Research › Search › Judgment

J&K High Court · body

2004 DIGILAW 285 (JK)

Bilal Ahmad Hajam v. State Of J. &K.

2004-10-08

R.C.GANDHI, S.N.JHA

body2004
Per R. C. Gandhi, J. This appeal has been preferred against the judgment and order passed by the learned Sessions Judge, Baramulla whereby the appellant/accused has been convicted and sentenced vide order dated: 12.3.2003 and 8.4.2003 respectively to suffer imprisonment for life, having committed offence punishable under section 302 RPC with further direction that the period already undergone in custody shall be treated as set off. 2. The brief facts of the prosecution case are that: on November 20, 1997 at 15.15 hours Police Station Sopore received reliable information through some undisclosed source that a constable deputed on examination duty in Government Girls High School, Bomai, Sopore has fired at Farooq Ahmad Dar who was on the examination duty and the injured has been taken to Sopore Hospital. On receipt of this information FIR No. 450 of 1997 was registered for alleged commission of offence punishable under section 307 RPC and entrusted the investigation to Sh. Shareef-ud-din, Assistant Sub-Inspector. He went on spot, conducted preliminary inquiry, seized the rifle and recorded the statements of some witnesses. Injured was shifted to Sheri-Kashmir Institute of Medical Sciences, Soura, Srinagar (for short "SKIMS"). Ghulam Mohi-ud-din Sub-Inspector went to SKIMS to record the statement of the injured. The injured could not make his statement because of his serious condition. He succumbed to the injuries in SKIMS. The offence was changed from 307 RPC to 302 RPC. The investigation was handed over by the SSP, Sopore to the Dy. Superintendent of Police, Headquarters, Baramulla. 3. During investigation it revealed that Bilal Ahmad Constable No. 577, 14th Bn. JKAP, F-Company was issued 303 rifle alongwith 10 cartridges in his name. He was deputed on 20.11.1999 alongwith Ghulam Hassan No. 173 of 12th Bn., JKAP in Government Girls High School, Bomai for watch and ward of the examination centre. Some police personnel of 67 Bn: BSF were also deputed there for duty alongwith one Officer namely Sh. Balbir Singh. Mohammad Yousaf Bhat, Lecturer, Boys High School, Hajan was appointed Superintendent by the Board of the Examination Centre. Farooq Ahmad Dar victim was Dy. Superintendent of the Examination Centre. The BSF personnel reached at the centre at 12.30 PM while the examination was to start at 1 PM. The JKAP personnel reached the Centre one hour late i.e. at 1.30 PM. Their identity chards were checked by the BSF personnel and were allowed to enter the examination centre. Farooq Ahmad Dar victim was Dy. Superintendent of the Examination Centre. The BSF personnel reached at the centre at 12.30 PM while the examination was to start at 1 PM. The JKAP personnel reached the Centre one hour late i.e. at 1.30 PM. Their identity chards were checked by the BSF personnel and were allowed to enter the examination centre. The BSF personnel were deployed around the wall of the lawn of the school. While the examination was on; the police personnel entered the rooms of the examination centre and started searching the students. The Superintendent of the Centre told the police personnel not to do it inside the rooms as it was not part of their duty. The accused and his colleagues got enrage on it and after coming out from the rooms started raising noise in the lawn of the School. Superintendent of the Centre instructed them not to raise the noise as it disturbs the examinees. Police personnel accused the Superintendent of helping the examinees in copying. The BSF personnel also heard the accused making noise but they did not interfere. Ghulam Hassan, Head Constable, informed Sh. Giyas-ud-din Headmaster of the school about it. The Headmaster alongwith staff entered the premises and at the same time BSF Sub-Inspector also entered the premises. The Headmaster inquired from the Superintendent of the Centre whether examinees have been permitted to copy. The Superintendent denied it and stated that police party is annoyed because they came late on duty and the Superintendent told them that their late coming will be brought to the notice of the SHO after the examination is over. They threatened the Superintendent to arrest him. This exchange of hot words continued for about half an hour. In the meantime the Dy. Superintendent and Farooq Ahmad Dar deceased came out from the room to the Verandah and loudly said that the noise raised is disturbing the examinees and instructed the police personnel to stop it, so that the examinees may comfortably take there examination. He intended to return towards his room, the accused fired a shot at him from his 303 rifle. The bullet hit the deceased causing injury on the left side of the chest little below the left shoulder. The bullet pierced and exit hit the ceiling of the verandah where the deceased was standing. The deceased fell down near the stairs and bleeded profusely. The bullet hit the deceased causing injury on the left side of the chest little below the left shoulder. The bullet pierced and exit hit the ceiling of the verandah where the deceased was standing. The deceased fell down near the stairs and bleeded profusely. He was lifted and carried to the Sopore Hospital in a vehicle. Two students also accompanied. The BSF personnel snatched the rifle from the accused and handed over the same to Ghulam Hassan Head Constable. The accused and Ghulam Hassan Head Constable were dropped in a car near the Kapra Theatre at Sopore. The injured was taken to the Sopore Hospital where he was examined but because of the seriousness of the injury he was referred to SKIMS, Soura-Srinagar. Mohmmad Rafi Dar and Hilal Ahmad accompanied the injured. His statement could not be recorded as the doctors declared him not fit for making the statement. He was operated upon in SKIMS, Soura, Srinagar. Mohammad Rafi Dar and Hilal Ahmad donated blood to the deceased. He was taken to Intensive Care Ward where he succumbed to his injuries. 