Jumma vs State Of U.P.
2011 Latest Caselaw 6159 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 43
 

 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 6601 of 2008
 

 
Petitioner :- Jumma
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Raj Kumar Khanna
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Shri Kant Tripathi,J.

The appellant Jumma has preferred this appeal against the judgment and order dated 09.09.2008 rendered by Mr. Nalin Kant Tyagi, Additional Sessions Judge / Fast Track Court No. 1, Moradabad in Sessions Trial No. 685 of 2007 (State Vs. Jumma), whereby, the learned Additional Sessions Judge convicted and sentenced the appellant under section 307 I.P.C. to undergo rigorous imprisonment of seven years and pay a fine of Rs. 10,000/- and in default of payment of fine to undergo additional imprisonment for a term of three months. Learned trial court has further convicted and sentenced the appellant under section 393 I.P.C. to undergo rigorous imprisonment of two years and to pay a fine of Rs. 10,000/- and in default payment of fine to undergo additional rigorous imprisonment for a term of three months. The learned trial court has further directed that a sum of Rs. 10,000/- shall be paid as compensation to the injured Smt. Mehrun Nisha, out of the fine recovered from the appellant.

The prosecution story leading to this appeal is that the appellant Jumma had done painting work in the complainant's house, having three storey, and that work continued for about four months and as such the appellant had located the rooms where the complainant had kept valuable articles, jewelleries and cash amounts and used to try to enter into those rooms with one pretext or the other during the period he worked in the house of the complainant. Due to this activities of the appellant, the complainant had required him about twenty days prior to the occurrence not to work in his house. On 16.04.2007, the complainant's children had gone to the school at about 7.30 A.M. and the complainant had also gone elsewhere at about 8.00 A.M. and his wife Smt. Mehrun Nisha was all alone in the house. At about 8.45 A.M., the appellant Jumma came to the house of the complainant and informed his wife that he was sent by the complainant, so she opened the door and proceeded to the first floor of the house. Thereafter the appellant caught hold of the wife of the complainant and assaulted her with the blunt portion of a banka with the intention to cause her death, however, the complainant's wife any how managed to free herself from the clutches of the appellant. On hearing noise, witnesses Bilal Ahmad, Rizwanur Rehman and Mohd. Nasim and others arrived at the place of occurrence and entered into the house of the complainant after crossing over the roof of adjoining house. The said Bilal Ahmad and others any how apprehended the appellant by beating him up. It is also stated that the wife of the complainant was taken to a government hospital forthwith, while the appellant remained in the custody of the neighbours inside the house of the complainant.

The complainant lodged the first information report Ext. Ka-5 at the Police Station Kotwali, District-Moradabad on the same day at about 10.00 A.M. on which basis the police registered the case and proceeded to make the investigation.

The injured Mehrun Nisha was medically examined by the emergency Medical Officer, District Hospital, Moradabad, the same day at about 10.45 A.M. The following injuries were found on the person of the injured:

"Multiple lacerated wound (ten in numbers) in an area of 15X10 Cms. on right side of head, scalp deep, largest wound size 8X0.5 Cms. smallest wound size 3X0.5 Cms. just above the right ear. Fresh blood in wound was present and the injury was kept under observation. Duration was found to be fresh. In the opinion of the Medical Officer the injures were caused by some blunt and hard object and X-ray was advised."

The Doctor, who medically examined the injured, opined that the aforesaid injuries were caused by blunt and hard object and also advised for X-ray. The X-ray was done by the Senior Radiologist, District Hospital, Moradabad who prepared the X-ray report Ext. Ka-11 and X-ray plate material Ext-1 and on the basis X-ray report and plate gave the opinion that there was a chip fracture of the parietal bone of the injured. After receiving the X-ray report the supplementary report Ext-4 was also prepared by the Emergency Medical Officer, District Hospital, Moradabad, who found the head injury to be grievous.

During the course of investigation the Investigating Officer took into possession blood stained and plain pieces of Marble of the room and prepared the relevant memo Ext. Ka-9. He further took into possession blood stained banka lying on a sofa and prepared its fard. The Investigating Officer prepared also the site plan Ext. Ka-8 and after concluding the investigation submitted charge-sheet Ext. Ka-10 against the appellant.

The learned trial court framed the charges under sections 307 and 393 I.P.C. against the appellant who pleaded not guilty and claimed to be tried.

The prosecution examined as many as eight witnesses to prove the aforesaid charges. PW-1, Mohd. Islam is the complainant who has proved the first information report Ext. Ka-1 and further supported the story of deployment of the appellant for painting purposes and his expulsion from the job. PW-2, Smt. Mehrun Nisha is the injured. She has supported the prosecution story in the witness box and has also proved the weapon banka (material Ext-1) and the cloth material Ext-2 in which banka was sealed. PW-3, Bilal Ahmad and PW-4, Rizwanur Rehman are the neighbours of the complainant, who had arrived at the place of occurrence. These two witnesses have also supported the prosecution story including the story of spot arrest of the appellant. PW-3, Bilal Ahmad has further stated that it was he, who had taken the first information report to the police station. This witness has further proved the factum of taking into possession of the weapon by the Investigation Officer. PW-5 Dr. B. Lal was the Emergency Medical Officer, who has proved the injury report Ext. Ka-3 and supplementary injury report Ext. Ka-4 as well as the aforesaid injuries sustained by the injured Smt. Mehrun Nisha.

