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2017 DIGILAW 50 (JK)

Pawan Kumar v. State of J&K

2017-02-06

ALOK ARADHE, MOHAMMAD YAQOOB MIR

body2017
JUDGMENT : Yaqoob, J. 1. Learned Principal Sessions Judge, Ramban vide judgment impugned dated 28.02.2013, on completion of the trial, has convicted the appellant for having committed the offences punishable under Sections 302 and 449 RPC and acquitted him of the charge under Section 7/27 Arms Act. 2. After hearing on the quantum of sentence, vide order dated 28.02.2013 has sentenced the accused to rigorous imprisonment for life and fine of Rs.50,000/-(fifty thousand) under Section 302 RPC, rigorous imprisonment for a period of five years and fine of Rs. 5,000/- (five thousand) under Section 449 RPC. Both the sentences to run concurrently. The period of detention undergone during investigation and trial to be set off against the sentence of imprisonment. In default of payment of fine, the appellant shall have to undergo simple imprisonment for a period of one year under Section 302 RPC and one month under Section 449 RPC. The amount of fine, if realised to be paid as a compensation to the wife of the deceased. 3. Proceedings of the case have been submitted in terms of Section 374 Cr.PC which stands registered as Confirm. No. 14/2013. Appeal preferred by the appellant has been registered as Criminal Appeal No. 25/2013. 4. Learned counsel for the appellant has argued that the requirements under Section 300 of RPC are not satisfied as the death caused was not intended. The evidence as produced suggests that the act done could not even come under the Part-I and Part-II instead falls under the Part-III of Section 299 RPC. Accused had no knowledge that his alleged act was to cause death of the victim. While referring to the medical evidence, more particularly, the statement of PW-14 Dr. Anirudh Singh, placed reliance on the judgments reported in AIR 1981 SC 1441 , AIR 1968 SC 867 and AIR 1968 SC 1390 . Further argued that in case his submission does not prevail, then he may project case for acquittal of the appellant. 5. Learned Deputy Advocate General submitted that the requirements of Section 300 RPC are fully satisfied. Learned trial court has consistent with law rightly convicted the accused under Section 302 RPC and proper sentence has been awarded. 6. For appreciating the rival submissions, it would be quite advantageous to precisely notice as to what the prosecution case is and what is the medical evidence. 7. Learned trial court has consistent with law rightly convicted the accused under Section 302 RPC and proper sentence has been awarded. 6. For appreciating the rival submissions, it would be quite advantageous to precisely notice as to what the prosecution case is and what is the medical evidence. 7. The case set up by the prosecution is that the relation between Rajinder Kumar (deceased) and Pawan Kumar alias Nikku (accused) were strained. On 05.01.2008 at 5 PM, accused after entering into the house of the Rajinder Kumar (deceased) assaulted him with the sharp edged weapon. After causing serious injuries he had escaped from the place of occurrence. The matter was reported to the police, case was registered as FIR No.03/2008, P/s Batote for offences punishable under Section 302/449 RPC and 7/27 Arms Act. 8. On completion of investigation, charge sheet (challan) was filed. The accused was put to trial by the trial court vide its order dated 27.06.2008 for commission of offences punishable under Section 302, 449 RPC and 7/27 Arms Act. 9. Prosecution in support of its case has produced 18 witnesses which include PW-14 Dr. Anirudh Singh who on examination and after conducting post-mortem recorded as to what was the injury on the person of the dead body, i.e. “A single stab wound about 15 cm below the right anterior superior iliac spine, obliquely placed on the anterior aspect of right thigh. The size of the wound was 3 cm long, 11/2 cm wide at the center of the wound and 4 cm deep, dissected oblique and upwards towards right groin injuring right femoral artery. Margins of the wound were clean cut, edges were parallel and curved to each other and elliptical in shape. Dark coloured blood was coming out of the wound.” 10. The doctor has stated that the stab wound lead to the injury of the right femoral artery (vital) leading to the massive hemorrhage resulting into shock and death. The weapon of offence “Khokhri” was shown to him by the SHO Batote. The injury found on the person of the deceased could have been possibly caused with the use of the weapon of offence shown to him. In the cross examination he has stated that the weapon of offence at the time of death as was shown to him was clean and there were no blood stains on it. 11. The injury found on the person of the deceased could have been possibly caused with the use of the weapon of offence shown to him. In the cross examination he has stated that the weapon of offence at the time of death as was shown to him was clean and there were no blood stains on it. 11. The contention of the learned defence counsel before the trial court, to the effect, that the offence of murder is not constituted as there was neither intention on the part of the accused nor knowledge that the single stab wound cause death, as such in absence of any evidence in this behalf accused could not be held guilty under Section 302 RPC. Learned trial court repelled the contention by opining that in view of the clinching evidence direct as well as indirect to the effect that the deceased had been attacked by the accused in broad day light in presence of brother, wife, son and mother of the deceased, suggest that the contention raised by the defence counsel is fallacious. 