Jammu & Kashmir High Court – Srinagar Bench
State Of J&K Through Ssp Anantnag vs Sabzar Ahmad Sofi on 30 July, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRAA No.12/2006 IA No.07/2010[46/2010]
Reserved on:10.07.2025
Pronounced on:30.07.2025
State of J&K through SSP Anantnag ... Appellant(s)
Through: Mr. Abdul Rashid Malik, Sr. AAG with
Mr. Mohd Younis Hafiz, Assisting Counsel.
Vs.
1. Sabzar Ahmad Sofi
2. Tanveer Ahmad Sofi
(Sons of Mohd Yousuf Sofi)
3. Mohd Yousuf Sofi
4. Gull Sofi
(Sons of Ama Sofi)
All residents of Jablipora Tehsil Kulgam,
District Anantnag.
...Respondent(s)
ent(s)
Through: Mr. H. Furrahi, Advocate
Mr. S. T. Hussain, Sr. Advocate with
Ms. Nida Nazir, Advocate for Complainant.
CORAM:
HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR JUSTICE SANJAY PARIHAR, JUDGE
JUDGEMENT
‘Sanjay Parihar (J).
1. This Acquittal Appeal is laid against the judgement dated
05.03.2005 (for short the ‘impugned judgement’) passed by the learned
Sessions Judge Anantnag, (for short the ‘trial court’) in Criminal
Challan No. 1B/60 Sessions, arising out of case FIR No.149/2001,
under Sections 302/34 RPC of Police Station Bijbehera, in terms
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whereof the respondents stood acquitted of the charge of offences
under Sections 302/201/34 RPC, which judgement is questioned on the
premise that the trial court finding is erroneous, as it has wrongly
appreciated evidence examined during the trial and has given benefit of
doubt to the respondents only on the ground that there were
contradictions which, however, were of minor in nature and did not
prove fatal for the prosecution. That the trial court has failed in
appreciating the evidence of the prosecution particularly of PW-2 Sher
Ali Khan, PW-3 Akbar Ahmed Khan, and PW Gh. Qadir, who clearly
had established that it was respondent No.2 (Tanveer Ahmad) who had
given a spade blow to the deceased on his head, whereas, respondent
No. 1 (Sabzar Sofi) gave spade blow to the deceased on his back. All
the witnesses have unanimously corroborated the incident, but the trial
court has misdirected itself while holding that there was no
corroboration in the deposition of the witness. The trial court has also
failed to consider testimonies of the independent witnesses i.e. PW-7
Mohd Ibrahim and PW-6 Mushtaq Ahmad Pandit, who had established
the involvement of the respondents in the crime which occurred on
18.06.2001. That, the judgement is erroneous because all the
circumstances relevant to the prosecution are sufficient enough to
fasten liability on respondents, as they have not been considered and
appreciated.
2. Briefly stating facts giving rise to the filing of present Appeal
have got its genesis in the incident dated 18.06.2001, when deceased
Ghulam Hassan Khan had gone to his paddy fields where he started
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blocking water channel leading to the paddy fields of the respondents,
which process of blocking of water channel lead to an altercation,
whereby it is alleged that the accused who were armed with agricultural
appliances i.e. shovel (Liven/ Belcha and Dandas) beat the deceased
with intention to kill him, and because of that beating, the deceased
suffered fatal injuries who was first taken to home, thereafter to nearby
Hospital at Bijbehera, from there to SKIMS Srinagar, where on
19.06.2001 he succumbs to the injuries.
3. Initially FIR under Section 307 RPC was registered and on his
demise, same was converted into Section 302 RPC. The autopsy was
conducted by a team of doctors and the report was laid against the
respondents. On the strength of complaint lodged by PW-1 Ama Khan
(father of deceased), it was alleged that the incident was perpetuated by
accused Sabzar Ahmad Sofi, Tanveer Ahmad Sofi, Yousuf Sofi and
Gul Sofi, who were arrested on 26.06.2001, and during investigation, it
was found that all the accused, with a common intention to commit
killing of the deceased, had given him beating in the manner that
accused Sabzar Ahmad Sofi gave blow of spade (Liven) over the head
of the deceased causing grievous injuries and because of that impact he
fell down, thereafter the other accused beat him with other agricultural
appliances (Belcha and Dandas), later on, the’Liven’ was recovered at
the behest of the accused. During autopsy it was revealed, that the
deceased had died because of head injury caused by hard object (not
sharp edged) which had led to the fracture of skull bone and also led to
collection of blood in the brain leading to damage of vital parts.
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4. The formal charges were laid against the respondents for
offences under Sections 302/34/201 RPC to which they pleaded not
guilty.
5. The prosecution examined complainant (father of the deceased),
PW-2 Sher Ali Khan, PW-3 Akbar Ahmad Khan, (both sons of the
deceased) PW Gh. Qadir Zargar (brother-in-law of the deceased), PW-5
Gh. Qadir Parray, PW-6 Mushtaq Ahmad Pandit, PW-7 Mohd Ibrahim
Bhat, PW-9 Gh. Mohi ud din Wagay, PW-11 Ashiq Iqbal, PW-12
Mohd Khalil Sofi, PW-16 Constable Mohd Younis, PW-17 Dr.
Manzoor Hussain Wani, PW-19 Dr. Nissar Ahmad, besides, Inspector
Farooq Ahmad Reshi.
