Bablu @ Furqan vs State of U.P.

K.S. Rakhra, J.—This is an appeal u/s 374(2) Cri.P.C. by Bablu alias Furqan who has been held guilty and sentenced to life imprisonment for an offence u/s 302 IPC vide order dated 6.5.2000 passed by 1st Addl. Sessions Judge, Bareilly in Sessions Triai No. 701 of 1997.

The incident relates to murder of Faheem Ahmad alias Munne residenf of 659 Civil Line Beharipur, police station Kila, district Bareilly. He was an employee of M/S SSM Traders- a firm dealing with stationery and book binding etc. It is alleged that the appellant Bablu also worked in the said firm for few days. Two days before the date of incident he was slapped by Faheem Ahmad in connection with stealing of some articles in the factory.

It is alleged that on 8.6.1997 at about 9.30 a.m. deceased Faheem Ahmad alias Munna, other workers of the said firm along with its proprietor Idrish P.W. 1 were present in the factory and. were engaged in their activities when appellant Bablu arrived there and hurled abuses on Faheem Ahmad who had slapped the appellant two days ago. On account of this slapping, the appellant declared that he would not leave the deceased alive and pulled him out of the premises of the said firm. He then took out a butcher''s knife from his pant and gave a knife blow on the back of Faheem Ahmad. Faheem Ahmad received a knife injury on the back of his chest and died on the spot. The factory owner Idrish tried to catch the appellant but he succeeded in running away using force. At the time of incident Tausik Ahmad, Anis Ahmad and Suresh also appeared there and tried to apprehend the appellant but he succeeded in running away.

A report of the incident was scribed by Riyasatullah at the instance of factory owner Idris and was handed over to police station Kotwali district Barreilly which was registered as case crime No. 1512 of 1997 u/s 302/504 IPC.

The investigation of the crime was taken over by Sri Padam Singh, S.I. Police station Kotwali who conducted the investigation till 18.6.1997. He recorded the statement of the complainant and the witnesses and also prepared a site plan after spot inspection. He found bloodstained earth at the place in front of the factory premises of the complainant where the dead boy of the deceased was lying. He collected bloodstained and plain earth and prepared inquest report. The remaining part of the investigation was conducted by Sri Jitendra Tyagi P.W. 8 who submitted charge sheet against the appellant. In the course of investigation the dead body of Faheem Ahmad was sent for post mortem examination and autopsy was performed on 8.6.1997 at about 4.30 p.m. by Dr. S.K. Tiwari P.W. 3. The doctor found a single ante mortem injury on the body of the deceased which was of the following description:

Stab wound 4 cm x 1.5 cm x left chest cavity deep on the left side back of chest 2 cm below lower angle of left scapula. Margin of wounds were sharp and clean cut and everted. Dried and clotted blood was present around the wound.

In the internal examination as per report Ex.ka-2, pleura was punctured and left lung was punctured through and through. The heart was also punctured at one place. Left chest cavity contained one litre of fluid and clotted blood. In the opinion of the doctor, the death of Faheem Ahmad had occurred about one quarter day back i.e. on 8.6.1997 itself.

The stand taken by the appellant is simply of denial.

Eight witnesses were examined by the prosecution in support of its version. No evidence was adduced in defence.

Out of the prosecution witnesses, Idrish P.W. 1 is the factory owner where deceased was working and from where he was pulled out by the appellant and stabbed in front of the factory. Tausik Ahmad P.W. 2 and Anis Ahmad P.W. 4 are the real brothers and claimed that the deceased was like their nephew and they had gone there to deliver lunch/ break fast packet to him in the factory where they found that the appellant was hurling abuses on the victim and in their presence the appellant gave him a knife blow and thereafter took to his heels. They tried to apprehend the appellant on the spot but he succeeded in escaping. Both these witnesses claimed that they have known the appellant from before. Tausik Ahmad and Anis Ahmad supported the prosecution version with regard to the date, time and place of occurrence as well as on the factum of assault by the appellant on the deceased with knife, idrish P.W. 1 however showed some reluctance in his statement. Although he admitted that he was present in the factory and that the victim was done to death just infront of the factory but he disclaimed himself to be an eye witness by saying that he was inside the factory, busy in some work and when the victim fell down in front of his factory he saw him bleeding. He was declared hostile when the witness said that he had not seen who had given knife blow to the victim.

As stated earlier Dr. S.K. Tiwari is a formal witness who had performed autopsy and supported the prosecution story by saying that the injury could be inflicted with knife. Sri Padam Singh P.W. 5 is the Investigating Officer and Sri Jitendra Tyagi P.W. 8 is the second Investigating Officer. Sheo Charan Singh P.W. 6 is a constable who had registered the FIR at the police station. Sewa Ram P.W. 7 is formal witness who had carried the dead body to the mortuary for autopsy.

The trial court on the basis of evidence on record found the "charges established and convicted the appellant. It rejected the defence argument that independent witnesses were not produced and found that the statements of witnesses examined in the case were even otherwise reliable. It has taken notice of the fact that incident took place in the city of Bareilly and the witnesses were also resident of city area. It did not find contradiction between the medical and oral testimony. It rejected the contention that the FIR was ante timed. Keeping in view the relationship of the witnesses with the deceased the trial court took view that their testimony before the court should be examined carefully. It rejected the contention that investigating agency ante dated the documents pertaining to crime.

We have heard Sri D.R. Azad, Amicus Curiae for the appellant. Sri Kamal Kumar, learned AGA for the State and have carefully gone through the record.

