1. Above noted death reference along with appeal is directed against the judgment of conviction and order of sentence dated 23rd July, 2010 and 2nd August, 2010 respectively passed in Sessions Trial No. 4 of 1999 by the learned Additional Sessions Judge, F.T.C No. V, Buxar by which the appellant has been awarded death sentence for the offences punishable under Section 302 of the Indian Penal Code.
2. The deceased Mohd. Yusuf has given his fardbeyan on 29.4.1996 at 1.00 A.M in the morning at the Referral Hospital, Sahpur alleging therein that Md. Fakhruddin, Md. Kasim and Md. Hasim had come to his door for marriage negotiation of the nephew of Md. Fakhruddin. Md. Hasim and Md. Kasim are the nephews of Md. Fakhruddin. They were talking very loudly and during the talks, Md. Hasim and Md. Kasim began to use abusive language. The informant along with his brother protested which led Md. Fakruddin to take out a dagger from his pocket and assault Md. Yusuf in the stomach. It is also alleged that Md. Kasim had assaulted Md. Yusuf. Sahabuddin was assaulted by Fakhruddin on the chest by a dagger and Md. Hasim assaulted Sahabuddin by lathi on his head. The victim Md. Yusuf was taken for treatment to the Referral Hospital, Sahpur where his fard beyan was recorded and thereafter, he was referred to the Hospital at Arrah. The doctor at Arrah referred him to P.M.C.H, Patna, where he succumbed to his injuries. For the same occurrence, Sahabuddin has also given his fard-beyan which is Ext.-3. According to the version of Md. Sahabuddin, which is similar to the version given by Md. Yusuf, he was given a dagger blow on his neck. Both Md. Yusuf and Md. Sahabuddin have specifically stated that the marriage negotiation was taking place at the door of Md. Udhani (PW 4). It has also been alleged that the appellant was disturbed in the midst of the talks and when he protested, the said occurrence took place.
3. The fard-beyan of the deceased resulted in the registration of Brahampur PS. Case No. 65 dated 29.4.1996 under Sections 497, 323, 324, 307/34 of the Indian Penal Code and after death of the informant, Section 302 IPC was added vide order dated 10.5.1996 The police after investigation submitted charge sheet. Accordingly, cognizance was taken and the case was committed to the Court of Sessions, where the charge were framed and explained to the appellant to which he pleaded his innocence and claimed to be tried.
4. In this case, altogether 8 witnesses have been examined. PWs 1, 2 and 3 claimed to be the eye-witnesses whereas, PW 4 Md. Udhani, PW 5 Moharram, PW 7 Md. Kalam have been declared to be hostile, PW 6 is Ajay Kumar Singh who was the Officer Incharge of Brahampur Police Station when the occurrence took place and PW 8 is Dr. Laliteshwar Prasad Jha, who examined the deceased initially at Sahpur Hospital where the appellant was taken for treatment. The post mortem report has been formally proved but the doctor has not been examined in this case.
5. The court below, after considering the evidence brought on record, held the appellant guilty and the passed the impugned judgment of conviction and awarded the death sentence.
6. Now, this Court will examine as to whether a case has been made out by the prosecution to impose death sentence against the appellant. While doing so, this Court will appraise the evidence and the medical report which has come on record and also examine whether the statement of the deceased Md. Yusuf and subsequent statement of Md. Sahabuddin (Exts. 3 and 4) is corroborated by the evidence which has come during trial.
7. PW 1 Md. Asmuddin, agnate (brother) of the deceased Md. Yusuf and Md. Sahabuddin, claims to be an eye-witness to the occurrence. This witness has stated that negotiation of marriage, was taking place at the door steps of Udhani. In the mean time, the appellant is said to have come out from his house and asked them not to create a noise, which led to a hot exchange of words, resulting in Hasim and Kasim assaulting Yusuf, the deceased, by means of a rod. He further alleges that Md. Fakhruddin inflicted a Chura blow on the stomach of Md. Yusuf due to which he fell down. In the cross-examination, he has tried to establish that the occurrence took place at the house of Md. Udhani and none of the parties were in a intoxicated stage, so as to lose their mental balance and commit the said crime. This witness has stated specifically that it was moonlit night and also substantiated the fact that when the Investigating Officer visited the place of occurrence he did not find any blood at the place of occurrence.
