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Allahabad High Court · body

2017 DIGILAW 1520 (ALL)

Anwar Hussain v. State of U. P.

2017-06-13

OM PRAKASH VII

body2017
JUDGMENT Om Prakash-VII, J. 1. This jail appeal has been preferred on behalf of the appellant Anwar Hussain, who has been convicted vide judgment and order dated 7.10.2013 passed by Additional Sessions Judge, Court No. 7, Bijnor in Sessions Trial No. 636 of 2012 (State v. Anwar Hussain) under sections 307, 452, 504, 506 IPC, Police Station Najibabad, District Bijnor and sentenced to undergo rigorous imprisonment for five years and a fine of Rs. 5000/- under section 307 IPC, simple imprisonment for one year and a fine of Rs. 1000/- under section 452 IPC, simple imprisonment for six months and a fine of Rs. 500/- under section 504 IPC and simple imprisonment for six months and a fine of Rs. 500/- under section 506 IPC. In default of payment of fine, one year additional simple imprisonment has been awarded against the appellant. It was further directed that all the sentences shall run concurrently. 2. The prosecution story in brief is that a written report (Ex. Ka.-1) was moved by the informant Kasim Hussain (P.W. 3), the nephew of the injured (Shakir Hussain) at police station concerned on 7.9.2012 mentioning therein that accused Anwar Hussain is a vagabond type of person and used to remain wandering and because of this he has been ousted from the house by his father Arif Hussain. On 7.9.2012 at about 2: 00 P.M., when Shakir Hussain, the uncle of the informant was present at his house, accused Anwar came at his house and started hurling abuses. When Shakir objected him, accused Anwar took out a knife from his pocket and inflicted injuries to Shakir on his neck and chest. On hearing the shrieks of his uncle Shakir, informant and one Imran son of Guddu reached there, on which accused Anwar fled away from the place of occurrence by brandishing his knife, hurling abuses and threatening of dire consequences to the witnesses also. Injured was immediately rushed to Pooja Hospital and from where he was referred to Bijnor for better treatment. Injured was in serious condition. 3. On the basis of written report (Ex. Ka.-1), first information report (Ex. Ka.-9) was lodged on the same day i.e. on 7.9.2012 at 15: 25 hours against the accused-appellant Anwar Hussain for the offences under sections 307, 504, 506 IPC. G.D. Entry (Ex. Ka.-10) was also made. 4. Injured was in serious condition. 3. On the basis of written report (Ex. Ka.-1), first information report (Ex. Ka.-9) was lodged on the same day i.e. on 7.9.2012 at 15: 25 hours against the accused-appellant Anwar Hussain for the offences under sections 307, 504, 506 IPC. G.D. Entry (Ex. Ka.-10) was also made. 4. Injured was medically examined on the same day at 3: 15 P.M. at District Hospital, Bijnor and injury report (Ex. Ka.-2) was prepared. One incised wound of 2.5 cm. x 1 cm. x depth could not be probed was found on left side of the neck 4 cm. above from left clavicle. According to Dr. Prem Prakash (P.W. 5) duration of the injury was fresh and it was caused by sharp object. Injury was kept under observation. 5. As per prosecution version, one knife was also recovered on pointing out of the accused-appellant and recovery memo (Ex. Ka.-3) was prepared. Recovered knife was sent for chemical examination to Forensic Science Laboratory, Agra. The report of F.S.L. is on record as Ex. Ka.-8. Site plan, regarding the place from where knife was recovered, was prepared in the matter, which is Ex. Ka.-6. Investigating officer interrogated the witnesses and after fulfilling the other formalities submitted charge sheet (Ex. Ka.-7) against the accused-appellant for the offences under sections 307, 452, 504, 506 IPC. Magistrate concerned took cognizance in the matter and the case, being exclusively triable by the Court of Sessions, was committed for trial. Accused appeared and charges against him for the offence punishable under sections 307, 452, 504, 506 IPC were framed, to which accused denied and claimed his trial. 6. In order to prove its case, prosecution examined P.W. 1 Shakir Hussain, P.W. 2 Imran Hussain, P.W. 3 Kasim Hussain, P.W. 4 Smt. Kausar Jahan, P.W. 5 Dr. Prem Prakash, P.W. 6 Naveen, the investigating officer and P.W. 7 Vir Singh, who was also the investigating officer. 7. After closure of the prosecution evidence, statement of the accused under section 313 Cr.P.C. was recorded, in which he denied the entire prosecution story and specifically stated that injured Shakir Hussain is his uncle, who borne enmity with him and owing to this reason accused-appellant has been falsely implicated in this case. No evidence was adduced by the accused-appellant in his defence. 