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Rasul Khan v. State - CRIMINAL APPEAL No. 398 of 1981  RD-AH 18828 (7 November 2006)
Criminal Appeal No. 398 of 1981
State of U.P...........................................................Respondent
Hon'ble M. Chaudhary, J.
This is a criminal appeal filed on behalf of the accused appellant from judgment and order dated 21st of January, 1981 passed by I Additional Sessions Judge, Mathura in Sessions Trial No. 225 of 1977 State vs. Rasul Khan & another acquitting the accused appellant under section 307 IPC but convicting him under section 326 IPC and sentencing him to three years' rigorous imprisonment thereunder. Co-accused Saddiq was acquitted of the charge levelled against him.
Brief facts giving rise to this appeal are that at about 1:00 p.m. on 25th of November, 1975 Tunda, brother of Ved Ram went to his field for cutting pulas. At that time Nababu and his sons Rasul Khan and Saddiq were at the crusher in their field situate adjacently. Tunda asked Nababu and his sons as to who had cut pulas from his field which resulted in an altercation between them. As Tunda wanted to cut the standing pulas in his field Nababu and his sons shouted that they will cut those pulas. Immediately Rasul Khan gave a pharsa blow to Tunda hitting him at his head and Nababu and Saddiq beat him with fists and kicks. In the meanwhile on hearing the cries of Tunda, Ved Ram and Deepa rushed to the scene of occurrence and saved him. After arranging some vehicle Ved Ram alongwith the village chawkidar taking his injured brother Tunda went to Primary Health Centre, Chhata where he was medically examined by Dr A.K. Gautam, Medical Officer, in-charge PHC. His medical examination revealed below noted injury on his person:
Incised wound 6 cm x 5 cm on top of the skull lying transversely on left side 7 cm above left ear. Advised x-ray.
The doctor opined that the injury was caused by some sharp object and fresh in duration. The injury was kept under observation.
Next morning Ved Ram taking his injured brother Tunda went to police station Shergarh situate at a distance of five miles from the village and lodged an FIR of the occurrence with the police there at 7:30 a.m. The police registered a crime against the accused accordingly and started the investigation.
X-ray of skull of Tunda revealed fracture of left parietal bone.
Inspector Surendra Kumar, the investigating officer recorded statements of the witnesses. He went to the scene of occurrence, inspected the site and prepared its site plan map. After completing the investigation he submitted charge sheet against the accused under section 307 IPC.
After framing of charge against the accused the prosecution examined Ved Ram (PW 1), Deepa (PW 2) and Tunda (PW3) as eye witnesses of the occurrence. PW 4 HM Munna Lal who prepared check report on the basis of written report handed over to him at the police station and made entry regarding registration of the crime in GD proved these papers( Exts ka 1 & ka 2). PW 5 Dr A.K. Gautam who medically examined injured Tunda proved the injury report ( Ext ka 3). PW 6 E.H. Peter, x-ray technician who x-rayed the skull of injured Tunda under supervision of Dr M.A. Sharma proved the x-ray plates and x-ray report ( Ext ka 4). PW 6 Inspector Surendra Kumar who investigated the crime and after completing investigation submitted charge sheet against the accused proved the police papers.
The accused pleaded not guilty denying the alleged occurrence altogether and stating that he was implicated in the case falsely. He examined DW 1 Ghatroo in his support. He stated that Bholu and Bhoja were real brothers; that Ved Ram and Tunda, the two real brothers were grandsons of Bhoja, and Deepa was the grandson of Bholu. He also stated that at about 1:00 p.m. the alleged noon some quarrel had taken place between Tunda and Nababu and that he was also at the crusher of Nababu at that time but Rasul Khan, Saddiq and Ved Ram were not present there.
On an appraisal of the parties' evidence the learned trail judge held the accused guilty for the offence punishable under section 326 IPC and convicted and sentenced him as stated above.
Feeling aggrieved by the impugned judgment and order the accused appellant preferred this appeal for redress.
Heard Sri S.V. Gosvami, learned counsel for the appellant and Sri M.A. Siddiqui, learned AGA for the State respondent.
After going through the impugned judgment and record of the case the court is reluctant to agree with the finding of conviction recorded by the trail judge against the accused appellant for the following reasons:
First, FIR of the case is much delayed as the alleged occurrence took place on 25th of November, 1975 at 1:00 p.m. and FIR of the occurrence was lodged by Ved Ram, brother of injured Tunda at police station Shergarh next day i.e. on 26th of November, 1975 at 7:30 a.m. whereas police station Shergarh was situate only at a distance of five miles from village Vishambhara. If Ved Ram, brother of the injured was present at the scene of occurrence, FIR of the incident should have been lodged by 3:00 p.m. that very noon even if Ved Ram would have gone to the police station on foot. However, in the instant case FIR of the occurrence was lodged next morning at 7:30 a.m. No explanation has been offered at all to explain the inordinate delay in lodging FIR of the occurrence at the police station. Inordinate delay in lodging the FIR is fatal to the prosecution case as the FIR loses all its corroborative value and authenticity as possibility of introducing a coloured or fabricated version in the FIR cannot be ruled out altogether.
