JUDGMENT U.S. Tripathi, J.
1. This appeal has been directed against the judgment and order dated 12-8-1980 passed by the then learned IVth Additional Sessions Judge, Meerut in Sessions Trial No. 352 of 1978 convicting the appellant under Section 307, I.P.C. and sentencing him to undergo R.I. for a period of three years.
2. The prosecution story, briefly stated, was that Nasruddin (P.W.3) had his hotel named Aziz Hotel near Hapur Bus Stand in Meerut City. His brother Alimuddin (P.W.2) was running a betel shop in front portion of the said hotel and was also helping Nasruddin (P.W.3) in the affairs of the hotel. Rafiq Ahmad (P.W.4) used to sell ice near said hotel. The appellant Bhoora often took meals at the said hotel.
3. On the mid night of 30-7-1978/1-7-1978 appellant Bhoora along with his associate Mattu came to the said hotel and took meals. After taking meals, they started going. On it Nasruddin (P.W.3) and his servant demanded charges of the meals. The appellant Bhoora became annoyed and asked his associate Mattu to teach him a lesson. On it Mattu caught hold Nasruddin (P.W.3) from behind and appellant Bhoora inflicted knife blows on his abdomen and hand. Alimuddtn (P.W.2), Rafiq (P.W.4) and other witnesses rushed to the spot. Observing them, the appellant ran away along with his associate.
4. Alimuddin (P.W.2) took injured Nasruddin to P.L. Sharma hospital, Meerut, where he was medically examined by Dr. K.D. Sharma (P.W. 1), who found an incised wound 2.5 cm x 5 cm x muscle on the left side of abdomen and another incised wound 5 cm x 1 cm x muscle deep on the left forearm upper third outer aspect. The injuries were fresh and caused by some sharp object. The Doctor prepared injury report (Ext. Ka-1). From there the injured was referred to Medical College, Meerut for further treatment. The injured was taken to Medical College, Meerut, where he was admitted as his condition was serious.
5. Leaving the injured Nasruddin in the hospital, Alimuddin (P.W.2) got prepared F.I.R. (Ext. Ka-2) and lodged the same at police station Kotwali at 1.30 A.M. The Chik F.I.R. (Ext. Ka-6) was prepared by Constable Om Prakash (P.W. 6), who made an endorsement of the same at G.D. report (Ext. Ka-7) and registered a case against the appellant and Mattu under Section 324 I.P.C.
6. The injuries on the abdomen of Nasruddin were operated at 1.45 A.M. in the night by Dr. S.K. Bhargava (P.W.7), who on opening the abdomen found a hole in the small intestine through and through measuring 8mm. on one side and 2 mm on the other side. The wound was stitched.
7. The investigation of the case was taken up by Sri Narendra Kumar, I.O. (P.W.5). He interrogated Alimuddin (P.W.2) at the police station and came to the spot, where he visited the place of occurrence and prepared site plan (Ext. Ka-3). He also took into possession blood stained and simple earth from the spot and prepared recpvery memo (Ext. Ka-4). He searched the accused, but they were not traceable. On 4-7-1978 he interrogated other witnesses and came to know that appellant had surrendered. He interrogated the appellant in the jail. On 5-8-1978 the I.O. interrogated the injured Nasruddin (P.W. 3). Thereafter, remaining investigation was completed by S.I. Somdutta Tyagi, who submitted charge sheet against the appellant. On 24-7-1978, as the other accused Mattu was absconding.
8. The appellant was tried for the offence punishable under Section 307 I.P.C. He pleaded not guilty and contended that he was falsely implicated merely on suspicion and injuries of the injured were caused by some one else in the darkness.
9. In order to prove its case, the prosecution examined Dr. K.D. Sharma (P.W.I), Alimuddin (P.W.2), Nasruddin (P.W.3), Rafiq Ahmad (P.W.4), Head Constable Narendra Kumar, I.O. (P.W.5), Constable Om Prakash (P.W. 6), Dr. A.K. Nagar (P.W. 7) Dr. Virendra Gupta (P.W.8), Dr. Inder Narain Malik (P.W.9) and Dr. Ravi Kumar Garg P.W. 10.
10. The learned Sessions Judge on considering the evidence of the prosecution held that the prosecution has successfully proved, the guilt of the appellant for the offence punishable under Section 307 I.P.C. With these findings he convicted and sentenced him as mentioned above.
11. During pendency of the appeal, the appellant absconded. Non-bailable warrants were issued against him. The C.J.M. Meerut reported that the non-bailable warrants and processes under Sections 82/83 Cr.P.C. could not be executed, as the appellant had sold his property and left the place of his abode. He further reported that proceeding under Section 446 Cr.P.C. was taken against one of the surety named Ramjani, from whom the surety amount of Rs. 5,000/- was realised. The other surety Abdul Karim had died. Thus, neither the appellant nor any counsel on his behalf appeared to argue the appeal. Therefore, I decide the appeal on merit as laid down by the Apex Court in the case of Bani Singh v. State of U.P., AIR 1996 SC 2439:(1996 All LJ 1399)
12. I have gone through the evidence on record with the help of learned A.G.A.
13. The appellant had not disputed the injuries on the person of injured Nasruddin. The injured Nasruddin (P.W.I) and his brother Alimuddin and Rafiq Ahmad (P. W4) categorically stated that knife blows were caused on the abdomen and hand of Nasruddin in front of his hotel on Hapur Road in Meerut City. The injuries of Nasruddin were examined on the night of occurrence at 12.45 A.M. by Dr. K.D. Sharma (P.W. 1), who found following injuries on his person:-
1. Incised wound 2.5 cm x 5 cm x muscle on the left side abdomen, 10 cm above the iliac bone on the lateral border of abdomen.
