Iqbal vs State Of Uttarakhand

Sharad Kumar Sharma, J

There are five precise arguments, which have been raised and argued by the learned counsel for the applicant to the present bail application:

(i)         that the nature of injuries, which has been described in the medical report, they are shown as to be "incised" wounds and the interpretation given to the incised wound cannot be taken to be injuries in paralance to the stab injuries.

(ii)        secondly, he argues that there was no recovery of weapon used in the offence, i.e. knife, with which it is alleged that the injury was caused upon the person, who is reported to be injured in the FIR, i.e. Irshad.

(iii)       thirdly, he submits that there are no eye witnesses of the incident, which is alleged to have been committed by the present applicant.

(iv)       fourthly, he submits that there is no eye witness showing the present applicant escaping from the place of incident along with the knife. He submits that the presence of Iqbal at the place of incident is still doubtful. Based on the said premise, he supports his bail and argues that it is a fit case where the bail has to be granted to the present applicant.

(v)        The learned counsel for the appellant further submits that the entire story of the prosecution as narrated in the FIR, which was registered on 02.04.2018 it was in relation to the incident of 25.03.2018, it cannot be believed with for the reason being that it happens to be a counter blast of the complaint registered by Salma on 19.07.2012. He further submits that the story narrated in the FIR cannot repose much confidence on account of there being other complaints registered by Salma on 19.07.2012 and the proceeding held on 07.05.2018 before the women help line.

This court based on the aforesaid arguments has to deal with each and every aspect as argued by the learned counsel for the applicant. As per the FIR, which was registered on 02.04.2018 as Case Crime No. 25 of 2018 the present applicant is named in the FIR is shown to be involved in the commission of the offence and the role, which has been assigned therein to the applicant was shown that he has stabbed Irshad, and it was on account of the stab injuries that Irshad fell down on the floor. In support of his contention, he has drawn the attention of this Court to the supplementary counter affidavit and in particular the report, which has been submitted on 25.03.2018, wherein, as per the injury report shown therein, it reads as under:

"1.       Incised wound 4x1 cm over Rt side upper abdomen and lower ribs, deep upto muscles A/H/O-Assault as told by self and admitted."

He submits that the interpretation of the "incised" wound given therein cannot be treated as to be a stab injuries, which involved in it a penetration of a weapon used in the commission of the offence and the injuries thus caused as a consequence of the stabbing would be not an incised wound, but rather it would be wound which is caused on account of the deep penetration of the weapon into a body part.

He submits that the nature of wound as explained therein as 4cm x 1cm on the right upper abdomen and which is being described in the medical report as incised wound it cannot be taken as to be a stab injury. Further he submits that the stab injury could not be treated as per the nature of injuries described therein the report because there is no observation in the medical report that there is a penetration of a weapon, hence, that itself is sufficient to release the applicant on bail.

This Court is not in agreement with the nature of argument extended by the learned counsel for the applicant. Because according to the medical report as submitted by the Doctors, the injury is said to have been caused on the upper abdomen and as a consequence of the assault the ribs of Irshad was injured and not even that the impact of penetration itself is substantiated from the report of the doctor, wherein, he has observed that as a consequence of the penetration of the weapon used in the commission of the crime, which has resulted into injuring the liver, which was ruptured, which was on vital part of the body, as would be apparent from the report submitted by Asian Vivekananda Super Specialty Hospital dated 26.03.2018, wherein, it has been observed as under:

"Impression: Findings are suggestive of

Hepatomegaly with large are of contusion with laceration and hematoma measuring 73x53x58 mm in size in the segment IV and VIII of liver with extension to the surface of liver. Multiple active leakage of contrast seen near surface and hematoma of liver. Subcapsular hematoma seen around liver.

Massive right hemothorax with underlying collapse consolidation of right lower lobe with? Injury to right dome of diaphragm.

Mild Hemoperitonium."

