Father and son convicted under Section 302/34 IPC for fatally stabbing a man with a scissor during a festival-day quarrel. The High Court acquitted the father for want of common intention and altered the son's conviction to Section 304 Part-II IPC, sentencing him to eight years' rigorous imprisonment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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2024:CGHC:47938-DB
Digitally signed by PRAKASH KUMAR Date: 2024.12.09 16:44:06 +0530
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 723 of 2019
1. Sheikh Mukhtaar, S/o Sheikh Maajid, aged about 20 years, R/o Luthra, Police Station Sipat, District Bilaspur, Chhattisgarh,
2. Sheikh Maajid, S/o Sheikh Rahim, aged about 46 years, R/o Luthra, Police Station Sipat, District Bilaspur, Chhattisgarh,
... Appellants
Versus
... Respondent
For Appellants : Mr. Rishi Rahul Soni, Advocate For State/Respondent : Mr. Rahul Tamaskar, Government Advocate
Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal, Judgment On Board (05.12.2024)
Sanjay K. Agrawal, J
1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellants-accused persons, is to the legality, validity and correctness of the judgment dated 04.01.2018 passed by the 9th Additional Sessions Judge, Bilaspur, Chhattisgarh, in Sessions Trial No.41/2017 by which two appellants herein have been convicted for offence under Section 302/34 of the IPC and sentenced to undergo
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imprisonment for life with fine of Rs.5,000/- each, in default of payment of fine amount to further undergo additional rigorous imprisonment for six months.
2. Case of the prosecution, in short, is that on 12.12.2016 at about 5:30 PM, at village Luthra, Police Station Sipat, District Bilaspur, Chhattisgarh, appellant No.1 – Sheikh Mukhtaar assaulted the deceased – Sheikh Junaid with the help of scissor and appellant No.2 – Sheikh Maajid, who is father of appellant No.1, is said to have assisted his son (appellant No.1) in assaulting the deceased and thereby they both committed the aforesaid offence.
3. The said incident was reported by Mohammad Raza (PW-01) vide Ex.P/1 and the deceased was admitted in the government hospital, where he was declared dead. Thereafter, merg intimation was recorded vide Ex.P/06 & P/21, and spot map was prepared vide Ex.P/24 & P/25. Crime details form was prepared vide Ex.P/30. Inquest was conducted vide Ex.P/08. Dead body of the deceased was sent for postmortem which was conducted by Dr. Shreenarayan Gole (PW-05) who submitted his report vide Ex.P/11 in which he opined that cause of death was cardio-respiratory arrest with hemorrhagic shock due to injuries sustained and death was homicidal in nature. Pursuant to memorandum statement of appellant No.1 – Sheikh Mukhtaar (Ex.P-12), one blood stained sharp scissor (weapon of offence) was seized vide seizure memo Ex.P-14 and from memorandum statement of appellant No.2 – Sheikh Maajid, one
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Kurta was seized vide seizure memo Ex.P-17. Seized articles were sent for chemical examination to FSL and as per FSL report (Ex.P/33) human blood was found on Kurta (article A) and scissor (article B).
4. After due investigation, appellants herein were charge - sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused abjured their guilt and entered into defence.
5. In order to bring home the offence, prosecution has examined as many as 11 witnesses and exhibited 33 documents, whereas, defence, in support of its case, has examined 01 witness and exhibited 07 documents. The statements of the appellants / accused were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication.
6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants / accused for the offence as mentioned in the opening paragraph of the judgment, against which the appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence.
7. Mr. Rishi Rahul Soni, learned counsel for the appellants submits that the trial Court is absolutely unjustified in
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convicting the appellants for the offence in question. He further submits that the prosecution story with regard to appellant No.2 – Sheikh Maajid is that he caught hold of the deceased – Sheikh Junaid, enabling his son i.e. appellant No.1 – Sheikh Mukhtaar to cause injury by scissor, is not established at all. Further, Appellant No.2 intervened to settle the dispute which was taking place between Saddam (not examined) and Sheikh Wahid (DW01). Further, it is apparent from the statements of Mohammad Faizan Razaa (PW-06), and Mohammad Razaa (PW-01), that there were about 500 – 1,000 persons at the place of incident and it was not possible that appellant No.2 had caught hold of the deceased and appellant No.1 had brought a scissor and caused injury to the deceased. As such, conviction of appellant No.2 for the offence under Section 34 of the IPC cannot be established at all and he has been falsely implicated. So far as conviction of appellant No.1 is concerned, only single injury has been caused by him to the deceased and there was no dispute between the deceased and appellant No.1. Since, on the date of offence, the holy festival Id-Milad-Un-Nabi was being celebrated and appellant No.1 was also trying to settle the dispute which took place between Saddam and Wahid, as such, appellant No.1 had no intention but knowledge that the injury caused to the deceased is likely to cause death, therefore, it would be a case, at the most, of commission of offence under Section 304 Part-II of the IPC and also it is a fit case where conviction of appellant No.1 – Sheikh Mukhtaar for offence under Section 302 of the
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IPC can be converted / altered to an offence under Section 304 Part-II of the IPC. He further submits that appellant No.1 is in jail since 13.12.2016 i.e. for around 8 years, therefore, he may be sentenced for the period he has already undergone and appellant No.2 is liable to be acquitted on the basis of benefit of doubt.
