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Judgment
Through this sppeal, accused have challenged the judgement dated 26.6.96 passed by the Sessions Judge, Srinagar whereby he has convicted accused1 (Saleem Khan) under section 302 Ranbir Penal Code (hereafter shortly RPC) and sentenced him to undergo imprisonment for life.
Accused2 (Gulzar Khan) has been convicted under section 323 RPC and sentenced to undergo imprisonment already undergone by him while in custody. The accused are father and son. Deceased ShowKat Ahmad was accused Gulzar Khan's sister's son. The mother of the deceased had been living along with her family members in her parental house as her mother had given a share in that house. In this house courtyard and the bath room were being shared jointly by the members of her family and that of her brother accused2. Abdul Rehman Dar is the father of the deceased.
On 24.5.1990, curfew was clamped in the city of Srinagar whereby free movement of the inhabitants was restricted. At about 7.30 PM, while Javid Ahmed Khan (Son of accused Gulzar Khan) was washing his clothes in the said bath room, deceased felt the necessity of performing his ablutions for evening prayers. He made entreaties to Javid Ahman Khan to vacate the bath room but all fell on deaf ears. The accused watched this incident closely, but became enigmatic when they could not keep their countenance and in most petulant manner came out from the room and pounced upon the deceased. They started thrashing him soundly for daring to be cheeky towards their kith and kin. Meanwhile, father of the deceased namely, Abdul Rehman Dar hastened to reach there and with the help of some persons succeeded in ending this brawl. Accused Saleem Khan immediately made his way into the kitchen and immediately reappeared on the spot brandishing a knife in his hand. He inflicted two knife blows on the deceased. One lanued on his back and the other on the chest. The third injury was intercepted by Ghulam Hassan Malla son of Mohd Sadiq PW and got his hand injured. The deceased was taken in an injured condition to the sadder Hospital, Srinagar where after two hours he succumbed to the injuries. After investigation, the police submitted the case to the Sessions court. Sessions Judge, Srinagar after holding the trial held the accused quilty and convicted and sentenced them as stated above.
The judgment of the learned Sessions Judge has been assailed on the grounds that the accused Saleem Khan could not be convicted and sentenced to life imprisonment as he was a child when the occurence took place. The trial Judge got him medically examined and his radiological age was opined between 17 and 18 years. There is variation of two years on either side in this estimation. This way, the age could be between 15 and 16 year also. The finding is erroneous when the trial Judge concluded that accused had failed to prove his minority. Injury No.4 in the postmortem report has been described fatal but it was never intended by accused Saleem Khan. In all probability it was fortuitous. The prosecution has failed to prove that this injury was sufficient in the ordinary course of nature to cause death. In these circumstances, offence falling under sec.304 PartII RPC was made out and not under sec.302 RPC. It is also submitted that there is no evidence on the record to prove offence u/s 323 RPC against accused Gulzar Khan.
The trial Judge has also made reference (Cr. Ref.No.6/96) for confirmation of the conviction and sentence of accused Saleem Khan under section
302 RPC.
We heard the counsel for the parties and perused the record.
Mr. S.T. Hussain, the learned counsel for the accused at the outset has contended that the radiological age of accused saleem Khan at the material time was between 17 and 18 years which under law can also be deemed between 15 and 16 years. The trial should have been conducted under the provisions of The Children Act. He could not be convicted and sentenced to life imprisonment. This argument has been countered by Mr. Bhat by submitting that the accused in his statement under section 342 Cr.P.C. had admitted his age to be 16 years and in view of this admission there remains no scope for fixing his age at 15 years. He also contended that the accused is a student and his age could be verified from the school record which he could produce in support of his plea. He did not produce any certificate either from the Birth register or from "Chowkidara Register". Trial Court, on the available evidence, decided that he was not a child. The accused did not challenge this finding of the court during the
trial. Now it is too late in the day to raise such a factual controversy which was settled by the trial court at the appropriate stage and within the statutory powers vested in it by the Children Act. This finding of fact arrived at by the trial court on the basis of evidence cannot be upset on guess work or presumption to be drawn on the opinion of Radiologist. In otherwords, there is no medical evidence of clinching nature which establishes the age below 16 year. The argument of Mr. Hussain is devoid of any merit and as such does not hold good.
