Rashid vs State of U.P.

Rakesh Tiwari, J.—Heard learned Counsel for the Appellant and Sri. K.N. Bajpai and Sri. Sher Singh learned A.G.A. and perused the record.

The criminal appeal has been preferred against the impugned conviction order dated 13.4.2006 passed by Additional Sessions Judge (Fast Track Court No. 4), Firozabad. By the order impugned passed in Sessions Trial No. 537 of 2003, State v. Rashid, u/s 307/326, I.P.C., P.S. Matsena, district Firozabad arising out of Case Crime No. 265 of 2002, the Appellant was convicted u/s 307, I.P.C. for rigorous imprisonment of 10 years and a fine of Rs. 5,000, failing which he was to undergo two months additional imprisonment. The Appellant was further convicted u/s 326, I.P.C. also for the imprisonment for life alongwith fine of Rs. 5,000 failing which he was to undergo two months additional imprisonment. All the sentences were to run concurrently.

The ground of challenge by the Appellant is that the impugned order has been passed in a mechanical manner, without application of judicial mind and is against the weight of the evidence on record. The validity and correctness of the impugned order is also challenged on the ground that the court below has failed to consider that all the prosecution witnesses were biased and interested and as such the testimony of interested witnesses which were contradictory could not have been considered for the purpose of conviction. Inasmuch as, the medical evidence revealed that it was a case of simple injury and there were major discrepancies in preparation of the inquiry report and that sentence was too severe. Last ground of challenge taken in the appeal is that admittedly there was enmity between the parties and as such there was a chance of false implication of the Appellant. As such, considering the facts and circumstances of the case, the impugned order of conviction and sentence awarded by the Additional Sessions Judge (F.T.C. No. 4), Firozabad is not tenable in the eye of law.

According to the first information report lodged by first informant Mohd. Sharif on 23.9.2002, it appears that he had gone to visit his brother Moh. Sayeed, R/o Nagla Kothi, P.S. Rakgarh; that Rashid son of Qudeer the Appellant had installed a machine for cutting of bangles at the house of Mohd. Sayeed but was not vacating the place in spite of request as such he was inimical to his brother; that at about 7 a.m. he was going with his brother for ''tagada'' of money. When they reached near Shivaji Ki Bagia, Rashid son of Qudeer carrying a katti in his hand came there exhorting that he will kill Mohd. Sayeed and poured the katti full of acid upon him due to which his brother Mohd. Sayeed suffered grievous injuries. Thereafter, Mohd. Sayeed was admitted to S.N.M. Hospital, Firozabad and a report was lodged by the first informant about the incident at about 4.10 p.m. at P. S. Matsaina, district Firozabad.

The investigation was taken up by S.I. Ishwar Singh who prepared the recovery memo dated 24.9.2002 of burnt clothes, chappal and plastic kainy or katti (Exh. Ka-2). Injury report dated 23.9.2002 (Ext. Ka-3) shows that acid had burnt the face, left shoulder and left leg superficially and the victim was referred for plastic surgery.

Charge was framed by Additional District Judge/F.T.C. on 19.1.2004 to which the accused-Appellant pleaded not guilty and claimed to be tried.

Mohd. Sharif first informant, entered into the witness box on 7.7.2004 as P.W. 1. He narrated the whole story of incident in his examination-in-chief as given by him in his written report and proved the F.I.R. He also proved the recovery memo Ext. Ka-2 ; and stated that at the time of evidence he was about 20 paces behind his brother. In cross-examination he has stated that Sayeed was not the owner of the house in which he was living as tenant and owner of the said house was Manjari.

Mohd. Sayeed, P.W. 2 the injured witness in his statement dated 10.12.2004 has also corroborated the evidence given by P.W. 1 and stated that he knew accused Rashid from before. He narrated that Rashid poured the acid from katti on his head saying that he will kill him today and when he shouted, Rashid ran away leaving behind the katti, his brother Sharif tried to catch him, but looking at condition he came back to help him. Nathu and Ram Sanehi poured water over him with the help of his brother and thereafter he was brought to police station Ramgarh by his brother Sharif but was informed that incident was beyond the territorial jurisdiction of police station Ramgarh. Thereafter he was accompanied by police personnel who got his brother admitted in the hospital at Firozabad. He also stated that his left eye is totally injured by the acid and he has lost the eyesight of his other eye and has also completely lost hearing capacity due to the effect of the acid. He also stated that incident took place because Rashid was doing bangle cutting work in his (Mohd. Sayeed''s) room and when asked him to remove his goods from the house which belonged to his Khalia sas Manjari Devi, he became inimical. He further stated that Nathu and Ram Sanehi had gone after occurrence and denied the suggestion that acid had fallen on him incidently when he was at home and that occurrence had not taken at the place of Shivaji Ki Bahia as alleged by him. He stated that he does not know Salim painter or Ashfaq and there was no thatched hut (Jhopri at the spot).

