Transferred intent (or transferred malice in English law) is a legal doctrine when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held responsible.
However, we are not inclined to accept this
submission as the evidence on record proves that it was not the
case of sudden fight and it was also not a case of single blow
given in a hit of passion. Conversely, the evidence on record
proves that the appellant, alongwith co-accused had come to the
house of deceased fully armed with sharp edged weapons like
sword, chopper and gupti. Therefore, it was with premeditation.
Medical evidence on record proves that though one injury to
abdomen is proved to be fatal, there were other two more
incised wounds and abrasions found on the body of Noor.
Therefore, it also cannot be said that the appellant or coaccused
have not taken undue advantage or not acted in cruel or
unusual manner. Hence all the necessary ingredients of fourth
exception to section 300 of IPC, are not satisfied in the instant
case. It may be true that the appellant and the co-accused had
not intended to cause the death of Noor, but then case falls
under Section 301 of IPC under the doctrine of transfer of malice
as all the ingredients of the offence of 301 of IPC are being made
out. The conviction of the appellant, therefore, as recorded by
the trial Court, for the offence under Section 302 of IPC needs to
be confirmed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.367 OF 2009
Mohd Sharif Mehboob Badshakhan
V/s.
The State of Maharashtra ]
CORAM : SMT. V. K. TAHILRAMANI, ACTING C.J. &
DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 12TH FEBRUARY 2016.
Citation; 2016 ALLMR(CRI)1286
1. The appellant, who stands convicted by the judgment
and order dated 31.01.2009, of Additional Sessions Judge,
Greater Bombay in Sessions Case No.230 of 1999, for the
offence punishable under Section 302 of the Indian Penal Code
and sentenced to suffer imprisonment for life and to pay fine of
Rs.1,000/- in default to suffer rigorous imprisonment for one
month, by this appeal challenges his conviction and sentence.
2. Brief facts of the appeal can be stated as follows :-
On 22.11.1998, in the afternoon at 12.30 p.m. while
P.W.1 Gausbee Shaikh was chitchatting alongwith her mother,
P.W.2 Fatimabee and her sister-in-law P.W.3 Tajbano, present
appellant alongwith his brother Kalia Kasam - absconding
accused No.3, Imambi-accused No.2 and one Dilshad -accused
No.4, came to their house with weapons in their hands like
sword, chopper and gupti and started abusing and instigating
the parents of P.W.1 Gausbee. Hence her brother Noor came out
of the house to pacify and request them. However, he was
assaulted by accused with weapons in their hands. Appellant
herein was carrying sword in his hand and he inflicted blows of
sword on Noor due to which Noor sustained injuries and fell
down.
3. P.W.1 Gausbee and her mother P.W. 2 Fatimabee took
injured Noor to Meghwadi police and from there to Cooper
hospital. Noor was declared dead on admission. In the hospital
itself complaint of P.W.1 Gausbee came to be recorded. On her
complaint (Exh.18), C.R.No.169 of 1999 was registered against in
all four accused persons. The Investigation of the said C.R. was
handed over to P.W.11 Police Inspector Pawar.
4. During the course of investigation, P.W.11 PI Pawar
has recorded statements of witnesses, conducted spot
panchnama and seizure panchnama of the weapons and the
cloths of the deceased and appellant. At the instance of
appellant, sword came to be seized under panchnama (Exh.46).
Further to completion of investigation, chargesheet was filed in
the Court against in all four accused persons.
5. During pendency of the trial, accused No.4 Dilshad
died and hence case was abated against him; whereas accused
No.3 Kasam is absconding, hence his case was separated. The
trial was proceeded against appellant and his wife Imambi
accused No.2 only.
6. On committal of the case to the Court of Sessions,
trial Court framed charge against the appellant and co-accused
vide Exh.10. The appellant pleaded not guilty and claimed to be
tried. In support of its case, prosecution examined in all 14
witnesses and on appreciation of their evidence, trial Court was
pleased to hold guilt of the present appellant to be proved
beyond reasonable doubt for the offence punishable under
Section 302 read with Section 34 of the Indian Penal Code and
convicted and sentenced him as aforesaid.
7. This judgment of the trial Court is challenged in this
appeal by learned counsel for appellant; whereas supported by
learned APP. In our considered opinion, before adverting to rival
submissions advanced by them, it would be useful to refer to the
evidence on record.