Secondly, if the occurrence took place in presence of Ved Ram, real brother of injured Tunda he taking his injured brother should have rushed to the Hospital immediately and reached the Primary Health Centre at the most within two hours of the occurrence. But in the instant case the alleged incident took place at about 1:00 p.m. whereas injured Tunda was medically examined by the medical officer in-charge, PHC Chhata situate only at a distance of 5-6 miles from village Vishambhra at 9:00 p.m. that day which compels the court to conclude that either Ved Ram, brother of the injured was not present at the scene of occurrence or the incident did not occur at the time and in the manner alleged by the prosecution.
Thirdly, a perusal of the injury report goes to show that doctor who medically examined the injured mentioned in the injury report that the injury was fresh in duration, meaning thereby that the injury was caused to Tunda at the most within 4-6 hours before his medical examination (Ext ka 3). If the incident took place at 1:00 p.m. that day and Tunda received the injury at his head in the said incident, the injury could not be found flesh at the time of his medical examination. Further, PW 6 Inspector Surendra Kumar, the investigating officer who went to the scene of occurrence, inspected the site and prepared its site plan map stated in his cross-examination that he did not find any blood at the scene of occurrence. PW 1 Ved Ram too stated in his cross-examination that blood oozed from the injury sustained by Tunda had not fallen down on the ground. However medical examination of injured Tunda revealed incised wound 6 cm x 5 cm on the top of skull, and x-ray of the skull revealed fracture of parietal bone under the injury. PW 3 Tunda, the injured stated in his cross-examination that after receiving the injury he kept lying on the ground for about 10 minutes. PW 1 Ved Ram too stated that on hearing the hue and cry as he reached the scene of occurrence he saw Tunda lying on the ground and blood was oozing profusely and Tunda kept lying at that place for 5-7 minutes. Hence the said injury must have bled and blood must have smeared on the ground, and in that case the investigating officer should have found blood at the scene of occurrence; but he did not find any blood there.
Fourthly, PW 3 Tunda, the injured stated in his cross-examination that Nababu and his sons Rasul khan and Saddiq beat him with fists and kicks for about ten minutes, and at that time he kept holding sickle in his hand. This conduct of PW 3 Tunda, the injured was most unnatural because either the sickle would have fallen down from his hand when the three assailants were beating him with fists and kicks and if he kept holding sickle in his hand in all probability he must have given 2-3 blows to the assailants with that sickle or the assailants would have snatched the sickle from his hand.
Fifthly, the statement of all the three eye witnesses are inconsistent and incongruent. PW 1 Ved Ram nowhere mentioned in FIR of the occurrence lodged by him at the police station that at the time of occurrence he was present either at his field or at his adda situate nearby. Rather He mentioned in the FIR that on hearing the hue and cry raised by his brother he and Deepa rushed to the scene of occurrence. This witness Ved Ram stated in his cross-examination that on hearing the hue and cry as he reached the scene of occurrence he saw his brother lying on the ground and blood was oozing and that his brother Tunda kept lying at that very place for 5-7 minutes. PW 2 Deepa stated in his cross-examination that he did not see Tunda cutting pulas and that when he sighted the scene of occurrence for the first time he saw Tunda lying on the ground in his field and Nababu and Saddiq beating him with fists and kicks whereas PW 3 Tunda stated in his cross-examination that Nababu and his sons Saddiq and Rasul beat him with fists and kicks for about ten minutes and when he fell down on the ground Rasul Khan gave pharsa blow to him and that he kept lying at that place for about ten minutes. In view of these material inconsistencies in the statements of three eye witnesses including the injured implicit reliance cannot be placed on their testimony.
Lastly, PW 3 Tunda, the injured stated that Nababu and his sons Rasul Khan and Saddiq beat him with fists and kicks for about ten minutes and when he fell down on the ground Rasul Khan gave him pharsa blow and after receiving the pharsa blow he kept lying on the ground for about ten minutes. However his medical examination did not reveal any contusion, abrasion or a scratch even on his person excepting an incised wound on his skull. Further, no blood was found by the investigating officer at the scene of occurrence.
In view of the above infirmities and incongruities in the prosecution case and evidence, the court is of the view that the incident did not occur at the time, place and in the manner alleged by the prosecution and in all probability, the said incident was not witnessed either by Ved Ram or Deepa. Since finding of conviction recorded by the learned trial judge is based on faulty appreciation of evidence the impugned judgment and order can not be sustained and is liable to be set aside.
The appeal is allowed and the impugned judgment and order is hereby set aside. Accused appellant Rasul Khan is hereby acquitted. He is on bail. His bail bonds are hereby discharged.
Judgment be certified to the court below.
Dated 7th of November, 2006
Crl. Appeal No.398-1981
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