JALEEL Vs. STATE OF U P

JUDGEMENT

(1.) This Criminal Appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter for brevity Cr. P.C.), is directed against judgment and order dated 5-5-1994, passed in Sessions Trial No. 302 of 1992, by the then learned IVth Additional Sessions Judge, Nainital, whereby appellants Jaleel and Husan Bano are convicted under Section 302 read with Section 34 and under Section 307 read with Section 34 of Indian Penal Code, 1860 (hereinafter for brevity IPC). By the impugned judgment and order, appellant Jaleel is sentenced under Section 302/34, IPC to life imprisonment and fine of Rs. 2.000/- in default of payment of which one year rigorous imprisonment and under Section 307/34 of IPC to five years rigorous imprisonment and fine of Rs.500/- in default of payment of which three months additional rigorous imprisonment. Appellant Husan Bano is sentenced under Section 302/34, IPC to life imprisonment and fine of Rs.500/-, in default of payment of which, three months rigorous imprisonment and under Section 307/34, IPC to five years rigorous imprisonment and fine of Rs.5,00/- in default of payment of which three months further rigorous imprisonment.

(2.) In brief, prosecution story is that Anwar, resident of village Darau, transferred his land equally to his brothers Jaleel (appellant No. 1) and Saleel (deceased) before he settled at Kichha. Jaleel got constructed his toilet over the portion of land transferred to Saleel by Anwar. This narrowed the passage of Saleel and he asked Jaleel to remove the toilet. He also made complaint to Gram Pradhan, who on his part also asked Jaleel to remove the toilet. However, Jaleel did not relent. On 15-5-1992, Saleel raised his boundary wall over his land which deprived Jaleel from using the disputed toilet. This infuriated him. On the intervening night of 15th and 16th of May, 1992 at about 2.00 a.m. - 2.30 a.m., Jaleel armed with knife, along with Husn Bano (appellant No. 2) armed with 'GANDASA', came to the place where Saleel was sleeping and started cutting his head. On the cries of Saleel, his wife Haseena (P.W.1), intervened to save her husband but the appellants inflicted injuries with knife and 'GANDASA' on her person also. Meanwhile, Nababul Ahmed (P.W. 3), Akhtari Begum (P.W. 2) and one Arif Khan also reached at the scene of occurrence. Saleel died of the injuries at the spot. His wife Haseena was taken to Soban Singh Jina Base Hospital, Haldwani, Nababul Ahmed (P.W. 3), lodged First Information Report (Exh. A-1), soon after the incident on 16-5-1992 at about 3-15 a.m. at Police Station Kichha. A check report (Exh.A-5) was prepared by the police and crime No. 167 of 1992 was registered against both the appellants under Sections 302 and 307 of IPC. An entry in the General Diary was made at serial No. 5 on the same day i.e. 16-5-1992 at 3.15 a.m. (copy of extract Exh. A-6), regarding the FIR been lodged. Haseena (P.W. 1), the injured who was taken to Soban Singh Jina Base Hospital, Haldwani, was medically examined on the very day i.e. on 16-5-1992 at about 5-45 a.m. The following injuries were found on the person of Smt. Haseena, and recorded by Dr. S.C. Tamta (P.W. 4) who prepared injury report (Exh. A-2):- 1. Incised wound 7 cm x 1 cm x muscle deep on the left side of the head. 3 cm above the ear. Margins were smooth and regular, Bleeding present. 2. Incised wound 5 cm x 1 cm x muscle deep on back of left ear including ear pinna, 3 cm below injury No.1. Margin smooth and regular. Bleeding present. 3.Incised wound 7 cm x 6 cm x bone deep in left scapula region. Margin smooth and regular, Bleeding present. 4.Abrasions multiple on left index and middle finger in an area of 3 cm x 4 cm. Bleeding present. 5.Incised wound 1.5 cm x 4 cm x muscle deep on 1st phalanx of right ring finger. In dorsal aspect bleeding present. 6.Incised wound 1.5 cm x .5 cm x 1 cm on the upper lip. Bleeding present. 7.Incised wound 3.5 cm x 1 cm x scalp deep on back of head 7 cm from the ear. Bleeding present. Margins smooth and regular. 8.Incised wound 2 cm x .5 cm x scalp deep on back of head 3 cm away from injury No.7. Margins regular and smooth. Bleeding present. 9.Incised wound 5 cm x 1 cm x bone deep on right ring finger, Bleeding present. 10.Incised wound 1.5 cm x 1 cm x muscle deep on left forearm. Dorsal aspect 4 cm below the elbow. Bleeding present. At the end of his report, the Medical Officer observed that injuries were caused by sharp edged object and duration was fresh. The injured Haseena was admitted in the Soban Singh Jina Base Hospital, Haldwani with Bed Head Ticket No. 2433 (Exh. A-3).

(3.) After the FIR was lodged, the police went to the village Darau on the very day i.e. on 16-5-1992 and took the dead body of Saleel in their possession and prepared the inquest report (Exh. A-7), before the witnesses. Thereafter letter (Exh. A-8) to the Chief Medical Officer, was prepared and the dead body was sent for autopsy along with the diagram (Exh. A-9) and other necessary papers police Form No. 13 (Exh. A-11), sample seal (Exh. A-12) with the request for post-mortem examination.