Amir Latif Node vs State of Gujarat

K.J. Thaker, J.—The original accused - appellant, herein, has preferred this appeal, assailing the judgment and order of the learned Additional Sessions Judge, Bhuj - Kachchh, Dated: 03.06.2009, rendered in Sessions Case No. 30 of 2007, whereby, the learned Judge convicted and sentenced the appellant as under; (1) To undergo rigorous imprisonment for life for the offence punishable u/s 302 of the IPC and to pay fine of Rs. 5,000/- and in default to undergo further rigorous imprisonment for three months;

(2) To undergo rigorous imprisonment for three years for the offence punishable u/s 324 of the IPC and to pay fine of Rs. 1,000/- and in default to undergo further rigorous imprisonment for fifteen days;

(3) To undergo rigorous imprisonment for four months for the offence punishable u/s 135 of the Bombay Police Act and to pay fine of Rs. 500/- and in default to undergo further rigorous imprisonment for fifteen days.

The brief facts of the case of the prosecution, as set out before the trial Court, reads as under; 2. A complaint was given by one Mustaq Hasam Node before PSI, Bhuj Taluka Police Station, on 20.04.2007, wherein, he stated that before about six months, the appellant told him that he wanted to purchase a mobile. The complainant, hence, purchased a mobile from one Anwar @ Anu Raima for Rs. 700/- and gave it to the appellant and the appellant paid Rs. 700/- to the complainant towards the same, which in turn were given by the complainant to said Anwar. However, after about three days, the appellant asked the complainant that he did not want to keep the mobile and get me back my money. When the complainant informed Anwar about the same, Anwar told him that he had spent the money and on account of that a quarrel took place between the complainant and the appellant. After the aforesaid incident, the complainant and the deceased Nale Mitha Node on the one hand and the appellant on the other hand stopped talking to each other.

The complainant, then, went on to narrate the alleged offence stating that on that day there was marriage in their locality and the deceased and the appellant had also gone to attend the same and at that time a scuffle had taken place between the deceased and the appellant on account of a collision between them, while mounting in the truck. The deceased himself had informed the complainant about the said incident. The complainant was also told by the deceased that at that time, the appellant had told him that to come in chowk, if, I desired to fight or else he will see me later. Hence, the complainant and the deceased went to chowk on motorcycle of the complainant and as soon as they reached there and the deceased alighted from the motorcycle, the appellant pulled out a knife from his person and inflicted two blows on the deceased one after the other. On account of that the deceased fell down there and when the complainant tried to intervene, the appellant inflicted injuries on the complainant, as well. The injured was taken to the hospital, where, he was declared dead.

On registration of the offence, police carried out the investigation and on finding, prima facie evidence against the original accused-the appellant, herein, filed charge-sheet against him. The case being exclusively triable by a Court of Sessions, same was committed before the Sessions Court, Bhuj - Kachchh, for trial. At the time of trial, the accused did not plead guilty and claimed to be tried. Hence, the accused was tried for the alleged offence.

To establish its case beyond reasonable doubt, the prosecution examined the following witnesses;

Over and above the aforesaid oral evidence, the prosecution also placed reliance on the following documentary evidence in support of its case;

On completion of the trial, the statement of the accused u/s 313 of the Cr.P.C. came to be recorded, and then, the trial Court passed the judgment and order, as referred to herein above. Hence, the present appeal.

The prosecution, with a view to prove that the present is a case of homicidal death, examined P.W.-9, who was serving as MO at JK General Hospital, Bhuj, at the relevant point of time and who had performed PM on the body of the deceased, at Exhibit-37. In her examination-in-chief, P.W.-9 stated that at that time of PM, she had found following injuries on the body of the deceased;

There was one injury on the outer side of the left underarm of his body, which was below shoulder and above the elbow, and which was 6 cm. long, 1.5 cm. broad and 3 to 4 cm. Deep. There was second injury at the very same place, just below left underarm ranging upto left lung, which was about 6 cm. Long, 1.5 cm. Broad and 3 inches deep.

This witness, after perusing the muddamal knife, opined that the injuries found by her on the dead body could be caused by the same. According to this witness, the cause of death of the deceased was due to CR due to shock due to heamo from left lung due to stab. In her cross-examination, P.W.-9 stated that it was injury No. 2 on account of which, lung was cut.

At this stage, the learned Advocate for the appellant, Mr. Nangesh, drew our attention to the document at Exhibit-41 and submitted that as per the said document the deceased expired due to septicemia, and hence, the trial Court ought not to have convicted the appellant u/s 302 of the IPC. However, on perusal of Exhibit-41, we found that it is the term ''Sepsis'' and not ''Septicemia'', as is argued by Mr. Nangesh. Hence, for the purpose of dealing with the aforesaid argument of Mr. Nangesh, here, it would be relevant to refer to the meaning of terms ''Sepsis'' and ''Septicemia'', which are defined as under in Butterworths Medical Dictionary, Second Edition;

Sepsis (Sep''sis): 1. A term originally used to denote a putrefactive process in the body but now usually referring to infection with pyogenic micro-organisms. 2. A genus of Diptera. The larvae, which are normally saprophagous, have caused accidental intestinal myiasis.

