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Allahabad High Court · body

2016 DIGILAW 3974 (ALL)

FAKHRUDDIN v. STATE OF U. P.

2016-12-09

SHAILENDRA KUMAR AGRAWAL

body2016
JUDGMENT : Heard learned counsel for the appellant Mohd. Yahiya and learned A.G.A. 1. This Criminal Appeal has been filed against the judgment and order dated 25.9.1981 passed by 3rd Addl. Sessions Judge Bijnor in S.T. No. 370/81 State Vs. Fakhruddin etc. in which the appellant Fakhruddin was convicted under Section 304 part II I.P.C. and sentenced to four years R.I. and was also fined Rs. 1000/- and in default of fine six months R.I. and appellants Khalil Ahmad and Mohd. Yahiya under Section 304 Part II I.P.C. read with Section 34 I.P.C. and each of the appellant was sentenced to three years R.I. and were fined of Rs. 500/- and in default further R.I. of three months. 2. In brief, the prosecution case is that on 29.6.1980 at 9:30 pm when Shakil Ahmad, the younger brother of complainant Nasir Hussain was going to market to purchase his household goods, the accused persons Fakhruddin, Khalil Ahmad and Mohd. Yahiya resident of Mohalla Quila town Sahanpur met in the way and due to the old enmity stabbed his brother in his stomach. Meanwhile the informant Nasir Hussain came out from the mosque where he had gone for prayer to Almighty God. He heard noise and hearing that Munna, Baboo and Shahid Hussain also reached there who saved the life of his brother. Due to the reaching of the witnesses on the spot these accused persons ran away. He immediately took his injured brother through tempo no.4222 U.P. M to Govt. Hospital Najibabad. 3. The F.I.R. was written by Altaf Hussain which is Ext. Ka-1. In District Hospital Najibabad Shakil Ahmad was medically examined on 29.6.1980 at 11:30 pm and due to the seriousness of injuries, he was referred to District Hospital, Bijnor where he died on 5.7.1980. Postmortem of the dead body of Shakil Ahmad was conducted by Dr. J.P. Srivastava on the same date. The postmortem report is Ext. Ka-2. The matter was entrusted to Shri Vedraj Singh S.I. of Najibabad for investigation who had recorded the statement of one witness Shahid Hussain on the same day and visited the place of occurrence and prepared the site-plan Ext. Ka-10. 4. Investigating Officer recorded the statement of injured Shakil Ahmad in District Hospital on 2.7.1980 under Section 161 Cr.P.C. as Ext. Ka-11. Ka-10. 4. Investigating Officer recorded the statement of injured Shakil Ahmad in District Hospital on 2.7.1980 under Section 161 Cr.P.C. as Ext. Ka-11. Later on the investigation was entrusted to S.I. Sri Lal Ji Chauhan who recorded the statements of the witnesses Nasir Hussain, Munna etc. The case was converted into Section 304 I.P.C. after the death of Shakil Ahmad as per copy of G.D. Ext. Ka-12. 5. On 30.1.1981 Sri Ikramul Bari, the then IIIrd Additional Sessions Judge Bijnor framed charge u/s 302 I.P.C. against the accused Fakhruddin and charge u/s 302/34 I.P.C. against the accused Khalil Ahmad and Mohd. Yahiya. 6. In support of prosecution case, six witnesses had been examined who are Nasir Hussain P.W.1, Munna P.W.2, Dr. J.P. Srivastava P.W.3, Dr. S.P. Singh P.W.4, S.I. Sri Dharamvir Singh P.W.5 and S.I. Sri Vedraj Singh P.W.6. Besides their oral evidence the prosecution had also placed reliance upon the papers Ext. Ka-1 to Ka-13. After recording evidence of the prosecution witnesses, the accused were also examined u/s 313 Cr.P.C. and they denied the guilt. They further pleaded that they have been falsely implicated due to enmity and Partibandi in town Sahanpur. Accused Fakhruddin had pleaded in his statement u/s 313 Cr.P.C. that there is a dispute over a house between his father Nizamuddin and his uncle Riazjuddin and on account of that dispute he had been falsely implicated in this case. It has come in evidence that the remaining accused are related to Fakhruddin and that is why all the accused have been nominated in the F.I.R. There is also a defence version that the deceased Shakil Ahmad and Munna P.W.2 were of bad character and hence the prosecution case should not be relied upon. 7. During the pendency of appeal, appellant Fakhruddin and Khalil Ahmad have died and their appeal have been abated vide order dated 25.4.2016. Now main thrust of argument on behalf of the third remaining sole appellant Mohd. Yahiya is that