ASGAR AND ANOTHER Vs. STATE OF U.P.

JUDGEMENT

(1.) This appeal, preferred by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), is directed against the judgment and order dated 30.1.1997 passed by the Additional Sessions Judge/Special Judge Nainital in Sessions Trial No. 98 of 1991, State v. Asgar and Anr. whereby learned Additional Sessions Judge has convicted the accused appellants Asgar and Anwar under Section 307 read with Section 34 of the Indian Penal Code, 1860 [for short, IPC) and sentenced each of them to undergo R.I. for five years.

(2.) In brief, the prosecution case is that on 22.1.1991 at 7.15 pm, PW1 Abdul Wahab lodged an FIR Ex. Ka-1 with PS Ramnagar with the averments that appellants accused Asgar and Anwar belonging to the same Mohalla of the complainant caused damage to the Parnala of the house of the complainant, so he made complaint to them but the accused appellants stated that the matter would be seen later on in the evening. Thereafter at 6.30 pm on the same day, the accused appellants came at the house of the complainant and called him out of the house. On this Abdul Khalik (PW2) came out of the house who was also followed by his father/complainant Abdul Wahab. The moment Abdul Khalik came out of the house, accused appellant Anwar caught hold of him while the accused appellant Asgar gave knife blow on the left side of his chest. Abdul Wahab raised alarm and on this, Abdul Jabbar (PW3) and Master Sirajuddin reached at the place of occurrence. The injured Abdul Khalik was immediately taken to the hospital who was unconscious due the said injuries. His condition was serious.

(3.) With the aforesaid averments, FIR Ex. Ka-1 was lodged by PW1 Abdul Wahab and the bloodstained shirt, sweater and baniyan (undershirt) were also handed over to the police. On the basis of this report Ex. Ka-1, Chick FIR Ex. Ka-6 was prepared by Constable Clerk Nar Ram. He also made the necessary entries in the GD. Copy of the GD is Ex. Ka-7. The bloodstained clothes were taken into possession and fard Ex. Ka-2 was prepared. The investigation of this case was entrusted to PW7 S.I. Ram Sharan Mishra. The injured Abdul Khalik was medically examined by PW5 Dr. Yogesh Chand on the same day i.e. on 22.1.1991 at 6.45 pm and the injury report Ex. Ka-3 was also prepared by him. On the basis of the x-ray report, PW5 Dr. Yogesh Chand also prepared the supplementary report Ex. Ka-4. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-8. During the course of investigation, the I.O. also collected the bloodstained and plain soil from the place of occurrence and prepared a fard Ex. Ka-9. The I.O. also recovered the knife used in the commission of crime on the next day of the incident i.e. on 23.1.1991 on the pointing out of the accused appellant Asgar from the western wall of the latrine of his house and prepared a fard Ex. Ka-5. He also prepared the site plan of the place of recovery of knife, that is Ex. Ka-10. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation he filed the chargesheet Ex. Ka-11 against the accused appellants.