Case Note & Summary
The case arose from a water-sharing dispute between family members. On 21 October 2010, the first informant Kalekha (PW 1) was standing at Bazar Patti Chowk in village Kathora Bazar when his brother Sardarkha (deceased) was nearby. The four accused, sons of Shabbirkha, approached Kalekha demanding an extra day of water. Upon refusal, they abused and assaulted him. Accused No. 1 Nasibkha and No. 2 Asifkha left on a motorcycle, then returned. Asifkha caught hold of Sardarkha's neck, and Nasibkha inflicted a knife blow on his right stomach. Accused Nos. 3 and 4 assaulted the first informant with fists. Sardarkha was rushed to Ghati Hospital, Aurangabad, where he was declared dead. An FIR was lodged at Bhokardan police station (Crime No. 117/2010) under Sections 302, 323, 504, 506 r/w 34 IPC. After investigation, a chargesheet was filed on 17 January 2011. The trial court, in Sessions Case No. 56/2011, convicted accused Nos. 1 and 2 under Section 304 Part II r/w 34 IPC, sentencing them to ten years rigorous imprisonment and fine, while acquitting all accused of charges under Sections 302, 323, 504, 506 r/w 34 IPC. Aggrieved, accused Nos. 1 and 2 filed Criminal Appeal No. 225/2012 seeking acquittal or reduction of sentence, while the informant (Appeal No. 241/2012) and the State (Appeal No. 461/2012) challenged the acquittal under Section 302 and sought conviction for murder. At the High Court, the accused’s counsel argued the conviction under Section 304 Part II was improper, and alternatively, for reduced sentence and compensation to the victim, citing Hari Singh v. Sukhbir Singh. The informant and State contended the trial court’s appreciation of evidence was perverse, emphasizing the direct evidence of a fatal knife blow and citing cases on the application of Section 302 IPC. The court heard all parties extensively and framed points for determination including whether the prosecution established guilt of all accused for murder. The judgment, delivered on 5 May 2014, analyzed the evidence but the provided excerpt does not contain the final reasoning or operative order.
Issue of Consideration
Whether the prosecution proved guilt of all accused for causing death of Sardarkha, making them liable for punishment under Section 302 r/w 34 IPC
Law Points
- Conviction under Section 304 Part II IPC when fatal assault occurred in sudden quarrel without premeditation
- distinction between murder and culpable homicide not amounting to murder
- scope of interference in appeal against conviction and acquittal
- power to award compensation to victim under criminal law
Case Details
2014 LawText (BOM) (05) 23
Criminal Appeal No. 225 of 2012, Criminal Appeal No. 241 of 2012, Criminal Appeal No. 461 of 2012
K.U. Chandiwal, V.M. Deshpande
Joydeep Chatterjee, G.K. (Naik) Thigale, Jivan J. Patil, R.S. Shinde
Nasibkha s/o Shabbirkha, Asifkha s/o Shabbirkhan (in Cri. Appeal 225/2012); Kale Khan Sujatkhan Pathan (in Cri. Appeal 241/2012); The State of Maharashtra (in Cri. Appeal 461/2012)
The State of Maharashtra (in Cri. Appeal 225/2012); The State of Maharashtra and Nasib Khan s/o Shabbir Khan & Ors. (in Cri. Appeal 241/2012); Nasibkha s/o Shabbirkha & Ors. (in Cri. Appeal 461/2012)
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Nature of Litigation
Criminal appeals arising from conviction for culpable homicide not amounting to murder and acquittal for murder.
Remedy Sought
Accused appellants sought acquittal or reduction of sentence; informant and State sought conviction under Section 302 IPC.
Filing Reason
Accused were convicted under Section 304 Part II r/w 34 IPC and sentenced to 10 years; informant and State were aggrieved by acquittal under Section 302.
Previous Decisions
Additional Sessions Judge-1, Jalna in Sessions Case No. 56 of 2011 convicted accused Nos. 1 and 2 under Section 304 Part II r/w 34 IPC and acquitted all accused of charges under Sections 302, 323, 504, 506 r/w 34 IPC; accused Nos. 3 and 4 were acquitted of all charges.
Issues
Whether the prosecution is successful to bring home the guilt of all accused persons for causing death of Sardarkha, and consequently they are liable for punishment under Section 302 r/w 34 of the Indian Penal Code.
Submissions/Arguments
Accused’s counsel argued conviction under Section 304 Part II was improper, prayed for acquittal or alternatively reduction of sentence and compensation to victim, relying on Hari Singh v. Sukhbir Singh.
State and informant argued trial court’s acquittal under Section 302 was perverse, evidence showed murderous assault, and relied on cases Virsa Singh v. State of Punjab and others to support conviction for murder.
Judgment Excerpts
Criminal Appeal No. 225 of 2012 is filed by accused no.1 Nasibkha and accused no.2 Asifkha, since they are aggrieved by finding of guilt recorded against them by the learned trial court that they are responsible for committing an offence punishable under Section 304 Part II r/w 34 of the Indian Penal Code and the direction to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/- each and in default to suffer simple imprisonment for six months.
That time, accused no.2 Asifkha caught hold neck of Sardakha (deceased) and accused no.1 Nasibkha gave a knife blow on the right side of his stomach.
Procedural History
On 21.10.2010, an FIR (Crime No. 117/2010) was registered at Bhokardan police station under Sections 302, 323, 504, 506 r/w 34 IPC. Investigation was conducted, a charge-sheet was filed on 17.1.2011, and the case was committed to the Sessions Court. Charges were framed against all four accused. After trial, the Additional Sessions Judge-1, Jalna, on 6.3.2012, convicted accused Nos. 1 and 2 under Section 304 Part II r/w 34 IPC, sentencing them to 10 years rigorous imprisonment and a fine of Rs.5,000 each, and acquitted all accused of the remaining charges. Aggrieved, the accused filed Criminal Appeal No. 225/2012, the informant filed Criminal Appeal No. 241/2012, and the State filed Criminal Appeal No. 461/2012. All three appeals were heard together by the High Court.
Acts & Sections
- Indian Penal Code, 1860: 302, 304 Part II, 323, 504, 506, 34
- Indian Evidence Act, 1872: 27
