Rahimbux vs State Of M.P

Rahimbux Appellant

Versus

State of M.P. Respondent

J U D G M E N T

A.K. MATHUR, J.

1. Leave granted.

2. This appeal is directed against the order dated

2.9.2005 passed by the Division Bench of the Madhya

Pradesh High Court whereby the Division Bench of the High

Court has affirmed the conviction of the accused-appellant

under Section 302 of the Indian Penal Code and under

Section 323 of the Indian Penal Code (hereinafter to be

referred to as `I.P.C') read with Section 25 of the Arms

Act and sentence imprisonment for life and payment of fine

of Rs.500/- in default to suffer further imprisonment for a

period of two months under Section 302 of the I.P.C., and

simple imprisonment for a period of three months under

Section 323, I.P.C. and Section 25 of the Arms Act on each

count and directed that both the sentences to run

1 concurrently. Aggrieved against this order the present

appeal was filed by the accused. Notice was given on the

limited question of the offence.

3. Brief facts which are necessary for disposal of

this appeal are that Aslam Khan, P.W.1 lodged a report to

the effect that on 8.6.1998 at about 4.00 P.M. the

appellant was quarrelling with his father-in-law.

Therefore, he tried to intervene by persuading the

appellant not to beat the old person. Being annoyed, the

appellant inflicted injury on him by piece of brick. After

receiving this injury, P.W.1 ran away from that place.

Thereafter, the appellant went to his house and came out

with a sword and chased him to cut him with the sword but

somehow he escaped and did not come within his reach. His

brother, Rehman Khan who was standing in front of the house

was attacked by the appellant with the sword which caused

abdominal injury with intestine coming out of the wound.

The deceased Rehman Khan was immediately shifted to the

Hospital along with Aslam Khan. Dr. M.P. Garg, on

examination found an incised wound in the abdominal region

of Rehman Khan and the doctor immediately shifted him to

the operation theatre for treatment by surgical specialist.

Aslam Khan was also treated for his injuries sustained by

the brick. Subsequently, Rehman Khan succumbed to his

2 injuries. A panchnama was made and the dead body was sent

for post-mortem. It was found that the deceased had incised

wound 1 =" X3/4"X cavity deep on abdominal region near

umbilical cord. Subsequently, during the investigation the

sword in which the deceased was attacked was recovered.

After completion of the investigation, challan was filed

against the accused. Learned Sessions Judge after

conclusion of the trial convicted the accused-appellant

under Section 302, I.P.C., Section 323, I.P.C. and Section

25 of the Arms Act and sentenced him as aforesaid.

Thereafter, an appeal was preferred before the High Court.

The Division Bench of the High Court affirmed the

conviction of the accused- appellant. Hence, the present

appeal. The limited question to be examined is with regard

to the nature of offence.

4. Learned counsel for the appellant strenuously

urged before us that there is only one injury caused to the

deceased. Therefore, it does not fall under Section 302,

I.P.C. but at best it would fall under Section 304-I or

Section 304-II of the I.P.C. as the accused did not inflict

any second injury and secondly, the accused did not intend

to cause any injury to the deceased so as to cause his

death. The accused in fact wanted to attack Aslam Khan but

since Aslam Khan was out of reach, therefore, he inflicted

3 the injury to his brother, Rehman Khan who was standing

there. The accused- appellant did not intend to cause

death to the deceased and as such the case does not fall

within the parameters of Section 302,I.P.C. and at best it

can be under Section 304-II, I.P.C. In support of this

contention, learned counsel cited the following decisions

of this Court.

i) (1981) 4 SCC 245 Kulwant Rai v. State of Punjab.

ii) (1981) 4 SCC 489

Randhir Singh alias Dhire v. State of Punjab.

iii) (1983) 2 SCC 342 Jagtar Singh v. State of Punjab

iv) (1981) 3 S.C.R 658

Gokul Parashram Patil v. State of Maharashtra

v) 2004 (2) SCALE 217 Chowa Mandal & Anr. V. State of Bihar (Now Jharkhand)

vi) (2004) 12 SCC 250 Ramu v. State of U.P.

vii) 1995 Supp.(3) SCC 472 Balbir Singh v. State of Punjab.

viii)[1958]S.C.R. 1495 Virsa Singh v. The State of Punjab.

