Rajasthan High Court - Jaipur
Ismile vs State on 24 August, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. CRIMINAL APPEAL NO.1065/2003 Ismile Vs. State Date of order : 24/8/2011. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ HON'BLE MISS JUSTICE BELA M. TRIVEDI Shri Kamlendra Sihag, amicus curiae. Shri Ashish Sharma for the appellant. Shri Sanjeev Kumar Mehla, Public Prosecutor for State.
This appeal under Section 374 of the Code of Criminal Procedure has been filed by accused-appellant Ismile against the judgement of Additional District and Sessions Judge (Fast Track), Laxmangarh, District Alwar whereby he was convicted for offence under Section 302 of IPC and sentenced to life imprisonment with a fine of Rs.500/-, in default whereof, he was to further undergo rigorous imprisonment of one month. He was also convicted for offence u/s.323/34 of IPC and sentenced to undergo three months rigorous imprisonment. Both the sentenced were ordered to run concurrently.
The facts giving rise to this appeal are that a written report (Ex.P-5) was submitted by one Aas Mohammad to the SHO Police Station, Govindgarh, District Alwar on 17.6.1994, inter alia, alleging that on 14.6.1994 at 6.00 AM when Ishaq, who was husband of informant's sister, was digging foundation for construction of his house, the accused appellant Ismile S/o Sugra, Sardar S/o Ismile, Mst. Kariman W/o Ismile, who were armed with farsies and Ramjan, Fatti, Nuru S/o Imam Khan and Jamalu, Abdul, Syabu S/o Suban Khan, Suban Khan and Imam Khan, who were having lathis in their hands, suddenly reached there and demanded explanation from him as to why he was digging foundation. Ishaq thereupon stated that since partition had taken place amongst the brothers and this land fell in his share, therefore, he was raising the construction within his right. Imam Khan and Subhan Khan then told to other accused that let a lesson be taught to Ishaq and his family members. All the accused suddenly attacked Ishaq Khan and his family members by lathi and farsi blows. As a result thereof, Ishaq fell down in pit dug for the foundation. The informant-Aas Mohammad and Azad who had come there to meet their sister, who was wife of Ishaq, were present at the seen of the incident and they and their sister tried to save Ishaq, but they were also pushed aside and as a result thereof, they too fell on the ground. Ishaq was immediately taken to hospital at Govindgarh. The Doctors however referred him to the Government Hospital, Alwar wherefrom due to critical condition, he was referred to SMS Hospital, Jaipur. He was admitted in SMS Hospital, however he died and his dead body was brought at 2.00 AM on 16.6.1964 at Village Harsoli. Imam Khan and Subhan Khan have forceably buried his dead body. Ishaq was a poor man and the accused were dangerous people, who have murdered him, therefore, action be taken against them.
On receipt of the written report, a regular first information report was chalked out for offence u/s.147, 148, 149, 323, 324 and 302 of IPC against 11 persons referred to above. However, the police after completion of the trial, filed challan only against Ismile and his son Sirdar and wife Mst. Kariman. Sirdar died during trial and therefore the proceedings against him were dropped. So far as Mst. Kariman is concerned, she was convicted only for offence under Section 323/34 IPC and was released on admoniation. The prosecution examined as many as 17 witnesses and exhibited 15 documents, whereas the defence examined only one witness and did not produce any document. The accused in his statement under Section 313 Cr.P.C. denied all the charges and stated that he has been falsely implicated.
We requested Shri Kamlendra Sihag, learned counsel present in the Court to assist the Court as amicus curiae. He acceded to our request.
We have heard Shri Kamlendra Sihag, learned amicus curiae and Shri Sanjeev Kumar Mahala, learned Public Prosecutor for the State.
