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2014 DIGILAW 150 (UTT)

NANHA v. STATE OF UTTARAKHAND

2014-04-01

SERVESH KUMAR GUPTA

body2014
JUDGMENT Hon’ble Servesh Kumar Gupta, J. Appellants Nanha, Nafees and Anees have challenged the judgment and order of conviction dated 20.2.2003 passed in Sessions Trial No. 259/95, wherein they along with one other accused Abdul Qayoom were found guilty for the offences of Section 307/149 and 148 IPC. Abdul Qayoom is not before this Court in the instant appeal. Appellants have been appropriately sentenced by the Trial Judge. 2. Having heard learned Sr. Counsel on behalf of the appellants as well as the State Counsel, the genesis of the prosecution case unfolded from the facts is that there was a shop owned by Nakeeb (victim) in the market. This shop was in the possession of Javed @ Lamboo. Some Panchayat held between the Nakeeb and Javed, wherein it was agreed that the same will be vacated by Javed on 4.4.1995. All the accused persons allegedly were the sleeping partners of Javed. When Nakeeb did not feel any indication that promise to vacate the shop will be honoured by Javed, he along with his nephew Mohd. Haseeb (PW4) reached at the shop in the morning of 4.4.1995 at about 7.30 AM. They began to lift the shutter of the shop in order to take possession of the same. As the Nakeeb and his nephew were in the process of doing all this, the appellants along with three others, namely, Tahir, Abdul Qayoom and Yaseen came there. All were having the daggers in their hands, while Nafees and Anees were having the country made pistols in addition to. Soon the verbal sparing bout turned into the fearsome quarrel. Nafees and Anees touching the barrel of their country made pistols on the temple and abdomen of victim accostedly pushed him to some distance towards east, where he was severely beaten and everyone caused the stab wounds by the daggers in their respective hands. When they were pushing him from the spot ‘A’ to ‘X’, as shown in the map Ex. Ka-6, the assailants Nafees and Anees opened the fire from their respective pistols, but the cartridge of each pistol was missed. In that way, they could not cause any firearm injury to the victim, but he was mortally wounded by causing the stabs from their respective daggers. Ka-6, the assailants Nafees and Anees opened the fire from their respective pistols, but the cartridge of each pistol was missed. In that way, they could not cause any firearm injury to the victim, but he was mortally wounded by causing the stabs from their respective daggers. After making him mortally wounded, they took to their heels towards east of that street and the injured victim in order to save his life further escaped towards west and fell down at the spot shown as ‘B’ in Ex. Ka-6. He was shifted to the hospital (Community Health Centre, Khatima) at about 8 AM on 4.4.1995. Dr. PK Mishra prima facie found two injuries on his body, which are as under: (i) Stab wound over abdomen, intestine and other viscera coming out. (ii) Incised wound on right side of neck extending up to chest. 3. In the opinion of the doctor, all injuries were kept under observation, duration was fresh and these were caused by sharp and hard object. The doctor further noted that the details of the injuries were not recorded because the general condition of the patient was serious and the wounds could not be exposed. He recommended the dying declaration to be recorded. The injured was again examined on 6.4.1995 at 10.45 AM by the same doctor PK Mishra and the supplementary report is Ex. Ka-2. 4. The report was soon lodged by Mohd. Haseeb, an eyewitness (nephew of the injured), which is Ex. Ka-3. It was lodged on 4.4.1995 at 8.20 AM. Chick report is Ex. Ka-4. The police came into motion and submitted the chargesheet against as many as six accused persons, namely, Nanha, Nafees, Anees, Abdul Qayoom, Tahir and Yaseen for the offences of Section 147, 148, 149 and 307 IPC. Learned Additional Sessions Judge has levelled the charges accordingly. They all abjured their guilt and claimed trial. 5. It appears that one of the accused Tahir, who was chargesheeted by the police, had died even before levelling of the charge, while another accused Yaseen died during trial. So, the case was abated against both these accused persons, namely, Tahir and Yaseen. Only four accused persons faced the trial. 6. Learned Sr. 5. It appears that one of the accused Tahir, who was chargesheeted by the police, had died even before levelling of the charge, while another accused Yaseen died during trial. So, the case was abated against both these accused persons, namely, Tahir and Yaseen. Only four accused persons faced the trial. 