# Mohd. Imran (In Jail) v. State of U.P

- **Citation:** (2021) 2 ILRA 810
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-12
- **Case number:** Criminal Appeal No. 3969 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-imran-in-jail-v-state-of-u-p-46814
- **Pages:** 7

## Headnote

Law-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal Code, 1860-Sections 302-challenge
to-conviction-deceased was killed by her
brother over the honor issue-she was
requested not to meet the person Hanif
coming to the home-brother did not like
his sister who have a love affair with that
person-incident took place in grave and
sudden provocation-Though, the brother
can never had intention to murdering his
sister- all the witnesses have turned
hostile-The brother of the deceased has
been sentenced for 302 IPC giving it a
picture of honor killing- it is homicidal
death but not murder. Accused held guilty
for Section 304(1) IPC- Since, accused is
in jail for a period of more than 10 years,
he is set free, as he was sentenced for
nine years of R.I. in jail. (Para 1 to 27)

The Appeal is allowed. (E-5)

List of Cases cited: -

## Text

810 INDIAN LAW REPORTS ALLAHABAD SERIES
abstain from doing any act or to pay a
ransom, shall be punishable with death, or
imprisonment for life, and shall also be
liable to fine."

20. In view of the aforesaid, we
modify the conviction of the appellants
under Section 364-A I.P.C. to one for
offence punishable under Sections 365
I.P.C. Maximum punishment for such
offence is seven years only. Hence, we
modify
the
sentence
from
life
imprisonment to seven years (already in
jail). Fine is reduced to Rs.1,000/- and
default sentence is reduced to six months
which would start after completion of
seven years. The accused shall be entitled
to remission as per law.

21. As the accused are in jail for more
than ten years, we direct them to be
released forthwith in case they are not
required in any other case.

22. Appeal stands partly allowed.

23. Lower court record be sent to the
court below forthwith.

24. Let a copy of this Judgment be
sent to the Jail Authorities concerned and
District Magistrate for compliance.
----------
(2021)02ILR A810
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.02.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER , J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 3969 of 2013

Mohd. Imran ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Lav Srivastava, Sri Imtiyaz Ali, Sri
Santosh Kumar Tiwari, Sri Shujauddin, Sri
V.P. Srivastava

Counsel for the Opposite Party:
A.G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal Code, 1860-Sections 302-challenge
to-conviction-deceased was killed by her
brother over the honor issue-she was
requested not to meet the person Hanif
coming to the home-brother did not like
his sister who have a love affair with that
person-incident took place in grave and
sudden provocation-Though, the brother
can never had intention to murdering his
sister- all the witnesses have turned
hostile-The brother of the deceased has
been sentenced for 302 IPC giving it a
picture of honor killing- it is homicidal
death but not murder. Accused held guilty
for Section 304(1) IPC- Since, accused is
in jail for a period of more than 10 years,
he is set free, as he was sentenced for
nine years of R.I. in jail. (Para 1 to 27)

The Appeal is allowed. (E-5)

List of Cases cited: -

1. Suresh @ Kala Vs St. NCT of Delhi, CRLA
No.1284 of 2019

2. Nandlal Vs St. of Mah. (2019) 5 SCC 224

3. Surain Singh Vs St. of Punj. (2017) 5 SCC 796

4. Deepak Vs St. of U.P. (2018) 8 SCC 228

5. Budhi Singh Vs St. of H.P. (2012) 13 SCC 663

6. Atul Thakur Vs St. of H.P. & ors. (2018) 2
SCC 496
2 All. Mohd. Imran Vs. State of U.P.
811
7. Muthu Vs St. of Inspr. of Police, T.N. CRLA
NO. 1511 of 2007

8. Stalin Vs St. CRLA No. 577 of 2020

9. St. of Guj. Vs B.L. Dave CRLA No. 99 of 2021

10. Bhagwan Das Vs St. of New Delhi (2011)
Crl. LJ 2903
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. &
Hon'ble Gautam Chowdhary, J.)

