The absence of intent to kill led to the reclassification of charges from murder to culpable homicide not amounting to murder.

JUDGMENT

(Delivered on this 11th the day of January, 2019)

Per : Rajeev Kumar Shrivastava,J .

This criminal appeal has been preferred against the conviction and sentence passed by Ninth Additional Sessions Judge, Bhopal in Sessions Trial No.367/2008 on 21.07.2009, by which the appellants Madhukar, Suresh and Rajendra have been convicted for offences under Sections 450 and 302 of IPC and sentenced to rigorous imprisonment of five years with fine of Rs.500/- each and life imprisonment with fine of Rs.500/- each respectively, with default stipulation, and appellant Yashoda Bai has been convicted for offence under Section 302 /34 of and sentenced to life imprisonment with fine of Rs.500/- with default stipulation. All the sentences were directed to run concurrently.

(2) The prosecution’s case, in short, is that one Mohd. Sharif Khan lodged First Information Report on 22.3.2008 at 11-50 hours in the Police Station Jahangirabad, District Bhopal that on the date of incident, i.e., 22.3.2008 at about 10-15 am Shakeel was sleeping in the room and appellants Madhu, Gadhu and Suresh, who are real brothers, were celebrating Holi with colours. There were utensils belonging to the complainant kept near the tap. He objected to the act of appellants/accused of spreading over the colours on the complainant's utensils then the appellants/accused were uttering obscene words. The complainant tried to stop them from committing such act. On account of that, appellant-Madhu @ Madhukar told to his mother Yashodabai to bring knife, thereafter the accused persons hit the door of the complainant's house and appellants Madhu, Gadhu and Suresh entered into the house of the complainant and mother of the accused Madhu, that is Yashodabai was standing outside the house. Appellant/accused Madhukar stabbed Shakeel with knife and remaining accused Gadhu and Suresh started beating Shakeel with kicks and fists. At the time of incident complainant's wife Ishratjahan came inside the room and neighbours Vakeel, Bablu and some other persons also came at the place of incident. Due to injuries, his son Shakeel became unconscious and Saleem and Parvej took Shakeel to the Pupils Hospital. It is also alleged that the appellants/accused persons caused injuries to Shakeel to commit his death. After due investigation, the charge sheet was filed before the Chief Judicial Magistrate Bhopal, who committed the case to the Court of Session and thereafter it was transferred to Ninth Additional Sessions Judge, Bhopal.

(3) The appellants abjured their guilt. They have specifically mentioned that due to previous enmity they have been falsely implicated in the matter. The appellants examined two defence witnesses DW1- Navneet, who stated that on the date of incident he was in his house. He also stated that there was previous enmity between the parties. Another defence witness DW2-Anand Kaithwar admitted in his cross-examination (para 4) that he is not knowing anything about the incident.

(4) The prosecution examined as many as 12 witnesses, namely, Dr. Ashok Sharma (PW-1), Sharif Khan (PW-2), Mohd. Shakeel (PW-3), Farid (PW-4), Dr. Ashutosh Singh (PW-5), Ishratjahan (PW-6), Shanu (PW- 7), Ramesh Kumar (PW-8), Salim (PW-9), Sunil Sharma (PW-10), Pawan Mishra (PW-11) and Vakeel Ahmed (PW- 12).

(5) The trial Court after considering the evidence adduced by the parties, mainly on the evidence of Sharif Khan (PW-2), Ishratjahan (PW-6), Shanu (PW-7) and Salim (PW-9), convicted and sentenced the appellants as mentioned above.

(6) Learned counsel for the appellants/accused has submitted that on the date of incident Holi was being celebrated by many persons. They were using colours and mud. At that time, all of sudden some persons came and assaulted by knife on Shakeel. Shak