RESERVED JUDGMENT HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.666 of 2001 (OLD NO.1644/2000) Akram S/o Jamil .……….. Appellant Versus The State ..…….. Respondent Dated: August 26, 2009 Ms. Geeta Parihar, learned amicus curiae for the appellant Mr. M.A. Khan, learned brief holder for the State Hon’ble 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 28.6.2000 passed by Ist Additional Sessions Judge, Haridwar in S.T. No.447/1993, State Vs. Akram, whereby the learned Ist Addl. Sessions Judge convicted the accused/appellant u/s 307 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to four years’ rigorous imprisonment. 2. I have heard Ms. Geeta Parihar, learned amicus curiae for the appellant as well as Mr. M.A. Khan, learned brief holder for the State. Perused the entire material available on record. 3. In brief, the prosecution case is that PW1 Jamshad lodged the FIR at Police Station, Gangnahar on 11.7.1993 stating therein that on 10.7.1993 at about 07:25 PM, his younger brother Mumtaz was going in the shop to purchase certain articles then, on the way, the accused/appellant Akram with intention to kill his brother 2 caused injuries to him with knife. After hearing the cries of his brother, some villagers gathered at the spot out of which Younus, Rifaqat and Imran, after chasing the accused/appellant, caught him. With the same averments, he lodged the FIR at P.S. Gangnahar on 11.7.1993 at 02:40 AM. That FIR is Ext.Ka-1. On the basis of FIR Ext.Ka-1, Chik FIR (Ext.Ka-6) was prepared by Head Mohirror Subash Singh. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-7. The investigation of this case was entrusted to PW 5 S.I. Ram Kumar Singh Yadav. The injured got medically examined by PW3 Dr. Arun Kumar on 10.7.1993 at 08:15 PM and who prepared his injury report, which is Ext.Ka-3. On the same day, X- ray of the injured was also conducted. X-ray report is Ext.Ka-5. Thereafter, supplementary report of the injured was prepared by PW3 Dr. Arun Kumar, which is Ext.Ka-4. During the course of investigation, the I.O. prepared the FARD Ext.Ka-2 of taking into possession blood stained pant and under shirt of the injured and FARD Ext.Ka-9 of taking into possession blood stained knife. After inspecting the place of occurrence, the I.O. also prepared the site-plan i.e. Ext.Ka-8. During the course of investigation, the I.O. also recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet against the accused/appellant, which is Ext.Ka-10. 4. On receipt of charge sheet, learned Ist Addl. Munsif Magistrate, Roorkee committed the case to the court of Sessions on 29.9.1993 after giving necessary copies to the accused/appellant as provided u/s 207 Cr.P.C. 5. On 21.1.1994, learned Assistant Sessions Judge, Haridwar framed the charge of offence punishable u/s 307 3 of the IPC against the accused/appellant. The charge was read over and explained to the accused/appellant to which he pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution examined PW1 Jamshad, eyewitness and complainant of the case; PW2 Mumtaz, injured eyewitness; PW3 Dr. Arun Kumar, who medically examined the injured; PW4 K.D. Kuril, who conducted the X-ray of the injured and PW5 S.I. R.K. Singh Yadav, Investigating Officer of the case. 7. Thereafter, the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. He did not produce any documentary evidence in his defence however, in oral evidence, Mohd. Arif was examined. 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Ist Addl. Sessions Judge, Haridwar vide his judgment and order dated 28.6.2000 convicted and sentenced the accused/appellant as stated above. Against the said judgment and order, the accused/appellant has preferred the present appeal. 9. Before any further discussion, it would be pertinent to mention the injuries found on the person of injured Akram, who got medically examined by Dr. Arun Kumar (PW3) on 10.07.1993 at 08:15 PM and who also prepared the injury report Ext.Ka-3, which reads as under:- (i) Stab incised wound 1.5 cm x 0.75 cm x depth not probed in the interest of patient, a left side 4 back in post axillary line, 4 cm below axilla, profuse fresh bleeding present. Opinion:- The injury is caused by sharp edged object stab. Injury is fresh. The injury is kept under observation. Advised X-ray chest. Patient is referred to Medical College, Meerut for management. 10. On the same day i.e. on 10.7.1993, X-ray of the injured was conducted. On the basis of X-ray report Ext.Ka-5, Dr. Arun Kumar prepared the supplementary report (Ext.Ka-4), which is reproduced as under:- “Surgical emphysema seen in left lateral chest wall.” Opinion:- The injury can be dangerous to life. 11. To prove the above-noted reports, the prosecution examined PW3 Dr. Arun Kumar, who has proved the injury report Ext.Ka-3 and supplementary report Ext.Ka-4. He stated that the injuries could be caused with knife on 10.7.1993 at 07:25 PM. He opined that the injuries could have been dangerous to life. 12. To prove the X-ray report Ext.Ka-5, the prosecution examined PW4 Dr. K.D. Kuril, who stated that on 10.7.1993 he conducted the X-ray of the injured Akram under the supervision of Dr. Ajay Kumar. He has proved the X-ray plate Ext.6. On the basis of X-ray plate Ext.6, Radiologist Dr. Ajay Kumar Saxena prepared the X-ray report, which is Ext.Ka-5. 13. Further to prove its case, the prosecution examined PW2 Mumtaj, who stated that the said incident took place on 10.7.1993 at about 7:15/7:30 PM. He was 5 going to the shop then on the way the accused/appellant Akram met him and started abusing him. When he asked the accused/appellant that why he is abusing him then the accused/appellant caused injuries to him on his left abdomen with knife. He raised alarm. On hearing his cries, Younus, Imran, Rifaqat and his brother Jamshad reached at the spot and who caught the accused/appellant along with the knife. Thereafter, his brother took him to the Government Hospital, Roorkee where he got medically examined. He had received grievous injuries so the doctor referred him to Meerut Medical College but due to bad weather and insufficient money, he was being admitted in a Nursing Home at Roorkee. He further stated that his brother Jamshad (PW1) lodged the report of the said incident in the police station. Clothes which he had worn at the time of incident had become blood stained. In the court, he identified the cloth Ext.1, his blood stained pant Ext.2 and under shirt Ext.3. He also identified the blood stained knife Ext.4 which was used by the accused Akram in the said crime and the cloth Ext.5. 