Rashid vs State of U.P.

Naheed Ara Moonis, J.—Heard Sri M.P. Rai, learned Counsel for the Appellant and the learned AGA and have taken through the record.

The instant appeal has been preferred against the judgment and order dated 21.012009 passed by the Additional Sessions Judge Hapur District Ghaziabad in Sessions Trial No. 51 of 2007 ( State v. Kammu and Ors.) whereby the Appellant was convicted and sentenced for seven years rigorous imprisonment u/s 304 (Part-II) IPC vide Case Crime No. 671 of 2006 Police Station Hapur Nagar District Ghaziabad.

The genesis of the prosecution case in a short conspectus as divulged in the first information report lodged by the complainant Shamshuddin on 27.9.2006 at about 11.20 p.m. is that there was a dispute with regard to division of the house between the complainant and his brothers . On 24.9.2006 on the intervention of some respected relatives , a consensus was arrived at between them whereby the complainant and his brothers agreed to abide. On 27.9.2006 at about 10.00 p.m. Salmoo, Rashid , Sabir and Rashid came at the residence of the complainant hurling abusive and filthy languages stating that they will not abide with the agreement arrived at between them. Yusuf, the son of the complainant forbade them from hurling abuses which caused great wrath and infuriation to the assailants. Kammoo, Sabir and Salmoo caught hold of the son of the complainant . Rashid assaulted with knife on the neck of Yusuf in consequence whereof he sustained fatal injuries. The injured was immediately taken to Khan Nursing Home Hapur Ghaziabad by him with the help of neighbour where his son Yusuf succumbed to injuries. The said incident was witnessed by him and his son Khalid (P.W.4) , Aslam (P.W.2) Imran and Bablu , P.W.3. The complainant got the report written by Dr. Nasir Ahmad . The injured was immediately taken to hospital by his brother at 10.13 p.m. on 27.9.06 where his injuries were examined by Dr. Khan who had proved the injury report Ex. Ka.3 had found one penetrating injury on the neck with sharp margin 3''1/2cm x 1/2 cm x wind pipe deep in front side of middle zone of neck profusely bleeding, injury is associated with shock and severe clot of blood . The knife recovered from the neck was handed over to the police. According to the opinion of the doctor, injury is grievous caused by sharp edged knife of house hold vegetable cutting . The duration of the injury was fresh.

After registration of the first information report police came into action and reached on the spot ,prepared the site plan, challan lash, photo lash, report to C.M.O., report to R.I. Form 13 were prepared , which were exhibited as Ex. Ka.7 to 10. The inquest of the deceased was conducted by S.I. Mahendra Singh (P.W.8) and the same was proved by him as Ex. Ka.2.

After completing all the formalities , the corpus was sent to mortuary where the post mortem of the deceased Yusuf was conducted on 28.9.2006 by Dr. P.K. Singh (P.W.10) who had found two incised wounds on the person of the deceased .

Incised wound of size 3 cm x 1 cm x cavity deep situated 7 cm above the middle of the clavicle on the left side of the neck.

Incised wound 1 cm x 1 cm x cavity deep on the front of the left side of the chest 3 cm below the mid of the clavicle of the left side .

According to the opinion of the doctor, the death was caused due to shock and haemorrhage as a result of ante-mortem injuries. The post mortem report was exhibited as Ka.14

The investigation was entrusted to S.I. Kripa Shanker Gautam ,. (P.W.7) who conducted the investigation and collected clinching and material evidence on the basis of which charge sheet was submitted . The case was committed to the court of sessions . Charges were framed against the accused Kammoo, Salmoo, Sabir u/s 304 read with Section 34 IPC amd against the Appellant u/s 304 IPC . The Appellants had abjured their guilt and claimed to be tried . In order to prove their guild, the prosecution examined Shamshuddin, father of the deceased and the complainant (P.W.1) , Aslam (P.W.2) and Imran P.W.3 and nephew of the complainant Khalid P.W.4, son of the complainant Irshad P.W.5 who had signed on the inquest report as the witness of fact.