1. Heard Sri Santosh Kumar Tiwari,
learned counsel for appellant and Sri N.K.
Srivastava, learned A.G.A. for the State.

2. This appeal has arisen from the
judgement and order dated 08.08.2013
passed by learned Additional Sessions
Judge, Saharanpur in S.T. No. 507 of 2011,
State of U.P. v. Imran (Crime No.28/11)
under Section 302 I.P.C., Police Station
Thakurdwara,, District Moradabad for life
imprisonment and fine of Rs. 20,000, in
default of payment of fine one year further
R.I. We place reliance in the case decided
by us titled Sharaft Vs. State of U.P. being
Criminal Appeal No. 1237 of 2013
decided on 20.01.2021. The facts are
practically identical with the facts due to
quarrel the brother stifling his sister and she
met with her death. Can judgement be
based on personal thought of a Judge and
can conviction be based on what is known
as moral conviction. Despite the fact that
all the witnesses have turned hostile. The
brother of the deceased has been sentenced
for 302 IPC giving it a picture of honour
killing.

3. The factual scenario as it unfurls
from the record and the F.I.R are that the
accused caused death of the deceased on
09.02.2011 at 9.30 p.m. when Usman Ali
(who is father of the accused and also of
deceased) had lodged the F.I.R. conveying
to the Police that her daughter Shahista
Parween was done to death by her brother
Imran by stifling her neck by knife in glave
and sudden provocation.

4. It is submitted by Shri Santosh
Kumar Tiwari that the prosecution started
against the accused who is brother of the
deceased for commission of offence under
Section 304 of Indian Penal Code and the
charge sheet was laid against him for
commission of offence under Section 302
I.P.C. The accused was committed to the
court of session as the case was triable
exclusively by the court of sessions.

5. It is admitted position of fact that
the accused is in jail since 10.02.2011 and
might have been in jail even during the
period of investigation before he was
enlarged on bail.

6. The prosecution examined several
witnesses so as to bring home the charge
framed against the accused as enumerated:

1.
Deposition
of Usman,
informant
09.08.2011 PW1
2.
Deposition
of
Mohd.
Rizwan
09.08.2011 PW2
3.
Deposition
of
Mohd.
Umar
30.09.2011 PW3
4.
Deposition
of
Dr.
Abdul
Qadir
Ansari
01.11.2011 PW4
5.
Deposition
of
Mohd.
22.11.2011 PW5
812 INDIAN LAW REPORTS ALLAHABAD SERIES
Hanif
6.
Deposition
of Shamsad
Ali
16.05.2012 PW6
7.
Deposition
of
Genda
Lal
19.11.2012 PW7
8.
Deposition
of
Rajiv
Kumar
Gautam
11.01.2013 PW8
9.
Deposition
of
Vinod
Kumar
Singh
14.02.2013 PW9
10.
Deposition
of Rohtash
Singh
09.04.2013 PW10

7. In support of ocular version
following documents were filed:

1.
First
Information
Report
09.02.
2011
Ex.Ka.3
2.
Written Report
09.02.
2011
Ex.Ka.1
3.
Recovery Memo
of of Pant &
Jacket
10.02.
11
Ex.
Ka.13
4.
Recovery memo
of
Blood
Stained & Plain
Earth and Blood
Stained Knife
12.01.
2012
Ex. Ka.6
5.
P.M. Report
09.02.
2011
Ex.Ka.6
6.
Report of Vidhi
Vigyan
Prayogshala
12.01.
2011
Ex.
Ka.
16

7.
Panchayatnama 09.02.
2011
Ex. Ka. 7
8.
Charge-Sheet
(Mool)
29.02.
2011
Ex.
Ka.
15

8. The following judgments of the
Supreme Court are cited by the learned
counsel for the appellant so as to contend
that offence under Section 302 I.P.C. is not
made out against the accused. (i) Suresh @
Kala v. State NCT of Delhi, Criminal
Appeal No.1284 of 2019; decided on
27.8.2019
(ii)
Nandlal
v. State
of
Maharashtra, (2019) 5 SCC 224 (iii)
Surain Singh v. State of Punjab, (2017) 5
SCC 796 (iv) Deepak v. State of Uttar
Pradesh, (2018) 8 SCC 228 (v) Budhi
Singh v. State of Himachal Pradesh,
(2012) 13 SCC 663 (vi) Atul Thakur v.
State of Himachal Pradesh and others,
(2018) 2 SCC 496.

