Meraj And Another vs State Of U.P.
2015 Latest Caselaw 958 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 43                                                                   AFR
 
Case :- CRIMINAL APPEAL No. - 2492 of 2015
 
Appellant :- Meraj And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Gyanendra Prakash Srivast
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ramesh Sinha,J.

1.Heard Sri Gyanendra Prakash Srivastava, learned counsel for the appellants, Sri L.D. Rajbhar, learned AGA for the State and perused the record.

2.With the consent of learned counsel for the appellants and learned AGA for the State, the present appeal is being finally heard and decided by the Court at the admission stage when the matter has come up as fresh today as it has been stated by learned counsel for the appellants that the maximum sentence awarded to the appellants under Section 307 IPC is seven years out of which they have already served out six years in jail as they are in jail since 22.7.2009 and appeal is not likely to be heard in near future and would become infructuous.

3.This appeal has been filed against the judgment and order dated 6.6.2015 passed by Additional Sessions Judge, Court No.3, Mau, district Mau in Sessions Trial No.190 and 191 of 2010 (State Vs. Meraj and others) in Case Crime No.1173 of 2009 under Sections 307, 324/34, 504 IPC and 7 Criminal Law Amendment Act, P.S. Mohammadabad, district Mau convicting and sentencing the appellants u/s 307 IPC for a period of 7 years rigorous imprisonment and a fine of Rs.10,000/- each and in default of payment of fine, further period of 1 year each simple imprisonment and further convicted the appellant u/s 324/34 IPC for a period of 3 months simple imprisonment and fine of Rs.2,000/- and in default of payment of fine for a further period of 3 months simple imprisonment each and also u/s 4/25 Arms Act for a period of 1 year rigorous imprisonment and fine of Rs.1000/- and in default of payment of fine further period of 3 months. All the sentences will run simultaneously.

4.The prosecution story in brief is that the informant Surya Bhan Chauhan resident of Chisti Patti, Police Station Kotwali, Mohammadabad Gohna, district Mau along with his nephew Ashok Kumar and Shyamu Chauhan sons of Chandra Bhan Chauhan were having a shop of coal and bicycle repairing at Najopatti Khairabad near Sheo Temple on the roadside. On15.7.2009 from the said shop a mobile phone and Rs.3,000/- were stolen by the accused Meraj and Sohrab sons of Bahav resident of Najo Patti for which a written report was given for lodging the FIR against them on which no action was taken. In that sequence on 22.7.2009 at 11.30 a.m., accused Meraj and Sohrab sons of Bahav along with several companions came at the said shop and started abusing them and when they were asked not to do so, they started assaulting by knife on the neck of Ashok Kumar and Shyamu Chauhan who received injuries on his face and waist with an intention to kill them and due to the injuries caused by the said accused persons, the condition of the injured Ashok and Shyamu was serious. The injured Shyamu was admitted in District Hospital, Mau and Ashok who was struggling for his life was taken to district Varanasi for treatment. On hearing the noise, people of the area gathered and eye-witnesses Chandrabhan and Laxmi also reached the place of occurrence and tried to save the injured. The said accused persons fled away towards Najo Patti while displaying the knife in the air. Due to the said incident, there was fear and terror in the area and the shops started closing. He gave an application to the concerned police station for lodging the FIR. On the basis of the said application, the FIR was lodged on 22.7.2009 against accused Meraj and Sohrab which was registered as Case Crime No.1173 of 2009, u/s 307, 324 504 IPC and 7 Criminal Law Amendment Act, P.S. Mohammadabad, district Mau which was marked as Ext. Ka-2 and the same was also endorsed in the general diary of the concerned police station on the same day which was marked as Ext. Ka-3.

