaukat Ali, Ahmad Ali and Mohammad Ali started beating him with fists, kicks and Danda. Some one from the crowd wielded knife and Danda causing injuries to those persons. Mother of Shaukat Ali also came there. It further alleged that he was falsely implicated as he wanted to perform Namaz against the wishes of those persons. He had gone to lodge report but his report was not entertained and he was taken into custody. He had also received injuries and his injuries were examined by the Jail Doctor. He also alleged that he had no knife nor he had wielded the same and the recovery of the knife had been planted.

The accusedappellant Munna was medically examined in the Jail on June 16, 1985, by Dr. E. Revello D. W. 1. He found the following injuries on the person of appellant Munna:

(1) Abrasion 2 cm. x 2 cm. on the head, 8 cm. above right ear.

(2) Contusion 2 cm. x 2 cm. below the right eye which had become red.

(3) Abrasion 4 cm. x 2 cm. on the back side of right hand 7 cm. below the right shoulder on the back side.

(4) There abrasions one after the other 0.3 cm. long.

(5) Abrasion 0.5 cm. on the top of the left middle finger.

(6) Lacerated wound with pus 2 cm. in lenghe on the top of right foot thumb.

(7) Several contusions on the back in an area of 20 cm. x. 1.5. cm.

The prosecution in support of its case examined three eyewitnesses viz., Mohammad Ali P. W. 1, Shaukat Ali P. W. 2 and Sant Ram P. W. 3 besides the Doctors and Investigation Officer.

Date, time and place of the incident as alleged by the prosecution had not in fact been disputed by the accused; rather it is admitted that the incident did take place in the Masjid when the accusedappellant had gone to offer prayer but he was not allowed to do so. On this an altercation took place and in the said altercation Ahmad Ali and others including the accusedappellant had sustained injuries. It is also not in disputed that Ahmad Ali subsequently succumbed to the injuries.

Learned Counsel for the appellant has, however, contended that the incident did not take place in the manner alleged by the prosecution. He has contended that some one from the crowd had wielded knife and Danda and caused injuries to several persons including Ahmad Ali. The prosecution has examined two injured witnesses, viz. Mohammad Ali P. W. 1, Shaukat Ali P. W. 2 besides Sant Ram P. W. 3 who is an independent witness. Presence of Mohammad Ali and Shukat Ali is in fact admitted to the appellant. These two witnesse have unfolded the prosecution case and had stated that Munna had come to offer prayer in the Masjid but he was not allowed to offer prayer on the ground that he had no right to offer prayer in that Masjid. On this accused Munna took out a Danda and gave a Danda blow to him. Other persons came on the spot. In the meanwhile Munna took out a knife and caused injuries to Ahmad Ali. Munna had also caused injuries to Shaukat Ali with knife. Hamida Begum on hue and cry came on the spot and she also received injuries when she was trying to passify the matter. It has further been stated that the witnesses had caught hold of Munna and scuffle took place between Munna and other persons who had caught hold of him. Munna tried to save himself and that Munna had caused bite injuries on the right index finger. In the scuffle Munna had also received injuries. Sant Ram P. W. 3 has also supported these two injured witnesses.

It is true that both the injured witnesses are the brothers of the deceased but that fact would not be sufficient to discard their testimony specially when their statements find full support by the medical evidence and independent witness Sant Ram P. W. 3. It is admitted by the accused in his statement under Section 313 Cr. PC. that several persons had gathered on hearing hue and cry. Presence of Sant Ram P.W. 3 cannot, therefore, be doubted and there appears to be no reason as to why Sant Ram P. W. 3 would speak lie and implicate the accused falsely. It is highly improbable to believe, as has been alleged by the accused, that some one from the crowd had wielded knife and Danda causing injuries to Ahmad Ali and others. The altercation was taking place between the accused Munna on one side and Ahmad Ali and his brothers on the other side. It cannot also be believed that the complainant would implicate the accused falsely by exonerating the real culprit specially when he and other witnesses had the opportunity to witness the incident as admittedly the incident took place in day time.

In our considered opinion, therefore, it is established that the incident took place in the manner alleged by the prosecution and that the accused appellant Munna did cause injuries to Ahmad Ali and his two brothers with knife and Danda and further that Mohammad Ali succumbed to injuries on way to hospital.

