Jan Mohd. @ Janu vs State Of U.P.
2012 Latest Caselaw 4928 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No.33
 
Criminal Appeal No. 412 of 2004
 

 
Jan Mohd. @ Janu                                                 ........................Appellant
 

 
                                                     versus
 

 
State of U.P.                                                .........................Opposite Party
 

 

 
Counsel for the appellant :    Sri Arun Kumar Tripathi, Amicus Curiae
 
Counsel for the Respondent: Sri Ram Yash Pandey, AGA for the State.
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Anil Kumar Sharma,J.

(By Justice Anil Kumar Sharma)

The sole accused appellant has challenged the judgment and order dated 31.10.2003 passed by Additional Sessions Judge, Court No.5, Saharanpur in S.T. No. 345 of 2002, whereby he has been convicted and sentenced to undergo imprisonment for life and fine of Rs. 5,000/- under section 302 IPC and to undergo rigorous imprisonment for six months under section 506 IPC with default stipulation.

2. Facts germane to the instant appeal are that Anees Ahmad s/o Raseed Ahmad, resident of Mohalla Mohd. Gori, P.S. Gangoh, District Saharanpur submitted a written report at police station Fatehpur stating that he along with his co-villager Sazid PW-1 had gone to the house of his married daughter Mobina w/o Jan Mohd. for delivering goods/gifts as Eidi on the eve of Eid-ul-Fitr. After offering Namaz in the mosque at 2.00 P.M. they went to the house of the accused who has also arrived there. The accused asked his wife (deceased) to prepare food. She told him that these are days of Ramzan and today is Juma (Friday), how she could prepare food and he should also pray to the God and what he would reply Him as he has not kept fast. On hearing this the accused got enraged and took out the axe from room and started assaulting her. When the complainant and his companion tried to intervene the accused also threatened them to death. The accused after mercilessly assaulting his wife and washing the floor went away along with axe. The complainant along with his companion and Gufran brother of the accused took the injured to Fatehpur hospital but considering her critical condition the doctor referred her to Saharanpur hospital where she was declared dead. Complainant further stated that after informing the incident at his home and getting the inquest of the deceased prepared he has come to lodge the report. On the basis of this report, case crime no. 182/2001, under sections 302, 506 IPC was registered at Fatehpur police station, investigation whereof was taken up by S.O. Jagat Kumar Singh PW-6. Investigating Officer interrogated the complainant and other witnesses and reached at the spot and prepared site plan. He seized the blood stained chappal of deceased from the scene of occurrence through memo Ex. Ka-8. The accused was arrested on 09.12.2001 at 2.45 P.M. On his interrogation he assured the police to get the weapon of offence i.e. axe recovered. He escorted the police to Kalsiya triangular crossing and from a dilapidated Kothri took out the axe which was kept under the Pural. This recovery was made at 5.30 P.M. The recovery memo was prepared on the spot and its copy was furnished to the accused. Ere that the inquest of the dead body of the deceased was conducted by S.I. Tilak Ram Tyagi in the morning of 08.12.2001 in the presence of Panch witnesses which included complainant, his son and other people who were residents of Kasba Gangoh. Sri Tyagi sealed the dead body and along with usual papers sent the same for post mortem examination through police constable. Dr. Karan Singh conducted autopsy on the person of the deceased. He found that 30 years old deceased was having average built body, rigor mortis was present in both upper and lower extremities. There was no decomposition. Dr. Karan Singh found the following ante-mortem injuries on the person of the deceased:

1. Incised wound 5 cm x 1.5 cm x brain deep on front of fore head 1 cm above the medial end of right eye brow. On exploration the brain and the membranes were found cut with clotted blood in right frontal lobe. Frontal bone of the right side was also cut.

2. Incised wound 9 cm x 1 cm x bone deep on left side of head, 6 cm above the pinna of left ear.

3. Abraded traumatic swelling 4 cm x 1 cm on right side upper part of neck just below the mindible bone. On exploration clotted blood was found on right side of larynx.

4. Incised wound 2cm x 0.5 cm x muscle deep on outer aspect of left fore arm 10 cms below left elbow joint.

5. Abraded traumatic swelling 3 cm x 2 cm on back of chest midline 5 cm below C-7 vertebra.

	     6.	    Abraded traumatic swelling 2.5 cm x 2 cm on back of chest 		     midline 5 cms below injury no.5.
 
3.	The doctor opined that the deceased suffered death about a day before due to comma as a result of head injury. The investigation ended in charge sheet against the accused.
 
4.	After committal of the case to the court of Session, charge for the offence punishable under section 302/506 IPC were framed against the accused, who pleaded not guilty and claimed trial. 
 
