JUDGMENT
S.T. Kharche, J.
Page 1509
1. This appeal takes an exception to the judgment and order dated 22.12.1995 passed by the learned Additional Sessions Judge to Sessions Trial No. 50 of 1990, whereby the appellant/accused has been convicted for the offence punishable under Section 324 of Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for three months.
2. Brief facts leading to the prosecution case are as under :
(a) Victim Sheikh Rustam (P.W.1) and the accused are residents of village Umarkhed. On 13.4.1989 at about 23-30 hours, victim Sheikh Rustam along with Rafiuddin (P.W. 2) had gone to the house of one Inayatulla Khan for recovery of dues. The latter was present at his house and he informed that he has given direction to his driver to repay the dues and therefore Page 1510 the victim was asked to approach his driver. Sheikh Rustam and Rafiuddin were proceeding on the road and when they reached behind the house of one Sarda, the accused who was standing there armed with a knife, had suddenly thrusted the knife twice into the stomach of Sheikh Rustam because of which he sustained bleeding injury. The victim and Rafiuddin tried to chase the accused who was running away and the victim was shouting “Akil Akil”, but the accused succeeded in escaping. The victim due to bleeding injury had suffered giddiness and he was immediately brought to the police station Umarkhed by the witnesses where his complaint (Ex.25) was reduced into writing by P.S.I. Sonune ( P.W.5), who registered Crime No. 54 of 1989 for the offence punishable under Section 307 of Indian Penal Code and referred the victim to the medical officer for examination and treatment.
(b) The medical officer found two incised wounds on the stomach of the complainant and issued the medical certificate (Ex.37). P.S.I. Sonune visited the spot of incident and drew spot panchanama (Ex.30) in presence of panch witness Tahiruddin (P.W.4). Then the accused was arrested. On 14.4.1989 while the accused was in custody, he was interrogated in presence of panch witnesses and the knife was discovered in consequence of the information furnished by the accused vide memorandum panchanama (Ex.32) and recovery panchanama (Ex.33) respectively. After completion of investigation, charge-sheet was filed in the Court of J.M.F.C.
3. After committal of the case, the learned Additional Sessions Judge had framed and explained the charge to the accused, to which he pleaded not guilty and claim to be tried and thus the trial proceeded with. The prosecution relied on direct as well as circumstantial evidence including the evidence of Sheikh Rustam (P.W.1), Rafiuddin (P.W.2) d Mobin Ahmed (P.W. 3), Dr. Prakash (P.W.5) and Sheikh Imam (P.W. 6). The latter two witnesses had seen the accused running away soon after the incident of stabbing. The defence of the accused is that of total denial. It has been suggested in the cross-examination of the witnesses that due to long standing enmity between the two sects of Muslims, namely Tablighi and Sunni, the accused has been falsely implicated at the instance of Sheikh Rustam. He did not examine any defence witness in support of this defence. The learned Additional Sessions Judge on appreciation of evidence has held that victim Sheikh Rustam has sustained two incised wounds and the author of those injuries was the accused. Having regard to the nature of the injuries, nature of weapon and the vital part of the body chosen for delivering the blows the learned Additional Sessions Judge held that the accused has committed an offence which is squarely covered by Section 324 of Indian Penal Code and therefore convicted and sentenced him as mentioned above. This judgment and order of conviction is under challenge in this appeal.
4. Mr. Qazi, learned Counsel, for the accused contended that there is a long standing enmity between the two sects- one belongs to Sunni whereas the other belongs to Tablighi, which is a part and parcel of Mohammaden religion. He contended that the victim has falsely implicated the accused because of the long standing enmity. He further contended that there are large amount of omissions and contradictions in the evidence of Rafiuddin (P.W. 2), Mobin Page 1511 Ahmed (P.W. 3) and Sheikh Imam (P.W. 6) and those omissions and contradictions go to the root of the prosecution case and shake the basic version of eye witness Rafiuddin (P.W. 2). He also contended that the witnesses are partisan and interested witnesses and no implicit reliance could be placed on their testimony. The prosecution did not examine independent witnesses and the investigating Officer was bias in conducting the investigation. He contended that the accused has also sustained abrasion on right thumb on palmer aspect of the size of 1/4 cm. and the prosecution has not explained said injury and the non-explanation of this injury would show that only concocted version has been placed on record. He contended that the interested version of Sheikh Rustam (P.W. 1) and Rafiuddin (P.W. 2) is liable to be discarded and the learned Additional Sessions Judge has committed an error in appreciation of their evidence and therefore the impugned judgment and order of conviction cannot be sustained in law.