6. After recording of evidence and in terms of Section 342 Cr.PC,
the incriminating evidence was put to the respondents, to which they
replied that the prosecution has produced only interested witnesses,
whereas, the other independent witnesses have not corroborated the
version of interested witnesses. They are innocent and have been
falsely implicated. In defence, the respondents examined DW-1 Mohd
Sultan Bhat, DW-2 Gh. Hassan Sofi and DW-3 Hassan Parray.
7. The trial Court, after examining the evidence and the law cited at
bar, returned the finding of acquittal holding that PWs 1, 2, 3 and 4 all
were interested witnesses, whose presence at the scene of crime was
doubtful, inasmuch as, these witnesses had made exaggeration which is
contrary to the medical record. They have also shown partisan character
thus, their testimony is full of doubt, even testimonies of independent
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witnesses were also doubtful. Similarly, narration of PW-9 Gh. Mohi
ud din Wagay is also contrary to the charge sheet.
8. Insofar as the evidence relating to discovery of weapon of
offence was concerned, there too the trial court found that identity of
weapon of offence has not been clarified and the nature of weapon of
offence being ordinary agricultural appliances which were commonly
available, and, therefore, it was difficult to hold or presume that any
weapon was used by the respondents in commission of the incident. It
therefore, found that the prosecution case is full of discrepancies and
improvement and it has failed to clear the doubt, whereas, the defence
witness had clearly qualified that the deceased was a short tempered
person who had an altercation with the respondents but was stopped by
his two sons, and that no quarrel or fight took place between the
deceased and the accused. Accordingly, the trial Court has proceeded to
record finding of acquittal in favour of the respondents.
9. The main limb on which the finding of acquittal is questioned by
the appellants relates to, that the trial court has misdirected itself by not
properly appreciating the testimonies of PW-2 Sher Ali Khan, PW-3
Akbar Ahmed Khan and PW Gh. Qadir. It had made mountain out of
minor contradictions which led to rendering a finding which on the face
of it is perverse, its findings being erroneous does not sustain in the
eyes of law.
10. It is relevant to state here that the complainant had also engaged
a counsel who too had submitted arguments in rebuttal to the acquittal
earned by the respondents/accused. It was argued that even from the
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defence version the incident dated 18.06.2001 is proved and once there
was presence of four respondents at the scene of crime and where
altercation took place resulted into death of deceased, there was no
reason to disbelieve the prosecution case merely because PWs 1 to 4
happen to be close relatives of the deceased, would not have made their
testimonies unreliable when all the four withstood the cross
examination and defence had not been able to impeach their
testimonies. The trial court has led importance to discrepancy in the
weapon of offence of spade and lathi which were immaterial.
11. On the other hand, supporting the findings returned by the trial
court, the learned counsel for the respondents contended that, even if
there was altercation on spot but, there is not any clenching evidence
that the respondents have committed any act of inflicting fatal injury on
the deceased. The testimonies of witnesses are full of exaggeration.
Had there been the incident, then the deceased would not have received
a single blow as is stated by the Medical Officer which belies the
prosecution version of four respondents who were able bodied persons
of having inflicted any murderous assault. It was further argued that the
trial court has minutely gone through the evidence thus, the finding
returned by it does not call for any interference.
12. We have learned counsel for the parties and have gone through
the original record of the trial court.
13. Before proceeding ahead, we would like to give brief description
of testimonies of Prosecution Witnesses: –
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PW-1 Ama Khan, happens to be the father of the deceased, who
is found narrating that he saw the incident when accused Mohd
Yousuf Sofi gave a ‘Liven’ (agricultural appliance) blow on the
head of the deceased, whereas, co-accused Sabzar Sofi gave
another blow with that very nature of weapon on the waist of the
deceased. He claimed to have reached on spot after hearing
noise. He further admitted that Mst. Fatima, Mst. Zeba, and Mst.
Zaitooni were also accompanying the deceased when he went
towards fields for agricultural work. Witness claimed to have
been told by one child about the incident and thereafter he rushed
to the spot. On 19.06.2001 he presented an application to the
Police. This witness when confronted with the statement given
under Section 161 CrPC had found narrating that he did not
divulge to the police that he was the first to reach on spot. When
asked had he himself witnessed the occurrence, he avoided the
answer. He is further found stating that he saw blood oozing
from the head and waist of the deceased, and the clothes of the
deceased got blood stains. He further has narrated that after
being hit by ‘Liven’ the deceased fell down and other accused,
armed with sticks beat the deceased damaging arms and legs.
PW-2 Sher Ali Khan, happens to be son of the deceased,
claimed that he was present at the scene of crime when his father
was planting paddy saplings, when the accused came and beat
his father in the manner Yousuf Sofi gave spade hit on his head,
whereas other gave hit on waist and thereafter beat him with
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sticks. He and his brother Akbar Ali Khan were not allowed tocome forward in defence of their father. On cross examination,
he had admitted that he was at Bijbehera in connection with
some work and at 8:15 PM he had come back from Bijbehera.
PW-3 Akbar Ahmed Khan, happens to be another son of the
deceased, claimed that his father was working in the agriculture
field and while closing the water channel, the accused objected
to it, which gave rise to some altercation with Yousuf Sofi, who
gave spade hit on the head of the deceased with the result
deceased fell down there. PW-6 Mushtaq Ahmad Pandit came
and caught hold of the spade which resulted into blade of the
spade felling on one side whereas, the handle remained in the
hands of said witness. Sabzar Sofi also gave blow with spade. On
cross examination, has stated that though on that day he was with
his father in the morning but admitted that while he was playing
with boys at Jablipora, when in evening he heard the noise from
the land side where his father had gone for closing water
channel.
