Naba Wagay vs State

This judgment will dispose of Cr. Appeal No. 18/1981 titled Naba Wagay Vs. State; Confirmation Reference No. 50/1981 titled State Vs.

Naba Wagay: and, Acquittal appeal No. 59/1981 titled State Ys. Ama Wagay and ors.

For an occurrence which took place on 941980 in which Lassa Sheikh also called Gh. Rasool Sheikh sustained an injury on the head, to which

he later on succumbed in the hospital on 12480, Naba Wagay alongwith Yousuf Wagay, Ama Wagay and Salam Wagay were arraigned as accused and tried for an offence under section 302 R. P. C. read with section 34 R. P: C. The learned Sessions Judge Budgam vide his judgment dated 23981 acquitted Yousuf Wagay, Ama Wagay and Salam Wagay accased agains whese acquittal the state has come up in appeal, but convicted Naba Wagay for the offence under section 302/34 R. P. C. and sentenced him to suffer imprisonment for life Naba Wagay has questioned his conviction and sentence and the learned Sessions Judge has also submitted the record for confirmation of the sentence of life imprisonment under section 374 Cr. P. C.

Briefly stated the prosecution story is, that on 941980 Naba Wagay and his coaccused were planting willow sapplings allegedly in the land of

Jamal Sheikh who protested against the same, but to no effect. After Jamal Sheikh had gone away, the deceased Gh. Rasool Sheikh alias Lassa

Sheikh eame on the spot and he also asked the accused not to plant the sapplings. It is alleged that the accused got annoyed and caught hold of the deceased and be laboured him. Naba Wagay is alleged to have given him a blow on the head with a 'livan'. On receipt of the blow the deceased fell down and was lifted to his home, from where he was removed to the hospital at Srinagar. He later on died on 1241980. From the hospital information was sent to the police on 104.1980 at 1.30 P. M. The police officer reached the hospital and on enquiry was informed that lassa

Sheikh was admitted in Ward No. 18 and was not in a fit condition to make the statement. Consequently the statement of Mohammad Sheikh,

brother of the deceased was recorded which formed the basis of the First Information Report. Initially a case under section 307/148 R. P. C. was registered against the accused persons. The investigation was taken in hand and during investigation the deceased died. The accused persons were challaned and tried for an offence v/s 302/34 R. P. C.

With a view to connect the accused with the crime, the prosecution examined Jamal Sheikh, Mobd Sheikh, Lassa Bhat, Rehman Malik, Ali

Mohd Shah, Lassa Ganai, Sediq Bhat, Gh. Rasool patwari, Gh. Ahmed H.C., Mohd Sultan A.S.I. and Ghulam Hassan S.I. besides the medical witnesses Dr. Munir Ahmad Malik and Dr. G. L. Kaw. Out of the aforesaid witnesses Jamal Sheikh, Lassa Bhat Ali Mohd Shah, Ramzan Malik and Mohd Sheikh Provided the occular testimony. According to the evidence of these witnesses while Jamal Sheikh was removing cow dung from the shed of his house, he noted the accused persons planting sapplings in his field. He remonstrated with them and asked them not to plant the sapplings in his field but instead of stopping, the accused persons threatened to kill him. He out of fear went towards his house and after about fifteen minutes, the deceased Lassa Sheikh happened to 'pass by that side, He also noticed the accused planting sapplings and he protested against the same. The accused also threatened him and infact caught hold of him and started be labouring him. Naba Wagay had instigated his 'coaccused to catch hold of the deceased and after that had been done, he hurled a blow with a Livan on the head of deceased on receiving which he fell down unconscious. On alarm being raised, Ramzan Malik, Naba Malik and Lassa Malik came to the spot. The accused left the willow sapplings as well as the Livan on the spot and fled away. The deceased was removed to his house and from there after being placed on a cott was removed to the hospital at Srinagar. Except Mohd Sheikh, the other eye witnesses during the crossexamination admitted that the blow was given on the head of the deceased by Naba Wagay with a Livan from the blunt side of the iron and not from its sharp side. These witnesses also deposed that the police had come on the spot and seized the willow sapplings as well as the Livan vide Seizure Memo EXPW 3/1 and EXPW 3/2. They identified the Livan EXPW. 3/3 as the weapon with which Naba Wagay had struck (he blow on the head of the deceased.

