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2000 DIGILAW 270 (JK)

Asad Sofi v. State Of J. &K.

2000-11-17

G.D.SHARMA, SYED BASHIR-UD-DIN

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Per Syed Bashir-ud-Din. J: 1. Four accused Appellants, on trial for charged offences under Section 302/34 RPC were convicted and sentenced to life imprisonment for having caused murder of Mohammad Sofi, by the District and Sessions Judge Budgam, vide his judgment and order of conviction and sentence dated 26-02-2000 respectively in Criminal Sessions case 1/96. Against this judgment order of conviction/sentence three accused Assad Sofi, Rahim Sofi and Ahad Sofi have come up in this criminal Appeal 2/2000. 2. The prosecution case is that on 12-12-1995 while deceased Mohammad Sofi and his son Ali Mohd Sofi were engaged in discussions in their compound at about 4 PM in their village at Peth Sharan Tehsil Beerwah, one Bashir Ahmad Dar happens to enter the compound and stand by them. One hearing the father and son, he laughed. Father and son took objection and the son Ali Mohd Sofi made him to go away from the spot. Soon after his father appeared on spot and objected to the conduct of the father and the son. The deceased apologized on which he returned, but almost at the same time accused-appellants, father and three sons tress-passes in the compound, Mohd Sofi caught hold of Mohd Abdullah Sofi™s collar and called his sons to attack and kill him. Accused were armed with sticks. The two sons Rahim Sofi and Ahad Sofi caught said Mohd Sofi by two arms while third son accused Assad Sofi dealt a single blow on his head. He fell down unconscious. The other accused also beat him. He was lifted and carried first to Police post Kulgam where from he was referred and taken to SKIMS Institute at Srinagar, where he died after six days due to the above injury which he sustained on his head. 3. On receipt of docket, Police Station Beerwah registered FIR 2414/91. The investigation was conducted. Statements of number of witnesses were recorded under section 161 Cr. P.C. site plan as also recovery memos/seizure memos were prepared, medical certificates and autopsy report were also obtained. The investigation culminated in sending up all the four accused for trial under section 302/497 R.P.C. No report was presented against named accused Bashir Ahmad for want of evidence. The case was committed to Sessions. The learned Sessions Judge Budgam, framed charges against accused-appellants under section 302/447/34 R.P.C. to which each of the accused pleaded not guilty. The investigation culminated in sending up all the four accused for trial under section 302/497 R.P.C. No report was presented against named accused Bashir Ahmad for want of evidence. The case was committed to Sessions. The learned Sessions Judge Budgam, framed charges against accused-appellants under section 302/447/34 R.P.C. to which each of the accused pleaded not guilty. Prosecution has examined and trial court recorded the statements of as many as 11 witnesses produced by the prosecution. The statements of the accused were recorded under section 242 R.P.C. Accused have in defence examined three witnesses. The trial ended in conviction of the accused for murdering Mohd Sofi under section 302/34 R.P.C. and convicting each accused to life imprisonment. Accused were acquitted of the charge of criminal trespass under section 447 R.P.C. 4. The learned counsel for the appellants submits that the learned trial Judge has not applied the norms and observed rules of evidence required to bring home guilt to the accused. The prosecution has not proved its case beyond reasonable doubt. The evidence of relation witnesses has not been scrutinized with care and caution. He further submits that even taking the prosecution case in full on the evidence led by it, only accused Assad Sofi can be convicted and that too under Section 304 RPC in so far as the evidence disclose that the accused Assad Sofi dealt a single blow with Lathi, which he was carrying in ordinary course, in the middest of rising tempers following a quarrel, without any intention to cause death. At the most Assad Sofi can be said to have the knowledge that his act of striking head of deceased Mohd Shafi, with lathi can result in an injury to him likely to cause his death. The counsel also canvases that other accused, two sons and father never shared common intention with Assad Sofi, the fourth accused. Sharing of common intention by accused is not at all substantiated. Vicarious liability enshrined by Section 34 RPC cannot apply to this case. Accused can be punished for their proved