Haji Hamid Khan and Another vs State

S. Ravindra Bhat, J.—This judgment will dispose of an appeal against the judgment and order of learned Additional Sessions Judge dated 20.12.2010 in SC No. 40/2007, by which the Appellants were convicted for the charge of having committed offences punishable u/s 302/34 IPC.

The prosecution version was that the second accused (hereafter referred to as "Samir Khan") married to Azra Parveen, the deceased''s sister. The prosecution alleged that on account of her differences with the accused Samir Khan and his father (the first Appellant, hereafter referred to as "Haji Hamid Khan") she started living with her parents. It was alleged that Azra Parveen (PW-14) was harassed for dowry by the accused, her mother in-law Farida as well as her sister-in-law Shaheen. According to her, a demand for purchasing a motor cycle was made. This led to ` 40,000/- being given in cash to her sister-in-law by PW-14''s mother. However, demands were made which led to PW-14 returning to her residence. It was alleged that these demands and the conduct of the accused led to lodging of FIR No. 75/ 2007 alleging commission of offences u/s 498A/406/303/34 IPC, PS Lahori Gate on 31.01.2007 and the same was produced during the trial and proved as Ex. PW-11/A. The prosecution further alleged that at about 6.00 PM, on 22-08-2007, at Gali Chashreen, the Appellants caught hold of Rashid, the deceased. The role played by Haji Hamid Khan was to hold Rashid by his shoulders; the co-accused Mohd Samiullah allegedly kept his foot on Rashid and Samir Khan stabbed him with a knife. PW-1 informed the PCR; resultantly the Police reached the spot within 2-3 minutes and Rashid was rushed to the hospital in a seriously injured condition. It was also alleged that Haji Hamid Khan returned to the spot after inflicting injuries on himself and a second PCR van came to the spot and took him to the hospital. Initially the injured Rashid was taken to Aruna Asaf Ali Hospital around 6.40 PM when an MLC (1) was prepared (Ex. PW (1) 13/A), however, apparently he was advised to be taken to Bara Hindu Rao hospital. The police took Rashid to the hospital at 7.10 PM where eventually he died.

On the basis of statement made by the witnesses primarily PW-1, PW-3, PW-14, PW-18, PW-19 and PW-20, all members of the Rashid family, the accused, who were arrested in the meanwhile, were charged with having committed the offence in question. They entered the plea of not guilty and claimed trial.

The trial court reviewed the evidence which included the oral testimony of witnesses and exhibits placed on record and found the Appellants guilty. It was held that the eye witnesses were truthful and consistent while narrating what occurred. The trial court further held that evidence of PW-12 the doctor proved that the injuries could have been caused by a forceful thrust of a sharp and pointed weapon. The fatal one in this case was a 8 cm x 2 cm injury on the left thigh.

It was urged on behalf of the Appellants that the impugned judgment ignored and did not give due weight age to the fact that the prosecution relied exclusively on the eye witness testimonies of 6 witnesses, all of whom were members of the deceased family. Admittedly the prosecution version was that there was no love lost between the deceased''s family and the Appellant''s family. Azra Praveen, wife of Samir Khan had moved out of her matrimonial home and was living with her parents. The deceased was her brother. The accused was falsely implicated in a previous case. Keeping in mind this relationship, the testimonies of such witnesses had to be seen carefully and the Court ought not to have convicted the accused on the basis of their depositions without independent'' corroboration. It is submitted that PW20/A the rukka in the case containing the statement of PW-1 was recorded at 9.15 PM even though according to the same witness the incident occurred at 6.00 PM. Considering that the prosecution alleged that the injured Rashid was moved to the hospital immediately after the attack and was taken to Bara Hindu Rao hospital around 7.00 PM the delay in recording the FIR had not been explained. In these circumstances, the previous enmity between Rashid''s family and the accused party assumed significance.

Learned Counsel urged that the prosecution story was falsified because of the alleged involvement of the co-accused Mohd Samiulla; none of the prosecution witnesses supported the story, as a result of which he was acquitted. If this aspect had been kept in mind, while considering a material circumstance i.e. the injury as inflicted on Haji Hamid Khan which was corroborated by his MLC Ex. PW 21/A, it is apparent that events were not truthfully described by any of the witnesses. The said document i.e. MLC lists six injuries including one on the neck of Haji Hamid Khan. Learned Counsel also relied upon the eye witnesses testimony of PW-10 who had seen the MLC and which was produced as Ex. PW 21/A.

