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2009 DIGILAW 112 (JK)

Ab. Majid Sheikh v. State

2009-03-16

J.P.SINGH, SUNIL HALI

body2009
1. Aggrieved by the conviction recorded under section 302 RPC for committing the murder of Mohammad Shafi Malik, his brother-in-law, and sentence of imprisonment for life awarded by the Additional Sessions Judge, Srinagar, vide judgment of May 26, 2007 and order of June 05, 2007 respectively, Abdul Majid Sheikh, the Appellant, has approached this Court, in appeal, seeking setting aside of his conviction and sentence. 2. Learned Additional Sessions Judge, Srinagar too has made Reference for confirmation of the sentence awarded to the appellant. 3. Appellants Criminal Appeal No. 07/2007 and the Confirmation Reference No. 03/2007 have been taken up together for consideration. FACTS 4. Facts leading to the filing of the Criminal Appeal and the Confirmation Reference may be stated thus: - 5. Mrs. Zubaida was not having cordial relations with the appellant, Abdul Majid Sheikh, her husband. She had come to her paternal house situated at Mohalla Moma Khan Kathidarwaza, Srinagar when the appellant came there in the morning of September 04, 1997 to take her back home. He had an altercation with his brother-in-law Mohammad Shafi, which was, however, resolved with the intervention of the neighbours. The appellant had, however, while leaving, threatened to kill his brother-in-law. 6. According to the prosecution story Mohammad Shafi was coming out of the Mosque situated in Mohalla Moma Khan, at about 8.30 p.m. on September 04, 1997 when the appellant attacked him with a knife and thereafter left the place in the Auto Rikshaw in which he had come there. Mohammad Shafi died because of the injuries received by him at the hands of the appellant in the Mosque where he had been carried to after the occurrence. 7. Pursuant to the registration of FIR No. 103/1997 at Police Station Rainawari, Srinagar, on the basis of the source information, the Police reached on spot, and started the investigation. 8. On filing of the Final Police Report under section 173 of the Code of Criminal Procedure, and its later committal to the Sessions Court, the appellant was tried by the learned Additional Sessions Judge, Srinagar. 9. In order to prove its case, the prosecution has examined sixteen out of twenty listed witnesses. 10. Mohammad Yousuf Beigh, alias Chiken, PW No.1 is the eye witness to the occurrence. 11. 9. In order to prove its case, the prosecution has examined sixteen out of twenty listed witnesses. 10. Mohammad Yousuf Beigh, alias Chiken, PW No.1 is the eye witness to the occurrence. 11. Prosecution Witnesses Abdul Wahid Malik, Muzaffar Ahmad Qazi, and Habibullah besides Arif Jahan, Mukhtar Ahmad Wani, and Mohammad Ashraf Malik are stated to have come on spot within minutes of the incident, who had seen the appellant running away from the place of occurrence when Mohammad Shafi, injured, was crying that he had been injured by the appellant with a knife. The aforementioned witnesses took the deceased to the nearby Mosque where he had breathed his last. 12. PW No. 11, Dr. Latief Ahmad Zargar, examined the dead body of Mohammad Shafi Malik which revealed a wound, two inches long, half inch in width and about one inch in depth, with clear sharp margins on upper middle right thigh of the deceased which had resulted in rupture of Common Iliac, External Iliac, Internal Iliac and Femoral Iliac. The injury received by the deceased, according to the doctor, had resulted in excessive bleeding, causing shock and ultimately, the death. 13. The resume of the statements of the prosecution witnesses has been given in detail, in the judgment of the learned Additional Sessions Judge, who, after appreciating the evidence, had found the appellant guilty of committing the murder of Mohammad Shafi, and accordingly while convicting him under Section 302 of RPC, has awarded him Imprisonment for life, referring the case to this Court for Confirmation of the Sentence. 14. Appellants Appeal and the Additional Sessions Judges Confirmation Reference has thus arisen in the above mentioned factual matrix. APPELLANTS SUBMISSIONS: 15. Projecting appellants innocence, his learned counsel urges that besides suffering from inherent improbabilities, the prosecution story is not credible, because the independent witnesses, present at the place of occurrence, had not been produced by the prosecution to unfold the true facts. Referring to the contradictions in the statements of the prosecution witnesses, learned counsel submitted that the prosecution witnesses, who are stated to have witnessed the occurrence and reached on spot immediately after the occurrence seeing the accused fleeing from the place of occurrence, with a knife, had made false statements, and their testimony was not worthy of credence. 