PW Gh. Qadir Zargar (Brother-in-law of the deceased)
claimed that his sister had gone with her husband to the paddy
fields, whereas the son of deceased was at home, when he went
towards the field of deceased there he saw accused assaulting the
deceased. On cross examination, he said that he was working in
PHE department and left office at 4:15 PM reached at the
occurrence at 5:30 PM. He further claimed that at the scene of
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crime, around 30 to 40 farmers were working in their respectivefields. He further stated that in the incident Mushtaq Ahmad tried
to snatch shovel (Belcha) from the hands of Yousuf Sofi.
PW-5 Gh. Qadir Parray is found narrating that in the morning
deceased and the accused had some altercation, both the parties
were armed with sticks. He did not allow the parties to fight and
asked them to leave. In the evening he came to be know that the
deceased had been given beating.
PW-6 Mushtaq Ahmad Pandit is found narrating that he was
working in his field when he saw accused Yousuf and deceased
quarrelling with each other. He intervened, Yousuf was having a
Belcha with him, he attacked deceased but the blow was
intercepted by witness, as a result Belcha was thrown away and
its handle remained in the hands of Yousuf. It was at that time
appellant Sabzar came who gave a blow of ‘Liven’ at the back
of head of the deceased. The deceased fell down in the mud
thereafter was taken to home. He claimed to have witnessed that
occurrence in evening time and admitted that when he snatched
shovel (Belcha) from accused Yousuf Sofi, its blade was thrown
away, whereas its handle (wooden part) remained in the hands of
Yousuf Sofi.
PW-7 Mohd Ibrahim is found narrating that at about 8 PM
while he was on his shop, one person came informing that
deceased had been beaten by someone and was lying
unconscious at home. He therefore went to house of deceased.
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There he told the former of deceased that he should be taken tothe Hospital. He saw swelling of head and was told that deceased
had been beaten. The deceased was first taken to his shop and
since his condition did not improve he was taken to Hospital.
PW-11 Ashiq Iqbal, is found narrating that police came along
with accused Sabzar Sofi and took him to his courtyard, where
he identified the place where underneath branches he had kept
spade Liven’ which was recovered regarding, which seizure
memo was prepared, which is in the nature of EXPW1/1. Three
days after the occurrence he went to the place where weapon of
offence was recovered in his presence. The recovery was signed
by Khalil Sofi. Whether the recovery was Liven or Belcha, he
did not remember but admitted that at the time of recovery of
weapon of offence Sabzar Sofi along with villagers was present.
PW-12 Mohd Khalil Sofi too is found narrating that Sabzar
gave recovery of ‘Liven’ kept underneath a heap of branches
from his courtyard. He too corroborated EXPW1/1. He says that
‘Liven’ and ‘Belcha’ are commonly used agricultural appliances,
that are kept at almost in every home, nobody can say with
certainty whether ‘liven or Belcha’ was the one that had been
used for the commission of offence.
PW-16 Constable Mohd Younis says that during investigation,
police recovered identity card of accused Sabzar Sofi regarding
which seizure was prepared as EXPW/8/1 and it was during
investigation that Sabzar Sofi gave clue about spade/liven with
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which he had given blow to the deceased and kept the sameunder the heap of branches of trees in his compound. The
recovery is exhibited as EXPW/16/1.
PW-Dr. Manzoor Ahmad Wani, happens to be a Medical
expert who found only one injury on the head of the deceased
which could be caused by blunt weapon, however, he did not
remember whether weapon of offence was shown. Injury found
over head of the deceased could also be caused if the victim had
a fall upon a hard object with considerable force. That because of
the injury there was subdural hemorrhage leading to collection of
blood and Haematoma because there was fracture of skull bone.
Deceased was brought in semiconscious position with swelling
on right parieto occipital region.
Defence Evidence:
DW-1 Mohd Sultan Bhat claims that there was quarrel between
the deceased and accused party. On 18.06.2001 at 5 PM when
Sabzar Sofi was working in his land, the deceased came there
and went to close the water channel leading towards the land of
the accused; which led to altercation, then children of the
deceased came who took him home. But, again at 6 PM deceased
came on spot and again started altercation, at about 8 PM when
the witness was working in field at that time he came to know
that the deceased had become unconscious who was taken to
shop of Mohd Ibrahim and then to the Hospital, he claims that he
Isaq Hameed Bhat heard that deceased became unconscious because of fall.
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DW-2 Gh. Hassan Sofi claims that he was collecting paddy
saplings, when at 6 PM there was quarrel between the accused
and deceased because the latter had blocked the water channel of
the accused party which led to altercation. The deceased was
short tempered and annoying everybody. His sister, daughter and
sister in law were also accompanying him when his two sons
came to took him back home, nobody gave any blow to the
deceased.
DW-3 Hassan Parray too has reported on the similar lines.
This in nutshell is the evidence of the prosecution
14. Before considering the case setup by the appellants in reversal of
the judgement of the trial court, it is apt to first have in view as to what
are the principles that ought to be considered by the appellate court
while hearing the appeal against acquittal. The Apex Court in
“Subramanya Vs. State of Karnataka” 2023 (11) SCC 255 after
considering the case law on the subject observed in para 41 and 42 as
under:-
41. In Ajit Savant Majagvai v. State of Karnataka, para 16, this Court
set out the following principles that would regulate and govern the
hearing of an appeal by the High Court against an order of acquittal
passed by the trial court:
“16. This Court has thus explicitly and clearly laid down the principles
which would govern and regulate the hearing of appeal by the High
Court against an order of acquittal passed by the trial court. These
principles have been set out in innumerable cases and may be
reiterated as under:-
(1) In an appeal against an order of acquittal, the High Court
possesses all the powers, and nothing less than the powers it
possesses while hearing an appeal against an order of conviction.