Fakhruddin was the main culprit. The role of Fakhruddin as has been narrated in the F.I.R. is for stabbing to deceased Shakil Ahmid and role of this appellant Mohd. Yahiya is only for catching hold the deceased Shakil Ahmad and evidence is not very much clear regarding this. This incident is very old and Mohd. Yahiya has become old person. The role of Fakhruddin as has been narrated in the F.I.R. is for stabbing to deceased Shakil Ahmid and role of this appellant Mohd. Yahiya is only for catching hold the deceased Shakil Ahmad and evidence is not very much clear regarding this. This incident is very old and Mohd. Yahiya has become old person. A lenient view is to be taken and sentence be reduced and may be passed under Probation of Offenders Act. Learned counsel for the appellant at the very outset conceded that so far as conviction part of the appellant is concerned, the opinion of the learned trial Judge is suffered only from some errors but he is not hammering on it. Learned counsel for the appellant did not harp much so far as conviction of the appellant under Section 304 (2) of I.P.C. is concerned. It is argued that on the date of recording statement under Section 313 Cr.P.C. dated 23.9.81 he was at the age of 34 years, and on the date of incident he was at the age of 33 years. Now he is at the age of 69 years, therefore, no purpose will be served out to send the appellant to jail and it has been argued that the appellant Mohd. Yahiya may be sentenced for the period already undergone by him and with heavy fine. 8. On the other hand learned A.G.A. argued about correctness of the view taken by the trial Court and has submitted that the prosecution case does not suffer from any anomalies which may be said to be fatal for the case and also submitted that lenient view be not taken against this appellant Mohd. Yahiya because if this appellant had not hold the deceased, accused would not have stabbed Shakil Ahmad. 9. As regards merit of the judgment is concerned, the prosecution examined as mentioned above two witnesses of incident and proved the case beyond doubt who have corroborated the evidence of each other. Dr. S.P. Singh P.W.4 is the medical officer in charge of Civil Hospital Najibabad and in the night of 29.6.1980 at 11:30 a.m. he conducted medical examination of the injured Shakil Ahmad. As per injury report Ext. Dr. S.P. Singh P.W.4 is the medical officer in charge of Civil Hospital Najibabad and in the night of 29.6.1980 at 11:30 a.m. he conducted medical examination of the injured Shakil Ahmad. As per injury report Ext. Ka-3, he found five injuries on his body as given below:- (i) Punctured wound 4cmx1.5cm x upto chest cavity on the lower part of left side of the chest about 15 cm below the left nipple. Margins of the wound are clean cut, evested and well defined. Direction of the wound is downwards and medically fresh bleeding. Advised X-ray. (ii) Punctured wound 4cmx1.5cm x abdominal cavity deep on the left lumber region of the abdomen adjacent to left iliac fossa. Obliquely placed margins of his wound are clean cut, everted and well defined. Fresh bleeding skin, muscles and pritonieum is cut and chest is perforation of the intestine and siga of internal haemorrhage present. Direction of the wound is downwards medically. Advised X-ray. (iii) Punctured wound 1.5cmx0.5cm on the lateral aspect of the left arm middle 1/3rd region. Wound is upto muscle deep. Margins of his wound is clean cut, averted and well defined. Direction downwards medically. (iv) Multiple contusion is an area of 5cmx4cm on the front of the left arm upper 1/3rd region. Red in colour. (v) Lacerated wound 3cmx1cm x muscle deep on the inner aspect of upper lip middle point. Verticle placed. Margins are clean cut everted and contused. 