Servesh Kumar Gupta, J.@mdashIn both these appeals, being decided together, the convict Ayub Ahmad has challenged the judgment and order dated 26.10.2010 rendered by the Sessions Judge, Udham Singh Nagar at Rudrapur, whereby he was convicted for the offence of section 302 IPC and section 4/25 of the Arms Act. The said conviction order was passed by the learned Sessions Judge in Sessions Trial No. 87/2008, State v. Ayub Ahmad, pertaining to Crime Nos. 6281/2007 and 6282/2007, P.S. Rudrapur. Learned Sessions Judge has appropriately sentenced the appellant. The incident occurred in the intervening night of 25/26.12.2007 at 11.20 P.M. and the report Ex. Ka-1 was lodged by Mohd. Shahid, the uncle of deceased just within an hour of the said incident at 00.15 A.M. on 26-12.2007. It has been stated in the FIR that Mohd. Faizal (deceased) was running a beetle leaf kiosk at Indira Chowk, Rudrapur. After closing his kiosk (shop) at 11.20 P.M. on that night, he was going to sleep in a nearby milk bar. While aheading to the milk bar, he was confronted by Ayub Ahmad (accused appellant) with a knife in his hand. Ayub Ahmad demanded his Rs. 400/- from Faizal which he had lent him earlier. Faizal expressed his inability to pay the money instantly, but Ayub Ahmad insisted for the immediate payment and hurling the filthy abuses, he stabbed the knife blow in the chest of Faizal making him fell down on the earth. The incident was witnessed by Mohd. Nayeem and Saleem, who were coming from in front. These witnesses shifted Faizal to the Government Hospital, where he was declared dead by the doctor. The chick report is Ex. Ka-17. The inquest report Ex. Ka-2 was prepared in that very intervening night in the Government Hospital itself. In the opinion of the members of the inquest report along with the Sub Inspector, the death was caused due to knife blow injury, but they all opined for the postmortem.
2. The autopsy Ex. Ka-3 was conducted on 26.12.2007 at 11 A.M. in the Government Hospital, Rudrapur by Dr. Sanjay Kumar Tripathi. In the opinion of the doctor, the death was resulted due to haemorrhage and shock on account of the ante mortem injury. The following ante mortem injury was reported by the doctor on the dead body of the deceased:
Punctured wound (stab) present on (Left) side of midline just below line joining both nipples, 3 cm x 2 cm, elliptical shape, on exploration left side of sternum and 5th intercostal space and muscles stab, with hematoma, pleura, pericardium, right ventricle, left dome of diaphragm, liver left lobe, stomach ant. wall stab wound present. Both chambers of heart empty, hemothorax left side 1 litre, Hemopericardium 200 ml, Hemoperitoneum 1.5 litre present. Margins clean cut, oblique, medial end upward and lateral end downwards. When probe passed, it followed the tract from skin to stomach. Both ends of stab wound are acute angle.
3. At the instance of the accused Ayub Ahmad, the knife used in the commission of crime was recovered by the police. Recovery memo is Ex. Ka-4. The map of the site is Ex. Ka-6. The investigation culminated into the submission of the charge-sheet for the offence of section 302 IPC against the accused Ayub Ahmad. Another charge-sheet was also submitted by the Investigation Officer for the offence of section 4/25 of the Arms Act. The learned Sessions Judge has accordingly levelled the charges upon the accused wherefore the charge-sheets were submitted. The accused abjured the guilt and claimed trial.
4. The prosecution has examined as many as 12 witnesses, who are PW1 Mohd. Shahid, PW2 Nayeem, PW3 Saleem Ahmad S/o. Babu Hussain, PW4 Dr. Sanjay Kumar Tripathi, PW5 SI Chanchal Sharma, PW6 Saleem Ahmad S/o. Bakhtawar, PW7 SI Neeraj Kumar, PW8 H.C.P. Padam Singh, PW-9 H.C. Mohan Chandra, PW10 SI Dev Singh, PW11 H.C. Vishanram and PW12 Constable Vijendra Singh.
5. After the prosecution evidence, statement of the accused was recorded u/s 313 Cr.P.C. He has simply denied his complicity in the crime and has said nothing further.
6. We have heard learned Counsel for the parties and have also perused the evidence available on record as well as the impugned judgment and order.
7. PW1 is Mohd. Shahid, who has lodged the FIR after getting the telephonic information from the witness Nayeem Ahmed. This witness resides in town Baheri, District Bareilly, which is at a motorable distance of half to one hour. He reached at the spot where his nephew Faizal was lying injured. Nayeem and Saleem Ahmad, who witnessed the incident, shifted the injured Faizal to the Government Hospital with the help of Mohd. Shahid. The doctor declared him dead. He has proved the FIR signed by him as Ex. Ka-1. He has stated his arrival at the spot and then he lodged the FIR as disclosed by Nayeem and Saleem to him.
