Kadir Khan vs Rajesh

S.K. Palo, J.—This appeal has been preferred u/s 372 of Cr.P.C. against the judgment dated 18th January, 2014 passed by Second Additional Sessions Judge, Ganj Basoda, District Vidisha in Sessions Trial No. 308/2011 whereby respondents No. 5 and 6 have been acquitted from the charge of offences punishable under Sections 294, 147, 148, 341/149, 307/149, 324/149 and 323/149 of IPC and all remaining respondents were acquitted from the charge of offences punishable under Sections 294, 147, 148, 341/149, 307/149, 324/149 of IPC. However, the respondents No. 1 to 4 have been convicted under Sections 326/34, 324/34 (on two counts) and 323/34 of IPC (on two counts). They have been sentenced to undergo rigorous imprisonment for three years each with fine of Rs. 500/- each for the offence punishable u/s 326/34 of IPC in default of payment of fine to further undergo rigorous imprisonment for three months each, one year rigorous imprisonment each with fine of Rs. 250/- for the offence punishable u/s 324/34 of IPC (on two counts) and in default of payment of fine to further undergo one month rigorous imprisonment each and for the offence punishable u/s 323/34 of IPC (on two counts), they have been sentenced to undergo three months rigorous imprisonment.

Present appellant Kadir Khan is one of the victim. This appeal has been filed to set-aside the impugned judgment and to convict all the accused persons and also to enhance the sentences awarded.

It was not disputed that the accused persons Rajesh, Shriram, Pahad Singh and Sitaram are brothers. Accused Lallu is the father of these accused persons. Injured Dhiraj Singh is the father of the complainant Delan Singh. Injured Saina Bee is wife of Kadir Khan. The agricultural land of Dhiraj Singh is situated at village Devipur in Daud Basoda. The agricultural land of accused Lallu and his sons are situated near the land of Dhiraj Singh. There has been two factions in the village. Kadir Khan belongs to one faction and the accused persons belonging to another faction.

Brief facts of the prosecution story is that the complainant Delan Singh lodged a report at village Police Station Teonda which is subsequently registered at Police Station Ganj Basoda. As per the report on 27th October, 2010 at about 12.00 noon. he received a message that accused persons are causing injuries to Dhiraj Singh by fists and kicks. Accused Sitaram caused injury by axe. Delan Singh informed this to Kadir Khan. Kadir Khan went to the spot with a jeep. He was to take injured Dhiraj Singh from village Devipur to Police Station for lodging a report. The accused persons armed with weapon like talwar, farsa surrounded the vehicle and started abusing him. They also assaulted Kadir Khan by talwar, farsa etc. Kadir Khan sustained injuries. Shriram Yadav and Pahad Singh attacked with farsa. Farsa hit by Pahad Singh caused injury to his left thumb. Sitaram also gave blows by axe which caused injury in the right palm and on the head over the ear. When Saina Bee, wife of Kadir Khan and Sagir Khan, brother of Kadir Khan came to rescue him, Lallu Yadav and Raghunath Yadav came to the scene and shouted " maro salo ko jan se kaatam kar do". Sagir khan and Saina Bee also sustained injuries. Bhura Khan, Bhairam Yadav, Saudan Singh, Majhar Khan and others came and separated the accused persons.

On this report, the injured persons were sent for medico legal examination. Spot map was prepared. Weapons were seized from the accused persons. Plain earth and blood stained earth, blood stained clothes of Kadir Khan were seized. All these things alongwith weapons were sent to FSL, Bhopal for examination. After due investigation, charge sheet has been filed.

After the case was committed to the Additional Sessions Court, charges were framed against the accused persons. The accused persons abjured guilt. In their examination u/s 317 of Cr.P.C., they claimed that they are innocent and they have been falsely implicated due to enmity during Panchayat election.

