Sheikh Tahir vs The State

Sunil Gaur, J.—Challenge in this appeal is to the impugned judgment of learned Additional Session Judge, Shahdara, Delhi, rendered on 22nd day of July, 1999, convicting the Appellant for attempting to kill Naushad with a knife by inflicting injuries on his chest and back and also to the order of the same day of the trial court, sentencing the Appellant u/s 307 of Indian Penal Code to undergo rigorous imprisonment for five years and to a fine of Rs.200/- and in default thereof, to undergo rigorous imprisonment for fifteen days. Appellant has been also sentenced u/s 27 of the Arms Act to undergo rigorous imprisonment for three years and to a fine of Rs. 100/- and in default thereof, to undergo rigorous imprisonment for seven days. Both the sentences have been ordered by the trial court to run concurrently.

On 9th February, 1997, at about 7.30 PM, Appellant/accused had purportedly attempted to murder Naushad in Gali No. 14, Old Musatafabad, Delhi by inflicting blows on the chest and back of Naushad with a knife (meant for cutting meat) with a view to teach Naushad a lesson for demanding Rs. 30/- payable to him from the side of the Appellant/accused on account of gambling. This incident is said to have been witnessed by Liyaqat Khan (PW-2) and injured Naushad was removed to the hospital by Dilshad Khan, (PW-1), who had also informed the police. On the statement of Dilshad Khan, (PW-1), FIR of this case was registered and investigation of this case had commenced. During the course of investigation of this case, Appellant/accused was arrested and on his disclosure statement, he had got the weapon of offence, Ex.P-1, recovered from his house. After completion of investigation charge sheet was filed against the Appellant/accused in this case for the offences punishable u/s 307 of Indian Penal Code and u/s 27 of the Arms Act. Appellant/accused pleaded not guilty to the aforesaid offences with which he was charged and was thus put on trial.

Out of the nine witnesses examined by the trial court in this case, the main evidence is of eye witness � Liyaqat Khan, (PW-2), first informant - Dilshad Khan, (PW-1), Dr. Manoj (PW-3), author of the MLC of injured Naushad. SI Karam Chand was the Investigating Officer of this case. Injured Naushad could not be got examined in this case as he had died in March, 1998 due to an old injury to his spine causing traumatic paraplegia which can always cause bed sores and septicaemia. According to the MLC, Ex.PW-3/A of this case, there is an injury to the spine of injured Naushad. As per the Post Mortem Report of Naushad, Ex. CW- 1/A, the cause of death was septicaemia. Appellant/accused in his statement u/s 313 Cr. P.C. before the trial court, denied the prosecution case and had stated that Naushad was big pick-pocketer and was a chain snatcher and was involved in many cases and he did not owe any money to Naushad. One Mirza Masood, DW-1 had deposed in favour of the Appellant/accused and he claimed to have seen Naushad lying in injured condition in Gali No. 14, nearby a shop and that he had also helped in taking Naushad to hospital. After the trial Appellant/accused stands convicted and sentenced as indicated above.

After having heard both the sides and upon scrutiny of evidence on record, I find that the fate of this case, primarily rests upon the testimony of solitary eye witness Liyaqat Khan, (PW-2). His testimony is assailed by the defence by contending that he is interested witness and his version has been illegally relied upon by the trial court as he has admitted in his evidence that his eye sight is little weak and in the darkness, it becomes more weak and during night time, he is not able to see objects at a distance of 2 to 4 feet. He has also stated in cross- examination by the defence that he had deposed before the court as to what was told to him by Dilshad who had met him on the next day of incident and that he did not go to the spot with the police after this incident.

According to the defence, aforesaid revelations make the testimony of Liyaqat Khan (PW-2) unreliable and the evidence of Dilshad (PW-1) is hearsay and thus, there is no incriminating evidence against the Appellant/accused.

