Idrish v. State of U.P. (now Uttarakhand)

and perused the lower court record.

Prosecution Story in brief is that on

01.12.1995, at about 7:15 p.m., P.W. 1 Ashad Ali alongwith his brother Akram Ali @ Guddu (deceased) was going towards his house. When he reached in Line No. 17 near Hotel Badshah (Haldwani), accused/appellants Idrish and Rais were standing there, and Akram Ali @ Guddu demanded outstanding money from accused Idrish. On this, the two accused started hurling abuses at deceased. This raised tempers of the two sides, and accused Idrish took out knife and accused Rais took out GUPTI (a kind of sharp edged weapon), and both of them assaulted Akram Ali @ Guddu with the sharp edged weapons. Meanwhile, on hearing noise, P.W. 2 Mohd. Haseen, and P.W. 3 Mazid Khan and some others came at the spot. There was electric light on the road where the incident took place. 3 On seeing the witnesses coming, both the accused ran away. The injured Akram Ali @ Guddu was taken to hospital, but on his way to hospital he succumbed to the injuries. A First Information Report (Ex. A1) was got lodged by P.W.1 Ashad Ali on the very day (01.12.1995) at about 8:30 p.m. (within one and half hours of the incident) at Police Station Haldwani, on the basis of which crime no. 1407 of 1995, was registered relating to offence punishable under section 302 IPC against the two accused namely Idrish and Rais. Investigation was taken up by P.W.6 Inspector Dilip Kumar Mittal who took the dead body of Akram Ali @ Guddu in his possession and prepared inquest report (Ex.A7) before midnight. He also got prepared Police Form no. 13 (Ex. A8), sketch of the dead body (Ex. A9), sample seal (Ex. A10) and letter to Chief Medical Officer (Ex. A11) requesting for post mortem examination. P.W.4 Dr. Chandra Shekhar conducted post-mortem examination on the dead body of Akram @ Guddu on 02.12.1995, and prepared autopsy report (Ex. A4). He recorded seven ante mortem injuries including 4 three incised wounds in his report, and opined that deceased had died of shock and haemorrhage due to ante mortem injuries. Meanwhile, investigation was taken over by P.W. 7 Inspector Navrang Singh who interrogated the witnesses, and arrested the accused and made recovery of knife and GUPTI (sharp edged weapon) said to have been used in the crime. After completion of investigation, charge sheet (Ex. A18) was filed against both the accused Idrish and Rais for their trial in respect of offence punishable under section 302 IPC.

The Chief Judicial Magistrate, Nainital, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of sessions for trial. Learned Additional Sessions Judge, Nainital, on 29.04.1997, after hearing the parties framed charge of offence punishable under section 302 r/w section 34 IPC, against each of the accused/appellants Idrish and Rais to which they pleaded not guilty and claimed to be tried. On this, prosecution got 5 examined P.W.1 Ashad Ali (complainant and eye witness), P.W. 2 Mohd. Haseen (another eye witness), P.W. 3 Mazid Khan (eye witness and also witness of recovery of knife made on pointing out of Rais), P.W.4 Dr. Chandra Shekhar (the medical officer who conducted post mortem examination), P.W. 5 Mohd. Shahid (the witness of recovery of GUPTI made on pointing of accused Idrish),P.W. 6 Inspector Dilip Kumar Mittal (who got prepared inquest report and other necessary papers), P.W. 7 Navrang Singh (who interrogated the witnesses, prepared site plan and made necessary recoveries) and P.W. 8 Head Constable Rampal Singh (who made necessary entries in the General Diary relating to the crime). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which both the accused pleaded that evidence adduced against them was false. However, no evidence in defence was adduced. After hearing the parties, the trial court found both the accused guilty of charge of offence punishable under section 304(II) IPC, and after hearing on sentence, sentenced each one of them 6 to rigorous imprisonment for a period of seven years. Aggrieved by said judgment and order dated 06.03.1999, passed by Special Judge (CBI)/Additional Sessions Judge, Nainital, in Sessions Trial No. 164 of 1996, this appeal was filed by the convicts before Allahabad High Court from where it is received by transfer under section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000), for its disposal.

