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2012 DIGILAW 337 (UTT)

IMRAN v. STATE OF U. P.

2012-06-29

SERVESH KUMAR GUPTA

body2012
Judgment Hon’ble Servesh Kumar Gupta, J. This appeal is preferred against the judgment and order of conviction dated 4.2.1999, passed by Additional Sessions Judge (E.C. Act), Dehradun in Sessions Trial No. 294/1995, State v. Imran. Accused appellant Imran was tried for the offence of Section 308 IPC pertaining to PS Vikas Nagar, District Dehradun, but after conclusion of trial, instead of Section 308 IPC, accused was convicted for the offence of Section 325 IPC and sentenced to undergo rigorous imprisonment for a period of three years and a fine of rupees one thousand. In default of payment of fine, he was further directed to undergo two months’ simple imprisonment. 2. Facts, in brief, are that the accused and the complainant are next-door neighbours. Their respective houses are separated just by a 4 feet high wall. It has been averred in the FIR Ex. A-1 that on 30.5.1995, Smt. Bala Devi, mother of informant Rakesh Kumar, was washing clothes in the backyard of her house. The accused appellant Imran was lecherously staring at his mother. He also threw a bone covered by flesh in his house. Consequently, altercations began between the informant Rakesh Kumar and his mother on the one hand and the accused Imran on the other. On the intervention of the neighbours, namely, Gurbachan Singh, owner of Sardar Hotel Khalsa Dhaba, and Bhagat Singh, the dispute, arisen out on account of throwing of the bone, could be amicably settled between the parties. Earlier too, Imran had thrown bones on many occasions in the house of the informant. It was further averred that the accused Imran also threatened Shivcharan (father of informant) that he would teach him a lesson by the evening of that day itself and also held out a threat to kill him. 3. It was also alleged that on the date of incident i.e. on 30.5.1995 at 10 pm, when Rakesh along with his father Shivcharan were going somewhere in connection with their business, Imran, armed with a “danda” (baton), came in their way and began to assault Shivcharan with intention to kill him. As a result of the assault by Imran, the right leg of Shivcharan got fractured and he suffered injuries on many parts of his body. Blood started oozing out from the injuries. Consequently, his father became unconscious at the spot. Many persons came at the spot. As a result of the assault by Imran, the right leg of Shivcharan got fractured and he suffered injuries on many parts of his body. Blood started oozing out from the injuries. Consequently, his father became unconscious at the spot. Many persons came at the spot. So, Imran escaped from the scene of crime. Mr. Rakesh immediately rushed to the nearby police outpost at Dakpathar and lodged the report. The chick report is Ex. A-3. 4. The investigation commenced and the police recovered the baton which was the weapon used by the accused for assaulting Shivcharan. Recovery memo is Ex. A-5. Police also took into possession the bloodstained clothes of the injured and prepared recovery memo Ex. A-2. After completion of the investigation, police submitted the chargesheet against Imran for the offences under Section 308, 325, 506 IPC. Police also got Shivcharan (injured) examined in Doon Hospital, Dehradun in the intervening night of 30/31.5.1995 at 12.20 am, where he was medically examined by PW6 Dr. S.K. Nautiyal, who also prepared the medical report Ex. A-7. Following injures were found on his body: (i) Lacerated wound 4 cm x 2 cm muscle deep in the left side of forehead, little above eyebrow. Fresh bleeding was present. (ii) Lacerated wound 3 cm x 1 cm muscle deep on the dorsal side of left arm, 5 cm below the elbow joint. (iii) Lacerated wound 4 cm x 1 cm scalp deep on the left side of head, 4 cm above the left ear. (iv) Lacerated wound 0.5 cm x 0.5 cm bone deep in right leg, 11 cm below the knee, swelling was present all around this injury in the area of 16 cm x 28 cm. (v) Abraded contusion reddish in colour with swelling 11 cm x 16 cm on the dorsal side of right arm, beneath the right elbow. (vi) Injured also complained of pain in chest. Injury no. (i), (iii), (iv), (v) & (vi) were kept under observation and x-ray was advised. 5. X-ray was done by PW5 Dr. B.C. Ramola, Radiologist and he has also proved his x-ray report Ex. A-6, wherein fracture in tibia fibula bone was reported. Injured remained hospitalised for quite sometime. 6. Learned Sessions Judge levelled the charge against the accused appellant only for the offence of Section 308 IPC. Charges for rest of the offences, under which chargesheet was filed, were not framed. 7. A-6, wherein fracture in tibia fibula bone was reported. Injured remained hospitalised for quite sometime. 