SALEEM KHAN Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) Through this appeal, accused have challenged the judgment dated 26-6-1996 passed by the Sessions Judge, Srinagar whereby he has convicted accused-1 (Saleem Khan) under S. 302, Ranbir Penal Code (hereafter shortly RPC) and sentenced him to undergo imprisonment for life. Accused-2 (Gulzar Khan) has been convicted under S. 323, RPC and sentenced to undergo imprisonment already undergone by him while in custody. The accused are father and son. Deceased Showkat Ahmad was accused Gulzar Khan'a sister's son. The mother of the deceased had been living along with her family members in her parental house as her mother had given a share in that house. In this house courtyard and the bathroom were being shared jointly by the members of her family and that of her brother accused-2. Abdul Rehman Dar is the father of the deceased. On 24-5-1990, curfew was clamped in the city of Srinagar whereby free movement of the inhabitants was restricted. At about 7-30 p.m.. while Javid Ahmed Khan (son of accused Gulzar Khan) was washing his clothes in the said bath room, deceased felt the necessity of performing his ablutions for evening prayers. He made entreaties to Javid Ahmad Khan to vacate the bath room but all fell on deaf ears. The accused watched this incident closely, but became enigmatic when they could not keep their countenance and in most petulant manner came out from the room and pounced upon the deceased. They started thrashing him soundly for daring to be cheeky towards their kith and kin. Meanwhile, father of the deceased namely, Abdul Rehman Dar hastened to reach there and with the help of some persons succeeded in ending this brawl. Accused Saleem Khan immediately made his way into the kitchen and immediately re-appeared on the spot brandishing a knife in his hand. He inflicted two knife blows on the deceased. One landed on his back and the other on the chest. The third injury was intercepted by Ghulam Hassan Malla son of Mohd. Sadiq P. W. and got his hand injured. The deceased was taken in an injured condition to the Saddar Hospital, Srinagar where after two hours he succumbed to the injuries. After investigation, the police submitted the final report before the Magistrate who committed the case to the Sessions' Court. Sessions Judge, Srinagar after holding the trial held the accused guilty and convicted and sentenced them as stated above.

(2.) The judgment of the learned Sessions Judge has been assailed on the grounds that the accused Saleem Khan could not be convicted and sentenced to life imprisonment as he was a child when the occurrence took place. The trial Judge got him medically examined and his radiological age was opined between 17 and 18 years. There is variation of two years on either side in this estimation. This way, the age could be between 15 and 16 year also. The finding is erroneous when the trial Judge concluded that accused had failed to prove his minority. Injury No. 4 in the post-mortem report has been described fatal but it was never intended by accused Saleem Khan. In all probability it was fortuitous. The prosecution has failed to prove that this injury was sufficient in the ordinary course of nature to cause death. In these circumstances, offence falling under S. 304, Part II, RPC was made out and not under S. 302, RPC. It is also submitted that there is no evidence on the record to prove offence u/S. 323, RPC against accused Gulzar Khan.

(3.) The trial Judge has also made reference (Cr. Ref. No. 6/96) for confirmation of the conviction and sentence of accused Saleem Khan under S. 302, RPC.