9. The learned Advocate Sri Santosh
Kumar Tiwari counsel for the appellant has
taken us through the record and has
contended that this is a case of clean
acquittal. The father of the deceased who is
father of the accused also has lodged the
F.I.R. Despite the fact that no witnesses
have supported the case of prosecution. The
learned Judge has recorded the finding of
section 302 I.P.C. and has convicted the
accused for life. It is further submitted that
the brother can never had intention to
murdering his sister honour issues that she
was requested not to meet the person
namely Hanif coming to the home. He has
relied on the decisions in Budhi Singh Vs.
State of H.P. Crl. Appeal No. 1801 of
2009 decided on 13.12.2012, Muthu Vs.
State of Inspector of Police, Tamilnadu,
Crl. Appeal NO. 1511 of 2007 decided on
2.11.2007 and Stalin Vs. State, Crl.
2 All. Mohd. Imran Vs. State of U.P.
813
Appeal No. 577 of 2020 and has requested
that if this court is not convinced and it is a
case of acquittal, this court may follow the
judgement which is a mirror judgement of
this Bench dated 20.01.2021 in case of
Sharafat (Supra) where also two brothers
were held to have injured their sister who
died. In our case also it is submitted that
the conviction be altered.

10. Learned counsel for the appellant
has contended that if this Court come to the
conclusion that the case is made out against
the accused and they are not to be accorded
benefit of doubt, he presses into service the
provisions of Section 304 of I.P.C.
According to learned counsel, the learned
Judge could not have framed fresh charge
after some of the witnesses had turned
hostile.

11. As against this Sri N.K.
Srivastava, learned A.G.A. appearing for
the State has has vehemently objected and
has contended that it is a case of honour
killing where the brother did not like his
sister who have a love affair with Hanif and
has submitted that the conviction can not be
modified as all the prosecution witnesses
who have turned hostile have in the
beginning supported the prosecution. It was
accused and accused alone who had
committed the offence.

12. We are convinced that it is a case
of moral conviction.The accused is in jail
since 10.02.2011 which is exactly ten years
without remission. The witnesses have not
supported the case of prosecution. Same
and except the Doctor and the police
officials. P.W. 1, P.W. 2, P.W. 3, P.W. 5 and
P.W. 6 Shamshad Ali, who had taken the
body. P.W. 7 is Genda Lal who is clerk,
P.W. 8 is Rajiv Kumar Gautam who is Ist
I.O, P.W. 9 Vinod Kumar Singh, who is
IInd I.O. and P.W. 10 is Rohtash Singh,
who is constable.

13. Learned counsel for the State has
also taken us through the record and has
contended that the vital part of the body
was attacked by the appellant No.1 may be
the deceased was sister but he was having
knowledge and his intention was also there,
otherwise he would not have inflicted blow
on the vital part of the body by the
instrument which was recovered as his
behest.

14. As such we are convinced that the
evidence was very scanty and oral
testimony on the record of the trial Judge
was not so on which conviction could be
returned leave apart under Section 302
I.P.C., but it appears that the learned Judge
has convicted the accused on the basis of
his own ideology and on the basis of the
hostile witnesses

