MOHD. YUSUF Vs. STATE

JUDGEMENT

(1.) This is an appeal under section 374(2) of the Cr.P.C. against the judgment dated 19.12.2000 passed by the trial court convicting the appellant Mohd. Yusuf, S/o Mahmood Khan R/o 418, Juggi, New Seemapuri, Delhi under section 307 of the Indian Penal Code and the sentence dated 20.12.2000 awarding RI of 7 years and fine of Rs. 4,000/- and in default to undergo further RI of one year, with benefit under Section 428 of the Cr.P.C.

(2.) The appeal arises this way. On the night of 11.8.1999 one Mohd. Aziz was returning home and near the police booth of New Seemapuri met his friend Muzammil. Both of them decided to have a cup of tea and went to the khoka in F block, New Seemapuri. After ordering for tea they sat on a bench in front of the khoka of the mother of the accused Yusuf. Apparently that shop was closed at the time. As they were waiting for the tea, at about 10.45 p.m. the accused Yusuf came there and questioned them why they were sitting in front of the khoka. He told them that they should not sit there without any purpose. Mohd. Aziz and Muzammil told him that they would go away after taking tea. Enraged at this Yusuf allegedly took out a knife and aimed at the chest of Mohd. Aziz. Aziz bent downwards in order to save himself from the blow but the knife hit on the left side of his neck. Yusuf also inflicted an injury on Muzammil with his knife and Muzammil was injured on his cheek. After this Yusuf ran away from the spot. Both the injured reached the GTB Hospital where they were examined, their wounds were treated. Thereafter, a case was registered against the accused who was arrested on the basis of the statements of the witnesses on 21.9.1999. The knife alleged to have been used by the accused could not however be recovered. The accused Yusuf pleaded not guilty and claimed trial.

(3.) The prosecution examined 11 witnesses including Mohd. Aziz (PW3) and Muzammil (PW4). Dr. Navneetan (PW6) and Dr. Satish Mishra (PW9) were also examined. The others appeared to be formal witnesses. In his statement under section 313 of the Cr.P.C., the accused stated that he was falsely implicated in the case and denied that he injured Mohd. Aziz and Muzammil. After examining the evidence and taking into account the material placed on record, the trial court held that the appellant was guilty of the offence under section 307 (attempt to murder) of the IPC. It held that the non-recovery of the weapon was not material as it was only corroborative and not substantive and that it was also immaterial that the injured did not see the weapon alleged to have been used. According to the trial court, the prime requirement of section 307 IPC is of intention that the act should cause death and since the appellant had used a sharp weapon and the injuries were also on the vital spots, he was guilty of attempt to murder. The trial court rejected the evidence of the defence witnesses on the ground that there were contradictions relating to the time at which the offence was said to have been committed. The theory that all the three i.e. Yusuf, the accused and Mohd. Aziz and Muzammil fell on broken glass during the scuffle and thereby injured themselves put forward by the defence did not appeal to the trial court which held that the deposition of the defence witnesses that the scuffle took place at 6 to 7 p.m. or 8 to 8.30 p.m. was completely contradictory to the fact that it was proved to have taken place around 10.45 p.m. The trial court accordingly convicted the appellant under section 307 of the IPC and sentenced him.