Learned Counsel submitted that the delay in recording of the FIR at 9.30 PM was further compounded by lack of any corroboration that the special report had been forwarded to the concerned Magistrate immediately. In this regard, it was submitted that no endorsement of the concerned Magistrate on the special report-appeared, which clearly showed that he had been forwarded with the document only in the morning of 23.08.2007. An attested copy of Ex. PW-2/C was placed on the trial court''s record at page 475. It is stated that the initial sketch Ex. PW 21/B prepared by the I.O. nowhere showed where the accused were alleged to have attacked the deceased. Further submitted counsel, the post mortem request was made only at around 11.30 AM as is evident from Ex. PW-21/D, the application. Seen cumulatively, these delays strongly probablizes manipulation at the behest of the interested eye witnesses who were the relatives of the deceased, with the intent to implicate the present Appellants and accused in the case.

It was submitted that even if the prosecution were assumed to have proved all the facts, the trial court could not nevertheless, not have convicted the Appellants u/s 302 IPC but u/s 304 Part II particularly since injuries were present on the second Appellant Haji Hamid Khan. Learned Counsel relied upon the decision as Pappu @ Hariom v. State of Madhya Pradesh 2009 V AD (S.C.) 531 : 2009 3 SCC (Cri) 1450, Maniben v. State of Gujarat 2007 VI AD (S.C.) 52 : 2000 (8) SCC 796, Javed Alam Vs. State of Chhattisgarh and Another, . It was submitted that no explanation was given by the prosecution regarding injuries on the accused. It is also an important factor which the Court should have considered while not convicting them u/s 302 IPC. In this regard the decision reported as Babu Ram and Others Vs. State of Punjab, was relied upon.

Mr. Lovkesh Sawhney, the learned APP urged that the trial court correctly found the eye witnesses PW-1, PW-3, PW-14, PW-18, PW-19 and PW-20 to be credible and trustworthy. It was submitted that this credibility was reinforced by the circumstance that several of them did not support the prosecution case regarding involvement of the third accused. Had their intention been to implicate all the accused and their family members, there was no reason for them to depose against the prosecution. Resisting the argument of the Appellants that eye witnesses were not independent, the learned APP contended that the Court has to apply the test of credibility and would not be carried away by the mere circumstance that one or some of eye witnesses were related to the deceased. Such a blanket rule is not mandated by the Evidence Act nor does a special principle exists, obliging the Court to scrutinize evidence of such witness with greater circumspection and care. The incident occurred at 6.00 PM; immediately the police was intimated, the injured Rashid was rushed to the hospital on 6.40 PM; he was taken to the second hospital and he died there subsequently. The FIR was recorded within less than 2 hours after the death of Rashid. The post mortem report established the time of death to be 7.40 PM. In these circumstances the prosecution version could not be disbelieved as the result of a manipulated story.

The learned APP urged that the recording of PW-1 (the informant''s) statement and registration of FIR took place immediately after the death occurred because till then every effort was to save the injured Rashid. It was urged that the Appellants cannot take advantage of the fact that no time was assigned in the special report about when it was endorsed by the Magistrate because that is an aspect over which the prosecution did not have any control. The evidence pointed to the dispatch of the special report immediately after the registration of FIR. PW-2/C is a DD entry of 10.30 AM. The prosecution witness PW-8 mentioned having left the Police Station immediately and going to the Magistrate''s house. It was also argued that there is no substance in the submission that the request for post mortem was delayed. The post mortem report PW 21/C itself recorded the time of death as 7.40 PM. In these circumstances, there can be no question of any manipulation of the facts at the behest of the deceased''s relatives as urged on behalf of the Appellants. The learned APP next relied upon the decision reported as Ram Pat and Others Vs. State of Haryana, , to say that the injuries on the accused Haji Hamid Khan were superficial, simple and only abrasions and bruises. They appeared to be self inflicted. The prosecution was under no duty to explain them. The evidence of PW-12 also revealed that they could have been self inflicted. Commenting on the motive, it was urged that PW-14''s testimony reveal that her relationship with Samir was strange and stormy. She had left the matrimonial house and living with her parents, Samir Khan''s conduct as well as that of his father had led to commission of serious offence and an FIR was lodged against them by PW 14 which is proved as Ex. PW11/A. This sufficiently explained the motive of the accused to have participated in the attack.

