Assad Sofi and Others vs State of Jammu and Kashmir

Syed Bashir-Ud-Din, J.—Four accused appellants on trial for charged offences u/s 302/34, RPC were convicted and sentenced to life

imprisonment for having caused murder of Mohammad Sofi, by the District and Sessions Judge Budgam vide his Judgment and order of conviction

and sentence dated 26-2-2000 and 6-3-2000 respectively in Criminal Sessions case 1/96. Against this judgment/order of conviction/sentence

three accused Assad Sofi, Rahim Sofi and Ahad Sofi have come up in this Criminal Appeal 2 / 2000.

The prosecution case is that on 12-12-1995, while deceased Mohammad Sofi and his son Ali Mohd Sofi were engaged in discussions in their

compound at about 4 PM in their village at Peth Sharan, Tehsil Beenvah, one Bashir Ahmad Dar happen to enter the compound and stand by

them. On hearing the father and son, he laughed. Father and son took objection and the son Ali Mohd Sofi made him to go away from the spot.

Soon after his father appeared on spot and objected to the conduct of the father and the son. The deceased apologized on which he returned, but

almost at the same time accused-appellants, father and three sons tress-passed in the compound, Mohd Soil caught hold of Mohd Abdulla Soft's

collar and called his sons to attack and kill him. Accused were armed with sticks. The two sons Rahim Sofi and Ahad Soft caught the said Mohd

Sofi by (sic) two arms while the third son accused Assad Sofi dealt a single blow on his head. He fell down unconscious. The other accused also

beat. him. He was lifted and carried first to police post Kulgam wherefrom he was referred and taken to SKIMS Institute at Srinagar, where he

died after six days due to the above injury which he sustained on his head.

On receipt of docket, Police Station Beerwah registered FIR 241/91. The investigation was conducted. Statements of number of witnesses

were recorded u/s 161, Cr.P.C., site plan as also recovery memos/seizure memos were prepared, medical certificates and autopsy report were

also obtained. The investigation culminated in sending up all four accused for trial u/s 302/34/497 R.P.C. No report was presented against named

accused Bashier Ahmad for want of evidence. The case was committed to Sessions. The learned Sessions Judge Budgam, framed charges against

accused-appellants u/s 302/447/ 34, R.P.C. to which each of the accused pleaded not guilty. Prosecution has examined and trial Court recorded

the statementsof as many as 11 witnesses produced by the prosecution. The statements of the accused were recorded u/s 342, R.P.C. Accused

have in defence examined three witnesses. The trial ended in conviction of the accused for murdering Mohd Sofi u/s 302/34, R.P.C. and convicting

each accused to life imprisonment. Accused were acquitted of the charge of criminal trespass u/s 447 R.P.C.

The learned Counsel for the appellants submits that the learned trial Judge has not applied the norms and observed rules of evidence required to

bring home guilt to the accused. The prosecution has not proved its case beyond reasonable doubt. The evidence of relation witnesses has not

been scrutinised with care and caution. He further submits that even taking the prosecution case in full on the evidence led by it, only accused

Assad Sofi can be convicted and that too u/s 304 RPC in so far as the evidence disclose that the accused Assad Sofi dealt a single blow with

Lathi.which he was carrying in ordinary course, in the middest of rising tempers following a quarrel, without any intention to cause death. At the

most Assad Sofi can be said to have the knowledge that his act of striking head of deceased Mohd Sofi, with lathi can result in an injury to him

likely to cause is death. The counsel also canvass that other accused, two sons and father never shared common intention with Assad Sofi, the

fourth accused. Sharing of common intention by accused is not at all substantiated. Vicarious liability enshrined by Section 34 RPC cannot apply to

this case. Accused can be punished for their proved individual incriminating penal acts and not for a graver offence on the basis of charge of

sharing of common intention u/s 34 R.P.C.

Addl. Advocate-General in defence solicits that the Sessions Judge has appreciated the evidence in right perspective. There is overwhelming

evidence both occular and medical to pointedly prove the complicity of the accused in the commission of the crime. Merely because, some of the

eye-witnesses are close relation to the deceased that per se is no ground to find fault with their evidence, when the trial Judge had been live to the

circumstance of scrutinising their evidence with care and caution. The case against the accused Assad Sofi has been proved beyond reasonable

doubt and the complicity of the other accused u/s 34 RPC cannot be also found fault with. The conviction of accused u/s 302/34 RPC and their

sentence to life imprisonment is based on evidence.

To appreciate the contentions of the learned Counsel for the parties, we proceed to deal with the matter and examine the case.

In criminal trials the normal rule of standard of proof and discharge of burden to prove is ""epitomized by phraze proved beyond reasonable

doubt"". The general or primary burden of proving the case is on prosecution.