Learned counsel for the appellant has tried to seek support

on the aforesaid decisions to show that in fact the accused

in the present case did not intend to cause fatal injury to

4 the deceased and it was only a single blow not intended

to cause the death but intended to attack the other

brother, Aslam Khan who was out of reach. As against this,

learned counsel for the State supported the judgment of the

High Court.

5. We have bestowed our best of consideration to the

facts of the present case. There is no two opinion that the

present injury was inflicted on the deceased as supported

by P.W.l and the testimony of P.Ws.2 & 3 and the medical

evidence corroborated by recovery of sword. Therefore, so

far as the voluntarily causing injury to the deceased by

the accused is concerned, there is no two opinion and the

same has been fully substantiated by the relevant evidence.

In fact, the only question is whether offence under Section

302, I.P.C. is made out of Section 304-I, or 304-II I.P.C.

is made out. It is a fact that the accused was chasing

Aslam Khan and when he was out of his reach, the accused

went to his house and brought out a sword to attack Aslam

Khan but somehow, Aslam Khan managed to escape from the

spot. But unfortunately, his brother- the deceased was

standing in front of his house and the accused on his

failure to cause the serious harm to Aslam Khan gave the

murderous blow to the deceased which ultimately became

fatal. So far as the intention of the accused is concerned,

5 it is more than apparent that he went to his house and

brought a sword and wanted to chase Aslam Khan. Therefore,

the intention of the accused is apparent, he intended to

inflict serious injury to Aslam Khan but unfortunately on

his failure he made the deceased a victim. Therefore, from

this his intention is apparent. Nobody, chases person with

sword for any benevolent purpose. It is unfortunate,

instead of causing the death of Aslam Khan the accused

caused the death of his brother. It is nothing but change

of malice from one brother to another brother. From these

facts we are of opinion that it is not a case in which the

benefit of Section 304-I, I.P.C. or Section 304-II, I.P.C.

can be given to the accused. One has to see the intention

and the intention of the accused in the present case is

more than apparent that he chased Aslam Khan with sword and

on his failure to catch hold of Aslam Khan with sword he

caused the death of an innocent bystander who has not

given any provocation to the accused for the murderous

act. It is the intention which was predominantly present

in his mind when the accused chased Aslam Khan and

therefore, this intention he satisfied by inflicting the

murderous blow on the deceased on his vital part of body.

Therefore, under these circumstances, we are of opinion

that the conviction of the appellant under Section 302,

I.P.C. is well founded and there is no ground to interfere

6 in this appeal.

6. Learned counsel for the appellant has invited our

attention to the various decisions which have been cited

above. Each case depends on its facts and therefore, the

decisions cited above will not render any assistance to

learned counsel for the appellant. So far as converting the

case from Section 302, I.P.C. to Section 304-I or 304-

II,I.P.C. is concerned, each case has its peculiar facts

and justification for converting the offence from Section

302,I.P.C. to Section 304-I or Section 304-II, I.P.C.

However, so far as the present case is concerned, we are

satisfied that the intention of the accused is more than

apparent when he chased Aslam Khan after taking out a sword

from his house and since he could not succeed to cause

injury on Aslam Khan he diverted his malice on his brother

an innocent person who was present & gave no cause to this

accused. Therefore, under these circumstances, we do not

find any merit to convert the offence under Section

302,I.P.C. to either Section 304-I, I.P.C. or Section 304-

II, I.P.C. Consequently, there is no merit in the present

appeal and the same is dismissed.

7 .....................................J

[A.K.MATHUR]

..............................

......J New Delhi, [ALTAMAS KABIR] May 12, 2008.

8