15. Recently the Apex Court State of
Gujarat Vs. B.L. Dave in Criminal
Appeal No. 99 of 2021 dated 02.02.2021
has held that if the court wants to acquit
and wants to take different view then taken
by the learned trial Judge the court must
discuss the evidence of each and every
witness. In our case witnesses of facts have
turned hostile. The learned Judge has
convicted the accused on the evidence of
the police authority which could not have
been done in the submission of learned
counsel for the appellant. [As ten years
have already elapsed]. Death has occurred
which is homicidal death. The pathology
lab and the evidence of P.W. 8,9 and 10 and
that of the medical evidence would permit
us to hold that it was a homicidal death.
The learned Judge goes to rely on the
judgement in the case of honour killing and
this is not a case of honour killing. In our
814 INDIAN LAW REPORTS ALLAHABAD SERIES
case can it be said that there was a honour
killings. The answer is a sympatrically no.
The FIR goes to show that it was given in
haste as the father felt bad. The deceased
was 19 years of age was learning computer.
The accusing according to father testimony
before he turn hostile was not liked by the
appellant herein and even if go by the cross
examination he has not supported his
version in F.I.R. P.W. 2 also has turned
hostile but he had not seen who had
inflicted knife injuries on his sister. P.W. 3
who is independent witness has also not
supported the case of the prosecution, as
we have also discuss the evidence of P.W. 4
that the death was homicidal death. We do
not go further on the said aspect. There
were four injuries which may be inflicted
by a knife. P.W. 5 has also not supported
the prosecution witness who has on the
contrary stated that he does not know who
has committed the act of causing injuries to
Shahista Parveen. We have already said that
it was a homicidal death. Witnesses 7,8 and
9 are of police personnel. The evidence of
the police witnesses have been made a
basis of convicting the accused. The
learned Judge has mis-led himself to
convict under section 302 IPC. The factual
data show that there was quarrel between
brother and sister and the brother had done
her to death. The FIR was lodged by the
father which has been proved by learned
Judge according to the police officials.

16. We have not discussed the
evidence of each witness in detail as most
of them have turned hostile being family
members. It was a moral conviction by the
learned Session Judge, the informant
Usman, who is the father of the deceased
Shahista Parveen. The incident occurred
about seven months from the date of his
deposition before Court on 9.8.2011 his
turning hostile.

17. The post mortem report has been
proved by the evidence of the Doctor Abdul
Qadir Ansari, P.W. 4 goes to show that
there were anti mortem injuries which was
a incised wound 15.08 X 7.0 C.M. deep to
conical bone wise cut neck muscles with
cut trachea is to death was because of
sudden cardiac arrest die to shock and
hymrage haemorrhage. This fact itself
proves that the death was homicidal and not
of suicidal death.

18. It is submitted by counsel for the
appellant that this is a case of no evidence,
however, the accused is in jail since more
than ten years. The learned Judge had relied
on which could not have been made the
basis for conviction in fact the conviction
of the accused should not have been
recorded, but as the learned counsel
contended that it is not a case for
conviction under Section 302 Indian Penal
Code but case for lesser sentence.

19. This takes us to the issue of
whether the offence would be punishable
under Section 299 300 Indian Penal Code
or Section 304 I.P.C.

20. Considering the evidence of these
witnesses and also considering the medical
evidence including post mortem report,
there is no doubt left in our mind about the
guilt of the present appellant and admission
on part of accused. However, the question
which falls for our consideration is
whether, on reappraisal of the peculiar facts
and
circumstances
of
the
case,
the
conviction of the appellant under Section
302 I.P.C. of the Indian Penal Code should
be upheld or the conviction deserves to be
converted under Section 304 Part-I or PartII of the Indian Penal Code. It would be
relevant to refer Section 299 of the Indian
Penal Code, which read as under:
2 All. Mohd. Imran Vs. State of U.P.
815

"299.
Culpable
homicide:
Whoever causes death by doing an act with
the intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide.

21. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
various clauses of Section 299 and 300.
The following comparative table will be
helpful in appreciating the points of
distinction between the two offences.

