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2009 DIGILAW 434 (JK)

Vyas Sharma v. State Of J. &K.

2009-08-28

HAKIM IMTIYAZ HUSSAIN, J.P.SINGH

body2009
J.P. Singh, J. 1. Sessions Judge, Rajouri has convicted and sentenced the appellant to imprisonment for life and fine of Rs. 4000/-besides default imprisonment of five months for committing the murder of Surjeet Kumar S/o Dharam Dutt R/o Jamola Tehsil Rajouri vide his judgment and order of March 20, 2009, aggrieved whereby he has filed this appeal questioning the judgment and order impugned in the appeal. 2. We have heard appellants learned counsel as also the learned Additional Advocate General appearing for the State on the sole question canvassed by the appellants learned counsel that in the given facts and circumstances of the case, as projected by the prosecution, at the trial, the offence which the appellant can be said to have committed would be Culpable homicide not amounting to murder and not Murder, as held by the learned Sessions Judge, Rajouri. 3. Before dealing with the question canvassed at the Bar, regard needs to be had to the facts found proved in the case by the learned Sessions Judge, Rajouri, hereinafter to be referred as the "trial Court" and the prosecution story as it stands reflected in the Final Police Report filed under Section 173 of the Code of Criminal Procedure. 4. According to the Final Police Report, Surjeet Kumar alias Papu S/o Dharam Dutt R/o Village Jamola had gone to the town of Rajouri with his relatives on June 26, 2002, to purchase household items needed in connection with the marriage of his sister. He had been in the employment of PW-9 Ajay Kumar in his Bakery situated at City Chowk Rajouri, which he abandoned about a month ago. It was at about 10.15 a.m that he went to the Bakery Shop of Ajay Kumar and therefrom to the Bakery located at the first floor where besides Surjeet Kumar deceased, two other employees of Ajay Kumar namely Madan Lal and Shakeel Ahmed were also present. The deceased asked Madan Lal for arranging Breakfast, which was, accordingly, served. After taking the Breakfast, the appellant lifted a Wooden Rolling Pin from the table and struck it on Surjeet Kumars head who fell down unconscious. Leaving the Rolling Pin there, the appellant ran away. Surjeet Kumar later succumbed to the injuries in the hospital at Rajouri. 5. The autopsy of the deceased conducted by PW-17 Dr. Iqbal Malik revealed following injuries on his person:- 1. Leaving the Rolling Pin there, the appellant ran away. Surjeet Kumar later succumbed to the injuries in the hospital at Rajouri. 5. The autopsy of the deceased conducted by PW-17 Dr. Iqbal Malik revealed following injuries on his person:- 1. Lacerated wound 10 c.m x 5 c.m, bone fracture at occipital region of skull oozing blood. 2. Lacerated wound left eyebrow 4 c.m x 2 c.m deep to muscle. 3. Bleeding too was noticed from left and right ear. 6. According to the statements of the eye witnesses to the occurrence namely PW-3 Dharam Dutt, PW-4 Chamail Kumar, PW-6 Tirath Ram and PW-7 Pritam Chand, the appellant is stated to have hit Surjeet Kumar deceased with the Rolling Pin present in the Bakery. 7. What had transpired between the appellant and the deceased before he actually hit the deceased, has not, however, been spelt out by the prosecution witnesses and all that comes out from the prosecution evidence is that the occurrence had taken place on the spur of the moment and without premeditation. 8. The motive for the offence, as projected in the Final Police Report was the enmity which the appellant was having with the deceased-Surjeet Kumar because of the latters illicit relationship with the formers two sisters Shashi and Sushma, one of whom, because of the illicit relationship had to undergo abortion, which, according to the findings recorded by the trial Court, had not been proved by the prosecution, as the two sisters of the deceased were not produced for their statements in the Court. The trial Court, however, relying on the statement of the appellant made under Section 342 of the Code of Criminal Procedure to the effect that there was enmity between him and the prosecution witnesses, treated it to be a circumstance for appellants committing the murder of Surjeet Kumar. 9. The trial Court has found the appellant guilty of murder proceeding on the premise that though the occurrence had taken place on the spur of the moment and the prosecution was silent as to how had the same originated and what was its cause, yet the offence committed by the appellant would fall under Clause thirdly of Section 300 RPC and Exception 4 was not attracted to the facts of the case. 10. 