Nazar Khan vs State Of U.P.
2018 Latest Caselaw 705 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

		                                                                 A.F.R.		
 
Court No. - 60							Reserved
 

 
Case :- CRIMINAL APPEAL No. - 6354 of 2009
 
Appellant :- Nazar Khan
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.B. Singh,Ms. Rinki Gupta Ac,S P Giri,Sanjay Kumar Dwivedi
 
Counsel for Respondent :- Govt. Advocate,R.P.Upadhyay
 

 
		
 
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Hon'ble Ravindra Nath Kakkar,J.

This criminal appeal has been preferred against the judgment and order dated 12.10.2009 passed by Session Judge (Fast Track Court No.2), District Mathura in S.T. Nos.138 and 139 of 2009, under Sections 307, 452 I.P.C. and 4/25 Arms Act, Police Station Raya, District Mathura, by which the appellant was convicted and sentenced for 10 years under Section 307 I.P.C. with a fine of Rs.5000/- and in default of payment of fine to undergo additional simple imprisonment for one year; further to undergo simple imprisonment for three years with a fine of Rs.1000/- under Section 452 I.P.C. and in default of payment of fine to undergo additional simple imprisonment for six months. He was further sentenced to R.I. for one year under Section 4/25 of Arms Act with a fine of Rs.1,000/- and in default of payment of fine to undergo additional simple imprisonment for three months. All the sentences were ordered to run concurrently.

Prosecution story, in brief, is that complainant Smt. Shabana Parveen @ Bobby who is widow lodged a written report at Police Station Raya, District Mathura stating therein that accused Nazar son of Akaldaraz, who is a miscreant, and was detained in jail, had been writing letters to complainant from jail for forced marriage (Nikah) and after release from jail he continued to torture the complainant. On 24.10.2008 at about 9.30 a.m. when complainant along with her niece were in her beauty parlor shop situated at Katra market, Raya, accused Nazar armed with knife and his companion armed with country made pistol entered into the shop and forcibly attempted to abduct her on which Afsana made noise and attempted to save her. At this point accused with intention to kill Afsana made repeated blows with knife and the co-accused with the butt of country made pistol assaulted her. Several persons along with his brother Fazalurahman, arrived at the spot, witnessed the incident. Anyhow she was saved from the accused.

Medical examination of Km. Afsana was conducted on 24.10.2008 in District Hospital, Mathura. Investigating Officer recorded the statement of the witnesses ,inspected the spot and after completion of investigation charge sheet under Sections 323, 324, 307, 506 I.P.C., 7 Criminal Law Amendment Act and under Section 4/25 Arms Act was submitted against the appellant. The appellant denied the charges and claimed trial. Both sessions trial being of the same incident were connected and a common judgment was delivered by convicting and sentencing the accused appellant as aforesaid.

In support of the case prosecution examined P.W.1 Shabana Parveen @ Bobby, P.W.2 Km. Afsana (niece of the complainant and victim), eye witness Wahid Khan P.W.3 as fact witnesses, Dr. Abhitabh Pandey - P.W.4. Constable Virendra Singh P.W.5, Constable Roop Singh -P.W.6, S.I. Rajendra Singh- P.W.7, and Constable Rajveer Singh - P.W.8.

Dr. Abhitabh Pandey - P.W.4, who conducted the medico legal and proved the medical report, found following injuries on the body of victim Afsana :-

1. Incised wound, 1.5 x .5 cm x bone deep on right temple.

2. Lacerated wound, 1 x 1.5 cm, and 1:00 cm below the injury no. 1 at 2.5 cm from the right ear.

3. Incised wound, 3:00 cm x 0.3 cm x muscle deep up to the corner of right eye, in which heeling was present at backside.

4. Incised wound, 1.5 x 0.3 cm x bone deep on the left side of nose, X-ray was advised.

5. Lacerated wound 1 cm x 0.5 cm x muscle deep at the corner of left jaw below the ear.

6. Abrasion with redness, 3 cm long on the left cheek up to the injury no. 5.

7. Lacerated wound 0.5 cm x 0.5 cm on the middle of upper lip in left side.

8. Lacerated wound 1 x, 0.5 cm on the right corner of the mouth towards the lower lip.

9. Incised wound 1 cm x 0.3 cm on the middle of tongue.

10. Lacerated wound 2.1 cm x muscle deep at the outer aspect of the left left elbow.

11. Lacerated wound 2.1 cm x muscle deep downwards the upper arm at front.

12. Lacerated wound 0.7 cm x 0.5 cm x bone deep on the left hand at 2 cm upward from the left index finger.

13. Lacerated wound 1 cm x 0.3 cm at the front side of the abdomen at 7 cm from umbilicus at 11 O'clock position which was not probed. We had advised for X-ray.

Dr. Abhitabh Pandey has proved the injury report Ex.Ka-3. Police witnesses, namely, P.W.5 Constable Virendra Singh proved chik FIR Ex.Ka-4 under Sections 323, 324, 307, 504, 506 I.P.C. and 7 Criminal Law Amendment Act and its relevant G.D. entry Ex.Ka-5 is available on record.