16. Referring to the contradictions in the statements of the prosecution witnesses, learned counsel submitted that the prosecution witnesses, who are stated to have witnessed the occurrence and reached on spot immediately after the occurrence seeing the accused fleeing from the place of occurrence, with a knife, had made false statements, and their testimony was not worthy of credence. 16. Occurrence having taken place at about 8.30 p.m. in the month of September, could be witnessed only if there was sufficient light at the place of occurrence, says the learned counsel, And the prosecution having miserably failed to prove the availability of light at the place of occurrence, the appellant needs to be acquitted of the charge, as none could have witnessed the alleged occurrence in darkness. 17. Appellants counsel places reliance on three Supreme Court judgments and four judgments delivered by the High Courts of Bombay, Delhi and Allahabad reported as AIR 1959, S.C. 1012, AIR 1972, S.C. 110, AIR 1993, S.C. 2644, AIR 2003 S.C. 801, 1996 Cr. L. J 3147, 1996 Cr. L. J. 265, 1996 Cr. L. J. 4284, and 1997 Cr. L. J. 1788 respectively, to support his above submissions including those questioning appellants disclosure and recovery of the weapon of offence pursuant thereto. STATES RESPONSE: - 18. Learned State Counsel submitted that the prosecution has proved its case to the hilt through the statements of the witnesses who, inspite of lengthy and trenchant cross-examination, had stood the test to affirm the truth regarding appellants attacking and murdering his real brother-in-law, and non-production of the neighbours to support the prosecution case, would not, in any way, affect, still-less weaken the prosecution story, in any way whatsoever, for the prosecution, is not, in law, required to multiply its witnesses, in view of the provisions of Section 134 of the Evidence Act, And the evidence produced by the prosecution was sufficient to entail conviction. 19. Relations, according to the Learned State counsel, are the best witnesses to unfold the truth, for they would never like an innocent to be punished and would always ensure that the guilty responsible for causing death or injury to their relation does not go scot-free. The statements of the relations, cannot thus be disbelieved particularly when their presence on place of occurrence which was located very near to their houses, cannot be doubted, says the learned counsel. 20. The statements of the relations, cannot thus be disbelieved particularly when their presence on place of occurrence which was located very near to their houses, cannot be doubted, says the learned counsel. 20. Responding to appellants counsels submission that presence of light and electric pole had not been indicated in the site plan by the Investigating Police Officer, and in such view of the matter their statements were not trustworthy, the State Counsel urges that the appellant had accepted the ability of the witnesses to identify him while running away from the place of occurrence and in causing injury to the deceased, because despite lengthy searching cross-examination of the witnesses, the appellant had not been able to discredit their version and nor had put any such questions to judge their ability to identify the appellant and as to the non-availability of light at the place of occurrence, And in this view of the matter, appellants counsels submissions to disbelieve the witnesses on the ground that they could not have seen the occurrence in the absence of light in the area, was liable to be rejected. 21. Learned State Counsel relies on AIR 2000 S.C. 118, AIR 2000 S.C. 1582, AIR 2002, S.C. 3325, AIR 2003, S.C. 660, AIR 2003, S.C. 1164, AIR 2004, S.C. 722 and AIR 2005 S.C. 335 to support his submissions. DISCUSSION : 22. We have considered the submissions of learned counsel for the parties and the case law cited at the Bar. We proceed to deal with the issues arising in the case as under: - 23. The prosecution evidence, which we had gone through with the assistance of learned counsel for the parties, indicate that PW 1 Mohammad Yousuf Beigh alias chiken, who had come to meet his sister residing at Mohalla Moma Khan, Kathi Darwaza, Srinagar, was on his way to the Mosque located in the Mohalla to offer his ISHA prayers at about 8.00 p.m. when he saw the appellant and deceased Mohammad Shafi quarrelling, and in the