6. Learned Sr. Counsel on behalf of the appellants has opened the argument that to make out the offence of Section 149 IPC, the number of assailants to be five or more than five is an indispensable condition, while in the instant case only four accused persons have faced the trial. This contention is wholly unsubstantial for the reason that the number of assailants is to be seen at the time of occurrence. The Investigation Officer has found the truthfulness in the number of assailants to be six as have been stated in the FIR. So, he has submitted the chargesheet. It does not matter if two of them died either during levelling of the charge or during the course of trial. 7. Learned Sr. Counsel further contended that only two injuries were found on the body of the victim. This argument is also beyond the factual scenario. Nakeeb (injured) was examined soon after the occurrence in the Community Health Centre, Khatima and the doctor found the two injuries and mentioned in his report Ex. Ka-1 that the details of the injuries could not be noted because the general condition of the patient was serious and his other injuries could not be exposed. He was of the view that the condition of the injured was so serious inasmuch as he recommended the recording of the dying declaration. Supplementary report Ex. Ka-2 reveals seven injuries, which are all stitched wounds on the vital parts of the body and this supplementary report was prepared by the doctor on 6.4.1995 at 10.45 AM. So, the argument of learned Sr. Counsel is wholly not acceptable even more because when the injured was taken to the operation theatre, the surgeon present there also found all these injuries present which were recorded by the doctor in the supplementary report. This Court does not want to reproduce all these injuries and to burden the judgment again by writing the same. 8. It has been further contended that PW2 Mukhtar Ahmad is the relation of injured while PW4 Mohd. Haseeb is the nephew. This Court does not want to reproduce all these injuries and to burden the judgment again by writing the same. 8. It has been further contended that PW2 Mukhtar Ahmad is the relation of injured while PW4 Mohd. Haseeb is the nephew. So, both are the related witnesses and their testimony cannot be relied upon. This argument cannot be accepted for the reason that PW2, though a relation, but has spoken spade a spade. He does not claim to be the ocular witness of the actual incident, but has deposed only that he saw the assailants while they were running away having the daggers in their hands. PW4 though the nephew of the injured, but he has fully corroborated the testimony of his injured uncle. 9. In a catena of judgments, Hon’ble Apex Court and other High Courts have held that the evidence of sole related witness cannot be discarded merely on the ground of being a sole and related witness if his evidence is found worthy of credit. There is no discrepancy or even notable contradiction in the testimony of PW4 and that of the deposition of PW1 (victim). 10. It was next argued that there is some discrepancy regarding the presence of the constable of the outpost either at the spot or in the way when the injured was being shifted to the hospital or taken to the police station first. Having gone through the statements of all these witnesses, this Court feels that there is not at all any contradiction in this regard and there is no necessity to write the names of the civil persons (relatives), who shifted the injured to the hospital. If the name of the constable has been written by the doctor, it does not affect the veracity of the prosecution version at all. 11. Learned Sr. Counsel has also argued that the bloodstained soil was not taken from the spot by the Investigation Officer, but this argument is against the record of the case. Ex. Ka-7 and Ka-8 are respectively the recovery memos of the bloodstained soil as well as the blood splashed clothes of the victim. 12. As have been discussed by this Court above, there is no merit in this appeal. It is dismissed on merit. Conviction of all the appellants is hereby upheld. 13. Learned Sr. Ex. Ka-7 and Ka-8 are respectively the recovery memos of the bloodstained soil as well as the blood splashed clothes of the victim. 12. As have been discussed by this Court above, there is no merit in this appeal. It is dismissed on merit. Conviction of all the appellants is hereby upheld. 13. Learned Sr. Counsel for the appellants has prayed that since almost 19 years have passed since the occurrence took place, hence the punishment awarded by the Trial Court should be mitigated in the interest of justice. Considering the request of learned Sr. Counsel, punishment of 10 years, awarded to all the appellants under Section 307/149 IPC, is modified from 10 years to 7 years. The span of detention, which the appellants have already undergone in the present case, will be adjusted in this period. Thus, the appeal is partly allowed on the question of quantum of sentence. Appellants are on bail. They shall be taken into custody forthwith to serve out the sentence. 14. Let a copy of this judgment and order be sent to the trial court to ensure its compliance. Lower court record be sent back.