8. On the other hand, learned State counsel supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt and it is not the case of alteration of offence from offence under Section 302 of IPC to Section 304 Part-II of the IPC where the conviction of the appellants can be modified for lesser offence, therefore, the appellants have rightly been convicted for the offence in question. He further submits that human blood has been found over the seized articles which were sent for chemical examination. Thus, the instant appeal deserves to be dismissed.
9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records with utmost circumspection.
10. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the postmortem report (Ex.P/11) proved by Dr. Shreenarayan Gole (PW-05), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record.
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Accordingly, we hereby affirm the finding of the Trial Court holding that the death of the deceased was homicidal in nature.
11. Now, the next question for consideration would be, whether the trial Court is justified in convicting the appellants for offence under Section 302/34 of the IPC. Considering the conviction of the appellants, we will take one by one.
12. Since, it is a case where appellant No.2 – Sheikh Maajid caught hold of the deceased and appellant No.1 – Sheikh Mukhtaar has brought scissor from the nearby cloth shop and caused injury to the deceased, it would be appropriate to first consider the case of appellant No.2 as he has been convicted with the aid of Section 34 of the IPC.
Appeal of Appellant No.2:-
13. Since, Appellant No.2 has been convicted with the Aid of Section 34 of the IPC, it would be appropriate to notice Section 34 of the IPC which states as under:-
14. Common intention means a pre-oriented plan and acting in pursuance to the plan, thus common intension must exist prior to the commission of the act in a point of time. (See Shyamal
Ghosh v. State of West Bengal1 ).
1 AIR 2012 SC 3539
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15. The burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concert. (See Mrinal Das v. State of Tripura2 . )
16. If common intention is proved but no overt act is attributed to the individual accused, Section 34 of the Code will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In other words, it requires a prearranged plan and presupposes prior concert. (See Suresh
17. It is the case of the prosecution that on the date of offence which took place at Luthra Sarif holy Dargah, the festival IdMilad-Un-Nabi was being celebrated and on that day, on account of collision of motorcycles of Saddam (not examined) and Sheikh Wahid (DW-01), both started quarreling after completion of procession , which was being intervened by Sheikh Junaid (deceased) and his father Mohammad Sarif (PW-04). At that time, appellant No.2 – Sheikh Maajid caught hold of the deceased enabling appellant No.1 – Sheikh Mukhtaar to bring scissor from the nearby cloth shop, and, thereafter, appellant No.1 assaulted the deceased. However, from the statement of Mohammad Raza (PW-01), it is quite vivid that when the dispute was taking place between Saddam and Wahid, deceased Junaid intervened between them and at that time about 500 – 1,000 persons were
2 (2011) 9 SCC 479
3 2012 (9) JT 116
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present at the spot. It is also not in dispute that father of the deceased and father of appellant No.1 are real brothers. Apart from this, Mohammad Faizan Raza (PW-06), who according to the prosecution was cited as eye-witness to the incident, who in his Court statement has clearly stated that on the date of offence, Saddam and Wahid both were quarreling and appellant No.2 – Sheikh Maajid came there to settle the dispute. However, though he has reiterated that appellant No.2 has not assaulted but fact remains that he reached there in order to settle the dispute and make them understand. This apart, on that day, appellant No.2 has assembled there to celebrate the holy festival Id-Milad-Un-Nabi. As such, it would be unsafe to hold that appellant No.2 – Sheikh Maajid had caught hold of the deceased in order to enable appellant No.1 – Sheikh Mukhtaar to cause injury. As such, there is no overt act caused by appellant No.2, and there was no intention/motive on the part of appellant No.2, and in view of statement of Mohammad Faizan Raza (PW-06), according to which appellant No.2 was trying to settle the dispute and was consoling them not to fight, the trial Court is absolutely unjustified in invoking Section 34 of the IPC to convict appellant No.2 – Sheikh Maajid under Section 302 of the IPC and therefore, the same is liable to be set-aside. As such, appellant No.2 – Sheikh Maajid is entitled to be acquitted on the basis of benefit of doubt.