5.The investigation was carried out by the Investigating Officer who arrested the accused Meraj and also recovered the knife used in the crime which was marked as Ext. Ka-6. On the basis of said fard recovery of knife the case was registered against accused Meraj as Case Crime No.1174 of 2009 u/s 4/25 Arms Act and copy of the Chik was marked as Ext. Ka-4 and the same was also endorsed in general diary no.36 at 18.30 on 22.7.2009 which was marked as Ext. Ka-5. The Investigating Officer during the course of investigation made a spot inspection and prepared the site plan which was marked as Ext.Ka-7 and also prepared arrest memo which was marked as Ext.Ka-8 and Ka-9. The medical report of the injured Ashok and Shyamu was marked as Ext. Ka-10 and Ka-11 which was prepared by the doctor. The site plan of the place of occurrence was prepared which was marked as Ext.Ka-12 and Ka-14 by the Investigating Officer. The medical prescription of Singh Medical College, Varanasi was also collected which was marked as Ext.Ka-16. The statement of the witnesses were recorded under Section 161 Cr.P.C. and charge sheet was submitted against accused Meraj and Sohrab u/s 307, 324, 506 IPC and 7 Criminal Law Amendment Act and charge sheet was also submitted in the Court against accused Meraj u/s 4/25 Arms Act which was marked as Ext. Ka-13 and Ka-15.

6.The case was committed to the Court of Sessions and charges were framed against accused Meraj and Sohrab u/s 307/34, 324/34, 504 IPC and Section 7 Criminal Law Amendment Act and against accused Meraj u/s 4/25 Arms Act. The accused persons denied the prosecution case and pleaded not guilty and sought their trial.

7.The prosecution in support of it's case produced P.W.1 Suryabhan Chauhan, P.W.2 Ashok, P.W.3 Shyamu, P.W.4 Nanhakau Ram, P.W.5 S.S.I. Om Prakash, P.W.6 S.I. Munauwar Hussain, P.W.7 Dr. Yusuf Ansari, P.S.8 S.I. R.P.Singh, P.W.9 S.I. Ram Bahadur Yadav and P.W.10 Dr. T.N. Verma.

8.The accused in their defense under Section 313 Cr.P.C. had denied the prosecution case and have submitted that they were falsely implicated in the case and they were innocent and have no concerned with the incident.

9.P.W.1 Suryabhan Chauhan who is the informant of the case and uncle of the two injured has deposed before the trial court that he is having a shop in village Najo Patti of coal and bicycle repairing. The said shop is being run by him along with his nephew and real brother jointly. They are having joint family. The said shop is in Najo Patti near the Shiv temple on the roadside. Prior to 5-6 days of the incident i.e. 15.7.2009 from his shop his mobile phone and Rs.3,000/- were stolen by the accused Meraj and Sohrab for which a report was given at the concerned police station against them but the police did not take any action against them. On account of the said incident, the accused were annoyed and on 22.7.2009 at about 11.30 a.m., the accused Meraj and Sohrab along with other associates who were 3-4 in number came to his shop and started abusing him and when they were asked not to hurl abuses by the nephew of the informant Ashok and Shyamu, the accused Meraj and Sohrab both of them started inflicting knife blows with an intention to kill them on which they raised alarm and people of the area gathered and the eye-witnesses Chandrabhan and Laxmi and many others arrived who saw the incident and tried to catch the accused but they fled away showing knife in their hands in the air. Both the injured were taken to the District Hospital, Mohammadabad by eye-witnesses Chandrabhan and Laxmi and people of the area from where they were referred to District Hospital and as Ashok received serious injuries, he was referred to Varanasi and injured Shyamu was admitted in District Hospital, Mau. The injured Ashok was admitted in Singh Research Medical Centre, Varanasi. There was terror in the area and the shops were closed. P.W.1 proved the written report which was been given in the police station on the basis of which the present FIR was lodged against co-accused persons on 22.7.2009 i.e. Ext. Ka-1. The Investigating Officer has recorded the statement of the said witnesses u/s 161 Cr.P.C. and he has also shown him the place of occurrence.

10.P.W.2 Ashok who received injuries in the incident had repeated the prosecution story as has been alleged by the P.W.1 Suryabhan Chauhan and categorically stated that the knife blows were inflicted to him and his brother Shyamu by the accused Meraj and Sohrab with an intention to kill them. Seeing the incident, the uncle of the injured and other persons of the area had arrived at the place of occurrence including uncle Laxmi. The accused Meraj and Sohrab after assaulting him and his brother fled away showing the knife in the air. The uncle of the injured Suryabhan Chauhan and uncle Laxmi took them to the District Hospital on a vehicle from where injured Ashok was referred to district Varanasi where he was admitted in Singh Hospital. After he was discharged from the hospital, his statement u/s 161 Cr.P.C. was recorded by the Investigating Officer. On account of the said incident, there was tension in the area.

