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2012 DIGILAW 531 (UTT)

HADIS v. STATE OF U. P.

2012-09-05

PRAFULLA C.PANT

body2012
JUDGMENT Hon’ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 30.06.1998, passed by learned Sessions Judge, Nainital, in Session Trial No. 322 of 1995, whereby said court has convicted accused/appellant Hadis under section 307 read with section 34 IPC, and sentenced him to rigorous imprisonment for a period of five years and directed to pay fine of Rs. 1,000/-. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is that on 18.03.1991, P.W.1 Ashraf Ali who was aged 14 years had gone to his school. At the time of the interval he was standing outside his school when co-accused Salim came in a three wheeler to him. Co-accused Salim was known to the boy (Ashraf Ali) as he was nephew of Idrish (servant of his father). Co-accused Salim had cooked up a story and told P.W.1 Ashraf Ali that some persons have conspired to kidnap him, and asked him to sit in the three wheeler so that he may take him to his house. On the way co-accused Salim advised the boy that for the purposes of safety they should go through the sugarcane field. Thereafter, as soon as the two entered in the sugarcane field on foot, present accused/appellant Hadis armed with country made pistol was found standing there. P.W.1 Ashraf Ali got frightened as he saw the present accused/appellant standing armed with country made pistol. He stared running. On this, co-accused Salim took country made pistol from the present accused/appellant Hadis, and fired shot on the leg of P.W.1 Ashraf Ali and injured him on his thighs and scrotum. On hearing sound of fire, two persons namely Bariyam Singh and Ilahi Baksh came there, and on seeing the witnesses the two accused ran away. Bariyam Singh took P.W.1 Ashraf Ali to the Government Hospital for his treatment. First Information Report (Ex. A1) of the incident was lodged on the same day at 13:20 hours by P.W.2 Sher Ali (uncle of the injured) with Police Station Bazpur, after getting information through Ilahi Baksh. On the basis of the FIR crime no. 147 of 1991, was registered relating to offence punishable under section 307 IPC against both the accused Salim and Hadis. Meanwhile, P.W.3 Dr. On the basis of the FIR crime no. 147 of 1991, was registered relating to offence punishable under section 307 IPC against both the accused Salim and Hadis. Meanwhile, P.W.3 Dr. Hariom Pandey examined the injuries on the person of the Ashraf Ali (P.W.1) at 12:30 p.m, and prepared injury report (Ex. A2). Investigation appears to have been made by Sub Inspector Ved Prakash who submitted charge sheet only against accused Hadis for his trial in respect of offence punishable under section 307 IPC. In the charge sheet name of co-accused Salim who could not be arrested was shown in the column of absconder. 4. The Magistrate, on receipt of the charge sheet (Ex. A7), after giving necessary copies to the accused as required under section 207 Cr.P.C., appears to have committed the case to the court of Sessions for trial. On 24.01.1996, the trial court after hearing the parties, framed charge of offence punishable under section 307 read with section 34 IPC, against accused Hadis to which he pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Ashraf Ali, P.W.2 Sher Ali, P.W.3 Dr. Hariom Pandey and P.W.4 Ilahi Baksh (declared hostile). Learned defence counsel appears to have dispensed with formal proof of the documents and admitted the genuineness and the same were exhibited on the record as proved papers. The oral and documentary evidence was put to the accused Hadis in reply to which he stated the same is false. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that the prosecution has successfully proved charge of offence punishable under section 307 read with section 34 IPC against accused Hadis. Accordingly, he was convicted, and after hearing on sentence, sentenced to rigorous imprisonment for a period of five years and directed to pay fine of Rs. 1,000/-. Aggrieved by said judgment and order dated 30.06.1998, passed by learned Sessions Judge, Nainital, in Sessions Trial No. 322 of 1995, this appeal was filed by the convict before Allahabad High Court from where it is received by transfer under section 35 of U.P. Reorganization Act, 2000 (Central Act 2000) for its disposal. 5. Before further discussion this Court thinks it just and proper to mention the injury recorded by P.W. 4 Dr. 5. Before further discussion this Court thinks it just and proper to mention the injury recorded by P.W. 4 Dr. Hariom Pandey on 18.03.1991, at 12:30 hours found on the person of Ashraf Ali (P.W.1), in the injury report (Ex. A2). The same is being reproduced below: “Lacerated wound involving medial side of both thighs upper fore with left scrotum in an area measuring 7cm x 6cm. Depth not proved. Fresh bleeding present. Charring was also present but no blackening. Opinion injury has been caused by fire arm. Duration fresh. Nature kept under observation.” 6. Now this Court has to examine whether accused/appellant Hadis had any common intention in causing aforesaid injury on person of P.W.1 Ashraf Ali by co-accused Salim (absconder). 