Research › Search › Judgment

Uttarakhand High Court · body

2005 DIGILAW 86 (UTT)

HASMAT ULLAH KHAN v. STATE OF UTTARANCHAL

2005-03-21

J.C.S.RAWAT

body2005
JUDGMENT 1. This is a criminal appeal filled by the appellant against the judgment and the order dated 27.08.1987 passed by Sri Mohan Singh, the then Sessions Judge, Almora in S.T. No. 20 of 1987 where by the appellant has been convicted and sentenced U/s 459 I.P.C. to under go R.I for 10 years and 380 I.P.C. to under go R.I. for 3 years. Both the sentences were ordered to run concurrently. 2. The case of the prosecution, in brief, is that on 19.05.1986 at 3:30 a.m. Sunder Singh PW-1 was sleeping on the first floor of his house situated in village Syalidhar district Almora. The complainant woke-up after hearing some sound and found that the appellant entered into his house after breaking the window of the house. The complainant asked who was that person, where upon the appellant threatened him with dire consequences. Without caring for his life the complainant made an attempt to catch hold of the appellant. The complainant raised the alarm. The appellant made an attempt to run away after causing injuries with a scissors to the complainant. In the meantime Shankar Lal PW-2, Sher Ram, Shankar Lal s/o Uday Ram of the neighbourhood came on the spot and the appellant was apprehended after beating him. On inquiry he gave out his name as Hasmat Ullah Khan (appellant). The appellant told that he had taken away the boxes and kept them in the field at the distance. On search one H.M.T watch was recovered from the pocket of the appellant. The appellant along with the, torch, H.M.T watch and one Kudal was brought to the police station where written report (Ex.Ka-1) was submitted by the complainant PW-1 on the basis of which F.I.R. (Ex.Ka-5) was recorded by constable Amar Singh (PW-4) and an entry was made in G.D. at 10:40 a.m. vide Ex.Ka-6. the investigation was entrusted to S.I Omkar Sagar. The articles brought by the complainant were taken into custody by the police and recovery memos (Ex.Ka-2), Ex.Ka-3, Ex.Ka-4 were prepared. 3. The appellant was medically examined on 19.05.1986 at 11:30 P.M. by Dr. L.S. Kanyal (PW-5). The following ante-mortem injuries where found on the person of the appellant vide injury report Ex.Ka 8. 1. Contusion 3.5 cm x 3 cm around right eyeball reddish in colour. 2. 3. The appellant was medically examined on 19.05.1986 at 11:30 P.M. by Dr. L.S. Kanyal (PW-5). The following ante-mortem injuries where found on the person of the appellant vide injury report Ex.Ka 8. 1. Contusion 3.5 cm x 3 cm around right eyeball reddish in colour. 2. Contusion 2 cm x 1 cm reddish in colour over right side of forehead, 2.5 cm above the right eyebrow. 3. Abraded contusion size 2.5 cm x 1 cm of upper lip. 4. Abraded contusion 2 cm x 1.5 cm of lower lip. 5. Blood crust seen all around the nostrils and over upper and lower lips. 6. Contusions three in number, sized 5 cm x 1.5 cm, 4 cm x 1.5 cm, 6 cm x 1.5 cm on right back of chest and shoulder, reddish in colour. 7. Traumatic swelling in an area of 15 cm x 8 cm over right fore arm and hand, tenderness present. 8. Multiple abrasions 1 cm x 0.5 cm, 1.5 cm x 1 cm, 0.5 cm x 0.5 cm over front of right leg. 9. Abrasion 4 cm x 0.5 cm over front upper part of left leg. 10. Traumatic swelling in an area of 10 cm x 8.5 cm over left fore arm, 4. The injuries of Sunder Singh PW-1 examined by Dr. L.S. Kanyal (Ex. Ka-5) 19.05.1986 at 12 noon and the following ante-mortem injuries were found on his person vide the injury report (Ex. Ka-7): 1. Incised wound at the base of the right little finger On dorsal aspect, size 2.8 cm x 1.2 cm x 0.5 Oozing of serum present. Tailing present on the proximal aspect of the wound. 2. Contusion 4.5 cm x 4.5 cm on the dorsal aspect of the right hand, 5 cm below the middle of the wrist joint. Reddish in colour. The injuries were caused by sharp object and blunt object. The duration of the injuries was half day old. The Investigating Officer visited the place of occurrence and prepared site plans (Ex. Ka-9), (Ex. Ka-10) and (Ex. Ka-11). After completing investigation charge-sheet (Ex. Ka-12) was submitted against the appellant. 5. The appellant was charged U/s 459, 380 and 411 I.P.C. The appellant pleaded not guilty and claimed trial. 6. The Prosecution in support of this case examined PW-1 Sunder Singh who proved written report (Ex. Ka-1), (Ex. Ka-2), (Ex. Ka-3) and (Ex. Ka-9), (Ex. Ka-10) and (Ex. Ka-11). After completing investigation charge-sheet (Ex. Ka-12) was submitted against the appellant. 5. The appellant was charged U/s 459, 380 and 411 I.P.C. The appellant pleaded not guilty and claimed trial. 6. The Prosecution in support of this case examined PW-1 Sunder Singh who proved written report (Ex. Ka-1), (Ex. Ka-2), (Ex. Ka-3) and (Ex. Ka-4) PW-2 Shankar Lal is the eyewitness and PW-3 Neeraj Kumar is the witness of recovery of clothes from the Hotel and proved recovery memo (Ex. Ka-4). PW-4 constable Amar Singh proved F.I.R. Ex. Ka-5, G.D. entry Ex. Ka-6, PW-5 Dr. L.S. Kanyal has proved injury report (Ex. Ka-7) of Sunder Singh and injury report (Ex. Ka-8) of the appellant. PW-6 Head constable Malkit Singh has proved chik report (Ex. Ka-5), recovery memos Ex. Ka-3 to Ex. Ka-4 and Ex. Ka-9 to Ex. Ka-11 site plans and charge sheet Ex. Ka-12. 