In Sharad Birdhichand Sarda Vs. State of Maharashtra, , the Court observed (Para 156):--

This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence.

Only because the prosecution witnesses or some of them are related to the man killed their evidence cannot be discarded per se on that ground, if

otherwise their evidence is reliable. However, such witnesses have tendency to exaggerate things and facts. Their evidence has to be scrutinized

with care and caution. See Sharad Birdhichand Sarda Vs. State of Maharashtra, ; State of Uttar Pradesh Vs. Suresh alias Chhavan and Others,

and Gurcharan Singh and Another Vs. State of Punjab, .

In AIR 1983 SC 839 : (1983 Cri LJ 1112) the Court observed (para 5): --

...the mere fact that the witnesses were relations or interested would not be itself sufficient to discard their evidence straightway unless it is proved

that their evidence suffers from serious infirmities which raise considerable doubt in the mind of the Court.

In Brathi alias Sukhdev Singh Vs. State of Punjab, in the context of relation witnesses, it is observed (para 7): --

...There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are closely related to the deceased, it has to be

very careful in evaluating such evidence but the mechanical rejection of the evidence on the sole ground that it is interested would invariably lead to

failure to justice.

We have scrutinised the evidence of prosecution witnesses Mohd Subhan Sofi P.W. 1; Ali Mohd Sofi P.W. 2, Wall Sofi P.W. 3; Ahad Sofi

P.W. 4; and Akbar Sofi P.W. 5, all sons of the deceased. We have also minutely examined the evidence of Abdul Rashid Sofi P.W. 6, Ghulam

Mohd Sofi P.W. 7; Abdul Samad Sofi P.W. 8 and Dr. Roman Khan P.W. 10. The evidence of Patwari Ghulam Hassan Malik P.W. 9 and Abdul

Gaffar, ASI, Investigating Officer has been also gone through. The defence of accused in the light of their statement recorded u/s 342, Cr.P.C. and

the evidence tendered in defence by Mst. Fazi (wife of accused Mohd Sofi and mother of other accused) Ghulam Mohd Wani and Abdul Hamid

has been as well perused.

On the facts and circumstances of this case, we find that while the learned District and Sessions Judge discussed and examined the prosecution

evidence on record, he has ignored some vital aspects and pieces of evidence. He has not adverted to and taken notice of the material features of

the case, which could not have been lost sight of in so far as same have a vital bearing on the nature of offence committed and award of sentence.

These feature and aspects of the case have to be considered and the evidence led thereto is to be secutinized and appreciated in the totality of

facts and circumstances of the case.

It is in the evidence of all the prosecution witnesses that immediately before the occurrence resulting in death of Mohd. Sofi, there was an

incident involving Bashir Dar and his father one side and the deceased and his son Wall Sofi on otherside.There was wordy duel and altercation

between them. However, no sooner this part of the occurrence subsisded consequent on deceased expressing regrets for his sons misconduct in

forcing out Bahsir Dar from compound, it was instantaneously followed by latter part of the occurrence when accused appeared on the scene.

There was exchange of hot words preceded by arguments between the accused and the deceased and his son. They also engaged in a brawl. The

two sons of the deceased Ahad Sofi P.W. 4 and Wall Sofi P.W. 3, have even stated that the accused were enraged and tempers rose. It is also in

evidence of some of the witnesses that the accused took side on behalf of Bashir Dar and his father and were drawn in quarrel. Accused father and

his three sons quarrelled with deceased. Subhan Sofi P.W. 1 states that there was no enmity or any other motive for the brawl and the incident

which occurred. The evidence shows that every thing did happen on spur of the moment.

Complainant P.W. 1 and another witness Ghulam Mohd Sofi, P.W. 7 have deposed that accused Assad Sofi was carrying danda from his

home when his two brothers, accused Rahim and Ahad, picked up dandas only on spot during the course of the quarrel and yet Ali Sofi, P.W. 2

states that only Assad Sofi was armed with danda. Witnesses Abdul Ahad Sofi P.W. 8, Wall Sofi, P.W. 3, Ahad Sofi P.W. 4,Ghulam Mohd Sofi

P.W. 7, Mohd Akber Sofi, P.W. 5 and Abdul Rashid Sofi P.W. 6, have all testified that in fact Ahad Sofi and Rahim Sofi caught deceased Mohd