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Septicaemia (sep''te''se''me''ah). The severe type of infection in which the blood stream is invaded by large numbers of the casual bacteria which multiply in it and spread. It should be distinguished from bacteraemia in which organisms appear in the blood without the severe rapid generalization of infection characteristic of septicemia.

Thus, from the above it is clear that both the terms are distinct and separate. Moreover, P.W.-9 also explained the confusion, which was created due to mentioning of the term ''Sepsis'' in the document, Exhibit-41, and the term ''Stab'' in PM report, while mentioning cause of death, in her cross-examination. P.W.-9, in her cross-examination, after perusing Exhibit-41 stated that the term ''Sepsis'' was wrongly mentioned in Exhibit-41 and, in fact, she had written the word ''stab'', therein. P.W.-9 clarified the aforesaid aspect by producing the original certificate, Exhibit-43, and by stating that, though, originally she wrote ''stab'' in the said certificate, it appears that while making copies of the said certificate, due to inadvertence, instead of the term ''Stab'', the term ''Sepsis'' was written. P.W.-9, then, denied the suggestion that she had prepared the PM Note in her office, on the basis of the Inquest Panchnama, without performing the PM on the body of the deceased. In view of the above, we are unable to accept the aforesaid argument advanced by learned Advocate, Mr. Nangesh.

Thus, from the evidence of P.W.-9, it clearly transpires that the present is a case of homicidal death. Now, what we have to examine is as to whether the appellant is the author of the said crime or not.

To examine the aforesaid aspect, it would be relevant to refer to the evidence of P.W.-1, who is an injured eye-witness of the alleged offence.

P.W.-1, at the time of his examination-in-chief, reiterated the facts already narrated by him in complaint(Exhibit-22) as to how the relations between the appellant on the one side and the deceased and he, himself, on the other side became strained due to quarrel over the issue of mobile, and then, as to how the deceased told him about the incident of collision between him and the appellant, which took place on the date of the alleged offence, and the threat issued by the appellant and when the complainant and deceased went to the place of offence, as to how the appellant, immediately, took out knife and inflicted injuries on the deceased and complainant. In his cross-examination, P.W.-1 stated that it is not true that no quarrel had taken place between him and the appellant over the issue of mobile phone. This witness, further, denied the suggestion that, since, the deceased happened to be husband of his sister, he was giving false evidence.

The evidence of P.W.-1 gets partial support from the evidence of P.W.-4, who was serving as doctor at J.K. General Hospital, Bhuj, and who had examined the complainant on the date of the alleged offence. P.W.-4, in her examination-in-chief, stated that she had examined the complainant on 20.04.2007 and she found that he had sustained one incise wound just below the elbow of the right hand and she was of the opinion that the same could be caused by a sharp edged weapon. P.W.-4, further, stated that the relative of the complainant, who had brought him to the hospital, had given her history of injuries by one Aamir Latif, i.e. the appellant. P.W.-4, then, perused the muddamal knife and opined that the injury found by her could be caused by the said weapon. In her cross-examination, this witness denied the suggestion that as she was not knowing the name of the accused, at that point of time, she made corrections in the medical papers. She, further, denied the suggestions that she had prepared Exhibits-29 and 30 subsequently and that she had not given treatment to the injured. Thus, the evidence of this witness supports the case of the prosecution on the aspect of infliction of injuries by the appellant on the complainant, i.e. P.W.-1.

Insofar as the evidence of (1) P.W.-2 is concerned, in his cross-examination, he stated that he had not seen the offence being committed, (2) P.W.-5 was the doctor, who had collected blood sample of the accused, and hence, the evidence of these witnesses do not throw any light on the actual happenings. As regards the evidence of other witnesses are concerned, i.e. P.W.s-3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and even P.W.-6, who happened to be the father of the deceased, they did not support the case of the prosecution and were declared hostile. Thus, the case of the prosecution largely hinges on the evidence of P.W.-1. Here, the note of the fact may be taken that P.W.-1 is not only an eye-witness, but, he is an injured eye-witness. In that view of the matter, it would be relevant to refer to a decision of the Hon''ble Apex Court in the case of State of U.P. Vs. Naresh and Others, wherein the Hon''ble Apex Court observed that the evidence of an injured witness is accorded special status, since, his presence at the place of occurrence is beyond doubt and it is unlikely that he has spared the actual assailants in order to falsely implicate someone else, and therefore, his evidence should be relied upon, unless there are major contradictions and discrepancies, therein.

