The court held that a conviction under Section 302 can be reduced to Section 304 IPC if the act was committed in the heat of passion during a sudden quarrel.

Per : Justice Vivek Agarwal These appeals are filed by appellants being aggrieved of the Judgment 1 CRA-1257-2012 NEUTRAL CITATION NO. 2024:MPHC-JBP:57127 dated 29.05.2012 passed by learned XIV Additional Sessions Judge, Bhopal in Sessions Case no.526/2010 whereby appellants have been convicted under Section 302/34 of IPC with rigorous imprisonment for life and fine of Rs.10,000/- with default stipulation of additional rigorous imprisonment for 6 months. Appellant no.1-Abrar Hussain has also been convicted under Section 25(1-B)(b) of Arms Act with rigorous imprisonment for 1 year and fine of Rs.1,000/- with default stipulation of additional rigorous imprisonment for 1 month.

2. It is submitted that Salman (PW-1) who was working as a conductor on the said mini bus which was driven by deceased Rafique has turned hostile. He has not supported the prosecution case. Conviction of the appellants is based on the oral dying-declaration given by the deceased to Akil (PW-5), Mohd. Sangir Mansuri (PW-7) and Nasrin (PW-9). It is submitted that all the three accused persons have been implicated whereas incident took place at the spur of moment inasmuch as the bus driven by Rafique bearing registration no.MP-04-NH-8569 was standing in front of Alpana Tiraha opposite Red Sea Plaza Hotel at about 12 noon on 12.06.2010 when appellants came in an auto driven by Khalid and asked Rafique to take his bus forward. When Rafique responded saying that since his way is blocked by vehicles standing ahead of it, he will not be able to move his bus then enraged with such retort, they came out where it is alleged that Sayeed and Khalid exhorted Abrar to kill Rafique. On such exhortation Abrar Hussain took out a knife and gave a blow to deceased Rafique.

3. It is submitted that in MLC (Ex.P-24), Rafique has not taken name 2 CRA-1257-2012 NEUTRAL CITATION NO. 2024:MPHC-JBP:57127 of any of the assailants and it is only mentioned that some unknown pick pocketer had given him a knife blow.

4. It is submitted that Dr. Anup Dave (PW-17) has been examined in this behalf and he had produced original MLC register. Dr. Anup Dave (PW-

17) clearly stated that report was against unknown person and therefore, so called oral dying declaration is not admissible in the eyes of law.

5. It is thus submitted that firstly the conviction of the appellants is not called for and secondly in the alternate, it is submitted that even if conviction is to be maintained then it will be only for Abrar Hussain who was the assailant inasmuch as Mohd. Sangir Mansuri (PW-7) owner of the bus on which Rafique was a driver namely Mohd. Shakil Mansuri has mentioned that Rafique on telephone had said that there was an altercation amongst him on one side and Abrar Hussain @ Kala and Sayeed on the other hand when Abrar Hussain had stabbed him with a knife. Thus, it is pointed out that firstly Mohd. Sangir Mansuri (PW-7) had not taken name of Khalid and secondly the assailant is Abrar Hussain @ Kala. Thus, it is pointed out that injury being caused at the spur of the moment will take the offence under Section 304 Part II of IPC .

6. Shri Manas Mani Verma, learned Government Advocate for the State in his turn supports the impugned judgment of conviction and submits that there is testimony of three witnesses namely Akil (PW-5), Mohd. Sangir Mansuri (PW-7) and Nasrin (PW-9) who have testified that deceased Rafique had given oral testimony. This fact is corroborated from evidence of Dr.

3 CRA-1257-2012 NEUTRAL CITATION NO. 2024:MPHC-JBP:57127 Anup Dave (PW-17) that when injured was brought to him, he was in a position to speak though his condition was serious.

7. It is further submitted that FIR (Ex.P-28) makes mention of all the three accused persons and it was promptly recorded at 14:20 hours, therefore, it cannot be said that it is a case of false implication of the appellants.

8. After hearing learned counsel for the parties and going through the record.

9. Star prosecution witness Salman (PW-1), w