The 2nd limb of the argument of Mr. S.T. Hussain is that the prosecution has failed to establish from the evidence that the accused Saleem Khan had intention of causing such bodily injury which was sufficient in the ordinary course of nature to cause the death of deceased. In the absence of any intention to cause the fatal injury, he could not be said to have committed offence u/s 302 RPC. In support of his contention, he cited the decisions of Virsa Singh V/S State of Punjab (AIR 1958 SC 465) and of R.v. Wallett (The All England Law Reports 1968(2)(296). He contended that the facts of the present case are similar to the facts of the case of Tholan vs. State of TamH Nadu (1984) 2 SCC133) where the accused was convicted and sentenced under Sec.304 PartII RPC. Concluding his submissions, learned counsel contended that the macabre incident took place between the cognates at the spur of moment, therefore, the accused Saleem Khan cannot be said to have acted in a cruel manner. He is entitled to the benefit of exception 4 to Sec.300 and can be said to have committed an offence under section 304 PartII RPC.
On the other hand, Mr. Bhat the learned counsel of the complainant contended that the accused has rightly been convicted under Sec.302 RPC because the injuries were inflicted by him on the vital part of the body of the deceased and one of them proved fatal. The accused had not simmered down by causing one injury but successively caused the second and any of these could be that which is singular in rupturing the lung which organ is so vital that any injury to it is irreparable and resultant death is inevitable as has happened in the instant case. The site and the nature of the injuries are pointers for drawing the inference that the accused had the requisite intention of causing the death. To buttress his contention, he cited the decision of Jarnail Singh vs. State of Punjab (AIR 1993 SC 72), State of U.P. vs. Roop Singh (AIR 1996 SC 215), Bai Dhankor vs. Emperor (AIR 1937 Bombay 148) and Dharma vs. Nirmal Singh Bittu (AIR 1996 SC 1136).
Before appraising the respective contentions of the learned counsel appearing for the parties, it has to be borne in mind as broad guidelines that culpable homicide"" is genesis and murder its specie. All "Murder" is culpable homicide"" but not vice versa. Ranbir Penal Code recognises three degrees of culpable homicide. The first is defined in section 300 and it is murder. The second is culpable homicide not amounting to murder punishable under the first part of section 304. Then, there is culpable homicide of the Third degree punishable under the second part of sec.304.
The problem has to be approached in three stages. The question to be considered at the first stage would be whether accused has done an act by doing which he has caused death of another. Proof of such casual connection between the act of the accused and the death leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in section 299. If the answer to this question is primafacie found in the affirmative, the stage for considering the operation of section 300, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of murder contained in section 300. If the answer to this question is in the negative, the offence would be ""culpable homicide not amounting to murder, punishable under the first or second part of section 304, depending respectively, on whether the second or the third clause of section 299 is applicable. If this question is found in the positive but the case comes within any of the exceptions enumerated in section 300, the offence would still be "culpable homicide" not amounting to "murder", punishable under the first part of section 304 RPC.
The fact that accused Saleem Khan gave knife blows to the deceased Showkat Ahmad and one of them proved fatal is not challenged before us.
Limited question raised is the nature of offence committed and sentence awardable in the case. Mr. ST. Hussain argued with much circumlocution that the facts set out in the prosecution story do not disclose offence of murder because prosecution has not proved that there was intention to inflict bodily injury sufficient to cause death in the ordinary course of nature. Section 300 "thirdly" was quoted which is;
If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
It was submitted that intention the section requires must be relagted, not only to the body injury inflicted, but also that "and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death." In the instant case. there is no medical evidence that body injury inflicted was either individually or collectively sufficient in the ordinary course of nature to cause death.
It must, of course, be found first that bodily injury was caused but the nature of the injury must also be established, that is to say whether the injury is on vital organ and how much deep and so forth.
These are purely objective facts and leave no room for inference or deduction to that extent the enquiry is objective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present.
In the case of Virsa Singh vs, state of Punjab (supra)the apex court has court has laid down that the bodily injury intended to be inflicted is merely descriptive. The prosecution in order to bring home an offence of murder is not only required to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary cause of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention. In considering whether intention was to inflict the injury found to have been inflicted, enquiry necessarily proceeds on broad lines, for example. whether there was intention to strike at vital or a dangerous spot and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail, for instance, whether the accused intended to have the bowels fall out, or whether the accused intended to penetrate the liver or the kidneys or the heart. It is broad base enquiry having no bearing with the knowledge of anatomy.
On the basis of the enquiry which was contemplated by the apex court in the above stated case, a reference has to be made to the evidence led by the prosecution in the instant case to the effect that the injury found to be present was the injury that was intended to be inflicted.