process pushing each other. It was during this process of their grappling with each other that he had seen the appellant hitting Mohammad Shafi with a knife thereby injuring him, as a result whereof, Mohammad Shafi had fallen down. Mohammad Yousuf was holding the injured in his lap when PWs Muzaffar Ahmad, Abdul Wahid and Habibullah had reached on spot. It was during this process of their grappling with each other that he had seen the appellant hitting Mohammad Shafi with a knife thereby injuring him, as a result whereof, Mohammad Shafi had fallen down. Mohammad Yousuf was holding the injured in his lap when PWs Muzaffar Ahmad, Abdul Wahid and Habibullah had reached on spot. Mohammad Shafi was crying that he had been stabbed by the appellant with a knife. The witnesses thereafter took Mohammad Shafi, injured, to the Mosque where he had breathed his last. 24. It was disclosed by the witness during his cross-examination by the appellant that the light was available on the spot from an electric lamp on a pole, as also from the bathroom of one of the houses in the Mohalla. The witness had seen the appellant and the deceased quarrelling for the first time when he was at a distance of about 50 yards from them. 25. Except asking the witness that he had seen the occurrence in the light flowing from an electric bulb of a pole and from the one coming from the bath room of one of the residents of the area, the appellant had not questioned the ability of the witness to see the occurrence in the light available in the area. This witness had been cross-examined, at length, about every minute detail of the occurrence and about the presence of those who had heard the deceased saying that after injuring him with a knife, the appellant had later run away from the place of occurrence with the knife. 26. But for minor discrepancies appearing in the statement of the witness, as to the time when the ISHA prayers had started and when the AZAAN (invitation to join for prayers) had been sounded, besides the location of the sub-lanes in the area where his sister was putting up, the appellant has not been able to shake the sub-stratum of the version of the occurrence which the witness had narrated on oath. 27. The presence of the witness on spot has been corroborated by the statements of PWs 2 to 5 and 7 namely Abdul Wahid Malik, Muzaffar Ahmad Qazi, Arif Jahan, Mukhtar Ahmad Wani, and Habibullah Mir respectively. 28. All the above mentioned Prosecution Witnesses have categorically stated that the deceased had been saying that he had been injured by the appellant with a knife. 28. All the above mentioned Prosecution Witnesses have categorically stated that the deceased had been saying that he had been injured by the appellant with a knife. These witnesses had additionally, on their own seen the appellant running away from the place of occurrence. PW Mukhtar Ahmad Wani, one of the brothers-in-law of the deceased had even heard the appellant calling Mohammad Shafi deceased from the Mosque whereafter he had heard his cries. He had seen the appellant with a knife in his hand when, after coming out of the Mosque, he was proceeding towards the place of occurrence. 29. In view of the overwhelming evidence produced by the prosecution, presence of the appellant at the place of occurrence at 8/8.30 p.m. in Mohalla Moma Khan, where Mohammad Shafi along with his other brothers and parents had been putting up, cannot be doubted. Likewise there is nothing in the cross-examination of PW Mohammad Yousuf Beigh, on the basis whereof it may be said that the statement made by him suffers from any such shortcomings which may render it unworthy of credence. 30. Merely because the Investigating Police Officer has not indicated the electric pole in the site plan, would not discredit the statement of the witness that he had seen the occurrence in the light available from the electric pole, as also from the bath room of one of the residents of the area near the place of occurrence. 31. As no effort has been made by the appellant to question the ability of the witness to see the occurrence in the light available on spot, mere non-mentioning of the existence of electric pole in the site plan would not discredit his statement which had stood the test of lengthy and roving cross-examination. 32. Looking to the nature of consistent statement made by the witness which gets support in all material particulars from other witnesses who had come out of the Mosque after hearing the cries of the deceased, We do not find any material on records, much less justification, to take a view other than the one which the trial court has taken to believe the witness. 