Safiq Ahmad and Others vs State

Kalimullah Khan, J.—This criminal appeal has been filed against the judgment and order dated 30.7.1982 passed by VIth Additional, Sessions Judge, Kanpur in Session trial No. 256 of 1980 convicting the appellant No. 1, Safiq Ahmad, No. 2, Aslam and No. 3, Zahoor Ahmad and sentencing each of them to undergo rigorous imprisonment for three years u/s 307 I.P.C. All the three accused filed this criminal appeal but during the pendency of this criminal appeal accused appellant Shafique Ahmad and Zahoor Ahmad have died, therefore, the criminal appeal stood abated against them. At present only the appeal of accused appellant Aslam is before me which is being heard and disposed of today. The brief facts of the prosecution story narrated in the F.I.R. Ex. Ka 11 lodged by Abdul Latif, brother of Abdul Rashid victim is that the accused person having enmity with Abdul Rashid, on 20.1.1980 Akram son of accused appellant Zahoor and some other persons attacked Abdul Rashid with knife regarding which he lodged an FIR with Colonelganj, Kanpur Nagar. On 28.3.1980 at about 11.30 a.m. Abdul Rashid and Abdul Latif were going to their factory. When they reached near Imam Bara present accused appellant Aslam and co-accused Shafique along'' with Zahoor appeared having knives in their hands. Shafique and Aslam attacked Abdul Rashid while Zahoor was crying and shouting that he should not be spared. Witness Naseem Ahmad and Abdul Karim witnessed the incident. After a short while police came and took Abdul Rashid to the hospital. Abdul Rashid had sustained knife injuries on his neck, back and chest. The incident took place on 28,3.1980 at about 11.30 a.m. whereas F.I.R. was lodges at 15.15 p.m. on the same day. On the basis of F.I.R. Ex.Ka 11 a chik report was prepared and the case was registered under G.D. the copy of which is Ex. Ka 2. Victim was medically examined in the U.H.M. Hospital at 11.45 a.m. on the day of incident. The victim was admitted in the hospital at 12 noon as much as eight incised wounds including one lacerated wound was found over the body of the victim including his neck. The injury report has been proved as Ex. Ka 8. The dying declaration of the victim was also recorded in the hospital at 4.05 p.m. which is Ex. Ka 7. Since the victim survived, therefore the said statement lost its importance as dying declaration. After completing investigation charge-sheet. Ex Ka 6 was filed in the Court. Accused Shafique and Aslam were charged for the offence u/s 307 I.P.C. whereas all the three accused including Zahoor Ahmad were charged u/s 307 /34 I.P.C. All the accused including the present appellant denied the charge and claimed their trial.

In order to prove its case, prosecution has examined as many as 9 prosecution witnesses.

Accused persons were examined u/s 313 Cr.P.C. wherein they denied the prosecution evidence and claimed their innocence. Accused Zahoor Ahmad stated that Abdul Rashid (victim) had gone to purchase wire for Rs. 1300/-. He purchased wire for Rs. 300/-. He was in possession of Rs. 1000/-cash. Some other miscreants attacked him and took the money from him and the accused persons have been falsely implicated due to enmity in this case. Accused were called upon by the trial court to enter into their defence but they did not adduce evidence in their defence. Except victim Abdul Rashid none of the prosecution witnesses supported the prosecution story. They were turned hostile but nothing material could be fetched out from their mouth in cross-examination made by learned A.D.G.C. (criminal). Learned trial court found the case against the appellant proved u/s 307 I.P.C. accordingly he convicted and having heard him on the quantum of sentence awarded a sentence of rigorous imprisonment for three years.

Since none turned up for appellant to argue the appeal on the earlier occasion, therefore the Court appointed Ms. Seema Pandey, learned advocate as Amicus curiae vide order dated 31.5.2013. To the best of her ability she has taken the Court with the evidence on record. Learned A.G.A. also pointed out the incriminating evidence available on record. Learned Amicus Curiae appointed for the appellant Aslam had submitted that there was no motive for committing the offence. The incident earlier occurred against the victim had been compromised in between the parties and, therefore, there was hardly any occasion for the appellant to cause injuries on the person of victim Abdul Rashid. She has further submitted that the role of causing injuries the person of the victim has not been assigned to the present appellant rather role of catching hold has been assigned against the appellant. The main assailant has died, therefore, conviction u/s 307 I.P.C. can not be recorded. She has further submitted that there is no evidence on record to the effect that injuries sustained by the victim were either grievous in nature or fatal to life, therefore, the conviction u/s 307 I.P.C. read with Section 34 of the I.P.C. can not be recorded. Utmost it was a case punishable u/s 324 I.P.C. and lastly she submitted that the testimony of the victim is not corroborated by independent evidence, therefore, it is not safe to base conviction of appellant on the testimony of the victim.

