IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1197 OF 2001 (OLD NO.945 OF 1997) 1. Mohd. Rafi @ Rafiya S/o Mohd. Nabi 2. Nazakat S/o Visharat Hussain ……… Appellants Versus The State ……… Respondent Dated: October 17, 2008 Sri D.K. Sharma, learned counsel for the appellant. Sri M.A. Khan, learned brief holder for the State. HON. DHARAM VEER, J. This appeal preferred by the appellants u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 25.04.1997 passed by Special Judge, Nainital in Sessions Trial No.207/1996, State Vs. Mohd. Rafi & another, whereby the learned Special Judge convicted each of the accused/appellants for the offence punishable u/s 307 read with Section 34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced them to undergo rigorous imprisonment for a period of seven years. 2. I have heard Sri D.K. Sharma, learned counsel for the appellant and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 3. The Chief Judicial Magistrate, Udham Singh Nagar has reported vide his letter dated 27.06.2005 that the accused/appellant Najakat Hussain @ Chitta S/o Visharat Hussain has died on 17.09.2004 in police encounter. Hence, the appeal preferred by the accused/appellant no.2 Najakat Hussain stood abated. 2 4. In brief, the prosecution case is that Mohammad Nabi P.W.1 lodged the F.I.R. on 13.06.1995 at Police Station Kashipur with the averment that on 13.06.1995 at about 8:30 P.M. in vegetable market (SABJI MANDI) his nephew Mohd. Hanif was selling the fruits in front of Pappu Aadti. Meanwhile, accused/appellants Mohd. Rafi @ Rafiya and Nazakat Hussain armed with sharp edged weapon PATAL came there and caused the injuries to Mohd. Rafi with the intention to kill him. The accused/appellants also tried to cause the injury to him and Ali Hasan. Then he and Ali Hasan made noise and on hearing the noise number of people gathered at the place of occurrence. With the same averments, he lodged the F.I.R., i.e., Ext.Ka-1 in the Police Station Kashipur on 13.06.1995. On the basis of this F.I.R., Chik F.I.R. was prepared by Head Moharrir Jagdish Chandra Tiwari on 13.06.1995 at 8:45 P.M. That Chik F.I.R. is Ext.Ka-4. The necessary entry was also made in the General Diary, carbon copy of which is Ext.Ka-5. The injured Mohd. Hanif was medically examined by P.W.3 Medical Officer Dr. Yaspal Singh Rawat on 13.06.1995 at 9 P.M. and he prepared the injury report, i.e., Ext.Ka-3. The investigation of this case was entrusted to P.W.4 Sub Inspector J.P. Naithani, who during the course of the investigation took the plain and bloodstained soil and also the bloodstained PATAL into his possession and prepared the FARD, i.e., Ext.Ka-2. He also inspected the place of occurrence and prepared the site-plan, i.e., Ext.Ka-6. During the course of investigation, he recorded the statement of the witnesses. After that the investigation of this case was entrusted to Shyam Nath Pandey, who after completing the rest of the investigation filed the charge sheet Ext.Ka-7 against the accused/appellants u/s 307 I.P.C. 3 5. Learned Additional Chief Judicial Magistrate, Kashipur committed the case to the Court of Sessions on 11.03.1996, after giving necessary copies to the accused/appellants as required u/s 207 Cr.P.C. 6. The case was transferred to the Additional Sessions Judge/Special Judge, Nainital for disposal according to law. 7. On 04.09.1996, Additional Sessions Judge/Special Judge, Nainital framed the charge of offence u/s 307 r/w Section 34 I.P.C against the accused/appellants. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 8. To prove its case, the prosecution has examined P.W.1 Mohd. Nabi-complainant, P.W.2 Mohd. Hanif-injured eyewitness, P.W.3 Medical Officer Dr. Yashpal Singh Rawat, who medically examined the injured, P.W.4 S.I. J.P. Naithani, Investigating Officer of this case. 9. After that the statement of each of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who have denied the allegations made against each of them. However in defence, they did not produce any oral or documentary evidence. 10. After appreciating the entire evidence available on record and hearing learned counsel for the parties, the Special Judge vide his judgment and order dated 25.04.1997 convicted the accused/appellants for the offence punishable u/s 307 read with Section 34 I.P.C. 4 and sentenced each of them to undergo rigorous imprisonment for a period of seven years. Feeling aggrieved by the said judgment and order, the accused/appellants have preferred the present appeal. 