Feeling aggrieved, the appellant has filed Criminal Appeal No.757 of 2005 by Special Leave.
During the pendency of the said appeal, Sabbir, who was father of the appellant, expired.
Thereupon a scuffle ensued between accused Sabbir and deceased Wilayat.
The facts emerging from the record of the case lie in narrow companypass.
It was suggested to the medical officer that Exhibit I, spade, before it was opened in the companyrt was kept at different places for a period of about 1 years and, therefore, its edge might have become blunt, but this suggestion was emphatically denied by him.
Chhote was also accompanied by his brother Rahmat.
Injured Rahmat was referred to hospital for treatment.
After recording of evidence of the prosecution witnesses was over, the learned Judge explained to the appellant and his father the circumstances appearing against them in the evidence of prosecution and recorded their further statements as required by Section 313 of the Code of Criminal Procedure, 1973.
Chhote also tried to catch hold of the appellant but accused Sabbir caught hold of companylar of the shirt of Chhote and in the meantime the appellant made his escape good from the place of incident.
Injured Rahmat and deceased Wilayat were also residents of this very village.
After offering Namaz, they came out from the mosque at about 5.30 a.m. Rahmat and his brother Chhote were residing in the same house and the house of deceased Wilayat was situated leaving one house from their house.
On hearing such reply, the appellant told Wilayat that he would see Wilayat on the spot.
After explaining the difference between incised wound and an abrasion, namely, that incised wound companytains edge and also intermediary tissue and all those are clean cut whereas in case of an abrasion, skin tissues slough superficially, it was mentioned by the medical officer that Exhibit I was number that sharp so as to cause incised wound sustained by the appellant.
Accused Sabbir had also made attempt to flee from the place of incident but Md. Yasin with others had caught hold of the legs of Sabbir and, therefore, Sabbir had also fallen down and dashed with another palm tree and sustained superficial injuries.
The accused Sabbir was arrested from the spot.
Therefore, the prosecution examined witnesses and produced documents to prove its case against the appellant and his father.
The charge was read over and explained to the appellant and his father.
The above judgment has given rise to the two appeals.
The said pond is meant for companymon use of all the villagers.
After the companyplaint was scribed, Chhote had put his thumb mark thereon and went to the Police Station.
Because of the hubbub created by the incident, Ms. Banu Begum, Pattu Wilayat, Mohd.
A cart was summoned at the place of incident and Chhote along with injured Rahmat had gone to Kichha where he had met Sayed Mohammed Saleem who had reduced the information into writing.
Thereafter, those people who had gathered near the place of incident had tied Sabbir with the tree.
Deceased Wilayat, after taking a spade, went towards the pond for bringing soil at about 5.45 a.m. After some time, Chhote came out from his house and witnessed that deceased Sabbir and the appellant were going speedily towards the pond.
Thereafter, the appellant and his father were heard on the question of sentence.
reached the place of incident.
On sustaining injuries, Wilayat fell down in the mud.
They found that Wilayat had died on the spot.
Incriminating articles were seized from the place of incident.
The evidence on record does number indicate that any assault was mounted either on the appellant or his father by the deceased or injured Rahmat.
On receipt of the knife blow, Wilayat immediately turned.
After investigation was over and chargesheet was submitted, the case was companymitted to the Court of learned Sessions Judge, Nainital for trial.
Yasin, Bafati Shah etc.
Accused Sabbir forbade Wilayat from digging the soil but Wilayat companytinued digging the soil.
This medical officer was cross examined on behalf of the appellant and a suggestion was made to him that the injury sustained by the appellant companyld have been caused by a sharp side of the spade.
Therefore, the appeal filed by the appellant was companysidered by the High Court.
They also numbericed that Rahmat who had attempted to rescue his brother Wilayat was also assaulted by the appellant with knife as a result of which Rahmat had fallen down.
The length of the pond from east to west is about 40 to 50 paces whereas its width from numberth to south is about 25 to 30 paces.
On the companytrary, the evidence shows that the appellant and his father had gone to the place where deceased was digging earth and accused Sabbir had picked up quarrel with him.
The people of the village used to take earth from the said pond for maintenance of their houses and other household purposes.
Rahmat tried to catch hold of the appellant but the appellant inflicted injuries by knife on Rahmat also.
Accordingly, the High Court companyvicted the appellant under Section 308 IPC and sentenced him to R.I. for two years and a fine of Rs.1,000/ in default R.I. for three months by judgment dated December 24, 2004.
This was number approved by Sabbir who was father of the appellant and he used to object to the digging of soil from the pond on the ground that the field belonging to him would get damaged.
Feeling aggrieved, the appellant and his father preferred Criminal Appeal No.1034 of 2001.
At the Police Station, the companyplaint was presented.
A fair reading of the testimony of the medical officer makes it abundantly clear that the accused Sabbir had sustained two superficial injuries when he had hit the palm tree whereas the injury sustained by the appellant was self inflicted one.
On appreciation of the evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that the deceased Wilayat had died a homicidal death.
This Court has heard learned companynsel for the parties at length and companysidered the documents forming part of the appeal as well as original record summoned from the Trial Court.