12. The another contention of the learned counsel for the defence before the trial court, that accused could not be attributed to have knowledge about the vitality of the femoral artery which was not accepted by the learned trial court by observing that the lower abdomen where from this artery moves is otherwise a vital part of the body. The accused could not be said not to have intention or knowledge that by inflicting a stab wound the deceased may not die. Therefore the intention and knowledge which are important ingredients to constitute an offence of murder are both present. The accused had used a weapon of offence and also entered into the house of the deceased to commit an offence. Therefore, learned trial court opined that the accused is guilty of the offence punishable under Section 302 and 449 RPC. 13. Learned trial court with regard to another offence i.e. charge under Sections 7/27 Arms Act has observed that width of the blade of weapon of offence is only 1 1/2 inches which is less than 2 inches, therefore does not fall within the ambit of the Arms as notified vide SRO 175 dated 23.04.1974, as such accused cannot be held guilty under Arms Act, therefore is acquitted of the charge under Section 7/27 Arms Act. 14. 14. Learned counsel for the appellant emphatically submitted that the intention and knowledge to kill is missing. Firstly, in case accused would have intention to kill then he would have given blow with the weapon of offence (khokhri) on the vital part of the body say head, heart, kidney. He demonstrated that stab wound as clarified by the doctor Anirudh Singh, PW-14 is 15 cm below the right anterior iliac spine, 1 1/2 cm wide at the center of the wound and 4 cm deep, dissected oblique and upwards towards right groin injuring right femoral artery. According to the doctor, injury of the right femoral artery being vital has lead to the massive hemorrhage resulting into shock and death. 15. The question here arises as to whether accused could have knowledge that the injury of the right femoral artery would be caused by the stab with the “khokhri”. 16. Normally it is beyond one’s comprehension that layman could have a knowledge of location of femoral artery. Once it is so, the knowledge would be missing and the element of intention to kill will fade away. The knowledge to cause injury to a vital organ of the body must be clear, when it would be clear then intention to kill per se is inferable. 17. In the judgment Gokul Parashram Patil vs. State of Maharashtra reported in AIR 1981 SC 1441 , facts of the case have been noticed as under: “The case of the prosecution was that the appellant attacked the deceased with a knife giving the latter a single blow above the left clavicle where it caused a muscle-deep incised wound having the dimension 1-1/4" x 1/3". The autopsy surgeon, while certifying the existence of that wound, also found that the superior venacava had been cut, the damage so caused being sufficient in the ordinary course of nature to cause death.” What has been held in this context, Para 3 and Para 5 of the Judgment are relevant to be quoted: “3. The learned counsel for the appellant has contended that the case does not fall within the ambit of section 302 of the Code and that the two courts below erred in relying on Virsa Singh v. State of Punjab. The learned counsel for the appellant has contended that the case does not fall within the ambit of section 302 of the Code and that the two courts below erred in relying on Virsa Singh v. State of Punjab. The gist of the dictum of this Court in that case is that if an injury is held to have been intended by the assailant and is further found to be sufficient in the ordinary course of nature to cause death, it would attract clause third of section 300 of the Code and that, therefore, its author would be liable to punishment under section 302 thereof. The question thus is whether the particular injury which was found to be sufficient in the ordinary course of nature to cause death, in the present case, was an injury intended by the appellant. Our answer to the question is an emphatic no. The solitary blow given by the appellant to the deceased was on the left clavicle - a non-vital part - and it would be too much to say that the appellant knew that the superior venacava would be cut as a result of that wound. Even a medical man perhaps may not have been able to judge the location of the superior venacava with any precision of that type. The fact that the venacava was cut must, therefore, be ascribed to a non-intentional or accidental circumstance. This was precisely the view taken in Harjinder Singh v. Delhi Administration, by Sikri, J., and in Laxman Kalu Nikalje v. The State of Maharashtra, by Hidayatullah, C.J. In the former of these cases, the injury in question was a stab wound on the left thigh which had cut the femoral artery and vessels. In the latter, the damage caused consisted of a cut in the auxiliary artery and veins. In the latter, the damage caused consisted of a cut in the auxiliary artery and veins. In each of the two cases it was held that although the injury which was found to be sufficient in the ordinary course of nature to cause death had resulted from a blow with a sharp-edged weapon, the same could not be said to have been intended, that the only injury which could be regarded as intentional was the superficial wound resulting directly from the blow, that the assailant could not be held guilty of an offence under section 302 of the Code and that he was, on the other hand, guilty of a lesser offence falling under part II of section 304 thereof. 