Shri Kamlendra Sihag, learned amicus curiae has argued that incident in this case is alleged to have taken place early in the morning on 14.6.1994 at village Harsoli, whereas deceased Ishaq is said to have died at SMS Hospital at Jaipur 15.6.1994. His burial took place on 16.6.1994. It was thereafter that one Aas Mohammad submitted a written report to SHO, Police Station Govindgarh on 17.6.1994. Although Aas Mohammad claims to be brother of PW-5 Mst. Kashmiri wife of deceased Ishaq, but in fact her real brother is Azad. Learned amicus curiae argued that the genesis of occurrence has thus been completely suppressed from the Court. In fact, the incident had taken place at the spur of the moment and on a trivial nature of dispute. In this connection, he referred to the statement of PW-8 Fakroo, son of deceased and has argued that this witness has stated that incident took place at about 7.30 AM when his father was getting the boundary wall of their house constructed. Gyan Chand and Narain were present there. The accused Ismile however objected to the digging of foundation and asked his father not to do so. Ismile then inflicted a farsi blow on head of his father and co-accused Sirdar also inflicted a farsi blow on his head. Kariman inflicted lathi blow at the back of his father after his father fell down. In cross examination, this witness has stated that except Gyan Chand and Narain, no other witness was there but in the same breath he also stated that his maternal uncle Aas Mohammad @ Asu and Ajad had also come there in the village to meet them. They came about two days before the date of incident. He stated that at the time of incident Sumera, Juharuddin, Ghan Shyam were also present. In the last line of the examination in chief, this witness has given the reason why this incident took place. He has stated that dispute occurred due to the fact that a fodder pit (lahas) of the accused Ismile situated adjacent to the foundation got damaged, which was being dug for raising the boundary wall, which is why Ismile objected to such construction. His father Ishaq told him that he would get a new fodder pit (lahas) constructed and this gave rise to the dispute between the accused and their neighbours. At the conclusion of the cross examination, PW-8 Fakru has stated that his father received only one injury on the head, whereas prosecution has assigned one injury each to the accused-appellant and co-accused Sirdar. PW-8 Fakru has stated that his maternal uncle Azad approached the police on the very day of the incident and informed Police Station Govindgarh about incident, but police did not take any action. Learned amicus curiae submitted that this witness was confronted with his statement given to the police under Section 161 wherein he has given completely different story how incident took place and accused appellant also received injury in the incident. He was confronted with those parts of his statement under Section 161 which although he denied. Learned amicus curiae argued that prosecution has not produced independent witnesses i.e. Narain and Gyan Chand, who were named by Fakru. Thus, this court should draw adverse interference against the prosecution for not producing them as a witness. He argued that PW-1 Munshi, PW-2 Mauji, PW-3 Shahjad and PW-4 Isar all have turned hostile and not supported the prosecution case, therefore, the accused-appellant is entitled to acquittal.
Shri Kamlendra Sihag, learned amicus curie also referred to the statement of PW-5 Kashmiri, wife of deceased and argued that this witness has also stated that the dispute took place when the foundation for raising boundary wall was being dug. Ismile and Sirdar objected to digging of foundation, whereas Ishaq was insisting. Thereupon, the accused Sirdar and Ismile inflicted one farsi blow each on the head of the deceased and thereafter Kariman has inflicted lathi blow. This witness has stated that Azad and Aas Mohammad had came one day before the incident, thus there is contradiction in her statement and that of PW-8 Fakru, who has stated that they came two days before the date of incident. Learned amicus curiae submitted that these two witnesses were actually not present at the time of incident and were subsequently implanted as witnesses. Reliance was placed on the statement of PW-6 Aas Mohammad @ Asu, who was the informant and gave the same kind of version with the same role assigned to the accused as stated by PW-5 Kashmiri. Learned counsel referred to cross examination of this witness PW-6 Aas Mohammad @ Asu, who has stated that a free fight took place between the parties in which he himself, Azad and Ishaq, all of them fell into the foundation. Ismile also received injury in the same incident. Ismile got disabled in one leg after that incident.
Learned amicus curiae then referred to the statement of PW-14 Dr. P.C. Vyas and has argued that postmortem report Ex.P-13 has been proved by this witness. Learned counsel submitted that cause of death in the postmortem report has been indicated as a result of injuries sustained on skull and brain, which was opined to be sufficient to cause death in the ordinary course of nature, but no specific opinion has been given as to which injury has resulted into death. Contention of prosecution is that both accused Ismile and Sirdar inflicted one blow each by farsi on the head of the deceased. Learned amicus curiae from the postmortem report sought to argue that injury no.1 was swelling on right fronto-temporal region and injury no.2 was stitched wound after surgery was done on the head of the deceased. It was 36 cms. long mark having 32 stitches extending from just above left eyebrow going vertically backwards to left frontal and parietal region. Being the mark of surgery, injury no.2 thus appears to be result of the operation that was conducted and, in any case, if there are two separate injuries then also allegation of causing two injuries by farsi is against both the accused namely accused-appellant Ismile and co-accused Sirdar. The accused Ismile alone cannot be therefore held responsible for the death of the deceased.
