Court No. - 81
Case :- CRIMINAL APPEAL No. - 2291 of 1982 Appellant :- Nanha @ Thaura Respondent :- State of U.P.
Counsel for Appellant :- Virendra Saran,A.A. Khan,Jitendra Sarin,Mohd Ateeq Ahmed,N K Singh Counsel for Respondent :- A.G.A.
Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Jitendra Sarin, learned counsel for the appellant and Sri G.P. Singh, learned A.G.A. for the State.
2. This Appeal has been preferred against the judgement and order dated 15.09.1982 passed by Sessions Judge, Pilibhit in Sessions Trial No. 173 of 1981, State Vs. Nanha @ Thaura whereby the appellant has been convicted and sentenced under Section 452 I.P.C. with R.I. of two years; under Section 307 I.P.C. with five years' R.I. and both the sentences are directed to run concurrently.
3. According to the F.I.R., the prosecution case is that the appellant, Nanha @ Tharua was the first cousin of Smt. Ummedi (P.W.2), the wife of Md. Husain, complainant of this case. Accused-appellant and the complainant side were known to each other for a long time and lived close to each other. On 13.09.1980 at about 4:00 P.M., a quarrel took place between the children, on account of which, appellant had beaten Smt. Ummedi, Md. Husain and their daughter. Thereafter Md. Husain went to lodge report about the occurrence at P.S. Kotwali and when he was returning home from P.S., Kotwali at about 7:00 p.m., his son, Ahmad Husain (P.W.3) was in house with his mother, Ummedi and his sister and mother of the informant, Md. Husain. The accused Nanha entered the house of informant and found, Ahmed Husain (P.W.3) sitting on the cot in the court-yard and Ummedi was also in the court-yard in the vicinity. Accused appellant told Ahmed Husain that his father had gone to lodge a report, therefore, he would kill him and saying so, he started assaulting him with knife whereby he fell down on the ground and at the same time, Md. Husain (informant) entered the house and raised alarm whereon appellant escaped climbing over the wall towards south.
4. On this F.I.R., Case Crime No. 380 of 1980 was registered at P.S. Kotwali, District Pilibhit under Section 307 I.P.C. on 13.09.1980 at 20:15 hours (8:15 p.m.); the First Information Report is Exhibit Ka-1. The case was registered in G.D. as Exhibit Ka-8 dated 13.09.1980, thereafter investigation was assigned to S.I. Govind Singh Rawat (P.W.5) who conducted the investigation, prepared the site-plan, Exhibit Ka-3. Plain-soil as well as blood smeared soil were taken in possession by P.W.5 who made its Fard, Exhibit Ka-4. He also made recovery memo of dibia which is Exhibit Ka-5, a Fard of blood stained clothes which is Exhibit Ka-6 and submitted charge-sheet, Exhibit Ka-7 against the accused appellant under the above-mentioned sections. The medical examination report of the injured is Exhibit Ka-11 and the report of Radio- logist is Exhibit Ka-10. The statement of the injured recorded by the Executive Magistrate, Krishna Arya, P.W. 4 is Exhibit Ka-2.
5. Charge was framed on the basis of evidence gathered by police on 29.06.1982 under Sections 452 and 352 I.P.C. to which accused pleaded not guilty and claimed to be tried.
6. Learned Amicus Curiae for the appellant has argued that the judgement has not been passed in accordance with the evidence on record and the appreciation of the evidence has not been properly made and the appeal deserves to be allowed and the accused-appellant deserves to be acquitted.
7. In order to prove the prosecution case, from the side of prosecution, informant, Md. Husain as P.W. 1, Ummedi, wife of informant as P.W. 2, Ahmed Husain (injured) as P.W. 3, Executive Magistrate, Krishna Arya as P.W. 4, Investigating Officer of this case, Govind Singh Rawat as P.W. 5, Constable Paltan Ram as P.W. 6, Dr. A.K. Srivastava as P.W. 7 have been examined whereafter prosecution evidence was closed and the statement of the accused was recorded under Section 313 Cr.P.C. in which he has stated that evidence gathered by I.O. is false but he has not examined any witness in defence.