8. No evidence was adduced by the accused-appellant in his defence. 8. Trial court, after hearing the parties, vide impugned judgment and order convicted and sentenced the appellant for the offences under sections 307, 452, 504, 506 IPC imposing punishment as above. Hence, this appeal. 9. Heard Sri Sharique Ahmed, learned Amicus Curiae appearing on behalf of the appellant, learned A.G.A. for the State and perused the records. 10. Learned Amicus Curiae appearing on behalf of the appellant submitted that offence under section 307 IPC is not made out against the appellant. Although appellant has served out substantial portion of imprisonment, yet the finding recorded by the trial court are illegal, perverse and against the evidence on record. It was further submitted that motive assigned to the appellant to commit the said offence was also not sufficient. Only one injury was found on the neck of the injured though in the first information report it has been mentioned that several injuries were caused to the injured. Medical evidence does not corroborate the prosecution version. Recovery said to have been made on pointing out of the appellant cannot be read against the appellant, as the place from where recovery has been shown is an open place and accessible to general public. Doctor, who had examined the injured, has stated that condition of the injured was not serious and he was conscious at the time of medical examination. Learned Amicus Curiae referring to the statement of witnesses argued that there are major contradictions on material point in the statement of witnesses. Trial court illegally without appreciating the evidence in right perspective convicted and sentenced the appellant. Referring to the injury report, nature of injury and the mode & manner in which the offence is said to have been committed, it is argued that essential ingredients to constitute the offence under section 307 IPC were lacking in the matter. Both the parties belong to same family. Entire prosecution story is unbelievable. P.W. 3 Kasim, the first informant has not supported the prosecution case. Statement of other prosecution witnesses also did not inspire confidence. 11. On the other hand, learned A.G.A. submitted that the prosecution has successfully proved the charges against the accused beyond reasonable doubt. There is no illegality, infirmity or perversity in the impugned order passed by the trial court. P.W. 3 Kasim, the first informant has not supported the prosecution case. Statement of other prosecution witnesses also did not inspire confidence. 11. On the other hand, learned A.G.A. submitted that the prosecution has successfully proved the charges against the accused beyond reasonable doubt. There is no illegality, infirmity or perversity in the impugned order passed by the trial court. Fatal injury was caused by the accused-appellant on the neck of the injured, which could be dangerous to life or sufficient to cause death. Offence under section 307 IPC is clearly made out in this case. Trial court has already adopted leniency, hence no further leniency is required in the matter. Findings recorded by the trial court regarding involvement of the accused-appellant in committing the present offence are in accordance with law and evidence. Hence, no interference is required by this Court. 12. I have considered the rival contentions advanced by learned counsel for the parties and have gone through the record carefully. 13. In this matter, first information report was lodged on 7.9.2012 at 15: 25 hours. Offence is said to have been committed at 14: 00 hours on the same day. Distance between the place of occurrence and police station is four kilometers. Injured was initially taken to Pooja Hospital, from where he was referred to District Hospital Bijnor for better treatment. Thus, keeping in view these facts, time taken in lodging the first information report could not be said to be unexplained. Neither the first information report was delayed nor it was ante timed. 