10. In the background of the facts aforementioned and the findings recorded by the trial Court, we proceed to examine the issue demonstrated at the Bar as to what offence the appellant had committed in causing injuries to Surjeet Kumar as a result whereof he died. 11. The appellant is found by the trial Court to have come to Rajouri, along with his relatives, to purchase household articles for the marriage of his sister. He had gone to see PW-9 Ajay Kumar, in the Bakery Shop situated in Rajouri Town to have his unpaid dues from him, whereafter he proceeded to the Bakery located upstairs. Surjeet Kumar was working in the Bakery at that time. Breakfast is stated to have been served to them, whereafter the appellant had hit Surjeet Kumar with a Wooden Rolling Pin lying in the Bakery. 12. The sequence of events leading to appellants coming to Rajouri, going to Ajay Kumar at the Bakery Shop for his clues and thereafter to the Bakery where he had breakfast with the deceased and other employees with whom he had earlier worked in the Bakery, indicate that he had not gone there with any intention of hitting the deceased. This is also apparent from the fact that he had gone there unarmed. Appellants act of having taken breakfast with the employees including the deceased, too demonstrates absence of any premeditation. `The evidence further reveals that he had no intention of doing any act with the intention of causing death of Surjeet Kumar or such bodily injuries as was likely to cause death. The intention of the appellant not to cause the fatal injury, which had landed on the head of the deceased, appears to be reasonably probable in the absence of any evidence on the records as to how had the occurrence actually originated. 13. All these things taken together indicate that the appellant did not have the intention of causing death or such bodily injury as was likely to cause the death of Surjeet Kumar. 14. At the same time, his act of lifting the Wooden Rolling Pin from the Bakery and hitting the deceased resulting in fatal injuries at the occipital region and a lacerated wound on the eye, amply demonstrates his knowledge that he, by his act of hitting the deceased, was likely to cause his death. 15. 14. At the same time, his act of lifting the Wooden Rolling Pin from the Bakery and hitting the deceased resulting in fatal injuries at the occipital region and a lacerated wound on the eye, amply demonstrates his knowledge that he, by his act of hitting the deceased, was likely to cause his death. 15. Intention to cause death or such bodily injury as was likely to cause death, being absent in the present case; the offence which the appellant has committed in causing Injuries to the deceased resulting in his death, would be Culpable Homicide not amounting to murder punishable under Section 304 Part II RPC. 16. We are supported in taking the above view by Hari Ram v. State of Haryana, reported as (1983) 1 SCC, 193, Jagtar Singh v. State of Punjab, reported as (1983) 2 SCC, 342 and by Kulwant Rai v. State of Punjab, reported as (1981) 4 SCC, 245 where dealing with the similar issue the Honble Supreme Court of India observed as follows:- "When the matter was before the High Court it was strenuously urged that in the circumstances of the case Para 1 of Section 300 would not be attracted because it cannot be said that the accused had the intention to commit murder of the deceased. In fact, that is conceded. More often, a suggestion is made that the case would be covered by Para 3 of Section 300, Indian Penal Code in that not only the accused intended to inflict that particular injury but the injury intended to be inflicted was by objective medical test found to be sufficient in the ordinary course of nature to cause death. The question is in the circumstance in which the offence came to be committed, could it ever be said that the accused intended to inflict that injury which proved to be fatal. To repeat, there was an altercation. There was no premeditation. It was something like hit and run. In such a case, Para 3 of Section 300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall under Section 304 Part II, Indian Penal Code." 17. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall under Section 304 Part II, Indian Penal Code." 17. For all what has been said above, we set aside the appellants conviction and sentence recorded under Section 302 RPC and convicting him under Section 304 Part II RPC, award him the custodial sentence of eight years which he has already undergone. The appellant is, accordingly, directed to be set to liberty forthwith, if not required, in any other case. 18. Allowing the appeal and modifying the judgment of the trial Court, as indicated above, the Confirmation Reference No. 05/2009 is declined.