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2005 DIGILAW 105 (JK)

Mohd. Akbar And Ors. v. State

2005-04-08

NIRMAL SINGH, Y.P.NARGOTRA

body2005
PER NARGOTRA J: 1. Four accused were tried for murder of deceased Barkat Ali in the court of learned Sessions Judge Bhaderwah. Learned Sessions Judge Bhaderwah by his judgment and order dated 3/4.3.1997 convicted the accused for commission of offence under Sec.302, read with Section 34 R.P.C. and sentenced them to undergo imprisonment for life and to pay a fine of Rs.2000/-each. In default of payment of fine to undergo further simple imprisonment for a period of six months. Learned Sessions Judge Bhaderwah has made a Criminal Reference for confirmation of the sentence, whereas the accused are in appeal. 2. The accused are closely related to the deceased as accused No.1 Mohd Akbar is the brother of his grand-father. Accused No.4 Mohd Shafi is the son of Mohd Akbar and thus uncle of the deceased. Accused 2&3,Talib Hussain and Shabir Ahmed are also uncles of the deceased. The story of the prosecution briefly put is that there existed a dispute over a path leading to the land of brother of PW1 Ghulam Hussain,through the land of the accused. The accused closed that path and diverted it through the fences of the land of PW1 Ghulam Hussain. On 12.6.1990 the deceased Barkat Ali in order to close the path started fencing his land. At about 7.45 PM accused who are appellants herein came on spot. Accused Talib Hussain was armed with a danda and accused Shabir Ahmed was armed with a sota. Accused Akbar and Mohd Shafi were empty handed. On reaching the spot firstly they tried to remove the fencing of the complainant and when deceased Barkat Ali objected to it accused Mohd Akbar and Mohd Shafi who were empty handed caught hold of the deceased while firstly accused Shabir Ahmed gave a blow with his sota on the head of the deceased whereafter Talib Hussain inflicted a blow with his danda on the head of the deceased. The deceased fell down injured and became unconscious; blood started oozing out from his mouth and nose. Abdul Sattar who had reached the spot lifted the deceased from the scene of occurrence shifted him to his house. Dr.Abdul Majid and Nazir Ahmed Compounder were called. They examined the deceased, gave him first aid and finding his condition serious advised for his shifting to Gandoh hospital. Abdul Sattar who had reached the spot lifted the deceased from the scene of occurrence shifted him to his house. Dr.Abdul Majid and Nazir Ahmed Compounder were called. They examined the deceased, gave him first aid and finding his condition serious advised for his shifting to Gandoh hospital. A jeep was procured from one Ghulam Mustafa and the deceased was carried on stretcher up to village named Siai and from there he was carried to Gandoh hospital in the jeep. The deceased was brought to Gandoh hospital at 12 mid-night. PW1 Ghulam Hussain then left to lodge a report at police station Gandoh. He lodged written report on 13.6.1990 at 0100 hours. On his report FIR No.36/90- EXPWK, was registered for commission of offence u/s 307 RPC read with Sec.148/34 RPC, and investigation was commenced. Investigator PW 19 Tanveer Ahmed went to Gandoh hospital and sought the opinion of the doctor about fitness of the deceased to make a statement. The doctor opined that since the deceased was at that time unconscious so was not fit to make the statement. The doctor then referred to the deceased to Jammu hospital for better treatment. The I.O. went on spot, prepared the site plan of the occurrence, recorded statements of the witnessed u/s 161 and started search of the accused. The deceased who had been taken to Jammu hospital died on 14.6.1990 at Nagrota when he was being brought back to his home. The dead body was brought back. On receiving the information about the death of the deceased case was converted into one for commission of offence u/s 302 read with Sec.34 RPC. The dead body of the deceased was seized by the police and sent for postmortem. After postmortem dead body was handed over to the relations of the deceased for last rites. During investigation accused Shabir Ahmed and Talib Hussain made disclosure statements regarding sota and danda, the weapons offence and same were consequently recovered at their instance. The weapons of offence were shown to the doctor who opined about the possibility of injuries found on the person of the deceased being caused with said sota and danda. After completion of investigation charge sheet for commission of offences stated above was instituted against the accused. 