Rahimbux Vs. State of M.P.  INSC 893 (12 May 2008)
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2008 [Arising out of S.L.P.(Crl.) No.2154 of 2007]
Rahimbux Appellant Versus State of M.P. Respondent
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
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
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
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.
(1981) 4 SCC 245 Kulwant Rai v.
State of Punjab.
(1981) 4 SCC 489 Randhir Singh
alias Dhire v. State of Punjab.
(1983) 2 SCC 342 Jagtar Singh
v. State of Punjab
(1981) 3 S.C.R 658 Gokul Parashram Patil v. State of
2004 (2) SCALE 217 Chowa Mandal & Anr.
V. State of Bihar
(2004) 12 SCC 250 Ramu v. State of U.P.
1995 Supp.(3) SCC 472 Balbir
Singh v. State of Punjab.
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
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
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
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
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
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.
......J New Delhi, [ALTAMAS
KABIR] May 12, 2008.
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