HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1750 of 2001 (OLD NO.36/1994) Ismail Chaudhary .……….. Appellant Versus State of Uttarakhand ..…….. Respondent Dated: August 31, 2009 Mr. Rajeev Sharma and Mr. Lalit Sharma, Advocates for the appellant Mr. M.A. Khan, 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 6.1.1994 passed by Sessions Judge, Nainital in S.T. No.151/1993, State Vs. Ismail Chaudhary, whereby the learned Sessions Judge convicted the accused/appellant Ismail Chaudhary u/s 307 of the Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.2,000/-. In default of payment of fine, the accused/appellant was further sentenced to one year’s R.I. 2. I have heard Mr. Rajeev Sharma and Mr. Lalit Sharma, Advocates for the appellant as well as Mr. M.A. Khan, Brief Holder for the State. Perused the entire material available on record. 3. In brief, the prosecution case is that PW2 Nanhe Miyan lodged the FIR at P.S. Haldwani stating therein that on 17.11.1992 at about 11:00 PM he along with his son Babu Miyan while coming to their house from Lalkuwa 2 came at Line No.8 in front of the shop of Asfaq Panwala where his son Babu Miyan stopped for eating betel. Meanwhile, Gafur caught hold his son and the accused/appellant Ismail Chaudhary, with intention to kill his son, stabbed knife on his abdomen. At that time PW3 Shakir Hussain and Viren Khan were present there. It was further alleged that if they would have not saved his son Babu Miyan, the accused/appellant Ismail Chaudhary and Gafur would have killed him. With the same averments, First Information Report was lodged by Nanhe Miyan (PW2) at P.S. Haldwani on 18.11.1992 at 10:07 AM. That FIR is Ext.Ka-1. On the basis of said FIR, Chik FIR (Ext.Ka-2) was prepared by Head Constable Jagdish Singh (PW4). Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-3. Initially, the investigation of this case was entrusted to PW6 Sub Inspector Nakli Singh but later it was transferred to Sub Inspector R.N. Yadav. On the same day at 11:45 PM, injured Babu Miyan was got medically examined by Dr. S.C. Tamta (PW5), who prepared the injury report i.e. Ext.Ka-4. Thereafter the injured was referred to Surgeon. On the basis of Surgeon report, Dr. S.C. Tamta prepared the supplementary report, which is Ext.Ka-5. During the course of investigation, the Investigating Officer recorded the statements of the witnesses, inspected the place of occurrence and thereafter prepared the site-plan, which is Ext.Ka-6. On completion of the investigation, the I.O. submitted the charge sheet against the accused/appellant Ismail Chaudhary u/s 307 IPC. That charge sheet is Ext.Ka-7. 4. On receipt of the charge sheet, learned Chief Judicial Magistrate, Nainital committed the case to the court of Sessions on 3.5.1993, after giving necessary copies to the accused/appellant as prescribed u/s 207 Cr.P.C. 3 5. On 17.8.1993, learned Sessions Judge, Nainital framed the charge against the accused/appellant u/s 307 IPC. 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 Babu Miyan, injured eyewitness; PW2 Nanhe Miyan, eyewitness and complainant of the case; PW3 Shakir Hussain, eyewitness; PW4 Head Constable Jagdish Singh, who prepared the Chik FIR Ext.Ka-2 and made necessary entries in the G.D.; PW5 Dr. S.C. Tamta, who medically examined the injured Babu Miyan and prepared the injury report Ext.Ka-4 and supplementary report Ext.Ka-5 and PW6 S.I. Nakli Singh, 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 was put to him in question form, who denied the allegations made against him. However, he did not produce any oral or documentary evidence in his defence. 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Sessions Judge, Nainital vide his judgment and order dated 6.1.1994 convicted and sentenced the accused/appellant as stated above. Against the said judgment and order, the appellant has preferred this appeal. 9. Before further discussion, it would be pertinent to mention the injuries found on the person of injured Babu Miyan, who got medically examined by Dr. S.C. 4 Tamta (PW5) on 17.11.1992 at 11:45 PM and who prepared the injury report Ext.Ka-2, which reads as under:- (i) Stab wound 1.5 cm x 0.5 x 3.5 cm over abdomen 0.5 cm below the umbilicus, bleeding present margins are clear. Opinion: - Noted injury caused by sharp edges object, kept under observation, admitted and referred to Surgeon for further opinion and management. Duration: - Fresh 10. To prove the above-noted injury report, the prosecution examined PW5 Dr. S.C. Tamta, who has proved the injury report Ext.Ka-2. He stated that the above-noted injuries could have been caused on the same day at 11:00 PM by means of knife. He further stated that the injured was operated on 18.11.1992 and on the basis of the report of the surgeon, he prepared the supplementary report Ext.Ka-5. 