6. Learned Sessions Judge levelled the charge against the accused appellant only for the offence of Section 308 IPC. Charges for rest of the offences, under which chargesheet was filed, were not framed. 7. Prosecution, in order to prove its case, examined as many as seven witnesses. PW1 Rakesh, son of the injured, was present at the time of incident. Since his father Shivcharan earned his livelihood by doing work related to weddings, so he was going along with him (Rakesh) on the relevant date and time for arranging some labour. This witness has proved the incident and has narrated that on 30.5.1995, Imran had thrown bones in his house, which resulted in a verbal duel. The matter was subsided by the intervention of neighbours, yet Imran extended the threat to kill his father. At the relevant time, at about 10 pm, he was going along with his father to arrange some labour. When they reached in front of a wine shop near the police outpost of Dakpathar, Imran came and assaulted Shivcharan with a baton in his hand. His father suffered injuries on many parts of his body (above eye and on the head) including a fracture in his right leg. As a consequence of these injuries, blood started oozing out and he became unconscious and fell down at the spot. 2-4 persons came at the spot and on seeing them, Imran fled from the scene. Rakesh and one Roshan Dobhi brought the injured to the said police outpost where the report was lodged. Since the report was lodged just within half an hour of the incident, therefore, there could not be any possibility or chance of any manipulation. 8. It has been argued by learned Counsel for the appellant that Rakesh is not an eyewitness of the incident as had he present there, he would have tried to save his father. But in his testimony, he has admitted that he did not try to save his father when the accused was assaulting him. Thus, learned Counsel argued that this conduct of Rakesh was somewhat unnatural. The contention of learned Counsel is not tenable for the reason that Rakesh at the time of incident was less than 15 years of age. So. He was just an adolescent. Thus, learned Counsel argued that this conduct of Rakesh was somewhat unnatural. The contention of learned Counsel is not tenable for the reason that Rakesh at the time of incident was less than 15 years of age. So. He was just an adolescent. When the accused, aged about 43 years, was assaulting his father with a baton in his hand and that too severely, then the mental agony of such an adolescent boy can be felt and understood. Moreover, Rakesh has stated in his cross-examination that he became frightened and could not muster courage to save his father from the assault of Imran. He was not only hapless but helpless as well. However, he made the shrieks, and on hearing his shrieks, many passers-by came at the spot. 9. Learned Counsel for the appellant has contended that there is a procedural lapse in the investigation as the recovery memo of the baton Ex. A-5 was prepared at the police outpost itself. In the opinion of the Court, this does not affect the merits of the case because the scene of crime was just at a distance of 5-6 paces from the police outpost. So, if the recovery memo was prepared at the police outpost, it cannot be said to be fatal to the case of prosecution. 10. PW2 Shivcharan is the injured eyewitness. He has fully proved the incident committed by the accused Imran. He has deposed that as Imran pounced over him and gave repeated blows of baton, he fell down and became unconscious. Statement of PW1 Rakesh stands fully corroborated by this witness, and his deposition is also in consonance with the details given in the medical reports Ex. A-6 and A-7 prepared by Dr. B.C. Ramola (PW5) and Dr. S.K. Nautiyal (PW6) respectively. 11. PW3 Constable Omveer Singh is a formal witness. He has prepared the chick report and entered necessary details in the general diary vide GD Entry No. 24. He has proved the copy of chick report as Ex. A-3. He has also stated that blood was oozing out from the injuries of Shivcharan. He has also mentioned about the injuries, which were visible from the naked eyes. 12. PW4 Ramotar is an independent witness, who arrived at the spot on hearing the shrieks and found that the accused was severally beating Shivcharan. A-3. He has also stated that blood was oozing out from the injuries of Shivcharan. He has also mentioned about the injuries, which were visible from the naked eyes. 12. PW4 Ramotar is an independent witness, who arrived at the spot on hearing the shrieks and found that the accused was severally beating Shivcharan. When he arrived at the spot along with few other persons, accused left the spot hurling abuses. He has also proved that Shivcharan was drifting in and out from the consciousness and was writhing with pain. His son carried him to the police outpost. He has also proved that on 1.6.1995, when he went to Doon Hospital to see Shivcharan, police took into possession the bloodstained trouser and shirt of the injured. Recovery memo thereof was also prepared, which is Ex. A-2. He has proved the factum of giving repeated blows of baton to the injured at the hands of the accused. 