1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 929 of 2001 (Old No. 1538 of 1999) Kungsong Nemdal S/O Shri Gulu Galston, R/O shop No.2, Bhotia (Bilsi) Market, Dist Nainital …………. Appellant Versus State of U.P(Now State of Uttarakhand) ……….Opposite party Shri S.C.Bhatt, Amicus Curiae present for the appellant Shri M.A.Khan, Brief Holder, present for the State. Hon’ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 28.06.1999 passed by Additional Sessions Judge/ Special Judge (C.B.I) Nainital in Session Trial No. 229 of 1994, whereby said court has convicted the appellant Kungsong Nemdal under section 307 of I.P.C., and sentenced him to rigorous imprisonment for a period of five years. (2) Heard learned Amicus Curiae for the appellant and learned Brief Holder for the State, and perused the lower court record. 2 (3) Prosecution story, in brief, is that Ashish Lamba (PW2) runs a shop in Bara Bazar Mallital. Accused/Appellant Kungsong Nemdal, on 27.04.1994 at about 11.00a.m/ 12.00a.m came to his shop, and told him that he wanted to talk with him. The accused/appellant took Ashish Lamba (PW2) with him towards flat (play ground), and as soon as they reached there Kungsong Nemdal (appellant) assaulted Ashish Lamba (PW2) with knife. He gave several blows on his person and injured him. PW3 Khadak Singh who used to work in the shop of Agra Sweet House, Mallital witnessed the incident. The injured was taken to near by B.D.Pandey Hospital by the persons who rushed towards the spot. At 12.30 p.m i.e. within half an hour, a report was got scribed through Suman Kumar and lodged at Police Station Mallital, Nainital, in respect of offence punishable under section 307 of I.P.C against accused/appellant Kungsong Nemdal which was registered as Crime No. 34 of 1994. The injuries on the person of Ashish Lamba were recorded by PW4 Dr. K.K.Bhatt of B.D.Pandey Hospital who prepared injury report (Exhibit A-3) mentioning as many as 8 incised wounds. Injured was admitted in the hospital. X-ray was advised on which the injured was X-rayed on the basis of which and X-ray report was submitted by the radiologist. PW6 Inspector Harish Chandra Mishra, Investigating Officer, investigated the crime. After interrogating the witnesses, the Investigating Officer submitted charge sheet (exhibit A-10) against the accused /appellant Kungsong 3 Nemdal for his trial, in respect of offence punishable under section 307 of I.P.C. (4) The Magistrate, on receipt of the charge sheet, after giving necessary copies, to the accused, as required under section 207 of Cr.P.C., committed the case to the court of Sessions. (Before the charge was framed, on the point whether the appellant was juvenile or not, PW1 Dr. Raja Ram and PW2 Madan Mohan were got examined on behalf of prosecution and OPW1 Gulu Galston, father of the appellant OPW2 Mrs. Dolma were got examined. However, said issue has attained the finality and only thereafter the charge was framed). Learned Additional Sessions Judge, to whom the case was transferred, after hearing the parties, framed charge of offence punishable under section 307 of I.P.C against the accused /appellant Kungsong Nemdal who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Dr. J.P.Bhatt(radiologist), PW2 Ashish Lamba (injured), PW3 Khadak Singh ( eye witness), PW4 Dr. K.K.Bhatt(who recorded medical injury), PW5 Head Constable Daan Singh(who registered the first information report) and PW6 Inspector Harish Chandra Mishra (Investigating Officer). The oral and documentary evidence was put to the accused under section 313 of Cr.P.C to which he pleaded that the evidence adduced against him was false. However, he stated that accused Ashish Lamba molested his sister in Tibetan Market due to which police implicated the appellant. In defence, no evidence was got adduced 4 (5) The trial court after hearing the parties found accused Kungsong Nemdal guilty of charge of offence punishable under section 307 of I.P.C. After hearing the convict on sentence, he was sentenced to rigorous imprisonment for a period of five years. Aggrieved by said order judgment and order dated 28.06.1999, passed in Sessions Trial No. 229 of 1994, by Special Judge (C.B.I)/ Additional Sessions Judge, Naintal), this appeal was preferred before Allahabad HighCourt by the convict on 05.07.1999 where it was admitted on 06.07.1999. This appeal is received by this court under section 35 of U.P. Re organization Act, 2000, (Central Act No. 29/2000) for its disposal. (6) Before Further