The learned Second Additional Sessions Judge, Ganj Basoda after trial pronounced the impugned judgment and sentenced the accused/respondents No. 1 to 4 as below:-

The victim Kadir Khan has filed this appeal on several grounds and challenged the impugned judgment stating that the findings arrived by the learned Trial Court are perverse and is not sustainable in the eyes of law. It is alleged that Kadir Khan (PW-9), Saina Bee (PW-10). Dhiraj Singh (PW-7) have fully supported the prosecution story, their statements are corroborated by the medical evidence. Therefore, the approach of the learned Trial Court in passing the impugned judgment is not justified. The appellant has assailed the judgment on the ground that the acquittal of respondents No. 5 and 6 in all charges is also bad in the eyes of law. Acquittal of all the accused persons u/s 307/149 of IPC is not justified. The sentence awarded to the respondents No. 1 to 4 is also not reasonable. Therefore, the impugned judgment deserves to be set-aside. It is requested that the accused persons be taken into custody and they may be punished suitably.

We have heard the learned counsel for the appellant and perused the record.

In our considered opinion, the learned Trial Court has considered all the aspects and evaluated the evidence and pronounced the impugned judgment after analyzing the evidence.

In the evidence, the presence of respondents No. 5 and 6 has been stated by two witnesses, Saina Bee (PW-10) has stated that accused Lallu/respondent No. 5 was standing there and was encouraging the other accused persons. Saina Bee (PW-10) has not named the accused Raghunath/respondent No. 6. The complainant Delan Singh (PW-1), Dhiraj Singh (PW-7), Sagir Khan (PW-8), Kadir Khan (PW-9) have also not named the accused Raghunath/respondent No. 6. Delang Singh (PW-1) also narrated that the respondents No. 5 and 6 were standing at a distance but they have not taken part in the incident. Accused Lallu was not armed with any weapon. He is the father of the other accused persons. Dhiraj Singh (PW-7) has also repeated the same. Sagir Khan (PW-8) has not disclosed anything about accused Lallu and accused Raghunath. He further stated that accused Raghunath was not present at the spot and he kept silent about accused Lallu. In the evidence of Kadir Khan (PW-9), no incriminating act of Lallu and Raghunath has been stated. In these circumstances, respondents No. 5 and 6 have been rightly acquitted by the learned Trial Court.

The injuries caused to Kadir Khan has been explained by doctor S.S. Bhargav (PW-13). Dr. K.K. Shrivastava, who medically examined the injured persons and he prepared the MLC reports while posted at Civil Hospital, Basoda, has been dead, therefore, Dr. S.S. Bhargav has examined as to prove the report as secondary evidence. Five injuries were found on the body of Kadir Khan. Out of which, injuries No. 2, 3, 4 were advised for X-ray. The nature of injury has not been ascertained. The Medical Officer suggested that it could be ascertained after X-ray report. It would be pertinent to mention here that no X-ray report has been proved.

The learned Trial Court found that injured Kadir Khan received a grievous injury by sharp cutting weapon. His left thumb was cut and was separated. Therefore, a finding was given that this injury is grievous, hence, the learned Trial Court has held conviction for the offence u/s 326 of IPC. Other injuries caused to Dhiraj Singh by sharp cutting weapon are simple in nature, therefore, the learned Trial Court convicted the accused persons for the offence u/s 324 of IPC. Sagir Khan and Saina Bee received simple injuries. Therefore, the learned Trial Court convicted the accused persons for the offence u/s 323 of IPC. As the total number of accused persons participated in the commission of offence remained only four, Sections 147, 148, 149 of IPC have not been found to be attracted in this case. That is the reason for convicting the accused persons for the offences under Sections 326/34, 324/34, 323/34 of IPC and acquitting the accused persons for the offences under Sections 147, 148, 149 of IPC. The charges of obscene words has not been proved as the witnesses have not narrated the abusive words, uttered by the accused persons.

We have also considered the grievance of the appellant as regarding the quantum of sentence. Considering the fact that due to Panchayat elections there was enmity between the parties election and there has been little evidence as regarding the grievous injuries, the sentence imposed by the learned Trial Court, in our opinion, is just and proper and justified.

We, therefore, decline to enhance the sentence. On the above circumstances, we, do not find it proper to interfere with the impugned judgment, hence, upheld the same and the appeal is dismissed.