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2010 DIGILAW 3404 (PNJ)

Ishaq v. State of Haryana

2010-12-22

M.JEYAPAUL

body2010
JUDGMENT M. Jeyapaul, J. (Oral) - The first accused Ishag, who was charged with the offence under Section 307 read with Section 34 Indian Penal Code alongwith the second accused Mustaq, was convicted for offence under Section 304-II Indian Penal Code and was sentenced to undergo six years rigorous imprisonment with usual default sentence. He has come forward with the present appeal. 2. The case in brief of the prosecution is as follows: (a) The deceased Abdul Wahid was the maternal uncle of the complainant Sabbir (PW-10), who was residing at village Dadol Khurd, Ferozepur Jhirka. The deceased Abdul Wahid had a grocery shop at village Kansali. Complainant Sabbir (PW-10) used to assist him. Tea preparation was also carried on in the said shop. The supply of water to the village was disrupted for about two days prior to 14.03.1999. They had a water tank in the shop. (b) On 14.03.1999 at about 2.00 p.m., the deceased Abdul Wahid had been to Masjid to offer Namaz. When the first accused Ishaq, appellant herein, came to the shop and started filling up the water in a plastic can from the tank of Abdul Wahid, the complainant Sabbir took objected to it. Despite of the objection, the first accused having abused the complainant-Sabbir, took away water in a plastic can. (c) Sabbir narrated the incident to his uncle Abdul Wajid (since deceased). At about 6.30 p.m. on the very same day, Sabbir (PW-10) was preparing tea at the shop, the deceased-Abdul Wahid was looking into the accounts sitting in the verandah of the shop and Harun (PW-11) and one Imram were sitting there for taking tea. The accused-appellant alongwith second accused Mustaq came there and started abusing Abdul Wahid. When Abdul Wahid pleaded for peace and asked both the accused to go away from the shop premises, they refused to go, proclaiming that they were on Panchavat land. (d) The accused-appellant Ishaq having got infuriated, picked up a stone (Ex. P-1), hit on the chest of Abdul Wahid. On receipt of the stone injury at his chest, he collapsed on the ground. The accused ran away from the scene of occurrence. PW-10 and P-11 took the injured Abdul Wahid to the Government Hospital, Nagina where he was declared to have been brought dead by the Doctor at the hospital. P-1), hit on the chest of Abdul Wahid. On receipt of the stone injury at his chest, he collapsed on the ground. The accused ran away from the scene of occurrence. PW-10 and P-11 took the injured Abdul Wahid to the Government Hospital, Nagina where he was declared to have been brought dead by the Doctor at the hospital. (e) On receipt of intimation from the hospital, PW-8 Ansi Lal Assistant Sub Inspector proceeded to the hospital and recorded the statement of PW-10. On the basis of endorsement made by ASI Ansi Lal, a former First Information Report was registered by Sub Inspector Chandan Lal, PW-12. PW-8, Ansi Lal conducted inquest proceedings about the death of Abdul Wahid. Thereafter, the investigation was taken up by Chandan Lal, PW-12. (f) Dr. D.V. Yadav, Medical Officer, CHC, Pataudi, PW-9 conduced post-mortem on the dead body of Abdul Wahid on 15.03.1999. He found an abrasion measuring 4cm x 2cm on the left side of the chest. Ribs and cartilages were found normal. Liver, spleen and kidneys were sent for chemical analysis. Heart was removed from the dead body and was sent for examination to Dr. S.K. Mathur (PW-2). PW-2 having received the heart of the deceased-Abdul Wahid from PW-9, examined the same. (g) On microscopic examination of the representative micro-sections from different areas of the heart, he found that there was no significant pathological change on the heart but aorta and coronary arteries showed mild atherosclerotic changes. Based on the report sent by Dr. S.K. Mathur, PW-2, Dr. D.V. Yadav, PW-9 opined that the death of Abdul Wahid had occasioned due to sudden cardisic on account of neurogenic shock caused by the injury on the left side of the chest. (h) PW-12 SI Chandan Lal having arrested the accused and remanded him to the judicial custody and having completed the investigation, laid final report as against the accused for offences under Sections, 302/34 Indian Penal Code. 3. The Trial Court having thoroughly analyzed the evidence of PW-10 and PW-11 in the background of the medical opinion expressed by PW-2 and PW-9, returned a verdict that the prosecution could establish its case against the first accused beyond reasonable doubt that he committed an offence punishable under Section 304-II Indian Penal Code but not under Sections 302/34 Indian Penal Code. As no evidence with regard to the role of the second accused in the commission of crime has come out, he was relieved of the charges. 4. The learned counsel appearing for the appellant would submit that the medical evidence would go to show that there was only mild abrasion found on the left side of the chest of the deceased Abdul Wahid. No internal part was damaged on account of the alleged attack launched by the first accused- appellant. Referring to the blood sample report, he submits that the deceased Abdul Wahid would have collapsed on account of excessive drinking. No scientific reason was assigned by PW-9 to arrive at a conclusion that the death of Abdul Wahid was the result of the direct injury caused with stone on the left side of his chest by the accused. At any rate, no knowledge can be attributed to the appellant for death of Abdul Wahid as it was a rarest case even as per the evidence of PW-9. It is his further submission that the appellant-accused was a minor, aged 17 years and 7 months at the time when the occurrence took place on 14.03.1999. Therefore, referring to Section 7(e) of the Juvenile Justice (Care and Protection of Children) Act, 2000, he submits that the claim of the accused as to his juvenility shall be determined only in terms of the provisions contained in the new Act namely the Juvenile Justice (Care and Protection of Children) Act, 2000. The period of 2 years, 3 months and 26 days already undergone by the accused-appellant shall be fixed as the period in terms of Section 15(1)(g) of the said Act. 5. The learned Senior Deputy Advocate General for the State would submit that the ocular witnesses PW-10 and PW-11 have spoken to the attack launched by the first accused-appellant on the deceased Abdul Wahid. The medical evidence would also go to show that the death had occasioned only as a result of an attack with stone on the left side of the chest of the deceased-Abdul Wahid. The trial Court has rightly convicted the first accused under Section 304-II Indian Penal Code. As regards the juvenility of the first accused-appellant, he leaves to the determination of this Court in terms of the amended provisions under Section 7(A) of the Juvenile Justice (Care and Protection of Children) Act, 2000. 