LexRAHIMBUX versus STATE OF M.P.
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[2008] 8 S.C.R. 213 _).. RAHIM BUX A V. STATE OF M.P. (Criminal Appeal No.861 of 2008) MAY 12, 2008 B [A.K. MATHUR AND ALTAMAS KABIR, JJ]. Penal Code, 1860 - ss. 302, 323, 304-1 and 304-11- Al- teration of conviction u/s. 302 to s. 304-1 ors. 304-11- Tenabil- ity of - Accused chasing ifl'lformant with sword and on his fail- c ure to catch him, he caused fatal injury to informant's brother who was standing there - Conviction u/ss. 302 and 323 by courts below - Held: Case for alteration of conviction from s. 302 to s. 304-1 or 304-11 not made out- Intention was predomi- nantly present in the mind of accused when he chased infor- D mant to inflict serious injury to him and he satisfied his inten- tion by inflicting murde1ous blow on informant's brother-inno- cent bystander who did not provoke the accused for murder- ous act - Thus, conviction u/s 302 justified. According to the prosecution case, on the fateful day E when appellant was quarrelling with his father-in-law, in- formant-AK intervened to save him. Thereafter, appellant inflicted injury to AK and chased him but AK ran away. ~ Appellant went to his house and came out with a sword and chased AK to attack him. AK managed to escape but F his brother was standing there. Appellant attacked him with a sword and caused him fatal injury. AK-PW-1 lodged an FIR. lnvestigation·was carried out. Trial court convicted the appellant u/s.302, 323 IPC rlw s. 25 of the Arms Act and sentenced him accordingly. High Court upheld the G -/>. conviction. Hence the present appeal. Appellant contended that the accused did not intend to cause fatal injury to the deceased; and that it was only a single blow not intended to cause the death but intended 213 H 214 SUPREME COURT REPORTS [2008] 8 S.C.R. ..... A to attack the other brother who was out of reach, thus it did not fall u/s 302 but would fall u/s 304-1 or s.304-111.P.C. Dismissing the appeal, the Court HELD: 1.1 There is no two opinion that the present B injury was inflicted on the deceased as supported by AK- PW-1 and the testimony of PWs. 2 and 3 and the medical ~ evidence corroborated by recovery of sword. Therefore, so far as the voluntarily causing injury to the deceased by the accused is concerned, there is no two opinion and c the same has been fully substantiated by the relevant evidence. (Para 5) [218-B-C] 1.2 The intention of the accused is more than appar- ent that he went to his house and brought a sword and wanted to chase AK. He intended to inflict serious injury to D AK but unfortunately on his failure he made the deceased ... a victim. Nobody, chases person with sword for any be- nevolent purpose. It is unfortunate instead of causing the death of AK the accused caused the death of his brother. It is nothing but change of malice from one brother to an- E other brother. From these facts it is not a case in which the benefit of s. 304-1 or s. 304-11 IPC can be given to the ac- cused. One has to see the intention and the intention of the accused in the instant case is more than apparent that he chased AK with sword and on his failure to catch hold F of AK with sword, he caused the death of an innocent by- 4. stander who has not given any provocation to the accused for the murderous act. It is the intention which was pre- dominantly present in his mind when the accused chased AK and therefore, this intention he satisfied by inflicting G the murderous blow on the deceased on his vital part of body. Therefore, under these circumstances, the convic- tion of the appellant u/s 302 IPC is well founded and there is no ground to interfere. (Para 5) [218-E-H; 219-A-B] 1.3 So far as converting the case from s. 302 l.P.C. to H s. 304-1 or 304-11 IPC each case has its peculiar facts and RAHIMBUX v. 215 STATE OF M.P. [A.K. MATHUR, J.] justification for converting the offence from s. 302 IPC to s. A 304-1 ors. 304-11 IPC. Therefore, in the circumstances of the instant case, there is no merit to convert the offence u/s 302 IPC to either s. 304-1 IPC. ors. 304-11 IPC. (Para 6) [219-CD] CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.861 of 2008 B From the final Judgment & Order dated 2.9.2005 of the High Court of Madhya Pradesh at Jabalpur in Crl. Appeal No. 49 of 2000 Rachana Joshi lssar, Ru pal Bhatia and Ajay Thakur for the C Appellant. Siddartha Dave, Jemtiben AO and Vibha Datta Makhija for the Respondent. The Judgment of the Court was delivere
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