# Salim v. State of U.P

- **Citation:** (2001) 1 ILRA 243
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/salim-v-state-of-u-p-39606
- **Pages:** 6

## Text

1All] Salim V. State of U.P.
243
Committee and thereafter positive
order granting personal promotion is
required to be passed by the Executive
Council. In view of the plain language
employed in Clause (7) of Statute 11.12B,
the view that personal promotion shall
take effect not from the date of taking
over charge of the post but from the date
on which the teacher concerned became
eligible for consideration for grant of
personal promotion, does not stand to
reason. The contention of Sri V.B. Singh
that personal promotion under Section -
31A shall take effect from the date of the
teacher becoming eligible is against all
known
principles
of
service
jurisprudence.

11. Before parting, we may,
however, observe that it would be open to
the petitioners to claim protection of the
salaries and emoluments paid to them as
Professors
on
the
basis
of
illegal
promotions granted to them. In case
petitioners move any such application
claiming protection of the salaries and
emoluments already paid to them for the
post of Professors, it would be open to the
respondents to take appropriate decision
in that regard in accordance with law
without
being
prejudiced
by
any
observation made in this judgement.

12. In the result, the writ petition
fails and is dismissed in limine subject to
the observations aforestated.

Petition Dismissed.

$33(//$7( -85,6',&7,21
$33(//$7( -85,6',&7,21
&5,0,1$/ 6,'(
&5,0,1$/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( -& *837$ -
7+( +21·%/( -& *837$ -
7+( +21·%/( 0$ .+$1 -
7+( +21·%/( 0$ .+$1 -

&ULPLQDO $SSHDO 1R RI

6DOLP
«$SSHOODQW
9HUVXV
6WDWH RI 83
«2SS 3DUW\

&RXQVHO IRU WKH $SSHOODQW
6UL 31 /DO
6UL 1. 5DVWRJL
6UL 6XQLO 6LQJK
&RXQVHO IRU WKH 5HVSRQGHQW
6KUL $' 3UDEKDNDU
6UL $. -DLQ
$*$

6HFWLRQ 3DUW RI ,QGLDQ 3HQDO
&RGH ,I WKH HYLGHQFH DQG FLUFXPVWDQFHV
RI
WKH
FDVH
LQGLFDWH
RU
FUHDWH
D
UHDVRQDEOH GRXEW LQ WKH SUHVHQFH RI WKH
UHTXLUHG LQWHQWLRQ WKH RIIHQFH ZRXOG EH
FXOSDEOH
KRPLFLGH
QRW
DPRXQWLQJ
WR
PXUGHU +HOG LQ SDUD
$IWHU
KDYLQJ
JLYHQ
RXU
WKRXJKWIXO
FRQVLGHUDWLRQ WR WKH HQWLUH PDWWHU DQG RQ
FRQVLGHUDWLRQ
RI
IDFWV
DQG
FLUFXPVWDQFHV DSSHDULQJ LQ WKH FDVH ZH
DUH RI FRQVLGHUHG RSLQLRQ WKDW LW ZLOO QRW
EH VDIH WR KROG WKH DSSHOODQW JXLOW\ IRU
WKH RIIHQFH RI PXUGHU DQG DFFRUGLQJO\
ZH ILQG KLP JXLOW\ RQO\ XQGHU 6HFWLRQ
 3DUW± RI WKH ,3& DQG FRQYLFW KLP
DFFRUGLQJO\

By the Court

1. Appellant Saleem has been
convicted and sentenced to imprisonment
for life under Section 302 of the Indian
Penal Code for having caused the death of
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
244
Hafiz Ahmad on 13.11.78 at about 4.30
P.M. at Ramlila Ground in Village
Ghatamapur within Police Circle Kotwali,
Rampur.

2. Undisputedly on 13.11.78 'Kite
Flying' games were going on in Ramlila
Ground between Moradabad and Rampur
districts. Appellant, Saleem and deceased
Hafiz both were present in the said
ground for looting kites and Manjha/dor
(Cord of Kite) At about 4.30 P.M. the
accused Saleem started looting Manjha of
the side of deceased Hafiz, which was
objected by the deceased. An altercation
then ensued between the accused and
Hafiz. The accused was having a stick in
his hand, which was being used for
collecting Manjha/Dor. He tried to strike
the same on Hafiz which he warded off
with his hand. Thereafter both deceased
and accused grappled with each other and
during grappling accused whipped out a
dagger from the phainth of his payjama
and inflicted injuries on Hafiz, as a result
where of he fell down. Rais P.W.3,
brother of Hafiz carried Hafiz to the
Police Station Kotwali, Rampur where
Hafiz himself dictated oral report (Ex. Ka.
5) which was reduced to writing in Chik
register by Clerk Constable, Prem Pal
Singh, P.W. 7 and a case under Section
324 I.P.C. was registered, injured Hafiz
was sent to Hospital for his medical
examination
and
his
injuries
were
examined on the same evening at 5.45
P.M. by Dr. O.N. Gupta, P.W. 6 and
following injuries were found: -