14. So far as motive assigned to the appellant is concerned, only this fact has been mentioned in the first information report that appellant was a vagabond type of person and was ousted from the house by his father. He started hurling abuses to the injured for no reason. When he was objected by the injured, injury was caused to the injured by the appellant. If the submission raised by the learned counsel for the appellant regarding false implication of the appellant is taken into consideration in light of the facts mentioned in the first information report regarding origin and genesis of the incident, the plea taken by the appellant is not acceptable. If the submission raised by the learned counsel for the appellant regarding false implication of the appellant is taken into consideration in light of the facts mentioned in the first information report regarding origin and genesis of the incident, the plea taken by the appellant is not acceptable. Another plea of the appellant was that Irfan, another uncle of the appellant, was living in Saudi Arabia and Shakir, who is also the uncle of the appellant, had illicit relations with the wife of Irfan. On many occasions, appellant had objected on this point therefore, appellant has been falsely implicated in this matter. Injured, appellant and the witnesses all belong to same family. It appears quite improbable and unbelievable that informant and injured, who also belong to the same family, would falsely implicate the appellant on the ground stated by the appellant. 15. It is also made clear that motive loses its importance where testimony of eye-account witnesses are available. Similarly, needless to say that enmity is a double edged weapon. It can be a ground for false implication. It also can be a ground for assault. Thus, on this score, testimony of the eye-account witnesses and the injured witness cannot be thrown out. In this matter, prosecution has examined Shakir Hussain (P.W. 1), who is injured witness and P.W. 3 Kasim Hussain, the informant. Although, P.W. 3 in his cross-examination has resiled from his statement made in the examination-in-chief, but the statements of P.W. 2 Imran and P.W. 4 Kausar Jahan are clear and consistent to the statement of P.W. 1 injured Shakir. As per prosecution case, incident took place inside the house of the injured. Presence of the witnesses at the place of incident is natural and probable, as they belong to the same family. Thus, the statements of these witnesses, which are corroborated by medical evidence, cannot be disbelieved. 16. So far as the plea taken by the learned counsel for the appellant that only one injury was found on the neck of the injured while prosecution case was that several knife blows were caused by the appellant on the neck and chest of the injured is compared with the statement of injured P.W. 1, no substance is found in the submission raised by the learned counsel for the appellant. Matter relates to cognizable offence. Matter relates to cognizable offence. First information report was lodged in this matter only to set the law in motion. Thus, if injury was found on the neck of the injured only and no injury was found on the chest of the injured, the prosecution evidence cannot be disbelieved. It is made clear that in Indian Criminal Justice System, the prosecution case cannot be disbelieved merely on the basis that statements of the witnesses examined in the matter were found false on some points. The maxim falsus in uno, falsus in omnibus is not applicable in Indian Criminal Judicial System. If the statements of the witnesses on material point are consistent and clear and are also supported by medical evidence, then the same cannot be disbelieved and cannot be brushed aside. In this matter, statements of P.W. 1, P.W. 2 and P.W. 4 on material point are supported by the statement of P.W. 5 Dr. Prem Prakash. Injury was found on the neck of the injured, which is a vital part of the body. It was clearly stated by the witnesses that injury was caused by the accused-appellant with intention to kill the injured. Type of the weapon, part of the body where the injury was caused and manner in which the injury was caused clearly reveal that injury was inflicted with intention to kill the injured. Thus, submission raised by the learned counsel for the appellant that injury found on the person of the injured could not attract the offence under section 307 IPC is also not acceptable. If P.W. 5 Dr. Prem Prakash has stated that injured was not in serious condition, then also in the attending circumstances under which present offence has been committed and the part of the body on which the injury was caused, it cannot be held that appellant did not cause injury to the injured with intention to kill him. Thus, on close scrutiny of the entire evidence available on record in consonance with the submission raised by the learned counsel for the appellant along with the findings recorded by the trial court, no substance is found in the submission made by the learned counsel for the appellant. Findings recorded by the trial court on point of guilt of the appellant for committing the offence under sections 