Decided on July 04,1984



S.S. Byas, J. - (1.)By his judgment dated Oct. 28, 1977 the learned Sessions Judge, Merta convicted and sentenced the accused Gulab Chand as under:- JUDGEMENT_77_LAWS(RAJ)7_1984(1).html
(2.)Substantive sentence were directed to run concurrently. The accused has come up in appeal to challenge his conviction and sentence.
(3.)Briefly stated, the prosecution case is that P. W 3 Bashiruddin was posted as a Guard in Northern Railway at Merta Road in 1976. He was living with his wife Smt. Safina (P. W. 1) and minor children in Railway quarter No. N. T. 72-C situated in loco colony. In the evening of June 25, 1977 he and his wife after taking meals retired to sleep. He was sleeping in his drawing room shown by letter F in site plan Ex. P. 1 whereas his wife Smt. Safina and his two minor daughters were sleeping in the inner Varandah shown by letter in site plan EX. P 1. Smt. Safina was nearly 20 years of age at that time. The accused was a cleaner in railway in Merta Road and used to discharge the duties of call-man to communicate the message of duty to drivers and fireman. At about 11-30 P.M., PW 1 Smt. Safina hearing some Aahat' awoke and found the accused standing near her cot with a knife in his hand He caught the cheeks of Smt. Safina. She pushed him and raised cries. Hearing her cries, her husband Bashiruddin (PW 3) came out from his room. He challenged the accused. The accused tried to escape and Bashiruddin attempted to catch hold of him. Bashiruddin caught the accused by his Baniyan but the accused managed to run away forcibly. In that process, a piece of Baniyan of the accused remained in the hand of Bashiruddin. When the accused found it difficult to escape, he took out the knife and aimed to strike a blow in the abdomen of Bashiruddin. Bashiruddin took a turn to escape and the knife-blow fell on his left hip, causing injury on that part Bashiruddin fell down. He raised cries. Hearing his cries, his neighboured PW 6 Abdul Sattar and PW 7 Saburuddin came there. They tried to catch hold of the accused but seeing a naked in his hand, could not dare to do so. The accused thus managed to run away. There was bleeding from the wound of Bashiruddin. Somebody immediately went to the railway doctor Shri Hanuman Singh (PW 4) and brought him there on the spot. He gave the First Aid Treatment to Bashiruddin. A report Ex. P of the occurrence was drawn up and was presented to Police Station, Merta Road at about 00 30 hours on May 26, 1976. The police registered a case and proceeded with investigation. Bashiruddin was next taken to the Civil Hospital, Merta City. His injury was examined by Dr. Tulsaram (PW 5) and he found the following:-
1. Incised wound 31/2 x muscle deep (1") on the upper and outer part of left buttock near iliac crest transversely oblique having maximum depth in the central part of the wound. Margins of the wound were clean cut and surrounding tissues were not contused. Clotted blood-present in the wound. The wound was already dressed by Medical Officer Railways, Merta Read, as a first aid measure to prevent bleeding. The wound was closed In layers and applied, by me. The muscle and fascia were cut upto the deep of bone near iliac crest which was stitched by cat gut. The injury was simple in nature and produced by sharp object".
The deration of the injury was within 12 hours at the time of examination. The injury was caused by some sharp edged weapon like knife. The injury report is Ex. P 8. The accused was arrested. While running away, the accused had dropped the knife in a drain out-side the house of Bashiruddin. It was noticed by PW 1 Smt Safina who took it out. It was produced by her before the police. On the completion of investigation, the police presented a challan against the accused in the Court of Additional Munsif and Judicial Magistrate, Merta City, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under sections 458, 354, 307 and 326, I.P.C. against the accused, to which he pleaded not guilty and demanded the trial. According to the accused, he was falsely implicated. It was also alleged by him that the police have suppressed the real facts. In this statement under section 313, Cr. PC he that at about 9-30 P.M. on the day of occurrence he was going to his quarter. In his way when he came out-side the quarter of Bashiruddin, Bashiruddin came out and over-powered him. There was a scuffle between the two. He (accused) tried to extricate himself from the clutches of Bashiruddin. In that process he gave a push to Bashiruddin. Bashiruddin fell on a drum lying near by. Bashiruddin, thus, sustained an injury on his hip. In support of its case, the prosecution examined 11 witnesses and filed some documents. In defence, the accused examined four witnesses. On the conclusion of trial, the learned Sessions Judge found the prosecution story substantially true against the accused. He found no merit in the defence. He was, however, of the opinion that no case under sections 307 and 326, Penal Code was made out. The accused was consequently convicted and sentenced as mentioned at the very outset. Aggrieved against his conviction and sentence, the accused has taken this appeal. I have heard the learned counsel for the appellant and the learned Pubic Prosecutor. I have also gone through the case file carefully.

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