Sofi's two arms, while Asad Sofi dealt the fatal danda blow on his head.The medical evidence EXPW M, Postmortem report and the other two

certificates EXPW M/1, and EXPW M/2 when read in the context and with the statement of Dr. Roman Khan, Asstt. Surgeon, go to show that

the deceased carried only one injury at right parietal area of head. No other injury is recorded either in the autopsy report or in the injury

report/certificate of the Doctor. The doctor has recorded that the deceased Ghulam Mohd Sofi bore fracture at right parietal area of head with

subdural heamotoma covering about middle 1/2 of the brain. He opined that the cause of death is ""Cranio cerebral trauma with multiple intra

cerebral bleeds"". It is also in his evidence that.death in this case could not have been instantaneous. The witness has no where stated that the injury

in this case is sufficient in the ordinary course of nature to cause death. No question on this aspect of the case was asked from the witness by the

prosecution. The deceased Mohd Sofi Died 7 days after the incident on 18-12-1995. During this period he was hospitalised. Though the Doctor

has opied that the death in this case has occurred 2/3 days after Mohd Sofi sustained the injury in question, yet death in this case took place after

six days after the incident in hospital.

Now in such circumstances can the accused be convicted u/s 302 RPC read with Section 34 RPC and sentenced accordingly as is done by

the trial Court judgment. We do not find ourselves in agreement with the District and Sessions Judge to record conviction and sentence u/s 302

read with Section 34, R.P.C.

In State of U.P. Vs. Indrajeet @ Sukhatha, where the accused a carpenter by profession in the early hours ente'red the house of one

Phoolrnati and dealt some blows to her and her family members with 'Rukhani' (an implement normally used by the carpenters) the Supreme Court

observed (para 7) : --

...Though the intrusion into the hut by the respondent in the early hours of the morning may be construed to be with a sinister intention or purpose,

but from the type of the weapon he was carrying, it could not be either reasonably or legitimately postulated that it was with the intention of

committing the murder of the victim or Inflicting upon the victim such a grave/serious injury sufficient to cause her death. particularly when he would

be fully aware of the fact that in the hut the father and the mother of the deceased would also be present at that time.

In Shri Kishan and Others Vs. State of U.P., , it was held that, apart from the injury on the head of the deceased which proved fatal, the other

injuries on the body of the deceased were not of serious nature and that there was no previous enmity between the parties and that the quarrel

arose over a tree felling incident and therefore, the finding of the High Court was justified in negating the common intention and recording of

conviction and sentence for grievous injury u/s 325 IPC and that the accused could only be convicted and sentenced for the individual offence

committed. Though it cannot be said to be a rule of thumb, that when a lathi blow is administered resulting in death of the victim, the perpetrator

cannot be said to have the requisite intention or knowledge of causing death, but all the same the conclusion to be drawn as to the culpability of the

accused and the nature of incriminating act depends on the facts and circumstances of each case. Keeping in mind that the medical evidence

showed that the lathi blow received by Mohd Sofi on his head as deposed by the witness was not sufficient in ordinary course of nature to cause

death and that the instaneous death could not have taken place and that the deceased died after about one week after hospitalisation, coupled with

the incident having taken place on spur of the moment preceeded by quarrel and roused tempers, it can be said that the act of Assad Sofi who

dealt the fatal blow did amount to culpable homicide not amounting to murder u/s 304(II) RPC. As to the capability of Assad Sofi in dealing the

fatal blow in the aforesaid circumstances, there is overwhelming evidence. No other conclusion except as above can be drawn from the evidence

on record. The defence version has to be tested in the light of statements recorded u/s 342 Cr.P.C. and the evidence ten-dered by the defence

witnesses. Defence version has not been rightly believed by the Session Judge. The defence appears to have been tailored and seems to be an

attempt to hoodwink the lenses of evaluation and misguide the mechanism of appreciation of evidence.

The other important question which merits to be addressed in the facts and circumstances of the case is whether the accused shared a common

intention to perpeterate the offence. Now having regard to the facts and circumstances of the case, it cannot be said that the three accused shared

the common intention with Assad Sofi accused, of causing the injury resulting in culpable homicide not amounting to murder made Penal by Section

304 Part (II) RPC.

Assad Sofi alone can be attributed with the knowledge that his act of delivering the fatal blow on the head of Mohd Sofi is likely to cause

death, though without any intention to cause death or to cause such bodily injury as is likely to cause death. The other three accused can be

convicted and sentenced for their invidual act(s).

