AFSAR KHAN Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS is an appeal preferred by Afsar Khan against judgment dated 8.1.2003 passed by Additional Sessions Judge, Lakhimpur Kheri in S.T. No. 328/2001, State v. Afsar Khan, under Sections 302, 307, 504 and 506, I.P.C.. P.S. -Mohammadi, District Lakhimpur Kheri, by which, the appellant was convicted under Section 304, I.P.C. for 10 years rigorous imprisonment and fine of Rs. 5,000 and on non -payment of fine a further imprisonment of one year and six months imprisonment under Section 506, I.P.C. The brief matrix of the case is that the complainant Babu Khan on 7.2.2001 at about 8.00 p.m. was returning to his house with his son Span from the shop of Israr after purchasing things of daily use. As they reached in front of house of Afsar Khan, Afsar Khan was standing in front of his house having country made pistol in his hand. He said that you have falsely implicated him in an engine theft case and further he stated that today I will teach a lesson to you in respect of false charges and saying these words he opened fire on the son of complainant with intention to kill him. The son of complainant moved forward, fire hit his back and he fell down. In the mean time, Suleman. Sabir and other villagers reached on the spot on which, accused ran away from the spot and entered into his house. The complainant took his injured son to Police Station and lodged a written complaint, on which, case was registered as case crime No. 34/2001, under Sections 307, 504 and 506 at Police Station Mohammadi and injured was sent to C.M.C. Mohammadi Kheri with constable. The injured Ispan Khan was examined by doctor (P.W. 6) A.B.P. Sinha and after examination he prepared injury report (Ex. Ka -8). As per injury report, there is one fire arm wound of injury of size 3.5 cm. x 3 cm. into cavity deep on left side back of chest near vertebral column region 9 cm. below the 7 cervical vertebral. The blackening is present. No wound of exist seen. Margins are lacerated, pellets are not palpable. Bleeding is present. X -ray was advised. X -ray of the injured Ispan Khan was taken at District Hospital, Lakhimpur Kheri and as per X -ray report (Ex. Ka -6) there are multiple small round radio optical foreign body shadows of metallic density seen in right side of chest with collapse of right lung and partially collapse of left lung. He was admitted in the district hospital and later on he was discharged from the hospital and on 23.3.2011 during his treatment he died. Babu Khan (P.W. 1) informed the Police Station on 24.3.2001 by written report (Ex. Ka -2). On which, case was altered under Section 302, I.P.C. and on 24.3.2001 inquest report was prepared and postmortem of deceased Ispan Khan was conducted by Dr. P.K. Ganguli (P.W. 5) and he prepared post -mortem report (Ex. Ka -7). As per post -mortem report, cause of death is Septicemia as a result of ante -mortem septic wound. After investigation, charge -sheet (Ex. Ka -17) was filed against the appellant Afsar Khan, which was proved by Investigating Officer (P.W. 8).

(2.) THE case was committed to the court of Session and on 1.2.2002 charges were framed by Special Additional Sessions Judge, Lakhimpur Kheri, under Sections 302, 504 and 506, I.P.C. Prosecution examined (P.W. 1) Babu Khan complainant eyewitness, (P.W. 2) Suleman Khan eyewitness, (P.W. 3) Brahmanand Dwivedi Chauki Incharge. Amir Nagar, Police Station -Mohammadi, (P.W. 4) Dr. R.K. Kanchan, radiologist, (P.W. 5) P.K. Ganguli who has conducted the post -mortem and proved postmortem report, (P.W. 6) Dr. A.B.P. Sinha. who initially examined injured Ispan Khan and proved his injury report, (P.W. 7) S.I. Siyaram who proved inquest report and other papers, (P.W. 8) S.H.O. Vishwanath Singh Nagar, who after investigation, submitted charge -sheet. In defence accused produced (D.W. 1) Israil Khan.

(3.) LEARNED counsel for the accused -appellant has submitted that there is no reliable evidence against the accused. There are major contradictions in the statement of witnesses. There are no independent witnesses and only interested and chance witnesses were produced. F.I.R. was anti time because in majroobi chitthi no crime number was mentioned. As per version of D.W. 1. his shop was closed at 7.00 p.m. and the occurrence was of 8.00 p.m. which was said to be occurred when the deceased was returning with his father from the shop of D.W. 1, incident is of night and there was no source of light, which creates doubt in the prosecution story. In fact, the place of occurrence is somewhere else and due to enmity the accused -appellant was falsely implicated. As per post -mortem report, cause of death is due to septicemia which can be possible from the negligence in treatment. No offence under Section 304, I.P.C. is made out and utmost an offence under Section 324, I.P.C. is made out. The prosecution case is full of doubt and the accused is entitled for the benefit of doubt.