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Juned v. State Of U.P. - CRIMINAL APPEAL No. 626 of 1982 [2007] RD-AH 13286 (1 August 2007)


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Court No. 49

Criminal Appeal No. 626 of 1982

Juned Vs. State of U.P.

Hon'ble M. K. Mittal, J.

1. This appeal has been preferred by Juned son of Shri Amir Ahmad, resident of Village Madanpura, P.S. Mau, District Azamgarh against the judgement and order dated 27.2.1982 passed by Munni Lal, the then 8th Additional Sessions Judge, Azamgarh in S.T. No. 174 of 1979 whereby he held the accused guilty under Section 307 IPC and convicted him and sentenced him to undergo rigorous imprisonment for five years. Along with the appellant, two other accused Abu Jaher and Ziaul Huda also faced trial but they have been acquitted.

2. Brief facts of the case are that informant Mahadeo Prasad lodged the first information report on 30.11.1976 on 8.30 p.m. alleging that three days earlier Abu Jaher and Juned had demanded some loan from Hari Prasad Vishwakarma but he had refused the same. On 30.11.1976 at about 7.30 p.m. his brother Hari Prasad Vishwakarma had gone to ease himself. The complainant and one Shambhu Prasad were also going towards Quality Calender for same purpose when they heard the noise of Hari Prasad Vishwakarma. Informant and Shambhu Prasad flashed their torches and saw that Abu Jahed and Ziaul Huda had caught Hari Prasad and Juned was giving knife blows to him. They also raised alarm and ran towards Hari Prasad and by the time they reached near him, the accused left assaulting  Hari Prasad Vishwakarma and ran away. However, they were seen running in the torch light and were identified. Chase was also given but they could not be apprehended. The complainant saw the injuries on the neck and chest and fingers of his brother. At that time police patrol car arrived there and injured was sent to hospital. Informant scribed the report Ex-Ka-1 and lodged it at the Police Station.

3. On 30.11.1976 the head constable on duty prepared the check report Ex-Ka-2 on the basis of the written report lodged by the informant at 8.30 p.m. He also registered the case in the G.D. at rapat no.36. Its copy is Ex-ka-3. These papers have been proved by Sub Inspector Shanti Prasad P.W.-4.

4. Injured was medically examined by Dr. B.N.Rai P.W.-5 on 30.11.1976 at 8.10 p.m. when he was posted as Medical Officer in Civil Hospital, Mau Nath Bhanjan. He found the following injuries on his person:- (i) punctured wound 2.5 cm X 1 cm X 4 cm on the left side of chest just below the sterno clavicular joint directing backward, the first rib was also cut and blood was coming out and X-ray was advised.

(ii) incised wound 2.5 cm X .5 cm X bone deep on the back of right thumb proximal phallynx. Margins were clean cut and bleeding was present.

(iii) one abrasion 1 cm X 1 cm on the back of left hand over the base of middle finger. According to the Medical Officer injury no. 1 was grievous and nos 2 and 3 were simple in nature. Injury no. 1, 2 were caused by sharp weapon and injury no. 3 by friction. Doctor proved the medical report Ex-Ka-9.

5. Case was investigated by P.W.-4 Shanti Prasad Rai. He interrogated the witnesses and took the blood stained clothes of the injured in the hospital and prepared fard Ex-Ka-4. He also took the torches of the witnesses in custody and prepared the Ex-ka-5. He inspected the place of occurrence and prepared the site plan Ex-Ka-6. Torches were given in supurdagi of the witnesses and fard Ex-ka-7 was prepared. After completing the investigation he submitted the charge sheet Ex-Ka-8 against the accused persons.

6. Case was committed to the court of Sessions by order dated 8.6.1979. Charge was framed against the appellant under section 307 IPC read with Section 34 IPC on 6.8.1980. He pleaded not guilty and claimed trial.

7. In support of its case prosecution led evidence and examined Mahadeo Prasad P.W.-1, Shambhu Prasad P.W.-2 and Hari Prasad Vishwakarma P.W.-3 as witnesses of fact and occurrence. Hari Prasad Vishwakarma is the injured witness who has stated about the prosecution case  and the manner in which he was given the knife blows by the accused Juned. Other two witnesses have also corroborated the statement of the injured witness as they had also reached the place of occurrence and saw the accused in torch light.