P.W. 3 : Saleem painter in his statement before the Court on 7.2.2005 stated that about 2 and half years back he was coming from the nursery of Nathhulal after purchasing plants when he saw that Sharif and Sayeed were going and at that time Rashid came out from the field and poured a katti of acid over the head of Sayeed and thereafter he ran away. At that time Nathhulal and another person came at the spot and water was poured over Sayeed. In the cross-examination he stated that by that time Babu Ram, Sarman, Panna Lal, Karan Singh and Suraj Pal had not come; and that he had told the "darogaji" about pouring of the katti but cannot tell any reason why he had not noted it. In the end he stated that water was poured on the injured and denied the suggestion that he was giving any false statement because in-laws of Sharif lives in his locality.

Dr. A.K. Anand son of Sri. Harish Chand entered the witness box as P.W. 4. He stated on oath that he was on duty on 23.9.2002 as Medical Officer in S.N.M. Hospital; that Constable Raghuvir Singh had brought Mohd. Sayeed son of Habib, R/o Kothi Ka Nagla Ramgarh for medical examination. He was examined at 12.35 p.m. by him and identification made as well. The injured was having burn injuries by acid on his face, left shoulder and at the back side of his left leg which were superficial in nature; and that the injured was referred by him to the plastic surgeon. He proved the entries made into his hand writing in the records of the treatment in the hospital and proved the photocopy of the register from the original which was exhibited as Ka-3. He also stated that injuries on the injured Sayeed was possible from acid burns and at the time of treatment the injured was in serious condition. The burns were upto ''Epidermis'' and that he had inadvertently forgotten to write the duration of the injury in his report and that the injured was admitted in the hospital as whenever a person is referred to plastic surgeon he is admitted in the hospital and that similar injuries can be sustained by a person when a katti or container of acid may fall accidently from ''Tad'' (shelve) above him.

P.W. 5 : Ishwar Singh-Sub-Inspector, P.S. Hasayan, district Hathras in his statement dated 30.11.2005 has stated that he was posted as Sub-Inspector at P.S. Matsaina on 23.9.2002 when he was given charge of investigation of the said occurrence. He has further stated that the F.I.R. was lodged on the same day. Fard and recovery memo of the burnt clothes, chappal and katti or plastic cane was taken into possession and their recovery memos were prepared immediately. He has further stated that he has taken evidence of Sayeed and his son on 24.9.2002. Thereafter, he had also prepared site plan and had also taken evidence of the two eye-witnesses on 25.9.2002 as well as of injured witness on 30.9.2002. It was lastly stated by him that the first informant told that occurrence had taken place at about 8 a.m.; that he had started from his house at about 7 a.m.

P.W. 6 : Constable 477 Mohan Singh pairokar of P.S. Matsaina in his statement dated 13.2.2006 stated that Constable 846 Vinod Kumar being patient of cancer could not attend the Court.

The accused was examined u/s 313, Code of Criminal Procedure and denied the allegations. Satyapal D.W. 1 son of Ghamandi Lal was examined as defence witness who denied that any occurrence or incident had taken place on 23.9.2002 and thereafter also stated that no incident had taken place on 22/23/24.9.2002. By the impugned order dated 13.4.2006, the Additional Sessions Judge, F.T.C., Firozabad convicted and sentenced the accused-Appellant as stated earlier.

The contention of learned Counsel for the Appellant is that lodging of the F.I.R. suffers from delay and laches as such prosecution story is afterthought and doubtful. The motive of involving the Appellant for committing the offence is not in existence for the reason that the house in which Sayeed was living and in which Rashid was carrying business of cutting bangles does not belong to Sayeed but belong to Manjari, therefore, there was no occasion for Sayeed to ask Rashid to vacate the house. It is also stated that the incident is said to have taken place on 23.9.2002 at about 8 a.m. whereas the injured was medically examined at about 12.35 p.m. According to the learned Counsel for the Appellant the entry of the injured person is also not made in proper register maintained at the hospital. Hence whole story of prosecution becomes doubtful.

