RABIBUL Vs. STATE

JUDGEMENT

(1.) Learned counsel for the appellant Sh.K.Singhal, Advocate urges that from the testimony of Rizwan PW-1, the injured eye-witness and that of Jahid PW-3, it is apparent that the appellant had also received an injury on his hand from a knife. Learned counsel submits that Rizwan has not told the complete truth. Learned counsel further submits that the Investigating Officer has withheld the medico legal report of the appellant who was taken to Satyavadi Raja Harish Chandra Hospital, Narela for medical treatment on November 17, 2010. Counsel prays that the case diary with the Investigating Officer may be perused.

(2.) Inspector Prabhu Dayal from P.S.Narela is present with the case diary and we find that lying therein is an OPD card of Satyavadi Raja Harish Chandra Hospital, Narela having patient name: 'Rabibul' i.e. the appellant. It shows that on November 17, 2010 the appellant was administered an anti tetanus injection and a cut on his person was stitched. Unfortunately, the OPD card simply records 'ASP Stitch'. Counsel urges that a careful reading of the testimony of PW-1 would evince that a verbal altercation preceded the physical fight during which appellant received an injury on his hand and the deceased received a stab injury on the lateral side of the chest below the arm pit. Counsel thus urges that the offence made out against the appellant is that of culpable homicide not amounting to murder punishable under Section 304-II IPC.

(3.) The post mortem report Ex.PW-11/A would show that the deceased received only one incised penetrating wound which was placed obliquely over left side chest on the lower side at anterior axillary line about 22 cm. below the left axilla piercing the left 9th inter coastal space, the weapon of offence penetrated the spleen. It is apparent that the knife was struck from the side beneath the arm pit.