individual incriminating penal acts and not for a graver offence on the basis of charge of sharing of common, intention under Section 34 R.P.C. 5. Addl. Advocate General in defence solicits that the Sessions Judge has appreciated the evidence in right perspective. Accused can be punished for their proved individual incriminating penal acts and not for a graver offence on the basis of charge of sharing of common, intention under Section 34 R.P.C. 5. Addl. Advocate General in defence solicits that the Sessions Judge has appreciated the evidence in right perspective. There is overwhelming evidence both ocular and medical to pointedly prove the complicity of the accused in the commission of the crime. Merely because, some of the eye witnesses are close relation of the deceased that perse is no ground to find fault with their evidence, when the trial Judge has been live to the circumstance of scrutinizing their evidence with care and caution. The case against the accused Assad Sofi has been proved beyond reasonable doubt and the complicity of the other accused under Section 34 RPC cannot be also found fault with. The conviction of accused under Section 302/34 RPC and their sentence to life imprisonment is based on evidence. To appreciate the contentions of the learned counsel for the parties, we proceed to deal with the matter and examine the case. 6. In criminal trials the normal rule of standard of proof and discharge of burden to prove is epitomized by phrase proved beyond reasonable doubt�. The general or primary burden of proving the case is on prosecution. 7. In Shared Birdhichand Sarda Vs. State of Maharashtra (AIR 1984 SC 1622), the court observed:- This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence.� Only because the prosecution witnesses or some of them are related to the man killed, their evidence cannot be discarded perse on that ground, if otherwise their evidence is reliable. However, such witnesses have tendency to exaggerate things and facts. Their evidence has to be scrutinized with care and caution. See Sharad Bridhichand Sarda Vs. State of Maharashtra (AIR 1984 SC 1622); State of UP Vs. Suresh (AIR 1982 SC 1076) and Gurcharan Singh And Anr Vs.State of Punjab (AIR 1956 SC 460). In AIR 1983 SC: 839, the court observed:- ...the mere fact that the witnesses were relations or interested would not be itself sufficient to discard their evidence straightway unless it is proved that their evidence suffers from serious infirmities which raise considerable doubt in the mind of the court.� In Brathi Alias Sukhdev Singh Vs. In AIR 1983 SC: 839, the court observed:- ...the mere fact that the witnesses were relations or interested would not be itself sufficient to discard their evidence straightway unless it is proved that their evidence suffers from serious infirmities which raise considerable doubt in the mind of the court.� In Brathi Alias Sukhdev Singh Vs. State of Punjab (AIR 1991 SC : 318) in the context of relation witnesses, it is observed:- ... There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are closely related to the deceased, it has to be very careful in evaluating such evidence but the mechanical rejection of the evidence on the sole ground that it is interested would that it is interested would invariable lead to failure of justice...� 8. We have scrutinized the evidence of prosecution witnesses Mohd Subhan Sofi PW 1; PW4; and Akbar Sofi PW5; all sons of the deceased. We have also minutely examined the evidence of Abdul Rashid Sofi PW6; Ghulam Mohd PW 10. The evidence of Patwari Ghulam Hassan Malik PW 9 and Abdul Gaffar, ASI, Investigating Officer has been also gone through. The defence of accused in the light of their statement recorded under Section 342 C.P.C. and the evidence tendered in defence by Mst. Fazi (wife of accused Mohd Sofi and mother of other accused) Ghulam Mohd Wani and Abdul Hamid has been as well perused. On the facts and circumstances of this case, we find that while the learned District and Sessions Judge discussed and examined the prosecution evidence on record, he has ignored some vital aspects and pieces of evidence. He has not adverted to and taken notice of the material features of the case, which could not have been lost sight of in so far as same have a vital bearing on the nature of offence committed and award of sentence. These feature and aspects of the case have to be considered and the evidence led thereto is to be scrutinized and appreciated in the totality of facts and circumstances of the case. 9. It is in evidence of all the prosecution witnesses that immediately before the occurrence resulting in death