Naushad And Others vs State Of Uttarakhand

R.C. Khulbe, J

This appeal has been preferred by the appellants U/s 374 Cr.P.C. against the impugned judgment and order dated 21.04.2004 passed by 1st Fast Track Court/ Additional Sessions Judge, Roorkee, District-Haridwar in Sessions Trial No.173 of 1997, Case Crime No.155 of 1997, State Vs. Naushad and others, convicting and sentencing the appellants five years' rigorous imprisonment alongwith fine of Rs.1,000/- each under Section 307 IPC.

Brief facts of the case are that on 30.04.1997 at 1:30 a.m. complainant-Amjad Kazmi gave a complaint at P.S. Manglor, Haridwar that on lodging complaint of a scuffle broke at his brother's medical store he along with his elder brother Junaid were going back to home from medical store after closing it around 10:20 p.m. On the way, near Junior School the accused - Naushad, Wasim and Akhlakh surrounded them and with the intention to kill his brother the accused - Nushad assaulted him with iron rod while Wasim and Akhlakh assaulted with hockey stick and started to beat him. On hearing the clamour and reaching of Aftab, Mursleen and other people at the spot they left his brother in wounded and unconscious state threatening the complainant that if he lodged a complaint against them then they will also kill him. Thereafter, he took his brother to Government Hospital which was closed. By the time, his other brothers also reached there and they all took him to Civil Hospital, Roorkee where he was admitted and his medical examination was conducted. His brother is still in hospital. Due to critical condition of the injured, he got late in lodging the complaint. Medical report is enclosed.

After completion of the investigation charge sheet was submitted against the accused persons under Sections 307, 504 and 506 IPC.

After compliance of provisions of Section 207 Cr.P.C. learned trial Court framed charges against the appellants under Sections 307 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 Amjad Khan (Complainant), PW2 Javed Kajmi, PW3 Junaid, PW4 Mursleen, PW5 Aftab, PW6 Dr. Mangeram Malik, (witness to the X-ray report of the injured), PW7 S.I. Nanheram Sagar (I.O. of the case), PW8 A.S.I. Rajendra Prasad (witness to the FIR) and PW9 Dr. N.D. Arora (who conducted medical examination of the injured).

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 FIR has been lodged; they have falsely been implicated in the crime due to enmity and they have entered into a compromise. In defense, they produced DW1 Iqbal, DW2 Jabbar and DW3 Mangta and also submitted copies FIR, complaint and charge sheet of ST No. 29/95.

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 five years' rigorous imprisonment along with fine of Rs.1,000/- each for the offence punishable under Sections 307. 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 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 during the course of trial a compromise has taken place between the parties, which is also mentioned in the judgment passed by the trial Court, hence, the sentenced awarded to the appellants under Section 307 IPC for 5 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 compromise has already taken place between the parties.

Considering the fact that a compromise has already taken place between the parties during the trial, 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 is left intact. However, as far the sentence part is concerned, it is directed that the appellants-Naushad, Wasim and Akhlakh are sentenced to 1 year's rigorous imprisonment instead of 5 years' rigorous imprisonment, as awarded by the Court below. The appellants shall appear before the Trial Court within fifteen days from the date of receipt of a copy of this judgment for compliance.

Lower Court Record be sent back.

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