Shaukat vs State Of Uttaranchal

5. The facts emerging from the record of the case lie in narrow compass. The appellant is resident of Village Darauki Madhaia, P.S. Kichha, District Nainital. In the village, there is a Panchayat pond. The length of the pond from east to west is about 40 to 50 paces whereas its width from north to south is about 25 to 30 paces. The said pond is meant for common use of all the villagers. The people of the village used to take earth from the said pond for maintenance of their houses and other household purposes. The field of the appellant is located on the southern side of the pond. Between the pond and the field of the appellant, there is a palm tree. The boundary of the field belonging to the appellant is extended upto the said palm tree after which the boundary of the pond begins. On the western side of the pond, there is a house of one Sagir and on the west side of the said house, there is a passage whereas on the west side of the passage there is abadi of the village. Injured Rahmat and deceased Wilayat were also residents of this very village. From the place which is near to the field of 5 the appellant, deceased Wilayat used to dig and take earth from the pond. This was not approved by Sabbir who was father of the appellant and he used to object to the digging of soil from the pond on the ground that the field belonging to him would get damaged. The incident in question took place on October 13, 1980. On that day, in the morning at about 5.00 a.m., Rahmat, with his deceased brother Wilayat and Chhote went for offering prayers in a mosque. After offering Namaz, they came out from the mosque at about 5.30 a.m. Rahmat and his brother Chhote were residing in the same house and the house of deceased Wilayat was situated leaving one house from their house. The appellant with his father was residing near the mosque. The appellant and his father stopped Wilayat and Rahmat and told that they had taken earth from the place near their field and if earth was again taken from the same place, they would be appropriately dealt with. Thereupon deceased Wilayat replied the appellant and his father that their field was upto the palm tree whereas pond was common for the villagers and he would bring soil from the pond even on that day. On hearing such reply, the appellant told Wilayat that 6 he would see Wilayat on the spot. Thereafter, the three brothers came to their respective houses. Deceased Wilayat, after taking a spade, went towards the pond for bringing soil at about 5.45 a.m. After some time, Chhote came out from his house and witnessed that deceased Sabbir and the appellant were going speedily towards the pond. As Chhote saw the appellant and his father going speedily towards the pond, he decided to go to the place where his deceased brother Wilayat was digging the earth to see that nothing untoward happened to him. Chhote was also accompanied by his brother Rahmat. When they reached the pond, they saw that their brother Wilayat was digging earth in the pond from 10 to 12 paces away from the field of the appellant. Accused Sabbir forbade Wilayat from digging the soil but Wilayat continued digging the soil. Thereupon a scuffle ensued between accused Sabbir and deceased Wilayat. When scuffle was so going on, the accused Sabbir asked the appellant to kill Wilayat by saying as to what he was looking at. On this, the appellant who was already armed with a knife, took out the same from his pant's pocket and gave one blow on the back of Wilayat. On 7 receipt of the knife blow, Wilayat immediately turned. Thereupon, the appellant inflicted another injury by knife on left side of chest of Wilayat from the front side. On sustaining injuries, Wilayat fell down in the mud. Rahmat tried to catch hold of the appellant but the appellant inflicted injuries by knife on Rahmat also. Chhote also tried to catch hold of the appellant but accused Sabbir caught hold of collar of the shirt of Chhote and in the meantime the appellant made his escape good from the place of incident. Because of the hubbub created by the incident, Ms. Banu Begum, Pattu Wilayat, Mohd. Yasin, Bafati Shah etc. reached the place of incident. They found that Wilayat had died on the spot. They also noticed that Rahmat who had attempted to rescue his brother Wilayat was also assaulted by the appellant with knife as a result of which Rahmat had fallen down. Accused Sabbir had also made attempt to flee from the place of incident but Md. Yasin with others had caught hold of the legs of Sabbir and, therefore, Sabbir had also fallen down and dashed with another palm tree and sustained superficial injuries. Thereafter, those people who had gathered near the place of incident had tied Sabbir with 8 the tree. A cart was summoned at the place of incident and Chhote along with injured Rahmat had gone to Kichha where he had met Sayed Mohammed Saleem who had reduced the information into writing. After the complaint was scribed, Chhote had put his thumb mark thereon and went to the Police Station. At the Police Station, the complaint was presented. In view of the contents of the First Information Report, offences punishable under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC were registered and investigation commenced. The Investigating Officer went to the place of incident and held inquest on the dead body of Wilayat in the presence of Panchas. He also made arrangement for sending the dead body of the deceased to hospital for post mortem examination. He recorded the statements of those persons who were found to be conversant with the facts of the case. Incriminating articles were seized from the place of incident. Injured Rahmat was referred to hospital for treatment. His condition was precarious and, therefore, his statement could not be recorded. The accused Sabbir was arrested from the spot. The appellant was also arrested on 9 the same day. After investigation was over and chargesheet was submitted, the case was committed to the Court of learned Sessions Judge, Nainital for trial.