4. The prosecution collected the evidence and cited 49 witnesses to prove the guilt. The challan was presented before the Chief Judicial Magistrate on 24.12.1997 who committed it to the court of Sessions Judge, Baramulla. The accused was charge sheeted on 18.9.1988 for prima facie having committed an offence of culpable homicide amounting to murder punishable under section 302 RP C. Accused pleaded not guilty and was put to trial. The prosecution produced before the trial court 26 witnesses out of 49. 5. The prosecution to prove the guilt produced before the court, PWs: Mohmmad Yousaf Bhat, Superintendent of the examination centre, Gayas-ud-din, Headmaster of the School, who was designated as Inspector of the examinations. Ghulam Hasan Teeli, Supervisor of the examination centre. Mohmmad Ayoob Shah, Assistant Superintendent. Shareef-ud-din, Abdul Ahad and Ali Mohmmad Antoo, officials of the Government Girls High School, Bomai, who were working in the examination centre. Ghulam, Nabi Darzi, Dy. Superintendent of the Examination Centre, Shaba Ahmad Kar, another Supervisor of the Examination Centre, Mohmmad Shafi Lone and Mohmmad Sadiq students and examinees of the same centre. These witnesses have been cited to prove the occurrence by ocular evidence. Abdul Majid Mir, carpenter who cut down the piece from the plank of wood hit by the bullet. Superintendent of the Examination Centre, Shaba Ahmad Kar, another Supervisor of the Examination Centre, Mohmmad Shafi Lone and Mohmmad Sadiq students and examinees of the same centre. These witnesses have been cited to prove the occurrence by ocular evidence. Abdul Majid Mir, carpenter who cut down the piece from the plank of wood hit by the bullet. He is a witness to the seizure memo EXPW 2/1 also and has proved it. Another set of evidence is of police personnel PWs Ghulam Hassan Mir, Head constable of JKAP, Balbir Singh SI, Dharam Paul Singh Constable, 16th Bn, Ghulam Ahmad Head constable, JKAP 14th Bn, to prove the occurrence. The police personnel who investigated the occurrence and the police personnel of the Police Station to prove the Rifle and deployment have also been cited and examined. Ghulam Mohi-ud-din SI, who obtained the opinion of the doctor with regard to recording of the statement of the accused and who filled up the form for the purpose has also been examined. He has proved it as EXPW-36. He has also proved the injury form exhibited as EXPW 36/1 in his hand writing. PW Mohmmad Jaffar Head constable presented the Roznamcha/daily diary of the Police Station to the Investigating Officer which has been exhibited as EXPW 18/1. The entry No. 11 of page 60 of the Roznamcha proves that the accused was deputed on duty for watch and ward duty of the examination centre. Ghulam Hassan, Head constable 14th Bn: has proved that the accused was deputed alongwith 303 rifle and 10 life cartridges. Saif-ud-din ASI, Mohmmad Yousaf Band Inspector, SHO P/S Sopore, Mohmmad Sultan ASI has proved that the police personnel were deputed to the examination centre, Mohmmad Yasin has proved that the Investigating Officer seized the guard book from the armed police which include the details of the deputation of the police personnel. He has proved the seizure memo exhibited EXPW 47, the Investigating Officer Ghulam Hassan; Dy. Superintendent of Police has also been examined. He has proved the site plan EXP 49, seizure of the Roznamcha, Guard Book exhibited as EXPW 47 and EXPW 108. Dr. Ghulam Nabi Lone, Dr. Abdul Gani Ahanger of SKIMS, have also been examined who have proved the certificate and injury statement. The medical certificate is exhibited as EXPW-M and has been proved by Dr. Ahanger. He has proved the site plan EXP 49, seizure of the Roznamcha, Guard Book exhibited as EXPW 47 and EXPW 108. Dr. Ghulam Nabi Lone, Dr. Abdul Gani Ahanger of SKIMS, have also been examined who have proved the certificate and injury statement. The medical certificate is exhibited as EXPW-M and has been proved by Dr. Ahanger. The trial court appreciating the evidence of the prosecution has convicted and sentenced the appellant. 6. The appellant has challenged the order of the trial court on the ground that the trial court has not appreciated the evidence in its right and legal perspective and has thus come to erroneous conclusions. 7. We have heard learned counsel for the parties and perused the record. 8. The main plank of the arguments of learned counsel as canvassed at the bar is that there are two sets of evidence and where there is such nature of evidence, the accused is entitled to benefit of doubt. 