Murder Not Premediated’: HC modifies conviction of man who was convicted under S. 302 IPC for murder after being called 'Kafir’

The Allahabad High Court recently comprising of a bench of Justice Dr. Kaushal Jayendra Thaker and Justice Ajai Tyagi modified the conviction of a murder accused from Section 302 IPC to Section 304 Part 1 IPC as it noted that the culpable homicide was committed without premeditation on being called a Kafir (meaning thereby the person who does not believe in religion). (Javed v. State of U.P)

The bench modified the conviction of one Javed as it stressed that the incident had occurred because of the deceased calling him (accused/appellant) a Kafir cannot be said that it was a premeditated murder.

Facts of the case

The appeal was preferred against the judgment and order passed by the learned Additional District and Sessions Judge in  State of UP vs. Javed under Section 302 IPC, whereby the appellant was convicted and sentenced for the offence under Section 302 IPC for life imprisonment with a fine of Rs.5,000/- and in to further go three years rigorous imprisonment.

Javed was convicted by the trial court for commission of offence under Section 302 IPC. During the pendency of this appeal, he was enlarged on bail as he spent six years in jail. Recently on his nonappearance before the Court, Javed was arrested and he has been lodged in jail since 23.09.2019 in compliance of the order dated 13.09.2019.

The brief facts of the case gave rise to this appeal are that a first information report was lodged on the basis of a written report submitted by the informant Mohd. Maksood Khan. The allegations of FIR are that a lady relative of the informant came to his house and made some inquiry with regard to the divorce of Rafat. There was some altercation with the accused Javed and he was scolded by his father, mother and relative. During this altercation, Javed uttered bad words regarding Quran Sharif. Father of the informant said that a person who does not believe in the Quran is called Kafir (person who has no respect for religion). Javed threatened the father of the informant. The informant and his father were going to their house at about 02 P.M. when they reached in front of the shop of J.K. Tailors, Javed came there with a country-made pistol and fired at the father of the informant who fell there. Javed ran away intimidating the informant. Informant took his father to the hospital but he died on the way.

Contention of the Parties

Learned counsel for the appellant submitted that appellant has been falsely implicated in this case. The motive alleged in the FIR is false and it is fabricated to strengthen the prosecution case only. He is innocent. It was vehemently submitted by learned counsel that P.W.1 is son of the deceased and P.W.2 is wife of the deceased. Both are related and interested witnesses. No independent witness is produced by the prosecution. It is next submitted by learned counsel that accused was not arrested on the spot. With regard to the recovery of country-made pistol from the possession of the appellant, learned counsel submitted that the recovery of country-made pistol is planted. No recovery is made from the possession of the appellant. It was further submitted that no independent witness of recovery is produced before the trial court. Learned trial court has not appreciated the evidence on record in right perspective.

Per contra, learned AGA submitted that appellant is named in FIR as single accused. It was next submitted that the FIR was lodged promptly without delay and there was no reason with the informant to implicate the accused falsely. Learned AGA further submitted that appellant is the single accused in this case and no person would implicate any person falsely while leaving the real assailant scot free. There is no previous enmity between informant and the appellant, hence informant had no reason for false implication. Learned AGA further submitted that the weapon used in the crime is recovered on the pointing out of the appellant. Hence, the learned trial court has not committed any error in convicting the appellant.

Courts Observation and order

The bench at the very outset observed, "We have no doubt in our mind that the son in his haste and fury as he was called Kafir (meaning thereby the person who does not believe in religion) by father, got infuriated and in that haste, fired one gunshot. The case would fall within Section 304 Part I though the incident occurred later on provocation was in the first incident which had taken place as narrated in the FIR. We held the accused guilty for commission of offence as the local-made firearm was also recovered at his behest from the place which was only known to him.

In that view of the matter, we concur with the learned counsel for the appellant to reduce the sentence. The incident had occurred because of his father calling him a Kafir cannot be said that it was a premeditated murder. On the contrary, the learned judge has given benefit of doubt to him as far as Section 25 of the Arms Act is concerned but held him guilty in Section 302 IPC."

The bench taking note of the facts of the case and relying on a number of similar judgment remarked, "On overall scrutiny of the facts and circumstances of the case coupled with the opinion of the medical officer and considering the principle laid down by the Hon'ble Apex Court in the case of Tuka Ram and others vs. State of Maharashtra [(2011) 4 SCC 250] and in the case of BN Kavadakar and another vs. State of Karnataka [1994 Supp (1) 304], we are of the considered opinion that the offence would be punishable under Section 304 (Part-I) IPC.

From the upshot of the aforesaid discussions it appears that the death caused by the accused persons was not pre-meditated. Hence the instant case falls under the exceptions (1) and (4) to Section 300 of IPC. While considering Section 299 IPC, offence committed will fall under Section 304 (Part-I) IPC."

The bench allowing the appeal remarked, "The alternative prayer made by the learned counsel for appellant is accepted. The accused-appellant is held guilty under Section 304 (Part-I) of IPC. In our view, sentence of seven years rigorous imprisonment would serve the ends of justice. The appeal is liable to be allowed in part. Appellant is held guilty for commission of the offence under Section 304 (Part-I) IPC instead of offence under Section 302 IPC.

Hence, the conviction and sentence awarded to the appellant for the offence under Section 302 IPC is converted into the offence under Section 304 (Part-I) IPC and appellant is sentenced for seven years rigorous imprisonment and fine of Rs.5,000/-. The appellant shall undergo further simple imprisonment for three months in case of default of fine."

Read Judgment; 

 

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