Constable Roop Singh - P.W.6 proved chik FIR on the basis of the fard recovery under Section 4/25 Arms Act against the accused Nazar which is Ex.Ka-6 and its relevant entry is Ex.Ka-7 available on record.

Investigating Officer S.I. Rajendra Singh- P.W.7 proved the site plan Ex.Ka-8 and proved the fard of the clothes which were worn by the victim at the time of incident. Fard is Ex.Ka-9 and the material exhibit is Ka-2. This witness has also proved the fact that he took the statement of accused Nazar from jail on 14.11.2008. Thereafter the accused has been taken on police remand from jail and the weapon of assault, i.e. knife has been recovered from the pond on 19.11.2008. The recovered knife was blood stained and its fard is Ex.Ka-10 and the recovered knife used in assault is Ex.5. Site plan of the place of recovery of knife is Ex.Ka-4 and its charge sheet is Ex.Ka-12. It is also stated that recovered knife along with clothes and simple and blood stain earth was sent to FSL.

Constable Rajveer Singh examined as P.W.8 who proved site plan Ex.Ka-13 and charge sheet under Section 4/25 Arms Act as Ex.Ka-14.

After close of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. Accused took the defence that the brother of Sabhana Parveen, Abdul Rahman @ Pappu having a criminal history, was inimical to the accused and on this enmity accused has been falsely implicated in this case. In support of the defence D.W.1 Sabir was examined.

After hearing both the parties the accused appellant was convicted and sentenced as discussed aforesaid.

I have heard Ms. Rinki Gupta, amicus curiae for the appellant and Shri Rajeev Mishra, learned A.G.A. for the State.

Learned amicus curiae appearing for appellant made submission that impugned judgment of conviction and sentence is against the weight of evidence which is bad in the eye of law. Learned Sessions Judge has misread and misinterpreted the evidence available on record. There is no direct evidence against the appellant. It is further contended that the FIR itself is under cloud of suspicion; there is no motive for the alleged incident and the prosecution story is highly doubtful. It is lastly contended that appellant has been falsely implicated due to enmity and the sentence is too severe.

Per contra, learned A.G.A. has supported the impugned judgment of conviction and order and made submission that the impugned judgment is well reasoned. Neither there is any infirmity nor any illegality in passing the impugned judgment of conviction. He further contended that there is no delay in lodging the FIR. It is a day light incident. Motive and cause of action was explained and proved by the prosecution by tendering evidence of the fact witnesses. The accused appellant has caused as many as 13 injuries by repeated blows of the knife on the body of victim. There is no merit at all and therefore the argument of the learned amicus curiae appearing for the appellant deserves to be dismissed.

I have considered the submissions raised by both the parties and perused the evidence available on record.

It transpires from the record that accused appellant wanted forcibly Nikah with the victim Shabana Parveen @ Bobby who happens to be widow and is a mother of two children. The accused was detained in jail for a long period and from jail he used to write letters to Shabana Parveen for forcibly Nikah with him. After release from jail he used to torture her. The letters have been annexed by the prosecution and proved by the victim Shabana Parveen. The victim Shabana Parveen- P.W.1 in her statement before the trial court has specifically and categorically stated that on 24.10.2008 at about 9.30 a.m. morning when she alongwith her niece Afsana opened beauty parlor shop, at that point of time accused armed with knife with a companion having a country made pistol in his hand entered her shop and forcibly gagged Shabana Parveen. At that point of time her niece Afsana made noise and tried to save her; on this accused Nazar with an intention to kill her niece Afsana made repeatedly blows knife on her and his companion also with the butt of country made pistol assaulted her. On noise being made several persons including Fazalurahman reached on the spot. Shabana Parveen had written report on the basis of which FIR was lodged and before it medical examination of her niece Afsana was conducted on 24.10.2008 at about 12.10 p.m.

P.W.2 injured victim Afsana was examined before the court below in which she has specifically and categorically supported the allegations alleged in the FIR and corroborated the testimony of P.W.1 Shabana Parveen. P.W.3 Wahid Khan also corroborated the oral testimony of the victim P.W.2 Afsana and P.W.1 Shabana Parveen and further in his statement this witness has proved Ex.Ka-2 Fard which refers to the clothes on which there were blood stain of the injured victim. Further the injuries on the body of the victim was proved by P.W.4 Dr. Abhitabh Pandey. He has stated that he found as many as 13 injuries on the body of victim Afsana at the time of medical examination in which there were five incised wounds and rest were lacerated wounds. The injuries sustained by the victim is an indicative of fact that there was an intentional repeated blows by a sharp edged weapon knife as well as some of the injuries were caused by the blunt object, i.e. butt of country made pistol. This witness has specifically stated that due to excessive bleeding these injuries could be sufficient to cause death of the victim. In this way I find that the medical evidence is in support of the oral testimony and as the incident is of day time this could not be a case of misidentity of the accused persons.

