JAVED @ ZUBAR Vs. STATE

JUDGEMENT

(1.) BY these appeals the Appellants challenge the common judgment dated 13th September, 2011 whereby they have been convicted for offence punishable under Section 307/34 IPC and the order on sentence dated 19th September, 2011 whereby Appellant Javed has been directed to undergo rigorous imprisonment for a period of three years and a fine of Rs. 5000/- and in default of payment of fine to further undergo simple imprisonment for five months and Appellant Mukesh has been directed to undergo rigorous imprisonment for a period of four years and a fine of Rs. 1000/- and in default of payment of payment of fine to undergo simple imprisonment for one month.

(2.) LEARNED counsel for the Appellant Javed contends that the name of the Appellant appeared for the first time in the charge-sheet with the aid of Section 34 IPC. All the material witnesses have turned hostile including the injured witness. Thus the present is a case of no evidence. The weapon of offence has not been recovered from the Appellant Javed. As per the FSL report no blood has been detected on the scissor i.e. the alleged weapon of offence. Further, no finger prints have been lifted from the weapon of offence. The recovery of weapon of offence has been disbelieved by the learned Trial Court as it was from an open public place. The motive of alleged offence has not been proved by the prosecution as it is alleged that there was an earlier FIR between the parties. Further, the said FIR had already been compromised.

(3.) I have heard learned counsel for the parties and perused the record. PW-1 Sonu the injured witness has stated that 6/7 months ago at about 9.00 PM he reached Prem Nagar - III near Shanni Bazar where both the Appellants were present and a quarrel ensued. The witness correctly identified the two Appellants as the accused. Appellant Javed caught hold of PW-1 and Appellant Mukesh stabbed him with scissors in his chest. PW-1 had previously made a complaint against the accused persons which was settled with the intervention of the local Police. After being stabbed PW-1 lost consciousness and remained in the hospital for 22 days with 10 days in ICU. His blood stained clothes and T-shirt were seized by the Doctors and handed over to the Police. He identified his blood stained clothes and the scissor used for causing injury to him. This witness in his cross-examination by the Public Prosecutor admits that he had earlier lodged FIR No. 70/2006 under Section 279/327/323/34 IPC against both the co-accused persons on the 20th February, 2008. He has further stated that Appellant Mukesh picked up scissors from the shop of a Barber nearby and attacked him saying that he would teach him a lesson for his previous complaint and stabbed him in the abdomen. A suggestion was given to this witness that he misbehaved with a woman who was the fiancee of Appellant Javed, or that he compromised the FIR on the undertaking that he would not misbehave with the said woman. Besides the complainant, the other alleged eye-witness i.e. PW-8 Najma Khatoon has turned hostile. Though there is no dispute that the weapon of offence scissor has been recovered at the instance of Appellant Mukesh from an open public place, however the said weapon of offence has been identified by PW-1 as the one from which injury has been caused to him. The testimony of PW-1 is corroborated by the medical evidence.