3. All the accused were charged u./s 302/34 RPC and were called upon to plead. After completion of investigation charge sheet for commission of offences stated above was instituted against the accused. 3. All the accused were charged u./s 302/34 RPC and were called upon to plead. They pleaded not guilty; hence the prosecution was directed to lead evidence in support of the charge. It examined PW1 Ghulam Hussain,PW2 Abdul Sattar, PW3 Shokat Ali, PW4 Abdul Aziz, PW5 Zahoor Ahmed, PW7 Ghulam Hussain Bhel, PW8 Gh.Mustafa, PW12 Abdul Rehman, PW13 Kala, PW14 Paras Ram, Patwari, PW 15 Dr.M.A.Amin, PW 16 Dr.Abdul Majid and Investigator PW 19 Tanveer Ahmed as witnesses. Out of the witnesses examined by the prosecution PW1,Ghulam Hussain, PW2 Abdul Sattar and PW3 Shafkat Ali are eye witnesses. 4. PW1 Ghulam Hussain, who is the brother of the deceased, has stated that there was a footpath through the land of the accused for approaching his land. The accused closed the footpath through their land and diverted it through the fencing of his land. The complainant and his brother were mending their own fencing on 12.6.1990. All the four accused came there. Accused Talib Hussain was armed with danda and accused Shabir Ahmed was armed with a sota. Firstly they attempted to remove the fencing whereupon deceased Barkat Ali told them not to do so, on which Mohd Akbar and Mohd Shafi accused caught the deceased and accused Shabir Ahmed gave first blow on the head of the deceased with the sota and thereafter Talib Hussain inflicted a danda blow on the head of the deceased. The deceased fell down injured bleeding from his mouth and nose. He has also stated that when the accused were beating the deceased PW2 Abdul Sattar and PW3 Shafkat Ali reached the spot. 5. PW2 Abdul Sattar, the other eye witness has deposed that at about 7.45 PM he was sitting in the widow of house of Shah Mohd Tailor when some children playing on the roof shouted that some quarrel was going on. He saw Talib Hussain running, accompanied by Shabir and Mohd Akbar. He asked Talib Hussain not to quarrel but he replied that they will kill him. He followed them and in the meanwhile PW3 Shafkat also reached there. Shabir Ahmed accused inflicted sota blow on the head of Barkat Ali deceased first of all and thereafter Talib Hussain gave danda blow on his head. He asked Talib Hussain not to quarrel but he replied that they will kill him. He followed them and in the meanwhile PW3 Shafkat also reached there. Shabir Ahmed accused inflicted sota blow on the head of Barkat Ali deceased first of all and thereafter Talib Hussain gave danda blow on his head. Akbar and Shafi were beating the deceased with fists and had also caught him. 6. PW3 Shafkat Ali has stated that he was watering his vegetable fields. He saw Akbar and Mohd Shafi accused running towards the house of Nazir Ahmed. Thereafter Shabir and Talib were also seen going running towards the house of Nazir. Shabir and Talib were armed with sota and danda respectively. He also ran after them and Abdul Sattar PW2 followed him. When he was at a distance of about ten steps accused Akbar and Mohd Shafi caught the deceased and accused Shabir gave a sota blow on his head and then Talib Hussain gave a danda blow on the head of the deceased. The accused gave number of blows on the head of the deceased whereupon the deceased fell down on the ground. 7. The accused have termed the statements of these eye witnesses as false in their statements U/S 342 Cr.P.C. recorded after closure of the prosecution evidence. Learned trial court mainly relying upon statements of the eye witnesses came to the conclusion that the accused had committed the murder of the deceased in furtherance of a common intention and hence convicted them accordingly and sentenced them as aforesaid. 8. We have heard the learned counsel for the appellants Mr.Kazmi and the learned Addl.Advocate General Mr.S.C.Gupta. We have also perused the record of the case thoroughly and have also gone through the evidence tendered by the prosecution and the defence during the trial. 