Sirajul Sheikh vs The State of Jharkhand

D.N. Patel, J.—The present appeal has been preferred by the original accused No. 1 against the judgment and order of conviction and sentence dated 27th July, 2001 and 30th July, 2001 respectively, passed by the Additional Sessions Judge, Pakur in Sessions Trial No. 243 of 1999) 44 of 1999, whereby, the present Appellant-accused has been convicted for the offence punishable u/s 312 to be read with Section 149 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life The present Appellant-accused has further been convicted for the offence u/s 148 IPC and sentenced to undergo rigorous imprisonment for three years. However, both the sentences were directed to run concurrently.

If the case of the prosecution is unfolded the same is as under:

It is the case of the prosecution that one Saiffuddin Sheikh (P.W.6) has lodged a first information report before Pakur Police Station on 20,h March 1999 at 1.30 a.m. to the effect that on 19th March 1990 at about 8.00 p.m. when the informant was at his house with his brothers at Village Navrottampur, at that time the present Appellant (original accused No. 1), Dendar Sheikh (original accused No. 7), Mehruddin Sheikh (original accused No. 6) and Khushdil Sheikh (original accused No. 5) came at his house and they were addressing the brother of the informant (P.W.6) i.e. Shri Taimuddin Sheikh in high pitch voice that why he was throwing stones at the house of Jallaluddin Sheikh (original accused No. 4). In response to this, the informant (P.W.6) told them that his brother Taimuddin Sheikh was not throwing stones at the house of Jallaluddin Sheikh (original accused No. 4). The informant further told them that even if Taimuddin Sheikh had thrown stones at the house of Jallaluddin Sheikh, they are ready to go for Panchayati, but, accused started beating the brother of the informant. Thereafter Jallaluddin Sheikh (original accused No. 4), Morsalim Sheikh (original accused No. 3) and Amrul Sheikh (original accused No. 2) came there with lathis in their hands and the present Appellant i.e. Sirajul Sheikh, who was having Farsa in his hand caused head injuries to Taimuddin Sheikh, who is the brother of the informant. Thereafter, the accused ran away Taimuddin Sheikh was taken to Pakur Hospital but while going to hospital, he expired.

Upon registration of the first information report, investigation was carried out, statements of the witnesses were recorded, charge sheet was filed against the Appellant-accused along with other co-accused and after commitment the case was numbered as Sessions Trial No. 243 of 1999 and after appreciating the evidences on record, the Appellant has been convicted and sentenced for the offence punishable u/s 302 to be read with Section 149 and Section 148 of the Indian Penal Code for committing murder of Taimuddin Sheikh. Against the said judgment and order of conviction and sentence, the present appeal has been preferred by the original accused No. 1.

We have heard learned Counsel for both sides at length and perused the records and proceedings of Sessions Trial No. 243 of 1999. It has been mainly submitted by the counsel for the Appellant that there are lot of omissions and contradictions in the deposition of the prosecution witnesses. There was no intention on the part of the present Appellant accused to murder of the deceased. This aspect of the matter has not been properly appreciated by the learned trial court and hence, the judgment and order of conviction and sentence passed by the trial court deserves to be quashed and set aside. It is further submitted by the learned Counsel for the Appellant that the whole incident has taken place out of hot altercation between the informant and his brothers and the accused side persons. In fact, there is only one injury upon the deceased which is fatal in nature as per medical evidence given by P.W.7 Dr. Ram Jeevan Prasad, who has carried out postmortem note of deceased Taimuddin Sheikh and, therefore also there is no intention en the part of the Appellant-accused to cause murder of the deceased. The Appellant-accused is in jail since 1999. More than ten years he has remained in jail and therefore, alternatively, it is submitted by the counsel for the Appellant that at best the Appellant is liable to be punished for the offence of culpable homicide, not amounting to murder for ten years instead of Section 302 I.P.C. because thee is no motive on the part of the Appellant to cause murder of the deceased.

We have heard learned A.P.P. for the State, who has submitted that the Appellant-accused was having a sharp cutting heavy weapon in his hand. Thus, from the very beginning, his intention was clear to commit the murder of Taimuddin Sheikh. He has also caused injuries at the head of the deceased, which is a vital pan of the body. The case of the prosecution is based upon several eyewitnesses i.e. P.W.1, P.W.2 P.W.3, P.W.4 and P.W.6 and the depositions" of Dr. Ram Jeevan Prasad (P.W.7) and thus, no error has been committed by the trial court in convicting the Appellant-accused for committing murder of the deceased. There is also no question of mis-identification of the Appellant-accused as they are known to each other. The depositions of eyewitnesses are clear, cogent and convincing and without any exaggeration, omissions and contradictions. Thus, the present appeal preferred by the original accused No. 1 deserves to be dismissed.