In the present case, the accused inflicted injuries not only on the deceased but also on the complainant and also hurled abuses at him. Meaning thereby, the incident continued for quite a some time, and therefore, there was sufficient time with the complainant to see the assailant and the act done by him. Apart from that the appellant, the deceased and the complainant are all residents of the same locality and they used to know each other very well, even prior to the alleged offence, and hence, the question of misidentification or the mistaken identity does not arise in this case. The defence has not been able to explain, if, the present appellant is not involved in the alleged offence, then, why he was being involved in the alleged offence by P.W.-1, sparing the real culprit. Moreover, it is neither the case of the appellant nor has he led any evidence to show that he was not present at the place of offence. The presence of the accused, at the place of offence, stands proved by the evidence of P.W.-1 and the same gets partial support from the evidence of P.W.-4, who had provided the treatment to the complainant and who was given the history of attack on the complainant by one Aamir Latif. Moreover, at the time of recording of his statement u/s 313, the appellant in answer to a question with regard to quarrel with the complainant over the issue of mobile stated that the fact about quarrel was true, but, no compromise was done. Moreover, at the end of recording of his statement u/s 313 of the Cr.P.C., he stated that since he had beaten up the complainant - P.W.-1, he was being involved falsely. These facts support the case of the prosecution on the aspect of past dispute and strained relations between the complainant and the deceased on the one hand and the appellant on the other.

The case of the prosecution also gets support from the documentary evidence in the form of report of FSL. As per the serological report, the presence of human blood of group ''O'' was found on muddamal Articles (1) Article: A-sand collected from the place of offence, (2) Article: A1-control sand, (3) Article: B1-Shirt, (3) Article: B2-Baniyan, (4) Article: D-knife, which was the blood group of the deceased, whereas, the blood group of the appellant, i.e. Article: E, was found to be of group ''A''. this fact also points towards the guilt of the present appellant.

In view of the above, we are of the opinion that the trial Court committed no error in holding the appellant guilty for the act of causing death of the deceased. Having held the appellant guilty for the act of causing death of the deceased, Nale Mitha, now, what we have to determine is whether the trial Court was justified in recording the conviction of the appellant u/s 302 of the Indian Penal Code or not.

Before proceeding, further, here it would be relevant to refer to the provisions of Section 299 read with Sections 300 and 304 of the Indian Penal Code, which are as under;

Culpable homicide:--Who ever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

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Murder:--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

2ndly-- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

3rdly--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, or--

4thly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

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Punishment for culpable homicide not amounting to murder:--

Whoever commits culpable homicide not amounting to murder shall be punished with 1 [imprisonment for life],or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,

Or

With imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

Keeping in mind the aforesaid provisions of law, if the facts of the present case are examined, then, it has come on record that in the past there was a quarrel between the complainant and the appellant and on account of that the deceased had also stopped talking to the appellant. Moreover, on the date of the alleged incident also a quarrel had taken place between the deceased and the appellant on account of collision between them, while mounting a truck. P.W.-1 in his cross-examination stated that when he left with the deceased for the place of offence, he had no intention of picking up any quarrel and that he was not knowing that the accused would be present there. P.W.-1, in his cross-examination, further stated that when the deceased alighted from the vehicle, the appellant was at a distance of about five feet from him. Meaning thereby, when the complainant and the deceased reached the place of offence, the appellant was already present there and it has not happened that he followed the complainant and the deceased and attacked them. We are, therefore, of the opinion that the trial Court ought not to have convicted the appellant u/s 302 of the IPC. If the entire incident is examined in the light of the evidence of P.W.-1 to the effect that the deceased had told him that the appellant had threatened him that to come to chowk, if, he desires to fight or he will see him later, then, it appears that on seeing the complainant and the deceased together at the place of offence, the appellant might have comprehended their presence as a response to the threat issued by him to the deceased on the same day and out of fear he might have attacked them. Nonetheless, the fact remains that the appellant had not gone to the complainant and the deceased. We are, therefore, of the opinion that the ends of the justice would be met if the conviction of the appellant is modified to Section 304 (Part I) from Section 302 of the IPC and he is sentenced to undergo imprisonment for ten years.

As regards the aspect of conviction of the accused u/s 324 of the IPC is concerned, in view of the fact that the appellant had inflicted knife injury not only on the deceased, but, on the complainant as well, we do not find that the trial Court committed any error by convicting the appellant under said section.

Insofar as the conviction of the accused u/s 135 of the Bombay Police Act is concerned, though, the public notification was produced on the record of the trial Court, there is neither any material produced on record or any witness was examined to prove that the same was properly published/advertised, and hence, the conviction of the appellant under said section cannot be sustained and the same requires to be quashed and set aside.

In the result, the appeal is allowed in Part. The judgment and order of the trial Court, Dated: 03.06.2009, recording the conviction of the original accused - the appellant, herein, u/s 302 of the Indian Penal Code is Modified and the appellant is Convicted u/s 304(Part-I) of the Indian Penal Code and is sentenced to undergo imprisonment for Ten Years.

Further, the judgment and order of the trial Court is Quashed and set aside to the extent it records the conviction of the original accused - the appellant, herein, for the offence punishable u/s 135 of the IPC and the appellant is Acquitted of the charge under the said section. The amount of fine, if any, paid by the appellant u/s 135 of the IPC be refunded to him. Rest of the judgment and order of the trial Court stands Confirmed. A copy of this order be sent to the concerned Jail Authority, forthwith.