In Ramashish Yadav and Others Vs. State of Bihar, in the context of application of Section 34 RPC in a murder case, where two accused

caught hold of deceased and other two accused gave blows with 'Gandasa' on the head of the deceased, resulting in his death, the Supreme Court

observed (para 3) :

...Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of

common intention animating the accused leading to the doing of a criminal act in futherance of such intention. The distinct feature of Section 34 is

the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either

from conduct or from circumstances or from any incriminating facts. It requres a prearranged plan and it presupposes prior concert. Therefore,

there must be prior meeting of minds. The prior concert or meeting of minds may be deermined from the conduct of the offenders unfolding itself

during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment

but there must be a prearrngement or premediated concert. This being the requirement of law for applicability of Section 34 IPC, from the mere

fact that accused Ram Pravesh Yadav and Rarnanand Yadav came and caught hold of Tapeshwar, whereafter Samundar Yadav and Sheo Layak

Yadav came with gan dasa in their hands and gave blows by means of gandasa, it cannot be said that the accused Ram Pravesh Yadav and

Rarnanand Yadav shared the common intention with accused Samundar Yadav and Sheo Layak Yadav....

The evidence led in the case proves that the accused Mohd Sofi, Ahad Soft and Rahim Sofi bet deceased Mohd Sofi and did cause him hurt

as defined in Section 119 RPC, made penal and punished by Section 323 RPC, therefore, these accused, in absence of any vicarious liability of

their sharing common intention with Assad Sofi for laters act of casing fatal injury with the knowledge that the death is likely to result, have to be

convicted and punished for causing voluntary 'hurt'. Once Mohd Sofi, Ahad Sofi and Rahim Sofi are held guilty of causing 'hurt' as defined by

Section 319 R.P.C. These accused are convicted of voluntarily causing hurt. The maximum punishment provided is one year imprisonment or fine

which may extend to one thousand rupees or both u/s 323 R.P.C.

The accused Assad Sofi is found guilty u/s 304(II) RPC of delivering the fatal blow on deceased's head with knowledge that the injury was

likely to cause death though without any intention to cause death or to cause such bodily injury as is likely to cause death. The sentence provided is

imprisonment of either description which may extend to ten years or with fine or with both.

Having regard to the nature and gravity of the offence committed and the circumstances in which it was committed in the context that the

accused have no previous history or criminal record. Accused Assad sofi is sentenced to six years rigorous imprisonment u/s 304(II) RPC and the

other three accused Mohammad Sofi, Ahad Sofi and Rahim Sofi are each sentenced to one year's rigorous imprisonment u/s 323 RPC as same

appears just and proper. The period of detention under gone by the accused during investigation enquiry or trial shall be adjusted and given set off

against the above awarded imprisonment on conviction to accused in terms of Section 397-A of R.P.C.

In result, the appeal is allowed in part as above and the conviction and sentence of the accused are altered and modified to the extent

indicated. The impugned judgment on other counts is maintained.

We notice that accused Mohd Sofi has not filed appeal against the conviction and sentence but keeping in view the interdependance and integrated

nature of the findings qua the appellants and non-appealing accused, the conviction and sentence of Mohd Sofi is also altered as above and the

said Mohd Sofi accused is also sentenced accordingly.

In Hari Nath and Another Vs. State of U.P., , the Apex Court in the context of non-appealing accused Pheku Singh observed (para 13):

...The conviction and sentence of the non-appealing accused, namely, Pheku Singh cannot also be sustained consistent with the findings in and the

result of these appeals as the findings are interdependant and inextricable integrated. The conviction and sentence of Pheku Singh are also set aside

and the said Pheku Singh, the accused No. 3 in S.T. No. 168 of 1974 is also dircted to be set at liberty forthwith.

The contention of Mr. S.T. Hussain, that as the Sessions Judge has failed to make a reference for confirmation of the life imprisonment awarded to

accused as mandated by Section 374, Cr.P.C. the impugned judgment is vitiated and the appellants' earn acquittal, is not merited, of course the

Sessions Judge, for reasons known to him, failed to make a reference which he is under mandate to make u/s 374 Cr.P.C. But all the same, it is a

cureable defect and that two when the accused have filed appeal against their conviction and senence. It is not shown that the accused have been

at all prejudiced by Sessions Judge's omission to submit the proceedings for confirmation of the sentence to the High Court. In like circumstances

in Ram Kishore Pandey Vs. State, Hon'ble Dr. A.S. Anand,Chief Justice of this Court (as his Lordship then was) observed

...No doubt, Section 374 Cr.P.C. gives a mandate to the Sessions Judge to submit the proceedings for confirmation of the sentence of death or life

imprisonment, a strict non-compliance with the requirement how-ever would not vitiate the judgment unless of course, it is shown that the accused

has been prejudiced by the omission to submit the proceedings to the High Court....

As this Court examined the whole case and scrutinised and appreciated the evidence as a Court of Appeal and the accused not being least

prejudiced by omission in submitting the proceedings to this Court, therefore, no illegality is attached to the judgment and order of conviction and

sentence on that score. Appeal/disposed of to the extent and as indicated in this Judgment.