5. The learned A.P.P. contended that the incident occurred on 13.4.1989 at about 23-30 hours and victim Sheikh Rustam was taken to the police station within 25 minutes where he lodged the report (Ex.25) at 23-55 hours. He contended that the direct evidence of Sheikh Rustam (P.W.1) has been amply corroborated by the evidence of Rafiuddin. (P.W.2) in all material particulars and moreover the evidence of Mobin Ahmed (P.W.3) and Sheikh Imam (P.W. 6) would clearly reveal that they saw the accused with an injury on his palm running away from the spot of incident. He contended that the evidence of these witnesses cannot be discarded simply on the ground that they are said to be interested and partisan witnesses. He further contended that the medical evidence, of Dr. Prakash (P.W.5) would clearly reveal that victim Rustam had sustained two incised wounds mentioned in the medical certificate (Ex.37) which were sufficient in the ordinary course of nature to cause death. The medical evidence is not at variance with the version of the eye witnesses and there is no reason, as to why their evidence should not be accepted as trustworthy. He contended that the injury sustained by the accused on his palm goes to establish his presence as well as the use of knife by him while delivering blow on the victim on the spot of incident. He contended that the learned Additional Sessions Judge rightly held that complicity of the accused has been duly proved and the offence would be squarely covered by Section 324 of Indian Penal Code. He thus supports the impugned judgment and order of conviction and contended that there is no merit in the appeal which may kindly be dismissed.
6. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is relevant to note that victim Rustam was taken to the police station immediately without loss of time after he was assaulted by the accused by the knife. The victim had sustained two incised wounds which are described in the certificate (Ex.37) issued by Dr. Prakash (P.W. 5).
7. The version of Dr. Prakash would reveal that on 14.4.1989 at about 12-10 a.m. he examined Rustam and found the following injuries –
(i) Incised wound over abdomen over ambilicus, transverse in direction, size about 1″ x 1/2″ deep in nature.
Page 1512
(ii) Incised wound on chest, left lateral mid auxillary region, omentum out of injury, size about 1″ x 1/2″ deep in nature
Dr. Prakash opined that the aforesaid injuries were fresh and were caused by sharp cutting object like knife- article 3. He opined that these injuries were sufficient to cause death in the ordinary course of nature, if the medical treatment would not have been provided. In the cross-examination, nothing favourable to the accused has been brought on record. No doubt the medical officer says that the victim disclosed that he was stabbed by somebody but this admission of the medical officer is of no consequence especially when the victim Rustam has categorically deposed before the Court that it is the accused and none else who had assaulted him by knife causing two injuries on his person. The evidence of victim Rustam is corroborated in material particulars by the medical evidence and it is difficult to accept that the injured would falsely implicate the accused only because of some old enmity. Enmity is double edged weapon and can be used in both ways. It can be a ground for false implication but equally it would provide a motive to the accused for the commission of the crime. Therefore the evidence of victim is not shaken in the cross-examination and there is no reason as to why he would depose false.
8. The first information report was recorded by P.S.I. Sonune at 23-55 hours on 13.4.1989, i.e. within 25 minutes of the occurrence and the contents of the F.I.R. are quite consistent with the version of victim Rustam and do corroborate his version in material particulars. There is absolutely no omission or contradiction so far as the main incident is concerned and the minor omission regarding who saw the incident is of no consequence.