(2) The High Court has the power to reconsider the whole issue,
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reappraise the evidence and come to its own conclusion and findings
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in place of the findings recorded by the trial court, if the said findings
are against the weight of the evidence on record, or in other words,
perverse.
(3) Before reversing the finding of acquittal, the High Court has to
consider each ground on which the order of acquittal was based and
to record its own reasons for not accepting those grounds and not
subscribing to the view expressed by the trial court that the accused
is entitled to acquittal.
(4) In reversing the finding of acquittal, the High Court has to keep in
view the fact that the presumption of innocence is still available in
favour of the accused and the same stands fortified and
strengthened by the order of acquittal passed in his favour by the trial
court.
(5) If the High Court, on a fresh scrutiny and reappraisal of the
evidence and other material on record, is of the opinion that there is
another view which can be reasonably taken, then the view which
favours the accused should be adopted.
(6) The High Court has also to keep in mind that the trial court had
the advantage of looking at the demeanour of witnesses and
observing their conduct in the Court especially in the witness box.
(7) The High Court has also to keep in mind that even at that stage,
the accused was entitled to benefit of doubt. The doubt should be
such as a reasonable person would honestly and conscientiously
entertain as to the guilt of the accused.”
42. This Court in Chandrappa highlighted that there is one significant
difference in exercising power while hearing an appeal against
acquittal by the appellate court. The appellate court would not
interfere where the judgment impugned is based on evidence and
the view taken was reasonable and plausible. This is because the
appellate court will determine the fact that there is presumption in
favour of the accused and the accused is entitled to get the benefit of
doubt but if it decides to interfere it should assign reasons for
differing with the decision of acquittal. After referring to a catena of
judgments, this Court culled out the following general principles
regarding the powers of the Appellate Court while dealing with an
appeal against an order of acquittal in the following words:
“42. From the above decisions, in our considered view, the following
general principles regarding powers of the appellate court while
dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and
reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
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court on the evidence before it may reach its own conclusion, both
on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling
reasons”, “good and sufficient grounds”, “very strong circumstances”,
“distorted conclusions”, “glaring mistakes”, etc. are not intended to
curtail extensive powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of “flourishes of
language” to emphasise the reluctance of an appellate court to
interfere with acquittal than to curtail the power of the court to review
the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the finding
of acquittal recorded by the trial court.”
15. In view of the aforesaid legal proposition we are required to
ponder over the evidence, so as to examine whether the findings
returned by the trial court was only conclusion that could have been
reached out on the strength of evidence before it. We understand that
since the respondents have earned acquittal there is double presumption
in their favour but we have to examine as to whether the conclusion
reached at by the trial court was the only which could have been
possible.
PW-1 Ama Khan, PW-2 Sher Ali Khan, PW-3 Akbar
Ahmad Khan and PW-Gh. Qadir Zargar, happen to be close
relatives of the deceased. The question would arise as to whether
the trial court was right in discarding their evidence because the
defence had argued that not only they were interested witnesses
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but had been introduced by the prosecution when the fact
remains that they were not even the witnesses.
16. PW Ama Khan who happens to be the father of the deceased is
admitting that he reached at the crime scene after he was told that there
was scuffle between the deceased and the accused which itself negates
his position of being an eye witness. PW Sher Ali Khan was working at
Bijbhera, though he claims to be eye witness but on thorough
examination of his testimony we concur with the trial court that this
witness too had no acquaintance as to what happened at the scene of the
crime. Similarly, PW Akbar Ahmed Khan was playing with his friends
when the incident took place. He was at Jablipora, which is at some
distance from the scene of the crime, so there is stronger probability
that he too has been introduced by the prosecution only to lend
credibility which in a way amounts to padding of evidence. PW Gh.
Qadir Zargar is brother in law of the deceased. He was at home when
the incident has happened rather he claims that his sister (wife of the
deceased) was accompanying the later and that he reached the scene of
the crime when the assault was either taking place or had already
happened. His testimony too becomes doubtful.
17. Once that is the case then the only witnesses whose statements
inspire confidence is the narration of PW-6 Mushtaq Ahmad Pandit and
PW Mohd Ibrahim. The former is categorically found narrating that
while he was working in his field he saw accused Yousuf quarrelling
with the deceased because the later had diverted the water that was
leading to the fields of the accused by blocking it which made Yousuf
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furious who was carrying a Belcha with which he tried to hit the
deceased but that blow was intercepted by witness. In the meantime,
co-accused was also present there who was carrying a Liven with that
he gave a blow over the head of the deceased and accordingly he fell
down. When the testimony of this witness is examined in the light of
the cross examination, we have reasons to hold that this witness is
giving true statement of account. Because the medical examination of
deceased done by Dr. Manzoor Ahmad Wani, Dr. Farooq Ahmad Reshi
goes on to show that the deceased had Hematoma over head which was
caused by blunt object that led to fracture of skull bone. There was no
oozing of blood rather the medical expert found swelling of brain. This
fact is also strengthened from the statement of PW Mohd Ibrahim who
was a pharmacist and who was called by near relatives of the deceased
to examine the deceased after he was brought back home unconscious
from the incident site. There PW Mohd Ibrahim is found stating to have
examined the deceased who was unconscious, had swelling of brain
which exhibited being hit by a hard object. This witness too found that
except head injury there was no other injury on the body of the
deceased and to the same effect is the medical report as well.