discussions, this court thinks it just and proper to mention here the injuries suffered by Ashish Lamba which were recorded by PW4 Dr. K.K.Bhatt in his report exhibit A-3. (i) An incised wound 4.5 cmx2cm in semi lunar in shape transversely placed over left side of abdomen; lateral from umblicus at 1’ O clock position. Profusely bleeding. (ii) An Incised wound 4cm lateral to injury no.1, size 2cmx1.5cm in size. (iii) An Incised wound 1.5cmx2cm in size, 3cm lateral to injury no.2 (iv) An Incised wound 3cm lateral from umblicus on left side abdomen at 5’O clock position, size 1.5 cmx2cm. 5 (v) An Incised wound 3cmx2cm in size over left armpit. Wound profusely bleeding. (vi) An Incised wound 2cmx1cm on the posterior lateral border of left side chest 5cm lateral at the level of left nipple. (vii) An Incised wound 4cmx2cmxbone deep over left deltoid region in left arm 6 cm below and lateral to tip of left shoulder. (viii) An Incised wound 1cmx0.5cm muscle deep over medial surface middle one third of left arm. (6) The Medical Officer reported that pulse was not palpable. The general condition was found poor. The Medical Officer further opined in his report that injured no.1 to 8 were caused by sharp edged object. (7) PW2 Ashish Lamba has stated that on 27.04.1994 at about 11.00am/ 11.30am accused Kungsong Nemdal came to his shop and asked him to accompany him as he wanted to talk to him. The witness further stated that he went with the accused, and as soon as he reached the New Club parking place (play ground/Flat) the accused Kungsong Nemdal assaulted with a knife and gave several blows. The witness has further stated that the incident was witnessed by Khadak Singh (PW3) and others. He has further stated that he was taken to hospital where his 6 injuries were examined. The witness has lastly proved the First Information Report (exhibit A-2) which was got lodged by him. (8) The testimony of the injured Ashish Lamba is not only corroborated by the injuries mentioned in the injury report, quoted about, but also by the statement of PW3 Khadak Singh, the eyewitness. Having gone through the testimony of the witnesses and the medical report, this court concurs with the view taken by the trial court that the prosecution has successfully proved beyond reasonable doubt that accused/appellant Kungsong Nemdal atempted to commit murder of Ashish Lamba. (9) Learned Amicus Curiae drew attention of this court to the cross examination of PW4 Dr. K.K.Bhatt and submitted that the injuries could not have been caused in the manner suggested by the prosecution as the medical officer has stated that if the persons suffering injuries was standing or sitting on his knees, he could not have suffered the injuries recorded. In the opinion of this court the argument advanced on behalf of the appellant has no force for the reasons that the injured has clearly stated that he was standing when he was assaulted. After the first assault of a knife injury, when the accused was giving blow after blow it could not be expected of the person suffering the injury that he remained in the same posture of standing. The injured must have changed his posture after every blow to save himself. In the circumstances, this court is of the opinion that the statement of PW4 Dr. K.K.Bhatt in his 7 cross-examination does not shake the testimony of injured witness PW2 Ashish Lamba. (10) On behalf of the appellant it is further submitted that the appellant was of young age and the sentence awarded to him by the trial court is excessive. It has come on the record that the accused has pleaded that his sister was molested by the injured. (11) Having considered the circumstances of the case, and age of the accused/appellant, in the facts and circumstances of the case, this court is of the view and that reduction in sentence, awarded by the trial court to rigorous imprisonment of three years would meet the ends of justice. (12) Accordingly, this appeal is dismissed, so far it relates to the conviction of the appellant Kungsong Nemdal on the charge of offence punishable under section 307 of I.P.C. However, his sentence is reduced to rigorous imprisonment for a period of three years. With this modification in the sentence, appeal stands disposed of. Appellant is on bail. His bail is cancelled. The Registry is directed to send back the lower court record so that the appellant Kungsong Nemdal is made to serve out the remaining part of the sentence as modified above. (Prafulla C. Pant, J.) Dt.05.07.2010 N.P 8