Lassa Ganai is the chowkidar of the village while Sadiq Bhat is the Numberdar of Arigam. They were present at the time when the police visited

the village. They depose that in their presence Mohd Sheikh produced the Livan and two numbers of samplings before the police which were seized vide seizure memo EXPW 3/1 and EXPW 3/2, which were signed by the witness,, Ghulam Rasool Patwari had prepared the site plan at the request of the police and he proved the same and the site plan was marked EXPW 13/1, information about the admission of the deceased in the hospital in an injured condition which was conveyed by the hospital was received by Mohd. Sultan Beg, A.S.I. who deposed about the same.

Gh. Ahmad H.C. deposed that he was posted in the Saddar Hospital at Srinagar and was present thereon 941980 when the deceased was brought there in an injured condition. He had prepared the injury statement EXPW 15/1 and had sent a message to the Control Room. He had found that the deceased was unconscious at that time but did not notice any external injury present on him. The investigation was carried out by

Gh. Hassan S. I., who deposed, about various stages of the investigation including the manner in which he received a signal on 1041980 and went to the hospital and recorded the statement of Mohd Sheikh brother of the deceased which formed the basis of the F.I.R. EXPW 1/1. He went on to add that on 1041980 when he went to the hospital he had found the deceased unconscious and that he again visited the hospital on 1141980

and on that date also the doctors had opined that the deceased was unable to make a statement. That on 12480 he went to the village and prepared the site plan EXPW 19/1 The Livan was produced before him and he seized the same alongwith the willow sapplings vide seizure memos

EXPW 3/1 and EXPW 3/2. That the case was initially registered under section 307/148 RPC, but on 1241980 at about eight in the evening when he received the message that Lassa Sheikh, had expired in the hospital, the offence was changed to one under section 302/34 R. P. C. He had got the autopsy conducted on he dead body of the deceased and had prepared the challan and filed the same in the court.

Dr. G. L. Kaw who was the casualty Medical officer was present in the S. M. H. S. Hospital, Srinagar on 941980 when the deceased was

brought their for treatement. He had found the patient to be drowsy. The patient was admitted as an indoor patient in Ward No. 18. He bad found injury on the head of the patient and he opined that the injury was a grievous one caused by a blunt weapon.

Dr. Munir Ahmad Malik who conducted the postmortem examination on the body of the deceased on 1341980 opined that the death of the

deceased was due to primary shock, fracture of left parietal bone, right temporal bone, right Occipital bone and lacceration of brain. He had noted these injuries in the postmortem report EXPW 16/1. He also opined that the weapon used in the case was a blunt one and that more than one blow might have been given to the deceased. He, however, added that the wound present on the deceased; was an incised wound and could have been caused by any one of the three sides of the Livan. He ruled one the possibility that the injury could have been caused in the case by the

handle of the Livan.

Since there was divergence of opinion of the two Doctors mentioned above with regard to the nature of weapon used, as also as to whether the

fatal injury was the result of one blow or more blows, this Court examined Dr P. S Sikand as an expert witness. Dr. Sikand in his deposition recorded on 2451933, after examining the statement of Dr. G. L. Kaw and Dr. Munir Ahmad Malik as also the postmortem report and the injury statement available on the file, opined that the blow on the deceased must have been struck from the iron side of the weapon and from one of its sharp sides. He also opined that only a single blow had been given and that the fatal injury was the result of the single blow.

In their statements recorded under section 342 Cr. P. C. the accused denied the prosecution allegation in toto and pleaded false implication. We

have heard learned counsel for the parties and have gone through the record.

We shall first take up the appeal against the acquittal filed by the State. As already noticed the three coaccused of Naba Wagay namely

Yousuf Wagay, Ama Wagey and Salam Wagey were acquitted by the learned Sessions Judge after trial. From a perusal of the judgment of the learned Sessions Judge it appears that he was not satisfied about the participation of these three accused in the assault. He disbelieved the prosecution story to the effect that at the time when Naba Wagey assaulted, he had been caught hold of by the other three accused. The learned

Chief Govt. Advocate appearing before us submitted that from the evidence of the eye witnesses recorded in the court the participation of the three coaccused of Naba Wagey stood amply establised. Indeed the prosecution witnesses di mention at the trial that the deceased had been caught hold by of by these three accused and that after Naba Wagay bad hit him on the head, they all fled away. However, these witnesses were duly confronted with their statements recorded during the investigation where in the participation of these three accused had not been mentioned.