18. The aforesaid discussion, thus lead us to believe that PW
Mushtaq Ahmad Pandit and PW Mohd Ibrahim were the natural
witnesses and their testimony had also not been impeached by way of
cross examination rather they get strength from deposition of DW
Mohd Sultan Bhat who is categorically found narrating that it was
Sabzar Sofi who along with his brother was working in their land when
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the deceased came there and went to close the water channel leading to
the land of the accused which led to an altercation. This evidence is
strong enough to prove the presence of accused Sabzar Sofi and Mohd
Yousuf at the scene of crime. Almost all the witnesses are stating that it
was paddy season, the accused as well as the deceased were busy in
cultivation of paddy so it was but natural consequences that the parties
would clamor for usage of sufficient water for irrigation of their
respective enclosures. So when the deceased obstructed the water
channel leading to the land of the accused, it was but natural that the
accused would respond and PW Mushtaq Ahmad Pandit is
categorically found narrating that when the deceased tried to block
water channel, accused Yousuf Sofi was carrying a Belcha and with
that he tried to hit the deceased but the blow was intercepted by the
witness and because of that interception, the iron part of the Belcha got
separated and fell on ground whereas, the wooden part remained in the
hands of the accused. However, he fairly is describing that accused
Yousuf Sofi did not hit the deceased with wooden part which was left
with his hands. Witness further would say that it was Sabzar Sofi who
was carrying a Leven with that, he gave blow with the blunt part of the
weapon on the head of the deceased which was corroborated by the
medical report and testimony given by Dr. Manzoor Ahmad Wani and
Dr. Farooq Ahmad Reshi. There is clenching evidence on record that
the deceased had received blunt injury over head which led to swelling
and was in the nature of Haematoma, because of accumulation of blood
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due to hitting by a hard object, which object has been subsequently
recovered from the possession of accused Sabzar Ahmad Sofi.
PW Mohd Khalil Sofi, PW Mohd Younis and PW Ashiq Iqbal
are the three police personnel are found narrating that after Sabzar was
arrested he gave recovery of ‘Liven’ kept underneath the heap of
branches of his courtyard which is an agricultural appliance.
19. The trial court though had taken a view of recovery being
shrouded with suspicion; however, when we examine the testimonies of
these three police personnel we do not subscribe to the trial court’s
view rather we find that the witnesses were posted in that very police
station and while accused Sabzar Sofi was arrested he made disclosure
leading to recovery of Liven which seizure is recorded as EXPW8/1
and EXPW1/1. Not only the recovery but its seizure subsequently along
with the place from where the recovery was affected has been fully
corroborated by said three witnesses.
20. The learned trial court was of the view that since the deceased
was hyper, so there was every likelihood that the injury sustained by
him might have been by fall which conclusion the trial judge appears to
have arrived on an erroneous appreciation of facts on record. This is
because PW Mushtaq Ahmad Pandit is categorically found narrating
that after the deceased was hit with the Liven on his head, he fell with
face down in the water channel which was muddy and later on his
family came in and took him home. PW Mohd Ibrahim corroborates
this aspect that he was called at the house of the deceased to examine
him as former was in unconscious position. So the question of injury
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having been sustained by deceased because of fall was not clearly made
out and the only conclusion that gets strengthened from the evidence on
record is that the deceased received head injury with blunt object due to
assault made by A-1 (Sabzar Ahmad Sofi).
The prosecution therefore, had successfully discharged the onus
of proving incident dated 18.06.2001, where it was accused Sabzar
Ahamd Sofi who gave blow with the blunt side of Liven over the head
of the deceased when the later tried to block water channel leading to
the land of the accused. There was enough material before the trial
court to hold out that it was a case of single blow with no further
attempt made by the accused to pounce upon the deceased and inflict
further injuries on him.
21. Secondly, it is also proved from the evidence that the incident
happened in a spur of moment because while the accused Sabzar
Ahmad Sofi along with his brother was cultivating their land in which
paddy had been sown, the deceased came and stopped the water
channel leading to the land of the accused which made the accused
furious. It is but natural that the accused would have responded to the
actions of the deceased. However, because of said actions of the
deceased that should not have promoted the accused to inflict an assault
of the nature to have resulted in a grave injury on the head of the
deceased. It has come to fore that the incident happened because of the
scuffle between the accused and the deceased which naturally points
out that the accused did not intend to inflict murderous assault
however, in case the deceased would not have blocked water channel
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there was no question of accused inflicting a murderous assault on the
deceased. There is absolutely no evidence to show that the accused had
any kind of enmity with the deceased, it was an incident which
happened on the issue of sharing of water; that too in the paddy season
wherein demand of the water is high and everybody would like to take
much of water for irrigating his portion of land. In that background the
prosecution had not been able to prove that the accused had made any
preparation to inflict a murderous assault on deceased.
