IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.891 OF 2001 (OLD NO.2697 of 2000) Saddique S/o Abdul Bahid (Barai) R/o Mohalla Nai Basti Near Rajesh Picture Hall, P.O. Jaspur, P.S. Jaspur, District Udham Singh Nagar ……… Appellant Versus State of Uttarakhand .……… Respondent Dated: June 8, 2010 Mr. G.K. Verma, learned counsel for the appellant Mr. Amit Bhatt, learned Addl. GA for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 2.9.2000 passed by Special Judge (C.B.I.)/Additional Sessions Judge, Nainital in Sessions Trial No.271 of 1997, State Vs. Saddique, whereby the learned Special Judge (C.B.I.)/Additional Sessions Judge convicted the appellant/accused under Section 307 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for period of ten years with a fine of Rs.2,000/- and in default of payment of fine, one month’s imprisonment was further awarded. 2. Heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution story is that Suresh Chandra lodged a report in Police Station Jaspur stating therein that on 31.3.1997 at about 3 PM he along with his brother Mahesh Chandra had gone to take Rs.1450/- from the appellant/accused Saddique, who used to make body parts of bus and truck. His brother had worked with the appellant/accused for 32 days. Some payment was given to his brother and Rs.1450/- was left to be paid. The appellant/accused had promised to give the said amount to them today. When they asked for the money, the appellant/accused hurled abuses to them and thereafter stabbed knife on the stomach of his brother. He brought his brother in the police station by rikshaw. He further stated that the said incident has been witnessed by so many people. With the same averments, First Information Report was lodged by PW2 Suresh Chandra at Police Station Jaspur on the same day i.e. 31.3.1997 at 03:25 PM. The FIR is Ext.ka-1. On the basis of this FIR, Chik FIR of the case was prepared by Head Mohirror Bijendra Singh, i.e. Ext.Ka-5. Necessary entries were also made by him in the G.D., carbon copy of which is Ext.Ka-6. The investigation of the case was entrusted to Sub Inspector Mohd. Haneef (PW5). Injured Mahesh Chandra was got medically examined on the same day at 4 PM by PW3 Dr. G.S. Joshi, who after the medical examination, prepared the injury report Ext.Ka-3. Operation of the injured was also conducted and after the operation, supplementary report of the injured was prepared by PW4 Dr. Ashok Kumar Gupta, i.e. Ext.Ka- 4. During the course of investigation, the I.O. recorded the statement of the witnesses, took the blood stained clothes viz. shirt and undershirt of the injured into his possession vide Fard Ext.Ka-2 and prepared the site- plan Ext.Ka-7 of the place of occurrence and after completing the investigation, he filed the charge sheet against the appellant/accused. That charge sheet is Ext.Ka-8. 4. After receiving the charge sheet, learned Judicial Magistrate, Kashipur committed the case to the court of Sessions on 6.6.1997, after giving necessary copies to the appellant/accused as provided u/s 207 Cr.P.C. 5. It seems from the record that the case was transferred to Additional Sessions Judge for hearing and disposal according to law. 6. On 6.9.1997, Special Judge (CBI)/Addl. Sessions Judge, Nainital framed the charge of offence punishable under Section 307 IPC against the appellant/accused. The charge was read over and explained to the appellant/accused to which he pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined PW1 Mahesh Chandra, injured eyewitness, PW2 Suresh Chandra, eyewitness and complainant of the case, PW3 Dr. G.S. Joshi, who medically examined the injured and prepared the injury report Ext.Ka-3, PW4 Dr. Ashok Kumar Gupta, who operated the injured and also prepared the supplementary report Ext.Ka-4 and PW5 Mohd. Haneef, Investigating Officer of the case. 8. Thereafter the statement of the appellant/accused were recorded under Section 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who have denied the allegations made against him. However, he has not produced any oral or documentary evidence in defence. 9. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Special Judge (CBI)/Addl. Sessions Judge, Nainital vide his judgment and order dated 2.9.2000 convicted and sentenced the appellant/accused as mentioned above. Against the said judgment and order dated 2.9.2000, the appellant/accused has preferred the present appeal. 