PW-6, Head Moharrir, Yashpal Singh has proved the chick report Ext. Ka-5 and copies of G.D. Ext. Ka-6 and Ka-7 .

PW-7, Sub Inspector, Mukesh Kumar was the Investigating Officer, who  has proved the site plan Ext. Ka-8, blood stained pieces of Marvel floor Ext-3, cloths Ext-4, plain pieces of Marvel floor Ext-5, and cloth Ext-6. This witness has also proved the memo Ext-Ka-9 which was prepared while taking into possession the pieces of Marvel floor. This witnesses has further proved the charge-sheet Ext. Ka-10.

PW-8, Dr. Jagmal Singh was the Senior Radiologist, who has proved the X-ray report Ext. Ka-11 and X-ray plate material Ext-1.

The learned trial court examined the appellant under section 313 of Cr.P.C. who denied the allegations made against him and stated that the neighbours of the complainant misunderstood the relation between him and the injured, hence they had beaten him up and the injured, but the appellant did not adduce any evidence in support of this defence story.

Learned trial court believed the prosecution story and held that the charges under sections 307 and 393 I.P.C. were proved beyond all reasonable doubts against the appellant.

I have heard the learned counsel for the appellant and learned AGA for the State and perused the record.

Mr. Raj Kumar Khanna appearing for the appellant submitted that he would not press the appeal against the finding of guilt, which is based on proper appraisal of evidence on record. But Mr. Khanna submitted that in view of the facts and circumstances of the case rigorous imprisonment of seven years under section 307 I.P.C. was not proper. It was next submitted that the appellant had also sustained injuries and he had made only a single blow, therefore, the offence under section 307 I.P.C. was not made out.

The first information report of the present case was very prompt. Whatever story was set up in the first information report, remained in tact during the trial and no material alteration was made. PW-2 Mehrun Nisha (the injured), PW-3 Bilal Ahmad and PW-4 Rizwanur Rehman (eye witnesses) have categorically supported the prosecution story against the appellant. The Banka (Ext.-1) which was recovered from the possession of the appellant was also produced during the trial. Moreso, the appellant was arrested in the house of the injured and thus, it is a case of spot arrest. The medical evidence adduced PW-5, Dr. B. Lal and PW-8, Dr. Jagmal Singh corroborates the oral evidence of the aforesaid eye witnesses. The learned trial court seems to have believed the prosecution story on the basis of the materials produced during the trial. There does not appear to be any reason of false implication of the appellant. It is true that the appellant had also sustained few injuries but those injuries seem to have been caused by the persons who arrested him on spot, therefore, his injuries do not have much significance. In my opinion, the finding of the trial court that the charges under section 307 and 393 I.P.C. were proved beyond all reasonable doubts seems to be perfectly correct. When the learned counsel for the appellant has not pressed the appeal so far as the finding of the guilt is concerned, the finding of the lower court which is based on proper appraisal of evidence on record is liable to be affirmed.

The injured had sustained ten multiple injuries on her head which were in the dimension of 15 cms X 10 cms. The said injuries resulted in causing chip fracture of the parietal bone. Looking into the facts and circumstances of the case and the nature of the injuries and their depth and dimensions, the finding of the learned trial court that the offence under section 307 I.P.C. was made out cannot be said to be against law. The injuries reveal that it was not caused by a single blow rather repeated blow was made at or near the parietal region. In this view of the matter it can be safely held that the assault was made with such intention and knowledge and under such circumstances that if the appellant had by that act caused the death of the injured, he would have been guilty of murder. Therefore, in my opinion, the offence under section 307 I.P.C. is fully made out and the finding of the learned trial court in this behalf appears to be perfectly correct.

So far as the quantum of sentence is concerned, the submission of the learned counsel for the appellant has sufficient merit. The appellant has no criminal history nor he robbed any article or property during the incident and had merely acted to presurize the injured to hand over keys. In view of this factual aspect of the matter, the sentence of seven years rigorous imprisonment under section 307 I.P.C. seems to be excessive, which is liable to be reduced to four years rigorous imprisonment. To this extent the appeal is liable to be allowed.

Therefore, the appeal is partly allowed. The conviction of the appellant, Jumma under sections 307 and 393 I.P.C. is affirmed. However, the sentence of imprisonment of seven years rigorous imprisonment passed against the appellant under section 307 I.P.C. is reduced to four years rigorous imprisonment. Remaining other sentences are affirmed.

Let a copy of this judgment along with the lower court record be sent forthwith to the court concerned for compliance.

Order Date :- 25.11.2011

Sharad