9. Another plea raised is that the alleged offence committed by the appellant does not fall within the ambit of culpable homicide amounting to murder and it at the most falls within the purview of culpable homicide not amounting to murder. 10. Mr. Hussain, learned counsel for the appellant, to make out that there are two sets of prosecution evidence, has relied upon the statement of P.W. Ghulam Hassan Head constable who was also deployed alongwith the accused on guard duty of the examination centre. He has deposed in his statement that he found a lot of noise in the Examination Centre and asked the Superintendent of the examination centre that the examinees be not permitted to copy. The deceased objected and tried to assault the accused. The deceased and four more teachers fell upon the accused and bullet got fired from the rifle which hit Farooq Ahmad deceased and the ceiling of the verandah. The accused stood up from the ground and his uniform was found torn. 11. Prosecution has examined seven eye witnesses who are the Superintendent, Dy. Superintendent, Students, Supervisors, BSF personnel. All these witnesses have supported the prosecution story. The ocular evidence is so strong and corroborative which leaves no compartment for any shadow of doubt. The accused stood up from the ground and his uniform was found torn. 11. Prosecution has examined seven eye witnesses who are the Superintendent, Dy. Superintendent, Students, Supervisors, BSF personnel. All these witnesses have supported the prosecution story. The ocular evidence is so strong and corroborative which leaves no compartment for any shadow of doubt. The version of P.W Ghulam Hassan Head constable has not been supported even by a word of his statement by other eye witnesses to the occurrence that the deceased alongwith four teachers tried to assault the accused and the bullet got fired and the uniform in the assault was torn to shreds. Uniform has not been seized. No FIR to this extent has been filed. Version of PW Ghulam Hassan is an improvement of his statement which cannot be taken to have any legal value to damage the prosecution case. All other prosecution witnesses except Ghulam. Hassan have supported the prosecution story that the deceased standing in the Verandah of the Examination Centre instructed the police personnel not to raise the noise as the examinees are being disturbed and in the meantime the enraged accused fired at the deceased. His statement in isolation leads no credence and cannot be believed. This statement cannot be said to be two sets of prosecution evidence which is only an improvement of the statement before the Court. 12. PW Mohmmad Yousaf Bhat, Supdtt. of the examination an eye witness has deposed that the police personnel entered the Examination Centre and started checking the examinees. He asked the constable as to why he entered the room. He got enraged and raised his voice and said that he would inform his officers that the policemen are not being permitted to enter the rooms. Both the policemen came out of the rooms and went towards the fencing of the school. The policemen returned alongwith the BSF Inspector Mr. Thapa and asked this witness to comedown from the Verandah so that the witness is arrested. Meanwhile the Headmaster Mr. Gayas-ud-din and his staff members also entered the lawn of the school. This witness replied that the policemen need not arrest because at the close of the examination he would himself go to the Police Station and talk to the higher Officer about the late coming of the policemen. Meanwhile they reached near the Verandah of the building and raised their voice. This witness replied that the policemen need not arrest because at the close of the examination he would himself go to the Police Station and talk to the higher Officer about the late coming of the policemen. Meanwhile they reached near the Verandah of the building and raised their voice. The students inside got disturbed. Farooq Ahmad deceased came out of his room and asked the policemen to keep silent as it disturbed the students. As soon as he started turning back, Bilal Ahmad constable fired at him. The bullet hit the left shoulder of the deceased and he fell down. He stood up, he was bleeding profusely. This witness has supported the prosecution story. The other six eye witnesses have also supported the prosecution version corroborating each other. 13. The next plea of the learned counsel for the appellant is that the alleged commission of offence does not fall within the ambit of culpable homicide amounting to murder. This argument was also raised before the trial court and has been appreciated by the trial court and rejected. 14. Prosecution has established by leading ocular and medical evidence that bullet had pierced the left side of chest little below the shoulder. It entered the body on the left upper portion of the chest and made an exit through the left axilla and left arm Ist, 2nd and 3rd ribs on the left side were fractured. A wound was caused on the left lung. Small vessels in chest and left arm were damaged. The victim had bleeded profusely because of the serious injury. He got cardiac respiratory arrest. He was shifted to Intensive Care Unit and heart was revived with respiratory aids. Despite that he could not revive and succumbed. The evidence confirms the wound of the bullet injury. Apart from the ocular and medical evidence, to connect the accused with the commission of the offence, other documentary and incriminating pieces of evidence has also been proved to bring home the guilt. The report has been proved and exhibited as EXPW1/l, appointment of the deceased as a Dy. Superintendent of the Examination Centre as WXPW1/II, wooden piece where the bullet after piercing the body of the deceased hit is exhibited as EXPW2/1, the guard book as EXPW47, injury form as EXPW36/1, and injury sheet as EXPW 18/1. The report has been proved and exhibited as EXPW1/l, appointment of the deceased as a Dy. Superintendent of the Examination Centre as WXPW1/II, wooden piece where the bullet after piercing the body of the deceased hit is exhibited as EXPW2/1, the guard book as EXPW47, injury form as EXPW36/1, and injury sheet as EXPW 18/1. Another injury sheet EXPW 45/2, site plan as EXPW 45, empty cartridge and Riffle as EXPW24/1. 