Abdul Rehman Dar PW is the father of the deceased Showkat Ahmad and he lodged FIR No. 113/90 for offence falling under sec.307 RPC in Police Station Sher Garhi, Srinagar at 8 PM on the same day wherein he had alleged that Javid Ahmad son of accused2 was in the bath room and using the same when the deceased Showkat Ahmad had asked him to vacate the same and as his relations with the accused were already strained with respect to the use of the bath room, accused who were listening the arguments of petulant nature could not restrain themselves in the prevailing milieu and started beating the deceased. In his statement in the court (as a witness) he has given a different version to the genesis of the occurrence wherein he has categorically stated that the quarrel started because the accused Saleem was using the bath room and when he was asked to vacate by the deceased, the quarrel started and accused Gulzar Ahmad who was also present on the spot joined in catching hold of the deceased. That herescued the deceased from the clutches of accused and at that time other people had also to the other side. He has further stated that he stood nearby the gate of the house accused Gulzar Ahmed followed him. The accused Saleem Khan went inside the house but returned immediately with a Ahmed. He inflicted two injuries on the chest. According to him.Mohd Sadiq and Mohd Yousaf, PWs had also intervened in the fight. In crossexamination he has stated that accused Saleem had taken knife which was lying inside the fridge and with that he had inflicted injuries one on the chest and the other on the back from where blood had started oozing out. The Kitchen from where the knife was taken out was at the distance of about 14 feet from the place of occurrence.
Mst. Rubia Akhtar is the sister of the deceased and she has stated that within her view accused Saleem Khan had inflicted injury with the kitchen knife on the vital part where the heart is located and the second injury was inflicted on the back and that when he was going to inflict the 3rd injury on the neck, witness Ghulam Hassan Malla and Sidiq intervened and this injury was received by Ghulam Husssan Malla witness on his hand.
Mohd Sidiq PW has stated that he had also participated in separating accused Saleem Khan and deceased Showkat Ahmad when they had grappled with each other. Accused Saleem Khan was taken to his room, but soon after came out with a knife and inflicted injuries on the deceased.
The witness Gulam Hussan Malla Alias Dila has stated that accused Saleem had inflicted third injury with that knife on the deceased but before it could land on any part of the body, the same was intercepted by him and got a knife cut on his hand. The other two injuries were caused on the chest and back of the deceased respectively.
Dr. Raus Masood Nehvi has stated that while he was posted as Medical Officer, Gagribal, he conducted the postmortem on the dead body of Showkat Ahmad on 23.5.90 at 11.45 AM at police hospital, Srinagar and the postmortem report was in his handwriting. He had found the following injuries on the deadbody:
Two small contusions on the right shoulder, 1 ""in size each and 1"" apart from each other.
An incised penetrating wound below the lateral ends of right calavical about 2 long, one each gaped, regular and clear cut margins. Bleeding present and no bone injury
An penetrating injury in 8th intercostals space just behind mid auxiliary line directed interiorly skin soft issure and muscle deep about 4"" to 5 deep, with clean entmargins.
Right side pleura injured superior aspect and 5 penetrating injury in the right upper lobe of long 11/2. Chest cavity filled with haemohhrage flued on right side.
According to him, the cause of death of Showkat Anmad was due to cardio respiratory arrest as a result of intra the oracry haemorrhage dure to rupture of right lung caused by a penetrating injury on the right side of the chest by a sharp object. It is thus clear that the death of the deceased had occurred because of injury No.4 which had ruptured his lungs. Eye witness account given by Abdul Rehman Dar (father of the deceased),
Mst. Zaiba (mother of the deceased) Mst. Rubia (sister of the deceased), Mohd Sidiq who got his thumb injured and Gulam Hassan Malla who had also received wound on his hand has established that accused Saleem Khan had given two stab blowsone on the chest and the other on the back and now where it is stated that he had intended injuryNo.4 to be inflicted. Rather, it is established that he was in a bellicose mood to inflict injuries on any part. Mst. Rubia has stated that 3rd injury was aimed by the accused oh the neck of the deceased but on the intervention of prosectution witnesses namely, Sidiq and Ghulam Hassan Malla it was prevented to land there and was received by Ghulam Hussan Malla Alia Dila PW on his hand. The prosecution has failed to elicit from Doctor Raus Masood Nehvi as to which of two injuries had penetrated in the lungs.
The prosecution has also failed to ask material question from the witness whether any injury individually or collectively with other"" injuries was sufficient in the ordinary course of nature to cause his death. The question is not whether accused Saleem Khan intended to inflict a serious injury or a trivial one, but whether he intended to inflict the injury that has proved fatal. The question so far as intention is concerned, is not whether he intended to kill or to inflict injury of a particular degree of seriousness, but whether he intended to inflict injury in question i.e. No.4 as detailed in the post mortem report. Once the extent of the injury is proved, the intention to cause it will be presumed unless evidence or the circumstances warrant an opposite conclusion, wheather the intention is there or not is of fact and of law. In the given case it has not been established that accused Saleem Khan had intended to inflict injury No.4. Rather, having regard to the genesis of the occurrence which was an intercinine fight between two cousins and the maternal uncle, it can be said with no manner of doubt that there was no premeditation. In a fit of rage the knife in question was brought from the kitchen and at the spur of the moment the injuries in question were successively inflicted. It cannot be said with certainity that accused Saleem Khan intended to cause that particular injury and the injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. None of the witnesses have even nebulously stated that bull's eye for the accused Saleem Khan was only the chest where vital organs such as lungs and heart are located. Even the intermediaries namely, Mohd Sidiq and Ghulam Hassan Malla have not stated that the target of the sene was the chest.After recapitulating the genesis in which the occurrence took place and the attending circumstances, it is held that the ratio of the case of Virsa Singh vs. state of Punjab (supra) applies in all fours to the facts of the present case and it is not proved that there was intention to inflict that particular injury which has proved fatal.