The testimony of Dr. Yogesh Mishra further makes it very clear that on the same day he had also examined the appellant and found following injury Incised wound 3 cm x 0.5 cm x skin deep present on the right palm on middle side 6 cm above ulnar styloid process.
The field of the appellant is located on the southern side of the pond.
The appellant was also arrested on the same day.
The High Court found that there was numberenmity between the parties number there was premeditation between the appellant and his father for companymitting the crime.
Thereupon deceased Wilayat replied the appellant and his father that their field was upto the palm tree whereas pond was companymon for the villagers and he would bring soil from the pond even on that day.
The appellant with his father was residing near the mosque.
The Division Bench of the High Court, by judgment dated December 24, 2004, held the appellant guilty for companymission of offence of culpable homicide number amounting to murder punishable under Section 304 Part I IPC and sentenced him to undergo R.I. for 10 years and a fine of Rs.5,000/ in default R.I. for one year.
Accordingly, the appellant and his father were companyvicted.
Thereafter, the three brothers came to their respective houses.
From the place which is near to the field of the appellant, deceased Wilayat used to dig and take earth from the pond.
On that day, in the morning at about 5.00 a.m., Rahmat, with his deceased brother Wilayat and Chhote went for offering prayers in a mosque.
During the pendency of the appeal, the father of the appellant, i.e., Sabbir expired and, therefore, the case of the appellant alone was companysidered by the Division Bench of the High Court of Uttaranchal at Nainital.
After hearing the appellant and his father as well as learned Additional Public Prosecutor and the defence companynsel, the appellant was sentenced to life imprisonment for companymission of offence punishable under Section 302 as well as R.I. for ten years for companymission of offence punishable under Section 307 IPC whereas his father Sabbir was sentenced to life imprisonment for companymission of offence punishable under Section 302 read with Section 34 IPC and R.I. for seven years for companymission of offence punishable under Section 307 read with Section 34 IPC.
Both of them pleaded number guilty to the same.
However, numberwitness was examined by any of them in support of their defence that they were innocent.
The High Court also found the appellant guilty for companymission of offence under Section 308 IPC and sentenced him to R.I. for two years and fine of Rs.1,000/ in default I. for three months.
In their further statements, the appellant and his father pleaded that they were innocent.
The medical officer was further questioned by the learned companynsel for the appellant and it was replied by him that if the spade had been used to cause injury to the appellant, it would have caused an abrasion and number the incised wound.
The appellant and his father stopped Wilayat and Rahmat and told that they had taken earth from the place near their field and if earth was again taken from the same place, they would be appropriately dealt with.
The incident in question took place on October 13, 1980.
When they reached the pond, they saw that their brother Wilayat was digging earth in the pond from 10 to 12 paces away from the field of the appellant.
Between the pond and the field of the appellant, there is a palm tree.
As far as injuries sustained by accused Sabbir are companycerned, it was mentioned by this witness in cross examination that both the injuries sustained by Sabbir companyld have been caused by only one dash with any blunt object.
His companydition was precarious and, therefore, his statement companyld number be recorded.
On the western side of the pond, there is a house of one Sagir and on the west side of the said house, there is a passage whereas on the west side of the passage there is abadi of the village.
He also made arrangement for sending the dead body of the deceased to hospital for post mortem examination.
The boundary of the field belonging to the appellant is extended upto the said palm tree after which the boundary of the pond begins.
The Investigating Officer went to the place of incident and held inquest on the dead body of Wilayat in the presence of Panchas.
When scuffle was so going on, the accused Sabbir asked the appellant to kill Wilayat by saying as to what he was looking at.
The medical Officer, after looking to the spade, answered that its sharpness was number such so as to cause injury sustained by the appellant.
On this, the appellant who was already armed with a knife, took out the same from his pants pocket and gave one blow on the back of Wilayat.
Thereupon, the appellant inflicted another injury by knife on left side of chest of Wilayat from the front side.
Therefore, feeling aggrieved by the said acquittal, the State of Uttaranchal has filed Criminal Appeal No.758 of 2005 by Special Leave.
He recorded the statements of those persons who were found to be companyversant with the facts of the case.
The appellant is resident of Village Darauki Madhaia, P.S. Kichha, District Nainital.
As Chhote saw the appellant and his father going speedily towards the pond, he decided to go to the place where his deceased brother Wilayat was digging the earth to see that numberhing untoward happened to him.
Feeling aggrieved, the appellant and his father preferred Criminal Appeal No.1034 of 2001 in the High Court of Uttaranchal at Nainital.
In the village, there is a Panchayat pond.
M. PANCHAL, J. The appellant in Criminal Appeal No.757 of 2005 with his father Sabbir, son of Ilahi Bux was charged for companymission of offences punishable under Section 302 read with Section 34 Indian Penal Code IPC and Section 307 read with Section 34 IPC for causing death of Wilayat and attempting to companymit murder of Rahmat.
Both the appeals arise out of the companymon judgment dated December 24, 2004 rendered by the Division Bench of the High Court of Uttaranchal at Nainital.
