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Uttarakhand High Court · body

2010 DIGILAW 594 (UTT)

ASGAR v. STATE OF U. P.

2010-08-20

DHARAM VEER

body2010
JUDGMENT This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), is directed against the judgment and order dated 30.1.1997 passed by the Additional Sessions Judge/Special Judge Nainital in Sessions Trial No. 98 of 1991, State v. Asgar & Anr., whereby learned Additional Sessions Judge has convicted the accused appellants Asgar and Anwar under Section 307 read with Section 34 of the Indian Penal Code, 1860 (for short IPC) and sentenced each of them to undergo R.I. for five years. 2. In brief, the prosecution case is that on 22.1.1991 at 7.15 pm, PW1 Abdul Wahab lodged an FIR Ex. Ka-1 with PS Ramnagar with the averments that appellants accused Asgar and Anwar belonging to the same Mohalla of the complainant caused damage to the Parnala of the house of the complainant, so he made complaint to them but the accused appellants stated that the matter would be seen later on in the evening. Thereafter at 6.30 pm on the same day, the accused appellants came at the house of the complainant and called him out of the house. On this Abdul Khalik (PW2) came out of the house who was also followed by his father/complainant Abdul Wahab. The moment Abdul Khalik came out of the house, accused appellant Anwar caught hold of him while the accused appellant Asgar gave knife blow on the left side of his chest. Abdul Wahab raised alarm and on this, Abdul Jabbar (PW3) and Master Sirajuddin reached at the place of occurrence. The injured Abdul Khalik was immediately taken to the hospital who was unconscious due to the said injuries. His condition was serious. 3. With the aforesaid averments, FIR Ex. Ka-1 was lodged by PW1 Abdul Wahab and the bloodstained shirt, sweater and baniyan (undershirt) were also handed over to the police. On the basis of this report Ex. Ka-1, Chick FIR Ex. Ka-6 was prepared by Constable Clerk Nar Ram. He also made the necessary entries in the GD. Copy of the GD is Ex. Ka-7. The bloodstained clothes were taken into possession and fard Ex. Ka-2 was prepared. The investigation of this case was entrusted to PW7 S.I. Ram Sharan Mishra. The injured Abdul Khalik was medically examined by PW5 Dr. Yogesh Chand on the same day i.e. on 22.1.1991 at 6.45 pm and the injury report Ex. Copy of the GD is Ex. Ka-7. The bloodstained clothes were taken into possession and fard Ex. Ka-2 was prepared. The investigation of this case was entrusted to PW7 S.I. Ram Sharan Mishra. The injured Abdul Khalik was medically examined by PW5 Dr. Yogesh Chand on the same day i.e. on 22.1.1991 at 6.45 pm and the injury report Ex. Ka-3 was also prepared by him. On the basis of the x-ray report, PW5 Dr. Yogesh Chand also prepared the supplementary report Ex. Ka-4. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-8. During the course of investigation, the I.O. also collected the bloodstained and plain soil from the commission of crime on the next day of the incident i.e. on 23.1.1991 on the pointing out of the accused appellant Asgar from the western wall of the latrine of his house and prepared a fard Ex. Ka-5. He also prepared the site plan of the place of recovery of knife, that is Ex. Ka-10. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation he filed the chargesheet Ex. Ka-11 against the accused appellants. 4. Learned ACJM, Kashipur after giving the necessary copies of the documents to the accused appellants, as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 3.4.1991. Learned Sessions Judge transferred the case to Additional assistant Sessions Judge, Nainital for its disposal according to law. 5. On 18.2.1992, learned Additional Assistant Sessions Judge, Nainital framed the charge against the accused appellants under Section 307 read with Section 34 IPC. The charge was read over and explained to each of the accused appellants, who pleaded not guilty and claimed to be tried. Subsequently, the case was transferred to Additional Sessions Judge/Special Judge, Nainital for its disposal according to law. 6. To prove its case, the prosecution has examined PW1 Abdul Wahab, the complainant and an eyewitness of the incident; PW2 Abdul Khalik, injured witness; PW3 Abdul Jabbar, an alleged eyewitness; PW4 Khalik Ahmad, scriber of the report; PW5 Dr. Yogesh Chand, who medically examined the injured and prepared the medical report and supplementary report; PW6 Sagir Ahmad, witness of recovery of knife and PW7 SI Ram Sharan Mishra, the I.O. of the case. 7. Yogesh Chand, who medically examined the injured and prepared the medical report and supplementary report; PW6 Sagir Ahmad, witness of recovery of knife and PW7 SI Ram Sharan Mishra, the I.O. of the case. 7. Thereafter, statements of the accused appellants were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. But they did not file any documentary or oral evidence in defence. 