Ali Shah and Ramzan Malik were also confronted with their statements recorded under section 164 Cr. P. C. by Judicial Magistrate Chadoora where also these persons had not implicated the coaccused of Naba Wagey. It appears to us that at the trial the prosecution witnesses tried to rope in these three other accused also and the improvement made by them in their statements in respect of the participation of these accused is quite significant, more so when viewed in the light of the medical evidence which shows that only one blow had been given to the deceased. After carefully scrutinizing and sifting the evidence of the prosecution witnesses we are of the opinion that they made improvements in their statements and in our opinion it would not be safe to accept their testimony in so far as the participation of the coaccused of Naba Wagey is concerned.

Under these circumstances it cannot be said that the opinion expressed by the learned Sessions Judge while acquitting the three accused is either unreasonable or perverse. We find no reason therefore to interfere with the order of acquittal and consequently dismiss the appeal filed by the

State.

Coming now to the appeal filed by Naba Wagey and reference of confirmation. After going through the evidence of the prosecution witnesses

and in fairness to Mr. Bali who did not question the veracity of the prosecution evidence in so far as the assault on the deceased by Naba Wagey is concerned, we find that the prosecution evidence in respect of the implication of Naba Wagey in the assault on the deceased is cofent, reliable and sound. After carefully scrutinizing the evidence of the eye witnesses, we find that the appellant Naba Wagey voluntarily caused the injury on the head of the deceased with the Livan because the deceased alongwith his other helpers was planting willow sapplings in the land of the appellant and the appellant had remonstrated against the same. The substratum of the prosecution case has therefore been clearly established.

The question, however, which comes tip for consideration is as to the nature of the offence committed by the appellant Naba Wagey.

Admittedly in this case occurrence took place on the spur of moment because of the alteration between the appellant and the deceased and his

helpers. Assault was without any premeditation. The appellant, as is apparent from the evidence of Dr. Sikand, gave only one blow on the head of the deceased. The blow was not repeated. The injury was caused on 9th, of April, 1980 while the deceased succumbed to the injury on 1241980.

The Medical witnesses Dr. Kaw, Dr. Malik and Dr. Sikand have not stated in their depositions that the injury was sufficient in the ordinary course of nature to cause of death. In the absence of such a categorical opinion of the doctors, it was not proper for the learned Sessions Judge to have convicted the appellant for an offence under section 302/34 R. P. C. Even otherwise, since three of the coaccused of the appellant had been

acquitted, the appellant on his own could not be convicted for an offence under section 302/34 R. P. C. In Krishna Govind Patil Vs State of

Maharastra (AIR 1963 S. C. 1413) their lardships while considering a similar question opined as follows:

The High Court gave conflicting findings while it acquitted accused 1, 3 & 4 under section 302, read with section 34 of the Indian Penal Code, it convicted accused 2 under section 302, read with section 34, of the Code, for having committed the offence jointly with the acquitted persons.

That is a legally impossible position. When accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same it would mean that they did not take part in the offence. The effect of the acquittal of accused

1, 3 & 4 is that they did not conjointly act with accused 2 in committing the murder. If they did not act conjointly with accused 2, accused 2 could

not have acted conjointly with them."" and held that the conviction of accused 2 u/s 302/34 R. P. C. was bad.

The aforesaid observations are fully applicable to the facts of the instant case. The appellant can therefore only be clothed with the

responsibility of voluntarily causing grievous injury to the deceased. Neither an intention to kill nor even the knowledge that the injury was such which would have in all probability resulted in the death of the deceased could be attributed to the appellant. The evidence on the record clearly establishes that the appellant caused a grievous injury on the head of the deceased with the sharp side of the Livan. The offence of the appellant therefore would squarely fall under section 326 R. P. C. We accordingly set aside the conviction of the appellant for an offence under section

302/34 R. P. C. and instead convict him for an offence under section 326 R. P. C.

Coming new to the question of sentence. Naba Wagey, appellant, herein is a young man of 20 years of age. He appears to have acted in hot

haste and in a fit of temper. He faced trial which lasted for more than a year and since the date of occurrence, dated 941980, till date he continues to be in custody. The modern trend in the field of penalogy is to reclaim a person as a useful member of the society rather then to make him a hardened criminal considering all these factors we are of the opinion that a sentence of 5 (five) years rigorous imprisonment for the offence under section 326 R. P. C. arid a fine of Rs 200/ would meet the ends of justice. The fine if realised shall be paid to the heirs of the deceased. In default of payment of fine the appellant shall suffer further imprisonment for one month. With this modification in the conviction and sentence the appeal fails and is dismissed. Since the conviction of the appellant for an offence under section 302/34 R. P. C. has been set aside, the reference made by the learned Sessions Judge is rejected.