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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Bhawani Singh,Syed Bashir-ud-Din, JJ.
Sabir Hajam & Anr. - Appellant
Versus
State - Respondent
Cr. Appeal No. 6/1985
Decided On : 21 October, 1999
CRIMINAL LAW - CULPABLE HOMICIDE NOT AMOUNTING TO MURDER - SECTION 304, INDIAN PENAL CODE - UNLAWFUL ASSEMBLY - SECTION 149, INDIAN PENAL CODE - EVIDENCE - APPRECIATION OF EVIDENCE - SECTION 323, INDIAN PENAL CODE - SENTENCING - REDUCTION OF SENTENCE.
Fact of the Case:
Accused Gani Hajam and Sabir Hajam were convicted and sentenced to 10 years rigorous imprisonment under Section 304-I, RPC. Three accused Gulla Hajam, Ali Hajam, and Rashid Hajam were convicted and sentenced to one year simple imprisonment under Section 323, RPC, and accused Nazir Hajam was acquitted. The State filed a criminal appeal against the acquittal of Nazir Hajam and the conviction and sentence of the other accused.
Finding of the Court:
The court upheld the conviction of accused Sabir Hajam under Section 304, RPC, for culpable homicide not amounting to murder. The court found that the accused had struck the deceased on the head with a stick, causing his death. The court also upheld the conviction of accused Gulla Hajam, Ali Hajam, and Rashid Hajam under Section 323, RPC, for voluntarily causing hurt to the deceased's son. However, the court acquitted accused Nazir Hajam of all charges.
Issues: 1. Whether the evidence was sufficient to support the conviction of accused Sabir Hajam under Section 304, RPC, for culpable homicide not amounting to murder? 2. Whether the evidence was sufficient to support the conviction of accused Gulla Hajam, Ali Hajam, and Rashid Hajam under Section 323, RPC, for voluntarily causing hurt? 3. Whether the evidence was sufficient to support the acquittal of accused Nazir Hajam of all charges?
Ratio Decidendi: 1. The court found that the evidence was sufficient to support the conviction of accused Sabir Hajam under Section 304, RPC, for culpable homicide not amounting to murder. The court relied on the testimony of eyewitnesses who saw the accused strike the deceased on the head with a stick, causing his death. The court also relied on the medical evidence, which confirmed that the deceased had died as a result of the head injury. 2. The court found that the evidence was sufficient to support the conviction of accused Gulla Hajam, Ali Hajam, and Rashid Hajam under Section 323, RPC, for voluntarily causing hurt. The court relied on the testimony of eyewitnesses who saw the accused beat the deceased's son. The court also relied on the medical evidence, which confirmed that the deceased's son had sustained injuries as a result of the assault. 3. The court found that the evidence was sufficient to support the acquittal of accused Nazir Hajam of all charges. The court relied on the testimony of eyewitnesses who stated that Nazir Hajam was not involved in the assault on the deceased or his son.
Final Decision: The court upheld the conviction of accused Sabir Hajam under Section 304, RPC, for culpable homicide not amounting to murder, and reduced his sentence to four years and one month rigorous imprisonment. The court also upheld the conviction of accused Gulla Hajam, Ali Hajam, and Rashid Hajam under Section 323, RPC, for voluntarily causing hurt. The court dismissed the State's appeal against the acquittal of accused Nazir Hajam.
2. Both the appeals shall be governed by this common judgment, since same questions of fact and law, are involved in both the appeals.
3. The prosecution case in brief is :-
On 8-4-1983, in Hariparigam, a village of Tehsil Tral, accused were digging soil for planting trees-saplings across the road near the shop of the deceased Gani Rather (more specifically described and referred to in siteplan Exp. 8), prosecution witness Abdul Rashid Rather a lawyer by profession, happen to pass by this spot. He was conducting a case on behalf of Mst. Freechi, Khati and others, against the accused regarding this land covered by a status quo order issued by the Court in the pending suit. He asked accused what they are doing when the case is pending and status quo order is in force. The accused took it ill. One of the accused caught him by hair and the other accused tried to floor him. In the meanwhile, his father Gani Rather, arrived on spot. He caught his son by arm and took him aside. He admonished and told him to pursue case and take legal action against them in the Civil Court at Tral. This further angered the accused. Sabir Hajam and Gani Hajam struck Gani Rathers head with Danda blows. Gani Rather fell on the ground and became unconscious. Abdul Rashid with the help of his brother, relations and other witness lifted and laid him on the shop-varenda, local Doctor was send for, who on examination of this patient advised them to get the service of the Doctor posted at Tral. In the meanwhile, Police also reached the spot. Gani Rather, was brought in a taxi to Awantipora, where Dr. Fayaz Ahmad Khan (PW 17) examined him and advised his attendants to carry him to Srinagar, after taking note of the serious condition of the patient. He was taken to SMHS Hospital, Srinagar, in unconscious state with the head injuries. He was hospitalised, but as his condition deteriorated, he died next day on 9-4-1983 at 1 p.m. The police had registered the case as FIR 43/83 at Police Station Awantipora, after the deceaseds brother Wali Mohd. Rather, lodged FIR (Ex-PS). The investigation were launched, injury report was prepared, medical reports were obtained, dead body was subjected to post-mortem. The autopsy report-Ex. P7 was collected. The site plans Ex. P9 and Ex. P8 were prepared. Statements of witnesses have been recorded under Section 161, Cr.P.C. The Dandas (sticks) weapon of assault, were also recovered and seizure memo thereto prepared. Other investigative steps were also taken. The investigation culminated in sending accused for trial under Sections 302/149. RPC. The challan was produced before the Judicial Magistrate, Tral. The case was committed to Sessions for trial. The Sessions Judge, Pulwama frame charges against the accused un
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