5. Following the dicta in the two earlier decisions of this Court which have been cited above, we partially accept the appeal, set aside the conviction of the appellant for an offence under section 302 of the Code and substitute thereof one under part II of section 304 thereof. In consequence he shall suffer rigorous imprisonment for 5 years which punishment, in our opinion, will meet the ends of justice in the circumstances of the case. The judgment of the High Court is modified accordingly.” (Emphasis added) 18. It shall also be quite advantageous to quote Para 11 of the judgment rendered by the Hon’ble Apex Court in the case of Laxman Kalu, Nikalji vs. The State of Maharashtra, AIR 1968 SC 1390 “11. That section requires that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts; the first part is a subjective, one which indicates that the injury must be an intentional one and not an accidental one; the second part is objective in that looking at the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death. We think that the first part is complied with, because the injury which was intended to be caused was the one which was found on the person of Ramrao. But the second part in our opinion is not fulfilled, because but for the fact that the injury caused the severing of artery, death might not have ensued. We think that the first part is complied with, because the injury which was intended to be caused was the one which was found on the person of Ramrao. But the second part in our opinion is not fulfilled, because but for the fact that the injury caused the severing of artery, death might not have ensued. In other words, looking at the matter objectively, the injury which Laxman intended to cause did not include specifically the cutting of the artery but to wound Ramrao in the neighbourhood of the clavicle. Therefore, we are of opinion that the thirdly of s. 300 does not cover the case. Inasmuch as death has been caused, the matter must still come within at least culpable homicide not amounting to murder. There again, S. 299 is in three parts. The first part takes in the doing of an act with the intention of causing death. As we have shown above, Laxman did not intend causing death and the first part of S. 299 does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause death and that also, as we have shown above, was not the intention of Laxman. The matter therefore comes within the third part. The act which was done was done with the knowledge that Laxman was likely by such act to cause the death of Ramrao. The case falls within the third part of s. 299 and will be punishable under the second part of s. 304 of the Indian Penal Code as culpable homicide not amounting to murder. We accordingly alter the conviction of Laxman from s. 302 to s. 304 of the Indian Penal Code and in lieu of the sentence of Imprisonment for life imposed on him, we impose a sentence of rigorous Imprisonment for 7 years. With this modification, the appeal shall stand dismissed.” (Emphasis added) 19. The law as has been laid down in the afore referred judgments squarely covers the case of the appellant. With this modification, the appeal shall stand dismissed.” (Emphasis added) 19. The law as has been laid down in the afore referred judgments squarely covers the case of the appellant. It is clear from the evidence that appellant intended to cause bodily injury which he did but the injury of the right femoral artery was not intended because the location of the right femoral artery was never and could not be within the knowledge of the accused. The act of the appellant falls within ambit of Part-III of Section 299 RPC punishable under Section 304 (Part-II) of the RPC. 20. In the background of the facts, the evidence, the reasons stated hereinabove and in view of the law as has been laid down by the Hon’ble Apex Court as referred to above, we hold that the act of the accused falls under Section 299 (Part III) RPC and is proved, as such accused has to be convicted and sentenced under Section 304 (Part-II) RPC. Accordingly conviction of the accused is altered from Section 302 RPC to 304 RPC. 21. Thus the appellant is sentenced to imprisonment for a period already undergone i.e. nine years and one month and fine of Rs. 20,000/- under Section 304 Part II RPC. In default of fine shall have to undergo simple imprisonment for a period of six months. 22. The sentence awarded under Section 449 RPC by the Trial Court, i.e. sentence of five years and fine of Rs. 5,000/- in default, imprisonment for a period of two months, the sentences to run concurrently, the period of detention during investigation and trial to be set off against the sentence of imprisonment, whole amount of fine, if realized to be paid as compensation to the wife of the deceased, is maintained. In case appellant deposits the amount of fine i.e. (Rs.20,000 + Rs.5000) = Rs.25,000/- He shall be released forthwith. 23. The appeal to the extent indicated above is allowed. The judgment and the order dated 28.02.2013 providing for conviction and sentence respectively as such shall stand modified. 24. Confirm No.14/2013 in view of alteration from Section 302 RPC to Section 304 (Part-II) does not survive for any consideration, accordingly, disposed of. 25. Copy of this judgment and trial court record be sent to the Trial Court.