7. P.W.1 Ashraf Ali is the star witness who was young boy aged 14 years on the day of incident. He has disclosed his age 20 years on 03.01.1998, when his statement was recorded by the trial court. P.W.1 has stated that on 18.03.1991, he had gone to school. He further states that during interval period he was standing outside his school when co-accused Salim came in a three wheeler. He further told that Salim was known to him as he was nephew of Idrish who was servant of his father. According to this witness Salim told him that he (Ashraf Ali) is likely to be kidnapped by some persons, and asked him to accompany him so that he could leave him in his house. Believing his story P.W.1 Ashraf Ali went with co-accused Salim. P.W.1 Ashraf Ali further narrated that near K.B. Road Salim advised him to take route of sugarcane field and the two entered in it. P.W.1 further stated that as soon as he entered in the sugarcane field accused/appellant Hadis was standing there with a country made pistol and on seeing him he got frightened and started running. On this, Salim took country made pistol from Hadis and fired shot on his legs and testicles. He further told that on hearing sound of fire, two persons Bariyam Singh and Ilahi Baksh came there. On seeing above witnesses the two accused ran away. P.W.1 Ashraf Ali has stated that Bariyam Singh took him immediately to the Government Hospital, Bazpur. 8. The prosecution story narrated by the aforesaid injured witness is fully corroborated from the medical evidence on record already discussed above. On seeing above witnesses the two accused ran away. P.W.1 Ashraf Ali has stated that Bariyam Singh took him immediately to the Government Hospital, Bazpur. 8. The prosecution story narrated by the aforesaid injured witness is fully corroborated from the medical evidence on record already discussed above. Though P.W.4 Ilahi Baksh turned hostile but the testimony of P.W.1 Ashraf Ali does not require any corroboration for the reason that when the incident took place it was he alone (with the two accused) who was inside the sugarcane field. P.W.2 Sher Ali (uncle of the injured) has stated that when he came to know of the incident through Ilahi Baksh he lodged FIR (Ex. A1) at Police Station. He has proved the FIR. 9. Learned counsel for the appellant argued before this Court that it was co-accused Salim who fired the shot at the boy (Ashraf Ali), as such it cannot be said that accused/appellant Hadis had any common intention with Salim in committing the crime. I have carefully gone through the evidence on record. Considering the fact that accused/ appellant Hadis was already hiding inside the sugarcane field armed with the pistol, and further considering the fact that co accused Salim took the young boy (Ashraf Ali) there by telling him a false story clearly suggests that the two (Salim and Hadis) had prior meeting of minds for commission of crime. As such, this Court is unable to accept the contention advanced on behalf of the appellant that appellant had no common intention with Salim in commission of the crime. 10. It is also argued before this Court that assuming that co-accused Salim fired shot at P.W.1 Ashraf Ali, after taking country made pistol from the hands of appellant Hadis but since the injury was on the non vital part of the body as such the offence, if any, committed is covered under section 324 IPC, and not under section 307 IPC. In reply to this learned counsel for the State submitted that since fire could have hit on the vital part of the body as such it should be treated to be a case of attempt to commit murder with common intention. This Court has examined medical evidence on record carefully. There is charring reported by the medical officer around the injury suffered by P.W.1 Ashraf Ali which suggests that fire has been shot with a close range. This Court has examined medical evidence on record carefully. There is charring reported by the medical officer around the injury suffered by P.W.1 Ashraf Ali which suggests that fire has been shot with a close range. Resultantly, it indicates that the fire was intentionally shot on the non vital part so that the injured may not be die. That being so, in the present case the offence committed by the accused/appellant Hadis is proved on record constitutes only offence punishable under section 324 IPC. 11. Therefore, the appeal is partly allowed. Conviction of accused/appellant Hadis recorded under section 307 read with Section 34 IPC, is set aside, and he is convicted under section 324 read with section 34 IPC. The sentence recorded by the trial court under section 307/34 IPC is set aside, and accused/appellant Hadis is sentenced under section 324/34 IPC to rigorous imprisonment for a period of two years. With this modification in the conviction and sentence, the appeal is disposed of. The period already undergone shall be adjusted and remaining part of the sentence shall be served out. The accused/appellant Hadis is on bail. His bail is cancelled. Lower court record be sent back to make the accused/appellant Hadis to serve out the remaining part of the sentence.