8. After hearing learned counsel for the parties and after appreciating the evidence available on record, the learned Additional Sessions Judge/Special Judge Nainital vide his judgment and order dated 30.1.1997 convicted and sentenced to the accused appellants as discussed above. Against the aforesaid judgment and order dated 30.1.1997, the accused appellants have preferred the present appeal. 9. I have heard learned Amicus Curiae for the appellants and learned Addl. GA for the State and have carefully perused the materials available on the record. 10. Before any further discussion, it would be pertinent to mention here the injuries found on the body of injured Abdul Khalik (PW2) as mentioned in the medical report Ex. Ka-3 and the same are reproduced as under : “Injuries : (1) Incised wound over left pericardium 3 cm apart from nipple 3.5 cm x 1 cm x depth cannot be measured due to bleeding and seriousness of patient. G.C. (general condition), the margins are clear cut, portion of injuries found to medial and upward side, fresh bleeding seen. Advised x-ray of chest, P.A. view. G.C. V.V. low patient in shock Pulse 108 p.m. (per minute) Pallor B.P. 140/80 m.m. of Hg. (2) Abraded contusion over the back 6 cm x 2 cm below the scapula. Bright red colour. Opinion : Injury no. (1) kept under observation. Advised x-ray of chest P.V. view. Patient admitted in V.V. low condition. Injury no. (2) simple caused by hard blunt object. Injury no. (1) by sharp object. Fresh in nature.” 11. After the x-ray report, PW5 Dr. Yogesh Chand has also prepared the supplementary report Ex. Ka-4, which is reproduced as under : “No # rib seen. Cardiac shadow enlarged. Pleural thickening on lateral wall. Opinion : The x-ray chest shows cardiac enlargement and pleural injury. Hence, the injury is dangerous one. (1) by sharp object. Fresh in nature.” 11. After the x-ray report, PW5 Dr. Yogesh Chand has also prepared the supplementary report Ex. Ka-4, which is reproduced as under : “No # rib seen. Cardiac shadow enlarged. Pleural thickening on lateral wall. Opinion : The x-ray chest shows cardiac enlargement and pleural injury. Hence, the injury is dangerous one. Advice : Reference to cardiologist for expert advice.” 12. To prove the aforementioned medical report Ex. Ka-3 and supplementary report Ex. Ka-4, the prosecution has examined PW5 Dr. Yogesh Chandra, who has proved the same and has stated that on 22.1.1991, he was posted as Medical Officer in Ramnagar Hospital. On that day at 6.45 pm, he had medically examined the injured Abdul Khalik (PW2) and found the injuries as mentioned by him in the medical report Ex. Ka-3. The general condition of the patient was very serious and he was under shock. His heart beat was 108 per minute. Injuries were fresh. Injury no. (2) was simple which was caused by blunt object. Injury no. (1) was caused by some sharp edged weapon. After the x-ray of the patient, he also prepared the supplementary report Ex. Ka-4, wherein it was noted that cardiac of the injured was enlarged and pleural injury was also present and, therefore, injury no. (1) was dangerous to life. He has also stated that these injuries might have been caused on 22.1.1991 at 6.30 pm. 13. To further prove its case, the prosecution has examined PW1 Abdul Wahab, the complainant, who has reiterated the version made by him in the FIR Ex. Ka-1 and has stated that the injury was caused to his son Abdul Khalik (PW2) by accused appellant Asgar by knife whereas accused appellant Anwar caught hold of his son. He has proved the FIR Ex. Ka-1 and the memo of bloodstained clothes Ex. Ka-2 which were given to the police at the time of lodging the report. This witness was cross-examined at length by the defence counsel, but nothing has come out which may create any doubt about his statement. The statement of this witness is reliable, believable and inspire the confidence. 14. PW2 Abdul Khalik, the injured witness, who has stated that the incident happened on 22.1.1991. On that day at 4 pm, his father (the complainant) had complained to the accused appellants about the damage to the Parnala. The statement of this witness is reliable, believable and inspire the confidence. 14. PW2 Abdul Khalik, the injured witness, who has stated that the incident happened on 22.1.1991. On that day at 4 pm, his father (the complainant) had complained to the accused appellants about the damage to the Parnala. Accused appellants had told that they would talk in the evening. Thereafter on the same day at 6.30 pm. The accused appellants came to his house and called his father. When he came out of the house followed by his father at the call of the accused appellants, Anwar caught hold of him and Asgar gave knife blow on the left side of his chest. He very well identified the accused appellants. He was taken to the hospital by Abdul Jabbar (PW3) and Sirajuddin, who were coming on the road at that time. He fell down due to the aforesaid injuries and became unconscious. He came to sense only after the medical treatment in the hospital. He has further stated that his sweater, shift, baniyan were taken to the police station by his father. This witness was cross-examined at length by the defence counsel, but he could not be shaken in her cross-examination. Statement of this witness is reliable, believable and inspire the confidence. 