10. He found two stab wounds no.1 and 2 were on vital parts of Shakil Ahmad while the third punctured wound was on his left arm and one lacerated wound in the inner aspect of upper lip and also contusion on left arm of Shakil Ahmad. He has clearly stated that injuries no.1 and 2 were fatal for the life of Shakil Ahmad as the same were on his vital parts. He has further said that injury no.5 was caused by fist blow. 11. Dr. Jagdish Prashad P.W.3 is the Medical Officer Incharge of District Hospital Bijnor. On 5.7.1980 he conducted postmortem on the dead-body of Shakil Ahmad and issued postmortem report as Ext. Ka-2. According to which he found five anti-mortem injuries on his body as given below:- (I) Stitched wound left side chest lower part 5cm long 5 stitches present. After opening the stitches it was just cavity deep. (ii) Stitched wound 10cm long, II stitches present. Ka-2. According to which he found five anti-mortem injuries on his body as given below:- (I) Stitched wound left side chest lower part 5cm long 5 stitches present. After opening the stitches it was just cavity deep. (ii) Stitched wound 10cm long, II stitches present. On opening the stitches, it was abdominal cavity deep. Clotted blood was present in the abdomen. (iii) Stitched wound 1.75 inch long left arm outer side 2 stitches present. It was muscle deep. (iv) Contusion 10cmx4cm left arm upper part. (v) Lacerated wound 3cmx1cm muscle deep left upper lip. In the opinion of the Doctor, the cause of death of Shakil Ahmad was shock and hemorrhage as a result of these antimortem injuries. 12. The injury report Ext. Ka-3 tallies with the postmortem report Ext.Ka-2 issued by Dr. J.P. Srivastava. The learned counsel for accused in the trial Court did not cross-examine the doctor P.W.3 conducting the postmortem meaning thereby that the postmortem report of Dr. J.P. Srivastava gone unchallenged and it should be taken as correct. This medical evidence is consistent with the evidence of eye witnesses and hence the prosecution story should be taken as correct. 13. In his statement recorded under Section 161 Cr.P.C. Ext. Ka-11 Shakil Ahmad, the injured now deceased had clearly stated to the investigating officer that there was enmity of him with the accused and he, in the night of occurrence about 9:30 pm, was coming from market to his house and when he reached at Tiraha on the public road, all the three accused abused him. Shakil Ahmad the injured asked the accused not to abuse him, the accused Khalil Ahmad and this appellant Mohd. Yahiya held him and the accused Fakhruddin stabbed him with a long knife and as a result of which he received serious injuries and then he was taken to Civil Hospital Najibabad for his treatment by the witnesses and Nisar Hussain, Munna, Shahid and Baboo had come there and then the accused ran away from the spot. He also said in his statement that from Civil Hospital Najibabad he was brought to District Hospital Bijnor for better treatment as his condition was serious. 14. He also said in his statement that from Civil Hospital Najibabad he was brought to District Hospital Bijnor for better treatment as his condition was serious. 14. The learned trial Court dealt with this statement of Shakil Ahmad given before his death to be taken as dying declaration because this occurrence took place in the night of 29.6.1980 at about 9:30 pm and this statement recorded by the investigating officer on 2.7.1980, and Shakil Ahmad died on 5.7.1980 i.e. after six days of the occurrence and found this offence clearly under Section 304 (2) I.P.C. for the reason that two stabbed wounds were found on vital parts of Shakil Ahmad and which were sufficient in the ordinary course of nature to cause his death. This accused must have known that he is catching hold the injured Shakil Ahmad and Fakhruddin is causing injuries by a long knife which would cause such bodily injury as would be likely to cause his death and later on death was actually caused after that. Thus this case is covered fully under Section 304(2) I.P.C. 15. Here one more point in favour of prosecution to prove the guilt of accused (appellant) is dying declaration. The deceased narrated the specific role of this appellant. The statement is totally trustworthy and admissible in evidence. 16. This dying declaration recorded by police officer is not banned altogether. But certainly its evidenciary value is not very high and on the contrary, the dying declaration recorded by a magistrate or a doctor is placed on a much higher pedestal. In Munna Raja Vs. State of M.P, AIR (76) SC 2199, the Supreme Court held that dying declaration recorded by police officer during the course of investigation is admissible. In Ram Singh Vs. State (Delhi admin. 