11. Supplementary report Ext.Ka-5 is reproduced as under:- “He was operated on 18.11.1992 and surgeon found following findings- - Wound of abdomen surface wound found communicating upto peritoneal cavity - Small intestine perforation found through and through with incised margin - Peritoneal cavity full of intestinal matter and peritoneal fluid.” Opinion:- According to surgeon report injury is grievous in nature which may be dangerous to life. 5 12. To prove its case further, the prosecution examined PW1 Baby Miyan, who stated that on 17.11.1992 at 11:00 PM he was coming from Lalkuwa to Haldwani. He reached at Line No.8 near the mosque and had stopped at a betel shop for eating betel. The accused/appellant and his associate Gafur came there. Gafur caught hold him and the accused Ismail stabbed knife on his abdomen. He was having 8 to 10 thousand rupees with him at the time of occurrence. His father Nanhe Miyan (PW2) and two or three persons came there. The appellant/accused Ismail and Gafur ran away from the place of occurrence. His father took him to hospital where he was medically examined. He further stated that at the time of incident he had gone to eat betel in the shop of Asfaq Panwala and there was electricity at that time. In the cross-examination, he stated that when he was eating betel at that time Shakir Hussain (PW3) and some other persons were present there. He remained admit in the hospital for about one month. 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. 13. PW2 Nanhe Miyan is the eyewitness, who has fully supported the version of the injured Babu Miyan (PW1). He has also proved the FIR (Ext.Ka-1) lodged by him. 14. PW3 Shakir Hussain, eyewitness has corroborated the statements of PW1 Babu Miyan and PW2 Nanhe Miyan. 15. PW4 Head Constable Jagdish Singh stated that on 18.11.1992 he was posted as Head Mohirror at P.S. 6 Haldwani. First Information Report (Ext.Ka-1) of the case was lodged by PW2 Nanhe Miyan. On the basis of the said report, he prepared the Chik FIR i.e. Ext.Ka-2. Necessary entries in the G.D. were also made by him, carbon copy of which is Ext.Ka-3. 16. PW6 Nakli Singh stated that from 17.11.1992 to 14.12.1992 he was posted as Sub Inspector at P.S. Haldwani and the investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of the witnesses, inspected the place of occurrence and thereafter prepared the site-plan, which is Ext.Ka-6. On 23.11.1992, he arrested the accused/appellant Ismail Chaudhary and made every possible attempt to arrest co-accused Gafur but he could not be arrested as he was absconded during the investigation. Thereafter he proceeded on training and after 14.12.1992 the investigation of this case was conducted by some another Sub Inspector. Charge sheet (Ext.Ka-7) was submitted by S.I. R.N. Yadav after completing the investigation. 17. Thereafter the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. However, he did not produce any oral or documentary evidence in his defence. 18. Learned counsel for the appellant argued that the prosecution has failed to prove the case beyond reasonable doubt against the accused/appellant. I do not find substance in the argument advanced by learned counsel for the accused/appellant. As per the evidence of PW1 Babu Miyan on 17.11.1992 at 11:00 PM he was 7 coming from Lalkuwa to Haldwani. He reached at Line No.8 near the mosque and had stopped at a betel shop for eating betel. The accused/appellant and his associate Gafur came there. Gafur caught hold him and the accused Ismail stabbed knife on his abdomen. He was having 8 to 10 thousand rupees with him at the time of occurrence. His father Nanhe Miyan (PW2) and two or three persons came there. The appellant/accused Ismail and Gafur ran away from the place of occurrence. His father took him to hospital where he was medically examined. He remained admit in the hospital for about one month. It was further stated by him that at the time of incident he had gone to eat betel in the shop of Asfaq Panwala and there was electricity at that time. He had also stated that when he was eating betel, Shakir Hussain (PW3) and some other persons were also present there. The statement of this witness finds full support from the statements of PW2 Nanhe Miyan and PW3 Shakir Hussain. Besides this, his evidence further gets corroborated from the medical evidence of Dr. S.C. Tamta (PW5) as well as from the injury report Ext.Ka-4 and supplementary report Ext.Ka-5 in which it was opined that the injuries caused to Babu Miyan (PW1) could have been dangerous to life. Injuries caused to Babu Miyan (PW1) by the accused/appellant by means of knife also get proved from the aforesaid medical reports. As such, in view of the aforesaid discussion, it has been successfully proved by the prosecution that the accused/appellant Ismail Chaudhary was the main accused in the said crime and with intention to kill Babu Miyan, he stabbed knife on his abdomen causing injuries to Babu Miyan and thereby committed an offence punishable u/s 307 of IPC. 8 19. In view of the above, the learned Sessions Judge, Nainital has rightly convicted the appellant under Section 307 of the IPC and rightly sentenced him for five years’ R.I. and to pay a fine of Rs.2,000/- and in default of payment of fine, rightly sentenced him to further one year’s R.I. I also concur with the view taken by the learned Sessions Judge while convicting and sentencing the accused/appellant under the aforesaid section. 20. For the reasons recorded above, the appeal is devoid of merit and is hereby dismissed. The judgment and order dated 6.1.1994 passed by Sessions Judge, Nainital in S.T. No.151/1993, State Vs. Ismail Chaudhary, 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 investigation, trial and during the pendency of this appeal shall be set off after verifying from records. 21. Let the record of the case be sent back immediately to the trial court concerned for compliance of the order. (Dharam Veer, J.) 31.08.2009 RG