Section 299
Section 300
A person commits
culpable homicide if
the act by which the
death is caused is
done-
Subject to certain
exceptions
culpable homicide
is murder is the act
by which the death
is caused is done.
INTENTION
(a) with the intention
of causing death; or
(1)
with
the
intention
of
causing death; or
(b) with the intention
of
causing
such
bodily injury as is
likely to cause death;
or
(2)
with
the
intention
of
causing
such
bodily injury as the
offender knows to
be likely to

cause the death of
the
person
to
whom the harm is
caused;
KNOWLEDGE
KNOWLEDGE
(c)
with
the
knowledge that the
act is likely to cause
death.
(4)
with
the
knowledge that the
act
is
so
immediately
dangerous

that it must in
all
probability
cause death or such
bodily injury as is
likely
to
cause
death, and without
any
excuse
for
incurring the risk
of causing death or
such injury as is
mentioned above.

22. It is very clear from the F.I.R.
though unsupported by the prosecution and
other witnesses of facts that there was a
heated discussion and during the quarrel
one of the accused had tried to see that the
deceased remained in the four corners of
the home.

23. The accused is the brother of
deceased, he is in jail for a period of more
than 10 years. It is a matter of fact as it is
transpires from the F.I.R. and as we have
held that it is homicidal death but not
murder. We hold the accused guilty for
Section 304(1) Indian Penal Code.

24. While going through the record,
we are convinced that the accused brother
had no intention of doing away of his sister
but in hit of the moment the incident has
occurred. Learned Judge instead of writing
philosophy, if he did not think it was a case
816 INDIAN LAW REPORTS ALLAHABAD SERIES
of acquittal but could have punished under
Section 304 part I or II of I.P.C. which was
attracted in the facts of this case.

25. The concept of honour killing is
invoked by learned Judge in the facts of the
case and it would be not possible to concur
as us a case of no evidence. Despite that the
accused is in jail for more than 10 years
without remission. The factual scenario
even if it is believed could not have
permitted the Judge to convict the accused
for 302 IPC where no evidence was there
on record. Most of the family members
have turn hostile but the learned Judge has
convict the accused on the basis that he had
done with her death which was opinion as
based on ideology of the learned Judge. It
is not a case on record that the appellant did
not want the deceased to fall love in a
lower caste. Even if we read operative
portion it is very clear that there a quarrel
between brother and the sister. According
to the learned trial Judge the brother acted
in gruesome manner and that is why
punished him with life imprisonment with a
fine of Rs. 20,000/-. The learned Judge has
heavenly relied upon Bhagwan Das Vs.
State of New Delhi 2011 Crl.LJ 2903 just
because the accused did not examine any
witness. The learned Judge has relied
reliance and has convicted on the statement
under section 161 Cr.P.C. of the witnesses.
With this preclude we decide the appeal.
Similar is case before us and reliance can
be placed on the case of Sharafat (Supra).

26. The accused is in jail for more
than 10 years. He is sentenced to undergo
nine years R.I. with fine of Rs. 500/- and,
in case of default in payment of fine,
further
to
undergo
three
months
imprisonment. He is ordered to be set free
if not required in any other case.

27 . Accordingly, the appeal is
allowed.

28. Record and proceedings be sent
back to the trial court.

29. This court is thankful to Shri
Santosh Kumar Tripathi, learned counsel
for the appellant and learned AGA Sri N.K.
Srivastava for ably assisting this Court in
getting this old matter disposed off.
----------
(2021)02ILR A816
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER , J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 4437 of 2014

Deepak Kalra ....Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Santosh Tiwari, Sri Dhiraj Kumar
Pandey, Sri Sunil Kumar Mishra

Counsel for the Opposite Party:
A.G.A., Sri Rahul Kumar Tripathi

A.
Criminal
matter-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal Code, 1860-Section 302-challenge
to-conviction- the appellant had inimical
relation with his wife- He had started to
consume liquor-He used to regularly beat
her- Before two days only, his father had
brought the deceased to the matrimonial
home-The capacity of the deceased to
make a dying declaration with 90% burns
is of her own-There is no tutoring by any
interested person-The evidence on record
gets corroboration of PW-2 who is the son