Allahabad High Court
Salim S/O Karim vs State Of U.P. on 13 September, 2000
Equivalent citations: 2001CRILJ401
Bench: J.C. Gupta, M.A. Khan
ORDER
1. Appellant-Saleem has been convicted and sentenced to imprisonment for life under Section 302 of the Indian Penal Code for having caused the death of Hafiz Ahmad on 13-11-78 at about 4.30 p.m. at Ramlila Ground in Village Ghatamapur within Police Circle Kotwali, Rampur.
2. Undisputedly on 13-11-78 'Kite Flying' games were going on in Ramlila Ground between Moradabad and Rampur districts. Appellant-Saleem and deceased-Hafiz both were present in the said ground for looting kites and Manjha-dor (Cord of Kite). At about 4.30 p.m. the accused Saleem started looting Manjha of the side of deceased-Hafiz, which was objected by the deceased. An altercation then ensued between the accused and Hafiz. The accused was having a stick in his hand, which was being used for collecting Manjha/dor. He tried to strike the same on Hafiz which he warded off with his hand. Thereafter both deceased and accused grappled with each other and during grappling accused whipped out a dagger from the phainth of his payjama and inflicted injuries on Hafiz, as a result whereof he fell down. Rais P.W. 3, brother of Hafiz carried Hafiz to the Police Station, Rampur where Hafiz himself dictated oral report (Ex. Ka-5) which was reduced to writing in Chik Register by Clerk Constable, Prem Pal Singh, P.W. 7 and a case under Section 324, I.P.C. was registered. Injured Hafiz was sent to Hospital for his medical examination and his injuries were examined on the same evening at 5.45 p.m. by Dr. O.N. Gupta, P.W. 6 and following injuries were found :-
1. Incised wound 1 cm x 0.5 cm x skin deep on upper 1/3 left upper arm horizontally tapering.
2. Incised wound 2 cm x I cm x muscle deep on left mid scapular region back, horizontally placed.
3. Incised wound 2 cm x 0.5 cm x skin deep on backside left hand just below the space between left little finger and ring finger, vertically placed,
4. Incised wound 2.5 cm x 0.8 cm x depth not probed, on left iliac fossa of abdomen, horizontal and oblique. Some fat bodies coming out of wound, measuring 3 cm in length.
3. In the opinion of the Doctor all the injuries were simple excepting No. 4, which was kept under observation and X-ray of abdomen was advised. Injuries were caused by some sharp edged object and were fresh in duration. Injury report of Hafiz is Ex. Ka-4. Dying declaration (Ex. Ka-8) of Hafiz Ahmad was also recorded by Sri S.K. Nigam, P.W. 5, Executive Magistrate, Rampur. Hafiz died in Hospital on 15-11-78 at 2.45 a.m. The autopsy on the dead body was conducted by Sri M.N. Agrawal, P.W. 4. Since we have already described the injuries of Hafiz, it is not necessary to reproduce the ante-mortem injuries. In the opinion of Doctor only injury No. 4 was the cause of death of the deceased.
4. The case was converted into Section 304, I.P.C. from 324, I.P.C. Investigation of the case was carried out. by Sub-Inspector, K.K. Singh, who during the investigation interrogated witnesses, prepared site plan and after completion of other formalities, charge-sheet was submitted against the appellant, who was duly tried by the learned Sessions Judge, Rampur.
5. At the trial prosecution produced nine witnesses, of whom P.W. 1, Mohammad Siddique, P.W. 2 Tahir and P.W. 3 Rais Ahmad are witnesses of fact.
6. The appellant in his statement under Section 313, Cr.P.C. admitted that he and the deceased were both present in Ramlila ground and were engaged in looting Manjha/dor in the 'Kite Flying' games. However, according to him when he had looted 'Dor', Hafiz came there and started abusing him to which he protested, but he did not stop and slapped him and grappled with him. Hafiz even snatched the stick from the hand of the accused which was meant for looting 'Dor' and also put his hand on his neck and, therefore, in order to save himself he took out knife, and when Hafiz gave pressure during the grappling the knife pierced into his abdomen. The accused, however, did not examine any witness in defence.
7. We have heard Sri Sunil Singh, amicus curiae for appellant-Saleem, Sri A.K. Jain, A.G.A. for the State and Sri A.D. Prabhakar for complainant.
