Mohd. Ahsan vs The State Of Haryana

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2024 [Arising out of Special Leave Petition (Criminal) No.5460 of 2024 @ D.No.36602 of 2022]

MOHD. AHSAN ...APPELLANT (S)

VERSUS STATE OF HARYANA ...RESPONDENT (S)

JUDGMENT

B.R. GAVAI, J.

1. Leave granted.

2. This appeal challenges the judgment and order dated 09th

October, 2013 passed by the Division Bench of the High Court of

Punjab and Haryana at Chandigarh in Criminal Appeal No. 233-

DB of 2007 wherein the Division Bench dismissed the Criminal

Appeal preferred by the Appellant Mohd. Ahsan and upheld the

Signature Not Verified order of conviction and sentence dated 25th January, 2007 as Digitally signed by Narendra Prasad

recorded by the learned Sessions Judge, Yamuna Nagar Date: 2024.04.25 16:22:49 IST Reason:

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(hereinafter referred to as the ‘trial Court’) in Sessions Case No.

09 of 2005.

3. Shorn of details, the facts leading to the present appeal are

as under:-

3.1 On 18th August, 2005, at about 01:00 a.m., the SHO of

Police Station City Jagadhri, namely, Jai Singh (PW-13), received

telephonic information from P.P. Rakshak Vihar about the death

of one Vikrant @ Chintu (hereinafter referred to as ‘the deceased’)

who had been admitted in Civil Hospital, Jagadhri in an injured

state. On the receipt of the information, PW-13 along with several

other police personnel rushed to the said hospital wherefrom PW-

13 obtained the medico-legal report (Ex.PC) of the deceased and

recorded the statement of Sh. Devi Dayal Sharma (PW-10), the

de-facto complainant. On the basis of the said complaint, the

First Information Report (“FIR” for short) being FIR No. 373 of

2005 was registered at Police Station, City Jagadhri for the

offence punishable under section 302 of the Indian Penal Code,

1860 (“IPC” for short), against the present Appellant.

Subsequently, the post mortem of the deceased was conducted

2 on 18th August, 2005 wherein it was concluded that the cause of

death was shock due to massive haemorrhage in the left plural

cavity which was sufficient to cause death under normal

circumstances.

3.2 The prosecution case is that on 17th August, 2005 at about

11-11:30 p.m., the de-facto complainant (PW-10) had been

taking food at Shiv Dhaba which was situated opposite Bus Stop,

Jagadhri, in the company of Charan Singh and Rajiv Kumar (PW-

12), when another group of four men, namely, Neeraj Gulati (PW-

11), Kamal Kumar, Naresh Kumar and the deceased arrived at

the Dhaba to partake their meals. To attract the attention of the

waiter, the deceased called the waiter by use of the word “hello”.

This gesture irked another customer i.e. the present Appellant

who was seated in a corner of the Dhaba, smoking a cigarette.

The Appellant initially abused the deceased in the name of his

sister and thereafter rose from his seat, walked up to the

deceased and grappled with him. During the said quarrel, the

Appellant and the deceased went out of the Dhaba where they

were separated by the complainant (PW-10) and his companions.

3 However, refusing to relent, the Appellant rushed to his car and

pulled out a glass bottle which he broke on the bonnet of his car

and thereafter proceeded to inflict five injuries on the body of the

deceased, due to which the deceased fell to the ground bleeding,

after which the Appellant fled from the scene. Subsequently,

Neeraj Gulati (PW-11) and the others present at the Dhaba placed

the deceased on the motorbike of PW-11 and rushed him to

Aggarwal Hospital, but owing to the unavailability of a doctor, the

deceased was subsequently taken to the Civil Hospital, Jagadhri,

where he eventually succumbed to his injuries.

3.3 Upon the conclusion of investigation, a chargesheet came to

be filed before the Court of the Additional Chief Judicial

Magistrate, Yamuna Nagar. Since the case was exclusively triable

by the Sessions Court, the same came to be committed to the

Sessions Judge.

3.4 Charges came to be framed by the trial Court for the offence

punishable under Section 302 of the IPC. The Appellant pleaded

not guilty and claimed to be tried.

4 3.5 The prosecution examined 13 witnesses to bring home the

guilt of the accused. In his defence, the Appellant stated that it

was a case of false implication since he had not used the glass

bottle to cause any injury to the deceased; whereas, it was the

deceased who had rushed towards the Appellant with a broken

glass bottle in order to physically assault him, during which

exercise, he had fallen down and had injured his own body with

the said glass bottle.

3.6 At the conclusion of the trial, the trial Court found that the

prosecution had proved the case against the Appellant beyond

reasonable doubt and accordingly convicted him for the offence

punishable under Section 302 of the IPC and sentenced him to

undergo imprisonment for life along with a fine of Rs. 10,000/-.

3.7 Being aggrieved thereby, the Appellant preferred a Criminal

Appeal before the High Court. The High Court by the impugned

judgment dismissed the Criminal Appeal and affirmed the order

of conviction and sentence awarded by the trial Court.

5 3.8 Being aggrieved thereby, the present appeal.

4. This Court vide order dated 14th December 2022 had issued

notice, limited to the question as to whether conviction under

Section 302 of the IPC could be converted to Part I or Part II of

Section 304 of the IPC.