8. Accused was examined under Section 313 Cr.P.C. He denied the prosecution case and contended that he has been falsely implicated in this case. He also stated that the witnesses deposed against him on account of enmity. However, he did not adduce any evidence in defense.

9. Learned Trial Court after considering the evidence on record came to the conclusion that the prosecution had been able to establish its case beyond reasonable doubt against present appellant. However learned Trial Court did not find the complicity of the two other accused and acquitted them of the charges framed against them. Feeling aggrieved, this appeal has been filed by Juned.

10. I have heard Sri Awadhesh Singh, learned counsel for the appellant, Sri S. L. Kesharwani, learned A.G.A. and perused the trial Court record. In this case as far as the factum of the incident is concerned it has not been disputed by the learned counsel for the appellant. Learned counsel for the appellant submitted that the facts of the case as have come on record show that accused had no intention to kill the injured and that in any case the case would not travel beyond second 324 IPC. Learned A.G.A. has contended that accused was prepared and was also carrying the knife and with intention to kill, attacked the injured Hari Prasad Vishwakarma and caused him injuries even on the chest.

11. In order to justify the conviction under Section 307 IPC intent coupled with some overt act in execution thereof should be present. It is not essential that the injury inflicted should be capable of causing death though nature of injury actually caused may give considerable assistance in inferring the intention of the accused. Intention of the accused can also be deduced from other circumstance and may even in some cases be ascertained without any reference to actual wounds and the Court has to see whether the act irrespective of its result was done with the intention or knowledge and under the circumstances mentioned in the section.

12. In the instant case as the evidence has come on record accused gave knife blows to Hari Prasad Vishwakarma when he was caught by two persons, although the fact that he was caught by two persons has not been believed by the Trial Court and these two persons have been acquitted. Injury report shows that appellant gave knife blow at the right sterno clavicle joint of the shoulder region. According to doctor first rib was cut and he also advised X-ray of chest but the prosecution did not adduce any X-ray report or any supplementary report to substantiate the nature of this injury and it is not proved that the first rib was cut.

13. Learned Trial Court has mentioned in the impugned judgement that according to the doctor injury no. 1 was grievous and fatal. But the fact that the injury was fatal has been wrongly mentioned in the judgement. P.W.-5 has stated in his cross examination that no injury was dangerous to life. It shows that even injury no. 1 could not have been fatal. In his examination in chief the Medical Officer has not stated about the nature of injury no. 1. Accused gave one knife blow on the chest region and one knife blow on the right thumb of the injured. If the prosecution case that two persons were holding the injured when the appellant gave knife blows is to be believed,  accused could have easily caused more grievous injuries on the vital parts of the chest and abdomen region of the injured. But it is not so and it shows that the accused had no intention to kill Hari Prasad Vishwakarma. It has also come in evidence that there was some dispute between the parties as the appellant and one more accused had gone to take loan and the injured had refused to oblige them. The accused gave only one blow on the upper part of the chest region and that injury was also not dangerous to life and no internal damage has been proved to have been caused. Therefore I came to the conclusion that the accused has been wrongly held guilty under Section 307 IPC and the offence as committed by the accused would not travel beyond section 324 IPC.

14. Learned counsel for the appellant has also contended that accused has been in jail for more than a month and that the matter relates to the year 1976 and more than 31 years have passed and the accused has already suffered the trauma of the trial and appeal and that he be sentenced to the period already undergone and that some fine may also be imposed on him.

15. Considering all these facts interest of justice will be served if the appellant is sentenced with the term already undergone and fine of Rs. 5000/- is also imposed on him.

16. Appeal is partly allowed. Conviction of the appellant under Section 307 IPC is set aside. Instead he is found guilty and is convicted under Section 324 IPC and is sentenced with the period already undergone. Fine of Rs. 5000 is also imposed on him. He shall deposit the same in the Trial Court within a month from today. In case of default he shall undergo simple imprisonment for three months. The fine deposited by the appellant shall be paid to the injured Hari Prasad Vishwakarma and if necessary to his legal heir(s). Record of the Trial Court be returned forthwith.

17. Copy of the order be certified to the learned Trial Court at the earliest.

Dated: 1.8.2007



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