6. The learned Sessions Judge framed charge against the appellant for commission of offences punishable under Sections 302 and 307 IPC and against accused Sabbir for commission of offences punishable under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC. The charge was read over and explained to the appellant and his father. Both of them pleaded not guilty to the same. Therefore, the prosecution examined witnesses and produced documents to prove its case against the appellant and his father. After recording of evidence of the prosecution witnesses was over, the learned Judge explained to the appellant and his father the circumstances appearing against them in the evidence of prosecution and recorded their further statements as required by Section 313 of the Code of Criminal Procedure, 1973. In their further statements, the appellant and his father pleaded that they were innocent. However, no witness was 10 examined by any of them in support of their defence that they were innocent.

7. On appreciation of the evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that the deceased Wilayat had died a homicidal death. The learned Judge considered the eye-witness account tendered by the first informant Chhote, injured Rahmat as well as witness Md. Yasin and found that their evidence was reliable. Placing reliance on the testimony of the abovementioned witnesses, the learned Judge held that the appellant had committed murder of deceased Wilayat and had made attempt to murder injured Rahmat and was, therefore, liable to be convicted under Section 302 and 307 IPC. The learned Judge further held that accused Sabbir had shared common intention with the appellant to cause death of the deceased Wilayat and had attempted to murder injured Rahmat and, therefore, he was liable to be convicted for commission of offences punishable under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC. Accordingly, the appellant and his father were convicted. Thereafter, the 11 appellant and his father were heard on the question of sentence. After hearing the appellant and his father as well as learned Additional Public Prosecutor and the defence counsel, the appellant was sentenced to life imprisonment for commission of offence punishable under Section 302 as well as R.I. for ten years for commission of offence punishable under Section 307 IPC whereas his father Sabbir was sentenced to life imprisonment for commission of offence punishable under Section 302 read with Section 34 IPC and R.I. for seven years for commission of offence punishable under Section 307 read with Section 34 IPC.

8. Feeling aggrieved, the appellant and his father preferred Criminal Appeal No.1034 of 2001. During the pendency of the appeal, the father of the appellant, i.e., Sabbir expired and, therefore, the case of the appellant alone was considered by the Division Bench of the High Court of Uttaranchal at Nainital. The High Court found that there was no enmity between the parties nor there was premeditation between the appellant and his father for committing the crime. According to the High Court, the quarrel took place suddenly under the heat of passion 12 because the time between the quarrel and the fight was stated to be few minutes. The High Court was of the view that the quarrel had taken place on account of sudden provocation in which the appellant had caused injuries to the deceased with knife and, therefore, the appellant had committed the offence of culpable homicide not amounting to murder punishable under Section 304, Part I of the IPC. The appellant was accordingly convicted and was sentenced to undergo R.I. for ten years and a fine of Rs.5,000/- in default R.I. for one year. The High Court was further of the view that the injuries on the person of Rahmat indicated that Rahmat had tried to apprehend the appellant when the appellant was trying to make his escape good from the place of occurrence and, therefore, it was natural for the appellant to inflict injuries on the person of Rahmat in order to make his escape good. The High Court, therefore, concluded that the appellant had, in fact, no intention to make an attempt to commit murder of Rahmat and had committed offence punishable under Section 308 IPC. Accordingly, the High Court convicted the appellant under Section 308 IPC and sentenced him to R.I. for two years and a fine of Rs.1,000/- 13 in default R.I. for three months by judgment dated December 24, 2004. The above judgment has given rise to the two appeals.

