Ishaq vs State of Haryana

M. Jeyapaul, J.—The first accused Ishag, who was charged with the offence u/s 307 read with Section 34 IPC alongwith the second

accused Mustaq, was convicted for offence u/s 304-II IPC and was sentenced to undergo six years rigorous imprisonment with usual default

sentence. He has come forward with the present appeal.

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 watertank 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 Panchayat land.

(d) The accused-Appellant Ishaq having got infuriated, picked up a stone (Ex. P-l), 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-l1 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 IPC.

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 u/s 304-II IPC but not under Sections 302/34 IPC. 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.

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.

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 u/s 304-II IPC. As regards the juvenility of the first accused-Appellant, he leaves to the determination of this Court in terms of the

amended provisions u/s 7(A) of the Juvenile Justice (Care and Protection of Children) Act, 2000.

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.

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.

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.

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 u/s

304-II IPC as against the first accused-Appellant.

Coming to the claim, of juvenility put forth by the accused Appellant, Ex. R-l, 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.

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.

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.

The appeal is allowed in the aforesaid terms.

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.