Court No. - 50
Case :- CRIMINAL APPEAL No. - 1342 of 1990 Appellant :- Furkan Respondent :- State Counsel for Appellant :- Veer Singh Counsel for Respondent :- A.G.A.
Hon'ble Harsh Kumar,J.
Criminal Misc. Recall Application No.2 of 2018
Heard learned counsel for the applicant-appellant.
The appeal is critically old and there is no sufficient ground for recalling the order dated 1.8.2018.
The recall application is rejected.
Order Date :- 23.8.2018 Kpy
Court No. - 50
Case :- CRIMINAL APPEAL No. - 1342 of 1990 Appellant :- Furkan Respondent :- State Counsel for Appellant :- Veer Singh Counsel for Respondent :- A.G.A.
Hon'ble Harsh Kumar,J.
The present criminal appeal has been filed against the impugned judgment and order dated 29.6.1990 passed by Sessions Judge, Bijnor in S.T. No.87 of 1988, convicting the accused-appellant Furqan under Section 201 I.P.C. and sentencing him with rigorous imprisonment for a period of 4 years.
Heard Sri Shakil Ahmad, learned counsel for appellant, learned A.G.A. for the State and perused the record as well as the lower court record summoned in appeal.
Learned counsel for the appellant contended that the appellant has been falsely implicated for causing death of his wife and making the evidence disappear; that the real fact is that on 8.1.1988 the wife of appellant died due to cholera and he immediately went to his Sasural for giving information of her death to her father-in-law, the first informant, who did not rely him rather lodged a F.I.R. against him for causing death of his wife; that during trial P.Ws.3, 4, 5, 6 & 8 have not supported the prosecution case and have turned hostile, however, P.Ws.-1, 2 & 7 supported the prosecution case; that learned trial court has acquitted the appellant for the offence under Section 302 I.P.C. and has convicted him for the offence under Section 201 I.P.C.; that appellant neither caused death of his wife nor made to disappear any evidence; that the appellant was not granted bail during trial after his arrest on the very first day of lodging of F.I.R. on 9.1.1988 and was released on bail only in furtherance of order dated 6.7.1990 passed in this appeal; that the appellant has remained in custody for a period of 2½ years. Learned counsel for the appellant contended that by maintaining his conviction the sentence be reduced to the period already undergone.
Per contra, learned A.G.A. supported the impugned judgment and order of conviction and contended that appellant has been rightly convicted for the offence under Sections 201 I.P.C. with adequate sentence for 4 years and appeal is liable to be dismissed.
Upon hearing the parties' counsel and perusal of record as well as the lower court record summoned in appeal, I find that in this case father-in-law of the appellant lodged F.I.R. against appellant and one Islam Uddin for causing death of his daughter. In their statements on oath P.W.-1 Abdul Wasey, P.W.- 2 Smt. Sakina and P.W.-7 Shakil Ahmad, who are respectively father, mother and brother of the deceased, have stated that the information regarding death of Sabila due to cholera given by the appellant at 2:30 a.m. was incorrect as there were injuries on her neck, chest and legs. To the contrary Court witness No.1 Autopsy Surgeon Dr. Sudhakar Garg has stated that there was no mark of injury on the body of deceased and in spite of the fact that her death did take place due to asphyxia, in absence of any ligature mark or any other injury, it may not be a case of strangulation.
The trial court has analysed the evidence in detail and there is no illegality or incorrectness in the impugned order. I find that there is no sufficient ground for interfering with the order of conviction. The conviction is liable to be affirmed. However, considering the fact that appellant was in custody for a period of about 2½ years during trial, before was granted bail vide order dated 6.7.1990, about 28 years ago, I find that in case the sentence is reduced to the period of imprisonment already undergone, it will meet the ends of justice.
In view of the discussions made above, the appeal is liable to be partly allowed and partly dismissed.
The appeal is partly dismissed. The impugned judgment and order of conviction of accused-appellant under Section 201 I.P.C. is upheld and confirmed. The appeal is partly allowed and the sentence is modified and reduced to the imprisonment for a period already undergone.
The accused-appellant if in custody will be released forthwith unless wanted in some other case.
The material exhibits, if any, shall be disposed off after statutory period in accordance with rules.
Let lower court record be sent back to court below along with a copy of this order for necessary compliance.
Order Date :- 23.8.2018 Kpy