5.	In support of its case the prosecution has examined Sazid PW-1, Anees Ahmad PW-2, Dr. Karan Singh PW-3, Dr. Sumit Khatri PW-4, Head Constable Vijay Pal Singh PW-5, Sri Jagat Kumar Singh PW-6, HCP Tilak Ram Tyagi PW-7 and Home Guard Bhagwat Prasad PW-8.
 

6. In his statement under section 313 Cr.P.C. the accused has again denied the entire prosecution story. Claiming false implication he has stated that on the alleged date and time of the incident he was not at home but has gone to Saharanpur for taking goods. He has further stated that all the witnesses are related to each other and his relations with them were not good. He has filed a short written statement stating that on the date of incident he was not in the village and had gone to the city for taking goods for Eid. He has further stated that his brother wants to usurp his share in the house so in connivance with his father-in-law with false allegations case has been fabricated against him. The accused did not examine any witness in his defence.

7. We have heard Sri Arun Kumar Tripathi, Amicus Curiae for the appellant and Sri Ram Yash Pandey, learned AGA for the State.

8. The homicidal death of the deceased stands proved through the inquest report and post mortem examination report of the deceased, which have been proved by HCP Tilak Ram Tyagi PW-3 and Dr. Karan Singh PW-3 respectively. The place of occurrence is the house of the deceased, who is wife of accused-appellant. Sazid PW-1 and father of the deceased Anees PW-2 have given eye witness account of the incident. They had stated that they have gone to the house of the accused after taking goods of Eidi on the eve of Eid-ul-Fitr which was 10 days after the incident. From the calender of 2001 we find that on the day of incident it was Friday, it was the month of Ramzan and Eid-ul-Fitr was celebrated on 17.12.2001. All these dates corroborate the contents of the FIR as also the statements of PW-1 and PW-2 and their purpose of visit to the house of the accused.

9. Learned counsel for the defence has argued the following points before us:

(i)   	That FIR is delayed;
 
(ii) 	that presence of PW-1 and PW-2 is doubtful;
 
(iii) 	that there are material contradictions in the statement of PW-		1and PW-2 and 
 
(iv) 	that for the sake of argument the prosecution story believe, the 		case cannot travel beyond the scope of section 304 IPC.
 

10. The alleged incident took place on 07.12.2001 at about 2.00 P.M. in the house of the accused and its written report was lodged by the complainant at P.S. Fatehpur on 08.12.2001 at 12.45 P.M. In the report the complainant had stated that after the accident he along with his companion Sazid and brother of the accused Gufran had taken Smt. Mobina in injured condition to Fatehpur hospital and from there the doctor referred her to Saharanpur hospital, where she was declared dead. It has also been stated by the complainant in the report that from Saharanpur he went to village for informing the family members about the incident and after getting the inquest proceedings of the deceased completed he dictated the report to Mehboob and submitted the same at police station Fatehpur at 12.45 P.M. on 08.12.2001. Inquest report Ex. Ka-12 shows that the complainant and his son Barkat were amongst the Panch witnesses. It has come in the cross-examination of PW-1 that Maruti Van was hired by the complainant from Fatehpur to take his injured daughter to Saharanpur and it took one hour to reach there. He has further stated that he and Gufran had accompanied the complainant to Saharanpur hospital where Mobina died within five minutes. The complainant has not been cross-examined about the delay in FIR. A small discrepancy has been found in the statements of PW-1 and PW-2 with regard to preparation of written report. PW-1 has stated in cross-examination that he dictated the report to Mehboob while the complainant has stated that on his dictation the written report was written by Mehboob. However, the PW-2 has not been confronted with the aforesaid statement of PW-1 with regard to preparation of written report. The presence of PW-1 and PW-2 at the house of the accused on the day of occurrence has been duly proved by both these witnesses as already pointed out earlier. It has come in their evidence that they had gone to the house of the accused for delivering Eidi on the eve of Eid-ul-Fitr which was celebrated on 17.12.2001. The explanation given by both these witnesses is quite natural. Traditionally in Muslims the parents of bribe before Eid-ul-Fitr go to the house of their son-in-law or brother-in-law for presenting gifts known as Eidi. The accused has denied his presence at his own house on the day of incident on the pretext he had gone to Saharanpur for purchasing goods but no evidence has been led on his behalf nor any such suggestion has been given to any of the witnesses of the fact during their cross-examination. Thus we find that the prosecution has given proper explanation for delayed FIR and presence of PW-1 and PW-2 is not at all doubtful.