9. Besides the evidence of victim Rustam, the evidence of Rafiuddin (P.W. 2) would clearly reveal that on 13.4.1989 at 23-30 hours both of them were proceeding on the road and when they reached behind the house of one Sarda, they saw the accused standing with a knife, and he immediately rushed on the victim and stabbed him twice by the said knife on his stomach. Consequently, Rustam sustained bleeding injuries on his stomach and the victim was removed to the hospital with the help of the witnesses after he was taken to the police station. Prompt lodging of F.I.R. guarantees veracity of the report and rules out the possibility of concoction, embellishment and embroideries. The evidence of Rustam has been corroborated in material particulars by the evidence of Rafiuddin (P.W. 2) whose statement was immediately recorded by the police and there does not appear to be any material contradiction in his evidence.
10. Moreover, the evidence of Mobin Ahmed (P.W. 3) and Sheikh Imam (P.W. 6) would reveal that they heard the shouts as “Pakdo Akil beat him, Pakdo” and as soon as they heard these shouts, they saw the accused was coming by running from the direction of the shouts and while he was running these witnesses saw him holding a knife in his hand. Victim Rustam and Rafiuddin chased the accused and also disclosed to the witnesses that it is the accused and none else who had delivered blows on the stomach of Rustam due to which he sustained bleeding injuries. Both the witnesses were Page 1513 cross-examined at length but nothing favourable to the accused could be brought on record and there is no reason as to why these two witnesses would falsely implicate the accused.
11. No doubt true that the accused had also sustained minor injury. The version of Dr. Prakash (P.W. 5) would reveal that on the very day he had examined the accused and found abrasion on right thumb on palmer aspect of the size of about 1/4 cm. On the person of the accused and accordingly he had issued the certificate (Ex. 38).
12. Having regard to the nature of the injury sustained by the accused and particularly on his right palmer aspect, it follows that the presence of the accused on the spot of incident has been proved and it is not possible to accept the defence that the injury sustained by the victim was caused when he had come in contact with broken glasses or he had fallen on the sharp stone. It is not necessary in each and every case that the prosecution is required to explain the injuries appearing on the person of the accused. Where the injuries sustained by the accused are of minor nature, they are liable to be ignored if there is a direct and clinching evidence available on record. In the present case, the direct evidence of injured Rustam coupled with the evidence of eye witness Rafiuddin (P.W. 2) clearly show that it is the accused and none else who is the author of the injuries sustained by the victim.
13. Therefore, this Court is of the considered opinion that the learned Additional Sessions Judge rightly held that the complicity of the accused has been duly established. The learned Additional Sessions Judge having regard to the nature of the injuries sustained by the victim, the nature of the weapon, i.e. the knife used by the accused while making assault and the vital part of the body chosen, i.e. the stomach, for inflicting the injuries, has held that the offence committed would squarely fall within the ambit of Section 324 of Indian Penal Code. This Court does not agree with the finding recorded by the learned Additional Sessions Judge that the offence would be covered by Section 324 of Indian Penal Code. The medical officer Dr. Prakash (P.W. 5) has described the injuries which are mentioned in the certificate Ex.37 and he has clearly and unquivocally deposed that the injuries were sufficient in the ordinary course of nature to cause death and having regard to the nature of the injuries, the nature of the weapon used, the vital part of the body chosen and the number of blows delivered, the offence which the accused has committed would be squarely covered by Section 307 of Indian Penal Code because the injuries were not only sufficient in the ordinary course of nature to cause death but if the medical aid would not have been provided, in all probability the death would have been caused. The accused appears to have been acquitted of the offence punishable under Section 307 of Indian Penal Code against which no appeal has been preferred by the State for enhancement of the sentence and, therefore, for these reasons, no interference is required in the impugned judgment and order of conviction by which the accused has been convicted for the offence punishable under Section 324 of Indian Penal Code and sentenced as mentioned above. Page 1514 In the circumstances, this Court is of the considered view that there is no merit in the appeal which is liable to be dismissed and the appeal is accordingly dismissed. The accused shall surrender to his bail and bonds and shall appear before the learned Additional Sessions Judge, Pusad, on 22.2.2005, who shall commit the accused to the prison for undergoing the remaining sentence. If the accused fails to surrender on the above given date, the Additional Sessions Judge shall cause his appearance through the Superintendent of Police and commit him to the prison for undergoing the remaining sentence.