8. Prosecution case against appellant stands on the
evidence of four eye witnesses, whose presence at the spot is
natural and proved on record. P.W.1 Gausbee is real sister of
deceased; P.W.2 Fatimabee is the mother, P.W.3 Tajbano is the
sister-in-law; whereas P.W.4 Ali Ahmed is the neighbour. Their
evidence goes to prove that the father of the appellant and
father of deceased were real brothers. There was dispute
between them relating to property. The cases were filed and
pending in the Court. On account of this dispute, on the date of
incident while P.W.1 Gausbee was chitchatting with her mother
and sister-in-law, appellant came there alongwith co-accused.
All of them were armed with weapons. They started giving
abuses to the father of P.W.1 Gausbee. Then Noor, came out of
the house to pacify them. However, appellant and co-accused
assaulted him with sword, chopper and gupti. It is further
deposed by P.W.1 Gausbi that she and her sister-in-law P.W.3
Tajbanoo came out of the house and found that the appellant
was having sword in his hand and he has assaulted Noor with the
said sword.
9. P.W.2 Fatimbai and P.W.4 Ali Ahmed have also
deposed about the incident and assault on Noor by deadly
weapons. Though P.W.2 Fatimabi has not specifically attributed
incriminating act to the appellant, she has deposed about his
presence at the time of incident. Similarly though P.W.4 Ali
Ahmed has deposed that the appellant has assaulted the
deceased with chopper, in our considered opinion, having regard
to the fact that the incident has taken place in the year 1998 and
his evidence is recorded 10 years thereafter in the year 2008,
there is possibility of his memory failing or getting confused
about exact nature of weapon. But the fact remains that he has
also deposed about assault on the deceased Noor and has also
spoken about involvement of the appellant in the said assault.
Moreover, as per his evidence, appellant was apprehended on
the spot itself. Not only that, as per evidence of P.W.10 panch
Siddiqui and P.W.11 IO PI Pawar, at the instance of appellant,
sword was seized from the heap of debris at the spot shown by
him under panchnama Exh.46.
10. There is further corroborating evidence in the form of
prompt lodging of F.I.R. The complaint of P.W.1 Gausbee was
recorded in the hospital itself vide Exh.18 and offence was
registered within two hours thereafter at about 2.30 p.m.
11. The medical evidence of P.W.9 Dr. Manik Sangale, who
has conducted postmortem on the dead body of Noor also
proves that he has found three incised wounds and the cause of
the death was shock due to stab injury to abdomen. In his
opinion, the injuries were antemortem and sufficient in the
ordinary course of nature to cause the death.
12. In our considered opinion, this evidence of eye
witnesses, supported and corroborated with medical and other
circumstantial evidence about recovery of weapon at the
instance of appellant, is more than sufficient to prove on record
the guilt of the appellant.
13. The only submission advanced by learned counsel for
appellant is that the incident has taken place in a sudden fight.
There was no intention on the part of appellant or co-accused to
commit murder of Noor. Noor had come out of the house all of
sudden. Moreover, there was only one fatal injury found on his
body, therefore, the case of the appellant is covered by fourth
exception to Section 300 of IPC.
14. However, we are not inclined to accept this
submission as the evidence on record proves that it was not the
case of sudden fight and it was also not a case of single blow
given in a hit of passion. Conversely, the evidence on record
proves that the appellant, alongwith co-accused had come to the
house of deceased fully armed with sharp edged weapons like
sword, chopper and gupti. Therefore, it was with premeditation.
Medical evidence on record proves that though one injury to
abdomen is proved to be fatal, there were other two more
incised wounds and abrasions found on the body of Noor.
Therefore, it also cannot be said that the appellant or coaccused
have not taken undue advantage or not acted in cruel or
unusual manner. Hence all the necessary ingredients of fourth
exception to section 300 of IPC, are not satisfied in the instant
case. It may be true that the appellant and the co-accused had
not intended to cause the death of Noor, but then case falls
under Section 301 of IPC under the doctrine of transfer of malice
as all the ingredients of the offence of 301 of IPC are being made
out. The conviction of the appellant, therefore, as recorded by
the trial Court, for the offence under Section 302 of IPC needs to
be confirmed. The appeal, hence, stands dismissed.
[ACTING CHIEF JUSTICE.]
