IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL APPEAL NO.1412 OF 2001 (Old No.1073/1996) Iltifat ……… Appellant Versus The State ……… Respondent (2) CRIMINAL APPEAL NO.1413 OF 2001 (Old No.1054/1996) 1. Ishtiyaq 2. Alam 3. Mohammad Ajim ……… Appellants Versus The State ……… Respondent Dated: March 12, 2010 Sri Rajendra Singh, learned counsel for the appellant-Iltifat (CRLA No.1412/2001) Sri J.S. Virk, learned counsel for the appellants-Ishtiyaq, Alam & Mohd. Ajim (CRLA No.1413/2001) Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. Both the above-said criminal appeals have been arisen out of the common judgment and order dated 5.6.1996 and the incident in both the appeals is one and the same as well as the evidence is also common in the said trial, hence both of them are being disposed of by this common judgment and order. 2 2. Both the criminal appeals, preferred under section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed against the judgment and order dated 5.6.1996 passed by the Additional Sessions Judge, Roorkee, District Haridwar in Sessions Trial No.96 of 1993, State Vs. Ishtiyaq & others, whereby the learned Addl. Sessions Judge has convicted the appellant/accused Aalam u/s 324 and 323/34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). He was sentenced to six months’ rigorous imprisonment u/s 324 IPC and further three months’ R.I. u/s 323/34 IPC. The appellants- accused Ishtiyaq, Iltafat and Aazim were sentenced to three months’ R.I. each u/s 323/34 IPC and further six months’ R.I. u/s 324/34 IPC each. All the sentences were directed to run concurrently. 3. I have heard learned counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that complainant Gufran (P.W.1) lodged an FIR stating therein that on 18.7.1991 at about 9 PM, he went in the shop of Khurshid (PW2) at his village, where he met with the appellants-accused Ishtiyaq, Aalim and Aazim, who asked the complainant not to take the milk of Liyakat. The complainant told them that he had paid the money in advance to Liyakat, hence he would continue to fill the milk. On this, the appellant-accused Ishtiyaq caught hold of complainant by hurling filthy abuses. The appellant- accused Aalim hit at head of the complainant by a Palkati (a sharp edged weapon) with intention to kill while the appellants-accused Aazim and Iltafat started committing 3 Marpit with him by knife and Lathis and thereby made him severely injured as a result of which he fell down. On the noise raised by him, Khurshid, Jarif and Yakub somehow managed to save him from the appellants- accused otherwise they would have killed him. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.1 Gufran on 20.7.1991 at 11:15 AM at P.S. Gangnaher, Dist. Haridwar. On the basis of the FIR (Ex.Ka-1), H.C. Harendra Singh prepared the Chik FIR of the case, i.e. Ex.Ka-3. Entry was also made by him in the G.D., carbon copy thereof is Ex.Ka-4. The investigation of this case was entrusted to P.W.4 S.I. Dhanpal Singh Chauhan. Injured Gufran was medically been examined on 19.7.1991 at 3:10 AM by Dr. Jugal Kishore and medical report after the medical examination was prepared, i.e. Ex.Ka-2. During the course of investigation the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-5. The I.O. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellants/ accused in the court, i.e. Ex.Ka-6. 5. After receiving the charge sheet, learned First Addl. Munsif Magistrate, Roorkee committed the case to the court of Sessions on 15.03.1993 after giving necessary copies to the appellants/accused as provided under Section 207 Cr.P.C. 6. On 21.6.1993, learned Second Assistant Sessions Judge, Roorkee has framed the charge against the appellants/accused Ishtiyaq, Aazim and Iltifaq u/s 324/34, 324 and 323 IPC. The charges were read over and explained to appellants/accused, who pleaded not 4 guilty and claimed to be tried. On the same day, charge against the appellant-accused Aalim was framed u/s 324 and 323/34 IPC. The charge was also read over and explained to him who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Gufran, injured, P.W.2 Khurshid, eyewitness, P.W.3 R.D. Sharma, Senior Pharmacist and P.W.4 S.I. Dhanpal Singh Chauhan, I.O. of the case. 8. After that the statements of the appellants/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated due to enmity. No oral evidence was produced in defence but in documentary defence, copy of Chik FIR lodged by the appellant-accused Ishtiyaq on 20.7.1991 at 5:30 PM at P.S. Gangnaher against the complainant Gufran & others, was filed. Further, the copy of medical report of the appellant-accused Alim, his x-ray report as well as the statements of witnesses recorded in S.T. No.97 of 1993 have also been filed. 9. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Additional Sessions Judge, Roorkee, District Haridwar vide judgment and order dated 5.6.1996 convicted and sentenced the appellants/accused as above discussed. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeals. 5 10. Before further discussion, it is pertinent to mention the injury report (Ex.Ka-2) of Gurfan who was examined on 19.7.1991 at 3:10 AM, which is as follows: - 1. “Lacerated wound 2.5 cm x 0.5 cm x scalp deep on right side head 13.0 cm from right ear, clothes stained with blood, star shaped 2. Incised wound 1.75 cm x 0.5 cm x scalp deep on left side forehead 2.5 cm from left eyebrow. Nature of Injury-Simple No.1, under observation, advised x-ray skull, A.P/Lateral view Duration-Fresh Caused by-No.1 by blunt object No.2 by sharp edged object” 11. The prosecution has examined P.W.3 Sri R.D. Sharma, Senior Pharmacist who has proved the above- said injury report prepared by Dr. Jugal Kishore Mittal, i.e. Ex.Ka-2. He was examined for the reason that Dr. Jugal Kishore Mittal had died. 12. To further prove its case, the prosecution has examined P.W.1 Gufran who stated that on the date of incident, he was doing the milk business. On that day at about 9 PM, he went in the shop of Khurshid (PW2) to take BIDI and as soon as he came out from that shop, the appellants-accused Ishtiyaq, Aalim, Azim and Iltafat met him. The appellant-accused Ishtiyaq abused him and warned him not to take out the milk of Liyakat. He asked that he had paid money in advance and he would continue to do so. On this, the appellant-accused Ishtiyaq caught hold of him’ the appellant-accused Aalim hit on his forehead by a Palkati, the appellant-accused Iltafat hit a 6 Lathi on his head while the appellant-accused Aazim gave a blow of knife, however the knife could not hit him. On the spot, Yakub, Jarif and Khurshid (PW2) had come who could manage to save him. After that he came back home and in the night, he got himself medically been examined at Roorkee Hospital. Report of this incident was prepared by his brother Munir Ahmed on his dictation, i.e. Ex.Ka-1. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 13. The statement of P.W.1 Gufran gets corroborated from the statement of P.W.2 Khursid. 14. P.W.4 S.I. Dhanpal Singh has stated that investigation of this case was entrusted to him. Chik FIR of this case was prepared by H.M. Harendra Singh, i.e. Ex.Ka-3. Entry in G.D. was also made by him, carbon copy there of is Ex.Ka-4. He inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-5. During investigation, he recorded the statements of witnesses and on completing the investigation, he filed the charge sheet, i.e. Ex.Ka-6. 15. After that the statements of the appellants/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated due to enmity. No oral evidence was produced in defence but in documentary defence, copy of Chik FIR lodged by the appellant-accused Ishtiyaq on 20.7.1991 at 5:30 PM 7 at P.S. Gangnaher against the complainant Gufran & others, was filed. The copy of medical report of the appellant-accused Alim, his x-ray report as well as the statements of witnesses in S.T. No.97 of 1993 have also been filed. 16. Both Sri Rajendra Singh and Sri J.S. Virk, learned counsel for the appellants, have submitted that as far as the conviction part is concerned, they do not want to challenge the same for the reason that the judgment and order passed by the court below to this extent is correct and justified. They further submitted that this incident had occurred about 19 years back and thereafter, no offence whatsoever has been committed by the appellants-accused. They further submitted that in the above-said case, the appellant-accused Alim also received the injury for which the cross case was also registered as S.T. No.97 of 1993, State Vs. Tuffail & others. Therefore, they submitted that the benefit of First Offender Act may be accorded to them. 17. Even otherwise, as per the above-said discussion, P.W.1 Gufran, who is the injured witness of the case, has stated that on the date of incident, at about 9 PM, he went in the shop of Khurshid (PW2) to take BIDI and as soon as he came out from that shop, the appellants-accused Ishtiyaq, Aalim, Azim and Iltafat met him. The appellant-accused Ishtiyaq abused him and warned him not to take out the milk of Liyakat. He asked that he had paid money in advance and he would continue to do so. On this, the appellant-accused Ishtiyaq caught hold of him, the appellant-accused Aalim hit on his forehead by a Palkati, the appellant-accused Iltafat hit 8 a Lathi on his head while the appellant-accused Aazim gave a blow of knife, however the knife could not hit him. On the spot, Yakub, Jarif and Khurshid (PW2) had come who could manage to save him. After that he came back home and in the night, he got himself medically been examined at Roorkee Hospital. Report of this incident was prepared by his brother Munir Ahmed on his dictation, i.e. Ex.Ka-1. The evidence of this witness is reliable and believable and inspires confidence and the same is fully corroborated with the oral evidence of P.W.2 Khurshid and also from the medical report Ex.Ka-2 of Gurfan in which the injury no.1 i.e. lacerated wound was shown to be caused by blunt object while the injury no.2 i.e. incised wound on the scalp was shown to be caused by sharp edged object. As such, the offences punishable u/s 324 and 323/34 IPC against the appellant-accused Aalim and further the offences u/s 323/34 and 324/34 IPC against the appellants Ishtiyaq, Iltifat and Aazim are fully made out against them and the trial court has rightly convicted them. 18. As far as the sentence part is concerned, considering the fact that it was the first and last offence committed by the appellants-accused and after this offence, the appellants have not committed any offence and also considering the fact that the incident had occurred at about 19 years back; they are living peacefully with their families and the appellants-accused Iltafat, Alim, Azim and Ishtiyaq are aged about 55, 47, 51 and 72 years respectively as well as on perusing the entire facts and circumstances of the case, I am of the view that the appellants-accused are entitled for benefit 9 of first offender under the Probation of Offenders Act, 1958. 19. For the reasons recorded above, both the appeals are partly allowed. The conviction of the appellant-accused Aalim u/s 324 and 323/34 IPC as well as that of the appellants-accused Ishtiyaq, Iltafat and Aazim u/s 323/34 and 324/34 IPC, as held by the trial court, is affirmed. However, their sentences under the above-said offences, as above discussed, are hereby set aside. The appellants-accused shall be released on each of their entering personal bonds with two sureties to the satisfaction of Sessions Judge, Haridwar, to appear and receive the sentence whenever called upon during the period of one year and in the meantime to keep the peace and be of good behaviour. Each of the appellant shall furnish his personal bond and two sureties within a period of two weeks with the undertaking to appear and receive the sentence whenever called upon during the period of one year and in the meantime to keep the peace and be of good behaviour. 20. Let the lower court record be sent back. (Dharam Veer, J.) March 12, 2010 Rajeev Dang