15. PW3 Abdul Jabbar, an alleged eyewitness of the incident, who did not support the prosecution story and was declared hostile. 16. PW4 Khalik Ahmad is the scriber of the FIR Ex. Ka-1. He has stated that he scribed the written report Ex. Ka-1 on the dictation of Abdul Wahab (PW1) and it was read over to him and thereafter Abdul Wahab signed on it. 17. PW6 Sagir Ahmad is the witness of recovery of knife which was used in the commission of crime. He has stated that on 23.1.1991 at about 10 am, the recovery of knife was made in his presence from the house of the accused appellant Asgar. The knife was taken out from the western wall of the latrine by accused appellant Asgar, who told that the said knife was used in assaulting Abdul Khalik (PW2). The knife was bloodstained. It was taken into possession by the police and thereafter a fard of recovery Ex. Ka-5 was prepared and he had also signed on it. 18. The knife was taken out from the western wall of the latrine by accused appellant Asgar, who told that the said knife was used in assaulting Abdul Khalik (PW2). The knife was bloodstained. It was taken into possession by the police and thereafter a fard of recovery Ex. Ka-5 was prepared and he had also signed on it. 18. PW7 S.I. Ram Sharan Mishra, the I.O. of the case has stated that on 22.1.1991 he was posted in PS Ramnagar as Sub-Inspector. Investigation of this case was entrusted to him. During the course of investigation, he inspected the place of occurrence and prepared the site plan Ex. Ka-8. He had also collected the bloodstained and plain soil from the place of occurrence and prepared a fard Ex. Ka-9. He also recovered the knife used in the commission of crime on the next day i.e. on 23.1.1991 at about 10 am on the pointing out of the accused appellant Asgar from the western wall of the latrine of his house and prepared a fard Ex. Ka-5. He also prepared the site plan Ex. Ka-10 of the place of recovery of knife. This witness has also proved the fard Ex. Ka-2 of the recovery of bloodstained sweater, shirt and baniyan. He has also proved the chick FIR Ex. Ka-6 and copy of the GD Ex. Ka-7, which were prepared by Constable Clerk Nar Ram. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation filed the chargesheet Ex. Ka-11 against the accused appellants. 19. Thereafter, statements of the accused appellants were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. But they did not file any documentary or oral evidence in defence. 20. Learned Amicus Curiae for the accused appellants argued that the prosecution has not proved the case against the appellants beyond reasonable doubt for the offence punishable under Section 307 read with Section 34 IPC. But they did not file any documentary or oral evidence in defence. 20. Learned Amicus Curiae for the accused appellants argued that the prosecution has not proved the case against the appellants beyond reasonable doubt for the offence punishable under Section 307 read with Section 34 IPC. I do not find any substance in the argument of the learned Counsel for the appellants for the following reasons : (i) That PW2 Abdul Khalik, the injured witness, has stated that on 22.1.1991 at 4 pm, his father Abdul Wahab (PW1) had complained to the accused appellants about the damage to the Parnala. Accused appellants had told that they would talk in the evening. Thereafter on the same day at 6.30 pm, the accused appellants came to his house and called his father. When he came out of the house followed by his father at the call of the accused appellant Anwar caught hold of him while Asgar gave knife blow on the left side of his chest. This witness has stated that he very well identified the accused appellants. He fell down due to the aforesaid injuries and became unconscious. He was taken to the hospital. He came to sense only after the medical treatment in the hospital. His bloodstained clothes i.e. sweater, shirt and baniyan were taken to the police station by his father. This witness was cross-examined at length by the defence counsel, but he could not be shaken in her cross-examination. Statement of this witness is reliable, believable and inspire the confidence. He is the best person who could narrate the facts in support of the case. There is no reason to disbelieve his testimony. (ii) That the statement of PW2 