P.W.1 Shamsuddin was examined who had re-iterated the incident as narrated in the first information report. He had proved the written report scribed by doctor Nasir Ahmad and the same was exhibited as Ka.1. In his examination in chief he has also stated that a family settlement took place on 24.9.2006 but the Appellants were not agreed with the consensus arrived at between them . When he was cross examined, he denied the prosecution case and was declared hostile. P.W.2 Aslam and P.W. 3 Imran had turned hostile They had shown their ignorance with regard to the injury caused to the victim . P.W.3 Imran has denied the prosecution case and has contended in examination in chief that Shamsuddin who is his maternal uncle and his son Khalid both were present at his house . They were informed that some altercation had taken place in his house and Yusuf had sustained injuries . He was taken to hospital. He had denied any dispute of partition between them and showed his ignorance about his statement. P.W.4 Khalid who is the son of the complainant had supported the prosecution case and stated that at time of incident , complainant, his brother Yusuf and the father were present in the house. The Appellants Kammoo, Salmoo, Sabir and Rashid arrived at his house and were hurling abusive and filthy languages to the complainant and his family members. The Appellants were refrained by his brother Yusuf from hurling abusive and vituperative words which caused great infuriation and wrath to the Appellant as a consequence whereof Rashid who was equipped with knife pierced the same in the neck and the other persons caught hold of the victim. Sabir had also assaulted the victim with sharp edged object of iron resulting into grievous hurt to the victim . There was sufficient electric light in the house . On the hue and cry of the victim and others , a large number of people gathered at the place of incident . The victim as a result of serious injuries fell on the ground and the accused persons took their heels. The victim was taken to the hospital where he died . Two or three days earlier to the incident ,family partition had taken place. The accused Appellants were not satisfied with the consensus arrived at between them. They had come at the house of the complainant with prior meeting of mind to kill them. The Appellants equipped with lethal weapons had encircled the victim and attacked with knife and sharp edged object of iron. It was also admitted that after the death of the victim Yusuf, P.W.4 Khalid had married with the wife of the victim . P.W.5 Irshad who was examined as witness of inquest had proved the proceedings of inquest and deposed that he reached at about 10.00 p.m. in the hospital where he heard about the death of Yusuf. The victim was well known to P.W.5 Irshad. The P.W.5 Irshad was cross examined but nothing adverse could be elicited.

The prosecution had examined formal witnesses Dr. J.A. Khan as P.W.6 who had examined the injuries of the victim Mohd. Yusuf, the son of the complainant and had prepared the injury report . The said injury report was proved by him and was exhibited as Ex. Ka.3. The recovery memo of the knife was prepared which was handed over to the police and was marked as Ex. Ka.4.S.I. Kripa Shanker was examined as P.W.7 who had prepared the site plan which was marked as Ex. Ka.5. He had also prepared the recovery of knife which was marked as Ex. Ka.4. After investigation the charge sheet was submitted by him which was marked as Ex. Ka.6.

S.I. Mahendra Singh Tyagi was examined as P.W.8 who had prepared the inquest report , C.M.O. Report, report to R.I. ,Form 13, Photo lash ,seal which was proved by him and marked as Ex. Ka.8 to 10. Constable Hari Dutt Singh P.W.9 was examined who proved the check FIR as Ex. Ka.11. The same was entered in the G.D. and proved by him as Ex. Ka.12 and 13. Dr. A.K. Singh who was posted at Public Health Centre Hospital and conducted the post mortem of the deceased on 28.9.06 was examined as P.W.10. The post mortem was proved by him and was exhibited as Ka.14. The statements of the Appellants and other co-accused persons were recorded u/s 313 Code of Criminal Procedure who had denied the prosecution case and gave the same reply that they were innocent. They had submitted various documents to show that they have been falsely implicated only in order to grab their portion of the house.

On the basis of aforesaid evidence, the trial court did not find complicity of the co-accused Kammoo, Salmoo and Sabir . They were acquitted from the charges u/s 304/34 IPC but the Appellant has been convicted and sentenced for seven years rigorous imprisonment u/s 304 (Part-II) read with Section 34 IPC . Aggrieved by the judgment and order dated 20.1.2009 passed b the Additional District & Sessions Judge Hapur (Ghaziabad), the Appellant has approached this Court by means of the present appeal.

At the very outset, learned Counsel for the Appellant submitted that the Appellant and the complainant are closely related and has placed the pedigree. Imami had three sons namely Kammoo, Salmoo and Shamsuddin. Shamsuddin is the present complainant while Kammoo and Salmoo are accused persons. Sabir is the son of Kammu accused and the present Appellant Rashid is the son of Salimu. Shamsuddin, the complainant had two sons yusuf and Khalid . Khalid was examined as P.W.4 and Yusuf had died in the present incident. Aslam P.W.3 and Imran P.W.4 are the cousin brothers of Khalid. It has further been submitted by the learned Counsel for the Appellant that out of four witnesses of fact, only one witness P.W.4 Khalid had supported the prosecution version. Three witnesses had not supported the prosecution version and had turned hostile . According to the statement of the P.W.4 Khalid , the victim had sustained injury caused by knife inflicted by Rashid . Co-accused Sabir had caused injury with blunt object of iron . Sabir has been acquitted by the trial court . The prosecution had not divulged any injury caused by Sabir in the first information report . Only after post mortem , this development had taken place that Sabir had also assaulted with some sharp edged object of iron. There was sole testimony of the P.W.4 and the rest deposition of P.w. 2 who turned hostile could be treated merely as hearsay. According to the prosecution version, all the witnesses had arrived after the incident therefore, it cannot be said that the incident was seen by the witnesses . The State had not preferred any appeal against the acquittal of coaccused persons which creates doubt about the veracity of the prosecution case with regard to involvement of the Appellant along with other persons as unearthed in the first information report . The motive behind the commission of offence is also very feeble . After the death of the victim Yusuf, father of the deceased would enjoy the property . The incident had taken place at the spur of moment, when the Appellant had taken out the knife and assaulted him . The victim had sustained single blow therefore, it cannot be inferred that the Appellant had any intention to commit murder . The Appellants and the complainant are two sides of the same coin . The knife used in the said incident was a vegetable cutting knife.

