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ZAHEER AHMAD versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Zaheer Ahmad v. State Of U.P. & Another - CRIMINAL REVISION No. 1508 of 1998 [2007] RD-AH 5296 (23 March 2007)

 

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).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Criminal Revision No.1508 of 1998

Zaheer Ahmad .......Applicant

Versus

State of U.P. & another......Opposite Parties

Hon'ble V. D. Chaturvedi, J.

This Criminal revision has been filed against the judgment and order dated 25.9.1998 passed by the Judicial Magistrate I, Bareilly (Smt. Alka Srivastava) in case No. 237 of 1995 whereby she has acquitted the O.P. No.2 of the charges under section 326, 324 and 504 I.P.C.

The factual matrix are that an N.C.R. was recorded on 8.12.1994 at 16.05 P.M. containing the  fact that atabout 2 P.M., the complaint Zaheer Ahmad  was ploughing the field of Babu Khan by a tractor;  that accused Akhtar Khan reached there and started abusing him; that when the complainant objected for abusing, the accused Akhtar Khan has beaten him by lathi Danda; that witnesses Babu Khan, Babban Khan  and Khalil Ahmad reached there and protected him.  The N.C.R.  bears the thumb impression of the complainant Zaheer Khan showing him an utter illiterate.  The relevant G.D. dated 8.12.1994 (time 16.05) reveals that the complainant Zaheer Ahmad was sent for medical examination. He was examined same day at 5.10 P.M. .  The following injuries were found on his person:

1.Stab wound 0.5 cm x 0.5 cm x 1.5 cm on the post aspect of right forearm, 10.0 cm above wrist joint.

2.Abraded contusion 7.-0 cm x 4.0 cm on the post aspect of left forearm 8.0 cm above the wrist joint.

Both the injuries were kept under observation.

X-ray was advised for both injuries. The doctor found that the duration of the injuries was fresh and that injury no.1 was caused by sharp pointed object and injury no.2 was caused by hard blunt object. The report dated 13.12.1999 given by the Radiologist reveals that Zaheer Khan sustained fracture of the middle shaft of ulna in his right fore arm.

The investigation was conducted by P.W.5 S.I. Shamshad Ali who submitted charge sheet for offences under section 326,324 and 504 I.P.C. after usual investigation. The prosecution examined P.W. 1 Zaheer Ahmad (injured) P.W. 2 Babban Khan (eye witness) P.W. 3 Dr. Udai Veer, P.W. 4 Dr. S.K.Tewari and P.W. 5 , S.I. Shamshad Ali.

The trial Magistrate found the case doubtful and acquitted the accused (opposite party no.2.)

I have heard Sri S.P.Sharma, A.G.A who supported the judgment of acquittal.

None was present either for the revisionist or for opposite party no.2 even on the revision of the list. I have perused the record.

The accused was acquitted by the trial Magistrate on the ground that Babu Khan and Khalil Ahmad who were present on the spot were not produced nor any reason was assigned for withholding these two witnesses; that in N.C.R. the allegations are for causing injuries  by Lathi and Danda and that in the statement under section 161 Cr.P.C. there is over writing regarding the word "Bhala"; that it is not clear that the accused was holding Lathi and Bhala both or Bhala was fixed in Lathi; that there is no explanation as to in what manner the injury No.1 and 2 were sustained; that P.W. 2 Babu Khan is the real (first) cousin of the complainant and that there is no statement whether the blood oozed or not from injury no.1.

Khalil Ahmad is not a witness mentioned in the charge sheet hence the non production of witness Khalil cannot be to the discredit of the prosecution.  Prosecution produced P.W.1 Jahir and P.W. 2 Baboo Khan as eye witnesses of the occurrence.

No particular number of the witnesses is required to prove a fact. The prosecution  was under no obligation to produce all the eye witnesses mentioned in the charge sheet provided the sufficient number of eye witnesses have been examined.  If out of several eye witnesses few of them are produced and few not, the prosecution story cannot be disbelieved merely for the non production of the remaining eye witnesses. The prosecution is under no liability to give reason for not examining all the witnesses mentioned in the charge sheet. In these circumstances the non-production of Babu Khan  and Khalil Ahmad cannot give its benefit to the accused.

The affixing of thumb impression  over the N.C.R. goes to show that the complainant Zaheer Ahmad was totally an illiterate person.  He in his cross -examination  stated that he in his report did not dictate lathi and danda but dictated about bhala (spear) and that he stated to the I.O. also that the injuries were caused by Bhala. His statement in court regarding causing of injuries by Bhala and by lathi finds support from the injury report. In the above circumstances the omission of the word 'Bhala' in N.C.R. lodged by a totally illiterate person can not be interpreted against the prosecution.

PW-5 S.I. Shamshad Ahmad explained in his cross examination that the complainant told him that the injuries were caused by bhala (spear ) and 'danda'. He admitted that there was an overwriting in the case diary regarding the word 'Bhala', but explained that on other places in case diary, there is no overwriting over the word bhala. If in the case diary, the word bhala is used at several places in the statement of witness and there is no over writing except at one place, no discredit, for such single overwriting can be given to the prosecution.

Bhala is a pointed device used for causing injury after fixing it in lathi or after fixing lathi in it. The Magistrate's reason that it is not clear whether the bhala was fixed in lathi or lathi was fixed in bhala is of no substance.

When one person is beaten and he sustains more than one injury, he is not supposed to explain the manner in which each of these injuries were caused. No question on this point was ever asked from the witness by the defence counsel or by the court.  The acquittal of the accused on this ground was also improper.

PW-2 Babban Khan in his cross examination stated that Habib Khan is a 'sarhoo ' of PW-2 Babban Khan and that the complainant Zahir Ahmad is the cousin of the said Habib Khan. Besides it, the mere relationship of the witness with the complainant can not be  a ground to disbelieve is evidence.

Injury No.1 is a stab wound having the depth of 1.5 cm. No question was asked from the witness regarding oozing of the blood from injury No.1 hence, the point, if any, looses its importance.

In view of what has been discussed above, the acquittal of the accused-respondent, recorded by the Magistrate, is not based on correct and proper reasonings.

The revision is allowed and the judgement and order dated 29.5.1998 acquitting opposite party No.2, Akhtar Khan is set aside. The case is remanded back to the trial court for giving reasoned judgement in the light of the discussion made above.  The record of the trial court be sent back to the trial court within three weeks. The trial court, in turn, shall summon the accused (opposite party No.2), hear the arguments  and pronounce  the judgement afresh giving proper reasons.

Dt.

RPS/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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