Govind Mathur, J. - (1.) These two appeals are arising out of the same incident, therefore, both were heard together and are being disposed of by this common judgment.
(2.) By judgment dated 1.5.2007 learned Additional Sessions Judge (Fast Track) No. 1, Bhilwara convicted accused Muzaffar Ali for the offences punishable under Sections 324 and 302 Indian Penal Code and sentenced as under : 324 Indian Penal Code - One year's rigorous imprisonment with a fine of Rs.100/- and in default of payment of fine one month's additional rigorous imprisonment. 302 Indian Penal Code - Imprisonment for life term with a fine of Rs.1,000/- and in default of payment of fine two months additional rigorous imprisonment.
(3.) Accused Jakir Hussain was convicted for the offences punishable under Sections 324/34 and 302/34 Indian Penal Code by judgment dated 30.11.2010 passed by learned Additional Sessions Judge (Fast Track) No. 1, Bhilwara and was sentenced as under : 324/34 Indian Penal Code - One year's rigorous imprisonment with a fine of Rs.100/- and in default of payment of fine one month's additional rigorous imprisonment. 302/34 Indian Penal Code - Imprisonment for life term with a fine of Rs.1,000/- and in default?, payment of fine two months additional rigorous imprisonment. 4. The judgments aforesaid are under challenge in these appeals. 5. The factual matrix necessary to be noticed is that a statement given by Shri Juber son of Jamiluddin before the Circle Inspector Shri Rajendra Singh at Male Surgical Ward, Mahatma Gandhi Hospital, Bhilwara on 30.3.2006 at 11.30 A.M. was reduced in writing and on basis of that a case was lodged at Police Station Kotwali, Bhilwara for investigation of the offences punishable under Sections 302, 307 and 34 Indian Penal Code. As per the statement reduced in writing, at about 11.00 A.M. on 30.3.2006 Juber son of Jamiluddin proceeded on his way by riding on his motorcycle and at that time Muzaffar Ali with a pillion rider was coming from opposite direction on his motorcycle in high speed. On reaching closer, both motorcycles slipped and all the three riders fell down. Muzaffar Ali then abused Juber and indulged in quarrel with him. Muzaffar then brought out a knife from his pocket, his companion caught hold of Juber and then a knife blow was given by Muzaffar on the right arm of Juber. On receiving injury Juber shouted and called his brother Imran. Imran rushed towards him and on coining closer Muzaffar gave a knife blow at the abdomen of Imran. Imran at that time was in caught hold of the Muzaffar's. Both the assailants immediately thereafter fled from the place of occurrence. Imran then was brought to the hospital where he died during the course of treatment. 6. Autopsy on the person of deceased Imran was conduced by a Medical Board that submitted its postmortem report Ex.P-4 (in Cr.Case No. 50/2006). As per the postmortem report (Ex.P-4) the person of deceased Imran was having following antemortem injury : Stab Wound - 1" x 1/z" x entering to abdominal cavity on right side of abdomen in lumbar region, 3" right lateral to umbilicus and vertically oblique in position. Edges sharp cut, inverted blood oozing through it. On Section - Stab wound directed, obliquely, upward mid line posteriorly and open in the abdominal cavity right hypochondrieum region, on inner aspect of abdominal wall with the size of 1" x 1/z". Then wound is traversing through liver, through and through omentum, transverse colon, through and through stomach, amtr., wall with blood collection. Blood collection seen in abdominal cavity and more on right side of abdominal cavity. Nature of wound is dangerous and antemortem in nature, caused by sharp, penetrating weapon. 7. In opinion of the board the cause of death was haemorrhage and shock due to stab wound which caused multi organ injuries in abdominal cavity. 8. Injured Juber was also examined and as per injury report Ex.P-1 (in Cr.Case No. 50/2006) he was having a simple injury by a sharp weapon on his right arm. 9. During the course of investigation Muzaffar Ali was arrested and at his instance a blood stained knife and a motorcycle with blood stained cover were recovered. The articles recovered alongwith clothes worn by the deceased and also by the accused were sent for their serological examination to the Forensic Science Lafwrii Mv, Udaipur and as per Forensic Science Laboratory's report Ex.P-41 (in Cr. Co'u No. 50/2006) the knife recovered, the seat cover of the motorcycle, wearings of the accused and the wearings of the deceased were found with blood stains of human origin. However, their group remain inconclusive. After arrest an identification parade was also conducted in presence of Mrs. Manisha Singh (PW-32), Judicial Magistrate, wherein Smt. Rashida (PW-22) (in Cr. Case No. 50/2006) identified accused Muzaffar. After completing of the investigation a police report was filed against accused Muzaffar and the investigation was kept pending against accused Jakir, as he was absconding. 10. The trial Court charged accused Muzaffar for commission of the offences punishable under Sections 302, 302/34, 307, 307/34, 324 and 324/34 Indian Penal Code. The accused denied the charges and claimed for trial. The prosecution supported its case with the aid of 33 witnesses, out of whom injured Juber (PW-15) and Smt. Rashida (PW-22) were cited as eye-witnesses. Dr. Sunil Upmanyu and Dr. V.D. Sharma adduced medical evidence being members of the Medical Board that conducted autopsy on the person of deceased Imran. Mrs. Manisha Singh (PW-32) came in witness box as under her supervision and presence identification parade was conducted and the accused was identified by Smt. Rashida. Shri Rajendra Singh (PW-31) narrated all the steps taken during the course of investigation being Investigating Officer. An opportunity was given to the accused as per provisions of Section 313 Criminal Procedure Code to explain all the adverse circumstances appearing in the prosecution evidence. He termed the entire evidence as false and concocted. The statements of accused Muzaffar Ali were recorded in defence as DW-1. 11. Learned trial Court after examining the entire record convicted and sentenced accused Muzaffar vide judgment dated 1.5.2007. 