Allahabad High CourtSabir And Others vs State Of U.P. on 27 January, 2021Bench: Raj Beer SinghHIGH COURT OF JUDICATURE AT ALLAHABAD\n \n \n\n					   Reserved on   : 	23.11.2020	                         		 			   Delivered on   : 	27.01.2021\n \n\n \nCRIMINAL APPEAL No. 1430 of 1982\n \n\n \n1. Sabir                                                                   \n \n 2. Rizwan @ Babu                                                  \n \n 3. Rafiq                                                                   \n \n   4. Shafiq                                          -------Appellants\n \nVs\n \n      State of Uttar Pradesh		 -------Respondent\n \n_______________________________________________________\n \nFor Appellant	                      :  Sri Ajay Kumar Pandey, Amicus Curiae\n \nFor Respondent/State	:  Sri Amit Kumar Singh, AGA	 _______________________________________________________\n \n\n \nHon'ble Raj Beer Singh, J.1.	This criminal appeal has been preferred against the judgment and order dated 22.05.1982 passed by the  IInd Additional Sessions Judge, Shahjahanpur in Session Trial No. 107 of 1981, underSection 307/34IPC, Police Station Tilhar, District Shahjahanpur, whereby accused appellants Sabir, Rizwan @ Babu, Rafiq and Shafiq have been convicted underSections 325/34and323/34IPC.  They were sentenced to two years rigorous imprisonment along with fine of Rs. 500/- underSection 325/34IPC and six months rigorous imprisonment underSection 323/34IPC. Both the sentences were directed to run concurrently.2.	During pendency of this appeal, appellant no.1 Sabir has passed away and thus, proceedings against him were abated. Now this appeal confined only in respect of appellant Nos. 2, 3 and 4, namely, Rizwan @ Babu, Rafiq and Shafiq.3.	Heard Sri Ajay Pandey, learned Amicus Curiae for the appellants  and  learned A.G.A. for the State and perused the record.4.	Prosecution version is that about two years prior to the incident accused-appellant Sabir and Babu and others have assaulted Salamatullah and one Khurshid Begum and in that case accused-appellant Babu and Sabir and their father Zahur were convicted by the court. The incident of present case took place on 07.05.1978. It is alleged that at about 11:00 PM at village Mauzampur, while informant's father-in-law Salamatullah was sitting at the wood stall, all the four accused persons came there and stating that he has got convicted Zahur Khan, who is father of appellant Sabir and Rizwan @ Babu, in the said case, all the four accused persons started assaulting Salamatullah with hockey and lathis. When the informant Sabir s/o Shakrullah and his brother-in-law Akhtar ran to save him, they were also assaulted with lathis and hockey. Resultantly, informant/PW-4 Sabir, his father-in-law Salamtulla (PW 1) and his brother-in-law Akhtar sustained injuries. They were referred for medical examination.5.	As per medical examination report Exhibit Ka-10, injured Sabir (PW 4) has sustained following injuries.i. Lacerated wound of the size of 3 cm x ¾ cm x bone deep on right side of parietal region of skull 7 ½  cm above right ear.ii. Abrasion of the size of 4 cm x ½ cm on left scapula.iii. Abrasion of the size of 2 cm x ¼ cm on right scapula.iv. contusion of the size of 10 cm x 2 ½ cm on right side of back below right scapula.v. complaint of pain6. 	As per medical examination report Exhibit Ka-9, PW 1 Salamatullah has sustained following injuries.i. Contusion of the size of 2 cm x 1cm on right wrist.ii. Traumatic swelling of the size of 2 cm x 2 cm on right elbow.iii. Contusion of the size of 4 cm x 2 cm on right side of chest deep 3 cm below inferior angle of scapulla, with surgical emphysema.iv. Contusion of the size of 3 ½ cm x 2 cm on right thigh.v. Abrasion of the size of 2 cm x 1 cm on right knee.7.	As per medical examination report Exhibit Ka-8, Akhtar has sustained following injuries.i. Lacerated wound of the size of 3 ½ cm x ½ cm x skull deep on occipital region of skull.ii. Abrasion of the size of 3 ½ cm x ½ cm on left scapula.Iii. Lacerated wound of the size of 2 cm x 1 cm x ¼ cm on left elbow on the back.iv. Abrasion of the size of 2 ½ cm x 1 ½ cm on the back of the left elbow near injury no.3.v. contusion of the size of 2 ½ cm x ¾ cm on bridge of nose.vi. Contusion of the size of 5 cm x 2 cm on back of left forearm.8.	The informant reported the matter to police and consequently this case was registered vide non cognizable report dated 08.07.1978 at 00:45 AM against the accused persons underSection 323IPC. It appears that during investigation, in view of medical examination report of injured persons, case was converted intoSection 325IPC. During investigation, the site plan of spot was prepared vide Exhibit Ka-6 and statements of witnesses were recorded. After completion of investigation, all the accused-appellants were charge-sheeted for the offence underSection 325IPC. However, it appears that during trial, the Judicial Magistrate, after examining the witnesses, was of the opinion that a case underSection 307/34was made out thus, case was committed to the Court of Session for trial undersection 307IPC.9.	The Court framed charge underSection 307/34IPC against all the accused persons in respect of injured Salatmatulla and another charge underSection 307/34IPC was framed in respect of injured Akhtar.10.	