NASIR Vs. STATE OF U.P.

JUDGEMENT

(1.) Nasir has preferred this appeal against the judgment and order dated 10.9.1981 passed by IInd Additional Sessions Judge, Saharanpur in S.T. No. 5 of 1981 convicting the appellant under Sec. 307 Indian Penal Code and sentencing 3 years R.I. and fine of Rs. 500.00 and in default of payment of fine further six months R.I. Heard Sri Virendra Kumar, learned Counsel for the appellant and learned AGA and perused the findings recorded by IInd Additional Sessions Judge, Saharanpur in S.T. No. 5 of 1981 convicting the appellant. The Sessions Judge, Saharanpur vide his report dated 28.2.2004 has reported that the record of S.T. No. 5/81 decided on 10.9.1981 "related to appellant" has already been weeded out on 17.6.1993. After the report from the Sessions Judge, the Sessions judge was directed to get the Lower Court record reconstructed. The Trial Court had tried its best, by issuing notice to the defence Counsel, who conducted the case at the Trial Court on behalf of the appellant and also the Public Prosecutor. After receiving reply in response to the notices that both the parties are not having any record relating to S.T. No. 5 of 1981 he informed vide his report dated 20.5.2004 that the reconstruction of the record is not possible. In view of this report of Additional Sessions Judge, Court No. 2, Saharanpur forwarded by the Sessions Judge, Saharanpur to this Court, I have examine the findings recorded by the Trial Court with the assistance of the learned Counsel for the parties.

(2.) The prosecution story in brief, as disclosed by Afzal Ahmad P.W. 1, that on 5.9.1980 at about 11 or 11.30 a.m. outside his shop in Mohalla Kori Tila, P.S. Mandi the appellant attacked on him with knife. He raised alarm which attracted Khalil P.W. 2, Zahoor P.W. 3, Arshad and Rashid. Arshad tried to snatch the knife from the appellant but he could not succeed. The witnesses brought the injured Afzal to the hospital and he was admitted. He lodged a written report Ex. Ka-1 and the case was registered under Sec. 307 Indian Penal Code vide G.D. entry Ex. Ka-4 prepared by head constable Mangoo Singh P.W. 4. The blood stained clothes of the complainant were taken in police custody by the Investigating Officer B.D. Verma. The memo is Ex. Ka-2. P.W. 1 Afzal Ahmad was examined by Dr. A.K. Jain P.W. 5 after about one hour of the incident at 12.20 in the noon. He found following injuries on his person:

(3.) According to Doctor all the injuries were caused by sharp aged object, like a knife and injuries No. 1, 3, 6 and 7 were kept under observation and rest of the injuries were simple. The genuineness of the injury report was also admitted by the defence under Sec. 294 of the Code of Criminal Procedure.