ERAM NASIR Vs. STATE OF U.P.

JUDGEMENT

(1.) Present criminal appeal has been preferred by appellant Eram Nasir @ Bantu R/o House No. 260 Gher Sheikh Mattoo Near Hina Junior School, Police Station - Qila, District Bareilly against judgment and order of conviction and sentence dated 10.8.2010 passed by Additional Sessions Judge, court No. 1, Bareilly in Sessions Trial No. 660 of 2008 (State of U.P. v/s. Eram Nasir @ Bantu v/s. State of U.P.), under Ss. 328, 304 IPC, Police Station Qila, District Bareilly arising out of Case Crime No. 105 of 2007, whereby the appellant has been sentenced under Sec. 304 IPC to undergo rigorous imprisonment for life with a fine of Rs. 20,000/ - in default of payment of which, further imprisonment for a period of six months and under Sec. 328 IPC to suffer rigorous imprisonment for 5 years with a fine of Rs. 5,000/ - in default of payment of which, a further imprisonment for a period of 3 months, both the sentences to run concurrently.

(2.) Facts giving rise to this appeal are that complainant Smt. Fatima wife of Late Mohammad Sardar, resident of Gher Sheikh Mithoo Near Hina Junior School, District Bareilly lodged written report at police station Qila on 17.1.2007 regarding incident dated 30.4.2006 at about 5.30 p.m. to the effect that her son Afsar was engaged in embroidery as well as work of B.C. (collection of money and distribution among certain members) for his livelihood. Accused Eram Nasir @ Bantu had taken Rs. 7,000/ - from her son Afsar. Complainant's son Afsar went to Eram Nasir @ Bantu on 30.4.2006 around 5.30 p.m. asking for Rs. 7,000/ -. Eram Nasir @ Bantu did not give the money but avoided payment of the same, called her son inside his house and began to talk to him. Accused asked her son that he should take some pill (medicine) for increasing his masculine power. Complainant's son (Afsar) refused to take the same even then Eram Nasir @ Bantu administered pill to her son. After he swallowed the pill his condition deteriorated. In the meantime, Bablu son of Khalil Khan resident of the same village, who was present over near house of Eram Nasir @ Bantu took care of his son and informed about the incident to her. Abrar, the second son of complainant took Afsar to District Hospital, Bareilly for treatment. Complainant also accompanied her son. On being asked her son told that Eram Nasir @ Bantu has administered some poisonous substance for improving his masculine power due to which his condition deteriorated. Complainant's son was got admitted in the hospital in the night on 1.5.2006 where he expired in the morning hours. Postmortem examination was conducted and the dead body was handed over for performing funeral. At that point of time his report was not lodged, instead she was advised to wait for viscera report. It has been mentioned in the first information report that complainant was informed by her counsel that the viscera report has been submitted, therefore, the complainant has come to the police station to lodge the report. This report has been proved by Fatima P.W.1 as Exhibit Ka -1. Contents of aforesaid report were taken down in the relevant Check FIR No. 12/2007 on 17.1.2007 at 21.35 hours at Police Station Qila, district Bareilly at crime No. 105 of 2007, under Ss. 328 and 304 IPC. This Check FIR is Exhibit Ka -3 on record. On the basis of Check FIR relevant entries were made in the concerned GD and the case was registered against accused at Crime No. 105 of 2007, under Ss. 328 and 304 IPC, Police Station Qila. The concerned GD is Exhibit Ka -4 on record. It is reflected from the record that prior to the lodging of above first information report inquest report was prepared on 1.5.2006 itself for the dead body of deceased Afsar, wherein, it was observed that in order to know the cause of death postmortem examination of the dead body is required. The inquest report is Exhibit Ka -13, thereafter the relevant papers for sending body for postmortem examination were prepared. These papers are Exhibit Ka -14, Ka -15, Ka -16, Ka -17 and Ka -18. It is also reflected from the record that postmortem examination on the dead body of the deceased took place on 1.5.2006 at 4 p.m. at mortuary Bareilly, wherein the cause of death could not be ascertained, therefore, viscera was preserved. This postmortem examination report dated 1.5.2006 is Exhibit Ka -2 on record and has been proved by P.W.2 Dr. Anil Kumar Gupta. After lodging of the first information report on 17.1.2007 steps for investigation was taken by the concerned Investigating Officer S.I. Ranvir Singh P.W.6 and S.I. Satish Chand Tyagi P.W.7, who in order to complete the investigation recorded statement of prosecution witnesses under Sec. 161 Cr.P.C., prepared the site plans of two places relating to the incident which are Exhibit Ka -5 and Exhibit Ka -9, respectively. After completing the investigation S.I. Ranvir Singh P.W.6 filed the charge -sheet Exhibit Ka -11 against the appellant under Ss. 304, 328 IPC.

(3.) Thereafter case was committed to the court of sessions from where it was made over for trial to the learned trial Judge, who after hearing the prosecution and the accused on point of charge found prima facie ground existing for framing charges under Ss. 328 and 304 IPC. The charges were read over and explained to the accused in Hindi, who denied the charges and opted for trial.