Partly allowed

Zafruddin Main v. State of Jharkhand

Jharkhand HC19 Aug 2019Cr.A(DB)/465/2001

Case brief

AI extract

What is this about?

This criminal appeal challenged a conviction under section 304 Part-I I.P.C. for murder. The High Court held that the act fell under Exception-1 to section 300 I.P.C. due to the nature of the quarrel, lacking specific intent to kill. The conviction was reduced to section 304 Part-II I.P.C., and the sentence was amended to seven years imprisonment.

What did the court decide?

The judgment of conviction and order of sentence were set aside. The appellant was convicted under section 304 Part-II I.P.C. and sentenced to seven years' rigorous imprisonment with a fine of Rs. 5,0

Zafruddin Main Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND, RANCHI

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(Criminal Appellate Jurisdiction)

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Criminal Appeal (D.B.) No. 465 of 2001

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[Against the judgment of conviction dated 11.09.2001 and the order of sentence dated 13.09.2001 passed by 1^st Addl. Sessions Judge, Deoghar, in Sessions Case No.27 of 1993]

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Zafruddin Mian, son of Yunus Mian, resident of village Bada Dumaria, Police Station Maslia, District-Dumka .....Appellant

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-VersusThe State of Jharkhand …... Respondent ------------

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PRESENT

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HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant : Mr. Manoj Kumar No.4, Advocate Mr. Raj Vardhan, Amicus For the State : Ms. Vipul Divya, A.P.P

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J U D G E M E N T

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Per, Shree Chandrashekhar, J. Dated: 19^th August, 2019 Oral Order

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The sole appellant has been convicted and sentenced to R.I for ten years and fine of Rs.2,000/- under section 304 Part-I I.P.C.; in default of payment of fine he is directed to undergo R.I for further one year. 2. A First Information Report was lodged on 07.12.1990 under section 302 I.P.C against the appellant on the basis of the fardbeyan of

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Sakiran Bibi, mother of the deceased, namely, Alima Bibi. In the fardbeyan, the informant has stated that about 3 years prior to the incident her daughter -Alima Bibi was married to the appellant. The appellant was sitting idle and, therefore, he was thrown out of his house and he started living with his wife at his in-laws’ place ( sasural ). There also the couple used to fight. The reason for the quarrel between the couple according to the informant was that the appellant not doing any work to earn his livelihood. At about 1:00 p.m on 07.12.1990 when the appellant was sitting in the backyard of the informant’s house a quarrel took place between him and his wife. The informant has stated that at that time her daughter-in-law was also present in the house. They were trying to pacify the appellant, however, he did not listen to them and suddenly brought an Axe ( Tangi) and assaulted Alima Bibi on her head, thrice. In the fardbeyan the informant has asserted that she has seen the incident happening before her eyes.

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After the investigation, a charge-sheet was submitted against the appellant and he was sent up for trial on the charge of committing murder of his wife, Alima Bibi. During the trial, the prosecution has examined 13 witnesses; the informant is P.W.7.

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In the post-mortem examination the doctor has found the following injuries on Alima Bibi :

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“ (1) one incised wound on left temporietal scalp 3 ½” x ½”x cutting the temperoperietal scalp and upper part of left ear through and through with protrusion of cut brain matter.

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(2) one incised wound on posterior and upper part of skull just left to midline on the left perietal scalp 1 ½” x ½” x cutting the left perietal bone.”

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The learned trial Judge has held that there was no pre-meditation and in course of quarrel on a trivial issue the appellant has struck Tangi blows on the head of his wife and, therefore, he is liable to be convicted and sentenced under section 304 Part-I I.P.C.

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Mr. Manoj Kumar No.4, the learned counsel for the appellant, submits that, except the informant, the other two witnesses namely, Asiran Bibi and Noor Jahan Bibi are not the eye-witnesses and admission of the

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Investigating Officer that a sanha was registered on the basis of the information given by Pahaluddin Mian would indicate that the prosecution has suppressed the real version of the occurrence.

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Mr. Raj Vardhan, the learned Amicus, would submit that the so called eye-witnesses – P.W.3, P.W.4 and P.W.7 – are interested witnesses and inconsistency between the ocular evidence and the medical evidence is such that the entire prosecution’s case must fail. 8. The learned Amicus has relied on a decision in “Amar Singh & Ors. Vs. State of Punjab” reported in (1987) 1 SCC 679, to fortify his contentions.