7. The appellant in his statement u/s 313 Cr.P.C. has denied the allegations of the prosecutions. The complainant party and the police apprehended him from his house. Nothing was recovered from him. 8. On consideration of entire evidence on record the learned trial court convicted and sentenced the appellant U/s 459 and 380 I.P.C. However the learned trial court acquitted the appellant U/s 411 I.P.C. 9. I have heard the learned counsel for the appellant and learned A.G.A. and perused the evidence on record. 10. In the present case the prosecution has examined PW-1 Sunder Singh who had narrated the entire incident as has been mentioned in para no.2 of the judgment. The prosecution also adduced the evidence of PW-2 Shankar Lal who has stated in his evidence that on hearing the cry of the complainant Sunder Singh PW-1 he went to the house of PW-1 Sunder Singh and he saw that the complainant had caught hold of one person inside his house. These two witnesses are the eyewitness of the occurrence. 11. The learned counsel for the appellant contended that there are major contradictions in the evidence of prosecution witnesses which had not been taken into consideration by the learned Sessions Judge. Firstly, it was submitted that there was no occasion for the appellant to cause injuries to the complainant. These two witnesses are the eyewitness of the occurrence. 11. The learned counsel for the appellant contended that there are major contradictions in the evidence of prosecution witnesses which had not been taken into consideration by the learned Sessions Judge. Firstly, it was submitted that there was no occasion for the appellant to cause injuries to the complainant. The evidence of prosecution witnesses clearly reveals that as soon as the complainant saw the appellant inside his house, the complainant caught hold of him and as such there was no occasion for the appellant to cause injuries on the person of the complainant. The learned A.G.A. refuted the contention. The perusal of the evidence of PW-1 Sunder Singh reveals that he saw the appellant and immediately he tried to catch hold of him. The appellant made an attempt to run away from the spot. The evidence of PW-1 Sunder Singh seems to be quite natural. If an offender is apprehended in such a situation the offender would always try to escape from the seen of occurrence, so he may plead innocence. It is also in the evidence of the prosecution that the other persons also arrived at the spot and immediately the appellant was overpowered by beating him and he was caught hold at the spot. The perusal of the entire evidence of the prosecution reveals that the evidence of complainant and other witnesses with regard to the beating and overpowering is credible and cogent. The submission of the learned counsel for the appellant has no force. 12. It was further submitted that the evidence of PW-1 Sunder Singh clearly reveals that after hearing the sound of breaking open the window, the complainant immediately raised alarm and it was further contended that there was no occasion to remove the boxes from inside the house. The learned A.G.A. refuted the contention. The perusal of the prosecution evidence reveals that the appellant entered into the house of the complainant and thereafter the complainant heard the sound and got up. Meaning thereby the evidence of the prosecution clearly reveals that the appellant had already entered the house of the complainant after breaking open the window and the appellant removed the boxes. In such a situation the offender would take precaution while removing the boxes that no body could hear the sound of his misconduct. Meaning thereby the evidence of the prosecution clearly reveals that the appellant had already entered the house of the complainant after breaking open the window and the appellant removed the boxes. In such a situation the offender would take precaution while removing the boxes that no body could hear the sound of his misconduct. When the appellant would have removed the boxes and he would have tried to enter again into the house of the complainant silently. But he woke up immediately and flashed the torch on the appellant. Thus, there was sufficient time for the appellant to remove the boxes before the complainant woke up. Thus, the submission of the learned counsel for the appellant has no force and the learned Sessions Judge has rightly rejected the submission of the appellant. 