IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1547 of 2001 (Old No. 1646 of 1997) Sharif S/o Chuttan R/o Mohalla-Khatari P.S. Ramnagar District Nainital. ….....Appellant. Versus State of Uttarakhand .……….Respondent. Shri Mushtaq Ali Khan, Amicus Curiae for the appellant. Shri Prabhakar Joshi, Brief Holder for the respondent. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Oral:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 12.09.1997, passed by learned IIIrd Additional Sessions Judge, Nainital, in Sessions Trial No. 15 of 1992, whereby appellant-Sharif has been convicted under Section 302 of Indian Penal Code, 1860 (herein after referred as I.P.C), and sentenced to 2 imprisonment for life and also directed to pay fine of Rs. 1,000/-. In default of payment of fine, the trial court has directed the convict to undergo further six months rigorous imprisonment. 2. Heard Amicus Curiae for the appellant and Brief Holder for the State. 3. Prosecution story in brief is that on 16.08.1991, at about 9:00 p.m. in Mohalla Khatari, within the limits of P.S Ramnagar, deceased Nayeem alias Ballu, had some altercation with accused/appellant Sharif. After heated exchange of words, Sharif (accused/appellant) took out knife and inflicted an injury on the person of Nayeem alias Ballu, and thereafter he ran away. According to the prosecution story, the incident was witnessed by P.W. 2 Raiees Ahmad, P.W. 3 Mohd. Nayeem (S/o Mohd. Yasin), P.W. 6 Amrik Singh and P.W. 9 Khalil. The information of the incident was immediately sent to Iqbal Khan, complainant (since deceased), who came to the spot and took injured Nayeem alias Ballu to Ramnagar Hospital. P.W. 8 Dr. Surendra Singh, medically examined the injured Nayeem alias Ballu and prepared report (Ext. A-11). The Medical Officer found the general condition of the injured poor and immediately referred him to some higher medical centre. Injured Nayeem alias Ballu was to taken 3 to Delhi, where he succumbed to the injuries, during medical treatment, in Safdarjang Hospital on 19.08.1991 at about 10:00 p.m. Meanwhile, Iqbal Khan (complainant) had lodged report at about 9:40 p.m. on the day of the incident (16.08.1991) with police station Ramnagar, after taking the injured to hospital. Said First Information Report (Ext. A-13) was registered in respect of offence punishable under Section 307 I.P.C. against accused Sharif. Later after death of the injured, the case was converted into the offence punishable under Section 302 I.P.C. The investigation of the crime was done by P.W. 7 Sub-Inspector Munna Lal. The post mortem examination of the dead body of the deceased was conducted in Delhi on 20.08.1991, by P.W. 10 Dr. Chandrakant, who prepared the autopsy report (Ext. A-14). The Investigating Officer after interrogation of the witnesses and completing investigation, submitted charge sheet (Ext. A-10) against accused Sharif, for his trial in respect of offence punishable under Section 302 I.P.C. 4. The Magistrate, on receipt of charge sheet, after giving necessary copies, as required under Section 207 Cr.P.C., committed the case to the court of Sessions, for trial. Learned IIIrd Additional Sessions Judge, Nainital, to whom the case was transferred, after hearing the parties on 22.07.1992, framed charge of offence punishable 4 under Section 302 I.P.C. against accused Sharif, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Mohd. Jaan (declared hostile), P.W. 2 Raiees Ahmad (declared hostile), P.W. 3 Mohd. Nayeem, son of Mohd. Yasin (eye-witness), P.W. 4 Sajjik Ali Khan (witness of recovery of blood stained clothes), P.W. 5 Sub-Inspector Inder Singh (who prepared inquest report), P.W. 6 Amrik Singh (eye-witness), P.W. 7 Sub-Inspector Munna Lal (Investigating Officer), P.W. 8 Dr. Surendra Singh (who medically examined deceased at Joint Hospital, Ramnagar), P.W. 9 Khalil (eye-witness) and P.W. 10 Dr. Chandrakant (who conducted post mortem examination). The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. to which he alleged the same to be false. He pleaded that he has been falsely implicated. However, no evidence in defence was adduced. The trial court after hearing the parties, found accused Sharif guilty of charge of offence punishable under Section 302 I.P.C. After hearing the parties on sentence, the trial court sentenced the convict to imprisonment for life and also directed to pay fine of Rs. 1,000/-. In default of payment of fine the convict was required to undergo rigorous imprisonment for a further period of six months. Aggrieved by said judgment and order dated 12.09.1997, passed by IIIrd Additional Sessions Judge, Nainital in Sessions 5 Trial No. 15 of 1992, this appeal was filed by the convict before Allahabad High Court on 24.09.1997, where it was admitted. The appeal is received by this Court by transfer under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 5. Before further discussion, we think it just and proper to mention the ante mortem injuries recorded by P.W. 10 Dr. Chandrakant in autopsy report (Ext. A-14) after conducting post mortem examination on 20.08.1991. The ante mortem injuries, recorded in said document, read as under:- 1) One semi circular stitched wound, on left temporal parietal region with both limbs downwards and loop upwards toward parietal region side. Anterior limb 3 cms away and above from left ear extending upwards and in the left-parietal region forming a loop coming downwards and thus posterior limb is 3cms above from left ear. Total length 26cms. Total number of stitches 20 in number Wound in surgical nature. 