2. Incised wound 5 cm x 1 cm x muscle on the left fore-arm upper third outer aspect.
14. Injuries were fresh simple in nature and caused by sharp-edged object.
15. The injured was shifted to Medical College, Meerut, where his injury on abdomen was operated by Dr. A.M. Nagar (P.W.7), who found on opening the abdomen a hole in the small intestine through and through measuring 8 mm on the one side and 2 mm on the other side. He further stated that above injury of Nasrudding was dangerous to life.
16. There is no challenge of the above medical evidence. in this way, it is amply proved by the prosecution that injured Nasruddin (P.W.3) sustained knife injuries on his abdomen and left fore-arm on the night of occurrence and injury on the abdomen was dangerous to life.
17. The date, time and place of occurrence are also not disputed. According to prosecution, occurrence took place at about mid night on the intervening night of 30-6-1978/1-7-1978 in front of the hotel of injured Nasruddin. The above date, time and place of occurrence have not been challenged. The ocular witnesses Alimuddin (P.W.2), Nasruddin (P.W.3) and Rafiq Ahmad (P.W.4) have stated that occurrence took place on the said date, time and place. It is not disputed that just after the occurrence injured was taken to P.L. Sharma Hospital, Meerut, where his injuries were examined by Dr. K.D. Sharma (P.W.I). According to evidence of Dr.K.D. Sharma, he has examined the injuries of injured at 00.45 A.M. on the night of occurrence. The report of the occurrence was also lodged on the night of occurrence at 1.30 A.M. The I.O. visited the spot and collected blood stained and simple earth from the spot. Thus, the ocular testimony of above witnesses regarding date, time and place of occurrence have been fully corroborated by the medical evidence, F.I.R. and other documentary evidence.
18. In order to prove the manner of occurrence and complicity of the appellant, the appellant relied on ocular testimony of Alimuddin (P.W.2), Nasruddin (P.W.3) and Rafiq Ahmad (P.W.4). Nasrudding (P.W.3) is the injured. There can be no doubt regarding his presence on the spot. The witness has categorically stated that on the night of occurrence, the appellant along with his associate Mattu came to his hotel and took meals. After taking meals they started leaving hotel and then he demanded charges of meals. On it, the appellant became annoyed and asked his associate Mattu to teach him a lesson. Mattu caught him hold from behind and the appellant inflicted knife blows. He further stated that he was knowing the appellant from before as he often took meals at his hotel. The existence of hotel of the appellant on Hapur Road in Meerut City is not disputed. The witness is the proprietor of the hotel. The occurrence took place just in front of the hotel and it shall be presumed that there was sufficient light in the hotel. The witness had come into close contact with the appellant and there could be no question of mistaken identity. The suggestion given to the witness from the side of appellant was that he had falsely implicated the appellant, but no sufficient ground for false Implication has been shown. Therefore, there is no ground to disbelieve the evidence of injured Nasruddin (P.W.3)
19. Alimuddin (P.W.2) is the real brother of injured Nasruddin (P.W.3). He stated that he was running a betel shop in the front portion of the hotel. The I.O. had shown the betel shop of the witness on south western corner of the hotel in site plan (Ext. Ka-3). The existence of betel shop of the witness has also not been challenged. The witness stated that at the time of occurrence he was sitting on his betel shop and rushed to the spot hearing the altercation between his brother and the appellant. The betel shop of the witness was adjacent to the place of occurrence. in all probabilities he could reach the spot hearing altercation between the injured and the appellant. Moreover, this witness had taken the injured to the hospital and had also lodged report of the occur -rence in the same night. Therefore, his presence on the spot is corroborated by the evidence of Dr. K.D. Sharma and G.D. entry showing his presence at the police station at the time of lodging report. Though, the witness is real brother of the injured, but on this ground alone, he cannot be disbelieved.
20. The next ocular witness of the occurrence is Rafiq Ahmad (P.W.4). The witness claimed that he used to sell ice near the hotel of Nasruddin (P.W.3). The I.O. had shown the takhat of the witness towards north of the hotel of injured. The occurrence took place on the night of 30-6-1978 and 1-7-1978 i.e. in summer season. It was season when sale of ice was on the top. Therefore, the witness has given reasonable and probable explanation regarding his presence at his ice shop. The shop of the witness was adjacent to the place of occurrence and in all probabilities he could reach the spot hearing the altercation between the appellant and the injured. There is nothing in the cross-examination of the witness to show that he had any ground to depose falsely against the appellant. It has also come in the evidence that appellant was of a bully character and as such Rafiq Ahmad (P.W.4) would not have dared to depose falsely against him.
21. In this way, the testimony of injured has been fully corroborated by two other witnesses. The testimony of ocular witnesses is further corroborated by medical evidence, F.I.R. and other circumstances of the case.
22. Having gone through the entire evidence on record and discussions made above, I find that the ocular witnesses were rightly relied on and from the evidence on record, the offence punishable under Section 307 I.P.C. was fully established against the appellant. The appeal has no force and is liable to be dismissed.
23. The appeal is, accordingly, dismissed.
24. Since, the appellant is absconding, the C.J.M. Meerut is again directed to take coercive steps against him to secure his arrest and sending him to jail.
25. Let a copy of this order be sent to C.J.M. Meerut for information and necessary action.