We have heard tire counsel for both sides and looking to the evidences on record, it appears that the Appellant-accused came at the house of deceased along with his brothers i.e. along with accused No. 5, 6 and 7. Accused No. 1 i.e. the Appellant was having Farsa in his hand. Looking to the evidences of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6, who are the eyewitnesses, it appears that the accused persons started abusing from their house and came at the house of the deceased. Though informant (P.W.6) tried to convince the Appellant, the Appellant was so much aggressive that he started beating Taimuddin Sheikh and caused head injuries by Farsa to Taimuddin Sheikh, who become unconscious and fell down. Looking to the deposition of eyewitnesses and looking to the cross-examinations, nothing is coming out in favour of the Appellant-accused.

Depositions of P.W.2 Taimar Sheikh, P.W.3 Naimuddin Sheikh, P.W.4 Nikadal Sheikh and P.W.6 Saiffuchin are cogent, clear and convicing. These witnesses have narrated the incident in detail that on 19th March 1999 at about 8.30 p.m. present Appellant along with his brothers (original accused no, 5, original accused No. 6 and original accused No. 7) came at the house of deceased with weapon Farsa and caused head injuries upon Taimuddin Sheikh. There were no weapons in the hand of the victim The accused was aggressive in nature.

Looking to the medical evidence given by Dr. Ram Jeevan Prasad, who is P.W.7, the following injuries were found on the person of Taimuddin Sheikh.

(I) 2 " x 1" bone deep at head;

(II)2" x 2" abrasion at right side of chest.

(III)�" x �" left hand;

(IV)Swelling 1" diameter on the left hand; and

(V) Bleeding from none.

It has been opined by Dr. Ram Jeevan Prasad (P.W.7) that death has been caused because of injury No. (I). Injury No. (1) is capable of being caused by heavy sharp cutting instrument and injury No. (I) is sufficient ordinary course of nature to cause death of the deceased, whereas rest of the injuries having been caused by hard and blunt substance. This Dr. P.W.7 who has carried out postmortem on deceased Taimuddin Sheikh on 20th March 1999 at 11.00 o''clock, has narrated the injuries in detail which is corroborative to the deposition of the eyewitnesses.

It is vehemently submitted by the counsel for the Appellant that there is only one injury which is fatal in nature and therefore, in stead of punishing the Appellant u/s 302 IPC, he may be punished u/s 304 IPC. This contention is not accepted by this Court, mainly for the reasons that looking to the nature of injury, it appears that it has been caused at the vital part of the body for a simple dispute like throwing of stones by Taimuddin Sheikh. The Appellant came with Farsa in his hand, which is a heavy sharp cut instrument. He started beating the deceased and thereby caused head injuries. Looking to Clause 3rdly of Section 300 IPC, even if the accused have intention to cause bodily injury to any person and the bodily injury intended to be inflicted is sufficient in ordinary course of nature to cause death of the person, the offence committed is a murder. There is no need to have exact intention of causing murder, but, it will be sufficient if the accused is having intention to cause bodily injury and if such bodily injury is sufficient in ordinary course of nature to cause death of the deceased, the offence is of a murder. In the facts of the present case, the present accused is coming from his house with heavy sharp cutting weapon Farsa. There was no weapon in the hands of the victim. The accused came at the house of the victim and he started abusing the deceased and his brothers. Initially he started beating and thereafter caused head injury. Looking to the evidence given by P.W.7, the injury was sufficient in ordinary course of nature to cause death of Taimuddin Sheikh and therefore, as per Clause 3rdly of Section 300 IPC, the offence committed by the Appellant-accused is a murder.

It has been held by Hon''ble Supreme Court in Thangaiya v. State of Tamil Nadu reported in (2005) 9 SCC 651 at paragraphs 10, 11, 12, 13, 14 and 15, as under:

The academic distinction between "murder" and "culpable homicide not amounting to murder" has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these Sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the Keywords used in the various Clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:

Section 299 Section 300 A person commits culpable homicide if Subject to certain exceptions culpable the act by which the death in cause is homicide is murder if the act by which the done- death is cause is done- (a) with the intention of ausing death; (1) with the intention of causing death; or or (b) with the intention of causing such (2) with the intention of causing such bodily bodily injury as is likely to cause death; injury as the offender knows to be likely to or cause the death of the person to whom the harm is caused; or (3) 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 NOWLEDGE (c) with the knowledge that the art is (4) with the knowledge that the act is so likely to cause death imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

Clause (b) of Section 299 corresponds with Clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him'' is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of Clause (2). Only the intention of causing the bodily injury coupled with the offender''s knowledge of the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this Clause. This aspect of Clause (2) is borne out by Illustration (b) appended to Section 300.

Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under Clause (2) of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow in likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the ease may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In Clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding Clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The work "likely" in Clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injure...sufficient in the ordinary course of nature to cause death" mean that death will he the "most probable" result of the injury, having regard to the ordinary course of nature.

For cases to fall within Clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala is an apt illustration of this point.

In Virsa Singh v. State of Punjab Vivian Bose, J. speaking for the Court, explained the meaning and scope of Clause (3). It was observed that the prosecution must prove the following frets before it can bring a case u/s 300 "thirdly". First, it must establish 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 injury, that is to say, that 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 enquiry 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 was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and nothing to do with the intention of the offender.

The ingredients of Clause "thirdly" of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows: (SCR pp. 1500-01)

To put it shortly, the prosecution must prove the following facts before it can bring a case u/s 300 ''thirdly''.

First, it must establish, 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 injlict that particular bodily injury, that is to say, that 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 enquiry 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 enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Therefore, we are not inclined to convert the offence from Section 302 IPC to Section 304 Part-I or Part-II of IPC. The case of the Appellant also does not fall within the exceptions. There was no provocation by the deceased and his brothers, much less there was a grave and sudden provocation by the victim. There is no sudden fight in a heat of passion, upon sudden quarrel between the victim and the accused. On the contrary, the Appellant-accused was aggressive. There was no weapon in the hands of the victim''s side persons. The Appellant-accused came at the house of the deceased. Thus, we are of the opinion that the case of the Appellant does not fall within any of the exceptions narrated u/s 300 IPC and therefore, also we are not inclined to reduce the sentence by converting the offence punishable u/s 302 IPC to Section 304 Part-I or Part-II of the IPC.

It is further contended by the counsel for the Appellant that the eyewitnesses are interested witnesses and therefore, their evidence ought not to be considered by the Court as the eyewitnesses have not tried to save the deceased and the independent witnesses have turned hostile. This arguments appears to be good but of no help to the Appellant-accused. Even if the witnesses are interested, it is not the law that their evidence ought to be discarded by the Court. All that dependts upon facts of the case. Looking to the present case, it appears that the Appellant with his brothers came at the house of the deceased. Thus, the Incident has taken place near the house of the victim side persons and therefore, the presence of brothers, of deceased at the house is natural. Moreover, the incident has taken place at 8.30 p.m. on 19th March 1999. Thus at this time, the presence of the brothers of the victim in their own house is natural one. Moreover, as per the Criminal Jurisprudence, whenever there is any interested witnesses who is giving deposition, the Court has to view his evidence with all circumspections. We have perused the evidences given by P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6 and their cross-examinations also. Looking to their evidences, it appears that there is no omission or contradiction in their depositions. Moreover, the FIR is lodged immediately. The name of the Appellant-accused is given in the FIR. Role played by the Appellant-accused was also given in the FIR. Moreover, there is corroboration by the medical evidence given by P.W.7 and also looking to the evidence of the Investigating Officer (P.W.11 & 12), who has recovered bloodstained earth and drawn inquest Panchanoma, it appears that there is enough corroboration to the deposition of the eyewitnesses.

It has also been argued by the Appellant-accused that the prosecution has failed to prove the place of occurrence. This contention is also not accepted by this Court as looking to the evidence given by P.W.11, it appears that there was profuse bleeding oh a village road, just opposite to the house of deceased. It has been stated in the FIR that the accused started beating the deceased Taimuddin Sheikh and this beating and abusing is taken place initially and thereafter head injuries was caused by present Appellant-accused. FIR was registered at the hospital. The Investigating Officer has recovered the bloodstained earth nearby the house of victim. Thus, the fact remains that the present-Appellant with his brothers came at the house of victim with a heavy sharp cutting weapon Farsa. Evidence of the ocular witnesses also shows that the present Appellant-accused caused head injuries upon Taimuddin Sheikh and as per the medical evidence,-this injury is fatal in nature, which was sufficient in ordinary course or nature to cause death of the deceased. Therefore, we are not inclined to give any benefit to the Appellant-accused on the ground that bloodstained earth was found from a village/country road near the house of victim.

Thus, looking to overall evidences on record specially the depositions of eyewitnesses, P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6, which are supported by the medical evidence given by Dr. Ram Jeevan Prasad (P.W.7), it appears that no error has been committed by the learned trial court in concluding that the Appellant-accused has committed murder of deceased Taimuddin Sheikh. Looking to the evidences on record, prosecution has proved, beyond reasonable doubts, the Appellant-accused has caused the murder of deceased.

In view of these evidences, this appeal has no substance. Hence, the same is hereby dismissed.