11. Learned counsel for the accused appellant has further submitted that there are material contradictions in the testimony of PW-1 and PW-2 so they are not reliable witness. The argument is without force. The complainant has indicted his son-in-law in the case for killing his daughter. No close relative would screen the real offender and would falsely implicate his son-in-law in a heinous case of murder. The contradictions have come with regard to the boundaries of the house of the accused which are not important at all. PW-1 has stated that he has visited the house of the accused for the first time so he may not be aware of exact boundaries of the house of the deceased. The complainant too has stated that house of the accused is facing towards east but in site plan the Investigating Officer has shown the exit of the house of the accused towards western side on Kharanja. The complainant has given the correct directions of Kharanja in cross-examination. He has also given the correct topography of the house of the accused. Both the witnesses have consistently stated that the accused asked his wife to prepare food at about 2.00 P.M. on which she told the accused to keep fast due to Ramzan but he dragged her inside the room and assaulted with Kulhari. PW-1 has stated in cross-examination that first blow of the axe given by the accused hit the deceased on her head, second one near the right ear and he could not state where third blow of the axe caused injury to the deceased. The deceased has sustained an incised wound on front of forehead near right eyebrow. The second incised wound was found on the left side of head, so there is no material discrepancy with regard the seat of injury described by PW-1 and sustained by the deceased.

12. It has been argued that no blood was found on the spot by the Investigating Officer so the place of occurrence is not proved. It has come in the statement of PW-1 that after sustaining first axe blow the deceased fell down on a Dari, blood started oozing from the injury and she remained on the cot for five minutes. The second blow was given when she tried to get up and she again fell on the cot. PW-2 has stated that they had taken the injured by wrapping her in the same Dari to hospital. Thus the blood of the deceased could not have fallen on the ground and the blood oozing out from her injuries must have been soaked in the Dari. In the FIR itself it has been stated by the complainant that after assaulting his wife the deceased washed the blood which has spread on the floor and fled away from the spot along with axe. That is the reason why no blood was found by the Investigating Officer under the cot of the deceased. The washing of floor has been stated by PW-2 in his cross-examination as well.

13. Dr. Sumit Khatri PW-4 has stated that on 07.12.2008 Smt. Mobina was brought in hospital in injured condition. Since her condition was precarious so after giving life saving drugs referred her to Saharanpur Hospital. In cross-examination he has admitted that he did not medically treat the injured and as there was excessive bleeding so in order to maintain her blood pressure he has given some injections. The entry of the treatment was made in the emergency register which has been brought by him in the Court. He has further admitted that in the register the name of Gufran is written as the person accompanying the injured. This fact also corroborates the statement of PW-1 and PW-2 where they stated that they along with Gufran had taken the deceased to the hospital in injured condition.

14. The Investigating Officer Jagat Kumar Singh PW-6 has testified the recovery of blood stained Chappal of the deceased from spot as also the recovery of axe at the pointing out of the accused on 09.12.2001 at 2.45 P.M. This recovery has also been attested by PW-1 and he has not been cross-examined on this point. The copy of the recovery memo was given to the accused and his thumb impression was obtained. He has stated that he did not procure any person from the village of the accused for witnessing the recovery of axe because he got the witnesses out side the police station. The recovery of axe i.e. the weapon of offence is relevant under section 27 of the Evidence Act.

15. Learned counsel for the appellant has lastly argued that there was no allegation against the accused that he has maltreated his wife on any account and incident had taken place in heat of passion; that accused did not intend to kill the deceased so the case does not travel beyond the scope of section 304 IPC. Refuting this argument learned AGA has submitted that there was no provocation either of the deceased or by her father. The refusal of the deceased to prepare food was only on account religious reasons as it was the month of Ramzan and day of incident was Friday. As we have noted in the post mortem report of the deceased that she had sustained as many as three incised wounds and three abraded traumatic swellings which can be the impact of incised wounds. The accused has used an axe in assaulting the deceased, which is a deadly weapon and has repeatedly given blows on her. The accused did not care for the presence of his father-in-law in assaulting the deceased and when they tried to intervene they were also extended life threat. It has come in the cross-examination of PW-1 that there was interval of about 5 minutes in first and second axe blow. In order to bring a case under Explanation-IV to section 300 IPC the evidence must show that the accused acted without any premeditation in heat of passion and without having taken undue advantage and he had not acted in a cruel or unusual manner. Everyone of these circumstances is required to be proved to attract Explanation-IV to section 300 IPC and it is not sufficient to prove only some of them. In these circumstances, we are of the firm view that instant case does not fall within the purview of section 300 IPC, rather it is squarely covered under section 302 IPC.

16. In view of what has been said and done above, we find that prosecution has successfully established its case beyond all reasonable doubt against the accused-appellant and learned trial court has not at all erred in convicting and sentencing him for the offence punishable under section 302 IPC. The appeal has no merit and is accordingly dismissed.

17. The impugned judgment and order of the trial court are hereby confirmed. The accused is in jail and would serve out the remaining part of the sentence.

18. Sri Arun Kumar Tripathi, Amicus Curiae appointed by this Court would get Rs. 2,100/-, which shall be paid to him in a month.

19. Let certified copy of the judgment be sent to the trial court immediately for compliance which should be reported within a month to the Court.

.............Rakesh Tiwari, J

..........Anil Kumar Sharma, J

Date: 09.10.2012

Imroz/-