13. PW7 is Station Officer Tejveer Singh, who had investigated the matter and thereafter submitted the chargesheet Ex. A-10. 14. Accused, in his statement under Section 313 CrPC, has denied the incident. His defence is that his being a sole family of Muslim community in that locality has been falsely implicated in this case. He has further stated that the injuries upon the body of Shivcharan could have been caused on account of his falling from the hills in a quarrel with his labour. This statement being fictitious is not only illusive but also funny and has no leg to stand. Learned Counsel for the accused suggested yet another and equally mythical cause by arguing that the injured might have had suffered those injuries on account of his falling on the road after consuming liquor. 15. The case against the accused appellant is proved beyond any shadow of doubt. Learned Counsel for the accused appellant failed to point out any clinching evidence in his favour. He pointed out some minor discrepancies here and there in the statements of witnesses, which are not so significant and the same lend no support to the accused appellant as it is settled principle of law laid down by the Hon’ble Apex Court in so many cases that discrepancies in evidence may render credential to the depositions. Parrot like statements are disfavoured by the Courts. Mere congruity or consistency in the depositions is not the sole test of truth. Parrot like statements are disfavoured by the Courts. Mere congruity or consistency in the depositions is not the sole test of truth. In this regard, precedent of Hon’ble Apex Court rendered in the case of State of Himachal Pradesh v. Lekh Raj & Others, reported in 1999(3) A.Cr.R. 2754 S.C. is notable. 16. The contention of learned Counsel for the accused appellant that all the witnesses have not been examined by the prosecution before the trial court has no substance inasmuch as the Hon’ble Apex Court has laid down that the prosecution story cannot be thrown out merely on the basis that some witnesses could not be produced by the prosecution because it is not essential to examine each and every witness present at the spot when the case of prosecution is already proved by other witnesses examined by it. 17. Accused has also produced DW1 Dilshad in his defence. Undisputedly, he is not an eyewitness. He has only signed on the recovery memo of baton Ex. A-5. However, in his statement he has not admitted his signatures and refused the same. But the initials put by this witness Dilshad below his statement made in the trial court completely resemble with the signatures on Ex. A-5. So, it is clear that this witness is lying. Moreover, his statement does affect the merits of the case. 18. As has been discussed above, the ocular version of the prosecution is corroborated by the medical evidence. FIR is also prompt. Moreover, an independent eyewitness has corroborated the prosecution story before the court below. Thus, the guilt of accused is proved and the learned trial court has rightly recorded the finding of conviction against the accused appellant, which needs no interference by this Court. 19. Learned Counsel for the accused appellant pleaded mercy of the Court on the quantum of sentence. He stated the punishment awarded to the accused appellant by the trial court is not commensurate with the guilt of the accused. Considering the fact that the incident is more than seventeen years old and the accused appellant is about 60 years old, this Court deems it proper that the punishment of two years’ rigorous imprisonment would meet the ends of justice. 20. Resultantly, the appeal is partly allowed. Conviction of the accused Imran is affirmed. Considering the fact that the incident is more than seventeen years old and the accused appellant is about 60 years old, this Court deems it proper that the punishment of two years’ rigorous imprisonment would meet the ends of justice. 20. Resultantly, the appeal is partly allowed. Conviction of the accused Imran is affirmed. However, sentence of rigorous imprisonment is reduced from three years to two years, keeping intact the punishment of fine. Impugned judgment and order dated 4.2.1999, passed by Additional Sessions Judge (E.C. Act), Dehradun in Sessions Trial No. 294/1995, State v. Imran, is modified to the extent indicated above. Accused appellant Imran is already in jail. He will serve out the modified sentence. However, the period during which he remained behind bars during investigation, trial and appeal shall be adjusted after verifying the same from the records. 21. Let a copy of this judgment and order be sent to the trial court for its compliance. Lower court record be also sent back.