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Conviction of appellant No.1 – Sheikh Mukhtaar:-
18. In this regard, the trial Court has recorded the finding that as per the statement of father of the deceased, Mohammad Sharif (PW-04), appellant No.1 – Sheikh Mukhtaar was present at the place of offence, and he has brought scissor from a nearby shop and assaulted his son (deceased) due to which deceased suffered severe injury on his chest by which he was grievously injured and died.
19. Now, the question is, whether the case of appellant No.1 – Sheikh Mukhtaar would fall under Exception 4 to Section 300 of IPC and as such, his conviction under Section 302 of the IPC can be altered to Section 304 Part – II of IPC, as contended by learned Counsel for appellants?
20. The Supreme Court in the matter of Arjun v. State of Chhattisgarh 4 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads 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, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], 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 its I 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
(2017) 3 SCC 247
4
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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.”
“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 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 or 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 provisions means “unfair advantage”.
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21. In the matter of Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the same would be case of Section 304 Part-I 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 IPC.
22. Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)5 has laid down four ingredients which should be tested for bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:
“16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:
(i) There must be a sudden fight;
(iii) The act was committed in a heat of passion; and
(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”
23. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there is no premeditation on the part of appellant No.1 – Sheikh Mukhtaar to cause death of the deceased – Sheikh Junaid, as there arose a dispute between Saddam (not examined) and Sheikh Wahid (DW-01), and the deceased intervened between them in order to settle the dispute. Further, as per statement of Mohammad Faizan Raza (PW-06), father of the deceased Mohammad Sharif (PW-04) and father of appellant No.1 i.e. appellant No.2 – Sheikh Maajid, also tried to intervene into the matter to settle the dispute. In that view of the
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matter, there appears no dispute between the appellants and the deceased. As such, there was no premeditation and intention on the part of appellant No.1 – Sheikh Mukhtaar to cause death of the deceased, but he must have had knowledge that the injuries caused to him are likely to cause death and, as such, the case of appellant No.1 – Sheikh Mukhtaar would fall under Exception 4 to Section 300 of IPC.
24. In view of the above, the conviction of appellant No.1 – Sheikh Mukhtaar for offence punishable under Section 302 of the IPC is altered to Section 304 Part – II of the IPC and he is sentenced to 8 years rigorous imprisonment by reducing it from imprisonment for life. However, the fine sentence and default stipulation, as imposed upon appellant No.1 by the learned Trial Court, shall remain intact.
25. However, conviction and sentence of appellant No.2 – Sheikh Maajid under Section 302/34 of the IPC is set–aside and he is acquitted of the charge under Section 302/34 of the IPC giving him benefit of doubt. He is reported to be on bail. He need not surrender. However, his bail bonds shall remain in operation for a period of six months as per the provisions contained in Section 437-A of the CrPC.
26. In the result, the appeal is partly allowed to the extent indicated herein-above.
27. Let a certified copy of this judgment along with the original record be transmitted to the Trial Court concerned for necessary
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information and action, if any. A copy of judgment may also be sent to the concerned Jail Superintendent wherein the appellants are suffering the jail sentence.
Sd/Sd/- ( Sanjay K. Agrawal ) ( Radhakishan Agrawal ) Judge Judge
Prakash
2 issues framed by the court
Whether the conviction of appellant No.2 under Section 302/34 IPC was justified in absence of proof of common intention or overt act?
Whether appellant No.1's case fell under Exception 4 to Section 300 IPC warranting alteration from murder to culpable homicide not amounting to murder?
Colour shows how this judgement treated each authority
Shyamal Ghosh v. State of West BengalRelied on¶14
AIR 2012 SC 3539 · Who else cites this
Mrinal Das v. State of TripuraRelied on¶15
(2011) 9 SCC 479 · Who else cites this
Suresh Sankharam Nangare v. State of MaharashtraRelied on¶16
2012 (9) JT 116 · Who else cites this
Arjun v. State of ChhattisgarhRelied on¶20
(2017) 3 SCC 247 · Who else cites this
Rambir vs. State (NCT of Delhi)Relied on¶22
(2019) 6 SCC 122 · Who else cites this
6 provisions across 2 enactments
Sheikh Mukhtaar
Sheikh Maajid
State of Chhattisgarh Through Police Station Sipat
Sanjay K. Agrawal
Radhakishan Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
