Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 415 (UTT)

TUFAIL AHMAD v. STATE OF UTTARAKHAND

2013-07-01

Barin Ghosh, Servesh Kumar Gupta

body2013
JUDGMENT Per : Servesh Kumar Gupta, J. By way of this appeal, the appellant Tufail Ahmad has challenged the judgment and order dated 20.5.2009/25.5.2009, passed by the Sessions Judge, Champawat in Sessions Trial No. 17/2005, whereby the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life along with fine of Rs. 25,000/-. However, the appellant has been acquitted for the offence punishable under Section 201 IPC. 2. Prosecution story, in brief, is that Surendra Pal (PW1) lodged an FIR on 23.7.2005 at 9.25 PM with the averments that he was the Coordinator of the Rickshaw Tanga Union. He used to allot the number to the horse carts which were being plied daily. As usual, in the evening of 23.7.2005, near the Poornagiri Temple situated in front of the mosque, he was noting the numbers given to the horse-carts, which were to be plied on the next day, in his diary. At about 9.15 O’clock in the night, he heard noise of shouting coming from the road, near the bus stand, which goes to the mosque. On hearing the noise, the complainant immediately went there, where he saw that the accused appellant Tufail Ahmad, who is known to him since before, assaulted Sonu by knife with intention to kill him and made him severely injured, and fled away thereafter along with the knife. He has further averred that Mobin Khan, shopkeepers of the locality and other people had instantly seen the incident in the electric light, and these people identify and know the assailant. With these averments, this report Ex. Ka-1 was lodged with PS Banbasa, on the basis of which chick report Ex. Ka-7 was prepared. 3. After the registration of the aforesaid crime, the criminal justice machinery came into motion. Meanwhile, the injured Sonu succumbed to his injuries in the night of the incident itself. Investigation of this case was taken up by PW10 Inspector V.C. Pant. Inquest report Ex. Ka-2 was prepared on 24.7.2005. Relevant papers were prepared by the police and the dead body was sent for the post-mortem examination. Autopsy was conducted on 24.7.2005 at 2.45 PM by PW6 Dr. KC Thakur. The Investigation Officer collected the bloodstained and plain soil mixed with pebbles from the spot and prepared the recovery memo Ex. Ka-3. He inspected the place of occurrence and prepared the site plan Ex. Autopsy was conducted on 24.7.2005 at 2.45 PM by PW6 Dr. KC Thakur. The Investigation Officer collected the bloodstained and plain soil mixed with pebbles from the spot and prepared the recovery memo Ex. Ka-3. He inspected the place of occurrence and prepared the site plan Ex. Ka-11 on the pointing out of the complainant Surendra Pal. Accused was arrested at 2.15 PM on 24.7.2005. The bloodstained clothes, which the accused was wearing, were taken into possession and recovery memo thereof Ex. Ka-4 was prepared. Knife, used in the commission of crime, was recovered on the pointing out of the accused. Its recovery memo is Ex. Ka-5. Site plan Ex. Ka-12 of the place of recovery was also prepared. Statement of the accused appellant, under Section 164 CrPC, was recorded by the concerned Magistrate, in which he confessed to his guilt. The clothes of the accused, the knife and the bloodstained and plain soil mixed with the pebbles were sent for the forensic examination, reports thereof are Ex. Ka-17 and Ka-18. After the investigation, the police submitted the chargesheet Ex. Ka-15 for the offences punishable under Section 302 and 201 IPC against the accused appellant. 4. Learned Sessions Judge, Champawat framed the charges against the accused appellant for the offences under Section 302 and 201 IPC. The accused denied the charges and claimed to be tried. The trial ended into the conviction of the accused appellant for the offence under Section 302 IPC, and he was sentenced appropriately by the learned Sessions Judge, Champawat vide his judgment and order dated 20/25.5.2009. Hence, this appeal. 5. Prosecution, in order to prove its case, has examined as many as 11 witnesses. PW1 Surendra Pal is the complainant; PW2 Mobin Khan, PW4 Laxman Singh and PW5 Sunil Sagar are the eyewitnesses of the incident; PW3 Mahesh Chand Dube and PW7 Dhruvpal are the witnesses of recovery of knife and the bloodstained clothes, which the accused was wearing at the time of his arrest; PW6 is Dr. KC Thakur, who conducted the post-mortem examination on the person of the deceased; PW8 is SI 4 Bhupal Singh, who registered the crime and made the necessary entries in the G.D.; PW9 is Constable Laxman Chand, who has written the recovery memo Ex. KC Thakur, who conducted the post-mortem examination on the person of the deceased; PW8 is SI 4 Bhupal Singh, who registered the crime and made the necessary entries in the G.D.; PW9 is Constable Laxman Chand, who has written the recovery memo Ex. Ka-4; PW10 is Inspector V.C. Pant, who made investigation into the crime and ultimately submitted the chargesheet against the accused; and PW11 is Ajay Chaudhary, the then Judicial Magistrate, Champawat, who had recorded the 164 CrPC statement of the accused. 