11.P.W.3 Shyamu, who is also an injured in the incident has repeated the prosecution case as has been deposed by P.W.1 and P.W.2 before the trial court and has stated that the accused Meraj and Sohrab inflicted knife blows on his brother Ashok on his neck and inflicted injury on his face and waist. His father Chandrabhan and uncles Laxmi and Suryabhan were also present at the place of occurrence who tried to intervene in the matter and saved them. He further deposed that at the time of incident, his clothes were blood-stained because of injuries caused to him which was produced before the trial court and was marked as item Ext. Ka-1 and Ka-3 and his brother who was wearing Baniyan which was also blood-stained due to the injury sustained by him was also produced in the Court and it was marked as item Ext. Ka-4. The witness deposed that the accused Meraj and Sohrab inflicted knife blows on him and Ashok with an intention to kill. The Investigating Officer also recorded their statements u/s 161 Cr.P.C.

12.P.W.4 Nanhakau Ram, has proved the FIR and general diary of the present case.

13.P.W.5 S.S.I. Om Prakash, has deposed that he had arrested the accused Meraj and Sohrab and recorded the statement of Meraj who has stated that he can get the knife which was used in the crime recover which was recovered at his pointing out, from Khair Bazar who stated that with the said knife, he has assaulted the injured Ashok and Shyamu. On the recovery of knife, the said Investigating Officer has lodged FIR u/s 4/25 Arms Act against accused appellant Meraj and also prepared site plan of the place from where the knife was recovered. He made an endorsement in the case diary about the treatment of injured Ashok being done in the district Varanasi. P.W.5 had made deposition before the trial court regarding recovery of knife at the pointing out of accused Meraj before the trial court.

14.P.W.6 S.I. Munauwar Hussain, also proved the recovery of knife made at the pointing out of accused Meraj who has accompanied them with P.W.5.

15.P.W.7 Dr. Yusuf Ansari, has deposed before the trial court that on 27.7.2009, he had examined the injured Ashok on 12.25 in the noon and found the following injuries on his person:-

1- dVk gqvk ?kko 13 lseh x 2-5 lseh x ekal rd xgjk o jDr okguh ,DlijsM o jDr lzko gks jgk FkkA ck;h rjQ xnZu ij VªkUlolZ Iys'k fLFkfr esa Fkh tks lqijk Lrjuyu;k ls 5 lseh mij Fkh ftlds fdukjs Dyhu dVs FksA

2- dVk gqvk ?kko 13 lseh x -25 lseh tks peMh rd xgjk tks yEcor Fkk cka;h rjQ xnZu ij [kwu fudy jgk FkkA

3- dVk gqvk ?kko 1-5 lseh x .25 lseh peMh rd xgj Fkk] Nkrh ij ftQh Lrjuy ds ikl FkkA

4- dVk gqvk ?kko 5 lseh x 1 lseh x ekal rd xgjk nkfgus rjQ HkkSag ds e/; ls 6 lseh mij FkhA

P.W.7 deposed that the injury no.1 was found to be grievous in nature and rest injuries were found to be simple in nature and caused by sharp edged weapon and the injuries were fresh. The injury no.1 was kept under observation, hence the said injury report of the injured was proved by P.W.7. P.W.7 further deposed that on the same day at 12.45 p.m. he also examined the injured Shyamu and found following injuries on his person:-

1- dVk gqvk ?kko 2 lseh x 5 lseh ekal rd xgjk cka;h rjQ psgjs ij 1 lseh vka[k ds nkfgus fgLls ls 1 lseh uhps FkkA

2- dVk gqvk ?kko 24 lseh x Ms< lseh ekal rd xgjk ihB ds fupys fgLls es nksuks pwrM ls 3 lseh ls 4 lseh mij Fkh tks {kSfrt fLFkfr esa FkhA pksV ds fdukjs lkQ dVs gq, FksA

The said witnesses stated that both the injuries were found to be simple in nature which was caused by sharp-edged weapon and proved the injury report of the said injured. He further stated before the trial court that all the four injuries which were caused to injured Ashok were incised wound out of which two injuries were found on his neck and one injury was found on his chest and other injury were on above right eyebrow.

