MOHD. RAFIQ @ KALLU versus THE STATE OF MADHYA PRADESH

Citation: [2021] 9 S.C.R. 163 · Decided: 15-09-2021 · Supreme Court of India · Bench: K.M. JOSEPH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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MOHD. RAFIQ @ KALLU
v.
THE STATE OF MADHYA PRADESH
(Criminal Appeal No. 856 of 2021)
SEPTEMBER 15, 2021
[K. M. JOSEPH AND S. RAVINDRA BHAT, JJ.]
Penal Code, 1860 – s.302 and s.304 – Prosecution case that
Sub-Inspector (SI) motioned a truck, driven by the accused/
appellant, to stop – Instead of applying brakes, the accused tried
to speed away, upon which SI boarded the truck from its left side –
It was alleged that the appellant warned SI not to do so and that he
would get killed – Nevertheless, SI boarded the truck – Appellant
pushed him, as a result of which SI fell off the truck and he was run
over by the rear wheels of the truck – SI died – Appellant fled with
the truck – However, later he was arrested and charged with
committing murder – The Trial Court convicted the appellant as
charged and sentenced him to rigorous imprisonment for life – The
High Court confirmed his conviction u/s.302 IPC – On appeal, held:
No motive or animus against the deceased was proved – A general
expression of the extreme threat, (without any real intention of
carrying it, since the truck was not laden with any contraband or
was not used for any illegal or suspect activity), cannot be given
too much weight– It was established that SI did fall off the truck,
which continued its movement, perhaps with greater rapidity –
However, this does not prove that the appellant, with deliberate
intent, drove over the deceased and he knew that the deceased would
have fallen inside, so that the truck’s rear tyre would have gone
over him – The act resulting in SI’s death was not pre-meditated –
The instinctive reaction of the appellant was to resist; he
disproportionately reacted, which resulted in the deceased being
thrown off the vehicle – Such act of throwing off the deceased and
driving on without pausing, appears to have been in the heat of
passion, or rage – On facts, the appellants should be convicted for
the offence punishable under the first part of s.304 IPC, as he had
the intention of causing such bodily harm, to the deceased, as was
likely to result in his death – The conviction recorded by the courts
below, is altered to one u/s.304 Part I, IPC – The sentence too is
[2021] 9 S.C.R. 163
163
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SUPREME COURT REPORTS
[2021] 9 S.C.R.
therefore modified – Instead of rigorous imprisonment for life, the
appellant is hereby sentenced to 10 years’ rigorous imprisonment.
Allowing the appeal, the Court
HELD: 1. On the facts of this case, there can be no serious
dispute that the prosecution established the main elements of its
factual allegations: the receipt of information of the breaking of
the forest barrier; positioning of the deceased Sub-Inspector (SI),
with a posse of policemen on the road; the identification of the
appellant, as one who drove the truck; gesturing by the deceased
to the appellant to stop the truck; the latter slowing down the
vehicle; attempt by the SI to board the vehicle, and his being
shaken off the truck, on account of the driver refusing to stop,
and, on the other hand, speeding the vehicle. Even if the
prosecution version that the appellant having threatened to kill
the deceased were to be accepted, one cannot set much store by
it, because no motive or no animus against the deceased was
proved. A general expression of the extreme threat, (without any
real intention of carrying it, since the truck was not laden with
any contraband or was not used for any illegal or suspect activity),
cannot be given too much weight. What is of consequence, is
that upon the deceased falling off the truck, the appellant drove
on. Here, the prosecution established that the truck was driven,
without heed; however, it did not establish the intention of the
driver (i.e. the appellant) to run over the deceased. This point,
though fine, is not without significance, because it goes to the
root of the nature of the intention. Did the appellant intend to kill
SI? This Court thinks not. Clearly, he knew that SI had fallen off;
he proceeded to drive on. However, whether the deceased fell in
the direction of the rear tyre, of the truck, or whether he fell
clear of the vehicle, has not been proved; equally it is not clear
from the evidence, that the appellant knew that he did. What was
established, however was that he did fall off the truck, which
continued its movement, perhaps with greater rapidity. This does
not prove that the appellant, with deliberate intent, drove over
the deceased and he knew that the deceased

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