STATE OF RAJASTHAN Vs. GULAM MUSTAFA

JUDGEMENT

(1.) These two appeals arise out of the judgment dated 29.11.80, passed by the Sessions Judge, Jhunjhunu by which the learned Sessions Judge acquitted accused Gulam Mustafa of the offence under Sec. 302 I.P.C. but convicted him for the offence under Sec. 304 Part II, I.P.C. and sentenced him to undergo 21/2 years' rigorous imprisonment and a fine of Rs. 2,500.00 and in default of payment of fine further to undergo 21/2 years' rigorous imprisonment. D.B. Criminal Appeal No. 417 of 1981 has been filed by the State challenging the acquittal of accused Gulam Mustafa of the offence under Sec. 302 I.P.C. while S.B. Criminal Appeal No. 464 of 1980 has been filed by accused Gulam Mustafa challenging his conviction and sentence for the offence under Sec. 304 Part II, I.P.C. As both these appeals arise our of the same judgment, as such they are being disposed of by this common judgment.

(2.) Accused Gulam Mustafa was tried by the learned Sessions Judge, Jhunjhunu, for the offence under Sec. 302 1.P.C. The case of the prosecution is that a Kawwali programme was held in the Dargah of Kamreed Shah at Jhunjhunu on the eve of Urs, which was being celebrated by the Managing Committee of the Dargah. At about 1030 a.m. on 30.1.80, when this Kawwali programme was going-on, accused Gulam Mustafa gave beatings to Sarwar by fisty blows and legs. After receiving the injuries, Sarwar became unconscious. He was taken to PW 4 Hakim Mumtaz Ali by PW 7 Ramjan on his shoulder, who was accompanied by PW 6 Gafoor and PW 1 Mohammed Hussain. PW 4 Hakim Mumtaz Ali, after seeing Sarwar, declared him dead. This incident of giving beatings was witnessed by PW 6 Gafoor, PW 7 Ramzan and other persons, who were present in the Kawwali programme. The prosecution, in support of its case, examined eight witnesses. PW 6 Gafoor and PW 6 Ramzan are the two eye witnesses of the occurrence, who had seen the accused giving beatings to deceased Sarwar by fisty blows and kicks by legs. PW I Mohammed Hussain is the cousin of the deceased, who was informed by PW 6 Gafoor that accused Gulam Mustafa had given beatings to Sarwar, who, after receiving the injuries, had become unconscious. At that time he had gone to see-off some VIPs. who had come to enjoy the Kawwali programme. He, thereafter, proceeded towards the place of the incident and in the way he saw PW 7 Ramzan carrying Sarwar on his shoulder. He thereafter accompanied him to the house of PW 4 Hakim Mumtaz AIL PW 2 Dr. Krishna Kumar is the Medical Jurist, who conducted the post-mortem on the dead body of Sarwar. PW 3 Sukhdeo Singh is the Station House Officerthe Incharge of the Police Station, who arrested the accused. PW 4 Mumtaz Ali is the Hakim, to whom deceased Sarwar was brought by PW 7 Ramzan and PW 1 Mohammed Hussain, who, after seeing Sarwar, declared him dead. PW 8 Leeladhar was the Station House Officer, who conducted the investigation. PW 5 Rashid is the Motbir witnesses to the Memos Ex.P. 3, Ex.P. 4 and Ex.P. 5 while PW 1 Mohammed Hussain is the witness of the Fqrd-Surat-Haal-A-Lash, the site plan and the recoveries of the clothes etc. The learned Sessions Judge, after trial, acquitted accused Gulam Mustafa of the offence under Sec. 302 IPC. but convicted and sentenced him for the offence under Sec. 304 Part II, I.P.C. vide judgment dated 29.11.80. It is against this judgment, convicting and sentencing accused Gulam Mustafa for the offence under Sec. 304 Part II, I.P.C. and acquitting him of the offence under Sec. 302 I.P.C. that the State has filed DJB. Criminal Appeal No. 417 of 1981, while accused Gulam Mustafa has filed S.B. Criminal Appeal No. 464 of 1980, challenging his- conviction and sentence for the offence under Sec. 304 Part II, I.P.C.

(3.) It is contended by the learned Public Prosecutor that from the evidence, produced by the prosecution, the case against the accused for the offence under Sec. 302 I.P.C. is clearly made-out as the injuries inflicted by the accused on the person of deceased Sarwar were intentional and the totality of the established facts and circumstances show that he had the intention to cause death of Sarwar and. with that intention the accused caused that particular fatal injury to Sarwar, which resulted in his death. According to the learned Public Prosecutor, the learned lower Court was, therefore, not justified in acquitting the accused of the offence under Sec. 302 I.P.C. The learned counsel for the accused, on the other hand, has submitted that from the evidence produced by the prosecution, no case under Sec. 302 or 304 Part II, I.P.C. is made out against the accused and it was on the spur of moment that the incident took place and the accused had no intention to kill Sarwar. According to the learned counsel for the accused neither there was any previous enmity nor any serious thing occurred at the time of the occurrence. It has, also, been submitted by the learned counsel for the accused that a number of persons were present in that Kawwali programme but no independent witness has been examined by the prosecution and only the interested and related witnesses have been produced by the prosecution and there is material contradiction in their statements and as such the accused deserves to be acquitted. Alternatively, it is submitted by the learned counsel for the accused that from the evidence produced by the prosecution it is clear that the incident took place at the spur of moment and the injuries inflicted by the accused were not grievous in nature and the prosecution case does not travel beyond Sec. 323 I.P.C.