In the case of R. Vs. Wallett (The All England Law Reports 1968 (2) 295) Lord Parker C. J. While presiding over the court of Appeal in criminal revision altered the conviction of murder into conviction of manslaughter when it was found that accused had no intention of causing that particular bodily injury which proved fatal. In this case, the victim was a young girl who had died not because, on the medical evidence, she had received a constricting force on the front of her throat for a minimum period of 25 seconds which as a result of the pressure applied on the spine and the nervous system had caused her heart to stop and caused a hemorrhage which revealed itself by blood coming from her mouth. The accused who too was a young man had applied pressure without intending to do grevious bodily harm, but in circumstances in which it should have been appreciated by an ordinary person, and by the applicant, that some risk of harm was involved in what he did"", and that was the cause of death through his left arm being laid across and pressed on the girl's throat, as he was approaching her with sexual intent.
In the case of Tholan vs. State of Tamil Nadu (1984)2 SCC133) single knife blow, ordinarily sufficinet to cause death was inflicted on the chest of the deceased on the spur of the moment. Deceased having no previous dispute with the accused and his presence at the scene of the occurrence wholly accidential. it was held that the requisite intention u/s 300 was absent and, therefore, conviction u/s 302 IPC was not proper.
Mr. Bhat, learned counsel for the complainant in order to establish his view point had cited the case law stated above and a discussion on that aspect of the case is also required.
In the case of Dharma appellant (supra) the testimony of sole eye witness was corroborated by medical evidence. The extra judicial confession made by the accused before the Sarpanch was also held reliable and recovery of weapon of offence at the instance of the accused which had connected the accused with the crime was also found reliable. In that view of ther matter, accused was held guilty of committing the offence of attempt to rape and murder. The facts of that case have no bearing with the present case and the law cited is of no help to Mr. Bhat.
In the case of Jarnail Singh vs. state of Punjab (AIR 1993 SC 72) the presence of accused and their participation in occurrence was not found doubtful and the conviction of the accused was accordingly found proper. This was a case where right of private defence was pleaded. Facts of the present case are quite different. None of the appellants had ever pleaded right of private defence. The ruling cited at the bar thus is found of no value to the facts of the present case.
In the case of state of U.P. vs. Roop Singh & Ors. (supra) appeal against the acquittal was filled in the Supreme Court. The allegation that accused armed with sticks and lathis assaulted deceased resulting into their death. Assault was launched by the villagers and the accused acted in self defence. The prosecution version was that accused had chased and killed one of the deceased who fled away from the scene of occurrence.
Prosecution version was corroborated by the testimony of the independent witnesses. In the circumstances of the case, accused could not be said to have right of self defence as regards killing of such deceased was concerned. The acquittal of the accused was setaside and they were convicted under section 302/149 IPC. The facts of the case are also different from the case in hand and the ruling cited is of inconsequential value.
In the case of Bae Dhankor vs. Emperor (supra) the Bombay High Court had followed the procedure where conviction was right, but sentence was severe. This case has also no similarity to the facts of the present case.
After viewing the case from all its perspectives, we accept the appeal of accused and set aside the conviction and sentence of accused Saleem Khan for the commission of offfence of "culpable homicide" not amounting to murder. Having wielded the weapon like a knife, he can be attributed with the knowledge that he was likely to cause injury which was likely to cause death.Following the ratio of the case of Tholan vs, state of Tamil Nadu (supra), accused Saleem Khan is convicted under sec.304 Partll RPC and is sentenced to undergo rigorous imprisonment for seven years.
The period of detention undergone by him during the investigation, inquiry and trial of the case shall be set off under sec.397A Cr.P.C. Against the conviction.and sentence of accused Gulzar Khan who was convicted and sentenced u/s 323 RPC, he had remained in the lockup during the trial for about 1 112 year and this period of detention was computed by the Sessions Judge as set off for his imprisonment. He has already undertone this conviction and sentence. His conviction and sentence thus remains un altered. This appeal along with criminal reference No.6/96 made by the sessions Judge, Srinagar thus stand disposed of by this judgment.