13. The learned counsel for the appellant further submitted that PW-2 Shankar Lal was not present at the spot and also submitted that in any stretch of imagination, the appellant could not be supposed to be present on the spot at the time of the alleged incident. The learned counsel for the appellant further laid stress on the cross-examination of Shanker Lal PW-2 where in it has been stated that he reached on the spot in the early morning hours, i.e. after the clearance of the darkness. The learned counsel for the appellant further submitted that the learned Sessions Judge has erred in holding that Shankar Lal PW-2 was at the spot and he saw the incident. Learned AGA refuted the contention. At the out set it may be mentioned here that every individual reacts on his own way. There is no set of rules of natural reaction. It is also pertinent to mention here that the incident took place in the village. It is also in the evidence that Shankar Lal PW-2 had no watch at the time of the incident. If a person all of a sudden hears a noise and woke up in the night and comes out he cannot assess the exact time and he would not be able to tell the exact time. He would only assess the time according to his own assessment. In assessing the time it is quite natural that the person who reached at the spot in such odd hours, he may vary the time while assessing the time. He would only assess the time according to his own assessment. In assessing the time it is quite natural that the person who reached at the spot in such odd hours, he may vary the time while assessing the time. The learned Sessions Judge has rightly discarded the contention of the learned counsel for the appellant. Nothing could be elicited from his cross-examination, which could disbelieve the evidence of PW-2 Shankar Lal. 14. The learned counsel for the appellant further contented that the complainant sustained incised wound on the right little finger and the scissors is a pointed weapon and such an incised wound could not be caused by the scissors if the injury is caused by the scissors it wound be a punctured wound and not an incised wound. The learned A.G.A. contended that the scissors can cause the incised wound if the injury is caused by sharp edge of the scissors, in case the pointed side of the scissors hits the body of a person it would cause a punctured wound. Learned A.G.A. further contended that the evidence on record clearly reveals that the injury was caused by the sharp edge of the scissors to complainant PW-1 Sunder Singh when the appellant tried to escape from the clutches of the complainant. I am in complete agreement with the learned A.G.A. that if the pointed side of the scissors hits a body of a person the injury would be a punctured wound. If the scissors hits the body from the side of sharp edge, the injury would be an incised wound. PW-5 Dr. L.S. Kanyal has corroborated this fact in his evidence that if the pointed side of the scissors hits the body it would cause the punctured wound. If the sharp edged of the scissors hits the body the injury would be incised wound. I find that there is no infirmity in the testimony of complainant PW1 Sunder Singh. The learned Sessions Judge has rightly rejected the contention. 15. The learned counsel for the appellant contended that no independent witness or eye-witnesses of the village who could unmistakably support the complainant’s version was produced before the court and further submitted that the judgment and order passed by the learned Sessions Judge is not tenable on this account. Learned AGA refuted the contention. 15. The learned counsel for the appellant contended that no independent witness or eye-witnesses of the village who could unmistakably support the complainant’s version was produced before the court and further submitted that the judgment and order passed by the learned Sessions Judge is not tenable on this account. Learned AGA refuted the contention. It is not necessary for the prosecution to multiply the evidence of the incident on the same point. In the instant case PW-1 Sunder Singh and PW-2 Shankar Lal had given credible and cogent evidence and their testimony is reliable. Nothing could be elicited from their cross-examination by the defence. PW-5 Dr. L.S. Kanyal has further corroborated the testimony of PW1 Sunder Singh and PW-2 Shanker Lal. As such, there is no need to multiply the evidence of the incident. It has been held in Komal and others Vs. State of U.P. 2002 SCC(Cri) 1600 that:- “Learned counsel next contended that though, according to the statements of witnesses, some villagers had arrived at the place of occurrence when the members of the prosecution party were begin assaulted and they intervened in the matter, none of them has been examined in the case on hand. In our view, non-examination of these witnesses by itself would not affect the veracity of the prosecution case when the evidence of PWs 2 and 4, the two injured eye witnesses who had received multiple injuries, has been found to be trustworthy and their evidence is corroborated by the informant PW-5 and supported by medical evidence as well as objective finding to the investigating Officer.” 16. It has been further held in Babu Ram Vs. State of U.P.; 2002 SCC(Cri) 1400 as under:- “It was submitted by the learned counsel for the appellants that Ram Autar, an independent eye witness present at the scene of occurrence according to the prosecution case and a government servant has not been examined, and therefore, an adverse inference should be drawn against the prosecution. It is settled law that non-examination of an eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of the pen. An effort should be made at appreciating the worth of such evidence as has been adduced. It is settled law that non-examination of an eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of the pen. An effort should be made at appreciating the worth of such evidence as has been adduced. If the evidence