of Mohd Sofi, there was an incident involving Bashir Dar and his father on one side and the deceased and his son Wali Sofi on otherside. There was wordy duel and altercation between them. 9. It is in evidence of all the prosecution witnesses that immediately before the occurrence resulting in death of Mohd Sofi, there was an incident involving Bashir Dar and his father on one side and the deceased and his son Wali Sofi on otherside. There was wordy duel and altercation between them. However, no sooner this part of the occurrence subsided consequent on deceased expressing regrets for his sons misconduct in forcing out Bashir Dar from compound, it was instantaneously followed by later part of the occurrence when accused appeared on the scene. There was exchange of hot words preceded by arguments between the accused and the deceased and his son. They also engaged in a brawl. The two sons of the deceased Ahad Sofi PW 4 and wali Sofi PW 3, have even stated that the accused were enraged and tempers rose. It is also in evidence of some of the witnesses that the accused took side on behalf of Bashir Dar and his father and were drawn in quarrel. Accused father and his three sons quarrelled with deceased. Subhan Sofi PW 1, states that there was no enmity or any other motive for the brawl and the incident which occurred. The evidence shows that everything did happen on spur of the moment. 10. Complainant PW 1 and another witness Ghulam Mohammad Sofi, PW 7 have deposed that accused Assad Sofi was carrying danda from his home when his two brothers, accused Rahim and Ahad, picked up dandas only on spot during the course of the quarrel and yet Ali Sofi, PW2 states that only Assad Sofi was armed with danda. Witness Abdul Ahad Sofi, PW 8, Wali Sofi, PW 3, Ahad Sofi PW 4, Ghulam Mohd Sofi PW 7, Mohd Akbar Sofi, PW 5 and Abdul Rashid Sofi PW 6, have all testified that in fact Ahad Sofi and Rahim Sofi caught deceased Mohd Sofi™s two arms, while Asad Sofi dealt the fatal danda blow on his head. The medical evidence EXPW M, postmortem report and the other two certificates EXPW M/1, and EXPW M/2 when read in the context and with the statement of Dr. Roman Khan Asstt. Surgeon, go to show that the deceased carried only one injury at right parietal area of head. No other injury is recorded either in the autopsy report or in the injury report/certificate of the Doctor. Roman Khan Asstt. Surgeon, go to show that the deceased carried only one injury at right parietal area of head. No other injury is recorded either in the autopsy report or in the injury report/certificate of the Doctor. The doctor has recorded that the deceased Ghulam Mohd Sofi bore fracture at right parietal area of head with subdural heamotoma covering about middle 1/2 of the brain. He opined that the cause of death is Cranio-cerebral trauma with multiple intra cerebral bleeds�. It is also hi the evidence that death in this case could not have been instantaneous. The witness has nowhere stated that the injury in this case is sufficient in the ordinary course of nature to cause death. No question on this aspect of the case was asked from the witness by the prosecution. The deceased Mohd Sofi died seven days after the hospitalised. Though the Doctor has opined that the death in this case has occurred 2/3 days after Mohd Sofi sustained the injury in question, yet death in this case took place after six days after the incident in hospital. 11. Now in such circumstances can the accused be convicted under Section 302 RPC read with Section 34 RPC and sentenced accordingly as is done by the trial court judgment. We do not find ourselves in agreement with the District and Sessions Judge to record conviction and sentence under Section 302 read with Section 34 RPC. 12. In State of U.P. Vs. Inderjit (2000 AIR SCW 3414) where the accused a Carpenter by profession in the early hours entered the house of one Phoolmati and dealt some blows to her and her family members with ˜Rukhani™ (an implement normally used by the Carpenters) the Supreme Court observed:- .. Though the intrusion into the hut by the respondent in the early hours of the morning may be construed to be with a sinister intention or purpose, but from the type of the weapon he was carrying, it could not be either reasonably or legitimately postulated that it was with the intention of committing the murder of the victim or inflicting upon the victim such a grave/serious injury sufficient to cause her death, particularly when he would be fully aware of the fact that in the hut the father and the mother of the deceased would also be present at that time. 13. In Sri Kishun and ors