Once, its an injury of serious nature, and which has been consistently kept under observation by the medical experts, to have been caused on the upper abdomen resulting into injuring a rib cage and injuring the liver also as it has been observed in the medical report, this court is not inclined to accept the argument that it was an incised wound and not a penetration of weapon as a consequence of the stab injuries. Hence, this argument of the learned counsel for the applicant is declined to be accepted.

The second argument, which the learned counsel for the applicant has raised, is that there is no recovery of the knife. As far as the said argument is concerned pertaining to the effect of non-recovery of the knife, which was used in the commission of the offence, may not be of much relevance as far as the consideration of the bail application is concerned, because the impact of its non-recovery would be an aspect to be considered by the Trial Court, itself when the trial is conducted finally. Non-recovery of the weapon cannot be interpreted at this stage as if there was a non-involvement of the applicant in the commission of the offence, particularly, when as per the narration made in the FIR it is shown by the complainant that Iqbal was the person, who was involved in stabbing injured Irshad. Thus, the impact of non-recovery of the weapon is not so vital for the purposes of considering the bail application because at this stage it has to be seen only as to the nature of injuries, which has been suffered by the victim, which happens to be on the vital part of the body and as to whether it would have an impact of causing danger to the life of the person, who is the victim.

After having considered the opinion extended by the doctors and particularly the part of the body where the injury was caused, this Court is of the opinion and of view that it is vital part of the body and since having observed that it was not an incised wound considering the medical report, it would be having a vital effect on the life of the injured person and it would fall to be an offence within the domain of the provisions contained under Section 307 of IPC.

Third argument extended by the learned counsel for the applicant is that while the so called story of escaping of the present applicant from the site in question is concerned, nobody has seen him escaping from the place, or even if he has been seen escaping, nobody has remarked at any point of time during the course of investigation that he was escaping with the weapon in his hand. Yet again the said aspect pertaining to his escaping, and argument pertaining to non-availability of an eye-witness showing him escaping with the weapon would not be relevant at this stage to eradicate the involvement of the applicant for the commission of the offence under Section 307 of IPC. For which this Court is of the view that the opinion expressed by the doctors itself would suffice if the nature of injuries is on the vital part of the body and has been causing danger to the life of the victim. Yet again it may be marked that the circumstances under which the escape was made, whether there was an available witness when the applicant is said to have been making endeavours to escape from the place in question is yet again could only be considered by the Trial Court only at the time of conducting the trial.

The plea raised by the learned counsel for the applicant that the FIR is nothing but a counter blast of the complaint, which was registered by Salma on 19.07.2012. This story, which has been developed by the applicant in order to attract the story of counter blast to the FIR is not acceptable by this court for the reason being that according to the applicant admittedly the said complaint registered by Salma happens to be that of 19.07.2012, there could not be any nexus with a complaint, which as lodged on 19.07.2012, that an incident as it has been narrated in the FIR is said to have chanced on 25.03.2018, i.e. much thereafter the said complaint of 19.07.2012. The second nexus, which he has tried to argue is on the basis of the subsequent complaint registered by Salma on 06.04.2018, rather the said complaint was even subsequent to the registration of the FIR No. 25/18, which was registered at 8:45 PM on 02.04.2018 and the complaint itself happens to be that of 06.04.2018, i.e. in close affinity to the date of incident and the registration of the FIR and evidently after registration of the FIR also.

As far as the set of allegations pertaining to the participation of the parties in dispute before the Mahila Cell for settlement of the controversy will not dilute the offence under Section 307 of IPC, which is altogether an endeavour by Mahila Cell for settlement of matrimonial dispute, which is contemplated under the matrimonial laws as applicable and that is itself will not eradicate the involvement of the applicant in commission of the offence on 2.04.2018 because even if the efforts for settlement of controversy is held before Mahila Cell, it is exclusively a settlement of matrimonial dispute and not in relation to the set of allegation as narrated in the FIR.

Consequently, based on the aforesaid reasons, this Court is not inclined to grant bail to the applicant and the bail application is, accordingly, rejected.