coming from the mouth of the eye witnesses examined in the case is found to be trustworthy and worth being relied on so as to form a safe basis for recording a finding of guilt of the accused persons then non-examination of yet another witness who would have merely repeated the same story as has already been narrated by other reliable witnesses would not cause any dent or infirmity in the prosecution case. In the case at hand we additionally find from the testimony of Ashrafi Lal that in spite of being a government servant and not involved in local village disputes he is afraid of deposing against the accused persons and there is substance in the submission of the learned counsel for the state that Ram Autar if tendered in the witnesses box would have followed the same track as was chosen by Ashrafi Lal PW-3.” The contention of the learned counsel for the defence is not tenable. 17. It was further contended that the FIR is highly belated and no explanation was given from the side of the complainant as to why the FIR was not lodged in time. Learned A.G.A refuted the contention. The perusal of the record reveals that the incident took place at about 3 or 3:30 a.m. in the early hours of the morning and the FIR was lodged at 10:40 a.m. after a lapse of 7 hours. The distance from the place of occurrence to the police station is about 6 kilometers and the F.I.R does not contain any explanation for such delay. The learned counsel for the appellant pointed out that if no explanation for the delay has been offered no importance should be given to this F.I.R. The incident took place in the hill area. It is also in evidence of the prosecution that the complainant had to travel one kilometer on foot from his residence to get the bus and the morning bus comes at about 8 or 8:30 a.m. The place where the accident took place is a village area of the hill terrain. It is also in evidence of the prosecution that the complainant had to travel one kilometer on foot from his residence to get the bus and the morning bus comes at about 8 or 8:30 a.m. The place where the accident took place is a village area of the hill terrain. In such a situation the complainant would naturally start after the sunrise from his residence to the police station. It is also pertinent to mention that the appellant who committed the crime was also with the complainant. After covering the distance of 6 kilometers the complainant party reached at the police station in the morning at about 9:00 a.m. It was further contended that the complainant had not lodged the F.I.R promptly and the report was lodged at about 10:40 a.m. So the delay of 1/1/2 hours is also fatal to the prosecution. It is also pertinent to mention here that PW-1 Sunder Singh was a villager and he stated in his evidence that he reached at the police station at about 9:00 a.m. A villager may perceive time according to his own calculation. It cannot be an exact time. In these circumstances, there is no unreasonable delay in lodging of the F.I.R. The learned Sessions Judge has rightly rejected the contention of the learned counsel of the learned counsel for the appellant. 18. The learned counsel for the appellant contended that the appellant also sustained injuries during the incident and the prosecution had not explained as to how the appellant sustained the injuries on his person at the time of the incident or immediately thereafter. PW-5 Doctor L.S. Kanyal stated in his evidence that he also examined the appellant on the same day and he found ten injuries on the person of the appellant, which have been enumerated in para no. 3 of the judgment. The doctor further opined in his evidence that the said injuries could be sustained by the appellant while he was apprehended and over powered by beating him at the time of the incident. PW-5 Dr. L.S. Kanyal also stated in his cross-examination that the injuries enumerated in injury report Ex.Ka-8 on the person of the appellant could be caused by the blunt object and the time of injuries had also been corroborated with the incident. PW-5 Dr. L.S. Kanyal also stated in his cross-examination that the injuries enumerated in injury report Ex.Ka-8 on the person of the appellant could be caused by the blunt object and the time of injuries had also been corroborated with the incident. The evidence of PW-1 Sunder Singh and PW-2 Shankar Lal further reveals that both the witnesses stated on oath that the appellant was over powered and apprehended after beating him. The natural conduct in over powering the appellant some injuries would be inflicted on the person of the appellant. The perusal of the injuries also reveals that the injuries are of simple in nature which could be caused by blunt object during the over powering the appellant. The testimony of the eye-witnesses is corroborated by the medical report Ex.Ka-8 which has been proved by Dr. L.S. Kanyal PW-5. He opined that the injuries could be caused at the time of the incident. Thus the medical evidence further corroborates the factum of incident. The contention of the learned counsel for the appellant has no force. 