[DR. SHALINI PHANSALKAR-JOSHI, J.]
However, we are not inclined to accept this
submission as the evidence on record proves that it was not the
case of sudden fight and it was also not a case of single blow
given in a hit of passion. Conversely, the evidence on record
proves that the appellant, alongwith co-accused had come to the
house of deceased fully armed with sharp edged weapons like
sword, chopper and gupti. Therefore, it was with premeditation.
Medical evidence on record proves that though one injury to
abdomen is proved to be fatal, there were other two more
incised wounds and abrasions found on the body of Noor.
Therefore, it also cannot be said that the appellant or coaccused
have not taken undue advantage or not acted in cruel or
unusual manner. Hence all the necessary ingredients of fourth
exception to section 300 of IPC, are not satisfied in the instant
case. It may be true that the appellant and the co-accused had
not intended to cause the death of Noor, but then case falls
under Section 301 of IPC under the doctrine of transfer of malice
as all the ingredients of the offence of 301 of IPC are being made
out. The conviction of the appellant, therefore, as recorded by
the trial Court, for the offence under Section 302 of IPC needs to
be confirmed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.367 OF 2009
Mohd Sharif Mehboob Badshakhan
V/s.
The State of Maharashtra ]
CORAM : SMT. V. K. TAHILRAMANI, ACTING C.J. &
DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 12TH FEBRUARY 2016.
Citation; 2016 ALLMR(CRI)1286
1. The appellant, who stands convicted by the judgment
and order dated 31.01.2009, of Additional Sessions Judge,
Greater Bombay in Sessions Case No.230 of 1999, for the
offence punishable under Section 302 of the Indian Penal Code
and sentenced to suffer imprisonment for life and to pay fine of
Rs.1,000/- in default to suffer rigorous imprisonment for one
month, by this appeal challenges his conviction and sentence.
2. Brief facts of the appeal can be stated as follows :-
On 22.11.1998, in the afternoon at 12.30 p.m. while
P.W.1 Gausbee Shaikh was chitchatting alongwith her mother,
P.W.2 Fatimabee and her sister-in-law P.W.3 Tajbano, present
appellant alongwith his brother Kalia Kasam - absconding
accused No.3, Imambi-accused No.2 and one Dilshad -accused
No.4, came to their house with weapons in their hands like
sword, chopper and gupti and started abusing and instigating
the parents of P.W.1 Gausbee. Hence her brother Noor came out
of the house to pacify and request them. However, he was
assaulted by accused with weapons in their hands. Appellant
herein was carrying sword in his hand and he inflicted blows of
sword on Noor due to which Noor sustained injuries and fell
down.
3. P.W.1 Gausbee and her mother P.W. 2 Fatimabee took
injured Noor to Meghwadi police and from there to Cooper
hospital. Noor was declared dead on admission. In the hospital
itself complaint of P.W.1 Gausbee came to be recorded. On her
complaint (Exh.18), C.R.No.169 of 1999 was registered against in
all four accused persons. The Investigation of the said C.R. was
handed over to P.W.11 Police Inspector Pawar.
4. During the course of investigation, P.W.11 PI Pawar
has recorded statements of witnesses, conducted spot
panchnama and seizure panchnama of the weapons and the
cloths of the deceased and appellant. At the instance of
appellant, sword came to be seized under panchnama (Exh.46).
Further to completion of investigation, chargesheet was filed in
the Court against in all four accused persons.
5. During pendency of the trial, accused No.4 Dilshad
died and hence case was abated against him; whereas accused
No.3 Kasam is absconding, hence his case was separated. The
trial was proceeded against appellant and his wife Imambi
accused No.2 only.
6. On committal of the case to the Court of Sessions,
trial Court framed charge against the appellant and co-accused
vide Exh.10. The appellant pleaded not guilty and claimed to be
tried. In support of its case, prosecution examined in all 14
witnesses and on appreciation of their evidence, trial Court was
pleased to hold guilt of the present appellant to be proved
beyond reasonable doubt for the offence punishable under
Section 302 read with Section 34 of the Indian Penal Code and
convicted and sentenced him as aforesaid.
7. This judgment of the trial Court is challenged in this
appeal by learned counsel for appellant; whereas supported by
learned APP. In our considered opinion, before adverting to rival
submissions advanced by them, it would be useful to refer to the
evidence on record.