Learned amicus curiae appearing on behalf of appellant has stated that there is delay in FIR. On this point I find that injured Km. Afasana was examined on 24.10.2008 at about 12.10 p.m. in district hospital and there was a majroobi chithi from the concerned police station which was brought by the Home Guard Shiv Charan. This fact itself indicates that prior to sending victim for medical examination along with the letter is an indicative of fact that it is too natural that written report has been given to Police Station and there is no doubt that FIR was registered on 24.10.2008 at about 17.45 p.m. Under these fact situation the argument raised by the learned amicus curiae that there is delay in FIR has got no substance. On this point it is relevant to mention that there is catena of decisions of Apex Court and High Courts. Law on this point is that the delay in FIR is itself not always fatal to the prosecution if the delay is satisfactory and plausibly explained. In this case I find that the written report was given to the police station before the medical examination of the injured victim as chithi majroobi was sent to the hospital through home guard. So I find there is no substance in the argument of learned amicus curaie that there is delay in FIR in this case.

The next point which has been argued by the learned amicus curiae is with regard to the motive of the incident. It is pertinent to mention here that the letters sent by the accused to the complainant Shabana Parveen @ Bobby from jail asking her for solemnizing forcibly Nikah and after release from jail, as per allegations made in the FIR, assaulted her niece Km. Afsana on resistance being offered by her when the accused came and tried to forcibly abduct Shabana Parveen from her beauty parlor shop. The aforesaid facts have been cogently and credibly established the motive as asserted by the prosecution in this case. On this point also it is relevant to mention that this is a day light incident and assault was made by the accused by a sharp edged weapon, i.e. knife and injuries proved in this case are supporting the prosecution version as well as there are as many as 13 injuries in which five have been caused by sharp edged weapon. Since it is a repeated blows on the body of victim, the same is indicative of intention of the author of crime. Accused has been named in the FIR. Date, time, place of incident, manner and mode of assault have been specifically and categorically supported by the fact witnesses as also corroborated by the medical evidence and as per established legal proposition regarding prompt FIR supported by the medical evidence ensures the correctness and truthfulness of the prosecution story. On this point in the case of Dharnidhar Vs. State of U.P. 2010 (6) SCJ Page 662, Hon'ble Apex Court held that "it will not be correct to say as an absolute proposition of law, that the existence of a strong or definite motive is a sine qua non to holding an accused guilty of a criminal offence."

Further in the case of State of U.P. Vs. Krishna Master and others, 2010 (6) ACJ page 232, Hon'ble Apex Court has held that "it is well settled that the prosecution is not supposed to prove motive when prosecution relies on direct evidence, i.e., evidence of eye- witnesses."

In Munish Bhaver Vs. State of Haryana (2012) 10 SCC Page 464, Hon'ble Apex Court held that "if there is an indication of proper and necessary motive then presumption against accused is established."

Further in Sanaullah Khan Vs. State of Bihar (2013) ACC Page 302, Hon'ble Apex Court held that "proof of motive cannot be basis to disbelieve the prosecution case."

On the basis of above legal proposition, the argument of the learned amicus curaie on motive found to be not tenable as prosecution case has direct and ocular testimony which is supported by the medical evidence found to be trustworthy

Further to add that apart from ocular testimony including the injuries of the victim and the medical evidence, there is physical evidence in the form of clothes which were worn by the victim at the time of incident having cut mark and stained with blood. The recovery of weapon, used in the incident i.e. knife having blood stained, was recovered on the disclosure statement of the accused appellant is sufficient to prove the guilt of the accused in this case. His presence, involvement and complicity in commission of crime is proved by credible, cogent and clinching evidence of the prosecution.

The last argument raised by learned amicus curiae that independent witness of the vicinity has not been produced by the prosecution has no relevance because I have already stated that it is a day time incident. There is direct evidence of victim injured Km. Afsana. Non production of independent witness has no relevance at all under the fact situation as stated above.

In view of the aforesaid reason I find that there is neither any illegality nor infirmity or perversity in passing the impugned judgment of conviction and order of sentence against the accused appellant. So far as the sentence order is concerned, the maximum sentence awarded by the trial court is of 10 years and for other sections it is below 10 years and the sentences were ordered to run concurrently.

Learned A.G.A. brought this fact before the court that the Senior Superintendent, District Jail, Mathura on 15.4.2018 has reported that the accused has been released from jail on 3.8.2016 after completion of sentence including depositing of fine as awarded by the court below.

For the aforesaid reasons, the findings of conviction and order of sentence recorded by the trial court against the accused appellant is hereby confirmed and maintained. The appeal is accordingly dismissed. The appellant need not surrender before the court below.

Let a certified copy of the judgment along with original record be transmitted to the court concerned/jail authorities for compliance, if any.

I appreciate the assistance of Ms. Rinki Gupta, learned amicus curiae, who has appeared and argued on behalf of appellant. Registry is directed to pay fees to Ms. Rinki Gupta, amicus curiae, as per rules at the earliest.

Order Date :- 21.05.2018

Anand/-