Heavy reliance has also been placed upon the time of occurrence in the F.I.R. wherein it is stated that occurrence had taken place at about 8 a.m. It is urged that the story of prosecution that the accused-Appellant had come out from the field where chari crops were standing is false as it is well known that chari crop is not in the fields in the month of September. Hence the statement of eye-witness that the accused-Appellant had come from the field where chari crop was standing is improbable. It is stated that even katti or container from which it is alleged that acid was thrown upon Sayeed had not been sent to Vidhi Vigyan Prayogshala as such it is not proved that the injured has received burn injuries from acid said to have been thrown from the container which is said to have been recovered from the spot and as such whole story of prosecution is based on un-pragmatic. It has also been stated that baniyan, chappal and katti which are said to be recovered but in fact these things were not recovered from the place of occurrence.

In the alternate the Appellant has put forward a story that Sayeed had received burn injury from acid in his room when the container might have accidently fallen down on him from the shelves. It is lastly urged that it is the duty of the prosecution u/s 307, I.P.C. to establish that the injury received was grievous, but the doctor in his medical examination stated the injuries to be superficial and as such no case u/s 307/326, I.P.C. is made out against the Appellant/accused.

It is evident from the F.I.R. that eye-witness P.W. 1 and P.W. 3 had seen the Appellant pouring the acid from katti upon Sayeed which was recovered from the spot. Even from the hypothesis put forth by the Appellant that P.W. 2 received burn injuries at his room when the plastic came fall accidently from the shelves over him, is not proved that acid was not poured on the injured and the hypothesis raised by the Appellant remains confined in the realms of hypothesis only.

We may not take the statement of injured P.W. 2 as gospal truth when he says that due to the aforesaid act of pouring of acid upon him by the Appellant he has lost both eyes and hearing capacity in one ear as it could not be proved by the prosecution that he had received those injuries in the incident. Furthermore, even if statement of painter Saleem P.W. 3 is ignored and is not taken into consideration for the purpose to come to the conclusion that prosecution has been able to prove the care against the accused beyond all reasonable doubts or not.

It is well-settled that mere small technical contradiction in the statement will not provide an escape to the accused by giving him benefit of doubt. The contradiction in the evidence are to be material and of the nature which may support the prosecution case as unbelievable or beyond the realm of reality.

As regards delay in lodging the F.I.R. is concerned, according to the statement of P.W. 2 he had taken his brother firstly to the police station Ramgarh but was told that place of occurrence does not lie within their jurisdiction as such F.I.R. cannot be lodged and hence a police personnel was sent by them alongwith the first informant who accompanied the injured who got him admitted in the hospital. It is after Sayeed was admitted in the hospital then first informant travelled 14 km. from the spot of occurrence to lodge the F.I.R. at P. S. Matsaina. In the circumstances, it cannot be said that there was any delay in lodging of the F.I.R.

It has also come in the evidence of P.W. 2 that the room in which his brother Sayeed lived belong to his khalia sas, Manjari. She was mother-in-law of Sayeed and not an outsider. Admittedly, Rashid neither claims to be a tenant present in the house of Manjari nor has controverted the fact that he was asked to remove his effects by Sayeed from the room, the room which he was occupying. In fact per contra Sayeed in his statement had stated that he was living in the home of Manjari his mother-in-law as if he awarded it. The Appellant did not contradict this statement.

The reason of delay in lodging the F.I.R., as well as motive for the Appellant is very clear and are well explained. Mere pointing out of some evidence which might have been left out in the F.I.R. does not make the case of the prosecution improbable. It is well known that the F.I.R. is not a document in which every minute detail is noted down. It is a document wherein the occurrence and other broadly related facts are narrated for the purpose of reporting of the incident or crime to enable the police to take up investigation and for further proceedings in accordance with law to bring the guilty to justice. It has also come in the evidence that water poured over Sayeed diluted the acid which explains superficial burns recorded by the doctor. However, the pouring of the acid over the head coupled with exhortation of the accused that he will kill him shows the intention for attracting Section 307, I.P.C.

Thus, in view of what have been stated above, we are of the considered opinion that the Appellant has failed to make out any case which may cause any reasonable doubt in our mind to the effect that the Appellant had not committed the occurrence or that he had been falsely implicated or even that incident has not taken place in the manner stated by the prosecution.

In the circumstances, after hearing the arguments and going through the records, we affirm the view taken by the court below as there is no illegality or infirmity in the order dated 13.4.2006 passed by it. Accordingly, the order of conviction and sentence of the court below is confirmed and the appeal stands dismissed.

Let a copy of this order be certified to the concerned Chief Judicial Magistrate for immediate compliance.