Jamshed And Others vs State Of Uttaranchal

R.C. Khulbe, J

This appeal has been preferred by the appellants U/s 374 Cr.P.C. against the judgment and order dated 06.12.2004 passed by Additional Sessions Judge/ 1st Fast Track Court, Roorkee, District-Haridwar in Session Trial No.336 of 2002, State Vs. Jamshed and others, convicting and sentencing the appellants four years' rigorous imprisonment along with fine of Rs.5,000/- each under Section 307 IPC read with Section 34 IPC.

Brief facts of the case are that on 18.02.2002 at 5:40 p.m. complainant-Saleem gave a complaint at P.S. Manglor, Haridwar that on 16.02.2002 at about 4:30 p.m. Jamshed, Akram, Mukarram and Ajram r/o village Bukkanpur came in their cart and started cutting sugarcane in his field. In the nearby field the complainant, Kak Bhai, Mursleen and his cousin brother Kamil were uprooting mustard. When they heard sound of cutting sugarcane they saw that resident of their village-Jamshed was cutting sugarcane larcenously from their field and Akram, Mukarram and Ajram were loading it in the cart. When they tried to stop them from cutting and loading the sugarcane the accused did not accede and an altercation arose, which furiated all four of them due to which they started to hurl filthy abuses of mother and sisters to his brothers. Akram, Mukarram and Ajram pulled khalwe from the cart and with the intention to kill Mursleen and Kamil started to beat them with Khalwe. Jamshed also gave beating to Mursleen with stick in his hand. Then Naseem, Sharafat and Abdul Wahid residents of village Bukkanpur reached at the spot, witnessed the incident and saved them. They brought them back home in wounded state. Rihayat took them to Rookee Hospital where their medical examination was conducted. Complainant's brother Mursleen was still hospitalized in Roorkee where he was in critical condition. Medical report was brought on record.

On the basis of complaint, FIR was lodged and investigation was conducted. After completion of the investigation, charge sheet was submitted against the accused Jamshed and Mukarram under Sections 307 IPC read with Section 34 IPC.

After compliance of provisions of Section 207 Cr.P.C. learned trial Court framed charges against the appellants under Sections 307 IPC read with Section 34 IPC, to which they pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined as many as nine witnesses, namely, PW1 Saleem, PW2 Mursleen, PW3 Sharafat, PW4 Kamil, PW5 Naseem, PW6 Const. Ramdhan, PW7 Dr. Yogesh Kumar, PW8 Dr. C.S. Rawat and PW9 S.I. Harender Singh Bhandri.

After completion of evidence, statements of the appellants/ accused persons were recorded U/s 313 of Cr.P.C., in which they denied the allegations and claimed innocence. However, stated that a false case has been lodged; they have falsely been implicated in the crime due to land dispute and the witnesses falsely deposed against them due to enmity. It was also stated by the appellants that they are contesting land consolidation cases with father of the complainant. In defence, they produced Map 23 and a copy of appeal filed before Consolidation Court.

After appreciating the evidence on record and hearing learned counsel for the parties, the Trial Court, vide the judgment, under challenge, convicted and sentenced each one of them to undergo four years' rigorous imprisonment along with fine of Rs.5,000/- each for the offence punishable under Sections 307 IPC read with Section 34 IPC. Feeling aggrieved, the present appeal has been filed.

Heard learned Counsel for the parties and perused the entire evidence available on the record.

Mr. Rajendra Singh Azad, learned Counsel appearing for the appellants fairly submits that the conviction of the appellants, as recorded by the Court below under Sections 307 IPC read with Section 34 IPC is perfectly justified as per the evidence produced before the trial court and he also does not want to lay any challenge on the same; he only confined his prayer to the extent that the appellants are the first time offenders; they have no previous criminal history and the assault was not premeditated but occurred as a result of sudden quarrel, hence, the sentenced awarded to the appellants under Section 307 IPC read with Section 34 IPC for 4 years may be reduced to 1 year.

Mr. A.K. Sah, learned A.G.A. for the State argued that there is no minimum sentence prescribed under Section 307 IPC and there is no evidence about the criminal history of the appellants/ accused.

Considering the fact that the appellants have no previous criminal history and the assault was not premeditated but occurred as a result of sudden quarrel, this Court, is of the view that, 1 year rigorous imprisonment for the offence committed under Section 307 IPC is sufficient to serve the purpose in the present case.

In view of the above, the present appeal is partly allowed. The conviction part of the appellants under Section 307 IPC read with Section 34 IPC is left intact. However, as far the sentence part is concerned, it is directed that the appellants-Jamshed and Mukarram are sentenced to 1 year's rigorous imprisonment instead of 4 years' rigorous imprisonment, as awarded by the Court below.

Lower Court Record be sent back.

Let a copy of this judgment be sent forthwith to the learned Trial Court for information/ compliance.