16.P.W.8 S.I. R.P.Singh who is the Investigating Officer of the case has stated before the trial court that he recorded the statement of injured Ashok and Shyamu and he has also visited the spot from where the recovery of knife was made at the pointing out of accused Meraj. He has submitted charge sheet against the accused persons.

17.P.W.9 S.I. Ram Bahadur is the Investigating Officer of the recovery of knife made at the pointing out of accused Meraj and he has prepared the site plan of the place from where the knife was recovered and submitted charge sheet u/s 4/25 Arms Act against him and has proved the same.

18.P.W.10 Dr. T.N. Verma, is the surgeon had examined the injured Ashok in Singh Medical Research Centre at Varanasi and his neck was found to be cut and operated the thyroid cartilage and membrane was damaged and repaired by stitching it.

19.Learned counsel for the appellants tried to dislodge the prosecution case but could not point out any infirmity in the evidence of the two injured witnesses or other prosecution witnesses in order to to show that the conviction of the appellants is against the evidence on record and the judgment and order convicting the appellant be set aside.

20.Learned counsel for the appellants lastly submits that the appellants are two real brothers and the maximum sentence awarded to them by the trial court under Section 307 IPC is seven years rigorous imprisonment out of which they have already served out six years in jail as they are in jail since 27.7.2009. Hence the rest of the sentence of the appellants be converted into fine and the same shall not be treated as an enhancement of sentence.

21.From the perusal of the record and the evidence of the injured and other prosecution witnesses, it is apparent that the incident has taken place in a broad day-light at 11.30 a.m. and the accused appellants who are real brothers with previous animosity with the informant and his nephew with respect to the incident which has taken place on 15.7.2009 had come to their shop and started abusing them and when they were stopped by the two injured for not abusing their uncle who is the informant of the case, the accused Meraj and Sohrab started inflicting knife blows on them in which the injured Ashok and Shyamu received injuries of knife. The injuries which were sustained by the injured Ashok particularly injury no.1 was found to be grievous in nature and he was operated for the same as is evident from the statement of P.W.10 Dr. T.N. Verma who had operated the injury no.1 and stitched the same which shows that his neck was cut and the injury no.1 was dangerous to life.

22.The evidence of injured P.W.2 Ashok and his real brother P.W.3 Shyamu who is also an injured in the incident goes to show that it were the appellants who have caused injuries to them by knife which is used for cutting goat and the dimension of the injuries suffered by injured Ashok shows that it was not an ordinary knife. From the said evidence the participation of the appellants in the incident cannot be ruled out. Moreover the statement of the injured is also corroborated by their medical report as has been stated by Dr. Yusuf Ansari, P.W.7 and Dr. T.N. Verma, P.W.10 coupled with the fact that the recovery of knife which was used in the crime has also been recovered at the pointing out of the appellant Meraj which shows further evidence against him u/s 27 of the Evidence Act. Thus the prosecution has proved it's case beyond reasonable doubt against the appellants hence the conviction and sentence of the appellants as awarded by the trial court is hereby upheld.

23.Considering the facts and circumstances of the case and last submission of learned counsel for the appellants that the appellants have already served out six years imprisonment out of maximum sentence awarded to them by the trial court i.e. 7 years imprisonment, it is directed that rest of the sentence of the appellants converted into fine of Rs.20,000/- each, which shall be deposited by the aforesaid appellants namely Meraj and Soharab in the Court of C.J.M. Mau and they shall be released forthwith if not wanted in any other case. Out of the fine so deposited amount of Rs.25,000/- shall be paid to injured Ashok and Rs.10,000/- shall be paid to injured Shyamu, if alive or to their legal heirs in equal proportion, if any and Rs.5,000/- shall go to the State. If the fine as directed above is not deposited by the appellants, they shall serve out the sentence, as ordered by the trial Court.

24.In view of the above, the appeal is partly allowed.

25.Office is directed to send a certified copy of this order to CJM, Mau for its compliance.

01.07.2015

Gaurav