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. PW1 Jamshad has corroborated the statements of his brother Mumtaz (PW2). Besides this, he stated that he scribed the report of the said incident from Kuldeep Kumar and lodged the same in the police station. That report is Ext.Ka-1. He further stated that he gave the blood stained clothes of his brother to the Investigating Officer and the FARD Ext.Ka-2 thereof was prepared by the I.O. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence, which 6 may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 15. PW5 R.K. Singh Yadav stated that on 11.7.1993 he was posted as Sub Inspector at Police Station, Gangnahar, District Haridwar. On that day, investigation of this case was entrusted to him. Chik FIR (Ext.Ka-6) of this case was prepared by Head Mohirror Subash Singh and the necessary entries in the G.D. were also made by him. Carbon copy of the G.D. is Ext.Ka-7. During the course of investigation, he recorded the statements of the witnesses, inspected the place of occurrence and thereafter prepared the site-plan i.e. Ext.Ka-8. He also recovered the knife used in the said crime and prepared its FARD (Ext.Ka-9). He also took into possession blood stained clothes of the injured and prepared its FARD, which is Ext.Ka-2. On completion of the investigation, he submitted the charge sheet against the accused/appellant, which is Ext.Ka-10. 16. Thereafter the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. He did not produce any documentary evidence in his defence however, in oral evidence, Mohd. Arif was examined. 17. D.W.1 Mohd. Arif stated that on the day of incident in the evening younger brother of the accused/appellant was having quarrel with some confectioners (Halwai). So many people were gathered there and in the jostling son of one confectioner had received injury from iron blade. Blood was oozed out from his injury. Meanwhile, the accused/appellant Akram also reached there and the people gathered there caught him. 7 18. Ms. Geeta Parihar, learned amicus curiae for the appellant argued that on the basis of evidence discussed above, the prosecution has failed to prove its case against the accused/appellant. I do not find force in the argument advanced by learned amicus curiae. As per the evidence of PW2 Mumtaj on the date of incident i.e. on 10.7.1993 at about 7:15/7:30 PM when he was going to the shop then on the way the accused/appellant Akram met him and started abusing him. He asked the accused/appellant that why he is abusing him. On this, the accused/appellant caused injuries to him on his left abdomen with knife. He raised alarm. On hearing his cries, Younus, Imran, Rifaqat and his brother Jamshad reached at the spot and who caught the accused Akram along with the knife. Thereafter, his brother took him to the Government Hospital, Roorkee where he got medically examined. He had received grievous injuries so the doctor referred him to Meerut Medical College but due to bad weather and insufficient money, he was being admitted in a Nursing Home at Roorkee. It was further stated by him that the report of the said incident was lodged by his brother Jamshad (PW1) in the police station. In the court below, he also identified the blood stained knife Ext.4 which was used by the accused Akram in the said crime. The statement of this witness finds full support from the statement of his brother Jamshad (PW1). Besides this, his statement further gets corroborated from the injury report (Ext.Ka-3) and supplementary report (Ext.Ka-4) as well as from the medical evidence of PW3 Dr. Arun Kumar, who has opined that the injuries caused to Mumtaj (injured) could have been dangerous to life. As such, in view of the aforesaid discussion, the prosecution has been able to prove its case against the accused/appellant Akram for the offence punishable u/s 307 of IPC. 8 19. In support of its case, the appellant/accused had examined DW1 Mohd. Arif, who in his deposition has not stated anything which can falsify the prosecution story. Even the presence of the accused Akram at the place of incident also gets proved from the statement of this witness. Further, the evidence of this witness does not get corroborated from the injury report (Ext.Ka-3) and supplementary report (Ext.Ka-4). His statement is against the facts and circumstances of the case and even otherwise the evidence of this witness is not in any way helpful to the appellant. 20. In view of the above, the learned Ist Addl. Sessions Judge, Haridwar has rightly convicted the appellant under Section 307 of the IPC and rightly sentenced him for four years’ R.I. 21. For the reasons recorded above, the appeal is devoid of merit and is hereby dismissed. The judgment and order dated 28.6.2000 passed by Ist Addl. Sessions Judge, Hardiwar, in S.T. No.447/1993, State Vs. Akram, is hereby confirmed. Consequently, the conviction and sentence as directed by the court below, which has been discussed above, is also confirmed. The appellant/accused is on bail. His bail bonds are cancelled. Let him be taken into custody forthwith in order to serve out the sentence imposed by the trial court. The period already undergone by him during trial and during the pendency of this appeal shall be set off. 22. Let the record of the case be sent back immediately to the trial court concerned for compliance of the order. (Dharam Veer, J.) August 26, 2009 RG