15. On reappraisal of the evidence and to appreciate the plea of the learned counsel for the appellant, it is to be examined as to whether the offence committed by the appellant falls within the ambit of culpable homicide amounting to murder or culpable homicide not amounting to murder. Section 300 RPC, relevant for the purpose is extracted below: "300. Murder: -- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly: -- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused, or- Thirdly: -- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly: -- If the person committing the act knows that it is so imminently dangerous that it must in all probabilities cause death, or such bodily injury as is likely to cause death, and commits such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. The broad distinction between clause fourth and other clauses of this Section is that in first three clauses, the important and significant feature is an intention to kill or to cause bodily injury, while clause fourth does not admit such an intention. This clause is designed to meet cases in which the accused may not be intending to cause death or to cause such bodily injury as is likely to cause death but commits an act knowing it to be so imminently dangerous that death will most probably be the result of such an act with inexcusable recklessness of the probable result of the act. 16. 16. Clause 4thly: apprehends the commission of imminently dangerous act which in all probabilities must cause death or cause such bodily injury as is likely to cause death. When such an act is committed with the knowledge that the death might be the probable result and without any excuse for incurring the risk of causing of death or causing injury as is likely to cause death, the offence is culpable homicide amounting to murder. The injury has been caused by police personnel to the deceased by gun fire. He being a member the Police Service and having undergone all the requisite police trainings was aware that if gun bullet is fired at a person, it is imminently dangerous act which in all probability may cause death or such bodily injury as is likely to cause death. There is no scope to doubt that the police personnel is not aware of the knowledge. He knowing well the dangerous consequences of causing death or bodily injury by such fire has without any excuse incurred the risk by committing such act. The bullet injury has damaged the ribs and the lung of the deceased. The excessive bleeding was caused due to damage of the lungs because of the bullet injury. 17. In case titled Sehaj Ra. v. State of Haryana reported in AIR 1983 SC 616 where the murder was committed by gun shot by a police constable, one of the bullets hit below the knee of the right leg. The plea raised by the defence before the Apex Court was that the alleged offence committed would at the highest fall under Part I of Section 304 IPC. The Apex Court dealing with the plea observed as under: "When the appellant, a police constable, fired from his 303 rifle (he must have known that it was a deadly weapon) no other inference is possible but that he intended to cause such bodily injury as he knew to be likely to cause death of the person to whom the harm was caused. Clause 3rdly of Sec. 300 provides that if the act is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death it would amount to murder. Clause 3rdly of Sec. 300 provides that if the act is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death it would amount to murder. Again having regard to the facts narrated hereinabove no other conclusion is possible except that the appellant intending to inflict such bodily injuries to the deceased which were sufficient in the ordinary course of nature to cause death. In any view of the matter it would fall under clause 4thly, which provides that if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse of incurring the risk of causing death or such injury as aforesaid it would amount to murder". 18. In the case in hand the injury has been caused at such part of the body which has damaged not only the ribs but also the lungs. The offence committed by the appellant falls within the ambit of clause fourthly of Section 300 IPC. Therefore, the plea of the learned counsel for the appellant that the offence committed is culpable homicide not amounting to murder is rejected. 19. For the aforesaid reasons, the judgment of the learned trial court does not suffer from any illegality. The appeal is accordingly dismissed and the conviction and sentence awarded by the trial court is up-held.