9. Mr.Kazmi learned counsel for the appellants submits that there is contradiction in the eye account of occurrence given by the three eye witnesses, therefore, their version cannot be accepted at their face value. He argued that PW1 Ghulam Hussain has stated that the accused when reached on spot first of all they tried to remove the fence of the witness, which deceased Barkat Ali was mending. He argued that PW1 Ghulam Hussain has stated that the accused when reached on spot first of all they tried to remove the fence of the witness, which deceased Barkat Ali was mending. Then, according to the witness accused Mohd Akbar andMohd Shafi caught the deceased and accused Shabir Ahmed and Talib Hussain inflicted two blows in succession with their sota and danda respectively on the head of the deceased whereas PW2 Abdul Sattar has stated that firstly Shabir Ahmed inflicted sota blow on the head of the deceased where after accused Talib Hussain inflicted danda blow on his head. Regarding accused Akbar and Shafi he has stated that they beat the deceased with fists and had also caught him. According to PW3 Shafkat Ali accused Akbar and Mohd Shafi caught the deceased and accused Shabir gave a sota blow on his head and then Talib Hussain accused gave a danda blow on the head of the deceased. He has further stated that number of blows were given on the head of the deceased by the accused where after he had fallen on the ground. Mr.Kazmi submits that there is a strong contradiction in the evidence of these three eye witnesses regarding the fact that accused Mohd Akbar and Mohd Shafi had caught the deceased. He submits that the manner in which the occurrence is said to have taken place it cannot be believed that these two accused would have caught the deceased and thereafter other two accused had inflicted sota and danda blows on his head. He submits that accused Mohd Akbar and Mohd Shafi cannot be said to have any common intention of killing the accused and therefore they cannot be convicted for his murder with the aid of Sec.34 RPC. Regarding accused Shabir Ahmed and Talib Hussain who inflicted sota and danda blows as per the version of the eye witnesses, Mr.Kazmi argued that even if the eye witnesses are believed, the offence u/s 302 RPC is not made out against them. According to him their offence clearly falls within the four corners of Sec.304 Part II. He submits that these accused have already remained in custody as under trial prisoners for a period of about nine years, therefore, their sentence merits to be altered to the period already undergone by them. 10. According to him their offence clearly falls within the four corners of Sec.304 Part II. He submits that these accused have already remained in custody as under trial prisoners for a period of about nine years, therefore, their sentence merits to be altered to the period already undergone by them. 10. Mr.Gupta, learned AAG, argued that the evidence of the eye witnesses is reliable, common intention of the accused to kill the deceased has been established by the prosecution cogently and, therefore, the accused have rightly been convicted u/s 302-RPC. 11. PW15 Dr.Mohd Amin examined the deceased in Gandoh hospital on 13.6.1990 at 12.30 AM.the occurrence being that of 12.6.1990 around 7.45 PM. On examination the deceased,who at that time was in an injured condition, made the following observations:- 1- Patient complains of head injury due to scuffle blood coming out from nose and mouth; 2- Bladder and bowel sphinters are incontinent; 3- A big haemotoma over the right temporal and right partial region. Bright red in colour; 4- A depressed fracture of anterior frontanalae (simple fracture); 5- Fracture with dislocation of both first metacorpo-phalyngeal joints (simple type); 6- Gradually increasing haemiplegia of left side. The patient was referred to Surgeon Specialist in SMGS Hospital Jammu for treatment on 13.6.90 forenoon. Later on it was reported that the injured died in Jammu. In his opinion injury Nos. 3,4 and 5 were grievous (dangerous to life) in nature and were caused by some hard blunt object. Duration of injuries was less than 6 hours. On being cross-examined he has stated that injury Nos. 1 to 6 may have been curable if the Surgeon Specialist would have been available for surgical intervention in Gandoh hospital. 12. PW16 Dr.Abdul Majid, who conducted the postmortem on the dead body of the deceased noticed the following injuries on the person of the deceased:- 1- A big bluish black haemotoma over the right temporal region and right partial region. A depressed fracture on the anterior frontenalla extending in to both partial bones. Bone chips were found on the fracture site. Membrances under fracture were torn. Blood clots between vaults and membrances present. Laceration of brain matter in right partial lob; 2- Fracture dislocation of body first metacorpo phallangal joints. He has given the details of description of fracture, position,lebnth,bn\readth,depth-anterior frontinella, 3�x1�x1/2� full thickness of bone. Bone chips were found on the fracture site. Membrances under