2) One stab wound obliquely placed on left parietal region below the loop of ante mortem injury No. 1, 8cms above from left ear. Both margins clean cut, anterior angle 6 towards front side acute and posterior angle (angle towards back side) obliterated size 2.1cms X 0.5cms X 6cms. (brain tissue deep). The cause of death, recorded by P.W. 10 Dr. Chandrakant is shock as a result of head injury. Injuries are ante mortem in nature, caused by sharp edged weapon and sufficient to cause death in ordinary course of nature. This report, clearly suggests and establishes that deceased Mohd. Nayeem Khan has died homicidal death. 6. P.W. 8 Dr. Surendra Singh, who examined Mohd. Nayeem, when he was brought to Joint Hospital, Ramnagar, soon after the incident had found following injury, which is recorded in injury report (Ext. A-11). Said injury reads as under:-. “One Incised wound 5cm X .5cm X scalp deep. Red in colour, fresh bleeding present over parietal area about 6cm above left ear. White cheery material present over wound.” The general condition of the injured was found very poor by the Medical Officer (P.W. 8 Dr. Surendra Singh), who referred the patient for higher medical centre. The above injury, recorded in Ext. A-11, corroborates the injury No. 2, mentioned in the ante mortem injury. It is relevant to mention here that ante mortem injury No. 1 in fact relates to the surgical work done by 7 the Medical Officer. As such, it is clear from the record that one knife injury was inflicted on the deceased on his head in the parietal region. 7. Now, we come to the testimony of the eye- witnesses. Though P.W. 1 Mohd. Jaan and P.W. 2 Raiees Ahmad have not supported the prosecution story and told that they had not seen the incident but P.W. 3 Mohd. Nayeem (son of Mohd. Yasin), P.W. 6 Amrik Singh and P.W. 9 Khalil have narrated the prosecution story and supported the same. P.W. 3 Nayeem, has stated that on 16.08.1991, at about 8:45 p.m. he was sitting in a shop when he saw Sharif (accused/appellant) quarrelling with Nayeem alias Ballu (deceased). The witness has further stated that he tried to intervene but soon thereafter Sharif took out a knife and gave a blow on the head of Nayeem alias Ballu. The witness has further stated that injured was taken to Hospital Ramnagar from where he was referred to Delhi, where he succumbed to the injuries. It is pertinent to mention here that complainant Iqbal Khan, father of the deceased, since died, after investigation, the First Information Report, lodged by him (Iqbal Khan), was proved by P.W. 9 Khalil. 8. P.W. 6 Amrik Singh has also corroborated the prosecution story, as narrated by P.W. 3 Nayeem, son of Yasin. Not only this, P.W. 9 8 Khalil has also corroborated the prosecution story and stated that accused/appellant Sharif gave a blow with a knife on the person of the deceased Nayeem alias Ballu. After going through the evidence of the three eye-witnesses, we find that their testimony is natural and trustworthy. They had no enmity with the appellant. It has also come on the record in the statement of the witnesses that there was an electric light at the time of the incident and the deceased and accused were known to the witnesses. After reassessing the evidence on record, we concur with the trial court that the prosecution has successfully proved that accused Sharif has given a knife blow on the head of the deceased, which resulted in his death. 9. Shri M.A. Khan, learned Amicus Curiae, argued that from the evidence of the three eye- witnesses, it is clear that it was a case of sudden quarrel on which Sharif, gave single blow on the person of the deceased. It is further pointed out by Shri Khan, Amicus Curiae that Nayeem alias Ballu, died after three days of the incident. Considering all these facts together, it is argued by him that even if the testimony of the eye- witnesses is taken to be true, this makes a case of culpable homicide not amounting to murder punishable under Section 304 Part-I of I.P.C. We have already discussed above that there was only 9 one injury caused of the knife by the accused/appellant on the person of Nayeem alias Ballu. From the medical report (Ext. A-11) and the post mortem examination report (Ext. A-14), it is also clear that the deceased died after three days of the incident. It is true that the eye- witnesses have stated that a quarrel took place between the injured and the deceased before the incident. It is not the case of the prosecution that the accused/appellant had any prior enmity or any plan to commit the crime. In the circumstances, we are inclined to accept the contention of learned Amicus Curiae that the offence found to have been proved on the record is the one punishable under Section 304 Part-I of I.P.C. and not the one punishable under Section 302 I.P.C. 10. Accordingly, for the reasons as discussed above, we partly allow this appeal. The conviction and sentence, recorded by the trial court in respect of the offence punishable under Section 302 I.P.C. against accused/appellant Sharif is set aside and he is convicted under Section 304 Part- I of I.P.C. Considering the facts and circumstances of the case, and nature of the offence, we sentence the accused/appellant Sharif to rigorous imprisonment for a period of ten years. The accused/appellant is on bail. His bail is cancelled. Registry is directed to send the 10 lower court record back to the trial court so that the accused/appellant may be made to serve out the sentence, awarded by this Court. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt:09.02.2010 Sweta 11 12 13 14 15