8. P.W. 1 has stated in Examination-in-Chief that on the date of occurrence at about 4:00 p.m., the accused had beaten his wife and daughter regarding which he had gone to Kotwali to lodge a report and when he reached home returning from there at 7:00 p.m., he saw that the accused had thrown his son down on the ground and was causing injuries with the aid of knife. At that time, his wife and his mother were at home. Khalid Husain had also reached there whereafter the accused fled from there towards the house. He took his son to the hospital, thereafter he went to Kotwali again to lodge a report which is Exhibit Ka-1.
9. In cross-examination, this witness has stated that when he returned home, at that time, door of his house was open. He had seen the accused assaulting his son. He had not told I.O. that the accused was sitting on the back of his son and has denied that he had not seen the occurrence and is making false statement.
10. Statement of this witness indicates that when he was returning from the P.S., Kotwali after lodging report of the occurrence which took place at about 4:00 p.m. in which his wife and daughter were beaten by the accused and when he had returned home at about 7:00 p.m., he saw that the accused was assaulting his son with knife, therefore, he is eye-witness of this occurrence and his testimony does not seem to be unbelievable.
11. P.W. 2, Ummedi, wife of informant has stated in Examination-in-Chief that accused entered her house and told his son that his father had gone to lodge a report, therefore, he would not spare him alive and started assaulting his son with knife and when her husband returned home, the accused climbed over the wall and fled from there. His son has received knife injuries.
12. In cross-examination, this witness has stated that the incident in which injuries caused to her son by knife, the said occurrence continued for half an hour and during this period, her neighbour, Khalid Husain and Wali had come there and no effort was made to catch hold of the accused nor anything was thrown upon the accused. As soon as her husband entered the house, the accused climbed over the wall and fled. Her son was sitting on a cot at the time when the assault was being made upon him. There was bed-sheet on the cot which got smeared with blood. This witness has been cross-examined at length and her testimony does not appear to be false because she has given very clear narration of the manner in which the incident occurred and the prosecution case is that he was at home at the time of occurrence, I do not find her testimony impeachable.
13. P.W. 3, injured Ahmed Husain has not supported the prosecution version and stated that he could not see who had assaulted him by knife. He was declared hostile.
14. In cross-examination, this witness has stated that after having got hurt by the injuries of knife, he fainted. He has stated that in hospital, his statement was recorded by 'Deputy Sahab' and at that time, Dr. was also present. The said statement was read out to him whereafter his thumb- impression was taken thereon. In the said statement he has stated that 'ghar par aaya, isne peeche se (Nanha ne) chaku maar diya. Isne teen chaku mare'. The said statement was given by him because his father had told to make such statement that Nanha had assaulted him by knife. He had not given any such statement to the I.O. that the accused after entering his house had caused him three injuries by knife and has denied the suggestion that he has identified the accused and it was the accused who had caused him knife injuries and in order to defend him, he was giving false statement.
15. It is apparent from the said statement of this witness that he has turned hostile but the fact that he suffered three injuries by knife which were caused to him by accused appellant was stated by him before the Magistrate but he has stated that the same was stated by him only because his father had told him that the injuries to him were caused by the appellant. In-fact he had not seen the occurrence. It appears that his statement is not true because when the Magistrate has recorded the statement in presence of the doctor, he would not be recording false statement of this witness.
16. Krishna Arya, Executive-Magistrate has been examined as P.W. 4 who has stated in his Examination-in- Chief that whatever was told by this witness, was recorded by him and after having read out to him the said statement, the thumb-impression of the injured witness was taken and has proved the statement of the victim as Exhibit Ka-2.
