Allahabad High Court
Amjad vs State Of U.P. on 31 July, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 74 Case :- CRIMINAL APPEAL No. - 566 of 2007 Appellant :- Amjad Respondent :- State Of U.P. Counsel for Appellant :- V.S. Chauhan,Ateeq Ahmad Khan,D.P.Singh,Nazrul Islam Jafri,Noor Mohammad Counsel for Respondent :- Govt. Advocate Hon'ble Arvind Kumar Mishra-I,J.
Heard Sri Noor Mohammad, learned counsel for the appellant, Sri Om Narain Tripathi, learned A.G.A. Ist assisted by Sri Jitendra Kumar, Sri Sanjay Kumar Rajbher, Sri Mahesh Kumar Dwivedi, learned A.G.A.s, Sri Bhanu Praksh Singh and Sri S.C. Dwivedi, learned brief holders for the State and perused the material brought on record.
The instant criminal appeal has been preferred by the above noted appellant Amjad s/o Aslam questioning the sustainability and validity of the judgment and order of the trial court dated 16.1.2007, passed by the court of Additional Sessions Judge/Fast Track Court No.4, Meerut in Sessions Trial No. 90 of 2005 (State versus Amjad), arising out of Case Crime No. 184 of 2004, under Section 307 I.P.C., Police Station Parikshitgarh, District-Meerut, whereby the appellant after being convicted under Section-307 I.P.C. has been sentenced to ten years rigorous imprisonment along with fine Rs. 1,000/- with default stipulation for six months rigorous imprisonment.
Prosecution case is that an F.I.R. was lodged at Police Station - Parikshitgarh, District - Meerut on 7.9.2004 at 10:30 P.M. regarding some incident having taken place the very same day in the evening around 7:30 P.M. allegedly caused by accused - Amjad, resident of Agwanpur within the jurisdiction of the aforesaid police station, whereby cousin of the informant - Sushil Kumar sustained injuries. Informant Pappi s/o Uday Singh, resident of Village - Agwanpur, Police Station - Parikshitgarh, District - Meerut lodged the aforesaid report at Case Crime No. 184 of 2004 with averment that his cousin Sushil son of Sube Singh, resident of Village - Agwanpur is running a jewellery shop. 10 days prior to the incident, accused- Amjad came to his shop and he picked up quarrel with his cousin, but the matter was subsided with the help of the villagers, but he was having grudge against Sushil on account of aforesaid altercation/dispute. Today on 7.2.2004 his cousin Sushil was standing near the bus stand around 7:30 P.M. in the evening when Amjad came over there, whipped out a knife and with the intention to kill, caused knife blow on the neck. On alarm being raised, the informant Pappi, Sunil s/o Sube Singh and other villagers arrived on the spot, due to which Amjad fled away from the scene, waving his knife. It has also been described in the F.I.R. that Sushil was taken to the hospital by his family members and he has come to lodge the report. Therefore, report may be lodged and action taken. This report is Exhibit Ka-1 and the entry of the same was taken down in the Check F.I.R. 135 of 2004 I.P.C. at aforesaid case crime number at aforesaid police station, under Section-307 I.P.C. The Check F.I.R. is Exhibit Ka-4 and on the basis of the entry so made in the check F.I.R., relevant entry was also made in the concerned general diary of 7.9.2004 at aforesaid case crime number at 10:30 P.M. and a case was lodged accordingly. The copy of G.D. is Exhibit Ka-5 and the same has been proved by P.W.5 Constable Clerk Suresh Chand.
Record reflects that medical examination of injured Sushil was done at the private nursing home at Lokpriya Hospital at 10:15 P.M., wherein the following injury was noted on examination. The injury report is Exhibit Ka-2.
(i) Shape cutting wound 7 x 1 x 2 cm - front of neck.
(ii) Shape cutting wound on left thigh middle part 6 x 1 x 1.5 cm size.
Supplementary report was also prepared which is Exhibit Ka-3.
Part painted & draped wound was mopped. There was transverse cut in front of trachea which was repaired. There was transverse cut of Right sterno cleidomastoid, strap muscles which was repaired with vicryl 1-10. homeostasis secured wound closed. Tracheostomy done below the injury. There was another injury at medial part of thigh muscles was transversely incised & was repaired with vicryl 1-0. Drain was given below strap muscles.
Thereafter, the investigation of the case ensued and the same was entrusted to S.I. Sri Netrapal Singh. The investigation has been proved by the witness P.W.5 Constable Clerk Suresh Chand when he has testified in his examination-in-chief the fact that the investigation was entrusted to S.I. Sri Netrapal Singh, who is not on duty and he is absconding, and on account of that he has proved the site-plan prepared by the aforesaid I.O. and has claimed to be acquainted with the handwriting and signature of the investigating officer. The site-plan has been proved by P.W.5 Constable Clerk Suresh Chand as (Exhibit Ka-6). As per testimony of P.W.5 after completing the investigation, charge-sheet no. 124 of 2004 dated 29.9.2004, under Section - 307 I.P.C. was filed in the court, the same has been proved as Exhibit Ka-7. Consequently, the case was committed to the court of Session from where after being numbered as Sessions Trial No. 90 of 2005, under Section - 307 I.P.C. it was transferred to the aforesaid trial court of the Additional Session Judge/Fast Track Court No.4, Meerut, who after hearing both the prosecution and the accused on point of charge was prima-facie satisfied with the case under Section - 307 I.P.C. consequently framed charge under Section 307 I.P.C. against accused - Amjad. Charge was read over and explained to the accused, who pleaded not guilty and opted for trial.
