NANHA Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) 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. 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 Nalceeb (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 (PW 4) reached at the shop in the morning of 4.4.1995 at about 7.30 A.M. 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. 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:

(2.) 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.

(3.) IT appears that one of the accused Tahir, who was charge sheeted 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.