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Rasul Khan v. State - CRIMINAL APPEAL No. 398 of 1981 [2006] RD-AH 18828 (7 November 2006)


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Criminal Appeal No. 398 of 1981

Rasul Khan............................................................Accused



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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