Arguing that the present case could not be characterized as one where the injuries inflicted were accidental, the learned APP submitted that the accused had reached the spot with the pre-motive of attacking the deceased with some of his relatives. They were armed with knife, the nature of injuries were inflicted upon the deceased were sufficient to cause death in the ordinary course. None of the acts pointed out to any sudden quarrel or provocation by the deceased or members of his family that warranted with such disproportionate response, the knife too was recovered from the spot. Having regard to these facts the prosecution had established Samir Khan''s guilt beyond reasonable doubt for the offence punishable u/s 302 IPC. As far as the Appellant Haji Hamid Khan was concerned, the role played by him was not merely of a bystander but as an active participant who held or restrained the deceased which facilitated Samir Khan to attack the deceased with knife. Relying on the judgment reported as Krishnan and another Vs. State of Kerala, and Anil Sharma v. State of Jharkhand 2004 VI AD (S.C.) 286 : 2004 (5) SCC 675, learned APP submitted that presence of Haji Hamid Khan was sufficient for the application of Section 34 IPC.

The above discussion would show that the prosecution relied heavily on the eyewitness account of the deceased''s relatives. The Appellants have objected to exclusive reliance on such testimonies, saying that independent corroboration is essential. There is no general principle that while judging the testimony of witnesses who are relatives or are connected with the accused, the court has to exercise special care or caution. The test to be applied is the credibility of the witness. In Dalip Singh and Others Vs. State of Punjab, it was held that:

A witness is normally to. be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

The above decision was followed in Vadivelu Thevar Vs. The State of Madras, and Guli Chand and Others Vs. State of Rajasthan,

The statement, of the witnesses, is corroborated by each other, down to nagging details. This is significant; such blind repetition is something the Court would consider later. However, in material particulars, i.e. about the previous acrimony between the deceased''s sister, PW-14 and Samir as well as Haji Hamid, there can be no serious doubt, because the FIR of that case was proved in court. The attack on the fateful day, with the knife, has been consistently spoken to by all the witnesses.

There is, however, one aspect on which the testimonies of the prosecution witnesses have to be carefully examined. PW-1 deposed that he was not present when the attack began but was told about it Upon reaching the spot, he witnessed the attack on the deceased by Samir Khan; he stated that Haji Hamid Khan held the deceased by the shoulder. PW-3 also similarly mentions that she was sitting in her house when she became aware of the attack like PW-1 and reached the spot. She describes the role of Samir Khan and his father, Haji Hamid Khan in an almost identical manner. PW-14, Samir Khan''s wife too did not actually witness the incident or how it started but reached the spot upon being informed about it. The same version was given by PW-20 Mohd. Sajid, the deceased''s brother, who also was a witness to the Seizure Memo drawn in respect of PW-5/A, the weapon of offence. During a testimony, this witness admitted that he had been involved in past criminal cases. PW-19 too corroborated the version on other prosecution witnesses, as did PW-18. However, very significantly, none of the prosecution witnesses were able to identify who had informed them about the attack. Even the prosecution appears to have made no attempt to secure that boy - who, as per the records, was the first one to witness the incident, to a join the investigation, and depose in this case. This fact, coupled with the time-lag which occurred during the attack, and the time when the witnesses reached the spot as also the existence of the injuries of Haji Hamid Khan assumes some significance in the case. As observed earlier, there was no love lost between the two families. PW-14, Azra Parveen had left the matrimonial home and started staying in her parental home two months before the incident. In these set of facts, the origin of the attack being on a quarrel which escalated in a stabbing incident, cannot-be ruled-out Furthermore, what is important is that the murder weapon in this case is a 22.2 cm knife, of which the blade is concededly 10.5 cms, with a width of 3 cms. In other words, the weapon of offence is a knife with a small blade. It is described as a modern multi-function knife, in the sketch, PW-5/A.