1.
Incised wound 1 cm x 0.5 cm x skin
deep on upper 1/3 left upper.
2.
Incised wound 2 cm x 1 cm x
muscle deep on left mid scapular
region back, horizontally placed.
3. Incised wound 2 cm x 0.5 cm x skin
deep on backside left hand just
below the space between left little
finger & ring finger, vertically
placed.
4. Incised wound 2.5 cm x 0.8 cm x
depth not probed, on left iliac fossa
of abdomen, horizontal and oblique.
Some fat bodies coming out of
would measuring 3 cm in length.

3. In the opinion of the Doctor all
the injuries were simple excepting No. 4,
which was kept under observation and
Xray of abdomen was advised. Injuries
were caused by some sharp edged object
and were fresh in duration. Injury report
of Hafiz is Ex. Ka. 4. Dying declaration
(Ex. Ka. 8) of Hafiz Ahmad was also
recorded by Sri S.K. Nigam, P.W. 5,
Executive Magistrate, Rampur. Hafiz died
in Hospital on 15.11.78 at 2.45 A.M. The
autopsy on the dead body was conducted
by Sri M.N. Agrawal, P.W. 4. Since we
have already described the injuries of
Hafiz, it is not necessary to reproduce the
ante-mortem injuries. In the opinion of
Doctor only injury No. 4 was the cause of
death of the deceased.

4. The case was converted into
Section 304 I.P.C. from 324 I.P.C.
Investigation of the case was carried out
by Sub-Inspector, K.K. Singh, who during
the investigation interrogated witnesses,
prepared site plan and after completion of
other
formalities,
charge
sheet
was
submitted against the appellant, who was
duly tried by the learned Sessions Judge,
Rampur

5. At the trial prosecution produced
nine
witnesses,
of
whom
P.W.
1,
Mohammad Siddique, P.W. 2 Tahir and
P.W. 3 Rais Ahmad are witnesses of fact.
1All] Salim V. State of U.P.
245
6. The appellant in his statement
under Section 313 Cr. P.C. admitted that
he and the deceased were both present in
Ramlila ground and were engaged in
looting Manjha Dor in the Kite Flying
games. However, according to him when
he had looted Dor, Hafiz came there and
started abusing him to which he protested,
but he did not stop and slapped him and
grappled with him. Hafiz even snatched
the stick from the hand of the accused
which was meant for looting dor and also
put his hand on his neck and therefore, in
order to save himself he took out knife
and when Hafiz gave pressure during the
grappling the knife pierced into his
abdomen. The accused however, did not
examine any witness in defence.

7. We have heard Sri Sunil Singh,
amicus curie for appellant Saleem, Sri
A.K. Jain A.G.A. for the State and Sri
A.D. Prabhakar for complainant.

8. The factum of death of Hafiz due
to ante-mortem injury No. 4 has neither
been disputed nor challenged before us by
the learned counsel for the appellant.

9. Sri Sunil Singh, learned counsel
appearing for the appellant however,
submitted that the circumstances of the
case which have appeared in the evidence
of the witnessed do not rule out the
possibility of appellant acting in self
defence or under grave and sudden
provocation. We have made careful
examination
of
evidence
of
the
prosecution
witnesses
with
whom
appellant had no enmity nor the said
witnesses had any grudge against the
appellant and we do not find any such
material in their evidence on the basis of
which benefit of right of private defence
could be extended to the appellant. There
is nothing also in their statement which
may probabilise the theory that the
deceased had given provocation. As far as
prosecution case is concerned, it has been
established beyond any reasonable doubt
not only from the evidence of three
witnesses, but also from the First
Information Report which was lodged by
victim Hafiz himself. This F.I.R. is
admissible as a dying declaration of the
deceased under Section 32(1) of the
Evidence Act. In this F.I.R. the deceased
has clearly mentioned that it was the
appellant who had caused knife injuries
on him in the Ramlila ground at about
4.30 P.M. on 13.11.78. It is also pointed
out by the learned A.G.A. that on the very
next day declaration of Hafiz was also
recorded by Executive magistrate, P.W. 5,
Sri S.K. Nigam. Before dying declaration
was recorded the physical and mental
condition of Hafiz was examined by the
Doctor and he reported that Hafiz was in a
state of mind to make statement. Sri
Nigam then proceeded to record the dying
declaration of Hafiz which has been
proved as Ex. Ka. 3. We have minutely
examined the evidence relating to the
dying declaration and find that the dying
declaration is truthful and was voluntarily
made. It is now well nigh settled that
Dying Declaration alone can be the basis
of conviction and need of corroboration
arises only where the dying declaration is
not found reliable and the same suffers
from
any
infirmity.
The
Dying
Declaration in question does not suffer
from any infirmity or weakness. Besides
this, the averments made in the dying
declaration
are
fully
supported
by
evidence of three eye witnesses and the
medical evidence, and as such can be
made basis of appellant's conviction.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
246
10. On a close examination of the
evidence on record we find that the
prosecution has succeeded in establishing
that it was the appellant, who inflicted
knife injuries upon deceased Hafiz on the
date, time and place as alleged by the
prosecution.