8. PW 2 who claims that he is the nephew of Md. Yusuf and Md. Sahabuddin has stated almost the same facts as those stated by PW 1 regarding the manner of occurrence. It has been stated by this witness that the police came to the place of occurrence on 1.5.1996 He has also substantiated the fact that the parties were not in intoxicated state on the date and time, when the occurrence took place. In paragraph 17 of his evidence, he has stated that he was not involved in exchange of hot words; therefore, he was not injured. This witness also specifies that the talk of marriage was taking place at the house of Udhani, which is where the occurrence is said to have taken place.
9. PW 3 Md. Sahabuddin, the brother of Md. Yusuf supports the case that he has made out as per Ext. 3, except that he has stated in his evidence before the court that he received injuries on his chest. He proved Ext.-2 which is his own statement. This witness has stated that he took Yusuf first to Referral Hospital from where he was taken to the hospital at Arrah and then to the PMCH at Patna. In cross-examination, this witness has specifically stated that there were exchange of hot words, and initially there was no assault by any of the parties. Ten other people of the village were present when Yusuf received injury at his door step. Apart from these facts, nothing else was elicited from this witness.
10. As stated earlier, Md. Udhani (PW 4) who has been declared hostile has stated that, he knows nothing about the occurrence and he has not given any statement before the I.O who has specifically stated that when he went to the place of occurrence he did not find any blood stains or anything unusual at the place of occurrence.
11. This Court cannot doubt that an occurrence had taken place which led to the death of Md. Yusuf, in view of the dying declaration. But it is also clear from the evidence that the incident which took place was not pre-medicated. The assault was as a result of exchange of hot words, as a result of the fact that the informant and his brother were making a noise, which led to a protest resulting in the assault. The question before this Court is whether the Court below was justified in convicting the appellant under section 302 I PC and awarding death sentence.
12. This aspect will be tested by considering the injury/post mortem report. Injury report of Md. Sahabuddin indicates that he received incised wound near the shoulder on the scalp and in front of his chest. While the injuries have been described as simple in nature being hardly two incised wound varying from 1″ × ¼ × ¼″, 1″ × ¼″ × ¼″ and ¾ × ¼″ × ¼″ on front of chest. The injury report of Md. Yusuf is even still more disturbing inasmuch, it does not indicate that the injury was of such a nature which would lead to death. This injury report has been prepared by the Dr. Laliteshwar Prasad Jha (PW 8) on 28.4.1996 at 11 P.M He has described the injury of Md. Yusuf as incised wound 1 ½″ × ½″× abdominal cavity. He has further given his opinion that ‘The patient was very restless and referred to Sadar Hospital, Arrah for opinion and management. So nature of injury is reserved.” He has been cross-examined on the point regarding whether the injuries could be declared to be simple or grievous. He has mentioned that he has not recorded this aspect in his injury report. He has not recorded the type of injury or colour of the injury.
13. In this context, post mortem report which is Ext. 6 may also be taken into account. We may observe here that the doctor who conducted the post mortem examination has not been examined in this case. It has merely been formally proved. The post mortem report indicates that there was one stitch wound 7” in length on right side of abdomen, one stitch wound of 1” in length, 4” right to umbilicus and 2” above right. The last two injuries have been attributed to corrugated rubber drainage which was inserted in the abdomen. On dissection of the abdominal cavity, it was found that it was filled with ‘pus’. The doctor submitting the post mortem report has not given any opinion with regard to the cause of death, rather he has stated that the opinion may be taken from the surgeon concerned. The surgeon concerned has not been examined.
