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2005 DIGILAW 190 (JK)

Mohd. Bhat v. State Of J. &K.

2005-07-25

MANSOOR AHMAD MIR

body2005
1. This judgment will lift the veil of this appeal, which is on the board of this Court for last 20 years. 2. In order to notice the facts, it is necessary to give the brief resume of the facts, the womb of which has given birth to the instant appeal. 3. On 25"August, 1983 at 2 AM, Ghulam Hassan Khan deceased made a verbal report in police station Kupwara which was entered in Naqlimad i.e. daily diary of police station Kupwara as report No.34. The allegations contained in the said report are as under;- That deceased had demanded Rs.30/-which Mohammad Bhat (appellant) owed to him but Mohammad Bhat refused to make the payment and challenged the deceased to go where he has to go". The deceased protested which provoked the appellant and the appellant hit stone on the head of the deceased. The other accused came on spot and beat the deceased with fists and blows. Ghulam Rasool Khan, brother of the deceased, came on spot and tried to rescue the deceased but he too was beaten by the accused 1 to 3 with sticks. The deceased Ghulam Massan Khan complained of pain in right side of the head and in the entire body. The deceased was referred to hospital without registering the case. 4. The Investigating Officer presented the charge sheet against the five accused with the allegation that all the five were involved in the commission of offence punishable under Section 302/147/149 of RPC. All the accused were charged and they pleaded not guilty and claimed to be tried. The learned Sessions Judge, Kupwara acquitted accused 2 to 5, however, convicted accused no. l i.e. appellant for the commission of offence punishable under Section 3041) RPC and sentenced him to undergo rigorous imprisonment for ten years and imposed fine of Rs.1,000/-. Feeling aggrieved of the said judgment, the appellant has preferred this appeal. 5. The meat of the matter is, whether the appellant has been rightly convicted and sentenced for the commission of the offences punishable under Section 304(1) RPC. In order to thrash out this question, it is necessary to marshall out the facts of the case in order to arrive at a just conclusion. It is not necessary to discuss entire evidence because learned Sessions Judge has given the brief resume of the evidence and has discussed the same. 6. In order to thrash out this question, it is necessary to marshall out the facts of the case in order to arrive at a just conclusion. It is not necessary to discuss entire evidence because learned Sessions Judge has given the brief resume of the evidence and has discussed the same. 6. PW1 Ghulam Rasool Khan, PW2 Mohmmad Aslam Khan, PW3 Gani Magray, PW4 Sona Bhat are eyewitnesses as shown in the witness calendar. PW5 Abdul Khaliq Bhat, PW6 Aziz Magray. PW7 Constable Ghulam Rasool, PW8 Ghulam Hassan Ganaie, PW9 SG Const. Mohammad Afzal, PW10 HC Mohammad Suliaman are witnesses to the seizure. PW11 Peer Saif-ud-Din, Patwari is wit-, ness to the revenue record. PW12 Prithvi Nath is the photographer. PW13 Dr. Bashir Ahmad, PW14 Dr. Subhash Hakhoo, PW15 Dr. Mohammad Afzal Wani have examined the deceased at District Hospital Kupwara, SMHS Hospital and at Soura Institute respectively. Dr. Abdul Rashid and Dr. Bashir Ahmad have conducted the postmortem of the deceased. 7. The charge against the accused is that at 4 PM the deceased made a demand of Rs.30/-to the accused (appellant), which he refused to pay and abused the deceased. The deceased objected which provoked the accused and gave beating to deceased and also struck a stone on the head of the deceased. The accused 2 to 5 also gave beating to the deceased. 8. The prosecution has to prove that the accused/ appellant gave beating to the deceased and struck a stone on his head and thereafter the accused 2 to 5 also gave beating to the deceased. But the evidence of the prosecution is that the deceased demanded money from the accused no. I/appellant. The accused/appellant refused to repay and abused him and along with accused 2 to 5 gave beating to the deceased. The accused/appellant hit a stone on the head of the deceased. 9. The deceased has reported and complained that he is feeling pain in right side of the head and pain all over the body. The injury sheet also discloses that the deceased has complained of pain in left side of the head. 10. The referral medical record has not been seized toy the police however, while going through the statement of the doctors it appears the deceased was referred-to SMHS Hospital from District Hospital, Kupwra and from SMHS Hospital to Soura Institute. Dr. The injury sheet also discloses that the deceased has complained of pain in left side of the head. 10. The referral medical record has not been seized toy the police however, while going through the statement of the doctors it appears the deceased was referred-to SMHS Hospital from District Hospital, Kupwra and from SMHS Hospital to Soura Institute. Dr. Bashir Ahmad, who has examined the injured on 25h August. 