Consequently, the prosecution was required to prove the guilt of the accused and in order to do the same, the prosecution produced in all five witnesses.
P.W.1 Pappi is the informant and the eye-witness. Similarly, P.W.2 Sunil Kumar s/o Sube Singh is also an eye witness. The injured Sushil P.W.3 has testified about the incident. P.W.4 Dr. Ashutosh Niranjan has medically examined the injured at Lokpriya Hospital on 7.9.2004 at 10:15 P.M. and has proved the injury report as Exhibit Ka-2 and supplementary report Exhibit Ka-3, respectively. P.W.5 is Constable Suresh Chand. He has proved the lodging of the F.I.R. and registration of the case at Case Crime No. 184 of 2004, under Section-307 I.P.C. at 2:30 P.M. at Police Station - Parikshitgarh - and has proved the Check F.I.R. (Exhibit Ka-4) and the General Diary entry concerned (Exhibit Ka-5). Besides he has also proved the site-plan (Exhibit Ka-6) and the charge-sheet (Exhibit Ka-7).
Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and the statement of the accused was recorded under Section-313 Cr.P.C., wherein he has denied the prosecution version, however, he has not made any statement.
No evidence whatsoever was given by the defence.
The court below after considering the case and evaluating the entire evidence vis-a-vis the facts and circumstances of the case recorded aforesaid finding of conviction, thus sentencing the appellant to ten years rigorous imprisonment coupled with fine Rs.1,000/- with default stipulation to suffer six months rigorous imprisonment.
Resultantly, this appeal.
It has been vehemently claimed that in this case the informant Pappi has himself disowned lodging of any F.I.R. and has not supported the prosecution version and as per his testimony, the entire prosecution case is not admissible as alleged. It is noticeable that the medical examination of the victim was not conducted at any government hospital but it was deliberately got conducted at Lokpriya Hospital, which is a privately-run hospital and the injury report is not authentic. The testimony of the doctor itself shows that both injury no. 1 and injury no. 2 cannot be caused by the same weapon. This exposes falsity of the claim that only knife was used in causing blow on the person of the victim by the accused. It being so, it is obvious that the occurrence has not been seen by anyone. Appellant has been falsely involved on account of enmity. The injury caused to the injured cannot be said to have been caused by the accused but by some unknown person in the darkness of night. All the witnesses are interested witnesses and there is no independent corroboration despite fact that the incident took place at public place near bus stand. Even the victim could not see the real assailant as to who caused the injury to him.
Per contra, learned A.G.A. has vehemently supported the finding of conviction and submitted that whatever be the position, the medical examination has been proved by P.W.4 Dr. Ashutosh Niranjan and he has also proved the supplementary medical report and his testimony on the whole shows that the injuries could have been fatal. The testimony of the injured itself is innocuous on the point of occurrence being caused by the appellant. The doctor witness has himself stated in his examination-in-chief about the weapon by which these injuries could have been caused by knife and has stated that these injuries may be caused by use of knife. The F.I.R. under circumstance is prompt. There is no specific enmity for which the real assailant will be spared and in his place innocent person will be involved. Appeal lacks force.
Upon consideration of the facts and circumstances of this case and the rival submissions, the moot point that arises for adjudication of this appeal relates to fact, whether the prosecution has been able to prove the charge under Section-307 I.P.C. beyond all reasonable doubt against the accused ?