33. 33. The statements of rest of the witnesses who had come out of the Mosque on hearing the cries of the deceased, to the effect that they had heard the deceased saying that he had been hit by the appellant with a knife and that they had seen the appellant running away from the place of occurrence, has not been seriously challenged by the appellant during the cross-examination of these witnesses. 34. Appellants counsels attack on the testimony of these witnesses that they could not have seen the occurrence, because of the non-availability of light in the area, lacks substance, in that, the ability of these witnesses to see the occurrence in the light available at the place of occurrence has not been seriously questioned during their cross-examination. That apart, this part of the prosecution story that the deceased had been carried from the place of occurrence to the Mosque by all these persons including Mohammad Yousuf Beigh, and Mohammad Shafi, the injured, was saying that he had been hit by the appellant with a knife, has gone unchallenged. 35. Factum of the deceased having been injured on September 04, 1997 at 8/8.30 p.m. in Mohalla Moma Khan Kathi Darwaza, Srinagar, and later carried to the Mosque nearby is additionally corroborated by the presence of blood on spot which was noticed by the Investigating Police Officer who had reached on the place of occurrence at about 9.00 p.m and had cordoned the place of occurrence with stones. 36. Presence of these prosecution witnesses, who are living in Mohalla Moma Khan Kathi Darwaza, Srinagar, near the Mosque located in the area, were the occurrence had taken place, cannot be doubted merely because they are the relations of the deceased, and additionally so, because, going by the practice prevalent in Kashmir Valley, every adult Muslim craves to join ISHA prayers in the Mosque located nearby and in such view of the matter, criticism of these witnesses by the appellants counsel that they had not seen the occurrence, cannot be accepted. 37. 37. In view of the evidence produced by the prosecution to support its case that appellant had, in view of his morning tiff with his in-laws and the deceased, which had originated because of his beating his wife, who was staying with her parents, non-mentioning of the existence of electric pole in the site plan by the Investigating Police Officer, pales into insignificance, particularly, in view of the explanation given by the Investigating Police Officer that the electric lamp was suspended from a dry tree on spot which stood reflected as such in the site plan, demolishes the star plea of the appellant that there was no light in the area and whole of the prosecution case was unbelievable. 38. Appellants counsels submission that the weapon of the offence was not proved to be blood stained and its recovery at the instance of the appellant, which too was not duly proved, would not link the appellant with the commission of the offence, may not be relevant for the disposal of the case, in that, presence of blood on the weapon of offence would only be an additional proof affirming that the appellant had used the seized weapon in causing the injury. Absence of blood on the weapon of offence recovered at the instance of the appellant, cannot, however, be taken to diminish or in any way affect the veracity of the eye witnesses who had seen the appellant at the place of occurrence injuring the deceased and running away there from with a knife. His submission is, therefore, without any force. 39. Appellants counsels next submission that in the absence of the Post-mortem of Mohammad Shafis dead body, the appellant cannot be held guilty of causing injury to the appellant which had resulted in his death, too is unsustainable in view of the categoric statement made by PW 11, Dr. Latief Ahmad Zargar, that the injury received by Mohammad Shafi had ruptured four vessels i.e. Common Iliac, External Iliac, Internal Iliac and Femoral Arteries, which was sufficient to cause death. After going through the statement of PW 11, we are satisfied that the view taken by the learned Additional Sessions Judge in relying upon the statement of PW-11 does not warrant interference. 40. After going through the statement of PW 11, we are satisfied that the view taken by the learned Additional Sessions Judge in relying upon the statement of PW-11 does not warrant interference. 