Vs. 13. In Sri Kishun and ors Vs. State of U.P. (1973 I SCR 734), it was held that, apart from the injury on the head of the deceased which proved fatal, the other injuries on the body of the deceased were not of serious nature and that there was no previous enmity between the parties and that the quarrel arose over a tree felling incident and therefore, the finding of the High Court was justified in negating the common intention and recording of conviction and sentence for grievous injury under section 325 IPC and that accused could only be convicted and sentenced for the individual offence committed. Though it cannot be said to be a rule of thumb, that when a lathi blow is administered resulting in death of the victim, the preparator cannot be said to have the requisite intention or knowledge of causing death, but all the same the conclusion to be drawn as to the culpability of the accused and the nature of incriminating act depends on the facts and circumstances of each case. Keeping in mind that the medical evidence showed that the lathi blow received by Mohd Sofi on his head as deposed by the witness was not sufficient in ordinary course of nature to cause death and that the instaneous death could not have taken place and that the deceased died after about one week after hospitalisation, coupled with the incident having taken place on spur of the moment preceeded by quarrel and roused tempers, it can be said that the act of Assad Sofi who dealt the fatal blow did amount to culpable homicide not amounting to murder under section 304 (II) RPC. As to the culpability of Assad Sofi in dealing the fatal blow in the aforesaid circumstances, there is overwhelming evidence. No other conclusion except as above can be drawn from the evidence on record. The defence version has to be tested in the light of statements recorded under section 342 Cr. P.C. and the evidence tendered by the defence witnesses. Defence version has not been rightly believed by the Session Judge. The defence appears to have been tailored and seems to be an attempt to hood wink the lenses of evaluation and misguide the mechanism of appreciation of evidence. 14. P.C. and the evidence tendered by the defence witnesses. Defence version has not been rightly believed by the Session Judge. The defence appears to have been tailored and seems to be an attempt to hood wink the lenses of evaluation and misguide the mechanism of appreciation of evidence. 14. The other important question which merits to be addressed in the facts and circumstances of the case is whether the accused shared a common intention to perpeterate the offence. Now having regard to the facts and circumstances of the case, it cannot be said that the three accused shared the common intention with Assad Sofi accused, of causing the injury resulting in culpable homicide not amounting to murder made penal by Section 304 Part (II) RPC. 15. Assad Sofi alone can be attributed with the knowledge that his act of delivering the fatal blow on the head of Mohd Sofi is likely to cause death, though without any intention to cause death or to cause such bodily injury as is likely to cause death. The other three accused can be convicted and sentenced for their individual act(s). 16. In Ramashish Yadav and ors Vs. State of Bihar (2000 Cri .L.J 12), in the context of application of Section 34 RPC in a murder case, where two accused caught hold of deceased and other two accused gave blows with ˜Gandasa™ on the head of the deceased, resulting in his death, the Supreme Court observed:- ... Section 34 lays down a principle of joint liability in the doing of a criminal act. The assence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a prearranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It requires a prearranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be a prearrangement or premediated concert. This being the requirement of law for applicability of Section 34 IPC, from the mere fact that accused Ram Pravesh Yadav and Ramanand Yadav came and caught hold of Tapeshwar, whereafter Samundar Yadav and Sheo Layak Yadav came with ganasa in their hands and gave blows by means of gandasa, it cannot be said that the accused Ram Pravesh Yadav and Ramanand Yadavshared the common intention with accused Samundar Yadav and Sheo Layak Yadav..