6. The trial Court has rightly convicted the first accused under Section 304-II Indian Penal Code. As regards the juvenility of the first accused-appellant, he leaves to the determination of this Court in terms of the amended provisions under Section 7(A) of the Juvenile Justice (Care and Protection of Children) Act, 2000. 6. PW-10 Sabbir had served under the deceased-Abdul Wahid in the shop run by him. PW-11-Harun is also found to be an eye witness to the occurrence. Both of them have spoken in one voice that the accused-appellant Ishaq, taking his position about 6 feet from the deceased Abdul Wahid, collected a stone and threw the same on the left side of the chest of deceased Abdul Wahid. There is no reason to disbelieve the evidence of PW-10 and PW-11. If at all Abdul Wahid had collapsed on account of excessive drinking, there was no reason for PW-10 to rope in the accused-appellant in a case of murder. It has been established by the prosecution through medical evidence that abrasion was found on the left side of the chest of deceased Abdul Wahid. 7. PW-9 who conducted post-mortem examination had reserved his opinion until a report was received. from PW-2. PW-2 has found on microscopic examination that the aorta and coronary arteries showed mild atherosclerotic changes though no other significant pathological change could be seen. Based on the injury on the vital part of the body of the deceased-Abdul Wahid and the said atherosclerotic changes found in the aorta and coronary arteries, PW-9 has expressed his opinion that the death of Abdul Wahid had occasioned due to sudden cardisic on account of neurogenic shock caused by the injury on the left side of the chest. PW-9 has expressed his opinion during the course of cross-examination that possibility of death from such injury was very remote. As far as medical field is concerned, it might be a rarest case where such injury has caused the death but the Court would has to see whether the appellant had the knowledge that the attack launched by him was likely to cause the death of the victim. 8. Had the accused-appellant intended to cause death, he would have brought the weapon to attack Abdul Wahid and, therefore, intention to cause death of Abdul Wahid is not ruled out in this case. The nature of weapon namely stone is used. 8. Had the accused-appellant intended to cause death, he would have brought the weapon to attack Abdul Wahid and, therefore, intention to cause death of Abdul Wahid is not ruled out in this case. The nature of weapon namely stone is used. The receipt of injury caused on the victim would definitely attribute knowledge to the first accused-appellant that his acts was likely to cause the death. 9. In view of the above facts and circumstances, I held that the Trial Court has rightly returned a finding that the prosecution established a case under Section 304-II Indian Penal Code as against the first accused-appellant. 10. Coming to the claim of juvenility put forth by the accused appellant, Ex. R-1, birth certificate would establish that the accused appellant was born only on 10.08.1981. The occurrence took place on 14.03.1999 at about 6.30 p.m. When the occurrence took place, the accused-appellant was just 17 years 7 months of age. The accused-appellant is entitled to the claim of juvenility at any stage even after the final disposal of the case and such claim of juvenility should be determined only in terms of the provisions contained in the new Act i.e. Juvenile Justice (Care and Protection of Children) Act, 2000. In other words, though the accused has crossed 16 years and was a major as per the old Juvenile Justice Act, 1986, he can very well make a claim of juvenility as per the provisions of the present Act which defines a juvenile as a person who has not completed 18 years of age. The trial Court could not apply the claim of juvenility as per the new Act as the same had come into force only after the pronouncement of the judgment, Further the provisions of Section 7(A) was introduced only by Act 33 of 2006 w.e.f. 22.08.2006 and the Juvenile Justice (Care and Protection of Children) Rules, 2007 was enacted only in 2007. 11. In terms of the provisions under the Juvenile Justice (Care and Protection of Children) Act, 2000, the accused-appellant is found to be a juvenile in conflict with law. 12. The accused-appellant had already undergone 2 years, 3 months and 26 days rigorous imprisonment in connection with this sessions case. 11. In terms of the provisions under the Juvenile Justice (Care and Protection of Children) Act, 2000, the accused-appellant is found to be a juvenile in conflict with law. 12. The accused-appellant had already undergone 2 years, 3 months and 26 days rigorous imprisonment in connection with this sessions case. The sentence already undergone by the appellant-accused is treated as the period to be spent by him in a special home as per the provisions of Section 15(1)(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000. The fine imposed on the accused appellant stands set aside as the same cannot be imposed on a juvenile in conflict with law. 13-14. The appeal is allowed in the aforesaid terms. 15. The State Legal Services Authority, Haryana is directed to pay the legal fees to Mr. Balwinder Singh Sudan, Advocate, appointed as Amicus Curiae by this Court. Appeal allowed.