During the course of the arguments, learned Additional Public Prosecutor for the State, drew the attention of this Court to the re-examination of Liyaqat Khan (PW-2), to point out that this witness has reaffirmed what he had stated in the chief examination by categorically asserting that he had seen this incident with his own eyes but he has also stated thereafter, that in darkness he cannot see objects at a distance of 2 to 4 feet with full clarity. However, it has not been suggested to this witness of the defence that due to darkness he could not witness this incident. Appellant cannot have the benefit of darkness, as it has come in the evidence of Dilshad (PW-1) that there was an electric light in the area and even the Investigating Officer (PW- 9) has so stated in his evidence. As far as the relationship of this witness (PW-2) with injured is concerned, it has come on record that he is remotely related to the injured.

One stray line in the cross-examination of eye witness (PW- 2) by the defence of his deposing at the instance of Dilshad (PW- 1), is of no consequence, as this witness is the author of the FIR, wherein he has graphically narrated this incident and the contents of the FIR stand duly proved by him in his evidence before the court. The version given by this witness (PW-2) in chief examination, inspires utmost confidence and aforesaid stray line in cross-examination by the defence, does not render his testimony as improbable or unreliable. In fact, the trial court has rightly relied upon it and discarded the evidence of defence witness as it is an afterthought version.

The testimony of Dilshad Khan (PW-1) of injured Naushad informing him on the spot that he has been injured by the Appellant/accused, assumes importance as the injured Naushad is no longer alive to depose. It cannot be dubbed as hearsay evidence. The presence of Dilshad Khan (PW-1) at the spot soon after the incident stands established from his evidence and his evidence cannot be discarded, merely because he knew the Appellant/accused and the injured prior to this incident. It is a matter of record that Appellant/accused, injured, eye witness and this witness (PW-1) were living in the same area.

After carefully scanning through the evidence of Dilshad Khan (PW-1), I find his testimony to be a trustworthy and when the evidence of this witness (PW-1) and eye witness (PW-2) is read together as a whole, then it becomes abundantly clear that the ocular version of this incident stands firmly proved from their evidence. Trial court has not committed any illegality in relying upon their evidence.

It is not always necessary that weapon of offence is recovered. In the instant case, knife/chhura, Ex.P-1, has been got recovered by the Appellant from his house, in pursuance to his disclosure statement and as per the seizure memo of the knife, Ex.PW-1/D, it was blood stained. It cannot be presumed that recovered knife is a house hold knife. As per FSL report, blood could not be detected on the recovered knife/chhura, Ex.P- 1. To my mind, this will not make any difference as the recovery of weapon of offence has corroborative value only.

As far as the medical evidence is concerned, the emphasis of the defence is on the point that the opinion regarding the nature of injuries being grievous does not stand proved. It may be so, but Dr. Manoj (PW-3) in his evidence has proved the MLC (Ex. PW-3/A) of the injured, which describes the five injuries sustained by the injured on his vital part of the body, i.e., of the chest and on the right side of the spine. The dimension of the injury sustained on the chest/spine of the injured, depicts that the intention of the Appellant/accused was to cause the death of the injured. It is not necessary that injury, capable of causing death should have been inflicted. What is material to attract, the provisions of Section 307 of Indian Penal Code is the intention or the knowledge with which the act was done, irrespective of its result. The intention and the knowledge are the matters of inference from totality of circumstances and cannot be measured merely from the result regarding nature of injury. When repeated injuries are given on the chest of the injured, the intention to kill, is quite apparent.

Since it is found that the conviction of the Appellant for the offence of attempted murder is fully justified, there is no scope for any interference on the quantum of sentence, as the sentence imposed is adequate and proper one.

In the ultimate analysis, I do not find any merit in this appeal, and as such, impugned judgment and the order on sentence of the trial court is hereby upheld. Appellant is on bail. His bail bond and surety bonds are cancelled. He is directed to be taken into custody to serve out the remainder of the sentence awarded to him by the trial court.

With aforesaid directions, this appeal stands dismissed.