40. After going through the evidence of the prosecution witnesses and considering the submissions of learned counsel for the parties, we are of the view that the learned Additional Sessions Judge, Srinagar, has properly appreciated the evidence produced in the case and her finding that the appellant had caused injury with a knife to Mohammad Shafi on his right thigh on September 04, 1997 at Mohalla Moma Khan, Kathi Darwaza, Srinagar, at about 8/8.30 p.m. which had resulted in his death in the nearby Mosque does not call for any interference by the Court. 41. At the same time, We do not approve of, the manner in which the learned Additional Sessions Judge, has proceeded to find the appellant guilty of Murder, without considering as to whether or not the appellant had caused the injury with an intention of causing death or with the intention of causing such bodily injury which he knew was likely to cause death or with the intention of causing the injury which was sufficient in the ordinary course of nature to cause death or that the appellant knew that the injury caused by him was so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death. 42. Learned Additional Sessions Judge, has further erred in not considering as to whether or not the appellants case was covered by any one or the other exceptions appearing in Section 300 of the Ranbir Penal Code. 43. We have, however, on the basis of the evidence produced by the prosecution, analysed the manner in which the occurrence had taken place to find out as to what offence had the appellant committed in causing injury which had resulted in Mohammad Shafis death. 44. According to the prosecution evidence, the appellant had injured Mohammad Shafi with a knife on the upper portion of his right thigh in the process of the quarrel which had been going on between the two who had grappled and were giving pushes to each other. 45. 44. According to the prosecution evidence, the appellant had injured Mohammad Shafi with a knife on the upper portion of his right thigh in the process of the quarrel which had been going on between the two who had grappled and were giving pushes to each other. 45. Looking to the initial events as narrated by PW 1, Mohammad Yousuf Beigh, that the appellant and deceased had grappled, and were, in the process of pushing each other, when the appellant had hit the deceased with a knife, only once, and the part of the body which had been chosen by the appellant to hit the deceased, in the light of facts and circumstances of the case, rules out, appellants doing the act with the intention of causing death or such bodily injury as was likely to cause death or with the knowledge that he was thereby likely to cause death. 46. Appellants act would not therefore amount to Culpable homicide and in such view of the matter his conviction under section 302 RPC cannot be sustained. 47. Appellants intention to cause grievous injury to Mohammad Shafi, with a knife, a weapon used for stabbing/cutting, which was likely to cause death is, however, clearly made out from the prosecution evidence. 48. For all what has been said above, We are of the view that the appellant had, with criminal intention, voluntarily caused Grievous hurt, with a knife to Mohammad Shafi, on September 04, 1997 at about 8/ 8.30 PM at Mohalla Moma Khan, Kathi Darwaza, Srinagar, which was likely to cause death. He has thus committed an offence punishable under Section 326 RPC. 49. Resultantly, setting aside appellants conviction and sentence under Section 302 RPC, he is convicted under Section 326 RPC, and sentenced to Rigorous Imprisonment for Seven years, and a fine of Rs. 20,000/- (Twenty thousand), in default whereof, to Simple Imprisonment for one year. 50. The fine when realised shall be paid to the dependents of Mohammad Shafi, deceased. 51. Criminal Appeal No.7/2007 is, accordingly, allowed as indicated above, declining Confirmation Reference No.03/2007. 52. 20,000/- (Twenty thousand), in default whereof, to Simple Imprisonment for one year. 50. The fine when realised shall be paid to the dependents of Mohammad Shafi, deceased. 51. Criminal Appeal No.7/2007 is, accordingly, allowed as indicated above, declining Confirmation Reference No.03/2007. 52. Before parting, We would, however, like to observe, for information of learned Sessions Judges/Additional Sessions Judges, dealing with Murder cases, that before recording conviction under Section 302 RPC they must indicate, spelling out reasons in support thereof, as to whether or not the case of the accused under trial was covered by, any one or the other Exceptions appearing in Section 300 of the Ranbir Penal Code, additionally demonstrating as to whether the act complained of had been done with requisite intention or knowledge as contemplated by Clauses First to Fourthly of Section 300 RPC.