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