1983, has not been examined. He was the best expert who would have explained whether deceased had sustained injuries on right side or left side of the head. Thus adverse inference is to be drawn against the prosecution. Dr. Subhash Hakhoo has stated that the deceased was admitted on 26.10.1983 for two days in ward No. 16 and was under observation and no active treatment was given because he had an injury on his head. The deceased complained of persistent headache and nausea and was referred to Soura Hospital for observation and treatment. In cross examination, he has deposed that he does not remember whether deceased had any visible head injury. The deceased was referred to Soura Institute because no scanning facilities and no specialist in Neurology was available in the SMHS hospital. Dr. Mohammad Afzal Wani has deposed as under; - "In reply to a question put by the PP the witness stated that I have seen the photostat copy ofO.P.D Department which is known referral card. The original document was in the hand of one Dr. Makhan Lal Babu who had examined the patient namely Ilassan Khan deceased. I have attested the signatures on the photocopy on the file. Similarly I see the second leaf of this document that is also a Photostat copy and here also I have attested the signature of Dr. Makhan Lal Baku. This Photostat copy is marked as X for identification purposes. It appears that I have also seen the patient and I have advised the X-ray of the skull hut after taking the X-ray the patient has not been seen by me again. When I examined the patient first I did not detect any defect or any abnormality of the head of the patient. The learned counsel for the defence was given a chance to examine the witness but he did not want to put any question. " 11. When I examined the patient first I did not detect any defect or any abnormality of the head of the patient. The learned counsel for the defence was given a chance to examine the witness but he did not want to put any question. " 11. The referral medical record has not been seized, however, photo copy of the OPD department known as referral card is on the file which discloses that deceased was examined as OPD patient on 30 August, 1983 in the Institute and also on 6 September, 1983. Then it appears that deceased was admitted on 9th September, 1983. Where as the deceased right from the day when he was referred from SMI1S hospital to Soura Institute. Whether any private doctor treated him or he had gone to home, whether he had sustained some other injuries during these days. All these events would have been explained by constable 314 but neither he has been examined during investigation nor has been produced before the court. The Photostat copy of medical record i.e. referral record, reference of which is made, hereinabove reveals that deceased was admitted in Sour Institute on 9Ih September, and had died on 13 "September, 1983, 12. While going through record and evidence it appears that the deceased was admitted in SMHS Hospital on 26.08.1983 and not on 26.10.1983. Thus Dr. Subhash Hakhoo has not (sic) given the correct date of admission in his statement. Thus his statement is not correct to that extent. 13. While going through the post-mortem report, it reveals that the deceased has been operated. It is profitable to reproduce the relevant portion of post-mortem report herein; - "In our opinion the deceased has died ofCardio respiratory arrest caused by sub-dual Hecatomb & laceration of brain matter & right temporal region. Uterus appearance, size and contents: Ecelymosis on the RTside need& selop. Head--A semicircular stitched surgical incision about 5 " in length on right fanto temporal region was observed. After opening up of operated wound adjoining muscles, bones and dinaemater were explored. A subdural hecatomb approximately size of walnut was found. Bones, disease or injury:- laceration of the adjoining brain matter. Alleged cause and circumstances attending death. It is alleged that a stone hit the deceased during a quarrel. He died at Sheri Kashmir Institute of Medical Sciences Sour a Sgr on 12.9.83." 14. A subdural hecatomb approximately size of walnut was found. Bones, disease or injury:- laceration of the adjoining brain matter. Alleged cause and circumstances attending death. It is alleged that a stone hit the deceased during a quarrel. He died at Sheri Kashmir Institute of Medical Sciences Sour a Sgr on 12.9.83." 14. While going through this report, the deceased had injury over right temporal region. It also appears that he was operated. Whether the operation was successful or not has not been explained by the prosecution and whether the deceased has died because of the operation or because of the intervening period i.e. from 25lh August to 9lh September, 1983 or due to lack of proper care and active treatment. 15. It was for the prosecution to explain where the deceased was from the day he was referred from SMHS hospital to Soura Institute till 09.09.1983. Dr. Abdul Rashid has deposed that he and Dr. Bashir Ahmad conducted post-mortem and they had noticed the injuries, the mention of which is made in the post-mortem report, as referred hereinabove. 