In order to bring home guilt of accused persons, prosecution has examined seven witnesses. After prosecution evidence, accused persons were examined underSection 313of Cr.P.C., wherein, they have denied prosecution evidence and claimed false implication.11.	In defence, one Ayub Khan and Ishhaq were examined as DW-1 and DW-2.12.	After hearing and analyzing the evidence on record, trial Court  reached to conclusion that offence underSection 307/34IPC is not made out and thus, the accused persons were convicted underSections 325/34and323/34IPC and were sentenced as stated above.13.	Being aggrieved by trial court verdict, the appellants have preferred instant appeal.14.	Learned Amicus Curiae has not disputed the findings on factual aspects recorded by trial court and he is pressing the appeal on ground that the offence undersection 325IPC is not made out as well on the point of sentence. Learned Amicus Curiae submits that no x-ray report of injured was proved to indicate any grievous injury to any of the injured and the case does not falls within the ambit ofsection 325/34IPC and thus, the conviction underSection 325/34IPC is not in accordance with law.15.	Learned AGA has submitted that there is consistent and reliable testimony of two injured witnesses and there is no major contradiction or inconsistency in evidence and that the conviction of appellants is based on evidence.16.	Before proceeding further, it would be appropriate to have a glance on prosecution evidence. PW-1 Salamtullah has stated that accused Sabir and Rizwan @ Babu are brothers and Rafiq and Shafiq are their maternal brothers. Two years prior to the incident, Sabir, Rizwan @ Babu and Zahur Husain have assaulted him and in that case they were convicted and sentenced underSections 147,323and452IPC. Zahur Husain is father of accused-appellants Sabir and Rizwan @ Babu and that Anwar is their cousin. Due to the said case, on the night of incident, all the four accused persons came at wood stall of Aminuddin and stating that he (PW 1) has got them and Zahur onvicted, they abused and assaulted him with lathis and hockey and resultantly (PW-1)  Salamatulla sustained injuries and his ribs were fractured. When his son-in-law Sabir and son Akhtar tried to save him, they were also assaulted by them. PW-1 further stated that after the incident, accused persons have ran away and that he and other injured persons were referred for medication examination.17.	PW-2 Aminuddin has stated that on the night of incident, while Salatmatullah was sitting at his wood stall, all the four accused persons, armed with lathis and hockey, assaulted Salamatullah, his son Akhtar as well his son-in-law Sabir.18.	PW-3 Dr. G.B. Saksena has medically examined injured persons and has proved their medico legal reports.19.	PW-4 Sabir has stated that on the night of incident, after hearing noise, he and his brother-in-law Tauhid Akhtar rushed to the spot and saw that all the co-accused persons, namely, Sabir, Rizwan @ Babu, Shafiq and Rafiq were abusing and beating his father-in-law Salamatullah. This incident took place at woodstall of Aminuddin and there was light of electricity. When PW-4 Sabir and his brother-in-law Tauhid Akthar tried to save Salamatullah, they were also beaten with lathis. After the incident they were medically examined.20.	PW-5 Dr. R.P. Gulati has stated that the said three injured persons were medically examined by Dr. G.B. Saxena and he has entered the injuries of injured persons in medico legal report register.21.	PW-6 Shivrish Prasad has recorded non-cognizable report and PW-7 S.I. Jamal Ahmad Khan has conducted investigation.22.	In defence DW-1 Ayub Khan has stated that on the night of incident, after hearing noise he came at spot and saw that 8-9 bandits were running away from house of Salatmatullah and when he went inside the house he saw that Salamatullah was lying there in an injured condition and that Sabir and Akhtar were also there. He further stated that on an inquiry, it came into knowledge that some thieves had come there and caused injuries to Salamatullah. Nearly similar statement has been made by DW-2 Ishhaq.23. 	Close scrutiny of evidence shows that regarding incident, the statements of injured PW-1 Salamatullah and PW-4 Sabir are clear and cogent and no such contradiction or inconsistency could be shown in their cross-examination, so as to create any doubt in their testimony. Here it may be stated that testimony of an injured witness is considered very important. It is well settled that the evidence of an injured witness is entitled to a greater weight and the testimony of such a witness is considered to be beyond reproach and reliable. Firm, cogent and convincing ground is required to discard the evidence of an injured witness.In Mano Dutt and another v. State of Uttar Pradesh- (2012) 4 SCC 79,  it was held as under:"31. We may merely refer toAbdul Sayeed v. State of M.P. - (2010) 10 SCC 259 where this Court held as under:"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. ''Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar -(1973) 3 SCC 881,Malkhan Singh v. State of U.P. - (1975) 3 SCC 311,Machhi Singh v. State of Punjab- (1983) 3 SCC 470,Appabhai v. State of Gujarat- 1988 Supp SCC 241,Bonkya v. State of Maharashtra-(1995) 6 SCC 447,Bhag Singh v. State of Punjab-(1997) 7 SCC 712,Mohar v. State of U.P.