22. The aforesaid discussion would thus, go on to show that the
presence of respondents Sabzar Ahmad Sofi and Yousuf Sofi is proved
beyond any doubt, however, insofar as later respondent is concerned
the evidence against him is completely lacking, though he did made an
attempt to assault the deceased with Belcha, however, that was
obstructed by PW Mushtaq Ahmad Pandit. So even if the said accused
intended to aim a blow on the deceased that was obstructed by
intervention of the aforesaid witness and given the fact that except head
injury, no other injury had been shown to have been caused to the
person of the deceased, the trial court was right in acquitting accused
Mohd Yousuf Sofi. Similarly, the presence of accused Tanveer Sofi
and Gull Sofi (now deceased) is doubtful and we concur with the
findings returned by the trial court to that extent.
23. Insofar as the culpability of appellant Sabzar Ahmad Sofi is
concerned, his presence is clearly established from the evidence on
record, who was carrying Liven (agricultural appliance) by which he
gave one blow to the deceased which he received on his head and
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because of that blow the deceased fell in the water channel and as per
the witness he became unconscious. He was first taken to his house,
later on to the shop of PW Mohd Ibrahim and thereafter to the Hospital
where he is stated to have breathed last. So the death has taken place
because of assault aimed towards him by the respondent Sabzar Ahmad
Sofi. Now the question would arise, whether there is material against
him to hold him guilty of offence of culpable homicide amounting to
murder or otherwise. Before leading to that discussion, it is profitable
to take into consideration the precedence in this regard. In case “Nanak
Ram Vs. State of Rajasthan” 2014 (12) SCC 297, there was a dispute
over the possession of land wherein the accused was duly armed who
entered into compound and started dismantling the fence of the
complainant, on being questioned the accused persons in a heat of
passion attacked the deceased and inflicted him with Barchhi blow on
head which proved fatal. The High Court had convicted him for the
offences under Sections 304 part II, read with 149 IPC. It was held in
para 20 to 22 as under: –
“20. Looking at the nature of injuries sustained by the deceased and
the circumstances as enumerated above the conclusion is
irresistible that the death was caused by the acts of the accused
done with the intention of causing such bodily injury as is likely to
cause death and therefore the offence would squarely come within
the first part of Section 304 IPC and the appellants would be liable
to be convicted for the said offence. The conviction of the
appellants/accused under Section 304 Part II read with Section
149 IPC by the High Court is liable to be set aside.
21. We are of the considered view that imposition of 7 years
rigorous imprisonment on each of the appellants for the conviction
under Section 304 Part I IPC would meet the ends of justice. We
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appellants. We are also of the view that the appellants are not
entitled for release on probation.
22. In the result Criminal Appeal No.1990-92 of 2010 preferred by
the State of Rajasthan against the accused persons Nanak Ram,
Mohan Ram and Surja Ram are partly allowed and their conviction
for the offence under Section 304 Part II IPC read with Section
149 IPC and the sentences of 5 years’ rigorous imprisonment each
are set aside and instead they are convicted for the offence under
Section 304 Part I read with Section 149 IPC and sentenced to
undergo seven years’ rigorous imprisonment each. All other
convictions and sentences imposed on them by the High Court are
maintained. Criminal Appeal No.1985 of 2010 and 342 of 2011 are
dismissed.”
24. In case titled “Jagrup Singh V. State of Haryana“, 1981 (3)
SCC 616, in that case the accused armed with a Gandhala, along with
others made a joint assault on deceased who was taken to the Hospital
and found to have suffered a lacerated wound 9 cm x 11/2 cm bone
deep on the right parietal region, 9 cm away from the tip of right pinna;
margins of wound were red, irregular and were bleeding on touch; the
deceased had succumbed to injuries. The trial court had convicted him
of murder which was affirmed by the superior court and when the
matter reached to the Apex court it was held at para 14 as under: –
“14…. In our judgment, the High Court having held that it was more
probable that the appellant Jagrup Singh had also attended the
marriage as the collateral, but something happened on the spur of
the moment which resulted in the infliction of the injury by Jagrup
Singh on the person of the deceased Chanan Singh which resulted
in his death, manifestly erred in applying Clause Thirdly of Section
300 of the Code. On the finding that the appellant when he struck
the deceased with the blunt side of the gandhala in the heat of the
moment, without pre-meditation and in a sudden fight, the case was
covered by Exception 4 to Section 300. It is not suggested that the
appellant had taken undue advantage of the situation or had acted
in a cruel or unusual manner. Thus, all the requirements of
Exception 4 are clearly met. That being so, the conviction of the
appellant Jagrup Singh, under Section 302 of the Code cannot be
sustained.”
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Further in case titled as “Anbazhagan Vs. State Represented
by the Inspector of Police” 2023 SCC Online SC 857, the Apex
Court while dealing with difference between part I and part II of
Section 304 of the Penal Code laid various principles for alteration of
conviction and held in para 66 as under: –
“66. Few important principles of law discernible from the aforesaid
discussion may be summed up thus:–
(1) When the court is confronted with the question, what offence the
accused could be said to have committed, the true test is to find out
the intention or knowledge of the accused in doing the act. If the
intention or knowledge was such as is described in Clauses (1) to
(4) of Section 300 of the IPC, the act will be murder even though
only a single injury was caused. To illustrate ‘A’ is bound hand and
foot. ‘B’ comes and placing his revolver against the head of ‘A’,
shoots ‘A’ in his head killing him instantaneously. Here, there will be
no difficulty in holding that the intention of ‘B’ in shooting ‘A’ was to
kill him, though only single injury was caused. The case would,
therefore, be of murder falling within Clause (1) of Section 300 of
the IPC. Taking another instance, ‘B’ sneaks into the bed room of
his enemy ‘A’ while the latter is asleep on his bed. Taking aim at the
left chest of ‘A’, ‘B’ forcibly plunges a sword in the left chest of ‘A’
and runs away. ‘A’ dies shortly thereafter. The injury to ‘A’ was
found to be sufficient in ordinary course of nature to cause death.