16. All the eyewitnesses have deposed that the appellant hit a stone on the head of the deceased. The appellant has not repeated the blow(s). The Naqlimad report and injury memo, nowhere disclose that deceased had a swelling on the head. 17. The forming of unlawful assembly by the accused and the acts attributable to other accused 2 to 5 have not been proved. The accused 2 to 5 have been acquitted. The prosecution has not filed any appeal thus the said judgment has attained finality. In State Vs. Des Raj reported in 1979 Cr.LJ page 558 this Court has held as under:- "As regard Des Raj and Major Singh accused, in view of the discussion above, it stands clearly established that they caused grievous injuries to Brim Singh deceased. The question, which now requires determination, is as to what offence was committed by them. According to the prosecution version itself the fight took place after an exchange of abuses between the parties when tempers had risen high. Des Raj and Major Singh had pelted only one stone each towards Bhim Singh deceased. From a careful perusal of the prosecution evidence we are not satisfied that the accused respondents Des Raj and Major Singh had the intention to commit the murder of Bhim Singh. Des Raj and Major Singh had pelted only one stone each towards Bhim Singh deceased. From a careful perusal of the prosecution evidence we are not satisfied that the accused respondents Des Raj and Major Singh had the intention to commit the murder of Bhim Singh. They had caused only one injury each to the deceased by means of stones. It is unfortunate that the stones caused injures on the head of the deceased and due to lack of proper medical care, the injuries received by him proved fatal. An accused person is expected to know and anticipate the normal consequences of his act. Des Raj and Major Singh accused can, thus, only be fastened with such liability that they could have anticipated as a result of their action in throwing one stone each on Bhim Singh deceased. The direct impact of stones resulted in grievous injuries to Bhim Singh deceased. According to medical evidence, the life of the deceased could be saved if he was properly operated upon. The investigating officer has admitted that he did not send the injured to the Jammu hospital for medical treatment for want of conveyance. " In Md.Isak Md. And others, Vs. State of Maharashtra, reported in 1979Cr.L.J 1092, the Apex Court has observed as under;- "Having regard therefore to the circumstances of the present case and the nature of injuries sustained by the appellants, we are unable to agree with the High Court that the case falls under S.302. There is no evidence of any intention on the part of the appellants either to cause death of the deceased or cause such injuries of which the appellants could have the knowledge that it was likely to cause death although it cannot be doubted that the appellants had the common intention to cause grievous hurt to the deceased by lathis. Thus the offence falls under S.325/34 and not under S.302 or 304(1). 18. Keeping in view the above facts, this court is of the considered opinion that the prosecution has failed to prove that the accused had knowledge or intention to kill the deceased. The deceased has died after lapse of.18 days as discussed hereinabove. Thus the offence falls under S.325/34 and not under S.302 or 304(1). 18. Keeping in view the above facts, this court is of the considered opinion that the prosecution has failed to prove that the accused had knowledge or intention to kill the deceased. The deceased has died after lapse of.18 days as discussed hereinabove. The prosecution has not explained where was the deceased from the day he was referred from SMI IS hospital to Soura Institute till 9"1 September, 1983, what has happened during the intervening period and what treatment was given to the deceased. 19. In the given circumstances, it can be safely said that the proper treatment was not given to the deceased and due care was not taken. 20. Considering the nature of the weapon, the part of the body on which the blow was given, the size of the injury and the above discussion, it can be said that injury caused has endangered the life of the deceased. 21. In the given circumstances, this court is of the considered opinion that the act of the appellant is one of causing grievous hurt with a blunt weapon, which is punishable under Section 325 of RFC. 22. Viewed thus the impugned conviction and sentence is set-aside and the accused is convicted for the commission of offence punishable under Section 325 of RPC. 23. Keeping in view that the appellant has undergone through stress, mental torture, agony and pain for last 20 years, it is proper in the interests of justice to take a lenient view. Accordingly the appellant is sentenced to the imprisonment already gone and is imposed fine to the tune of Rs. 10,000/-, which shall be deposited within two months from today in the court of learned Sessions Judge, Kupwra. In default oF payment of fine, the appellant shall undergo a simple imprisonment of two years. The entire amount of fine shall be paid by learned Sessions Judge, Kupwara after expiry of the period of the appeal to the heirs of the deceased i.e. widow, son and daughter as per the law of inheritance applicable. The appeal is accordingly disposed of.