- (1.)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 Vs. Ama Wagay and ors.
(2.)FOR an occurrence which took place on 9 -4 -1980 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 12 -4 -80, 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 23 -9 -81 acquitted Yousuf Wagay, Ama Wagay and Salam Wagay accused against whose 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.
(3.)BRIEFLY stated the prosecution story is, that on 9 -4 -1980 Naba Wagay and his co -accused 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 came 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 Ëœlivanâ„¢. On receipt of the blow the deceased fell down and was ifted to his home, from where he was removed to the hospital at Srinagar. He lateron died on 12 -4 -1980. From the hospital information was sent to the police on 10 -4.1980 at 1.30P.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 u/s 302/34R. P. C.
With a view to connect the accused with the crime, the prosecution examined Jamal Sheikh, Mohd Sheikh, Lassa Bhat, Rehman Malik, Ali Mohd Shah, Lassa Ganai, Sediq Bhat, Gh Rasool patwari, Gh. Ahmed H. C., Mohâ„¢d 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 Mohâ„¢d 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 noticed 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 kil1 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 co -accused 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 cross -examination 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 the blow on the head of the deceased.