RIYAZ @ RIYAZUDDIN Vs. STATE

JUDGEMENT

(1.) On the basis of report under Sec. 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) submitted on conclusion of investigation into first information report (FIR) No.178/2004 of Police Station Sadar Bazar, the appellant herein was summoned and sent up for trial in Sessions Case No.113/2005, which was held in the court of Additional Sessions Judge, Delhi, he having been proceeded against on the charge for offence punishable under Sections 341/308/506 of Indian Penal Code, 1860 (IPC) allegedly committed in the course of the incident that had occurred at about 11.00 p.m. on 12.04.2004, in the area described as Barnawali Masjid, Kasabpura within the jurisdiction of the said Police Station, the first informant Mohd. Gulfam (PW-1) being the victim. On the basis of the evidence adduced, the trial court rendered its judgment on 24.05.2006 acquitting the appellant on charges under Sections 341/506 IPC, but holding him guilty and convicting him for offence punishable under Sec. 308 IPC. By order dated 26.05.2006, the trial Judge pronounced the punishment in the form of rigorous imprisonment for two years with fine of Rs.1,000.00 for the offence under Sec. 308 IPC.

(2.) The acquittal of the appellant on the charge for offences under Sections 341/506 Penal Code was not challenged by the State by any appeal or petition for leave to appeal. The same, thus, has attained finality. The conviction and the order on sentence qua the offence under Sec. 308 Penal Code has been assailed by the appeal at hand which has remained pending all these years.

(3.) The FIR of the case was initially registered for offences under Sections 341, 323, 506 IPC. On the basis of the then assessment of the evidence, charge under Sec. 308 IPC, however, was also framed. In the considered opinion of this court, charge under Sec. 308 Penal Code cannot be held to be proved. Though the evidence would show that the appellant was wielding a cutting instrument (chhuri) at the time of assault on the person of victim, such weapon was never used. The only injury inflicted was by the blunt edge, it having been found as per the medico legal certificate (Ex. PW5/A) as proved by Dr. Pawan Rawal (PW-5) to be simple in nature. There is no evidence of any excessive force having been used and therefore, it cannot be said that the intention was to cause such bodily injury as was likely to cause death. In these circumstances, the conviction for the offence under Sec. 308 Penal Code cannot be upheld. The guilt of the appellant only for the offences under Sec. 323 Penal Code has been brought home. The conclusion is modified accordingly.