In this case, the star witness of the incident is the injured- Sushil P.W.3 and the informant is P.W.1 Pappi, who has lodged the first information report. He has not supported the case of the prosecution. The doctor who medically examined the aforesaid injured is P.W.4 Dr. Ashutosh Niranjan. He has elaborated about the nature of the injury caused. So far as the version of the first information report (Exhibit Ka-4) is concerned, a case is made out to the magnitude that on 7.9.2004, the incident occurred and it was caused by the present appellant by giving knife blow on the neck of the injured/victim- Sushil at some place near the bus stand around 7:30 P.M. The informant- Pappi Singh and a number of persons arrived on the spot on alarm being raised, due to which the appellant fled away from the scene. The injured was taken to the hospital where he was medically examined, wherein a wound of 7 cm x 1 cm x 2 cm in front of neck with sharp cutting along with another wound on the left thigh middle part in the dimension of 6 cm x 1 cm x 1.5 cm was noted. The injury report is (Exhibit Ka-2) and on the basis of medical examination, supplementary report was prepared. The supplementary report has been proved by the doctor as (Exhibit Ka-3). Now in so far as the fact of incident is concerned, the informant- Pappi P.W.1 has not supported the incident and has disowned his own version that he ever saw the incident take place. He has been declared hostile and was cross examined by the prosecution wherein he has denied any statement having been made to the investigating officer. He has also denied suggestion that because of compromise being struck between the accused and the injured, he is not telling the truth. Therefore, his testimony is not relevant for the purpose of consideration of actual merit of the case. In so far the testimony of another witness Sunil Kumar is concerned, he has also stated that ten days prior to the incident, some dispute arose between the accused and the injured and due to which the accused was having grudge against the injured and it so happened that on the fateful day in the evening around 7:30 p.m. when this witness was standing at the bus stand of the village, he saw accused causing knife blow on the neck of Sushil. He has also stated about the presence of Pappi and a number of villagers on the spot at the time of occurrence. He has also stated that because of the injury being caused, the injured received medical treatment for about 20 days and was admitted in Lokpriya Hospital. He has been cross-examined at length, wherein also nothing dubious or adverse emerges to the ambit that may create any doubt about the incident. However, the star witness of the incident is P.W.3 Sushil- the injured. He has also corroborated the F.I.R. version of the incident in his testimony and has stated that on 2.9.2004 at about 7:30 P.M., he was standing at the bus stand of the village when Amjad arrived on the spot and with intent to kill him assaulted him with knife and caused injury on his neck. On hue and cry being raised, a number of persons arrived on the spot, due to which the accused fled away from the scene. Regarding motivating cause for committing the offence, he has further testified that about 30-35 days prior to the incident, Amjad came to his shop and took Rs. 45,000/- from him and had promised to return the same after 20-25 days and ten days prior to the incident, he again came to his shop whereupon the injured demanded his money from him, then a scuffle followed. However, local people intervened and subsided the matter and because of this incident, the accused became inimical towards the victim. This witness has been cross-examined at extensive length but nothing adverse of the sort has emerged, which may reflect on the point of non happening of any such incident as alleged in the F.I.R. and testified by P.W.3 Sushil- the injured. In so far as the nature of the injury is concerned, the doctor witness has himself stated on page no.25 of the paper book that these injures might have been caused by knife and these injures may have been fatal. Although, in his cross-examination, he has also stated that Injury No.1 and Injury No.2 cannot be caused by one knife or one sword and on the basis of the same it has been contended that the incident was caused in the darkness of night by some unknown person but because of the enmity the accused has been falsely involved in this case. However, the doctor has also stated in his cross examination that at the time when the patient was taken to the operation theater, there was possibility of his expiring. The constable clerk Suresh Chand P.W.5 has proved the Check F.I.R. and the concerned G.D. of the date by which the case was registered at Case Crime No. 184 of 2004, under Section - 307 I.P.C. against the accused at 10:30 p.m. on 7.9.2004 at aforesaid police station and has proved the concerned entry made in the concerned Check F.I.R. and the G.D. as Exhibit Ka-4 and Exhibit Ka-5, respectively. Since, the S.I. Netrapal Singh at the time of trial was absconding, therefore, the part of the investigation regarding preparation of the site-plan (Exhibit Ka-6) and the charge-sheet (Exhibit Ka-7) have also been proved by this witness as he was acquainted with the handwriting and signature of the Investigating Officer- Sri Netrapal Singh. The accused has not come out with any specific version nor has stated anything in his statement under Section - 313 Cr.P.C., however he has termed the claim of the prosecution false. Then, in the backdrop of the aforesaid testimony, obviously the case of the prosecution under Section - 307 I.P.C. for causing grievous and serious injury on the vital part of the person of the injured- Sushil P.W.3 on 2.9.2004 at about 7:30 p.m. at the village bus stand by the accused- Amjad stands proved beyond all reasonable doubt and the suggestion made by the defence that some unknown person assaulted the victim in the darkness of night has been specifically denied by the injured in his cross examination as appearing on page no. 23 of the paper book and this suggestion indirectly admits in straight forward sense the occurrence itself and the injury being caused in the occurrence and there is no attendant circumstance, which may whisper about any credence to the suggestion so made by the defence. The trial court was justified while it recorded finding of conviction based upon aforesaid factual as well as legal aspects as the testimony adduced by the prosecution is fair enough to establish the charge under Section - 307 I.P.C. Since the injury was caused on the vital part of the body, say neck, the sentence awarded against the appellant is also, under facts and circumstances, justified and needs no interference. Consequently, this appeal lacks merit and the same is dismissed and the judgment and order dated 16.1.2007, passed by the court of Additional Sessions Judge/Fast Track Court No.4, Meerut in Sessions Trial No. 90 of 2005 (State versus Amjad), arising out of Case Crime No. 184 of 2004, under Section 307 I.P.C., Police Station Parikshitgarh, District-Meerut is hereby affirmed.
In this case, the office report indicates that the appellant has already suffered ten years of rigorous imprisonment as awarded in this case and after completion of ten years detention he was released by the Jail Superintendent, District Jail, Meerut and the original report of the Jail Superintendent, District Jail, Meerut dated 26.6.2019 has been placed on record.
In view of above, it is obvious that the appellant has already suffered the entire sentence and has been released on the completion of the sentence as such. Therefore, no consequential order need be passed.
Order Date :- 31.7.2019 S Rawat