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2011 DIGILAW 108 (ALL)

Hakim (Abdul Hakim) another v. State of U. P.

2011-01-17

SATISH CHANDRA, UMA NATH SINGH

body2011
Satish Chandra, J.:- This criminal appeal arises out of a judgment and order dated 12.03.2007, passed by learned Additional Sessions Judge/F.T.C. Court No.10, Pratapgarh, in Sessions Trial No.25 of 1998 recording conviction of accused appellants under sections 302/34 IPC and 323/34 IPC and sentencing them each to imprisonment for life with a fine of Rs.1000/-; in the default of payment of fine, to undergo further R.I. for 3 months on first count, and a fine of Rs.1000/- each on second count; in default of payment of fine, to undergo further R.I. for 3 months. Briefly narrated the facts of prosecution case are that on 28.09.1997, complainant Ram Anuj, a resident of village Tala while being accompanied by his father Gangadeen was going to Pratapgarh in the morning hours at 8.00 O'Clock. Gangadeen was ahead of complainant and the moment they reached near the culvert (Pulia) of Tala crossing, accused persons namely Rasheed, armed with axe (Kulhari), Hakim and Ghayasuddin armed with lathis appeared from the culvert and out of enmity started abusing them, and while threatening them with dire consequences exhorted that the deceased be done to death. That very moment, accused Rasheed caused a Kulhari blow on the head of the father of complainant with an intention to kill him. Having sustained the injuries, the father of complainant collapsed on the spot. Rest two accused persons who were wielding lathis also caused assaults. When the complainant while challenging the accused rushed to rescue the deceased, he was chased and assaulted by accused Hakim and Ghyasuddin. Hearing the hue and cry, Shobhai, Nanhu, Shamshad Ali, and a number of other people gathered on the spot. When they challenged the accused persons, they left the spot while giving threats to the complainant side. As the condition of the father of complainant was very serious, he was admitted for treatment. On a complaint submitted to the Police Station concerned, an FIR was lodged, and the case was taken for investigation. After completion of investigations, a charge sheet was filed and charges were drawn against the accused persons, under Sections 302/34 and 323/34 IPC. On the charges being read out to the accused persons, they denied the same and prayed for trial. During the course of trial, the prosecution placed as many as 11 documents on record which were exhibited as Ka-1 to Ka-11 apart from adducing oral evidence of six witnesses. On the charges being read out to the accused persons, they denied the same and prayed for trial. During the course of trial, the prosecution placed as many as 11 documents on record which were exhibited as Ka-1 to Ka-11 apart from adducing oral evidence of six witnesses. Only two accused namely Hakim and Ghayasuddin were examined under Section 313 Cr.P.C. by the trial court, and the third only namely accused Rasheed died during the course of trial. Postmortem on the dead body of deceased Gangadeen was conducted by Dr. K.L.Shah, who noticed 9 injuries as given below; Injury No.1 - Swelling on left arm. Under this injury the bones of elbow joint and wrist joint, were fractured. Injury No.2 - Swelling on Right arm. All right arm bones were fractured. Injury No.3 - Lacerated wound 1/2'' x 1/2'' x bone deep in index finger. Injury No.4 - Swelling in left leg with fracture of both bones at middle one third. Injury No.5 - Lacerated wound 3x3 ½ ''x bone deep in front side of left leg, 3 ½'' below left knee. Injury No.6 - Lacerated wound 1''x1/2'' x bone deep in front side of left leg, 2 ½'' below injury no.5. Injury No.7 - Lacerated wound 1'' x 3/4''x bone deep on right leg, 3 ½ '' below right knee. Injury No.8 - Lacerated wound 1'' x ½'' x bone deep, 3 ½'' below injury no.7. Injury No.9 - Lacerated wound 1 ½'' x ½'' x bone deep 2 ½'' below injury no.8 and the bone was fractured. In the opinion of doctor, the cause of death was haemorrhage and shock as a result of ante-mortem injuries. On a careful appreciation of evidence on record, the learned Trial Judge passed the impugned judgment and order under challenge. We have heard learned counsel for parties, and perused the records. Learned counsel for the appellants submitted that the accused appellants had no intention to cause death of deceased, which is obvious from the nature of injuries caused on the person of deceased. The accused appellants were only armed with lathis and the injuries were caused on the non-vital parts of the body. The principal accused, namely Rasheed, who caused Kulhari injury on the head of deceased