307, 452, 504, 506 are correct and in accordance with law. 17. Findings recorded by the trial court on point of guilt of the appellant for committing the offence under sections 307, 452, 504, 506 are correct and in accordance with law. 17. As far as the quantum of punishment imposed upon the appellant is concerned, maximum sentence imposed upon the appellant for the offence under section 307 IPC is five years R.I. and a fine of Rs. 5000/-, for the offence under section 452 IPC is one year S.I. and a fine of Rs. 1000/-, for the offence under section 504 IPC is six months S.I. and a fine of Rs. 500/- and for the offence under section 506 IPC is six months S.I. and a fine of Rs. 500/-. It was further directed by the trial court that in default of payment of fine, appellant has to undergo one year additional simple imprisonment. As per record, appellant was in jail at the time of impugned judgment and order and during trial and continuously serving out the sentence imposed upon him by the trial court. It was also reported that appellant has served out almost four years nine months in jail against the substantive sentences imposed upon him by the trial court. 18. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, it is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should ‘respond to the society’s cry for justice against the criminal’. [Vide : (Sumer Singh v. Surajbhan Singh and others, (2014) 7 SCC 323 , Sham Sunder v. Puran, (1990) 4 SCC 731 , M.P. v. Saleem, (2005) 5 SCC 554 , Ravji v. State of Rajasthan, (1996) 2 SCC 175 ]. 19. In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that the punishment should be proportionate to the gravity of the offence. 20. The Apex Court in the case of G.V. Siddaramesh v. State of Karnataka; 2010 (87) AIC 43 (SC), while allowing the appeal of the appellant, altered the sentence. Paragraph 31 of the said judgment is reproduced below: “31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B I.P.C. However, his sentence of life imprisonment imposed by the Courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years’ rigorous imprisonment would meet the ends of justice. We accordingly, while confirming the conviction of the appellant under Section 304-B, I.P.C., reduce the sentence of imprisonment for life to 10 years’ rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed.” 21. We accordingly, while confirming the conviction of the appellant under Section 304-B, I.P.C., reduce the sentence of imprisonment for life to 10 years’ rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed.” 21. In this matter, if the entire facts and circumstances of the case are taken into consideration and the fact that appellant is continuously incarcerated since the date of his arrest and has served out a considerable period of sentence i.e. four years and nine months against the substantive sentence imposed upon him, thus in the facts and circumstances of the case, this Court is of the view that if the sentence imposed upon the appellant is modified/reduced to the extent of imprisonment already undergone, the purpose of imposing proper and adequate sentence to the accused-appellant would subserve and would also meet the ends of justice. It is made clear that additional imprisonment ordered by the trial court in default of payment of fine will also be included in the period modified as already undergone. Thus, this jail appeal is liable to be partly allowed modifying the sentence imposed upon the appellant as above. 22. Accordingly, the Jail Appeal is allowed in part. The conviction of the appellant Anwar Hussain held by the trial court for the offence punishable under Sections under sections 307, 452, 504, 506 IPC is upheld/confirmed, but the substantive sentences imposed upon the appellant by the trial court shall stand modified/reduced to the period already undergone by the appellant including the additional imprisonment imposed by the trial court in default clause. It is also clarified that appellant will not be faced to serve out additional imprisonment in default of payment of fine, as there is no need to deposit any fine amount. Appellant Anwar Hussain is presently in jail. He shall be released forthwith, if not wanted in any other case. 23. Let a copy of this judgment along with the trial court record be sent to the court concerned for compliance. 24. Sri Sharique Ahmed, learned Amicus Curiae has assisted the court very diligently and has provided valuable assistance to the Court. He is entitled for payment of Rs. 7000/-. Office is directed to pay a sum of Rs. 7000/- as fees to the Amicus Curiae Sri Sharique Ahmed, Advocate as per rules.