Shri Kamlendra Sihag, learned amicus curiae submitted that investigation was conducted by two different Investigating Officers i.e. PW-17 Bhajan Lal Vyas and PW-10 Bhanwar Singh, who have proved the site plan which corroborates the version of the accused-appellant that incident had taken place on account of the fact that deceased was trying to raise a boundary wall. All the witnesses admitted that the incident had taken place suddenly at the spur of the moment on a very trivial dispute. While the accused was insisting upon the deceased not to raise the construction, deceased was equally adamant to raise the construction and in that event, the incident took place. This act of the accused was neither pre-planned, nor was preceded by any pre-meditation. Presence of the neighbourers was also natural and accused had no intention of committing murder of the deceased. One injury each has been assigned to the accused and co-accused Sirdar with the use of farsa, whereas none of the injuries which have been assigned to accused have been caused by sharp edged weapon. Even then, if one injury each is assigned to accused-appellant Ismile and another co-accused Sirdar, then also it is evident that neither of them repeated injuries. They cannot be therefore be held guilty of committing offence of culpable homicide amounting to murder. The case at the most could be said to fall within the purview of Section 304 Part-II.
PW-10 Bhanwar Singh, the Investigating Officer has stated that accused-appellant was having paralysis in both of his legs and that he indicated the place of recovery only by signs. This is evident from the arrest memo Ex.P-8 wherein it was indicated that on account of the injury, which accused received on 14.6.1994, he has been rendered invalid in both his legs. The appellant was during trial arrested on 12.8.1994 and was released on bail on 30.5.1995. Thereafter, he surrendered when the impugned judgement was pronounced by the learned trial court on 29.4.2003. Since then he is in jail. He has served 8 months and 18 days during trial and 8 years and 4 months during pendency of the present appeal. Thus he has completed 9 years and 1 month in jail uptil now. It is therefore alternatively prayed that conviction of appellant from Section 302 of IPC be altered to that of Section 304 Part-II with the direction that the sentence already served by him would be sufficient.
Shri Sanjeev Kumar Mehla, learned Public Prosecutor opposed the appeal and argued that direct evidence against the appellant was of inflicting a farsi blow on the head of the deceased with another farsi blow being inflicted by co-accused Sirdar. Since co-accused Sirdar has already died, it is the appellant alone, who must be held responsible for the murder of deceased Ishaq. Learned Public Prosecutor argued that deceased received two injuries on head, which proved fatal and despite surgical interference, his life could not be saved. The fact that injuries inflicted by accused-appellant and co-accused Sirdar, were caused by a sharp edged weapon like farsi on the fatal part of the body i.e. head, dis-entitles the appellant to any leniency.
Learned Public Prosecutor has argued that the manner in which the injury was caused, the weapon that was used and part of the body, which was chosen for being hit, are relevant factors for determining the knowledge as also the intention of the accused persons that they knew that the injury caused by them was likely to bring about the death of the victim, thus bringing the offence within the purview of culpable homicide amounting to murder. Learned Public Prosecutor submits that the fact that FIR was lodged with the delay of three days would not be fatal to the prosecution case because this was due to pressure of the accused persons that the family members of the deceased could not get the courage to go the police. Their first priority even otherwise was to save life of Ishaq, which was evident from the fact that they immediately rushed him to Government Hospital Govindgarh wherefrom he was referred to Government Hospital, Alwar and thereafter to Jaipur, where unfortunately he died and thereafter he was buried on 16.6.1994 and the FIR was registered on 17.6.1994. Even if PW-1 Munshi, PW-2 Mauji, PW-3 Shahjad and PW-4 Isar have been declared hostile, his conviction in the present case can still be sustained on the basis of evidence of PW-5 Kashmiri, PW-6 Aas Mohammad @ Asu, complainant PW-7 Azad and PW-8 Fakru, who have all proved guilt of the accused-appellant. The Medical Officer, Dr.P.C. Vyas, PW-14 has proved the postmortem report Ex.P13 and the nature of injuries and cause of death.
Learned Public Prosecutor referred to the statement of PW-17 Bhajan Lal Vyas, the first Investigating Officer and PW-10 Bhanwar Singh, second Investigating Officer. They stated that motbir witnesses have proved the recoveries and site plan and other recoveries made. It is therefore prayed that the appeal be dismissed.