11. Before further discussion, it is pertinent to mention the injuries found on the body of the victim Mohd. Hanif, who was medically examined on 13.06.1995 at 9 P.M. by P.W.3 Dr. Yashpal Singh Rawat. The injuries found on the body of the victim is reproduced as under:- (i) Multiple incised wound over scalp anterio posteriorly in area of 15cm x 12cm x muscle deep/bone deep brain material coming out at two sides at top and right parietal region, bleeding present fresh (ii) Incised wound over bridge of nose horizontally placed extending both eye ball. Eye ball both punctured, size 3cm x 0.5cm x bone deep, bleeding present (iii) Incised wound over right side chick extending from ala of nose to tragus of right ear 10cm x 2cm x bone deep (iv) Incised wound over right lower lip 5cm x 1cm x muscle deep fresh bleeding present (v) Incised wound over right shoulder 5.5cm x 3cm x deep muscle, bleeding present fresh (vi) Incised wound over lateral aspect of upper 1/3 of area 4cm x 1cm x muscle deep, bleeding present (vii) Incised wound over left forearm middle 1/3 region of size 4cm x 1cm x muscle deep, bleeding present 5 (viii) Lacerated wound of the left tip of both index and middle finger distal phalange, bleeding present Opinion:- Injury Nos.1, 2 & 3 are grievous in nature and advised X-Ray Skull AP and lateral view. All injuries are caused by sharp edged weapon. All injuries fresh in duration. 12. In order to prove the above injury report, the prosecution examined P.W.3 Dr. Yashpal Sing Rawat, who has stated that on 13.06.1995, he was posted as Medical Officer in L.D. Bhatt Hospital, Kashipur. He has examined the victim Mohd. Hanif on that day on 9 P.M. and found the above noted injuries on his body. He further stated that all the injuries could be caused on 13.06.1995 at 8:30 P.M. and he has prepared the injury report Ext.Ka.3. He further stated that all these injuries were sufficient for the death of the injured. 13. To further prove its case, the prosecution examined P.W.1 Mohd. Nabi (complainant), who has stated that on 13.06.1995 at about 8:30 P.M., his nephew was selling the fruits in front of the Pappu Aadti. Meanwhile, Mohd. Rafi and Nazakat Hussain armed with sharp edged weapon PATAL came there and caused the injuries to Mohd. Hanif. At that time Ali Hasan was also there with him. They made noise to save Mohd. Hanif then the accused/appellants also tried to cause injuries to them. After hearing the noise, so many people gathered at the place of occurrence. Thereafter the accused/appellant ran away leaving their PATAL there. Then he brought his nephew Mohd. Hanif to the police station and lodged the F.I.R., which is Ext.Ka-1. PATAL Ext.1, plain soil Ext.2 and bloodstained soil Ext.3 were 6 taken into possession by the police and the FARD was prepared which is Ext.Ka-2. 14. P.W.2 is Mohd. Hanif-injured eyewitness, who has stated that each of the accused/appellant were known to him. He stated that on 30/31.05.1995, the accused/appellants committed theft in the house of his brother Ahmad Nabi and for which a report was lodged against the appellants Mohd. Rafi and Nazakat Hussain. Since then, enmity between the parties developed. He further stated that on 13.06.1995 at about 8:30 P.M., when he was selling the fruits in vegetable market in front of Pappu Aadti, then the accused/appellants surrounded him. The accused/appellants armed with PATAL caused the injuries to him. In order to save him, his uncle P.W.1 Mohd. Nabi and Ali Hasan came there, who made the noise. The accused/appellants also tried to cause injury to Mohd. Nabi and Ali Hasan. When so many people gathered at the place of occurrence then the accused/appellants ran away and the accused Nazakat left his PATAL at the spot. After that he was taken to the police station where a report was lodged. Thereafter he was taken to the hospital for medical treatment, where he was medically examined. Then he was taken to All India Medical Institute, Delhi for treatment. After that for the treatment of his eyes he was taken to Madras. Due to the injuries his eyes were damaged and he lost his eye sight. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence which may create any doubt in his evidence. The evidence of this witness is reliable, believable and trustworthy. 15. P.W.4 is Sub Inspector J.P. Naithani, Investigating Officer of this case, who has stated that on 7 13.06.1995 he was posted as S.I. in Police Station Kashipur. The case was registered in the police station in his presence. Chik F.I.R. Ext.Ka-4 was prepared by the Head Constable Sri Jagdish Chandra Tiwari. The entry was also made in the General Diary, carbon copy of which is Ext.Ka-5. During the course of the investigation, he inspected the place of occurrence and prepared the site-plan, i.e., Ext.Ka-6. He took the bloodstained and plain soil and also the PATAL used in the said crime into his possession and prepared a FARD Ext.Ka-2. He also recorded the statement of the injured and the complainant. After that he was transferred and rest of the investigation was completed by Shyam Nath Pandey, who filed the charge sheet against the accused/appellants u/s 307 I.P.C. That charge sheet is Ext.Ka-7. 16. P.W.2 Mohd. Hanif has stated that on 13.06.1995 at about 8:30 P.M. when he was selling the fruits in front of the Pappu Aadti in the vegetable market then the accused/appellants Mohd. Rafi and Nazakat Hussain armed with PATAL came there and caused the injuries with the intention to kill him. On making noise by P.W.1 Mohd. Nabi and Ali Hasan, the accused/appellants also tried to cause injuries to both of them but as the number of people gathered at the place of occurrence then the accused/appellants ran away from there. Evidence of P.W.2 gets corroborated from the evidence of P.W.1 Mohd. Nabi-eyewitness, P.W.3 Dr. Yashpal Singh Rawat, who has proved the injury report Ext.Ka-3 and the bloodstained PATAL which was used in the said crime was also recovered by the police. FARD of the recovery of the PATAL is Ext.Ka-2. From the evidence discussed above, the prosecution has proved the case against each of the accused/appellants u/s 307 r/w 34 8 I.P.C. Sri D.K. Sharma, learned counsel for the accused/appellant Mohd. Rafi argued that he does not want to challenge the conviction of the accused/appellant u/s 307 r/w 34 I.P.C as the case is proved by the prosecution against the accused/appellant u/s 307 r/w 34 I.P.C. He submitted that the accused/appellant Mohd. Rafi has remained in jail in the aforesaid crime from 30.08.1995 to 30.05.1997 and now he is in jail since 03.11.2006. In this way, the accused/appellant Mohd. Rafi has passed the period of more than three years’ and eight months in jail. He further submitted that as the accused/appellant is married now and 13 years have passed of the said incident and the wife and children of the accused/appellant is dependent upon his income who is in jail, so he prayed that the sentence against the accused/appellant may be reduced to the sentence already undergone by him. Learned brief holder for the State has also conceded to this point and he submitted that the accused/appellant Mohd. Rafi has passed the above said period as submitted by the learned counsel for the accused/appellant, after verifying from the records. 17. After considering all the facts and peculiar circumstances of the case and the nature of the incident, it is expedient in the interest of justice that the sentence awarded by the trial court is reduced to the sentence already undergone. Hence, the sentence of seven years R.I. u/s 307 r/w 34 I.P.C. awarded to the accused/appellant Mohd. Rafi is set aside and it is reduced to the sentence already undergone. 18. For the reasons recorded above, the appeal is partly allowed. The conviction of the accused/appellant Mohd. Rafi u/s 307 r/w Section 34 I.P.C. is confirmed as awarded by the trial court. However, the sentence of 9 appellant/accused Mohd. Rafi as awarded by the trial court is hereby set aside, instead his sentence is reduced to the sentence already undergone by him. (As far as, the appeal of accused/appellant Nazakat Hussain is concerned it is abated due to his death during the pendency of this appeal). 19. The accused/appellant Mohd. Rafi be released from the jail forthwith if he is not wanted in any other case. 20. Let a copy of this judgment along with the record of the trial court be sent back to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) 17.10.2008 RG