Punjab-Haryana High Court
Naseem vs State Of Haryana on 14 March, 2018
Bench: A.B. Chaudhari, Inderjit Singh
CRA-D-731-DB of 2011 1
677
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-D-731-DB of 2011
Date of decision: March 14, 2018
Naseem
......Appellant
Versus
State of Haryana
....Respondent
CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Ms. Sarbhjeet Kaur, Advocate for
Mr. Gautam Dutt, Advocate for the appellant.
Mr. Kuldeep Tewari, Addl. AG Punjab.
Mr. Vinod Ghai, Senior Advocate with
Mr. Harmandeep S. Brar, Advocate for the complainant.
****
A.B. CHAUDHARI, J
Being aggrieved by the judgment/order dated
23.07.2011/27.07.2011 passed by the learned Additional Sessions Judge,
Nuh, in Sessions Case No.99 of 2008 by which the learned trial Judge held
the appellant-Naseem guilty of commission of offence under Section 302 of
Indian Penal Code, 1860 (for short 'IPC') and sentenced him to undergo
Imprisonment for life and fine in the sum of `5,000/-; in default of payment
of fine, to further undergo simple imprisonment for six months, the present
appeal was filed by the appellant.
FACTS
The prosecution case, in nutshell, was that Head Constable Ajit
Singh received a message, on 15.05.2008 about admission of injured Hakam
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son of Idrish and when he reached there, injured was not found present. He,
therefore, visited on the next date, i.e. 16.05.2008 in the same Hospital,
where he was informed that injured was shifted to Safdarjang Hospital,
Delhi. He, further made a search in the village Akera, but injured was not
found and therefore, lastly on 19.05.2008, information was received about
death of injured-Hakam in Kalyani Hospital, Gurgaon. Statement of Idrish
was recorded who stated that he was the resident of village Akera. On
15.05.2008, at about 5:00 PM, he along with his son Hakam aged about 14-
15 years were going towards a plot of his nephew Jamil. In the meantime,
accused Yakub son of Majid, Smt. Jamila wife of Yakub, Jaina son of
Mazid, Naseem son of Yakub, Ali Mohd. Son of Gulab and Nasru son of
Abdul Karim met on the way and abruptly, they pounced upon them. It is
further the case of the prosecution that accused Yakub and Jaina exhorted a
lalkara that Hakam should not be spared. In the meanwhile, Yakub and
Jamil caught hold of Hakam while accused Naseem inflicted a knife blow on
the head of Hakam which hit behind his neck. Hakam fell down and became
unconscious. Accused Ali Mohd. And Nasru gave fist and kick blows to
Hakam. Quarrel started. The motive for commission of offence stated by the
complainant was that about 2-3 days before, an altercation took place
between Hakam and Naseem on the issue of cricket game when Hakam was
assaulted. The injured Hakam was shifted first to General Hospital,
Mandikhera and thereafter, he was referred to Safdarjang Hospital, New
Delhi and thereafter, he was removed to Kalyani Hospital, Gurgaon where
Hakam died in the night. The police thereafter, registered the FIR and started
investigation. The inquest was prepared, statement of witnesses was
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recorded and post-mortem report was collected and finally, the accused were
charge-sheeted for offence under Sections 148, 302 read with Section 149
IPC. All the accused persons pleaded not guilty. The prosecution examined
its witnesses numbering 12 while the defence examined DW1-Devender
Yadav, DW2-Jamshed, DW3-Juned and DW4-Abdul Aziz. The trial Court
finally acquitted all the other accused persons except the present appellant-
Naseem. Hence, this appeal.
ARGUMENTS
In support of the appeal, learned counsel for the appellant
submitted that the prosecution has miserably failed to prove its case much
less beyond reasonable doubt and therefore, the judgment/order of
conviction/sentence of the appellant will have to be set aside. He submitted
that the motive itself indicates that there was no question of commission of
murder over a petty quarrel over cricket match and that too amongst the
children. He submitted that there are major contradictions in the prosecution
case itself apart from the fact that there was delay in lodging the FIR on
19.05.2008 as against the incident of 15.05.2008. He, then submitted that the
delay of four days in lodging the FIR particularly in the serious offence of
murder was fatal but the trial Court ignored the same. The prosecution
witnesses had concocted the story of murder and the assault. Learned
counsel for the appellant then submitted that the evidence of the witnesses
was not trustworthy and was liable to be rejected.
Per contra, learned State counsel supported the impugned
judgment and order inviting our attention to the discussion by the trial Court
and the reasons recorded therein for basing the conviction of the appellant-
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Naseem. He submitted that the appellant-Naseem had given a fatal blow by
means of knife or chhura whatever it may be. The weapon was a dangerous
instrument and the appellant very well knew that it could cause death.
Hence, the appellant was rightly convicted for the offence of murder.