8. The factum of death of Hafiz due to ante-mortem injury No. 4 has neither been disputed nor challenged before us by the learned counsel for the appellant.
9. Sri Sunil Singh, learned counsel appearing for the appellant, however, submitted that the circumstances of the case which have appeared in the evidence of the witnesses do not rule out the possibility of appellant acting in self-defence or under grave and sudden provocation. We have made careful examination of evidence of the prosecution witnesses with whom appellant had no enmity nor the said witnesses had any grudge against the appellant and we do not find any such material in their evidence on the basis of which benefit of right of private defence could be extended to the appellant. There is nothing also in their statement which may probabilise the theory that the deceased had given provocation to the appellant or that the appellant was deprived of his self-control under grave and sudden provocation. As far as prosecution case is concerned, it has been established beyond any reasonable doubt not only from the evidence of three witnesses, but also from the First Information Report which was lodged by victim Hafiz himself. This F.I.R. is admissible as a dying declaration of the deceased under Section 32(1) of the Evidence Act. In this F.I.R. the deceased has clearly mentioned that it was the appellant who had caused knife injuries on him in the Ramlila Ground at about 4.30 p.m. on 13-11-78. It is also pointed out by the learned A.G.A. that on the very next day declaration of Hafiz was also recorded by Executive Magistrate, P.W. 5, Sri S.K. Nigam. Before dying declaration was recorded the physical and mental condition of Hafiz was examined by the Doctor and he reported that Hafiz was in a fit state of mind to make statement. Sri Nigam then proceeded to record the dying declaration of Hafiz which has been proved as Ex. Ka-3. We have minutely examined the evidence relating to the dying declaration and find that the dying declaration is truthful and was voluntarily made. It is now well nigh settled that Dying Declaration alone can be the basis of conviction and need of corroboration arises only where the dying declaration is not found reliable and the same suffers from any infirmity. The Dying Declaration in question does not suffer from any infirmity or weakness. Besides this, the averments made in the dying declaration are fully supported by evidence of three eye-witness and the medical evidence, and as such can be made basis of appellant's conviction.
10. On a close examination of the evidence on record we find that the prosecution has succeeded in establishing that it was the appellant, who inflicted knife injuries upon deceased-Hafiz on the date, time and place as alleged by the prosecution.
11. It has to be seen next as to for what offence the appellant can be held guilty? The trial Court has convicted the appellant for the offence of murder punishable under Section 302, I.P.C. Sri Sunil Singh, however, argued before us that it was admitted case of the prosecution that there was no previous enmity between the deceased and the appellant and that both were present in the Ramlila Ground for looting Manjha/dor and kites. It has also come in the evidence of P.W. 1 that it was the appellant who first looted Manjha/dor which was objected by the deceased and thereafter abuses were exchanged and both appellant and deceased grappled with each other. Sri Sunil Singh, therefore, submitted that in this fact situation it cannot be said with certainty that the appellant had intended to cause that particular bodily injury in the abdomen of Hafiz which ultimately proved fatal. We find substance in this submission of the learned counsel for the appellant. In the case of Virsa Singh v. State of Punjab, AIR 1958 SC 465, the Apex Court held that in order to bring a case under Clause Thirdly of Section 300, I.P.C., the prosecution must prove with cogent evidence the following facts :-
Firstly, it must be established quite objectively, that a bodily injury is present.
Secondly, the nature of the injury must be proved.
These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury that is to say, it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present the inquiry proceeds further, and Fourthly, it must be proved that the injury of the type, just described made Up of the three elements set out above, is sufficient to cause death in the ordinary course of nature.
This part of the inquiry is purely objective and inferential and has nothing to do with the intention of the offender.
12. It is thus clear that in order to bring a case within the mischief of clause 'Thirdly' there should be a bodily injury on the deceased which is sufficient in the ordinary course of nature to cause death and the accused had intended to cause that particular injury. If the evidence and circumstances of the case indicate or create a reasonable doubt in the presence of the required intention, the offence would be culpable homicide not amounting to murder.
13. In the present case the circumstances which have emerged in the prosecution evidence itself indicate that on account of appellant having looted Manjha which could have gone to the deceased, some annoyance must have been caused to the deceased, who feeling aggrieved started abusing the accused and then both of them exchanged abuses and grappled with each other. In such a factual situation it cannot be said with certainty that the appellant had aimed the blow on a particular part of the body of the deceased and thereby had intended to cause injury No. 4 which ultimately proved fatal.