fracture were torn. Blood clots between vaults and membrances present. Laceration of brain matter in right partial lob; 2- Fracture dislocation of body first metacorpo phallangal joints. He has given the details of description of fracture, position,lebnth,bn\readth,depth-anterior frontinella, 3�x1�x1/2� full thickness of bone. He has opined that the cause of death was head injury (fracture of skull bones leading to intracranial hemorrhage and damage of brain matter). He has also stated that the injuries were caused by blunt object. The treatment of the deceased was impossible because brain matter was damaged due to head injuries. The death could not have been avoided even if treated. He also proved his opinion that the injuries could be caused by sota and danda shown to him by SHO Police station Gandoh. 13. From the evidence of PWs 15 & 16 it is evident that death of the deceased was caused by the head injuries, which could be inflicted by some blunt object. None of the doctors has opined that the injury caused was sufficient in the ordinary course of nature to cause death. PW16 though has stated that the treatment was impossible because the brain matter was damaged and death could not have been avoided even if treated yet he has not opined that the injuries found on the head of the deceased were sufficient in the ordinary course of nature to cause his death. In the opinion of PW 15 Dr.Mohd Amin the injuries were curable if Surgeon Specialist had been available for surgical intervention in Gandoh hospital. 14. It is the admitted case of the prosecution that only two blows of sota and danda were inflicted by accused Shabir Ahmed and Talib Hussain (one blow by each accused).PW1 Ghulam Hussain who is also an eye witness has stated that on reaching the spot the accused had firstly attempted to remove the fencing of the complainant which was objected to by the deceased. From his evidence it cannot be disputed that the occurrence took place on the spot on the issue of removal of the fence, which was being put up by the deceased on the land of PW1 Ghulam Hussain. Therefore, there is strong possibility of scuffle or altercation ensuing between the rival parties before the actual occurrence. From his evidence it cannot be disputed that the occurrence took place on the spot on the issue of removal of the fence, which was being put up by the deceased on the land of PW1 Ghulam Hussain. Therefore, there is strong possibility of scuffle or altercation ensuing between the rival parties before the actual occurrence. The role assigned to Mohd Akbar and Mohd Shafi accused in the occurrence by PW1 Ghulam Hussain firstly is that they had caught the deceased and thereafter Shabir Ahmed accused gave a blow on his head followed by a danda blow by Talib Hussain. The version of PW2 Abdul Sattar however is that firstly Talib Hussain and accused Shabir gave danda and sota blows on the head of the deceased and thereafter Akbar and Mohd Shafi beat the deceased with fists. He has further added that they had also caught the deceased. In our view the fact that accused Mohd Akbar and Mohd Shafi had caught the deceased first and thereafter other accused inflicted danda and sota blows on his head seems to us to be improbable. If PW Abdul Sattar is believed then it does not seem probable that accused Akbar and Shafi had caught the deceased before other two accused inflicted blows on his head, as there would not be any occasion or necessity for them to catch hold of the deceased for facilitating infliction of danda and sota blows by accused Talib Hussain and Shabir Ahmed. In view of the stand taken by PW2,the version of PW1 Ghulam Hussain, and PW3 Shafkat Ali that firstly accused Mohd Akbar and Shafi had caught the deceased where after accused Talib and Shabir Ahmed had given danda and sota blows on the head of the deceased is rendered doubtful and accused Mohd Akbar and Mohd Shafi become entitled to benefit of doubt. 15. So for as accused Talib Hussain and Shabir Ahmed are concerned, all the three eye witnesses in unison have deposed that they saw these accused inflicting two blows with danda and sota in succession on the head of the deceased. The evidence of eye witnesses as against these two accused has remained unshaken despite lengthy cross-examination. There is nothing in their cross-examination by which their credibility could be impeached. 16. The evidence of eye witnesses as against these two accused has remained unshaken despite lengthy cross-examination. There is nothing in their cross-examination by which their credibility could be impeached. 