-(2002) 7 SCC 606,Dinesh Kumar v. State of Rajasthan-(2008) 8 SCC 270,Vishnu v. State of Rajasthan-(2009) 10 SCC 477,Annareddy Sambasiva Reddy v. State of A.P.-(2009) 12 SCC 546 andBalraje v. State of Maharashtra- (2010) 6 SCC 673.]24.	A similar view was taken inJarnail Singh v. State of Punjab-(2009) 9 SCC 719, wherein the Hon'ble Apex Court reiterated the special evidentiary status accorded to the testimony of an injured witness.25.	In the instant case, the testimony of injured PW-1 Salamatullah is quite consistent and cogent and it has been amply corroborated by PW-2 Aminuddin and PW-4 Sabir. Their version is further supported by medical evidence. Considering entire evidence on record it is apparent that factual aspects of the incident have been proved by evidence on record.26. Now the question arises is that whether an offence underSection 325/34IPC is made out or not. From the statement of PW-3 Dr. G.B. Saxena, it is clear that all the injuries sustained by injured Akhtar and Sabir are simple in nature. In his cross-examination, PW 3 has clearly stated that all injuries sustained by injured Akhtar and Sabir are simple in nature. So far the injuries of PW 1 Salamatullah are concerned, PW 3 Dr G.B. Saxena has stated that only injury no.3 was kept under observation and referred for X-ray and his all other injuries were simple in nature. Except injury no.3, other four injuries are simple in nature. In his cross-examination,  PW 3 Dr G.B. Saxena has stated that injury no. 3 of injured was dangerous but he also stated that he has not seen X-ray report of injured Salamatullah. In his cross-examination, PW 3 Dr G.B. Saxena has admitted that he has not said that injury no. 3 is grievous. So far as statement of PW-5 R.P. Gulati, Superintendent Men's Hospital, Tilhar is concerned, he has merely entered the injuries of injured persons in Medico Legal Register and he has not examined the injured persons. He has not proved any x-ray report or supplementary medical report. Thus the statement of PW 3 Dr G.B. Saxena in his cross-examination that injury no. 3 was dangerous is not supported by any medical examination report or by any X-ray report. The fact remains that regarding alleged injury no.3 of injured Salamatullah, neither any x-ray nor any supplementary medical report has been proved so as to indicate that the said injury was grievous in nature. Though, the investigating officer/ PW-7 S.I. Jamal Ahmad Khan has stated that the x-ray was produced by Salamatullah but there is nothing to indicate that it has been proved in accordance with law. In impugned judgment it has been observed by the learned trial Judge that x-ray of Salamatullah regarding injury no.3, was shown at district hospital Shahjhanpur to Dr. R.S. Pandey and after that it was discovered that he has sustained fracture of 7th, 8th , 9th and 10th ribs in left part of chest and that x-ray report Ex. Ka-2 was prepared by Dr.  R.S. Pandey but this aspect of prosecution version has not been proved by any witness. Neither any x-ray report has been proved nor said Dr. R.S. Pandey has been examined. Thus, this observation of trial Court is based on conjectures. As stated earlier, there is absolutely no evidence that any x-ray or supplementary medical report of injured Salamatullah has been proved. Thus, in view of these facts and evidence, it cannot be said that offence underSection 325IPC is made out.27. In view of aforesaid, it is clear that no offence undersection 325IPC is made. Hence the conviction and sentence of accused appellants, namely, Rizwan @ Babu, Rafiq and Shafiq undersection 325/34IPC is liable to be set aside, however, their conviction underSection 323/34IPC is upheld.28. So far as question of sentence is concerned, it may be stated that alleged incident has taken place on 07.05.1978 and thus, period of about 42 and half years has been passed since then. Even this appeal is pending since 1982. It has been shown by learned Amicus Curiae that during trial the appellants have remained in jail for about one week and that after conviction, they have also remained in jail from 22.05.1982 to 05.06.1982 and thus, the appellants have already undergone sentence of about three weeks. It has been further submitted that one of the appellant, namely, Sabir has already been passed away and that in view of age mentioned in statement recorded underSection 313IPC, it appears that all the surviving three appellants are aged more than 60 years. In view of all these facts and circumstances, it would not be appropriate to send them to jail at this stage. It appears that ends of justice would met if they be sentenced to the period already undergone along with fine of Rs. 700/-each for the offence underSection 323/34IPC.29. In view of aforesaid, the the conviction and sentence of appellants Rizwan @ Babu, Rafiq and Shafiq undersection 325/34IPC is set aside but their conviction underSection 323/34IPC is upheld and they are sentenced to the period already undergone along with fine of Rs. 700/- each. In default of payment of fine they shall undergo 15 days imprisonment. The appellants are directed to deposit the fine before the court below within 45 days from today.30.	Appeal is partly allowed.31.	This appreciates the assistance rendered by Sri Ajay Pandey, learned Amicus Curiae. He shall be paid Rs 5000/ by the State Government.Date: 27.01.2021\n \nA. Tripathi      \n \n                                 					  (Raj Beer Singh, J)