6. Before commenting anything on the merits of the appeal, we think it just and proper to mention the ante mortem injuries, found on the person of deceased Sonu, as recorded in the post-mortem report Ex. Ka-6. This report was prepared by PW6 Dr. KC Thakur, who had conducted the autopsy on 24.7.2005 at 2.45 PM. These ante mortem injuries are reproduced as under: (i) Stab wound with clotted blood, oval in shape, size 2 cm x 1.5 cm x deep up to left ventricle of heart, margins are clear cut and everted on front of left side of chest, 3.5 cm above and medial from left nipple. (ii) Incised wound 1 cm x 0.5 cm x muscle deep on lower part of chest, 12 cm below from right nipple, margins are clear cut and everted, clotted blood present over wound. (iii) Incised wound 3 cm x 1 cm x muscle deep on left forearm on exterior aspect, 3 cm above from left wrist joint. (iv) Two incised wound, each size 2 cm x 0.5 cm, 3 cm x 1 cm over flexor aspect of left hand, 2 cm above from wrist joint. The doctor has opined that the deceased died, 12 to 24 hours prior to conducting the post-mortem examination, on account of haemorrhage and shock due to the aforementioned ante mortem injuries. 7. Having heard learned Amicus Curiae for the appellant and learned Counsel for the State and on considering the materials available on the record, we, for the reasons to be discussed hereinafter, are of the considered opinion that there is clinching evidence against the accused appellant that he committed the alleged crime. 8. The complainant Surendra Pal has been examined as PW1. In his statement, he has reiterated the averments made by him in the report Ex. Ka-1. He has stated that he was the Coordinator of the Rickshaw Union, Banbasa. 8. The complainant Surendra Pal has been examined as PW1. In his statement, he has reiterated the averments made by him in the report Ex. Ka-1. He has stated that he was the Coordinator of the Rickshaw Union, Banbasa. He used to allot the numbers to the rickshaws and the horse-carts in order to make the timetable of the day that at what particular time a rickshaw/horse-cart will depart. During the course of his business, on 23.7.2005, he heard the noise at 9.15 O’clock in the night. It was coming out from near the main road. He rushed there and saw that the accused appellant Tufail Ahmad assaulted Sonu (deceased) with knife. On being assaulted, Sonu fell down and started to writhe. The witness has stated that he saw this incident at the spot in the light of electricity. He has further stated that besides him, this incident was also seen by Mobin Khan and other shopkeepers of the vicinity. He has stated that after giving the blows of knife, the accused Tufail Ahmad fled away from the spot. He has proved the report Ex. Ka-1. He was also one of the Panches in the inquest report. This witness was cross-examined at length, but he could not be shaken. 9. We further find that the statement of complainant is corroborated by the statement of PW2 Mobin Khan, who is also an eyewitness of the incident. He has stated that on 23.7.2005, at 9.15 O’clock in the night, he was in his shop. Shop of Raju was next to his shop. There was a wooden cot in front of these two shops. Many people, sitting on this wooden cot, were watching television. Sonu (deceased) was also among them. He used to ply horse-cart. All of a sudden, accused appellant Tufail Ahmad came from the left side and assaulted Sonu with knife. It sparked stampede among the people. After stabbing Sonu, the accused appellant Tufail Ahmad fled away towards Banbasa Police Station. He also ran after the accused. This witness has stated that Sunil Sagar and other people were present at the place of occurrence. He has further stated that the on receiving the stab wounds, Sonu fell down and blood started oozing out from his wounds. He has stated that he saw the incident in the light of electricity. Subsequently, Sonu was removed to Khatima Hospital. This witness has stated that Sunil Sagar and other people were present at the place of occurrence. He has further stated that the on receiving the stab wounds, Sonu fell down and blood started oozing out from his wounds. He has stated that he saw the incident in the light of electricity. Subsequently, Sonu was removed to Khatima Hospital. On seeing the bloodstained knife, this witness has stated in the Court that it was the same knife with which the accused had stabbed Sonu. He has stated that two-three blows of this knife were given to Sonu. Despite searching lengthy cross-examination, this witness could not be shaken, and nothing material could be elicited to disbelieve the testimony of the witness. 10. PW4 Laxman Singh and PW5 Sunil Sagar are also the eyewitnesses of the incident. In their deposition, they have also corroborated the prosecution story. Opportunity to cross-examine these witnesses was given to the defence, but none of these two witnesses was cross-examined. As such, their testimony remains unrebutted. Thus, we find that the prosecution has examined as many as four eyewitnesses and all of them have supported the prosecution version. 