There may be no difficulty in holding that ‘B’ intentionally inflicted
the particular injury found to be caused and that the said injury was
objectively sufficient in the ordinary course of nature to cause death.
This would bring the act of ‘B’ within Clause (3) of Section 300 of the
IPC and render him guilty of the offence of murder although only
single injury was caused.
(2) Even when the intention or knowledge of the accused may fall
within Clauses (1) to (4) of Section 300 of the IPC, the act of the
accused which would otherwise be murder, will be taken out of the
purview of murder, if the accused’s case attracts any one of the five
exceptions enumerated in that section. In the event of the case
falling within any of those exceptions, the offence would be culpable
homicide not amounting to murder, falling within Part 1 of Section
304 of the IPC, if the case of the accused is such as to fall within
Clauses (1) to (3) of Section 300 of the IPC. It would be offence
under Part II of Section 304 if the case is such as to fall within
Clause (4) of Section 300 of the IPC. Again, the intention or
knowledge of the accused may be such that only 2nd or 3rd part
of Section 299 of the IPC, may be attracted but not any of the
clauses of Section 300 of the IPC. In that situation also, the offence
would be culpable homicide not amounting to murder under Section
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304 of the IPC. It would be an offence under Part I of that section, if
the case fall within 2nd part of Section 299, while it would be an
offence under Part II of Section 304 if the case fall within 3rd part
of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls
within the first two clauses of cases of culpable homicide as
described in Section 299 of the IPC it is punishable under the first
part of Section 304. If, however, it falls within the third clause, it is
punishable under the second part of Section 304. In effect,
therefore, the first part of this section would apply when there is
“guilty intention,‟ whereas the second part would apply when there
is no such intention, but there is “guilty knowledge‟.
(4) Even if single injury is inflicted, if that particular injury was
intended, and objectively that injury was sufficient in the ordinary
course of nature to cause death, the requirements of Clause 3rdly
to Section 300 of the IPC, are fulfilled and the offence would be
murder.
(5) Section 304 of the IPC will apply to the following classes of
cases: (i) when the case falls under one or the other of the clauses
of Section 300, but it is covered by one of the exceptions to that
Section, (ii) when the injury caused is not of the higher degree of
likelihood which is covered by the expression “sufficient in the
ordinary course of nature to cause death‟ but is of a lower degree
of likelihood which is generally spoken of as an injury “likely to
cause death‟ and the case does not fall under Clause (2) of Section
300 of the IPC, (iii) when the act is done with the knowledge that
death is likely to ensue but without intention to cause death or an
injury likely to cause death.
To put it more succinctly, the difference between the two
parts of Section 304 of the IPC is that under the first part, the crime
of murder is first established and the accused is then given the
benefit of one of the exceptions to Section 300 of the IPC, while
under the second part, the crime of murder is never established at
all. Therefore, for the purpose of holding an accused guilty of the
offence punishable under the second part of Section 304 of the IPC,
the accused need not bring his case within one of the exceptions
to Section 300 of the IPC.
(6) The word “likely‟ means probably and it is distinguished from
more “possibly‟. When chances of happening are even or greater
than its not happening, we may say that the thing will „probably
happen‟. In reaching the conclusion, the court has to place itself in
the situation of the accused and then judge whether the accused
had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the
IPC) and murder (Section 300 of the IPC) has always to be carefully
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IPC. Under the category of unlawful homicides, both, the cases of
culpable homicide amounting to murder and those not amounting to
murder would fall. Culpable homicide is not murder when the case
is brought within the five exceptions to Section 300 of the IPC. But,
even though none of the said five exceptions are pleaded or prima
facie established on the evidence on record, the prosecution must
still be required under the law to bring the case under any of the
four clauses of Section 300 of the IPC to sustain the charge of
murder. If the prosecution fails to discharge this onus in establishing
any one of the four clauses of Section 300 of the IPC, namely, 1stly
to 4thly, the charge of murder would not be made out and the case
may be one of culpable homicide not amounting to murder as
described under Section 299 of the IPC.
(8) The court must address itself to the question of mensrea. If
Clause thirdly of Section 300 is to be applied, the assailant must
intend the particular injury inflicted on the deceased. This ingredient
could rarely be proved by direct evidence. Inevitably, it is a matter of
inference to be drawn from the proved circumstances of the case.
The court must necessarily have regard to the nature of the weapon
used, part of the body injured, extent of the injury, degree of force
used causing the injury, the manner of attack, the circumstances
preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable
homicide a murder. The intention to cause injury or injuries
sufficient in the ordinary cause of nature to cause death also makes
a culpable homicide a murder if death has actually been caused
and intention to cause such injury or injuries is to be inferred from
the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death
of the victim, no inference, as a general principle, can be drawn that
the accused did not have the intention to cause the death or that
particular injury which resulted in the death of the victim. Whether
an accused had the required guilty intention or not, is a question of
fact which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had the
intention to cause death of any person or to cause bodily injury to
him and the intended injury is sufficient in the ordinary course of
nature to cause death, then, even if he inflicts a single injury which
results in the death of the victim, the offence squarely falls under
Clause thirdly of Section 300 of the IPC unless one of the
exceptions applies.