Abdul Khalik is corroborated by the statement of PW1 Abdul Wahab, the complainant and an eyewitness of the incident. He was also cross-examined at length by the defence counsel, but he could not be shaken in his cross-examination. (iii) That PW2 Abdul Khalik was medically examined by PW5 Dr. Yogesh Chand on 22.1.1991 at 6.45 pm, who prepared the medical report Ex. Ka-3. He advised x-ray of chest and after the x-ray, he also prepared the supplementary report Ex.Ka-4. PW5 Dr. Yogesh Chand has proved the aforesaid reports Ex.Ka-3 and Ka-4 and has stated that in his report as well as in his deposition that injury no. Yogesh Chand on 22.1.1991 at 6.45 pm, who prepared the medical report Ex. Ka-3. He advised x-ray of chest and after the x-ray, he also prepared the supplementary report Ex.Ka-4. PW5 Dr. Yogesh Chand has proved the aforesaid reports Ex.Ka-3 and Ka-4 and has stated that in his report as well as in his deposition that injury no. (1) was dangerous to life and caused by sharp edged weapon. Injury no. (2) was simple and was caused by blunt object. Both the injuries were fresh and could be caused on 22.1.1991 at 6.30 pm. He has further stated that the general condition of the patient was very low and serious. His pulse and BP was very high and the patient was under shock. He has also noted that cardiac of the injured was enlarged and pleural injury in the lung was also present. Therefore, injured Abdul Khalik was referred to Cardiologist for expert advice. Thus, the ocular version of prosecution is corroborated by the medical evidence. (iv) That the knife used in the commission of crime was recovered on the next day of the incident i.e. on 23.1.1991 on at about 10 am the pointing out of accused appellant Asgar from the western wall of the latrine of his house. The recovery was immediate and was made in the presence of independent witness Sagir Ahmad (PW6). The knife was bloodstained and the accused appellant Asgar admitted that it was the same knife which was used in the commission of crime. (v) That the motive behind the said incident is also proved as it has come in the evidence that the accused appellants had damaged the Parnala of the house of Abdul Wahab (PW1), who made complaint to them but they told that the matter would be seen in the evening and later on the same day at 6.30 pm, they came at the house of the complainant and caused the injuries to Abdul Khalik (PW2), who came out of the house on the call of the accused appellants. (vi) That the incident took place on 22.1.1991 at 6.30 pm and the injured was taken to the hospital where he was medically examined at 6.45 pm by PW5 Dr. Yogesh Chand and the report of this incident was immediately lodged in the police station on the same day at 7.15 pm. Therefore, FIR is also prompt. 21. (vi) That the incident took place on 22.1.1991 at 6.30 pm and the injured was taken to the hospital where he was medically examined at 6.45 pm by PW5 Dr. Yogesh Chand and the report of this incident was immediately lodged in the police station on the same day at 7.15 pm. Therefore, FIR is also prompt. 21. Thus, the foregoing discussion of the evidence goes to establish that on 22.1.1991 at 6.30 pm, accused appellants Asgar and Anwar, with common intention to kill, assaulted Abdul Khalik. Anwar caught hold of Abdul Khalik while Asgar gave khife blow in left side of his chest, due to which he fell down and became unconscious. Thereafter he was taken to the hospital and after the diagnosis, it was found by PW5 Dr. Yogesh Chand that the cardiac of the injured was enlarged and pleural injury in the lung was also present which was caused by sharp edged weapon like knife at 6.30 pm on 22.1.1991. 22. Thus, for the reasons recorded above, the prosecution has successfully proved its case beyond reasonable doubt against the accused appellants for the offence punishable under Section 307 read with Section 34 IPC. As such, the impugned judgment and order dated 30.1.1997 is justified and correct and it warrants no interference by this Court. 23. In the result, the appeal being devoid of merit is hereby dismissed. The judgment and order dated 30.1.1997 passed by the Additional Sessions Judge/Special Judge, Nainital in Sessions Trial No. 98 of 1991, State v. Asgar & Anr., convicting the accused appellants Asgar and Anwar under Section 307 read with Section 34 IPC is hereby upheld and sentence of five years R.I. awarded to each of the accused appellants is hereby also confirmed. Appellants are on bail. Their bail bonds are cancelled. They shall be taken into custody forthwith to serve out the sentence. However, the period during the appellants were in jail during investigation, trial and appeal shall be adjusted after verifying the same from the records. 24. A copy of this judgment and order be sent to the lower court for its compliance. The lower court record be sent back.