11. As regards the recovery of knife and clothes, PW3 Mahesh Chand Dube, PW7 Dhruvpal and the Investigation Officer PW10 Inspector V.C. Pant have proved the recovery of knife and the bloodstained clothes of the accused. The knife was recovered at the instance of accused appellant himself, and the blood, albeit in disintegrated form, was found on the knife. Forensic analysis established that it was human blood, as has been revealed in the report of Forensic Science Laboratory, Ex. Ka-16. This report of the Scientific Officer has been forwarded by the Assistant Director of the Forensic Science Laboratory, Agra. Hence, in accordance with the provisions contained under Section 293 CrPC, this report can be used as evidence. 8 12. In the statement under Section 313 CrPC, when the question was put to the accused, he has admitted the aforesaid recovery of knife, at his instance, by the Investigation Officer Mr. Pant, but he developed his version by adding the afterthought that the police planted the same. As such, this afterthought explanation is not believable. 13. Upon forensic analysis, it was also revealed that the human blood was present on all the articles sent for the examination. Pant, but he developed his version by adding the afterthought that the police planted the same. As such, this afterthought explanation is not believable. 13. Upon forensic analysis, it was also revealed that the human blood was present on all the articles sent for the examination. Among these articles, blood of ‘B’ group was found on the pant, shirt, T-shirt, underwear and undervest of the accused, and the said blood group matched with the blood group of the deceased and to that of the blood found on the clothes recovered from the body of the deceased. When the question was put to the accused appellant in this regard, in his statement under Section 313 CrPC, he failed to offer any explanation therefor. 14. Thus, we gather from the evidence on record that the deceased was a local horse-cart puller and he was stabbed in full public view. Prosecution has examined as many as four eyewitnesses and all of them have supported the prosecution version. All of them, being either the shopkeepers or related to occupation of cart pulling, happen to be the natural witnesses. There is nothing to doubt their presence at the place of occurrence. Two of them, namely PW4 Laxman Singh and PW5 Sunil Sagar, were not even cross-examined though the opportunity for the same was given. Hence, their testimony remains unrebutted. Moreover, medical evidence also corroborates the ocular testimony adduced on behalf of the prosecution. Time of lodging the FIR further strengthens the case of the prosecution. FIR was lodged just after ten minutes of the incident, by a person who was not a relative of the deceased. He just knew him because he was the Coordinator of the Rickshaw Tanga Union, and the deceased was working as a horse-cart puller under his supervision. 15. Significantly, the accused has himself confessed to his guilt in his statement made under Section 164 CrPC. Statement of the accused, under 164 CrPC, was recorded by the Magistrate, and the same has also been admitted by the accused. In his statement under Section 313 CrPC he has stated that the Magistrate recorded the same statement, which was narrated by him and, at that time, he was brought before the Magistrate from the judicial custody. However, later he has added that the police created pressure upon him to make such a statement. This appears to be an afterthought improvement. In his statement under Section 313 CrPC he has stated that the Magistrate recorded the same statement, which was narrated by him and, at that time, he was brought before the Magistrate from the judicial custody. However, later he has added that the police created pressure upon him to make such a statement. This appears to be an afterthought improvement. However, even if we ignore his statement under Section 164 CrPC, we find that there is formidable and clinching evidence available on the record, discussed hereinabove, which conclusively prove that it was the accused appellant Tufail Ahmad, who at 9.15 O’clock in the night of 23.7.2005, gave blows of knife in the chest and left hand of the deceased Sonu, who ultimately succumbed to his injuries, and this incident was seen by the aforenamed eyewitnesses. 16. As such, we have no hesitation in holding that the prosecution has successfully proved its case and the learned Sessions Judge has rightly convicted the accused appellant. Accordingly, we find no merit in the appeal and the same is liable to be dismissed. 17. Consequently, we dismiss the appeal, and affirm the conviction and sentence of the accused appellant Tufail Ahmad awarded to him vide the impugned judgment and order dated 20.5.2009/25.5.2009, passed by the Sessions Judge, Champawat in Sessions Trial No. 17/2005. Appellant Tufail Ahmad is already in jail. He is to serve out the remaining period of sentence. LCR along with copy of this judgment and order be sent back to the court below.