which impacted the deceased to collapse on the spot, died during the course of trial. The accused appellants were only armed with lathis and the injuries were caused on the non-vital parts of the body. The principal accused, namely Rasheed, who caused Kulhari injury on the head of deceased which impacted the deceased to collapse on the spot, died during the course of trial. It is also a submission of learned counsel that the deceased did not succumb to the injuries on the spot but he died during the course of treatment in the hospital. As per the statement of Autopsy Surgeon, Dr. K.C. Shah ( PW-6), the time gap between the injuries and death was about 6 to 12 hours. It is further submission of learned counsel for appellants that eye witnesses' accounts stand falsified in view of contradiction with the medical report. Learned counsel further submitted that solitary injured witness is the complainant himself, namely, Ram Anuj, son of the deceased. His injuries were found to be simple and during cross examination, Dr. P.K. Dwivedi (PW-3), had stated that these injuries could be self-suffered as well. On the other hand, learned AGA submitted that as per the inquest report as well as injuries report, an incised wound was noticed on the head of deceased. According to learned counsel, though that injury was attributed to accused Rasheed, who died during the course of trial, was inadvertently missed in the postmortem report by the Autopsy Surgeon. Learned AGA contended that even though the lathi injuries attributed to the accused/appellants herein were caused on the non-vital parts of the body of the deceased, but that fact itself would not exonerate them from the charge of murder for the allegation that the accused appellants had caused repeated lathi blows leading to fractures on different parts of body and as per the opinion of Doctor the cause of death was shock and hemorrhage resulting from the cumulative effect of all the injuries. Thus, it cannot be said that the accused appellants had no intention to cause the death of deceased, an old man of 60 years. Moreover, it also appears that there was a motive to commit the alleged offence, for, the parties had estranged relationship over a landed property purchased from some third party. Thus, it cannot be said that the accused appellants had no intention to cause the death of deceased, an old man of 60 years. Moreover, it also appears that there was a motive to commit the alleged offence, for, the parties had estranged relationship over a landed property purchased from some third party. On a careful consideration of the rival submissions, we are of the view that the appellants had no intention to commit the alleged offence and thus, it would be a case of culpable homicide not amounting to murder and not a case of murder as held by the trial court in the impugned judgment. From the testimony of Ram Anuj (PW-1), son of the deceased, who has supported the contents of First Information Report recorded on the basis of a written complaint, it appears that after the deceased was admitted in the hospital, he obtained a copy of the injuries report prepared on the basis of preliminary examination of the condition of injuries and submitted a written complaint with the injuries report at the police station. On that basis, the first information report was recorded. He has supported the contents of the written report submitted to the police which was exhibited as Ext. Ka-1. He has also mentioned in the statement that since the condition of the injured was serious, therefore, he was referred to a hospital at Allahabad for treatment. Thus, he went out to collect money but on return to hospital he was informed that his father had died. He has also referred to some land transaction in his cross examination purchased from one Ram Sajeewan. However, he has asserted in his testimony that though in the postmortem report it is not mentioned that his deceased father Gangadeen had received Kulhari injury on his head but the fact remains that he did receive such injury on head. Thus, the injuries as mentioned in the first information report were not an exaggerated version of the injuries details. In his cross examination, he has also clarified that after lodging the report at the police station, he went all alone to Pratapgarh hospital. He has also stated that during the course of admission of his father Gangadeen in the hospital, his statement was not recorded. In his cross examination, he has also clarified that after lodging the report at the police station, he went all alone to Pratapgarh hospital. He has also stated that during the course of admission of his father Gangadeen in the hospital, his statement