8. PW2 is Nayeem, who also carries on his business of selling the beetle leaf near Sanjay Milk Bar at Indira Chauraha. The nature of shop of Nayeem is similar to deceased Faizal. He has proved that Ayub Ahmad (accused appellant) also sells the fruit juice at handcart in the close vicinity of milk bar. So is the shop of Saleem (another eyewitness, who also runs his small shop of beetle leaf at the spot and also resides there). He has further stated that at 11.20 P.M. of the night of the incident, he and Saleem Khan were aheading towards the milk bar after taking their dinner and no sooner they reached near the milk bar, the accused was seen by him along with Saleem hurling abuses to Faizal and demanding Rs. 400/-, which the latter had borrowed from him. Ayub Ahmad was armed with the knife in his right hand. Faizal expressed his inability to pay the money instantly and promised to pay later. The accused did not accede to his request and being enraged, he gave a blow of knife in the chest of Faizal. This all made Faizal fell down on the earth. The accused escaped from the spot. Mohd. Nayeem immediately made a ring call to the uncle of Faizal and informed about the occurrence. So, Mohd. Shahid (uncle) reached at the spot soon after. Mohd. Nayeem has further deposed that he along with Saleem shifted the injured Faizal on a motorbike to the Government Hospital, Rudrapur and they were chased closely by Mohd. Shahid. In the hospital, Faizal was declared dead by the doctor. The inquest report was prepared in the presence of Mohd. Nayeem, which he has proved as Ex. Ka-2.
9. PW3 Saleem Ahmad, S/o. Babu Hussain, who runs the beetle leaf shop at the spot, is also an eyewitness of the incident. He also knows the accused Ayub Ahmad as the juice shop of the accused is adjacent to the beetle leaf shop of this witness. PW3 has corroborated the incident in the same words and sequence as have been deposed by PW2 Nayeem, another eyewitness. PW3 has seen the incident from the distance of 20-25 paces from the spot and he along with Nayeem carried the injured Faizal by their motorbike to the Government Hospital, Rudrapur where the victim was declared dead. He has ratified that soon after reaching to the Government Hospital, PW1 Shahid, uncle of the victim, had also reached there within 10 minutes. Nothing has been elicited from the cross-examination of this witness, which could create any doubt in the prosecution story.
10. PW4 Dr. Sanjay Kumar Tripathi, who has conducted the autopsy and has proved the ante mortem injury found on the dead body, as has been mentioned hereinabove. Learned defence Counsel has not put forth any doubt on the fact whether a punctured wound can be caused by a sharp edged knife. The doctor has not been cross-examined on this point. The nature of cut and punctured wounds, as described in the Medline Plus Encyclopedia, can significantly be noted that "a puncture is a wound made by a pointed object such as nail, knife, or sharp tooth", viz., the punctured wound can also be caused by a sharp edged knife. It is further elaborated in the said Encyclopedia that "A cut is a break or opening in the skin. It is also called a laceration. A cut may be deep, smooth, or jagged. It may be near the surface of the skin, or deeper. A deep cut can affect tendons, muscles, ligaments, nerves, blood vessels, or bone." So, there remains no doubt that the knife which was recovered at the instance of the accused could have been a weapon for causing the injury which was found on the dead body of the victim.
11. PW5 is Sub Inspector Chanchal Sharma, who has investigated the incident and has recovered the knife at the instance of the accused person. The recovery memo of the said knife is Ex. Ka-4, which has also been signed by the accused in the presence of the witnesses. After the recovery of knife, another case u/s 4/25 of the Arms Act was registered against the accused appellant, on the basis whereof a separate charge-sheet Ex. Ka-16 was submitted against him, and this chargesheet for the offence of section 4/24 Arms Act was the basis of levelling the charge to that effect against the accused person and he was also convicted for the said offence by the learned Trial Court. In the statement u/s 313 Cr.P.C. when the question was asked regarding this recovery memo Ex. Ka-4, the accused has simply denied the recovery in a routine manner and has said nothing specific as to how his signature appeared on the recovery memo. When the bloodstained knife and soil collected from the spot were sent to the Forensic Science Laboratory, human blood was found on the same.
12. PW6 Saleem Ahmad, S/o. Bakhtawar, is the witness of recovery of knife and collection of the bloodstained soil from the spot. He has proved his signatures on the recovery memo Ex. Ka-4.
13. PW7 Sub-Inspector Neeraj Kumar has prepared the inquest report Ex. Ka-2 and has proved the same.
14. PW8 HCP Padam Singh has conducted the investigation pertaining to offence u/s 4/25 Arms Act and, on its completion, submitted the charge-sheet Ex. Ka-16 against the accused.
15. PW10 is Sub Inspector Dev Singh. He was also accompanying the police party when the knife was recovered at the instance of the accused. Testimony of PW11 H.C.P. Vishan Ram is formal in nature. PW12 Constable Bijendra Singh had carried the knife and bloodstained soil to the Forensic Science Laboratory.
16. From the evidence discussed above, it is clear that on the date of incident, discussions took place between the accused and the deceased on question of returning the money, which the victim had borrowed from the accused. On this, the accused assaulted the deceased Faizal with a knife and he ultimately died. Knife used in the commission of crime has also been recovered at the instance of the accused. Forensic analysis also confirmed presence of human blood on the said knife. The accused, in his statement u/s 313 Cr.P.C. offered no explanation as to how the recovery memo bears his signature. Ocular version of the prosecution is corroborated by the medical evidence, as discussed above. As such, the case against the accused is conclusively proved and we find no illegality or incongruity in the impugned judgment and order. Consequently, we dismiss these appeals and uphold the conviction and sentence awarded by the Trial Court to the accused appellant Ayub Ahmad. Impugned judgment and order dated 16.10.2010, passed by the Sessions Judge, Udham Singh Nagar, is thus affirmed. Convict appellant Ayub Ahmad is already in jail. He is to serve out the remaining sentence awarded by the Trial Court. Let a copy of this judgment and order be sent to the Court below for compliance. LCR be sent back.
