A sudden, unpremeditated assault causing death without intent to kill attracts Section 304 Part II, not Section 302.

On 30 September 1993 at approximately 6:30 a.m., Mohammad Sharif was brushing his teeth near a public hand pump when Ajmatulnisha and Kismatulnisha allegedly abused him over a child defecating in a drain. They allegedly grappled with him and knocked him down, after which Niyaj struck him with a spade handle and Riyaj assaulted him with a lathi. Sharif sustained a fatal head injury and died while being taken to hospital.

The FIR was lodged the same morning at 8:30 a.m.; investigation followed, culminating in a chargesheet under Section 302 IPC.

The Sessions Court convicted Ajmatulnisha and Kismatulnisha under Sections 323/34 IPC, sentencing them to one year’s rigorous imprisonment, and convicted Niyaj and Riyaj under Section 302/34 IPC, sentencing each to life imprisonment and a fine of ₹5,000.

During the appeal, Ajmatulnisha died and the appeal abated against her.

The prosecution relied principally on the eyewitness testimony of Raees, Mohammad Sharif @ Babban and Alimunnisha, together with the medical evidence showing a lacerated scalp wound, skull fractures and death due to coma resulting from the head injury.

The defence pleaded private defence and relied on injuries sustained by Ajmatulnisha and Kismatulnisha, which were medically recorded as simple and superficial.

1. Whether the findings of the trial court were erroneous or perverse so as to warrant interference with the convictions?

2. Whether the accused were entitled to the right of private defence on account of the injuries allegedly sustained by Ajmatulnisha and Kismatulnisha?

3. Whether the acts of Niyaj and Riyaj constituted murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304 Part II IPC, considering the sudden occurrence and absence of premeditation?

The Court applied Sections 96, 97, 99 and 102 IPC, under which private defence is a defensive right arising upon a reasonable apprehension of danger and continuing only so long as that apprehension exists; it cannot be used as a pretext for retaliation or an offensive assault.

Under Section 105 of the Evidence Act, the burden of establishing an exception such as private defence rests on the accused, though the plea may be established from the prosecution evidence itself on a preponderance of probabilities.

Relying on State of Madhya Pradesh v. Ramesh, James Martin v. State of Kerala, State of Gujarat v. Bai Fatima and Lakshmi Singh v. State of Bihar, the Court held that non-explanation of injuries to the accused may, depending on the facts, support private defence, render the prosecution case doubtful, or have no effect where the injuries are minor and the prosecution evidence is otherwise credible.

Sections 299, 300 and 304 IPC were applied to distinguish murder from culpable homicide not amounting to murder; where death is caused with knowledge that the act is likely to cause death, but without intention to cause death or such bodily injury as is likely to cause death, Section 304 Part II applies.

The principles in Kunwar Pal v. State of Uttarakhand and Bhagwan Singh v. State of Uttarakhand were relied upon in assessing knowledge, intention, suddenness and absence of premeditation.

The Court found the death to be homicidal and accepted the consistent evidence of the three eyewitnesses that Niyaj and Riyaj assaulted the deceased with a spade handle and lathi.

The plea of private defence was rejected because the deceased was unarmed, was merely brushing his teeth, and the prosecution evidence did not show that he had attacked the two female accused.

Although injuries were recorded on Ajmatulnisha and Kismatulnisha, they were simple and superficial; therefore, their non-explanation did not discredit the otherwise cogent prosecution case or establish a reasonable apprehension of death or grievous hurt.

However, the Court held that the incident arose suddenly from a trivial dispute, without prior enmity, pre-planning or premeditation.

The weapons were a lathi and a wooden spade handle, there were no repeated blows, and only one fatal head injury was proved.

These circumstances established that Niyaj and Riyaj had knowledge that their acts were likely to cause death, but did not establish an intention to cause death or such bodily injury as was likely to cause death within Section 304 Part I.

Accordingly, the conviction required alteration from Section 302/34 IPC to Section 304 Part II IPC.

The convictions of Niyaj and Riyaj under Section 302/34 IPC were set aside and altered to convictions under Section 304 Part II IPC.

Each was sentenced to ten years’ rigorous imprisonment and a fine of ₹5,000, payable to the deceased’s legal heirs within 30 days; default in payment would entail three months’ simple imprisonment.

The period already undergone was directed to be set off under Section 428 Cr.P.C./Section 528 BNSS, 2023.

The conviction and sentence of Kismatulnisha under Sections 323/34 IPC were upheld, while the appeal against Ajmatulnisha had already abated due to her death.

The surviving appellants were directed to surrender before the trial court, failing which coercive steps could be taken.