16. As far as the High Court is concerned, this Court finds that the High Court has recorded a finding that there was no enmity between the appellant and his father on one hand and the deceased and the injured on the other nor was there premeditation on the part of the appellant and his father to murder the deceased and as the quarrel had taken place all of a sudden under the heat of passion, the appellant would be guilty under Section 304, Part I IPC for causing death of the deceased and under Section 308 for causing injuries to injured Rahmat. However, this Court notices that several important aspects of the matter have been totally lost sight of and ignored by the High Court 22 while recording abovementioned findings. To begin with, the reliable testimony of three witnesses has established that in the morning at about 5.30 a.m. on the date of the incident, the accused Sabbir and the appellant had asked the deceased not to dig earth from the place which was near their field whereupon the deceased had told him that pond was meant for general public and, therefore, he would dig the earth from the same place. Two brothers of the deceased, namely, Chhote and Rehmat have in terms stated that the accused Sabbir had threatened that he would not spare the deceased. The evidence of the witnesses would further show that the deceased had gone in the early morning to dig the earth and thereupon the appellant and his father had followed him. What is relevant to mention is that the appellant was carrying a knife in his pant's pocket and this fact was known to his father Sabbir, who had asked him to kill the deceased. As soon as the appellant was asked by his father to kill the deceased, he had taken out the knife from his pant's pocket and inflicted a blow on the back of the deceased. The evidence further establishes that on receipt of the blow, the deceased had turned and 23 the appellant who was bent upon obeying directions of his father to kill the deceased had inflicted another blow on the chest of the deceased. The testimony of Dr. S.C. Mishra, who performed autopsy on the dead body of the deceased would indicate that during the internal examination, heart was found to be pale, empty and punctured whereas the fifth rib of the left side was found fractured. This establishes that the blow with knife on chest of the deceased was inflicted with a great force. According to the doctor, the puncture of heart and fracture of the fifth rib was corresponding to injury No.1. The doctor further mentioned that injury No.1 could have been caused by knife which was produced as Exhibit-3 and that the said injury was sufficient in the ordinary course of nature to cause death of the deceased immediately. This assertion made by the medical officer was not challenged during his cross- examination at all. The evidence on record, thus, shows that before reaching the place of incident, the appellant had armed himself with a dangerous weapon and had caused injury by using that weapon with such a great force on vital part of the body of the deceased that it had resulted into 24 instant death of the deceased on the spot. It is not the case of the appellant that he had intended to inflict injury No.1 on other part of the body of the deceased and due to movement of the deceased, the blow had landed on the chest of the deceased which had punctured his heart and fractured his rib. The eye-witness account of assault on the deceased by the appellant read with medical evidence makes it more than clear that the act of the appellant, by which the death of the deceased was caused, was done with the intention of causing such bodily injury to the deceased as found by medical evidence in this case and that the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death of the deceased. Thus the facts proved, bring the case of the appellant within four corners of clause Thirdly of Section 300 IPC and it will have to be held that the appellant had committed murder of the deceased punishable under Section 302 IPC.

19. For the foregoing reasons, Criminal Appeal No.757 of 2005 filed by the appellant Shaukat is dismissed whereas Criminal Appeal No.758 of 2005 filed by the State of Uttaranchal is accepted. The appellant is held guilty under Section 302 IPC for commission of murder of deceased Wilayat and under Section 307 for attempting to commit murder of injured Rahmat. The sentences, as imposed on the appellant by the Trial Court for commission of offences under Sections 302 and 307 IPC, are restored. Both the appeals accordingly stand disposed of.

April 22, 2010