11. It has to be seen next as to for
what offence the appellant can be held
guilty? The trial court has convicted the
appellant for the offence of murder
punishable under Section 302 I.P.C. Sri
Sunil Singh, however, argued before us
that
it
was admitted case of the
prosecution that there was no previous
enmity between the deceased and the
appellant and that they both were present
in the Ramlila Ground for looting
Manjha/Dor and kites. It has also come in
the evidence of P.W. 1 that it was the
appellant who first looted Manjha/Dor
which was objected by the deceased and
thereafter abuses were exchanged and
both appellant and deceased grappled
with each other. Sri Sunil Singh therefore,
submitted that in this fact situation it can
not be said with certainty that the
appellant had intended to cause that
particular bodily injury in the abdomen of
Hafiz which ultimately proved fatal. We
find substance in this submission of the
learned counsel for the appellant. In the
case of Virsa Singh Versus State of
Punjab A.I.R 1958 S.C. 465, the Apex
Court held that in order to bring a case
under Clause Thirdly of Section 300
I.P.C. the prosecution must prove with
cogent evidence the following facts: -

Firstly, it must be established quite
objectively, that a bodily injury is present.

Secondly, the nature of the injury
must be proved.

These
are
purely
objective
investigations: -

Thirdly, it must be proved that there
was an intention to inflict that particular
bodily injury that is to say, it was not
accidental or unintentional, or that some
other kind of injury was intended.

Once these three elements are proved
to be present the inquiry proceeds further
and,

Fourthly, it must be proved that the
injury of the type, just described made up
of the three elements set out above, is
sufficient to cause death in the ordinary
course of nature.

This part of the inquiry is purely
objective and inferential and has nothing
to do with the intention of the offender.

12. It is thus clear that in order to
bring a case within the mischief of clause.
Thirdly there should be a bodily injury on
the deceased which is sufficient in the
ordinary course of nature to cause death
and the accused had intended to cause that
particular injury. If the evidence and
circumstances of the case indicate or
create a reasonable doubt in the presence
of the required intention, the offence
would
be
culpable
homicide
not
amounting to murder.

13. In the present case the
circumstances which have emerged in the
prosecution evidence itself indicate that
on account of appellant having looted
Manjha which could have gone to the
deceased, some annoyance must have
been caused to the deceased, who feeling
aggrieved started abusing the accused and
then both of them exchanged abuses and
1All] Salim V. State of U.P.
247
grappled with each other. In such a factual
situation it can not be said with certainty
that the appellant had aimed the blow on a
particular part of the body of the deceased
and thereby had intended to cause injury
no. 4 which ultimately proved fatal.

14.

After
having
given
our
thoughtful consideration to the entire
matter and on consideration of facts and
circumstances appearing in the case, we
are of considered opinion that it will not
be safe to hold the appellant guilty for the
offence of murder and accordingly we
find him guilty only under Section 304
Part-1 of the I.P.C. and convict him
accordingly.