19. The defence has taken a case of denial and the appellant in his statement u/s 313 Cr.P.C. stated that the complainant party and the police arrested him from his house and nothing was recovered from him. The appellant further stated in his statement u/s 313 Cr.P.C. that there was a dispute regarding the accounts between the complainant Sunder Singh PW-1 and his brother-in-law Habibullah who lives 3 kilometers from the village of the complainant. The complainant had a dispute with his brother-in-law with regard to settlement of the account when Sunder Singh reached in the house of Habibullah, the appellant was there. Sunder Lal and others caught the appellant and brought to the police station on account of the some dispute between his brother-in-law and Sunder Singh PW-1. If there was a dispute between Habibullah and Sunder Singh PW-1 with regard to accounts, there was no occasion to beat and caught the appellant. In case of dispute the complainant would cause injury to Habibullah and not the appellant. The appellant had put a suggestion to PW-1 Sunder Singh that the appellant was sitting at the shop of his brother-in-law in another village where his brother-in-law refused to sell meat to Sunder Singh PW-1 where upon there was a scuffle and the complainant caught hold of the appellant and brought to the police station. The appellant had put a suggestion to PW-1 Sunder Singh that the appellant was sitting at the shop of his brother-in-law in another village where his brother-in-law refused to sell meat to Sunder Singh PW-1 where upon there was a scuffle and the complainant caught hold of the appellant and brought to the police station. The plea taken during cross-examination by way of suggestion and the plea taken in the statement u/s 313 Cr.P.C. are self contradictory. It is also in the evidence that the appellant was staying in Himalaya Hotel, Mall Road, Almora. The prosecution adduced the evidence of PW-3 Neeraj Kumar Bhandari who stated in his evidence that the appellant was staying in his hotel in May 1986. The room of the appellant was searched by the police after the registration of the case. The defence version as stated in the statement u/s 313 Cr.P.C. is not believable. The learned Sessions Judge has rightly rejected the defence version. 20. The learned counsel for the appellant further contended that the appellant has been convicted u/s 459 I.P.C. There is no grievous hurt on the person of the complainant Sunder Singh PW-1 while committing the trespass. As such the appellant cannot be convicted u/s 459 I.P.C. The perusal of the record reveals that the complainant sustained simple injuries which is evident from the evidence of PW-5 Dr. L.S. Kanyal and injury report Ex.Ka. 7. While convicting the appellant u/s 459 I.P.C. the following ingredients are essential:- (2) Ingredients:- (i) The accused committed lurking house-trespass or house-breaking; (ii) Whilst committing the said offence the accused caused grievous hurt to any person or attempted to cause death. 21. Before convicting the appellant it is essential that the appellant could have caused grievous hurt or attempted to cause death. In the instant case there is no evidence on record that the appellant caused grievous hurt or attempted to cause death as such the case does not fall u/s 459 I.P.C. In the instant case the injury is not on the vital part of the body. The evidence also reveals that the injury was sustained by the complainant while the appellant was overpowered and the appellant tried to escape from the spot. In case he would have the occasion to cause death of the complainant. He would have hit the complainant from the pointed side of the scissors. The evidence also reveals that the injury was sustained by the complainant while the appellant was overpowered and the appellant tried to escape from the spot. In case he would have the occasion to cause death of the complainant. He would have hit the complainant from the pointed side of the scissors. I do not find any credible and cogent evidence on record that the appellant had attempted to cause the death of the complaint. The case falls u/s 457 I.P.C. Thus the learned Sessions Judge has committed error in convicting the appellant u/s 459 I.P.C. 22. The prosecution evidence as indicated above fully establishes that the appellant was caught hold by the complainant inside his house in the early hours of the morning on the fateful day and he removed two boxes from the house and committed theft. It is also established that the accused had assaulted the complainant and caused the simple injuries with scissors. As such the appellant committed the offence of tress-pass by breaking the window in the night. It also establishes that the act of the appellant is punishable u/s 457 I.P.C. instead of 459 I.P.C. 23. In view of the above discussion the offences u/s 457 and 380 I.P.C. are fully established against the appellant and he is liable to be convicted u/s 457 I.P.C. instead of 459 I.P.C. 24. The appeal is partly allowed. The appellant is convicted u/s 457 and 380 I.P.C. and is sentenced to undergo rigorous imprisonment for a period of three years under each count. The sentences u/s 457 and 380 I.P.C. shall run concurrently. 25. Let the lower court record along with a copy of this judgment be immediately sent back to the court concerned for compliance. The compliance report be submitted within two months.