1995 Crl. LJ 388 Delhi. The Delhi High Court held that a clear and corroborated dying declaration cannot be rejected just only because it was recorded by a police officer. In State of Karnataka Vs. Sharriff, AIR 2003 SC 1074 , the Supreme Court held that dying declaration recorded by a police officer could not be discarded solely on that ground. There is no requirement that dying declaration shall necessarily be recorded by Majistrate. In Irshad and Another Vs. In State of Karnataka Vs. Sharriff, AIR 2003 SC 1074 , the Supreme Court held that dying declaration recorded by a police officer could not be discarded solely on that ground. There is no requirement that dying declaration shall necessarily be recorded by Majistrate. In Irshad and Another Vs. State of U.P. 2013 (81) SCC 734, Supreme Court held that statement under Section 161 Cr.P.C. of an injured recorded by I.O. during the course of investigation can be excepted as dying declaration and it becomes admissible in evidence as substantial piece of evidence as Section 161(2) carries court an exception and credence that can be given to statement under Section 161 by treating it like a declaration under Section 32(1) of Evidence Act under certain circumstances. In Bhagirath Vs. State of Haryana, AIR 1997 Supreme Court 234 it was held by the Supreme Court that dying declaration recorded by the head constable and corroborated by the evidence of a doctor and from record of hospital has been held to be reliable. 17. In this case also the oral evidence given by the witnesses, the injuries caused by knife are tallying with the injuries found by the doctor doing medical examination and afterwards by the doctor conducting postmortem, all this is sufficient to hold the accused guilty for the offence under Section 304 (2) I.P.C. read with Section 34 I.P.C. 18. It is important to note that initially case was registered under Section 324 I.P.C. which was bailable offence. The learned trial Court passed this judgment on 25.9.1981 and held guilty and sentenced this appellant only for three years R.I. and to pay fine of Rs 500/- and in default to undergo three months' R.I. and granted same day interim bail under Section 389 Cr.P.C. Against this judgment and order of learned trial Court this Crl. Appeal was filed in this court on 29.9.1981 and same day appellant was granted bail by this court. Hence, it cannot be said that this appellant has served any sentence in jail. While the case was of a serious nature and the trial Court had already taken a lenient view and passed the sentence only for three years to this appellant. I do not find any ground to reduce the sentence. The question arises what the complainant would get. This court has also to see the prosecution side. While the case was of a serious nature and the trial Court had already taken a lenient view and passed the sentence only for three years to this appellant. I do not find any ground to reduce the sentence. The question arises what the complainant would get. This court has also to see the prosecution side. There should be a balance between the two. Why liberal view should be adopted for this appellant. This court must also see the seriousness of injuries caused to the deceased. Sentencing policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is , the seriousness of the crime and the criminal history of the accused, are used to prescribe punishment. The principal of proportionality, as followed in various judgments of this court, prescribes that, the punishments should reflect the gravity of the offence and also the criminal background of the convict. Thus, the graver the offence and the longer the criminal record, the more severe is the punishment to be awarded. Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. Ultimately, it becomes the duty of the courts to award proper sentence, having regard to the nature of the offence and the manner in which it was executed or committed, etc. The courts should impose a punishment befitting the crime so that the courts are liable to accurately reflect public abhorrence of the crime. It is the nature and gravity of the crime, and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. Imposition of sentence without considering its effect social order in many cases may be in reality, a futile exercise. The principle of proportionality between the crime and the punishment is the principle of “just deserts” that serves as the foundation of every criminal sentence that is justifiable. In other words, the “doctrine of proportionality” has valuable application to the sentencing policy under the Indian