SALEEM KHAN Vs. STATE OF J&K

JUDGEMENT

(1.) THROUGH this appeal, accused have challenged the judgment dated 26.6.96 passed by the Sessions Judge, Srinagar whereby he has convicted accused -1 (Saleem Khan) under section 302 Ranbir Penal Code (hereafter shortly RPC) and sentenced him to undergo imprisionment for life. Accused -2 (Gulzar Khan) has been convicted under section 323 RPC and sentenced to undergo imprisionment already undergone by him while in custody. The accused are father and son. Deceased Showkat Ahmad was accused Gulzar Khans sisters son. The mother of the deceased had been living alongwith her family members in her parental house as her mother had given a share in that house. In this house court -yard and the bath room 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 PM, 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 Ahman Khan to vacate the bathroom 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 PW 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 case to the Sessions court. Sessions Judge, Srinagar after holding the trial held the accused guilty and convicted and sentenced them as stated above. 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 occurence 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 Sa|eem 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 sec.304 Part -ll RPC was made out and not under sec.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.

(2.) THE trial Judge has also made reference (Cr. Ref.No.6/96) for confirmation of the conviction and sentence of accused Saleem Khan under section 302 RPC. We heard the counsel for the parties and perused the record. Mr. S.T.Hussaln, the learned counsel for the accused at the outset has contended that the radiological age of accused saleem Khan at the material time was between 17 and 18 years which under law can also be deemed between 15 and 16 years. The trial should have been conducted under the provisions of The Children Act. He could not be convicted and sentenced to life impriosnment. This argument has been countered by Mr. Bhat by submitting that the accused in his statement under section 342 Cr.P.C. had admitted his age to be 16 years and in view of this admission there remains no scope for fixing his age at 15 years. He also contended that the accused is a student and his age could be verified from the school record which he could produce in support of his plea. He did not produce any certificate either from the Birth register or from "Chowkidara Register". Trial Court, on the available evidence, decided that he was not a child. The accused did not challenge this finding of the court during the trial. Now it is too late in the day to raise such a factual controversy which was settled by the trial court at the appropriate stage and within the statutory powers vested in it by the Children Act. This finding of fact arrived at by the trial court on the basis of evidence cannot be upset on guess work or presumption to be drawn on the opinion of Radiologist. In other -words, there is no medical evidence of clinching nature which establishes the age below 16 year. The argument of Mr. Hussain is devoid of any merit and as such does not hold good. The 2nd limb of the argument of Mr. S.T.Hussain is that the prosecution has failed to establish from the evidence that the accused Saleem Khan had Intention of causing such bodily Injury which was sufficient In the ordinary course of nature to cause the death of deceased. In the absence of any intention to cause the fatal Injury, he could not be said to have committed offence u/s 302 RPC. In support of his contention, he cited the decisions of Virsa Singh V/S State of Punjab (AIR 1958 SC 465) and of R.vs. Wallett (The All England Law Reports 1968(2)(296). He contended that the facts of the present case are similar to the facts of the case of Tholan vs. State of Tamil Nadu (1984) 2 SCC 133) where the accused was convicted and sentenced under Sec.304 Part -II RPC. Concluding his submissions, learned counsel contended that the macabre incident took place between the cognates at the spur of moment, therefore, the accused Saleem Khan cannot be said to have acted in a cruel manner. He is entitled to the benefit of exception 4 to Sec.300 and can be said to have committed an offence under section 304 Part -II RPC.

(3.) ON the other hand, Mr. Bhat the learned counsel of the complainant contended that the accused has rightly been convicted under Sec.302 RPC because the injuries were inflicted by him on the vital part of the body of the deceased and one of them proved fatal. The accused had not simmered down by causing one injury but successively caused the second and any of these could be that which is singular in rupturing the lung which organ is so vital that any injury to it is irreparable and resultant death is inevitable as has happened in the instant case. The site and the nature of the injuries are pointers for drawing the inference that the accused had the requisite intention of causing the death. To buttress his contention, he cited the decision of Jarnail Singh vs. State of Punjab (AIR 1993SC 72), State of U.P. vs. Roop Singh (AIR 1996 SC 215), Bai Dhankor vs. Emperor (AIR 1937 Bombay 148) and Dharma vs, Nirmal Singh Bittu (AIR 1996 SC 1136). Before appraising the respective contentions of the learned counsel appearing for the parties, it has to be borne in mind as broad guide -lines that "culpable homicide" is genesis and murder its specie. All "Murder" is culpable homicide" but not vice versa. Ranbir Penal Code recognises three degrees of culpable homicide. The first is defined in section 300 and it is murder. The second is culpable homicide not amounting to murder punishable under the first part of section 304. Then, there is culpable homicide of the Third degree punishable under the second part of sec.304. The problem has to be approached in three stages. The question to be considered at the first stage would be whether accused has done an act by doing which he has caused death of another. Proof of such casual connection between the act of the accused and the death leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in section 299. If the answer to this question is prima -facie found in the affirmative, the stage for considering the operation of section 300, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in section 300. If the answer to this question is in the negative, the offence would be "culpable homicide not amounting to "murder", punishable under the first or second part of section 304, depending respectively, on whether the second or the third clause of section 299 is applicable. If this question is found in the positive but the case comes within any of the exceptions enumerated in section 300, the offence would still be "culpable homicide" not amounting to "murder", punishable underthe first part of section 304 RPC.