14. After having given our thoughtful consideration to the entire matter and on consideration of facts and circumstances appearing in the case, we are of the considered opinion that it will not be safe to hold the appellant guilty for the offence of murder and accordingly we find him guilty only under Section 304, Part I of the I.P.C. and convict him accordingly.
15. Now coming on the question of sentence we find that the learned Sessions Judge has not made strict compliance of the mandatory provisions of Section 235(2), Cr.P.C. which contemplates that an opportunity of hearing is to be given to the accused on the question of sentence. The learned Sessions Judge on his judgment has simply observed that the accused has been heard on the question of sentence. This was not sufficient. It has been repeatedly emphasised by the Hon'ble Supreme Court that hearing contemplated under Section 235(2) is not confined merely to hearing oral submissions and the requirement of law is that the accused should be given an opportunity to place before the Court material and evidence relating to various factors bearing on the question of sentence. Neither the judgment of the trial Court nor the record indicates that such an opportunity was afforded to the appellant. This salutary provision satisfies a dual purpose. It satisfies the rule of natural justice by affording to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded. The provision is mandatory and should not be treated a mere formality. The opportunity so given, entitles the accused to place before the Court his antecedents, social and economic background, mitigating and extenuating circumstances etc.
16. We ourselves gave that opportunity to the appellant's counsel and he stated before us that no material or evidence is to be placed on record. However, it was pointed out by the learned counsel for the appellant that the appellant has a young lad of about 16 years of age when this incident occurred, and therefore, a lenient view be taken while awarding punishment.
17. Sentencing an accused is a sensitive exercise. For selecting an appropriate and just sentence the Court has to weigh aggravating and mitigating circumstances always keeping in mind that the object of sentencing is to see that the crime does not go unpunished and the victim of the crime as also the society has the satisfaction that justice has been done. Imposition of appropriate punishment is the manner in which the Courts respond to the society's cry for justice against the criminals. Justice demands that Courts should impose punishment befitting to the crime so that Courts reflect public abhorrence of the crime. The personality of the offender as revealed by his age, character and antecedents so also the circumstances in which the crime was committed play an important part in determining a just and appropriate sentence.
18. In the present case even as per the prosecution evidence the incident had occurred at a spur of moment without any premeditation on a trivial issue of Manjha looting. It is true that the deceased was a young boy of 18-19 years of age but the appellant was also a young boy. In his statement recorded on 29-9-80 under Section 313, Cr.P.C. before the trial Court the appellant disclosed his age as 16 years. The learned Sessions Judge, however, made an observation that in his opinion the appellant appeared to be about 18 years old. May that as it be, even as per the estimate made by the learned Judge, the appellant was just above 16 years of age on the date of occurrence, i.e. 13-11- 1978. The injuries of the deceased were caused when the deceased and appellant had grappled with each other and we have already found above that it cannot be said with certainty that the appellant intended to cause particular injury (injury No. 4) which ultimately proved fatal.
19. With the passage of long period of 22 years the socio-economic conditions of the appellant must have also gone a radical change and on account of this long interval passions of both the sides must have cooled down. There is nothing on record to indicate that during the pendency of appeal the applicant made any attack on the witnesses or members of the deceased family or had indulged himself in any other criminal activity.
20. Considering the entire facts and circumstances and having regard to the age of the appellant, his character, antecedents and other factors, we are of the opinion that a sentence of four years' R.I. and fine of Rs. 5,000/- shall meet the ends of justice. In default of payment of fine the appellant shall undergo further R.I. of one year.
21. For the reasons assigned above, this appeal is partly allowed. The appellant is convicted under Section 304, Part I instead of Section 302, I.P.C. and instead of life imprisonment he shall undergo rigorous imprisonment for four years and pay a fine of Rs. 5,000/-. In default of the payment of fine he shall undergo further R.I. of one year.
22. The appellant is on bail. He shall be taken into custody forthwith to serve out the sentence as modified by this Court. The trial Court will now take appropriate steps for the arrest of the appellant so that he may serve out the same as has been imposed upon him by this Court. Compliance report shall be sent to this Court within three months.
23. Sri Sunil Singh, who argued the appeal admirably well, shall be paid Rs. 2,100/- as his fee.