15. Now coming on the question of
sentence we find that the learned Sessions
Judge has not made strict compliance of
the mandatory provisions of Section 235
(2) Cr. P.C. which contemplates that an
opportunity of hearing is to be given to
the accused on the question of sentence.
The learned Sessions Judge in his
judgement has simply observed that the
accused has been heard on the question of
sentence. This was not sufficient. It has
been
repeatedly
emphasised
by
the
Hon'ble Supreme Court that hearing
contemplated under Section 235 (2) is not
confined
merely
to
hearing
oral
submissions and the requirement of law is
that the accused should be given an
opportunity to place before the court
material and evidence relating to various
factors bearing on the question of
sentence. Neither the judgement of the
trail court nor the record indicates that
such an opportunity was afforded to the
appellant. This salutary provision satisfies
a dual purpose. It satisfies the rule of
natural justice by affording to the accused
an opportunity of being heard on the
question of sentence and at the same time
helps the court to choose the sentence to
be awarded. The provision is mandatory
and should not be treated as a mere
formality. The opportunity so given,
entitles the accused to place before the
court
his
antecedents,
social
and
economic background mit gating and
extenuating circumstances etc.

16.

We
ourselves
gave
that
opportunity to the appellant's counsel and
he stated before us that no material or
evidence is to be placed on record.
However, it was pointed out by the
learned counsel for the appellant that the
appellant was a young lad of about 16
years of age when this incident occurred,
and therefore, a lenient view be taken
while according punishment.

Sentencing an accused is a sensitive
exercise. For selecting an appropriate and
just sentence the court has to weigh
aggravating and mitigating circumstances
always keeping in mind that the object of
sentencing is to see that the crime does
not go unpunished and the victim of the
crime as also the society has the
satisfaction that justice has been done.
Imposition of appropriate punishment is
the manner in which the courts respond to
the society's cry for justice against the
criminals. Justice demands that courts
should impose punishment befitting to the
crime so that courts reflect public
abhorrence of the crime. The personality
of the offender as revealed by his age,
character and antecedents so also the
circumstances in which the crime was
committed play an important part in
determining
a
just
and
appropriate
sentence.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
248
17. In the present case even as per
the prosecution evidence the incident had
occurred at a spur of moment without any
premeditation on a trivial issue of Manjha
looting. It is true that the deceased was a
young boy of 18-19 years of age but the
appellant was also a young boy. In his
statement recorded on 29.9.80 under
Section 313 Cr. P.C. before the trial court
the appellant disclosed his age as 16
years.
The
learned
Sessions
Judge,
however, made an observation that in his
opinion the appellant appeared to be about
18 years old. May that as it be, even as
per the estimate made by the learned
Judge, the appellant was just above 16
years of age on the date of occurrence, i.e.
13.11.1978. The injuries of the deceased
were caused when the deceased and
appellant had grappled with each other
and we have already found above that it
can not be said with certainty that the
appellant intended to cause particular
injury (injury no. 4) which ultimately
proved fatal.

18. With the passage of long period
of 22 years the socio-economic conditions
of the appellant must have also gone a
radical change and on account of this long
interval passions of both the sides must
have cooled down. There is nothing on
record
to
indicate
that
during
the
pendency of appeal the appellant made
any attack on the witnesses or members of
the deceased family or had indulged
himself in any other criminal activity.

19. Considering the entire facts and
circumstances and having regard to the
age of the appellant, his character,
antecedents and other factors, we are of
the opinion that a sentence of four years
R.I. and fine of Rs.5,000/- shall meet the
ends of justice. In default of payment of
fine the appellant shall undergo further
R.I. of one year.

20. For the reasons assigned above,
this appeal is partly allowed. The
appellant is convicted under Section 304
Part-1 instead of Section 302 I.P.C. and
instead of life imprisonment he shall
undergo rigorous imprisonment for four
years and pay a fine of Rs.5,000/-. In
default of the payment of fine he shall
undergo further R.I. of one year.

21. The appellant is on bail. He shall
be taken into custody forthwith to serve
our the sentence as modified by this
Court. The trial court will now take
appropriate steps for the arrest of the
appellant so that he may serve out the
same as has been imposed upon him by
this Court. Compliance report shall be
sent to this Court within three months.

22. Sri Sunil Singh, who argued the
appeal admirably well, shall be paid
Rs.2,100/- as his fee.
Partly Allowed.

$33(//$7( -85,6',&7,21
$33(//$7( -85,6',&7,21
&5,0,1$/ 6,'(
&5,0,1$/ 6,'(
'$7(' $//$+$%$' $8*867
'$7(' $//$+$%$' $8*867
%()25(
%()25(
7+( +21·%/( 6. $*$5:$/ -
7+( +21·%/( 6. $*$5:$/ -

&ULPLQDO $SSHDO 1R RI

5DJKXEHHU
«$SSHOODQW
9HUVXV
6WDWH RI 83
«2SSRVLWH SDUW\

&RXQVHOV IRU WKH $SSHOODQW
6KUL $PDU 6DUDQ
6KUL %G 6KXNOD
6KUL 0ROYL 1DVUXGGLQ