Mukhtar and Others vs State of U.P.

Poonam Srivastav, J.—The instant appeal was filed by the Appellants namely Mukhtar son of Waqeebullah, Lal Mohammad son of Nasrullah and Inam son of Abdul Sattar against judgment and order dated 1.4.1982, passed by Assistant Sessions Judge, Basti in Session Trial No. 223 of 1980 whereby they were convicted u/s 307/34, I.P.C. and sentenced to undergo four years R.I.

Appellant Nos. 1 and 3 died during pendency of the appeal. Appeal in respect of Appellant Nos. 1 and 3 stood abated vide order dated 2.8.2007.

Sri. A.K. Pandey, advocate was appointed as amicus curiae on 24.10.2009 since report of Chief Judicial Magistrate, was that Appellant No. 2 is neither traceable nor sureties could be intimated.

Heard Sri. A.K. Pandey, counsel for Appellant No. 2 and learned A.G.A. for the State.

Appellant, Mukhtar (since dead) married the injured Zaibunisha. According to first information report lodged by injured herself on 15.4.1977 at 17.10 hours, at police station Menhdawal, district Basti, regarding an occurrence alleged to have taken place on the same day at 2 p.m. The distance of police station is six kilometres. First information report was registered after injury of Zaibunnisha, was examined by Dr. Virendra Singh P.W. 5 at 3 p.m. on the same day.

Injury found on the body of injured Zaibunnisha, is detailed below:

An oval aperture about 1.5 cm. x 1 cm. x depth umbilicus (punctured wound) on the lower side of abdomen right side above downward 7 cm. from sup iliac sup crest of hip bone 8 cm. below umbilicus to the right side a flap of umbilicus coming out. Wound bleeding, margins cannot be traced.

Injuries caused due to sharp pointed weapon duration fresh kept under observation because depth....? case referred to Basti for necessary treatment.

All the named accused were sent up for trial. Charge was framed u/s 307 read with Section 34, I.P.C. by Assistant Sessions Judge, Basti on 24.6.1981.

According to prosecution, accused Mukhtar, husband of first informant suspected his wife that she had an illicit relation with his cousin, Yar Mohammad. Previously, a verbal altercation took place between them on account of aforesaid reason.

Allegation is that other co-accused namely Lal Mohammad and Inam brought her back when she was trying to run away and exhorted Mukhtar to kill her. Her husband gave a knife blow causing injuries in her abdomen.

Prosecution examined six witnesses. P.W. 1 Ibarat Khan, P.W. 2 Murtaza, as eye-witnesses who were named in the first information report. P.W. 3 S.I. Surya Dev Pathak, P.W. 4 injured Zaibunnisha, P.W. 5 Shambhu Nath Shukla is wrongly shown as P.W. 4 because P.W. 4 happens to be first informant, P.W. 6 Dr. Virendra Singh.

Two named eye-witnesses of first information report, Ibarat Khan and Murtaza have been declared hostile. Thus, only evidence of fact remains to be that of injured Zaibunnisha.

The counsel for Appellant has placed her evidence to demonstrate that Appellant-Lal Mohammad was inimical to sister of P.W. 1 with whom she is admitted to be living after she left her husband. Appellant, Lal Mohammad, is attributed role of instigation and it was he who incited her husband to kill her. He, therefore, gave a knife blow, which resulted in causing her injury. Record does not show any supplementary injury report though doctor has admitted that she was referred to District Hospital for further treatment.

Next submission is that present Appellant was sentenced to undergo four years R.I. with aid of Section 34, I.P.C. There is no overt role of causing injury whereas there is a specific reason for his false implication. It is a dispute between husband and wife and also Yar Mohammad alleged to be her paramour. He had taken the injured to the doctor as it is evident from the medical report.

The counsel for Appellant has also submitted that sentence u/s 307/34, I.P.C. is too excessive since injury is not such, which required any further treatment. There is nothing on record to substantiate that any internal damage was caused to the injured or whether any further treatment was given to her.

Learned A.G.A. has disputed each and every argument and also tried to support judgment of conviction on the ground that the injured herself is a witness and the factum of causing injuries cannot be disbelieved. Admittedly, she was living separate from her husband and Lal Mohammad was also not having cordial relations who also happens to be related to sister of the injured.

Learned A.G.A. has also tried to substantiate his argument from the statement of the doctor, who had admitted in the cross-examination that injury was sufficient and could have caused death, therefore, conviction u/s 307/34 is fully justified.

After hearing counsels for respective parties, going through the entire record as well as statements, only evidence is that of Zaibunnisha and also injuries are caused on the vital part of the body. It is a case where conviction cannot be said to be bad. No doubt, two eye-witnesses who are said to be independent, have turned hostile but the injured herself supported prosecution case, therefore, it cannot be said that injury was not caused by her husband. However, since Appellant was convicted with aid of Section 34, I.P.C., I am of the considered view that sentence of four years R.I. appears to be excessive specially in respect of Appellant No. 2, Lal Mohammad. The judgment and order dated 1.4.1982, passed by Assistant Sessions Judge, Basti, is upheld.

Appellant No. 2 surrendered in Court on 27.4.1977. He was granted bail on 30.4.1977. Subsequently, when judgment of conviction was pronounced, he was taken into custody. He was granted bail in appeal by this Court vide order dated 29.4.1982. In the circumstances, it is evident that Appellant No. 2 was in jail more than one and quarter month. However, sentence of four years R.I. is reduced to the period already undergone especially after lapse of more than thirty years. A penalty of Rs. 2,000 is also imposed. The Chief Judicial Magistrate, Basti, shall realize the amount of fine by selling of his property or any other assets available. The Appellant need not be taken into custody. Bail bonds and sureties of Appellants are discharged. The instant appeal is partly allowed.