� 17. The evidence led in the case proves that the accused Mohd Sofi, Ahad Sofi and Rahim Sofi beat deceased Mohd Sofi and did cause him hurt as defined in section 119 RPC, made penal and punished by section 323 RPC, therefore, these accused, in absence of any vicarious liability of their sharing common intention with Assad Sofi for latters act of causing fatal injury with the knowledge that the death is likely to result, have to be convicted and punished for causing voluntary ˜hurt™. Once Mohd Sofi, Ahad Sofi and Rahim Sofi are held guilty of causing hurt as defined by Section 319 R.P.C. These accused are convicted of voluntarily causing hurt. The maximum punishment provided is one year imprisonment or fine which may extend to one thousand rupees or both under section 323 R.P.C. 18. The accused Assad Sofi is found guilty under section 304 (II) RPC of delivering the fatal blow on deceased™s head with knowledge that the injury was likely to cause death, though without any intention to cause death or to cause such bodily injury as is likely to cause death. The sentence provided is imprisonment of either description which may extend to ten years or with fine or with both. 19. The sentence provided is imprisonment of either description which may extend to ten years or with fine or with both. 19. Having regard to the nature and gravity of the offence committed and the circumstances in which it was committed in the context that the accused have no previous history or criminal record, accused Assad Sofi is sentenced to six years rigorous imprisonment under section 304 (II) RPC and the other three accused Mohammad Sofi, Ahad Sofi and Rahim Sofi are each sentenced to one years rigorous imprisonment under section 323 RPC as same appears just and proper. The period of detention under gone by the accused during investigation, enquiry or trial shall be adjusted and given set off against the above awarded imprisonment on conviction to accused in terms of Section 397-A of RPC. 20. In result, the appeal is allowed in part as above and the conviction and sentence of the accused are altered and modified to the extent indicated. The impugned judgment on other counts is maintained. 21. We notice that accused Mohd Sofi has not filed appeal against the conviction and sentence but keeping in view the interdependence and integrated nature of the findings qua the appellants and non-appealing accused, the conviction and sentence of Mohd Sofi is also altered as above and the said Mohd Sofi accused is also sentenced accordingly. 22. In Hari Nath and Anr Vs. State of U.P. & anr, (AIR 1988 SC 345), the apex court in the context of non appealing accused Pheku Singh observed:- .. The conviction and sentence of the non-appealing accused, namely, Pheku Singh cannot also be sustained consistent with the findings in and the result of these appeals as the findings are interdependent and inextricable integrated. The conviction and sentence of Pheku Singh are also set aside and the said Pheku Singh, the accused No. 3 in S.T.No. 168 of 1974 is also directed to be set at liberty forthwith.� 23. The contentions of Mr. S.T. Hussain, that as the Sessions Judge has failed to make a reference for confirmation of the life imprisonment awarded to accused as mandated by Section 374 Cr. P.C. the impugned judgment is vitiated and the appellants earn acquittal, is not merited, of course the Sessions Judge, for reasons known to him, failed to make a reference which he is under mandate to make under Section 374 Cr. P.C. the impugned judgment is vitiated and the appellants earn acquittal, is not merited, of course the Sessions Judge, for reasons known to him, failed to make a reference which he is under mandate to make under Section 374 Cr. P.C. But all the same, it is a curable defect and that too when the accused have filed appeal against their conviction and sentence. It is not shown that the accused have been at all prejudiced by Sessions Judge™s omission to submit the proceedings for confirmation of the sentence to the High Court. In like circumstances in Ram Kishori Panday Vs. State (1983 J&K Law Reporter page 63) Honble Dr. A.S. Anand, Chief Justice of this Court (as His Lordship then was) observed:- ... No doubt, Section 374 Cr. P.C. gives a mandate to the Sessions Judge to submit the proceedings for confirmation of the sentence of death or life imprisonment, a strict non-compliance with the requirement however would not vitiate the judgment unless of course, it is shown that the accused has been prejudiced by the omission to submit the proceedings to the High Court.� As this court examined the whole case and scrutinized and appreciated the evidence as a Court of Appeal and the accused not being least prejudiced by omission in submitting the proceedings to this Court, therefore, no illegality is attached to the judgment and order of conviction and sentence on that score. Appeal disposed of to the extent and as indicated in this judgment.