16. The accused have put up simple denial to the said incriminating circumstances appearing in the evidence of eye witnesses but have entered defence and examined four witnesses. 17. DW1 Dilawar has simply stated that the deceased had closed down the path leading from the land after fencing the land but before the occurrence the accused never quarreled with any one and no litigation was launched by him in the police or the court and in the cross-examination he admitted that he cannot say how the deceased died. DW2 Nazir Ahmed,who is a Medical Assistant has stated that he was informed by some person that Barkat Ali had sustained injury and is unconscious, so he went to see him and examined him and gave him an injection and referred him to Gandoh hospital. He has further stated that neither police nor Tehsildar visited the hospital. PW3 Mohd Ramzan has stated that the deceased had sustained injuries but he cannot say how. DW4 Abdul Siddique has stated that police came on spot, arrested the accused but nothing was found on their search. There was no dispute between the deceased and the accused. From the evidence tendered by the defence it appears that it was led by the defence for the sake of leading defence evidence. It is not relevant on any score to the occurrence in issue. 18. Thus from the evidence of eye witnesses PWs.1 to 3 we find that the prosecution has succeeded in proving completely and cogently the fact that accused Talib Hussain and Sahbir Ahmed inflicted one blow each from their danda/sota respectively on the head of the deceased which caused two injuries on his head. The deceased admittedly did not succumb to the injuries instantaneously but died on 14.6.1990 at Nagrota when he was being brought back i.e. about three days after the occurrence. The injuries found on the deceased have not been opined to be sufficient in the ordinary course of things to cause death of the deceased. The question arises whether the act of the two accused which resulted into death of the deceased falls within the meaning of Sec.300 R.P.C. so as to make them liable for punishment u/s 302 RPC. 19. The question arises whether the act of the two accused which resulted into death of the deceased falls within the meaning of Sec.300 R.P.C. so as to make them liable for punishment u/s 302 RPC. 19. In the face of the evidence of the eye witnesses it cannot be disputed by the appellants, and rather it has not been disputed by learned counsel for the appellants, that death of the deceased was caused by act of the accused. Since the accused are alleged to have given only two blows i.e. one blow by each, it cannot be said that the intention of the accused was to cause death of the deceased. Looking at the injuries which resulted from the blows inflicted by the accused it can also not be said that the intention of the accused was to cause such bodily injury which they knew to be likely to cause death of the deceased, nor the injury was sufficient in the ordinary course of nature to cause death as there is not even the opinion of the doctors to that effect. It can also not be said that the accused knew that their act of causing injury was imminently so dangerous that death of the deceased in all probability will be caused. Therefore the acts of the accused do not fall within the ambit of Sec.300 RPC. In our considered opinion however, same squarely falls within the ambit of Sec.304, Part II, RPC as the knowledge that the injury caused was likely to cause death can be attributed to the accused because accused Talib Hussain and Shabir Ahmed, who caused the said injuries on the head of the deceased are expected to know that death of the deceased could be the result. 20. For the reasons stated above, we acquit accused Mohd Akbar and Mohd Shafi by giving them benefit of doubt and alter the conviction of accused Talib Hussain and Shabir Ahmed to Section 304,Part II, RPC. Since the accused have already undergone imprisonment during trial, till they were released on bail, for a period of more than eight years, so their sentence is also altered to the period already undergone by them. The appeal is accordingly partly allowed and the judgment of the trial court shall stand modified to the aforesaid extent. Criminal Reference made by the learned Sessions Judge U/S 374 Cr.P.C. is answered accordingly. The appeal is accordingly partly allowed and the judgment of the trial court shall stand modified to the aforesaid extent. Criminal Reference made by the learned Sessions Judge U/S 374 Cr.P.C. is answered accordingly. The bail bonds of the accused shall stand discharged.