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Omi v. State - CRIMINAL APPEAL No. 2447 of 1981 [2006] RD-AH 894 (13 January 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court No.46

Criminal Appeal No.2447 of 1981




State  of U.P................................................Respondent

Hon'ble (Mrs.) M. Chaudhary, J.

This is an appeal filed on behalf of the accused appellant from  judgment and order dated 10th of August, 1981 passed in Sessions Trial No.770 of 1979 State vs. Omi decided by VI Additional  Sessions Judge, Agra convicting  the  accused under section 324 IPC and releasing him on probation  of  good conduct for a period of one year on his executing  a personal bond  of Rs.3000.00 and furnishing two reliable sureties each in the like amount.

Brief facts giving rise to this appeal are that at 11:50 p.m. on 21st of May, 1978 Pawan Kumar lodged an FIR at police station Loha Mandi, District Agra situate at a distance of 1 km from  Raja Mandi alleging that at about 11:00 p.m. that very night  he was returning back from Loha Mandi to his house at Raja Mandi and as he proceeded towards the  Raja Mandi Chauraha Omi who used to run  a tea stall and also used to sell betel there met him and asked him to hand over  him his wrist watch and  golden ring and as he refused   he assaulted him with knife and wanted to hit him at his ribs but since he  leaned the knife  hit him at his back above the  groins.  The police prepared check report on the basis of  written report   registering crime in the GD.

Injured Pawan Kumar was got medically examined by Dr R.K. Katiyar, Medical Officer, District Hospital, Agra at 1:00 a.m. the same night.  His medical examination revealed belownoted injury on his person:

Incised wound ¾" x ¼" x muscle deep on the back & outer aspect of Right  thigh upper part.

The doctor opined  that the injury was  caused  by  some sharp edged weapon,,  simple in nature and  fresh in duration.

Investigation of the crime  was entrusted to SI Shailendra Kumar Tomar who investigated the crime.  After completing the investigation  he submitted the charge sheet against the accused.

After framing of charge  against the accused the prosecution examined  Pooran Chand ( PW2) and Pawan Kuamr ( PW 4) as eye witnesses of the occurrence. Testimony of rest of the  witnesses was more or less  of formal nature.  PW 1 SI Kripal Singh, the then  Constable Clerk  who prepared  check report on the basis of the written report handed over to him at the police station proved the check report and GD entry regarding registration of the crime ( Ext. ka 1 and ka 2).  PW 3  Dr. R.K. Katiyar, Medical Officer, District Hospital, Agra who medically examined  injured Pawan Kumar  at 1:00 a.m. same night  proved  the injury report.    CW 1 Kishan was examined as Court witness. He stated in his examination-in-chief that at about 1:00 p.m.  the alleged night  he was returning  after taking  medicine; that  as he reached   at Raja Mandi Chauraha  he   saw Pawan Kumar and Omi standing there and some altercation was going  on between them; that  Omi gave knife blow to Pawan Kumar hitting him between his back and groins.  PW 5  Shailendra Kumar Tomar who investigation  the crime and after completing the investigation submitted  charge sheet against the accused proved the police papers.

The accused  denied the alleged occurrence altogether stating that he was  got implicated in the case  falsely due to  enmity. The accused did not adduce any evidence  in his  defence.

On an appraisal of  evidence and  other material on the record  the learned   trial judge  placing reliance on the testimony of the injured  witness  held the accused guilty of the charge levelled against him and convicted him under section 324 IPC.  Since the accused was a young man having  no criminal antecedents the trial judge released him on probation of good conduct for a period of one year.

Feeling aggrieved by  the impugned judgment the accused appellant preferred this appeal for redress.

Heard Sri Apul Misra, learned counsel for the accused appellant and  learned AGA for the State.

No doubt, PW 2 Pooran  did not  support  the prosecution case as he stated in his  examination-in-chief that he could not see   as to who gave  knife blow  to Pawan Kumar.  He was declared hostile and  cross- examined by the prosecution with the permission of the court  but  to no use.  Learned trial judge also disbelieved the testimony of CW 1 Kishan  taking him to be a  chance witness and also because his name  did not find mention in the FIR.  However PW4 Pawan Kumar, the injured narrated  all the facts of the occurrence from the  beginning to the end as stated  above. He withstood his cross-examination firmly as nothing could be elicited therefrom to shake his credibility.  His testimony  stands well corroborated by medical evidence and FIR  of the occurrence lodged at the police station promptly.  Learned counsel  for the appellant  too could not  point out  any illegality or  grave error  in the impugned judgment  so as to call  for  an interference by this court therewith.  The trail judge  has written  an elaborate and well reasoned judgment justifying the finding of guilt of the accused.  This Court  therefore finds no reason to interfere  with the finding of  guilt of the accused  recorded by the learned trial judge.  The trial  judge  has rightly exercised the powers to release the accused appellant  on probation  on good conduct for a period  of one year giving him benefit of  section 4 of the  Probation of  Offenders  Act.

The appeal has got no merit and is dismissed.  Operation of the impugned order was stayed by this Court vide order  dated 22nd of October, 1981.  The  stay order dated 22nd of October, 1981 is hereby vacated.

Office is directed to  send  certified copy of the judgment  alongwith  record of the case to the court below for  ensuring necessary  compliance of the order passed by the  trial court and  affirmed in appeal under intimation to this court  within two  months from the date of  receipt of copy of the judgment.


Crl. Appeal No.-2447 of 1981


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