(12) In determining the question, whether an accused had guilty
intention or guilty knowledge in a case where only a single injury is
inflicted by him and that injury is sufficient in the ordinary course of
nature to cause death, the fact that the act is done without
premeditation in a sudden fight or quarrel, or that the circumstances
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justify that the injury was accidental or unintentional, or that he only
intended a simple injury, would lead to the inference of guilty
knowledge, and the offence would be one under Section 304 Part II
of the IPC.
25. In the light of aforesaid legal proposition and applying the same
to the facts before us, there is no deniability to the fact that the
prosecution has successfully discharged the proof of accused-Sabzar
Ahmad Sofi being the culprit who inflicted fatal blow to the deceased
with blunt object resulting into death of deceased. Being a single blow
incident and given the fact that there was not any past history of enmity
between the parties, inasmuch as the attack laid by accused on the
person of deceased was neither premeditated nor planned but took
place in a heat of passion, it cannot be said with certainty that the
accused intended to cause death by inflicting an injury of a nature
which in all probability would have resulted into the death of deceased.
His act is of culpable homicide not amounting to murder squarely falls
in Part II of Section 304 of the Penal Code, as there was no guilty
initiation on the part of the accused to inflict a murderous assault on the
person of deceased.
26. The injury was in the nature of a lower degree of likelihood
which is generally spoken as an injury likely to cause death. It cannot
be said that the respondent/accused had the knowledge that his act
would result in death of a deceased.
27. Given the material available before the trial court, we are of the
considered view that the findings of acquittal recorded in favour of
respondent-Sabzar Ahmad sofi, was not only perverse but against the
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beyond doubt, the culpability of accused having committed offences of
culpable homicide not amounting to murder but falling within the
domain of Part II of Section 304 RPC.
28. For the aforesaid reasons, Sabzar Ahamd Sofi is held guilty of
offence under Part II Section 304 RPC and to that extent, the appeal
shall stand allowed but as regards the other respondents, Gull Sofi has
already expired, so appeal to that extent shall stand abated but as
regards to respondents-Tanveer Ahmad Sofi and Yousuf Sofi, the
appeal fails and is dismissed, accordingly.
29. Now, coming to the issue of sentence, we are conscious of the
fact that the occurrence is of 18.06.2001 whereas, the respondents were
arrested on 26.06.2001 and stood acquitted by the trial court on
05.03.2005 and as per record the respondents had been in custody for a
period of three years, two months and 21 days. We are also conscious
of the fact that the appeal has been pending for over more than 19 years
so the respondents must have not only suffered ordeal of trial, but
agony of being under sword of acquittal appeal as well. It was in this
background the counsel for the respondents/accused had during the
course of hearing prayed that the mitigating circumstances tilt heavily
in favour of the respondents and given the incident happened in a spur
of moment and in a heat of passion, a lenient view needed to be taken
by this court, in case it proceeds to reverse the acquittal.
30. Per contra, appellants’ counsel strenuously argued that the
family of the victim over the years has not given up the hope of being
delivered the justice as the deceased met untimely death because of the
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act of the respondent and the family of the victim has been deprived of
sole bread earner putting them to hardship. The respondent should not
go unpunished as the victim had no role to play in his ordeal of trial or
pendency of his acquittal appeal nor have the heirs of the deceased
protracted the proceedings against the respondent at any point of time.
There is no dispute on the issue that guilty should not go unpunished
and wrong doer cannot be allowed to take advantage of delay in justice
dispensation. The proportion between the crime and punishment is a
goal respected in principle, in spite of errant notions it remains a strong
influence in determination of sentence. Therefore, undue sympathy to
impose inadequate sentence would do more harm to justice system and
undermine the public confidence in the efficacy of law and society,
which cannot be allowed to endure in such serious cases. It is therefore,
enjoined upon us to award proper sentence commensurate to the
offence committed by the respondent. After appreciating the
aggravating circumstances, though the incident has happened around 24
years back, and before the trial court the respondent-Sabzar Ahmad
Sofi has earned acquittal and since we are reversing his acquittal that
does not mean that delayed dispensation of sentence should work to the
advantage of respondent. After due consideration to the facts and
circumstances of this case and for dispensing the justice and deciding
the appropriate sentence, we are of the considered view in the facts and
circumstances of the case that the imposition of sentence of five years’
simple imprisonment with fine of Rs.2.00 lacs would meet the ends of
justice.
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31. Accordingly, we allow this appeal to the extent of accused-
Sabzar Ahmad Sofi by holding him guilty for offence under Section
304 RPC (part II) and sentence him to undergo simple imprisonment of
five years with a fine of Rs.2.00 lacs. In default of payment of fine, he
shall suffer further imprisonment of six months. Out of fine amount,
Rs.1.90 lacs shall be paid to the kith and kin of deceased, and the rest
of the amount shall be deposited in the Government Treasury. In
addition, the convict is given set-off towards sentence of the period for
which he remained in custody during trial. His bail bonds shall stand
withdrawn, he shall surrender before the trial court immediately
enabling the later to send him to custody so as to undergo remaining
sentence. In default, the trial court shall ensure to take all coercive
measures to commit him to custody for undergoing the sentence.
32. The appeal is, accordingly, party allowed to the above extent.
33. A copy of the judgment be notified to trial court for compliance
and the record of the trial court be remitted back.
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR
30.07.2025
Ishaq
Whether the judgment is reportable ? Yes
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