Ghulam Hassan Panjara and Ors. vs State

Four persons, namely, Abdul Rehman, Ghulam Hassan, Fayaz Ahmed and Ali Mohammed were arraigned before additional Sessions Judge,

Srinagar, to stand their trial for offence under sections 302 and 452 read with sec. 34 R. P' C. for ''having committed the murder of one Maqbool

Sheikh on the morning of 31st December, 1979, at Shampora, Khanyar. Since Fayaz Ahmed was a child within the meaning of the Children

Courts Act, his Case was segregated from the rest and we are told that he is being separately tried for the aforesaid offence under the said Act.

The learned Addl. Sessions Judge on the conclusion of the trial, has eventually found all the three appellants, namely, Abdul Rehman, Ghulam

Hassan and Ali Mohammad guilty of having murdered Mohd. Maqbool and has convicted them u/s 302 read with Sec. 34 R. P. C. and sentenced

Abdul Rehman to death and a fine of Rs. 1, 000/ in default whereof to suffer further region imprisonment for a period of two years. He has

sentenced Gliulam Hassan and Ali Mohammad to imprisonment for life and a fine of Rs. 1, 000/ each in default whereof to suffer rigorous

imprisonment for a further period of one year each. The appellants have challenged their conviction and sentence by virtue of an appeal. Alongside,

the Addl. Session Judge has also made, a reference to this court for confirmation of the sentence of demure and imprisonment for life imposed

upon the appellants. This Judgment will govern the clasps of both the appeal as wall as the reference.

On 3112197) at about 8 A. M., as the prosecution story goes, the appellants all along with Fiyiz Ahmad entered the house of P. W. Ghulam

Qadir Khan where Mohamrd Maqbool was working as an apprentice. They went into the room where he was working and closed it from inside

Whereas Fayaz Ahmad and Ali Mohammad caught hold of Mohd, Maqbool from his legs, the other two appellants, namely, Abdul Rahman and

Ghulam Hassan who were holding knives in their hard inflicted injurers with them on his head and neck, Mohd. Maqbool shouted for help which

attracted the attention of Mst. Misra, wife of Ghulam Qadir Khan who consequently raised an alarm. On hearing her cries Ghulam Qadir Khan

immediately rushed to his house. He found the room closed from inside, but he broke it open and both of them, namely. Ghulam Qadir Khan an his

wire Misra saw Fayaz Ahmed and Ali Mohammad catching hold of Mohammad Maqbool from his legs and Abdul Rahman and Ghulam Hassan

inflicting knives blows on his person. On sustaining the injuries Mohammad Maqbool started beading profusely. He was rescued by them with the

help of a few others and was removed to hospital. On reaching there, his dying declaration Ex. PW 29/A was recorded by Ghulam Mohammad

Wani, die Divisional Officer Now in presence of the Medical Officer Dr. Mr. Farooq. The police towing into investigation recorded the statement

of the two eye witnesses, namely Ghulam Qadir Khan and Mst. Misra also produced before the police, the knife which Gliulam Hassan was

holding in his hand and which he had left their after the occurrence. The other knife was also recovered from the possession of Abdul Rahman

nearly two weeds after the date of the occurrence. Blood stained clothes of the deceased and Wood stained earth from the place of occurrence

were also seized by the police. Mohammad Maqbool, however, succumbed to the Injuries about 2 P. M. on the same day. The dead body was

autopsied by Dr. Khurshid. The weapon of offence, namely, the two knives the clothes of the deceased and the blood stained earth were sent for

chemical examination. The Serologist of India opined that the two knives were stained with human blood belonging to Group B. He also opined

that, the clothes of the deceased were also stained with human blood belonging to Group B.

On completion of the investigation, the police put up a challan against the appellants. Daring the course of the trial the prosecutor examined a

number of witness, namely, Mst. Atiqa was also examined on behalf of the appellants. On consideration of the evidence, the learned Addl.

Sessions Judge eventually found them guilty and convicted and sentenced them as already indicated. In convicting them he relied upon the ocular

testimony of P. Ws Ghuiam Qadir Khan and Misra Begum, the dying declaration made be the deceased before Gh. Mohammad wani, the

Divisional Officer as also to some other persons while he was being taken from the house of the complainant to the hospital and in the hospital

itself. recovery of the weapons of offence from the appellants and the medical evidence furnished by P W. Dr. Mir Farooq.

Today we have heard the learned counsel for the appellants Mr. S. T. Huseain and the learned Chief Govt. Advocate.

So far as the occurrence is concerned, there can be no manner of doubt, that it has been proved by the prosecution by producing cogent and

unimpeachable evidence which consists of the statements of the two eye. witnesses, namely, Ghulam Qadir Khan and Misra Begum. The ocular

testimony furnished by these witnesses is corroborated by the dying declaration of the deceased besides the recovery of weapons of offence, the

report of Serologist of India and the medical evidence provided by P. W. Dr. Mir Farooq. Faced with this evidence, Mr Tassaduq was frank

enough to concedes that he was not in a position to question the occurrence. He, therefore, confined his arguments to the nature of the offence and

the quantum of the sentence imposed as also the involvement of the third appellant, namely Ali Mohamad. We find considerable force in these

contentions of Mr. Tassaduq.