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Ms. Vipul Divya, the learned A.P.P has, however, contended that in view of the consistent evidence laid by the prosecution though P.W.3, P.W.4 and P.W.7, there is no doubt about the appellant having requisite intention to cause death of his wife and while so, his conviction and sentence under section 304 Part-I I.P.C is well-founded.

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Section 300 of Indian Penal Code provides that except in the cases which have been mentioned therein, culpable homicide is murder if the death is caused under any one of the four clauses under section 300 I.P.C. Exception-1 to section 300 I.P.C provides that culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. There are certain conditions attached to Exception-1 to section 300 I.P.C. One of the conditions is that the provocation is not sought or the offender was voluntarily provoked as an excuse for killing or doing harm to any person.

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The cases falling under one of the exceptions under section 300 I.P.C are categorized under two categories. The accused shall be punished under section 304 Part-I I.P.C when it is found that the act by which the death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. However, section 304 Part-II I.P.C is attracted when it is established that the act is done with the knowledge that it is likely to cause death, but without any

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intention to cause death.

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The learned trial Judge has held that the appellant is liable to be convicted and sentenced under section 304 Part-I I.P.C, however, no reason has been recorded by the learned Judge why case of the appellant shall fall under section 304 Part-I I.P.C. The only indication that we gather from the judgment appears under para no.17 which, in fact, records contentions raised on behalf of the appellant.

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It is the prosecution’s consistent case that the appellant has struck three Tangi blows on the head of his wife, however, the post-mortem report would reveal only two head injuries on Alima Bibi. The prosecution witnesses, namely, Habib Mian-P.W.5 and Md. Shoukat Ali-P.W.6 were tendered for cross-examination and Ali Mohammad Rafique-P.W.1 and Wazir Mian-P.W.12 have been declared hostile. P.W.8 and P.W.10 are seizure-list witnesses and P.W.9 as well as P.W.11 are the Investigating Officers in the case. Other witnesses examined by the prosecution are formal witnesses.

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About the cause of death, the post-mortem examination report records that the death was caused due to shock and haemorrhage resulting from the injuries caused to Alima Bibi. The doctor who has conducted post-mortem examination has, however, not been examined. The informant has stated that previously the appellant and his wife used to quarrel and on the fateful day also a quarrel had started at the instigation of his wife. It has come on record that it was Alima Bibi, the wife of the appellant, who started abusing the appellant due to which he became enraged, brought a Tangi and struck blows on her In the above facts, in our opinion, the appellant is entitled for the benefit under Exception-1 to section 300 I.P.C. In the cases falling under Exception-1 to section 300 I.P.C, the number of blows is not important; it may be relevant when the case falls under Exception-4 and it can be a guiding factor on the question of sentence. In the circumstances as portrayed by the prosecution witnesses in which the appellant has assaulted his wife, in our opinion, the appellant cannot be imputed with the requisite intention of causing death of Alima Bibi, however, Tangi blow by the appellant on the head of Alima Bibi must

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impute knowledge to the appellant, but without intention, that his act was likely to cause death.

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Accordingly, we hold that the appellant is liable to be convicted and punished under section 304 Part-II I.P.C. On the question of sentence, in view of two Tangi blows given by the appellant on the head of his wife, the appellant is sentenced to undergo R.I for 7 years with fine of Rs.5,000/-. In default of payment of fine, the appellant shall undergo simple imprisonment for further one year.

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In the result, the judgment of conviction dated 11.09.2001 and the order of sentence dated 13.09.2001 passed by 1^st Addl. Sessions Judge, Deoghar against the appellant in Sessions Case No.27 of 1993 are set-aside.

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Criminal Appeal (D.B.) No. 465 of 2001 is partly allowed.

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The bail-bonds furnished by the appellant are cancelled. He shall surrender before the court-below to serve the remaining sentence.

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The Court appreciates the assistance rendered by Mr. Raj Vardhan, the learned Amicus .

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The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). He shall be paid Rs.5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017.

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Let the lower court records be transmitted to the court concerned forthwith.

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Let a copy of the judgement be communicated to the trial court by FAX.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi, Dated :19^th August, 2019 S.I/ N.A.F.R,

Zafruddin Main v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Zafruddin Main v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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