CONSIDERATION
We have heard learned counsel for the rival parties at length. We
have perused the entire evidence tendered by the prosecution and the reasons
recorded by the trial Court. It would be repetitive if we discuss the evidence
in our own words. Hence, we propose to quote Para-40 of the impugned
judgment, where there is a discussion about the relevant portion about the
ocular evidence, which reads thus:-
"40. A perusal of statement of PW4 complainant Idrish would
go to show that with regard to participation of five accused Ali
Mohd, Nasru, Yakub, Jaina, Jamila his statement is not worthy
of credence. Before proceeding further in the matter, it will be
worthwhile to refer to his statement Ex.PE made by him for the
first time before ASI Balwan Singh PW5, wherein he attributed
the overt act against the said accused by stating that all the said
accused including accused Nasim suddenly came on the way
when he alongwith his deceased son Hakam was walking away
to the plot of PW9 and said accused pounced upon them.
Accused Yakub and Jaina gave a lalkara not to spare Hakam
and accused Ali Mohd. and Nasru were also saying that they be
secured with the help of hands and thereafter Yakub and Jamila
caught hold his son Hakam from behind and further accused
Jamila caught hold both the hands of his son and in the
meantime accused Nasim dealt a knife blow on the head of
Hakam, which hit him on the back portion of neck, which
resulted into the fall of deceased on the grounds, who fell
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unconscious and thereafter accused Ali Mohd. and Nasru gave
fist and slap blows to deceased, while he was lying on the
ground. Now the said version is to be tested as to what he has
stated in the court on Oath as PW4. In his examination in chief,
he has simply stated that accused Yakub and Jaina gave a
lalkara that Hakam should not be allowed to go. However, in
his statement Ex.PE, he stated that Hakam should not be spared.
From both the assertions, it is clear that there was no
exhortation to commit murder of deceased Hakam. Matter goes
a step further. He has further stated that accused Ali Mohd. and
Nasru raised Lalkara to encircle Hakam and he should not be
spared, wherein in his statement Ex.PE before the police, there
is no specific reference of encircling Hakam rather it is
attributed to both the complainant and Hakam. There is further
no use of word that they should not be spared rather it is stated
that the victim should not go out of the clutches. In the statement
Ex.PE of PW4 before the police as well as statement made in the
court, there is no reference as regards the said accused also
exhorting a lalkara to commit murder of deceased Hakam. As
per his own version, all the said five accused Nasru, Ali Mohd.
Yakub, Jamil, and Jaina were unarmed. There is further nothing
in his statement that the said accused knew that accused Nasim
was having screw driver in his hand. It is further nothing in his
statement that accused Nasim was brandishing screw driver
openly proclaiming to kill deceased Hakam."
We have compared the facts stated by the trial Court in Para-40
of the impugned judgment with the evidence that was recorded and we find
that there is no discrepancy or inconsistency anywhere and on the contrary,
we find that the trial Court has rightly marshalled the evidence in the correct
perspective to hold that accused-Naseem had given a blow on the head of the
deceased Hakam which landed on the back portion of his neck and he
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became unconscious. We agree with the above reasons given by the trial
Court for recording the conviction of appellant-Naseem.
Then next question is about what offence has been committed by
the appellant looking to the nature of motive that has been propounded by
the prosecution, namely petty quarrel amongst the children. We do not think
that it can be said that there was any mens rea as such about the commission
of murder of Hakam. It cannot be said that there was intention to commit the
murder of Hakam by Naseem. The medical evidence shows only one injury
that too at the back of the head and the description of the injury is as under:-
"10. PW3 Dr. Pardeep Kumar M.O. from G.H. Mandikhera
testified that on 15.05.08 he medico legally examined injured
(since deceased) Hakam son of Idrish, who was brought with
alleged history of assault. He proved the carbon copy of MLR
Ex.PD of said Hakam and found only one following injury"
There was a lacerated wound 1.5 x .3 cm over the left
occipital region skin deep. Fresh bleeding was present
associated with surrounding swelling and tenderness."
It is clear that there was lacerated wound 1.5x0.3 cm over the
left occipital region skin deep. Even the fracture has not been reported, it
appears that the appellant caused injury knowing fully that the weapon used
by him, namely knife would not cause death, if he struck only one blow as
aforesaid. In the light of the injury, we are of the firm opinion that the
appellant cannot be held guilty of the offence of murder, but must be held
guilty of offence, namely culpable homicide not amounting to murder. We,
therefore, hold appellant-Naseem guilty of offence under Section 304 Part-I
of IPC. Appellant has undergone sufficient sentence as per the custody
certificate. In our opinion, the interest of justice would suffice, if his
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sentence is reduced to the one already undergone. In the result, we make the
following order:-
ORDER
(i) CRA-D-731-DB of 2011 is partly allowed;
(ii) The impugned judgment/order dated 23.07.2011/27.07.2011 passed by the learned Additional Sessions Judge, Nuh, in Sessions Case No.99 of 2008, is set aside and is modified and the appellant is convicted for commission of offence under Section 304 Part-I IPC and sentenced to undergo Rigorous Imprisonment which he has already undergone;
(iii) Appellant be released forthwith, if not required in any other case.
(A.B. CHAUDHARI) JUDGE (INDERJIT SINGH) JUDGE March 14, 2018 mahavir Whether speaking/ reasoned: Yes/No Whether Reportable: Yes/No 7 of 7 ::: Downloaded on - 07-05-2018 09:58:58 :::