Delhi High Court
Haji Mohd. Bashir @ Mohd. Yusuf & ... vs State & Anr. on 24 April, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. A. No.452/2012
Date of Decision: 24.04.2012
HAJI MOHD. BASHIR @ MOHD. YUSUF & ANR.
...... Appellants
Through: Mr. S.S. Hora, with Mr. Z.
Ahmad, Advocates.
Versus
STATE & ANR. ...... Respondents
Through: Ms. Fizani Husain, APP for the
State.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. The present appeal has been preferred under Section 374 Cr.P.C.
and Section 11 (2) of Probation of Offenders Act, read with Section
482 Cr.P.C., assailing the judgment of conviction dated 27.03.2012
and order of sentence dated 28.03.2012, wherein the two appellants
were convicted under Section 323/34 IPC and were given the
benefit of probation for a period of one year, and were further
ordered to pay a compensation of Rs. 15,000/- each to the
complainant.
2. An FIR No. 345/07 under Section 307/34 IPC was registered at P.S.
Hauz Qazi on 06.09.2007 on the complaint of Mohd. Aslam who
was found injured by Ct. Mukesh and S.I. Birsa Oraon while they
were on patrolling duty. He was removed to JPN Hospital where
vide MLC he was found suffering lacerated wound on his chest,
back, abdomen and head. In the statement recorded by the SI it was
mentioned by the complainant that his brother-in-law Shakeel was
married to the daughter of Bashir (appellant /accused no.1) but the
marriage ended in divorce and Bashir and his sons blamed him for
the divorce and he had been beaten up by them on previous
occasions as well. He stated that while he was coming to his house
at around 11 pm on the intervening night of 05.09.2007, he was
apprehended by the appellants and his hands were held by appellant
no. 1 and was attacked by a knife by appellant no. 2 and they fled
away from the spot. After conclusion of evidence, the charge sheet
was filed under Section 307/34, but on the consideration of material
on record, the appellants were convicted under Section 323/34 IPC.
Hence the present petition.
3. The sum and substance of the arguments advanced by the counsel
for the appellants is that the impugned judgment suffers from
illegality as the ld. Trial Court has based its opinion on the basis of
the testimony of the complainant and his associates who are
interested witness, while ignoring the contradictions in their
testimonies. It has been further stated that the ld. Trial Court has
ignored the fact that the statement of the complainant was recorded
after five minutes of receiving the medical treatment which is not
plausible and it shows that the police has actively connived with the
complainant in falsely implicating the appellants as the complainant
is a police informer. It has been further stated that no recovery of
alleged weapon used in the attack has been effected by the police
and this fact casts shadow on the prosecution story. Lastly, it has
been stated by the counsel for the appellants that the appellant no.1
is incapable of assaulting the complainant as his three fingers of the
right hand had been chopped three months prior to the alleged
attack and hence he has been falsely implicated by the complainant
and the impugned judgment is liable to be set aside in the light of
above mentioned facts.
4. Per contra, the learned counsel for the State has submitted that the
judgment of conviction is based on credible testimonies and there
was no reason for which the police would falsely implicate the
appellants and there is no ground for interfering in the judgment of
the trial Court.
5. I have heard the rival submissions and perused the record.
6. From the perusal of the statements of the witnesses on record, it is
evident that the complainant in his testimony given before the
Court has established the identity of the appellants and has narrated
the incident in the same manner as he had deposed before the
police. There was no contradiction in his testimony before the
Court that would indicate that he had been tutored by the police or
had made any improvement in his statement to falsely implicate the
appellants. His deposition was also corroborated by PW-5 Mohd.
Yasin who saw the appellants assaulting the complainant. The
testimonies of the witnesses inspire confidence of the Court and
there is no reason to disbelieve them even if they had missed a
word here or there as is natural for a human being deposing after
three years of the incident. No material contradiction or
discrepancy in their testimonies could be pointed out by the learned
counsel for appellants. A few contradictions on which emphasis
was sought to be laid are very trivial and in fact very natural after a
lapse of three years. The oral testimonies of the witnesses which is
found to be cogent, reliable and trustworthy have to be accepted if
the discrepancies are negligible in nature. Hence, I find no force in
the contention of the counsel for the appellants that the complainant
and others are interested witness and so unreliable.
7. Coming to the submission of the counsel for the appellants that it is
not possible that the complainant would be in the position to give
statement to the police after few minutes of being treated in the
hospital, it must be noted that the injuries suffered by the
complainant were simple in nature and there is nothing that can be
read much into this plea. In any case, this argument rather goes
against the appellants to prove that the complainant did suffer
injuries.
8. Also, the non recovery of the weapon of offence does not vitiate the
reliable deposition of the complainant when it is further
corroborated by another eye witness and medical records. The
inability to recover weapon or lapse on the part of investigating
agency cannot be made a ground to discard the otherwise sound
prosecution case. Refer Sachdevan vs. State AIR 2002 SC 215.
9. The contention of the counsel for the appellant that the appellant
no.1 was not capable of assaulting the complainant as he had lost
three fingers of his right hand, is untenable as there is nothing on
record to prove that he could not make use of his left hand and
further it was stated by the complainant that the appellant no.1
caught hold of his hands and it was appellant no.2 that attacked him
with a knife.
10. In view of the above discussion, I find no illegality or perversity
in the impugned judgment and order on sentence and the same is
upheld. The appeal being without any merit is hereby dismissed in
limini.
M.L. MEHTA, J.
APRIL 24, 2012
akb