At the end , learned Counsel for the Appellant urged that the Appellant is languishing in jail since 28.9.2006. The period of sentence awarded by the learned trial judge is of seven years under Sections 304 Part-II IPC. The Appellant was not released on bail during the pendency of the appeal ,therefore, the sentence of the Appellant be computed from the date of lodging him in the jail and the sentence may be reduced to the period already undergone.

On the other hand learned AGA has supported the finding of the learned trial court and has contended that the incident was narrated in a natural manner. There was no embellishment in the prosecution story. The complainant has turned hostile on account of terror of the accused persons. In his examination in chief ,place of occurrence, time of incident, manner of assault, presence of the accused persons were admitted and the specific role was assigned to the Appellant for causing fatal injuries to the victim with knife . Since some of the witnesses have turned hostile, it will not diminish the truthfulness of the entire prosecution version and the entire prosecution story cannot be thrown above the board. The prosecution case is fully corroborated by the medical evidence . The doctor had proved the nature and manner of injury caused by knife. The doctor who had initially examined the injury found the injury of knife on the neck of the victim and the handle was also missing from the knife . The knife was kept under seal and the same was identified by the doctor while his statement was recorded before the court below. The doctor who had conducted autopsy of the deceased had also stated that the injuries on the neck could have been caused by such knife and that injury was found fatal. With regard to the injury No. 2 as mentioned in the post mortem report ,the doctor had opined that it could have been caused by sharp edged weapon but the injury No. 2 could not have caused death of the deceased . On that count, learned trial Judge had given benefit of doubt to the co-accused Kammoo, Salamoo & Sabir. The Appellant could not get the benefit of acquittal on the ground that other accused Sabir who was acquitted by the trial court as the Appellant was assigned specific role of causing injury with sharp object. The prosecution version has consistently proved the guilt of the Appellant towards the commission of the said offence. The judgment and order passed by the learned trial Judge does not suffer from any legal or factual infirmity or vulnerability ,therefore, the judgment and order passed by the trial judge is liable to be maintained .

Having considered rival submission advanced by learned Counsel for the parties and looking to the facts of the case that there is active participation of the Appellant in the commission of the offence . The Appellant along with other persons had come at the house of the complainant and had attacked brutally as a result of which the victim succumbed to injuries . The motive is also clear that there was some consensus between the Appellant''s family members and the complainant side on the issue of family partition . The Appellant''s family members were not satisfied with the consensus arrived at and wanted to upset the same therefore, they arrived at the complainant''s house armed with lathi, danda and knife hurled abusive and filthy languages and on the intervention from the victim Yusuf the complainant''s son , they took anugly turn and the Appellant attacked on the son of the complainant who was seriously wounded by causing injury with knife . The injured was immediately taken to hospital where the injuries of the victim was examined . The victim was initially conscious but the condition of the injured was deteriorating and he became unconscious on account of serious injuries therefore, his statement could not be recorded and soon thereafter the victim succumbed to injuries sustained on his neck. When the family dispute was settled in the presence of some respected persons , the aggression of the Appellant and his family members on the complainant and his son by arriving at their house in the night at about 10.00 p.m itself indicates that the Appellant had pre-meditated plan to cause injury to such an extent to the complainant or his son which may result into their elimination. The Appellant and his associates were hurling abusive and vituperative languages to the complainant and his family members and on the interruption caused by the son of the complainant, the Appellant took out the knife stabbed on his neck . The prosecution had fully proved the guilt of the Appellant beyond all reasonable doubt . The sole testimony of Khalid P.W.4 the brother of the deceased is cogent ,credible and trustworthy an the trial court has recorded conviction after analysis of the evidence. During his cross examination nothing has transpired for which the evidence may be discarded . This witness is natural and most probable at the place of occurrence being the close relative. No reason could be given as to why such close relation of the Appellant would depose against him. Even P.W.1 who is the uncle of the Appellant in his examination in chief has narrated the entire incident in fact there is noting on record to show that the Appellant had received any grave or sudden provocation from the victim or that the Appellant had lost his power of control from any action of the victim and his family members. There is no legal impediment in convicting a person on the sole testimony of a single witness. In fact it is not the number , the quantity but the quality that is material . The time honoured principle is that evidence has to be weighed and not counted. The bald contention of the learned Counsel to reduce the sentence already undergone has no substance. The medical evidence of the prosecution showed that the Appellant had caused death of a young boy in a cruel and brutal manner. Merely because the blow of knife was not repeated as such there was no intention to cause death therefore, the Appellant may be shown leniency is not just and proper as such the judgment and order passed by the trial court does not warrant any interference and the same is hereby affirmed.

In the result this appeal lacks merit and is accordingly rejected.