8. Prosecution case against appellant stands on the
evidence of four eye witnesses, whose presence at the spot is
natural and proved on record. P.W.1 Gausbee is real sister of
deceased; P.W.2 Fatimabee is the mother, P.W.3 Tajbano is the
sister-in-law; whereas P.W.4 Ali Ahmed is the neighbour. Their
evidence goes to prove that the father of the appellant and
father of deceased were real brothers. There was dispute
between them relating to property. The cases were filed and
pending in the Court. On account of this dispute, on the date of
incident while P.W.1 Gausbee was chitchatting with her mother
and sister-in-law, appellant came there alongwith co-accused.
All of them were armed with weapons. They started giving
abuses to the father of P.W.1 Gausbee. Then Noor, came out of
the house to pacify them. However, appellant and co-accused
assaulted him with sword, chopper and gupti. It is further
deposed by P.W.1 Gausbi that she and her sister-in-law P.W.3
Tajbanoo came out of the house and found that the appellant
was having sword in his hand and he has assaulted Noor with the
said sword.
9. P.W.2 Fatimbai and P.W.4 Ali Ahmed have also
deposed about the incident and assault on Noor by deadly
weapons. Though P.W.2 Fatimabi has not specifically attributed
incriminating act to the appellant, she has deposed about his
presence at the time of incident. Similarly though P.W.4 Ali
Ahmed has deposed that the appellant has assaulted the
deceased with chopper, in our considered opinion, having regard
to the fact that the incident has taken place in the year 1998 and
his evidence is recorded 10 years thereafter in the year 2008,
there is possibility of his memory failing or getting confused
about exact nature of weapon. But the fact remains that he has
also deposed about assault on the deceased Noor and has also
spoken about involvement of the appellant in the said assault.
Moreover, as per his evidence, appellant was apprehended on
the spot itself. Not only that, as per evidence of P.W.10 panch
Siddiqui and P.W.11 IO PI Pawar, at the instance of appellant,
sword was seized from the heap of debris at the spot shown by
him under panchnama Exh.46.
10. There is further corroborating evidence in the form of
prompt lodging of F.I.R. The complaint of P.W.1 Gausbee was
recorded in the hospital itself vide Exh.18 and offence was
registered within two hours thereafter at about 2.30 p.m.
11. The medical evidence of P.W.9 Dr. Manik Sangale, who
has conducted postmortem on the dead body of Noor also
proves that he has found three incised wounds and the cause of
the death was shock due to stab injury to abdomen. In his
opinion, the injuries were antemortem and sufficient in the
ordinary course of nature to cause the death.
12. In our considered opinion, this evidence of eye
witnesses, supported and corroborated with medical and other
circumstantial evidence about recovery of weapon at the
instance of appellant, is more than sufficient to prove on record
the guilt of the appellant.
13. The only submission advanced by learned counsel for
appellant is that the incident has taken place in a sudden fight.
There was no intention on the part of appellant or co-accused to
commit murder of Noor. Noor had come out of the house all of
sudden. Moreover, there was only one fatal injury found on his
body, therefore, the case of the appellant is covered by fourth
exception to Section 300 of IPC.
14. However, we are not inclined to accept this
submission as the evidence on record proves that it was not the
case of sudden fight and it was also not a case of single blow
given in a hit of passion. Conversely, the evidence on record
proves that the appellant, alongwith co-accused had come to the
house of deceased fully armed with sharp edged weapons like
sword, chopper and gupti. Therefore, it was with premeditation.
Medical evidence on record proves that though one injury to
abdomen is proved to be fatal, there were other two more
incised wounds and abrasions found on the body of Noor.
Therefore, it also cannot be said that the appellant or coaccused
have not taken undue advantage or not acted in cruel or
unusual manner. Hence all the necessary ingredients of fourth
exception to section 300 of IPC, are not satisfied in the instant
case. It may be true that the appellant and the co-accused had
not intended to cause the death of Noor, but then case falls
under Section 301 of IPC under the doctrine of transfer of malice
as all the ingredients of the offence of 301 of IPC are being made
out. The conviction of the appellant, therefore, as recorded by
the trial Court, for the offence under Section 302 of IPC needs to
be confirmed. The appeal, hence, stands dismissed.
[ACTING CHIEF JUSTICE.]
[DR. SHALINI PHANSALKAR-JOSHI, J.]
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