The argument of learned Counsel for the appellant is that prosecution evidence was not reliable in so far as independent witnesses have not been examined. The first informant who is the owner of the factory in which the deceased was working lodged the FIR promptly but subsequently he disclaimed having seen the occurrence with his own eye. The second argument of learned Amicus Curiae is that even if it is accepted that the appellant had committed this crime the same would not travel beyond the purview of offence punishable u/s 304 IPC. In support of his argument he pointed out that the appellant had not given repeated blows on the victim and that shows his intention only to cause injury without intending to cause death. He further argued that motive for commission of the crime was not strong enough to motivate the appellant to commit murder. It was further argued by him that the appellant had already been in jail for long time and his conviction should be modified from Section 302 to Section 304 IPC and sentence be reduced to seven years'' imprisonment.

On the other hand learned AGA contended that the prosecution evidence was wholly reliable and intention to cause death was clearly established.

After considering the submissions in the light of evidence on record we are of the view that the prosecution evidence in this case is wholly reliable. All the three witnesses namely Idris P.W. 1, Tausik Ahmad P.W. 2 and Anis Ahmad P.W. 4 have stated that the deceased was working in SSM Traders belonging to Idris and that the deceased was assaulted in front of the said factory. As stated earlier Idris P.W. 1 was declared hostile by the prosecution but he admitted that the incident took place in front of his factory at about 9.30 a.m. He also admitted this fact that the appellant was known to him from before and before this incident the appellant'' had worked for one or two days in the factory thereafter he was disengaged as his work was not satisfactory. He also admitted that he had lodged first information report about this chine at the police station Kotwali. He also admitted his signature on the written report as well as its contents but added that the contents were dictated by the S.I. of the police station and he was only made to sign the same.

It is significant to note that the FIR in this case was very promptly lodged. Idris P.W. 1 was the person whose presence at the place of occurrence was very natural. It was his factory where the deceased was working and from where he was pulled out. The narration in the FIR that the crime was committed by Bablu in the absence of any motive for false implication lends support to the prosecution version and the evidence can not be discarded merely on the ground that in order to avoid enmity Idris thought it proper not to name the appellant in his testimony before the court.

The date, time and place of occurrence as given by the prosecution Is not disputed by the defence and no suggestion has been given to the witnesses to the contrary.

The presence of Tausik Ahmad P.W. 2 and Anis Ahmad P.W. 4 on the spot is also quite probable. They have stated that deceased was like nephew to them as his father was brought up by their father. He was residing in the same house although he cooked his food separately. At the relevant time these witnesses had gone to factory of Idris in order to deliver lunch/ breakfast packet to the deceased who had come to factory on that day without taking meal. P.W. 2 Tausik Ahmad also stated that two or three days prior to the incident the deceased had given a slap on the face of the appellant in connection with alleged theft by the appellant. He also stated that the appellant had assaulted the deceased with butcher''s knife and that the FIR of the incident was scribed by Riyasatullah and it was taken to the police station by this witness and P.W. 1 Idris. He also stated that he knew the appellant from before. According to him the written report was prepared at the place of incident itself. There is nothing in the testimony of this witness, which may create any doubt about its truth. Similar is the statement of P.W. 4 Anis Ahmad who is brother of P.W. 2 Tausik Ahmad. He claimed to be an eye witness and deposed that he had seen the occurrence. He also stated that the report of the incident was prepared by Riyasatullah and it was taken to the police station by Idris and this witness. Nothing significant was elicited out from the statement of this witness which may render it unreliable.

The testimony of eye witnesses is fully corroborated by that of Dr. S.K. Tiwari P.W. 3 who had given post mortem report. The nature of injury suffered by the victim is wholly inconsonance with the testimony of eye witnesses. The trial court rightly observed that the testimony of interested witnesses can not be rejected solely on the ground of their relationship with the deceased in case their testimony is otherwise reliable. The testimony of eye witnesses in this case is otherwise reliable and therefore the trial court rightly placed reliance on it. We do not find any reason for false implication of the appellant. We are, therefore, of the opinion that the trial court has rightly relied upon the prosecution evidence to hold the appellant guilty.

Coming to the second limb of the argument of learned Amicus Curiae we find that although it it is a case of single knife blow but that by itself can not reduce the offence u/s 302 IPC to Section 304 IPC. It is not a case where some fight took place all of sudden nor it is a case where the accused picked up weapon of assault from the place of occurrence itself nor it is a case of any grave or sudden provocation. The defence has also not brought forward any argument of self defence. Had it been the case covered under any of these circumstances the fact that the accused had given only one knife blow could have been relevant in determining the knowledge or intention of the accused. It is a case where motive for the commission of crime was not weak or stale. The appellant had brought butcher knife with him while reaching the place of occurrence. The blow of knife was so severe that it had not only caused stab wound but the knife had penetrated to the extent that it had caused puncture in the pleura, left lung and also the heart of the victim. All these circumstances show that death of the victim in the instant case has been caused by doing of an act with the intention of causing bodily injury which was sufficient in the ordinary course of nature to cause death. The act done by the appellant in this case was so imminently dangerous that he must have known that in all probabilities it could cause death or such bodily injury to the victim as was likely to cause death. The appellant had committed this without any excuse. The case would therefore fall u/s 300 punishable u/s 302 IPC.

We are, therefore, of the opinion that the act of the appellant, in the instant case, is clearly within the definition of murder given in Section 300 of Indian Penal Code and that it does not fall into any of the exceptions given therein. We therefore conclude that finding recorded by the trial court holding the appellant guilty u/s 302 IPC is correct and reasonable. We therefore find no good ground to alter the conviction or reduce the punishment.

The appeal has no force and is accordingly dismissed. Let a copy of his judgment be certified to the court below for necessary action. The appellant is already in jail.