was not recorded. When he returned to Pratapgarh hospital, he came to know that his brothers and other co-villagers had already moved his father from Pratapgarh to Allahabad. He has denied the defence suggestion that in the course of incident he had not received any injuries. He has also denied the defence suggestion that the injuries as noticed on his person as per the medical report were a manufactured document. He has stated that his father was engaged in some civil litigations with other persons as well. He has also denied all other defence suggestions which ran contrary to the prosecution case. Shamshad Ali is PW-2. His age has been recorded as 18 years and occupation as cultivation. In his cross-examination, he has supported the prosecution case by mentioning that he recognized all the accused persons. He had seen them from a distance of 100 steps. He has given a minute details of the incident including the position of the accused persons at the time of occurrence. It is noticeable from the statement of this witness that he was engaged in some criminal case. He has also denied all such defence suggestions which appear to be contrary to the prosecution case. Dr. K. Dwivedi (PW-3) had examined the injuries of PW-1 and noticed 2 contused wounds on his person. He had also examined the injuries of his deceased father Gangadeen and proved the injuries reports. Kashinath Singh (PW-4) was the Station Officer of concerned police station Kandhai. He had investigated the case. He has given the details as to how he conducted the investigation. His investigation also included the recording of statement of complainant, spot inspection, and search for the accused persons. He has proved the challan submitted in the Court vide Ext. Ka-4. He has thus stated nothing contrary to the case set up by the prosecution. Ram Kishore (PW-5) is the another son of the deceased. He has made a categorical statement that in the District Hospital Pratapgarh when his deceased father was admitted his case was referred to Swaroop Rani Hospital Allahabad. Ka-4. He has thus stated nothing contrary to the case set up by the prosecution. Ram Kishore (PW-5) is the another son of the deceased. He has made a categorical statement that in the District Hospital Pratapgarh when his deceased father was admitted his case was referred to Swaroop Rani Hospital Allahabad. The deceased was thus shifted to the said hospital where he succumbed to the injuries and declared dead. He has proved the document No.1A/3 said to have been signed by him. The said document has been proved and marked as Ext. Ka-7. Dr. K.L. Shah (PW-6) conducted the postmortem examination of the dead body and mentioned the injuries as noted above. According to the opinion of Doctor, the deceased died due to shock and hemorrhage as a result of ante-mortem injuries. In his cross examination, he has also mentioned that the time gap between the injuries and death was about 6 to 12 hours. In the statement under Section 313 Cr.P.C. recorded before the Court, accused Hakim denied the charges and pleaded innocence. According to him, the deceased was done to death by some unknown persons in the dark hours but due to enmity he was falsely implicated. Co-accused Ghyasuddin has also taken a similar plea in his answers to queries put by the court under Section 313 Cr.P.C. and has pleaded innocence. However, he also mentioned that co-accused Hakim is the son of his aunt and therefore he too has been implicated in this case. On a careful re-appreciation of evidence, as aforesaid, we do not find any flaw or infirmity in the prosecution evidence placed on record. There is an injured witness and accused appellants stand convicted for causing injuries to him under Section 323/34 IPC. The presence of injured witness being the son of deceased on the spot appears to be probable for the reasons mentioned in the FIR and the statement of the witness. The medical evidence also substantiates the prosecution case, and simply because there is an omission in mentioning the incised wound in the postmortem report alleged to have been caused by Kulhari by co-accused Rasheed (since dead), the inquest report as well as the injuries report are not to be denied. However, the author of the injury on head, Rasheed died during the trial. However, the author of the injury on head, Rasheed died during the trial. The said injury cannot be attributed to the accused appellants even though they stand convicted with the aid of Section 34 IPC. It is noticeable from the evidence on record that the deceased was engaged in civil and criminal litigations and there was an enmity between the parties over purchase of some property by both of them. Thus, the