17. In cross-examination, this witness has stated that police was not present there. He himself has put question to the victim and thereafter had recorded his statement. Before recording statement of the victim, his relatives were removed from there.
18. It is apparent from the said statement of this witness that the relative of the victim had been removed, hence it cannot be said that whatever statements were made by the victim before him was not true. In-fact the statement given by the victim to the witness, P.W. 4 seems to be believable and the statement of P.W. 3 (injured) stating that his statement was made before the Executive-Magistrate at the instance of his father having told him that he was assaulted by the accused seems to be false one and appears to have been given only to defend the accused. It is also appropriate to mention here that two other eye-witnesses i.e. his mother and father both have clearly supported the prosecution version to the effect that it was accused appellant who had caused injuries to their son.
19. P.W. 7, Dr. A.K. Srivastava who had examined the victim on 19.09.1980 and had found the victim to have suffered following injuries:
"(i) a stab wound of 3.0 cm. x 1.5 cm. x depth not measured on left side scapula region, margin clean-cut and bleeding present; advised x-ray chest, P.S. rib.
(ii) a stab wound of 2.5 cm. x 1/3 cm. x depth not measured on back side, middle of the back, 1.0 cm. from mid-tissue on back of left side of abdomen. Bleeding present. Kept under observation. Advised x-ray abdomen, P.A. ribs.
(iii) an incised would of 3 cm. x 1.0 cm. x muscle deep on left hip inner side, margin clean-cut and well defined; direction oblique. Duration fresh and all injuries are inflicted by sharp edged weapon like knife."
20. He has proved this report as Exhibit Ka-11. He has further stated in Examination-in-Chief that x-ray was conducted of the injured, he remained hospitalized for 30 days and his lung became injured. X-ray report is Exhibit Ka-10.
21. This witness has not been cross-examined.
22. P.W. 5 is I.O. who has proved site-plan and the charge- sheet. In cross-examination, nothing such emerged which would show that he did not conduct the investigation in appropriate manner. He has proved all the material exhibits cited above as well as recovery-memos.
23. During arguments, nothing such has been shown by the learned counsel for the appellant that he did not conduct the investigation in fair manner.
24. P.W. 6, Paltan Ram is a formal police witness and his testimony does not require to be thoroughly examined.
25. On the basis of above evidence, I find that the prosecution has been successful in proving the case beyond reasonable doubt against the accused appellant because P.W. 1 and P.W. 2 have clearly testified in support of prosecution version that the accused-appellant at 7:00 p.m. had entered the house of the informant and had assaulted the injured (P.W. 3) with the help of knife and caused him three injuries which were found to have been caused by sharp-edged weapon as has been proved by the doctor and the said injuries are apparently caused by knife because it would cause stab wound and the same has been found to have been suffered by the victim, therefore, I do not find any infirmity in the judgement of the trial court and the accused-appellant has been rightly convicted under Sections 452 I.P.C. and 307 I.P.C.
26. Appeal stands dismissed.
27. Learned Amicus Curiae for the appellant has brought to the notice of this Court that appellant has already been in jail for four years and ten months by now, therefore, punishment be reduced for a period already undergone.
28. Looking to the fact that the occurrence took place in the year, 1980 when the age of the accused-appellant was recorded as 35 years on 25.08.1982 in his statement recorded under Section 313, by now, he would have become 72 years of age, therefore, this Court deems it appropriate to reduce the punishment of the accused- appellant awarded under Section 307 I.P.C. to four years and there is no need to interfere in the punishment awarded under Section 452 I.P.C., the same stands affirmed as such. Ordered accordingly.
29. Since the trial court has directed both the punishments to run concurrently, if the accused has already served out the above period i.e. period of four years, he shall be released forthwith, if not wanted in any other case. The accused is reported to be lying in jail.
30. Copy of this judgement be transmitted to the trial court along with the lower court record for strict compliance forthwith.
Order Date :- 28.11.2019/A. Mandhani