J u d g m e n t

(Delivered on 10.08.2021)

Per Vivek Rusia, J:

Appellant has filed the present appeal being aggrieved by the judgment dated 31.01.2009 passed by 11th Additional Sessions Judge, Indore in Sessions Trial No.465/07 whereby he has been convicted under section 302 IPC and sentenced to undergo life imprisonment with fine of Rs.500/-; in default of payment of fine, further RI for three months.

2. As per prosecution story complainant Mohd. Liyakat Kha lodged an FIR on 31.8.2007 near about 8 P.M that his uncle Mohd. Akram r/o Tanjeem Nagar, Murgi Kendra Ki Gali Kona Khajrana was engaged in the sale of eggs in front of his house. When Mohd. Akram was standing in front of his house his relative the appellant Irfan came on a motorcycle and took his uncle Mohd. Akram at one side of the Egg Stall and after some altercation followed by scuffle between Irfan took out a knife from his pocket and his two associates Moin and Ramu caught hold him and Irfan stabbed knife on his stomach.

Thereafter they fled away from the spot from motorcycle . He was admitted in the Life Line Hospital. The FIR was registered as Ex.P/6. After the death of Mohd. Akram postmortem was carried out. The spot map was also prepared. The statement of witnesses was recorded and the accused were arrested. The charge sheet was filed against Ramu before the juvenile Court, but he was found more than 18 years of age, therefore, he was tried along with other two accused. Learned Sessions Court framed charge under section 302 read with section 34 against all the 3 accused. They abjured their guilt and pleaded for trial. 3. The prosecution has examined 15 witnesses and got exhibited 20 documents as Ex.P/1 to P/20. In defence the accused did not examine any witness but got exhibited 5 documents as Ex.D/1 to D/5 in the cross examination of PW/3.

4. After evaluating evidence came on record, learned ASJ has acquitted Moin and Ramu under section 302 read with section 34 IPC and convicted and sentenced the appellant as stated herein above, hence the present appeal before this Court.

We have heard learned counsel for the parties and perused the record.

5. Although learned counsel has assailed the impugned conviction and sentence on merit but by way of alternate submission, he has submitted at the most the case against the appellant would not fall under section 302 IPC as there was no premeditation and out of sudden provocation during scuffle the appellant has inflicted one stab injury to the deceased which turned into fatal and at the time of incident he was a youth of 21 years of age with no criminal past. He had no intention to cause the death of Mohd. Akram, therefore, the charge may kindly be converted from 302 to 304 Part II IPC and the sentence be reduced from life imprisonment to the period already undergone as he is in jail since 02.09.2007 and completed more than 14 years jail sentence. He has spent the best period of his life in the jail, therefore, as a reformative approach also he may kindly be released from jail.

6. Learned Govt. Advocate has opposed the aforesaid prayer by submitting that the prosecution has successfully proved the charge under section 302 IPC against the appellant beyond reasonable doubt. He has inflicted stab injury on the vital part of the body with the intention to kill him. The eyewitnesses have fully supported the case of the prosecution, hence no leniency is liable to be shown and it is not a case of culpable homicide not amounting to murder and the appeal is liable to be dismissed.

7. So far the case of death of the deceased is concerned as per the postmortem report the death was due to shock and hemorrhage as a result of stab injury in the abdomen. The injury was caused by hard, sharp, and pointed object sufficient to cause death. The medical report has been proved by PW/1 Dr.N.M.Unda PW/1 who conducted the postmortem. There is no serious challenge to the finding recorded by the trial Court that Mohd. Akram died because of the injury sustaine