AI Structured Summary
Not yet generated for this judgment
Judgment
The matter comes up for consideration of application under
Section 5 of the Limitation Act with a prayer to condone the delay
of 512 days in filing this criminal leave to appeal.
After hearing learned counsel for the parties, the application
under Section 5 of the Limitation Act is allowed and the delay of
512 days in filing this criminal leave to appeal is condoned.
With the consent of learned counsel for the parties, the
matter is finally heard and decided.
This criminal leave to appeal has been preferred on behalf of
the State seeking leave to file criminal appeal against the
judgment dated 16.1.2014 passed by the Addl. Distt. & Sessions
Judge No.4, Jodhpur Metropolitan (for short ''the trial court'') in
Sessions Case No.79/2012, whereby the trial court has acquitted
the accused respondents for the offences punishable under
Sections 307, 326 and 326 / 149 IPC while giving them benefit of
doubt.
The trial court has convicted the accused respondents for the
offences punishable under Sections 148, 323, 324 read with
Section 149 and 447 IPC, however, granted benefit of probation
instead of sentencing them. It is noticed that by this leave to
appeal, the State has challenged only the acquittal of the accused
respondents for the offences punishable under Sections 307, 326,
326 / 149 IPC and no grievance has been raised regarding granting
benefit of probation to the accused respondents.
Brief facts of the case are that complainant - Dalle Khan has
submitted a written report on 25.11.2016 to the SHO, P.S.
Jhanwar, Distt. Jodhpur while alleging that on 24.11.2016, in the
noon, when he along with his family members were sitting in their
agricultural field, then, suddenly the accused respondents armed
with weapons had forcibly entered into their house and fired a gun
shot from a ''desi katta'' and sprinkled chilly powder and thereafter
assaulted his father and the other family members. It is alleged
that the accused respondents with the intention to kill had ran
over a tractor on them and also torn clothes of the women.
The police has registered an FIR and started investigation.
After investigation, the police has filed charge-sheet against the
accused respondents for the offences punishable under Sections
148, 149, 323, 324, 326, 307 IPC. The trial court has framed
charges against the accused respondents for the offences
punishable under Sections 148, 323, 324, 326, 307, 447 read with
Section 149 IPC.
The prosecution has produced as many as 15 witnesses and
got exhibited 38 documents in support of its case. The statements
of the accused respondents were recorded under Section 313
Cr.P.C. and the trial court after hearing learned Public Prosecutor,
learned counsel for the accused respondents and after taking into
consideration the evidence produced on behalf of the parties has
acquitted the accused respondents for the offences punishable
under Sections 307, 326, 326 / 149 IPC while giving them benefit
of doubt, however, convicted them for the offences punishable
under Sections 148, 323, 324 / 149 and 447 IPC but instead of
sentencing the accused respondents for the aforesaid offences has
granted them benefit of probation.
Learned Public Prosecutor has submitted that the
prosecution has proved the guilt of the accused respondents by
producing reliable and cogent evidence for the offences punishable
under Sections 307, 326 and 326 / 149 IPC, however, the trial court
while ignoring the said evidence has illegally acquitted the accused
respondents for the aforesaid offences. Learned Public Prosecutor
has argued that Dr.Kamlesh Choudhary (PW-8) in his statement
has clearly said that the injury No.1 of injured Kammu Khan was
dangerous to life and he has given the said report after examining
the said injury. It is also contended that all the accused persons
had brutally assaulted the injured persons and from that, it can be
gathered that they had intention to kill the father of the
complainant and his other family members. It is also argued that
the injured prosecution witnesses have also specifically stated that
the accused persons attacked with the intention to kill them and in
such circumstances, it is clear that enough evidence is available
against the accused respondents for convicting them for the
offences punishable under Sections 307, 326 and 326 / 149 IPC.
Learned Public Prosecutor has therefore prayed that it is a fit case,
in which, leave may be granted to file criminal appeal against the
impugned judgment.
Per contra, learned counsel for the accused respondents has
argued that the trial court after meticulously examining the
evidence produced by the accused respondents has rightly
acquitted them for the offences punishable under Sections 307,
326 and 326 / 149 IPC as there is no evidence available on record
to prove the guilt of the accused respondents for the aforesaid
offences. Learned counsel for the accused respondents has
therefore prayed that this leave to appeal filed by the State may
be dismissed.
Heard learned Public Prosecutor, learned counsel for the
accused respondents, perused the impugned judgment and
carefully scrutinized the record.
It is not in dispute that all the injured persons except Bhike
Khan had received simple injuries. The injured Bhike Khan had
received a grievous injury on the palm of his hand, however, he in
his statement has failed to identify that which of the accused
caused the said injury. From the statement of Dr.Kamlesh
Choudhary (PW-8), it is clear that his opinion regarding the injury
No.1 of Kammu Khan that the same is dangerous to life is also not
based on any material as he has simply opined that if the injured
is not getting treatment on time, the injury may be dangerous to
life. From the statements of the other witnesses, it is clear that
though they have stated that the accused respondents attacked
them with the intention to kill but looking to the nature of injuries
received by them, it cannot be said that the accused respondents
had any intention to kill the complainant party, however, they had
intention to cause injuries to them.
Having considered the prosecution evidence, this Court is of
the opinion that the trial court has not committed any illegality in
acquitting the accused respondents for the offences punishable
under Sections 307, 326 and 326 / 149 . Hence, no case for grant of
leave to appeal is made out.
Resultantly, this criminal leave to appeal being bereft of force
is hereby dismissed.