incident alleged to have been caused by the accused persons seems to be quite probable and also stand proved from the preponderance of prosecution evidence placed on record. It is also noticeable that the incident took place at 8.00 O'clock in the month of September and thus there was no ambiguity about their presence and participation in the incident. Their presence and participation in the offence are also established from the testimony of independent witness Shamshad Ali (PW-2). All the prosecution witnesses have also withstood the test of rigorous and lengthy cross examinations. Thus, the allegation regarding commission of offence by the accused-appellants as held to be established by the trial court stands affirmed. However, coming to the nature of offence, though they stand convicted with the aid of Section 34 IPC, we cannot ignore the fact that the accused appellants were only carrying lathis and the injuries as noticed to have been caused with lathi were found to be mostly on the non vital parts of the body. In the aforesaid background of the case, when there was enmity between the parties over some landed property; when the accused and complainant were unarmed, and when the villagers were attracted to the scene of occurrence only on hue and cry being raised, despite having enough opportunity, if the accused appellants who were armed with lathis did not cause any fatal injury to the deceased and to the injured witness, and even after the receipt of injuries, the deceased could be moved to District Hospital, Pratapgarh and then to Swaroop Rani Hospital, Allahabad, where he was declared dead, and further sometime was also taken in arrangement of money before carrying the deceased to Allahabad hospital, it would not be correct to hold that both of the accused appellants shared the intention of accused Rasheed who had caused Kulhari injury on the head of deceased which resulted in his collapse on the scene of occurrence. In view of all the aforesaid, we hold that it is not a case of murder but a case of culpable homicide not amounting to murder punishable u/s 304(Part-II) IPC read with Section 34 IPC as both the accused appellants caused injuries in the same manner with the same type of weapons i.e. lathi. Thus we set aside the conviction recorded by the learned trial court under Section 302 read with Section 34 IPC and instead hold both the accused appellants guilty of committing offence under Section 304( Part-II) IPC read with Section 34 IPC. Now coming to the offence under section 323/34 IPC for causing simple injuries to the complainant, (PW-1), in terms of the testimony of this witness as also the medical evidence on record in the form of statement of Dr. K.Dwivedi (PW-3), we affirm the conviction and sentence recorded thereunder. As regards the quantum of sentence under section 304 (Part-II) IPC read with Section 34 IPC we are informed that both the accused appellants have remained confined in jail for over 5 years, and they have suffered in the process of criminal prosecution right since 28.09.1997. Thus in our view, the ends of justice would be sufficiently served if the accused appellants namely Hakim (Abdul Hakim) and Ghyasuddin (Hafeez Ahmad) are imposed with the sentence of (rigorous imprisonment of over five years) already undergone, till the date a copy of this judgment is received in jail. However, it is also noticeable that the accused appellants are men of substantial means, and on the other hand, the complainant had to collect the money from others for incurring medical expenses on the treatment of his father namely the deceased herein. Thus, apart from imposing the jail sentence of period already undergone till the copy of this order is received for compliance which shall not be less than 5 years, we also impose the fine of Rs.50,000/- each on both the accused appellants. In default of payment of fine they shall further undergo a R.I. for three years each. The total amount so realized towards the fine amounts shall be paid to the next of kin of the deceased under Section 357 Cr.P.C. by way of compensation. In default of payment of fine they shall further undergo a R.I. for three years each. The total amount so realized towards the fine amounts shall be paid to the next of kin of the deceased under Section 357 Cr.P.C. by way of compensation. In view of all the aforesaid, the Criminal Appeal is allowed in part and the accused appellants who are said to be lodged in jail shall be released forthwith if they have completed the jail sentence of over 5 years as mentioned herein above on the date of receipt of a copy of this judgment/order, and paid the fine amount, in case they are not wanted in any other case.