Learned Counsel for the appellant has vehemently argued that the learned trial Judge was not justified in recording the finding of conviction for offence under Section 302 I.P.C. as at best the case would fall under the provisions of Section 304 Part 1 I.P.C. It has been argued that the accused appellant can be said to have exceeded the right of selfdefence by causing fatal injuries to Ahmad Ali. We find sufficient force in this convention. It has been admitted by all the prosecution witnesses that accused Munna was caught hold of by Mohammad Ali and other persons and suffle took place between them and that they had dragged the accused off Munna towards Ghari and that they had not let the accused of though accused Munna had caused bite injuries to Mohammad Ali on index finger. In his statement Mohammad Ali P. W. 1 has stated that as soon as Ahmad Ali caught hold of Munna he took out a knife and caused injuries to Ahmad Ali. Ahmad Ali fell down and thereafter at once he (Mohammad Ali) and Shaukat Ali rushed and caught hold of Munna and thereupon Munna had caused injures to them. It is also evident from the statement of Dr. E. Ravello D. W. 1, who had medically examined the accused in jail, that the accused had received several injuries including lacerated would, contusion and abrasion on different parts of his body. The accused appellant had, therefore, entertained the apprehension that he would receive grievous injuries at the instance of the persons who had gathered and caught hold of him. He had, therefore, the right to defend himself but it can of course be said that he exceeded his right of such selfdefence. It does not appear that he had any intention to cause death of Ahmad Ali. The injury which proved fatal, was punctured wound 2 cm. x 1 cm. x cavity deep passing into abdominal cavity. It can of course be said that by causing the said injury the accused entertained the intention of causing such bodily injury as was likely to cause death. There was, however, no premeditation, It took place suddenly at the spur of moment without any previous illwill or enmity. The altercation took place out of a very insignificant matter regarding performance of prayer in the Masjid. In a similar situation in a case reported in 1991 SCC (Cri) 38, Sham Sunder v, Puran and another, the Hon''ble Supreme Court has altered the conviction from Section 302 I.P.C. to Section 304, Part 1 I.P.C. In that case also in the melee in the exercise of the right of private defence an injury was caused, causing death. The Hon''ble Supreme Court has observed that the case would fall under Section 304, Part I I.P.C. and not under Section 302 I.P.C.

In another case reported in 1993 SCC (Cri) 1078, A.M. Kunhikoya alias Koya v. State of Kerala, the Hon''ble Supreme Court has altered the conviction from Section 302 I.P.C. to Section 304, Part II I.P.C. The provision under Section 304, Part II I.P.C. was invoked as the incised wounds had a tailing 6 cm. in length running downward from the lower sharp end. In that case also, as it is in the present case, the injury was caused to the deceased during struggle in the course of certain fight. Looking to the nature of injury caused by the accused in that case the Hon''ble Supreme Court has altered the conviction under Section 304, Part II I.P.C.

In the instant case before us, however, the knife injury which was caused by the appellant to the deceased was punctured wound and the upper part of the descending colan was cut through and through. The mescentric artery was also cut and the cut mark was also seen over the abdominal aorta. The said injury was caused by the accusedappellant in selfdefence while of course exceeding the said right and in doing so he can be held to have committed culpable homicide not amounting to murder by causing the said injury and keeping in view the seat of injury and the weapon used it can be said that at that time he had the intention of causing such bodily injury as was likely to cause death and as such the accusedappellant can be said to have committed an offence punishable under Section 304, Part I I.P.C. At the cost of repetition it may be mentioned that there was absolutely no premeditation for committing the said offence. The incident had started by altercation and thereafter both the parties had grappled and the accused had entertained apprehension that he might be caused grievous injury at the hands of the complainant side and in that process he caused injuries to Ahmad Ali who subsequently succumbed to the said injuries. In our opinion, therefore, it is a fit case in which the conviction of the accused appellant must be altered from Section 302 to Section 304, Part I, I.P.C.

The accused appellant is in jail since the time of occurrence which took place on June 14,1985. He is, therefore, in jail for the last about 8 1/2 years. The learned Counsel for the appellant has contended that keeping in view the facts and circumstances in which unfortunate incident had taken place at the time when the accusedappellant had gone to offer Alwida Namaz in the Masjid, ends of justice would be met if the sentence is reduced to the sentence already undergone. We find sufficient force in this contention. The accused is in jail for the last about 8 1/2 years and ends of justice would be net if the sentence is reduced to the sentence already undergone.

All said and considered, therefore, we allow the appeal in part. The order of conviction passed by the learned Sessions Judge for offence under Section 324 and 323 I.P.C. is maintained, but the order of conviction for offence under Section 302 I.P.C. is altered to Section 304, Part I I.P.C. The sentence is reduced to the sentence already undergone. The accused appellant is in jail and he shall be released forth with unless required in any other case.