14. On perusal of the oral evidence as well as the medical evidence, this Court finds that an occurrence had taken place, in which there were exchange of hot words between the deceased Md. Yusuf, Sahabuddin and the appellant which led to the said assault. The nature of injury indicates that there was only one small cut injury on the stomach measuring 1″ × ½″ which in normal circumstance cannot lead to death. The fact that the doctor conducting post mortem examination has not given any opinion regarding the cause of death, rather he has referred the matter to the surgeon, who was treating the deceased indicates that in fact, the cause of death could not be determined in this case. On the other hand, the fact that the doctor conducting post mortem found the stomach filled with pus indicates that the injury by itself could not have been cause of death. In any event, this Court has to consider this aspect in relation to the doctor's opinion. Since the cause of death has not been determined in this case, there could be no justification for the lower court, to have in the facts of this case awarded a death sentence as this case does not come within the framework as laid down by the Supreme Court, for inflicting the death sentence.
15. In the case of Macchi Singh v. State of Punjab, (1983) 3 SCC 470 : AIR 1983 SC 957, the Apex Court laid down certain principles which justify the imposition of death sentence. The principle enumerated below have taken into account. The judgment delivered in Bacchan Singh v. State of Punjab, (1980) 2 SCC 684 The Apex Court has taken into account some of the circumstances which justify the imposition of the death sentence: (a) Manner of commission of murder-“when the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community”, (b) the motive for committing the murder such as, if it is committed in cold blood or by hired assassin (c) Anti-social or socially abhorrent nature of the crime (d) Anti Social or social adherent nature of crime; such as if it is aimed at terrorizing a member of the schedule caste or a minority community (e) Magnitude of crime (f) Personality of victim of murder; such as a helpless child or woman.
16. In Bacchan Singh's case (supra) the principles culled out, which have to be applied in individual cases, are “(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability, (ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’, (iii) Life imprisonment is the rule and death sentence is an exception., (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between aggravating and the mitigating circumstances before the option is exercised.
17. The facts of this particular case, leads this Court to the conclusion that the circumstances surrounding the occurrence indicate that it was not a preplanned or brutal murder, in fact it took place at the spur of the moment. There was no motive to commit the murder and it would amount to perversity in law if the court was to confirm the death sentence.
18. This Court not only found that this is not a case in which death sentence could have been imposed on the appellant, rather this is a case where the court may not conclude that a case is made out under Section 302 IPC, so as to impose punishment of life sentence on the appellant. The reasons for coming to this conclusion are that the manner of occurrence indicates that there was no motive or animosity and that the occurrence took place on the spur of moment, when there was hot exchange of words, between the parties which led to an injury which in normal circumstance cannot be described to be of such a nature as to cause death. The fact that the injury was not repeated, coupled with the fact that the Investigating Officer came to the conclusion that there was no blood at the spot, which would indicate the seriousness of the injury inflicted, leads this Court to reach the conclusion that utmost the case would come under the purview of Section 326 of the lndian Penal Code only, which envisages Voluntarily causing grievous hurt by means of an instrument for shooting, stabbing or penetration of any instrument used as a weapon which is likely to cause death. This Court in the facts and circumstances of the case, therefore, concludes that the appellant is liable to be convicted under Section 326 of the Indian Penal Code for Voluntarily causing grievous hurt. In view of the discussions made above, the conviction of the appellant under Section 302 of the Indian Penal Code is altered to Section 326 of the Indian Penal Code and accordingly, the sentence awarded to the appellant is modified to the extent of period undergone by him, which in the opinion of this Court is sufficient, for the ends of justice.
19. In the result, the death sentence is answered in negative and this appeal is dismissed with the modification in the conviction and sentence as indicated above. The appellant is reported to be in custody, he is directed to be released forthwith if not wanted in any other case.
Shyam Kishore Sharma, J.:— I agree.
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