5. We have heard Mr. Jay Kishor Singh, learned Advocate-on-

Record appearing for the Appellant and Mr. Shekhar Raj Sharma,

learned Deputy Advocate General (“D.A.G.” for short), appearing

for the respondent-State.

6. Mr. Jay Kishor Singh submits that even if the prosecution

case is taken at its face value, it would reveal that the incident

occurred out of a sudden fight. It is submitted that there was no

intention of the appellant to cause death of the deceased. It is

submitted that the incident had occurred in a sudden fight

without premeditation, in the heat of passion upon a sudden

quarrel. It is submitted that from the nature of injuries, it would

reveal that the appellant had not taken undue advantage or acted

in a cruel or unusual manner. He therefore submits that the

conviction under Section 302 of the IPC would not be tenable and

6 the offence would be required to be brought under Part I or Part

II of Section 304 of the IPC.

7. Mr. Shekhar Raj Sharma, learned D.A.G., on the contrary,

submits that both the courts, upon correct appreciation of

evidence, have concurrently found the Appellant guilty for the

commission of the offence punishable under Section 302 of the

IPC and the said findings warrant no interference.

8. The prosecution case basically rests on the ocular testimony

of PW10-Devi Dayal son of Sadhu Ram; PW11-Neeraj Gulati son

of Vinod Kumar; and PW12-Rajiv Kumar son of Sham Lal.

9. PW10-Devi Dayal in his evidence stated that he along with

Charan Singh and Rajiv Kumar (PW-12) were sitting at Shiv

Dhaba for taking dinner. In the meantime, Kuldip and Vikrant

@ Chintu (the deceased) and two other boys reached there.

Kuldip then placed orders for the meal. It is stated that, in the

meantime, a car bearing registration No.DL-7729 arrived there

and its driver alighted from his seat. He then objected to the use

of the words made by the deceased Vikrant @ Chintu by abusing

him in the name of his sister. However, PW10 and his associates

7 intervened and separated them. They returned inside the

building of the restaurant but the accused-Appellant and the

deceased were again heard quarreling. When they rushed out to

intervene, the accused-Appellant pulled out a glass bottle from

his car, broke it on the bonnet of his car and caused at least five

injuries on the person of the deceased with that broken glass

bottle. Thereafter, the deceased was taken to the Civil Hospital,

Jagadhri.

10. Similar is the evidence of PW11-Neeraj Gulati. It will be

relevant to refer to the following part of his testimony in the

examination-in-chief.

“I placed the orders for the meals whereafter deceased Vikrant called the waiter by the sound of Hello. It seems that the accused thought that sound was aimed at him and he retaliated by abusing Vikrant in the name of his sister. This was followed by a heated exchange. They then grappled out of the building of the Dhaba.

We intervened to separate them and succeeded. The accused rushed to his car, pulled out a bottle from the driver’s seat side, broke it on the bumper of the car and violently attacked repeatedly victim Vikrant.”

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11. Similar is the evidence of PW12-Rajiv Kumar.

12. PW1-Dr. Vikash Kaushik had examined the deceased

Vikrant, who was brought in an unconscious condition. He

found the following injuries on the injured Vikrant:-

“1. Lacerated wound 5cm x 4 cm x bone deep on left side of chest 7 cm from mid-line.

2. Lacerated wound 5cm x 3 cm bone deep on dorsomedial aspect of left arm and elbow joint.

3. Lacerated wound 4cm x 2cm x bone deep on anterior aspect of right shoulder joint and adjoining area of chest.

4. Lacerated wound 2 cm x 1 cm x bone deep on the medial wall of right axilla.

5. Punctured wound 1cm x .5cm x bone deep on left side of chest.”

13. From the testimonies of the prosecution witnesses

themselves, it would reveal that there is no premeditation. The

incident occurred since the appellant believed that the utterances

by deceased Vikrant @ Chintu were aimed at him and, therefore,

9 he retaliated by abusing the deceased. This was followed by a

heated exchange between them. They grappled out of the

building of the Dhaba. Though the witnesses were successful in

separating them, the accused-Appellant rushed to his car, pulled

out a bottle from the driver’s seat side, broke it on the bumper of

the car and attacked the deceased.

14. It is thus clear that the incident occurred without

premeditation, in a sudden fight, in the heat of passion and upon

a sudden quarrel. The evidence would also not show that the

accused-Appellant had either taken undue advantage or acted in

a cruel or unusual manner. We therefore find that the present

case would fall under Exception 4 to Section 300 of the IPC.

15. We therefore find that the present appeal deserves to be

partly allowed. The conviction of the accused-Appellant under

Section 302 of the IPC is altered to one under Part I of Section

304 of the IPC and he is sentenced to rigorous imprisonment for

a period of eight (08) years and a fine of Rs.5,000/- (Rupees Five

thousand) and in default of payment of fine, a further

imprisonment for a period of three (03) months.

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16. Needless to state that the period already spent by the

accused-Appellant in custody shall be set-off against the

aforesaid sentence.

17. The appeal is partly allowed in the above terms.

…….........................J. [B.R. GAVAI]

…….........................J. [ARAVIND KUMAR]

…….........................J. [SANDEEP MEHTA] NEW DELHI;

APRIL 25, 2024

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