The above discussion was necessitated because in the court''s opinion, the witnesses'' parrot like repetition of the incident, the manner of attack, and the omission to examine an eyewitness who informed all the family members leads the court to infer that all facts have not been disclosed to the court, in entirety. Though the learned APP relied on some decisions of the courts to say that the duty of the prosecution to explain injuries on the accused, are relative to the fact situation in every case, this omission, and the existence of only one fatal injury, on the injured inflicted by the accused, cannot rule out some quarrel between the parties. It would be relevant in this context, to consider a few decisions of the Supreme Court to see whether the facts proved here amount to offence punishable u/s 302, or u/s 304. In the judgments reported as Tholan Vs. State of Tamil Nadu, Dashrath Singh Vs. State of U.P., Kulwant Rai Vs. State of Punjab, ; Kashi Ram and Others Vs. State of M.P., and Chamela v. Govt. of NCT Cri. A. No. 545/2004 dated 13.04.2010 this aspect was considered, and the approach of criminal courts, while dealing with fatal injuries, indicated. In Tholan (supra), while converting the conviction for murder into one u/s 304 Part-II IPC, in a case involving one knife-blow, the Supreme Court held as follows:

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Learned Counsel for the Appellant contended that having regard to the genesis of the occurrence and the surrounding circumstances and the fact that one blow with a knife was given which happened to land on the chest it cannot be said with reasonable certainty that Appellant intended to commit murder of deceased Sampat or Appellant intended to cause the particular injury and the injury intended to be inflicted was sufficient in the ordinary course of nature to cause death.

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It is equally not in dispute that Appellant gave only one blow with a knife. Appellant had no quarrel or dispute with deceased Sampat. It is not shown that deceased Sampat had anything to do with the chit organised by K.G. Rajan. No malice has been alleged to have been entertained by the accused towards deceased Sampat. The incident occurred on the spur of the moment. It appears that the house of the deceased Sampat was somewhere near the house in which the organizers or at least one of them was residing. Appellant had his dispute and grievance with the organizers of the chit. It is the prosecution case that accused abused organizers of the chit. Deceased Sampat. is not shown to be the organizer of the chit. Probably when the deceased Sampat told the accused not to misbehave in the presence of ladies and not to use vulgar and filthy language the Appellant retorted by questioning the authority of Sampat to ask him to leave the place. Presence of Sampat is wholly accidental. Altercation with Sampat was on the spur of the moment. Even the meeting was accidental. There arose a situation in which Appellant probably misguided by his own egocentric nature objected as to why Sampat should ask him to leave the place and in this background he gave one blow with a knife which landed on the right side chest of the deceased, which has proved fatal. Could the Appellant be said to have committed murder In other words, whether Part I or Part III of Section 300. I.P.C. would be attracted in the facts of this case. Even Mr. Rangam learned Counsel for the State of Tamil Nadu could not very seriously contend that the Appellant intended to commit murder of Sampat. His submission was that at any rate Appellant when he wielded a weapon like a knife and gave a. blow on the chest, a vital part of the body, must have intended to cause that particular injury and this injury is objectively found by the medical evidence to be fatal and therefore Part III of Section 300 would be attracted. On this aspect, the decisions are legion and it is not necessary to recapitulate them here merely to cover idle parade of familiar knowledge. One can profitably refer to Jagrup Singh v. State of Haryana AIR 1981 Randhir Singh v. State of Punjab AIR 1982;Kulwant Rai v. State of Punjab AIR 1982 and Jagtar Singh Vs. State of Punjab, and Ram Sunder v. State of U.P. Crl. A. No. 555/83 decided on 24-10-83. Having regard to the ratio of-each of these decisions, we are satisfied that even if exception I is not attracted the requisite intention cannot be attributed to the Appellant. But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation he would be guilty of committing an offence u/s 304 Part II of the Penal Code. Having regard to the circumstances of the case a sentence of 5 years would be quite adequate.

