IMPORTANT POINT
In case of sudden fight without prior concert or common intention to commit a murder, section 302 IPC is not attracted.

JUDGMENT :

L. Nageswara Rao, J.

The Appellant in Criminal Appeal No.430 of 2014 was convicted for an offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) and sentenced to life imprisonment. The Appeal preferred by him was dismissed by the High Court. The Appellants in Criminal Appeal Nos.458-459 of 2014 who were tried along with the Appellant in Crl. Appeal 430 of 2014 were acquitted by the Trial Court. Their acquittal was challenged by the State and the wife of the deceased before the High Court. The High Court reversed the acquittal and convicted them under Section 302 and sentenced them to life imprisonment. Aggrieved by the judgment of the High Court, the Appellants have filed the above Appeals.

2. An FIR was registered at 11:45 am on 11.01.2010 on the basis of statement given by Sadiq Hussain Majloom Jafri (PW-3). As per the FIR, Sarfraj Akbar Syyed who was a resident of Jamkhed, District Ahmednagar was eking out his livelihood by selling goggles and spectacles. Sadiq Hussain Majloom Jafri (PW-3) along with his cousin Jafar Ali (PW-4) reached Ahmednagar at 10:00 am on 09.01.2010. They spent the whole day selling goggles at Ahmednagar and spent the night in a hotel. They continued their activity of selling goggles during the day time on 10.01.2010 also. On the night of 10.01.2010, they were joined by their maternal uncle Sarfraj and all of them stayed at a lodge. At 09:00 am PW-3, PW-4 and Sarfraj reached Chaudhari Dhaba at Nagar Manmad road, Tal. Nagar, Ahmednagar. They made an attempt to sell the goggles to the truck drivers at the dhaba, in vain. They sat on a cot in front of the dhaba and were having tea. The Appellants reached the dhaba and asked Sarfraj to step aside as they wanted to speak to him. Sarfraj went with the Appellants to the rear side of the dhaba. After some time PW-3 and PW-4 heard abuses and shouts from the back side of dhaba and they rushed to see what was happening. They saw Sigva Ali (A-4) and Javed Ali (A-3) catching hold of the hands of Sarfraj. Sikandar Ali (A-1) attacked Sarfraj with a knife on the left side of his neck. They also saw Shahajan Ali (A-2) abusing Sarfraj and assaulting him by giving him fist blows. PW-3 and PW-4 started shouting for help and caught hold of A-1 and A-2 not permitting them to escape. A-3 and A-4 ran away from the spot. PW-7 who was working at the dhaba also witnessed the incident. On receipt of information, the police reached the place of occurrence within half an hour. A-1 and A-2 were taken into custody by the police. PW-3 and PW-4 took Sarfraj to the Civil Hospital, Ahmednagar in an auto rickshaw. At 11:30 am, the doctor examined Sarfraj and declared him dead. Thereafter, PW-3 and PW-4 went to the MIDC Police Station and reported the incident.

3. The Post-mortem was conducted by Dr. Sandhya Deorao Chavan (PW 8) at the Civil Hospital, Ahmednagar at 2.30 pm. The external injury found on the dead body was described as follows in the post-mortem certificate issued by PW 8 :-

“1/-Deep incised wound on left side of neck at corotidregion, horizontal, slightly curved laterally 3” length, 1” in breadth and 2.1/2” in depth. Deeper on lateral aspect than medical aspect. Edges are well defined clean and everted and deeply stained. Sprouting of blood seen on left side of chest, shoulder and back. Carotid vessel torn and retracted on left side.”

4. The cause of death was haemorrhage shock due to rupture of right carotid vessel. Charge-sheet was filed against all the four accused and thereafter charges were framed for an offence punishable under Section 302 read with Section 34 IPC. The Trial Court convicted the Appellant in Criminal Appeal No. 430 of 2014 for an offence punishable under Section 302 and sentenced him to life imprisonment. The other accused who are Appellants in Criminal Appeal Nos. 458-459 of 2014 were acquitted by the Trial Court. As stated earlier, the conviction and sentence of the Appellant in Criminal Appeal No. 430 of