Criminal Jurisprudence. As has been held in State of U.P. Vs. Sanjay Kumar, 2012 8SCC 537 in heinous offences, the convict cannot be shown any leniency in the matter of sentence. In other words, the “doctrine of proportionality” has valuable application to the sentencing policy under the Indian Criminal Jurisprudence. As has been held in State of U.P. Vs. Sanjay Kumar, 2012 8SCC 537 in heinous offences, the convict cannot be shown any leniency in the matter of sentence. The criminal cannot be treated very leniently or even in the midst of luxury, as the reformative theory would have it. I do not find any ground to modify the judgment of the lower Court regarding sentence. No any such type of evidence or affidavit have been produced in this court that appellant have become fragile having a tottered physic. The counsel for appellant drew my attention towards the finding given by this court in Golahi Vs. State of U.P. 2014 law suit 2014 (all. 1110) but the finding given in this judgment do not apply in this case because in that case the appellant accused had already undergone for more than 7 and a half months of imprisonment and such thing is not here. One person had died. Giving the benefit of probation of offenders Act or by reducing the sentence towards fine will not serve the cause of justice. As learned counsel for the appellant has prayed to give the benefit of Probation of Offenders Act. The provision of Section 3, Section 4 of the Probation of Offenders Act or provision mentioned in Section 360 Cr.P.C. empowers the court to make an order for relieves of probation, admonition and the like inputs of punishment. 19. If the Court forms the opinion that it is expedient to release the offender on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is “the nature of the offence”. Thus Section 4 can be resorted to when the court considers the circumstances of the case, particularly the “nature of the offence” and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probition of good conduct; Dalbir Singh Vs. State of Haryana, AIR 2000 SC 1677 . 20. The benefit of Probation of Offenders Act cannot be given to an accused convicted of an offence punishable with imprisonment for life; State of Gujarat Vs. A. Chauhan, AIR 1983 SC 359 . 21. State of Haryana, AIR 2000 SC 1677 . 20. The benefit of Probation of Offenders Act cannot be given to an accused convicted of an offence punishable with imprisonment for life; State of Gujarat Vs. A. Chauhan, AIR 1983 SC 359 . 21. The provision of this section should not be mistaken as undue leniency not should it be applied leniently in undeserving cases where the offender in his early twenties, committed a reprehensible offence of rape on his neighbour's wife, the court refused to release him on probation and convicted him in view of the heinous nature of the crime; Phul Singh Vs. State of Haryana, AIR 1980 SC 249 . 22. Section 4 would not be extended to the abominable culprit who was found guilty of abducting a teenage girl and forced her to sexual submission with commercial motive; Smt. Devki Vs. State of Haryana, AIR 1979 SC 1948 . 23. The benefit of section 3 or Section 4 of the Probation of Offenders Act is subject to the limitation laid down in these provisions. The word 'may' in Section 4 does not mean 'must'; Ram Prakash Vs. State of Himachal Pradesh, AIR 1973 SC 780 . 24. In those circumstances such benefit of Probation of Offenders Act cannot be given to this appellant. I do not find any force in the argument of learned counsel for the applicant. Hence, appeal is likely to be dismissed. 25. On the basis of the above discussion I am of the irresistible view that the judgment and order rendered by the trial Court convicting and sentencing to appellant as above cannot be interfered and it is likely to be confirmed. 26. The judgment and order of the court below is confirmed. The appeal is dismissed. 27. The appellant Yahiya is on bail. Let he be surrender before the court of CJM immediately from where he be sent to jail for serving out the remaining sentence. He is directed to make compliance of Section 437A Cr.P.C. within one month from the date of this order by appearing before the Court concerned and execute personal bond and one surety to the satisfaction of the Court concerned. 28. Let a copy of this order be sent to the lower court for intimation and compliance.