We have given our anxious consideration to rival submissions and perused the material on record.
Even though in this case the FIR is delayed by three days, but this delay has been satisfactorily been explained by the prosecution. The incident took place on 14.6.1994 in the early morning, on which date the deceased was taken to hospital at Govindgarh from where he was referred to Government Hospital, Alwar. He was brought to Alwar in critical condition and therefor from there he was referred to SMS Hospital, Jaipur where he ultimately died. His dead body was taken to his native place i.e. Harsoli on the following day i.e. 16.6.1994 where his burial took place on that very day. It has come in evidence that burial took place in the presence of accused party and also their common relatives on 17.6.1994. The brother of the wife of deceased PW-6 Aas Mohammad lodged the FIR. He has explained the circumstances owning to which delay in lodging of FIR took place, therefore, we are not inclined to throw the prosecution case only because of such delay, which has been satisfactorily explained.
Coming now to the argument that the medical opinion as to the nature of injuries is ambiguous and about the fact that which of the two injuries was responsible for the death of deceased, this argument has to be considered in the light of statement of eye witnesses as also the fact that postmortem had taken place after the deceased was subjected to an extensive surgery so much so that there was a stitched wound of 36 cm. long having 32 stitches. It cannot therefore be argued that there was only one injury and the other one was surgery mark, and that which injury had proved fatal, has not been specified. We are therefore not inclined to uphold the contention that cause of death is uncertain. The postmortem report clearly states that cause of death is owning to swelling to skull and brain, which was sufficient to cause death in the ordinary course of nature.
Coming now to the facts of the case, we find that incident in the present case had indeed taken place on a very trifle and trivial nature of dispute, in that the deceased Ishaq was insisting on construction of boundary wall for which he was digging foundation, which incidentally damaged the fodder pit (lahas) of the accused, which is a small box type construction, used for keeping fodder of the cattle. PW-5 Kashmiri, wife of the deceased has clearly stated that dispute had taken place at 7.30 AM when her husband was digging the foundation, which was objected by the accused-appellant Ismile and co-accused Sirdar, who stated that they would not allow boundary to be constructed. Her husband insisted by saying that this land has came to his share and therefore he would certainly dig the foundation and construct the wall. This led to the dispute between the parties. PW-6 Aas Mohammad, who is the informant, in his cross examination admitted that scuffle took place between the parties where members of both the sides clashed with each other and in that scuttle, informant Aas Mohammad, Azad and deceased Ishaq fell down in the foundation. This witness admitted that accused-appellant Ismile has been rendered disabled in one leg after the incident. PW-8 Fakru son of deceased has been quite frank and candid about the incident when he stated that while digging the foundation, the fodder pit of the accused Ismile got damaged for which his father, the deceased, stated that he would construct new fodder (lahas). He also stated that incident took place when accused tried to stop the deceased from digging the foundation. Thus, it is evident that the incident had actually taken place on a very small dispute and suddenly at the spur of the moment and due to the obstruction raised by the accused for digging of the foundation, which was firmly denied by the deceased. It was therefore a case of culpable homicide not amounting to murder because the offence committed due to sudden quarrel and without the intention of causing death or such bodily injury which accused knew was likely to cause death. This case would fall within the explanation 4 of Section 300 of IPC. Appellant Ismile and Sirdar inflicted injury on the body of deceased without intention of killing him, however, they did so with the knowledge that it was likely to cause death of the deceased-Ishaq. There was thus no intention on the part of the accused either to cause death or to cause such injury as was likely to cause death of deceased Ishaq. They would be thus both guilty of the offence u/s.304 Part-II read with Section 34 of IPC.
While we conclude this judgement, we would like to express our sense of appreciation for the efforts put in and the assistance provided to us by Shri Kamlendra Sihag, the learned counsel, who on our request appeared as amicus curiae in this case.
The conviction and the sentence of accused appellant-Ismile u/s.302 is therefore altered to Section 304 Part II read with Section 34 of IPC and conviction of the appellant for offence u/s.323 IPC does not call for interference. Considering the fact that appellant has already been behind the bars for as many as 9 years and 1 month, the appellant is therefore convicted u/s.304 Part-II of IPC and sentenced to the period already undergone by him. He may be released forthwith if not required in any case.
The appeal is partly allowed.
(BELA M. TRIVEDI),J. (MOHAMMAD RAFIQ), J. RS/-