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In Kulwant Rai the Court reiterated a similar approach:

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When the matter was before the High Court it was strenuously urged that in the circumstances of the case part I of Section 300 would not be attracted because it cannot be said that the accused had the intention to commit the murder of the deceased. In fact, that is conceded. More often, a suggestion is made that the case would be covered by part 3 of Section 300 Penal Code in that pot only the accused intended to inflict that particular injury but the injury intended to be inflicted was by objective medical test found to be sufficient in the ordinary course of nature to cause death. The question is in the circumstances in which the offence came to be committed, could it ever be said that the accused intended to inflict that injury which proved to be fatal. To repeat, there was an altercation. There was no premeditation. It was something like hit and run. In such a case, part 3 of Section 300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be -likely to cause death and the case would accordingly fall u/s 304 Part II Penal Code.

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In Dashrath Singh, the Supreme Court held that:

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Firstly, it must be noted that the intention to cause the death of Pratap Singh cannot be imputed to the accused Raja Ram''. Apart from the finding of both the Courts that the common object of the unlawful assembly was not to kill Pratap Singh or any other member of his family but only to cause hurt or apply criminal force in order to desist them from asserting the rights over the disputed site, one more circumstance that rules out the intention on the part or any of the accused to kill Pratap Singh is that after the single blow inflicted on the victim with the kanta, there was no further move to attack him. PW1 made this clear in his deposition. If Raja Ram intended to kill him, he would not have stopped at injuring him once only. Still, the question remains whether the offensive act done by the Appellant Raja Ram falls within clause thirdly of Section 300. That the Appellant intended to cause bodily injury to the victim by striking him on his head with a sharp-edged weapon the Appellant was carrying cannot be denied in view of the sequence of events deposed to by P Ws 1 to 4. From the medical evidence of P Ws 6 & 8 coupled with the magnitude of the injury caused on head with a dangerous weapon, it can be presumed that the injury which was inflicted and intended to be inflicted is sufficient in the ordinary course of nature to cause death. PW 8 who performed the surgery on 13.8.1977 noted the pre-operative diagnosis on Exhibit ka-9 as follows:

Right front-parietal infected compound commutated fracture of skull with brain herniated, underneath: brain abscess and cerebrates with hernia ion.

He prescribed post-operative treatment. PW 8 stated that the death was on account of the head injury which caused brain abscess and such injury could lead to the occurrence of death in the ordinary course of nature. The evidence of PW 8 leaves no doubt that the skull and brain injury caused to the victim was sufficient in the ordinary course of nature to cause death. PW6 who attended on the victim on the day of occurrence itself noticed the incised wound of 15 cm x 5 cm x brain tissue deep found on the head of the patient. He stated that the injury was appearing to be dangerous to life and the injury must have been inflicted by a sharp-edged object thrust with sufficient force.

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In Chamela (supra) a Division Bench ruling of this Court, the accused had inflicted several knife blows. That did not deter the court from holding that the offence made out was punishable u/s 304, Part I and not u/s 302, IPC. In the present case, as held earlier, the genesis of the quarrel is known to none; Haji Hamid Khan concededly had suffered injuries, which led to his medical examination, a fact proved by the record. Furthermore, the fatal injuries, described by the post-mortem report, and the doctor examined in the case, were spindle shaped wounds - one 74 cm above the left heel, and the second, 3cm x 1 cm, obliquely placed on the lateral aspect of the left thigh at its middle, 72 cm above the lest heel. The other injuries were abrasions. The doctor (PW-12) deposed that death occurred due to hemorrhagic shock on account of the injuries.

Haying regard to the facts found, and the previous discussion, as well as the nature of injuries, as well as injuries on the second accused Haji Hamid Khan, this Court is of opinion that the (sic) of the Appellants u/s 302 IPC is not appropriate. The injuries could not be said to have been inflicted with the intention of causing death. They however, fall within Section 304 Part I, as there was intention to cause bodily injury which was likely to cause death, in the normal course of nature. As far as the role of Haji Hamid Khan, is concerned, the witnesses have mentioned that he held the deceased; the fatal blow however was inflicted by Samir Khan.

In view of the above, the Appellants'' conviction is substituted to one u/s 304 Part I, IPC. The first Appellant''s sentence is substituted to RI for 8 years. The second Appellant''s (Haji Hamid Khan''s) sentence is substituted to RI for 6 years. The Appellants are entitled to remissions earned, if any, as well as benefit of Section 428, Cr. PC.

The Appeal is partly allowed, in the above terms.