Before further discussion this Court thinks it just and proper to mention the ante mortem injuries mentioned in the autopsy report (Ex. A4) recorded by P.W. 4 Dr. Chandra Shekhar on 02.12.1995, after post mortem examination on dead body of Akram Ali @ Guddu. The same are being reproduced below:- (i) An incised wound 2.3cm X 1cmX cavity deep present transversely on the right upper abdomen 15cm below and medial to right nipple 12cm above the umblicus. (ii) An abraded contusion 2cm X 2cm right side of the face below right eye. (iii) An incised wound 2.4cmX 1cmX 7 cavity deep present obliquely on the left lateral aspect of chest in the anterior axillary line. (iv) Abraded contusion 1cm X .5 cm over left shoulder 6cm above from the left shoulder joint. (V) Incised wound 1.8cm X 1.2cmX cavity deep on the right side of the back. 8cm from the midline (5th column). (vi) Lacerated wound of lower part of right side of chest on the lateral aspect12cm X 1cmX muscle deep situated in the posterior axillary line. (vii) Abraded contusion 2cm X 2cm present on the upper right leg. P.W. 2 Dr. Chandra Shekhar has opined in the autopsy report that deceased had died of shock and haemorrhage due to ante mortem injuries. The medical report clearly establishes that Akram Ali @ Guddu died on account of culpable homicide. Now this Court has to see whether accused/appellants Idrish and Rais have killed Akram @ Guddu as suggested by 8 prosecution or not.

P.W. 1 Ashad Ali has stated on oath that on 01.12.1995, at about 7:15 p.m., he alongwith his brother Akram was passing through Line No. 17, and when he reached near house of Haji Ji accused/appellants Idrish and Rais were found standing there. On this, according to this witness Akram Ali @ Guddu asked for the outstanding dues from accused Idrish. This enraged accused/appellants Idrish and Rais who started hurling abuses, and in the quarrel accused Idrish armed with knife and accused Rais armed with GUPTI inflicted blows with said weapons on the person of the Akram @ Guddu. P.W. 1 Ashad Ali has further stated that meanwhile Haseen (P.W. 2) Samil and others had also reached at the spot. The witness has further narrated that there was a sodium light at the place of the incident. The witness has further told that on seeing witnesses, accused ran away towards east. P.W. 1 Ashad Ali further told that he immediately took his injured brother to Soban Singh Jeena Base Hospital but in the way injured succumbed to 9 the injuries. Lastly, the witness has proved FIR (Ex. A1) lodged by him immediately after the incident. He has been subjected to lengthy cross- examination but nothing has come out which creates doubt in his testimony.

The statement of P.W. 1 Ashad Ali gets fully corroborated not only from the medical evidence but also from the statement of P.W. 2 Mohd. Haseen (another eye witness) who also reached at the spot and witnessed the incident. For brevity narration made by him is not being reproduced here. Not only this, P.W. 3 Mazid Khan is yet another eye witness who saw the incident and corroborated it as narrated by P.W. 1 Ashad Ali. This witness has further proved as to how the recovery of GUPTI (Ex.1) was recovered on pointing out of accused Rais. This witness has also proved recovery memo (Ex. A2) prepared by the police on 29.12.1995. P.W.5 Mohd. Shahid has proved the recovery of knife made on pointing out of accused Idrish after his arrest on 23.12.1995. The recovery memo dated

23.12.1995 (Ex. A6) is proved by this witness. 10

Apart from the oral evidence of the three eye witnesses and corroborating medical evidence on record, there is report of Forensic Science Laboratory (Ex. A19) which shows that the soil taken from the spot, and knife and GUPTI recovered on pointing out of the accused contained human blood.

In the above circumstances, reappreciation of the evidence, this Court finds that the trial court has rightly held that prosecution has successfully proved charge of offence punishable under section 304 (II) IPC i.e., culpable homicide not amounting to murder as the two accused have killed the deceased after a sudden fight with him.

Learned counsel for the appellants drew attention of this Court to the cases of Mohammad @ Biliya vs. State of Rajasthan, 2001 SCC (Cri) 1497, Bhojappa Hanamanthappa Choudannavar vs. State of Karnataka, 2004 SCC (cri) 1783 and State of Rajasthan vs. Mohan Lal and others (2012) 4SCC 564, and pleaded that the 11 sentence awarded by the trial court be reduced to the period already undergone.

However, considering the facts and circumstances of the case, and further considering the duration for which the trial and appeal remained pending, this Court is of the view that the sentence can be reduced to a period of five years rigorous imprisonment.

Accordingly, the appeal is dismissed on the point of conviction. However, on the point of sentence the appeal is partly allowed and the sentence of imprisonment of seven years awarded by the trial court to each of the appellants is reduced to period of five years. The appellants are on bail. Their bail is cancelled. Lower court record be sent back to make the appellants Idrish and Rais to serve out the remaining part of the sentence as modified by this Court. Parul (Prafulla C. Pant, J.)

29.08.2012