Per contra learned A.G.A. repelled the submission of learned Amicus Curiae and argued that this is a case based on direct evidence in which motive does not play any important role. However, in this case prosecution has proved motive as well. Before the alleged incident of attempt to murder, the victim was attacked by the sons of accused Zahoor regarding which an F.I.R. was registered and there is no evidence on record to show that any amicable settlement was entered into in between the parties. Therefore there was a strong motive for the accused to commit this offence. As regards the submission that the role assigned to the appellant was of catching hold, he argued that in the substantive evidence of victim and other prosecution witness no where it has occurred that the appellant had caught hold of the victim. Specific role has been assigned that he gave blows with knife on the person of victim. No doubt there were two accused persons Shafique Ahmad and present appellant Aslam who had been assigned the role of inflicting knife injuries on the person of victim and both of them have been charged for the offence punishable u/s 307 I.P.C. Apart from it they have further been charged for the offence punishable u/s 307 /34 I.P.C. He has submitted that there are seven incised wounds on the person of the victim, several of them are found on the neck of the victim which is vital part of the body. Doctor who had examined the victim has appeared in the witness box and proved the injury report and deposed that the cumulative effect of all those injuries sustained by the victim might have proved fatal. In this view of the matter he submitted that the case does not fall within the purview of Section 324 I.P.C. rather it is a clear cut case punishable u/s 307 I.P.C.

I have given my conscious thought over the arguments advanced by both the parties. Motive is important in a case based on circumstantial evidence, therefore, in this case where the aspect of motive has also been proved by evidence on record this court need not enter in detail on the availability of the motive to the appellant for committing the alleged offence. Suffice it to say that there was motive as submitted by learned A.G.A.

No doubt that the nature of injuries sustained by victim is of paramount consideration to determine as to whether or not a particular case has fallen within the ambit of Section 307 I.P.C. but the nature of the injuries alone is not sole deciding factor. The nature of the weapon, the seat of the injury, number of blows, the abnormality, if any, caused due to the injuries and the nature of the injuries are relevant to ascertain as to whether or not a particular case comes within the purview of Section 307 I.P.C. on an unarmed person, repeated blows with knife by two miscreants including the appellant were given and the seat of injury is the neck, chest and back which certainly points out towards the intention of the appellant to commit the murder of the victim, therefore by no stretch of imagination, in the facts and circumstances of the case, it can be said that there was no intention to commit the murder. Previous enmity coupled with the deadly weapon, number of assailant, number of injuries and seat of injuries do point out that the said injuries on the person of the victim were caused by the accused including the appellant only with intention to commit his murder, hence the offence is punishable u/s 307 I.P.C.

So far as the reliability of the witness is concerned, there are three types of witnesses as held by Apex Court of India:

Wholly reliable witness

Wholly unreliable witness

Partly reliable and partly unreliable witness.

So far as the category of the victim Abdul Rashid is concerned his evidence has been materially corroborated by the medical evidence and once the medical evidence supports the ocular evidence of particular witness in toto without throwing any shadow of doubt the said witness may be termed as wholly reliable witness. He has fully supported the prosecution version as embedded in the First Information Report lodged by his brother Abdul Latif. No doubt the contents of the F.I.R. may be used either for corroboration or for contradiction of the statement of the maker thereof and since the victim Abdul Rashid was not the maker of the F.I.R., therefore, the, corroboration or contradiction from the contents of the F.I.R. can not be sought but apart from the aforesaid two purposes of the use contents of F.I.R. there is third use of F.I.R. and that is to ascertain and find out as to what was the case of the prosecution initially set up against the accused. When one looks on the entire scenario of the case including the evidence on record, it may be held that the case set up by prosecution has been fully proved by the victim and corroborated by the. medical evidence. There is nothing on record to disbelieve or doubt the veracity of this victim. In case laws vide Kripal Singh Vs. State of U.P. and Others and in Dharamveer and Others Vs. State of U.P., . Hon''ble Supreme Court has held that if the First Information Report has been lodged promptly, it can not be said to be an out come of manoeuvring, manipulation, concoction, fabrication or afterthought. Veracity of the prosecution story can not be doubted and the possibility of false implication of accused is ruled out. The aforesaid case laws are fully applicable in the facts and circumstances of the case and therefore the finding of conviction recorded by learned trial court does not require for any interference by this appellate court.

The criminal appeal lacks merit and results in dismissal. Accordingly, it stands dismissed. Accused appellant Aslam is on bail, his bail bonds are cancelled and sureties are discharged. He is directed to surrender before the court of learned C.J.M. concerned within two months to serve out the sentence awarded to him. The period of his imprisonment in this case shall be adjusted towards the sentence awarded to him. If within the said stipulated period he does not surrender before the court, learned C.J.M. is directed to get him arrested and send him to jail to serve out the sentence awarded to him.

The Amicus Curiae, Ms. Seema Pandey, learned advocate shall be paid a sum of Rs. 10,000/- (Rupees Ten thousand) as fee for arguing the appeal on behalf of appellant as Amicus Curiae. Let the lower court record along with copy of this judgment be transmitted forthwith to the trial court for compliance.