12. The other accused Jakir was arrested on 11.2.2008. After arrest he was also subjected to identification parade where Smt. Rashida, Irfan son of Gaffar and Juber son of Jamilludin identified him. After regular investigation a charge- sheet was filed before the Court competent and the accused was charged for commission of offences punishable under Sections 302/34, 307/34 and 324/34 Indian Penal Code. On denial of the charges trial commenced. The statements of eye-witness Juber (PW-9) (in Cr.Case No. 14/2008) and Smt. Rashida (PW-18) were recorded by the trial Court. The Investigating Officer Shri Rajendra came in witness box as PW-33 and he narrated all the steps taken during the course of investigation. Dr. Ajay Narain (PW-34) adduced medical evidence being a member of the board alongwith Dr. Sunil Upmanyu, Dr. V.D. Sharma and Dr. D.L. Kasht that conducted autopsy on the person of deceased Imran. An opportunity was accorded to accused Jakir Hussain to explain the adverse circumstances appearing in the prosecution evidence. In general, he termed the entire prosecution evidence as false with assertion that he was falsely implicated in the case concerned. 13. Learned trial Court after examining the entire evidence convicted and sentenced this accused too. 14. In appeals, the only argument advanced by counsels for the appellants is that even by accepting the entire evidence adduced by the prosecution, the act of the accused appellants does not travel beyond an offence described under Section 304 Part II, Indian Penal Code. 15. While opposing the submission, it is submitted by learned Public Prosecutor that eye witness Juber in quite definite terms stated that accused Muzaffar Ali was having some annoyance with him and, therefore, he intentionally gave a knife blow to him. A stab injury was caused to Imran who intervened in quarrel and that resulted into his death and as such act of the accused persons is nothing but a murder as defined under Section 300 Indian Penal Code. 16. In view of the medical evidence adduced there is no doubt homicidal death of Imran. The participation of the accused persons in the crime is also well established in view of the statements given by the eye witnesses and also duly corroborated by other evidence available on record including their identification and the recovery made at their instance. 17. The only question that requires consideration in these appeals is about the nature of the act of the accused persons? To examine this issue, the statements given by two eye-witnesses i.e. injured Juber and Smt. Rashida are required to be examined in lucid. 18. As per injured witness Juber, he proceeded to his way on his, motorcycle and at that time Muzaffar alongwith his companion was coming from opposite side on his motorcycle in high speed. On coming close, both motorcycles slipped and all the three riders fell down. This falling down resulted into a quarrel. Muzaffar brought out a knife and gave a sharp injury on his arm. On shouting and calling, Imran rushed towards the spot of occurrence and on looking him close Muzaffar gave him a knife blow in abdominal region. At that time, his companion, the other accused Jakir, caught hold of deceased Imran. The other eye-witness Smt. Rashida also narrated the entire incident in same terms. 19. By accepting the version given by the eye-witnesses, it is apparent that there was no premeditation for committing any crime, the entire incident took place due to a minor accident and the knife blow was given by Muzaffar during the heat of moment. There is no evidence available on record to establish that Muzaffar and his companion Jakir were predetermined and they came at the place of occurrence with an intention to kill Imran. In such circumstances, the act of the accused persons is not a murder but an offence described under Section 304 Indian Penal Code. 20. Precisely, the issue now survives is whether the offence committed by the accused persons comes within Part I of Section 304 Indian Penal Code or in its second part. 21. Accused Muzaffar gave a knife blow to Imran and at that time other accused Jakir was holding the hands of Imran. The accused persons may not be having any intention to cause death, but their intention of causing such bodily injury that may cause death is apparent looking to the weapon used and the intensity of the injured caused. As such, the offence committed by Muzaffar is nothing but an offence punishable under Part I of Section 304 Indian Penal Code. The intention shared by accused Jakir is also apparent in view of the statements given by the eye-witnesses. As such, accused Muzaffar is liable to be convicted for an offence punishable under Section 304 Part I Indian Penal Code alongwith the offence punishable under Section 324 Indian Penal Code and accused Jakir is liable to be convicted for an offence punishable tinder Section 304 Part I read with Section 34 Indian Penal Code and the Section 324/34 Indian Penal Code. 22. In view of the findings above, these appeals deserve to be accepted in part. Accordingly, the same are partly allowed. 23. The conviction of accused Muzaffar under the judgment dated. 30.11.2010. 1.5.2007 in Cr. Case No. 50/2006 for the offence punishable under Section 302 Indian Penal Code is modified in a conviction punishable under Section 304 Part I Indian Penal Code. The conviction under Section 324 Indian Penal Code is affirmed. 24. The conviction of accused Jakir under the judgment dated 30.11.2010 in Cr. Case No. 14/2008 for the offence punishable tinder Section 302/34 Indian Penal Code is modified by the conviction under Section 304 Part I read with Section 34 Indian Penal Code. His conviction under Section 324/34 Indian Penal Code is affirmed. 25. The sentence of both the accused appellants for life term is modified by the sentence of rigorous imprisonment for a term of seven years with a fine of Rs.1,000/- each and in default of payment of fine the accused persons are further required to undergo one month's simple imprisonment. The sentence given Muzaffar and Jakir for the offence punishable under Sections 324 and 324/34 respectively is affirmed. The sentences awarded are to be undergone concurrently. Appeal partly allowed.;