10. Before further discussion, it is pertinent to mention here the injury report Ext.Ka-3 of injured Mahesh Chandra who was examined on 31.3.1997 at 4 PM by Dr. G.S. Joshi (PW3), which reads as under: - i) Stab wound (incised wound) 1.5 cm x 0.5 cm x lightly probed upto 1.5 cm on upper part of left side of abdomen 8 cm away from umbilicus and at 1° Clock position. The direction of wound is downward. Fresh bleeding present. Advised X-ray Abdomen AP. G.C. – Satisfactory Couse – Fully conscious Pulse – 96/mt B.P. – 114/70 mm of Hg Resp. – 18/mt Opinion:- The sole injury is caused by some sharp edged object. Duration – fresh. Nature – Injury is kept under observation and advised x-ray abdomen AP view in erect position. - Patient admitted - Referred to surgeon 11. To prove the above-noted injury report, the prosecution has examined PW3 Dr. G.S. Joshi, who has stated that on 31.3.1997 he medically examined injured Mahesh Chandra and found the above-noted injuries on the person of Mahesh Chandra. He opined that the injuries were possible to come by knife on 31.3.1997 at about 3 PM. He proved the injury report Ext.Ka-3. 12. Supplementary report of the injured Mahesh Chandra was also prepared, which was prepared by PW4 Dr. Ashok Kumar Gupta after the operation of injured. To prove the supplementary report Ext.Ka-4, the prosecution has examined PW4 Dr. Ashok Kumar Gupta, who stated that on 31.3.1997 Mahesh Chandra was referred to him by Dr. G.S. Joshi. He had operated the abdomen of the injured on 3.4.1997. At the time of operation, there was perforation in 1 x 2 cm on the upper and anterior part of stomach which was got stitched. He opined that if the operation would not have been done, the patient would have died as the injury was grievous in nature and was dangerous to life. He proved the supplementary report Ext.Ka-4, which was prepared by him after the operation on 9.4.1997. 13. To prove its case further, the prosecution has examined PW1 Mahesh Chandra, who has stated that he is well-known to appellant/accused Saddique, who used to make body parts of bus and truck. He had also worked with the appellant/accused for 32 days. Rs.1450/- of the work done by him was due on the appellant/accused about which the appellant/accused had promised to give on 31.3.1997. On 31.3.1997 at about 3 PM he along with his brother Suresh went to take money from the appellant/accused. When he asked for his money from the appellant/accused, the appellant/accused hurled abuses to him and stabbed knife on his abdomen due to which he fell down on earth. Crowd gathered at the spot and the appellant/accused ran away from the place of occurrence. Thereafter his brother took him to police station and lodged the report. He was then sent to hospital where he got medically examined. He stated that he remained in hospital for about 10 ten days. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 14. PW2 Suresh Chandra have reiterated the version of the FIR lodged by him in the police station. Besides this, he has also stated that after 8-10 days of the incident, he had given bloodstained shirt and under shirt of the injured to the I.O., who after taking the same into possession, had prepared the Fard Ext.Ka-2. 15. PW5 Mohd. Haneef stated that on 31.3.1997 he was posted as Sub Inspector at Police Station Jaspur. Chik FIR Ext.Ka-5 of the case was prepared by Head Mohirror Bijendra Singh and entries in the G.D. were also made by him, which is Ext.Ka-6. The investigation of the case was entrusted to him. During the course of investigation, he recorded the statement of the witnesses, prepared the site-plan Ext.Ka-7 of the place of occurrence and took into possession bloodstained clothes of the injured vide Fard Ext.Ka-2 and on completion of investigation, he filed the charge sheet Ext.Ka-8 against the appellant/accused. 16. Thereafter the statement of the appellant/accused were recorded under Section 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him. However, he has not produced any oral and documentary evidence in defence. 