So far as Ali Mohammad is concerned, he in our opinion in entitled to benefit of doubt. In the dying declaration of the deceased his name is

conspicuously absent whereas the deceased could name the other three appellants namely. Abdul Rehman Hassam and Fayaz Ahmad, he failed to

mention the name of Ali Mohamad who also belongs to the same family. This omission, in our opinion 's highly significant and entitles Ali

Mohammad to benefit of doubt. The only part attributed to him is that he had caught hold of the legs of the deceased. In the dying declaration,

however the deceased, himself did not say that anybody had caught hold of his legs. No other part is alleged to have been played by this appellant.

We, there fore, grant him the benefit of doubt accepting his appeal, set aside his conviction and sentence and acquit him of the charge.

Coming now to the nature of the offence, the only two injuries which according to P. N. Mir Farooq were likely to cause the death of the

deceased are injuries read as under :

'""5. One incised wound just below the left ear (sick) in the neck about 1 cm.

Another incised wound about 2 cm long at left side of neck about 4 cm below the front wound through which blood was coming out in Jets. On

exploration of this wound there are multiple injures of the carted truck left side,

To quote the Doctor in his own words. In this Particular case, the death has been caused by the neck injury mentioned in the injury memo Ex. P.

W. 29/B..... injuries 5 and 6 were likely to cause the death of the deceased.

The learned Addl. sessions Judge has found the appellants guilty of murder under Subsection (1) of sec. 360 R.P.C. and held that the appellants

had killed the deceased with the intention of causing his death This finding in our opinion, is highly extravagant We find nothing in the evidence to

infer any intention on the part of the appellant's to cause the death of the deceased. This intention in sought to be deduced from the injuries

whichever found on his person, in particular, injuries 5 and 6 Mr. Tasaduq was right in contending that the opinion of the Doctor that these injuries

were likely to cause the death of the deceased was not sufficient to impute an intention to the appellants either to cause the death of the deceased,

or to cause such injury as was sufficient in the ordinary course of nature to cause his death The distinction between an injury which is likely to cause

death and an injury which is sufficient in its ordinary course to cause the death of the deceased has been succinctly pointed out by their Lordships

in Suraj Vs. The State of Tamil Nadu. AIR 1976 & 1519 where in it was held :

If the act of the accused falls under clause (b) of S. 299, that is to say, if the intended bodily injury is likely to cause death as distinguished from

one which is sufficient to cause death in the ordinary course of nature, Cl. Thirdly of 3.300 would not apply. Exactly this is the situation in the

present case. The offence committed by the appellant would therefore fall under the first Part of Sec. 304, Penal Code......

A similar view was taken by the same court in chillamakur Megiraddy and others Vs. State of Andhra Pradesh, AIR 1977 SC 1989.

It is, therefore manifest that the consistent view taken by their Lordships is that an injury which is likely to cause death is clearly distinguishable

from the one which is sufficient in the ordinary course to cause death and the case will not fail under Clause Thirdly or Sec. 300 R. P. C if the

injury is such as is likely to cause death. This principle applies with full force to the facts of the present case. Incidentally no attempt has been made

by the prosecution to seek clarification from P. W. Dr. Mir Farooq as to whether injuries 5 and 6 were sufficient in their ordinary course to have

caused the death of the deceased. That apart, what appears from the statement of the Doctor is that these two injuries taken collectively were

likely to cause death of the deceased. He has not gone further to state whether any of these two injuries taken signally was likely to cause the death

of deceased. We are therefore. clearly of the opinion that it is not a case which could fall either under Clause Firstly or Clause Thirdly of Sec. 300

R. P. C. The offence that, On the evidence produced in the case could be made out was one u/s 304 Part I, R. P. C. We accordingly alter the

conviction of the appellants from Sec. 302 to Sec. 304 Part 1 R. P. C.

Then comes the question of sentence. It is in the prosecution evidence itself that the deceased had an affair with the wife of appellant Ghulam

Hassan. P. W. Gh. Mohd Kalai, S. H. O. Police Station, Khanyar, has been frank enough to concede that two days prior to the occurrence i. e.

on 29121979 the deceased was seen committing adultery on the wife of appellant Gh. Hassan. It is also in his statement that the appellant had

returned from Jammu after six months on 30121979 in the evening. Even the dying declaration lades to the fact that the deceased was suspected of

having illicit relations with the appellant's wife Mst Nisara. Motive for the murder could not. therefore, be other than the anger in the mind of the

appellant that the deceased has committee illicit inter course with his wife Mst. Nisara. Thus, there is no evidence to show as to when the

appellants learnt about it, but this much is sure that they must have learnt it between the night of 30th Dec : 1979 and the morning of 31st Dec,

1979. When the occurrence took place Even if, therefore, there is no cogent and reliable evidence to show that there was grave and suden

provocation under which the offence was committed by the appellants nevertheless, it cannot be said that the provocation was to be totally ignored

while considering the question of quantum of sentence. That apart, appellant Abdul Rahman who has been awarded penalty of law was 72 year

old when his statement u/s 342 Cr. Pr. Code was record in 1980, By now he must be nearly 75 years old. Keeping ail these facts and

circumstance in view, we thing four years rigorous imprisonment will be sufficient to motet the ends of justice. We, therefore, sentence each of the

two appellants to undergo rigrous imprisonment for a period of four years and to pay a fine of Rs. 1000/ each, In default of payment of the fine,

they shall suffer rigrous imprisonment for a further period of six months each. To this extent we accept the appeal and reject the reference made by

the learned Addl. Sessions Judge.