17. Learned counsel for the appellant/accused argued that the prosecution has not proved the case against the appellant/accused beyond reasonable doubt. I do not find any force in the argument advanced by learned counsel for the appellant for the reason that PW1 Mahesh Chandra, who is the injured witness of the case, has stated in his deposition that he had worked with the appellant/accused Saddique for 32 days, who used to make body parts of bus and truck. Rs.1450/- of the work done by him was due on the appellant/accused about which the appellant/accused had promised to give on 31.03.1997. On 31.03.1997 at about 3 PM he along with his brother Suresh Chandra (P.W.2) went to take his money from the appellant/accused. When he asked for his money, the appellant/accused hurled abuses to him and stabbed knife on his abdomen due to which he fell down on earth. Crowd gathered at the spot and thereafter the appellant/accused ran away from the place of occurrence. Thereafter his brother took him to police station and lodged the report. He was then sent to hospital with police where he got medically examined. He stated that he remained in hospital for about 10 ten days. The evidence of this witness is reliable, believable and natural and inspires implicit confidence and the same also gets full corroboration from the oral evidence of P.W.2 Suresh Chandra, who was with PW1 Mahesh Chandra at the time of incident. He too have fully supported the prosecution case in his statement. Apart from above, the evidence of P.W.1 Mahesh Chandra further gets full corroboration from the injury report Ex.Ka-3 and supplementary report Ext.Ka-4 as well as from the medical evidence of P.W.3 Dr. G.S. Joshi and P.W.4 Dr. Ashok Kumar Gupta. P.W.3 Dr. G.S. Joshi examined the injuries of Mahesh Chandra and opined that the injuries were possibly caused on 31.3.1997 at about 3 PM by means of knife. Thereafter, he referred the injured to P.W.4 Ashok Kumar Gupta, who operated the abdomen of injured and thereafter prepared the supplementary report Ext.Ka-4 and ultimately opined that the injuries caused to Mahesh Chandra were grievous in nature and were dangerous to life and if the operation would not have been done then the injured would have died. All these facts and circumstances give full support and, therefore, wholly corroborate the statement of injured Mahesh Chandra (PW1). Thus, from the evidence discussed above, the prosecution has successfully proved its case against the appellant/accused Saddique beyond reasonable doubt u/s 307 IPC and the trial court is correct and justified in convicting the appellant/accused as discussed above. I also concur with the view taken by the trial court in convicting the appellant/accused as discussed above. 18. Learned counsel for the appellant/accused further argued that the sentence awarded against the appellant/accused is on the higher side. He submitted that the appellant is aged about 52 years. He is living with his family who are entirely dependent upon him. He is the only earning member of his family. Further, he is facing the present case from last 13 years and except this crime he has not committed any other crime before or after the said incident. Hence, it is prayed that the sentence may be reduced. 19. Keeping in view the totality of the circumstances, it is felt that while upholding the conviction of the appellant/accused sentence needs to be reduced from ten years rigorous imprisonment to seven years. 20. Accordingly, the appeal is partly allowed. The judgment and order dated 2.9.2000 passed by Special Judge (C.B.I.)/Additional Sessions Judge, Nainital in Sessions Trial No.271 of 1997, State Vs. Saddique, in convicting the appellant needs no interference by this court and is hereby made affirmed. However, the sentence of ten years’ R.I., as directed by the trial court, is set aside. Instead, the appellant is sentenced to seven years R.I. u/s 307 IPC. Appellant is on bail. His bail bonds are cancelled. Let him be taken into custody forthwith to serve out the sentence imposed upon him. However, it is made clear that the period of sentence already served out by the appellant during investigation, trial and appeal shall be set off after verifying from the records. 21. Let a copy of this order be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) June 8, 2010 RG