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Judgment
Hon''ble Shri A.K. Sharma, J.—This judgment shall also govern disposal of Criminal Appeal No. 522/1998 filed by State for enhancement of sentence passed by same judgment dt. 10.2.1998 passed in S.T.No. 198/1989 by learned Additional Sessions Judge and Special Judge Ujjain, M.P. Appellants accused have filed Criminal Appeal No. 235/1998 against the judgment dt. 10.2.1998 passed in S.T. No. 198/1989 by learned Additional Sessions Judge and Special Judge Ujjain, M.P. by which appellant Afjal Khan has been convicted for the offence punishable u/s 148 and 307 of IPC and other appellants have been convicted for the offence punishable u/s 147 and 307 read with Section 149 of IPC. Since legal representatives of complainant have compounded the offence of appellants, therefore, appellants have been acquitted from the charges of offence punishable u/s 148 and 147 of IPC. In this appeal only conviction for the offence punishable u/s 307 and 307/149 of IPC is going to be considered for which appellants have been convicted and sentenced to undergo RI for 4 years and fine Rs. 500/-each with default stipulation.
The State has filed Criminal Appeal No. 522/1998 for enhancement of sentence awarded to the appellants.
Appellant Abdul Hamid has died during pendency of the appeal.
The brief facts of the case are that, on 31.1.1989 at about 9.45 pm accused Afjal Khan, Mohd. Ajad, Shhabir Ahmad, Abdul Hamid, Abdul Rahim, Hafiz Abdul Ajij and Shahid Khan (absconding) attacked on complainant Sarwar and beaten him. It is alleged that accused Shahid and Afzal Khan caused injury to the complainant by using fire arms. Due to enmity of murder of Mohd. Shafi who was father of Afjal Khan by complainant Sarwar Lala. On report of complainant, after investigation and filing of challan, learned Trial court has convicted appellants, in Criminal Appeal No. 235/1998 as mentioned in para 2 of the judgment.
Being aggrieved by the impugned judgment, appellant accused have filed this appeal in Criminal Appeal No. 235/1998 on the ground that learned Trial Court is not justified in convicting them on the basis of unreliable evidence of complainant and without considering the fact of previous enmity between them.
By impugned judgment co-accused Shabbir Ahmad, Hafiz Abdul Ajij have been acquitted and co-accused Shahid Khan has been declared as absconding.
Learned Counsel for the appellant has submitted that even if the evidence of prosecution is relied upon, Dr. Ravindra Gangwal PW-4 in his cross-examination admitted that none of the injuries sustained by the victim was dangerous to life. Only one injury sustained by the victim on left wrist is grievous in nature caused by fire arm but injury No. 1 has not been found on vital part of the body and injury No. 3 is not grievous in nature. Since the injuries of fire arm were sustained on vital part of the body and none of the injury was dangerous to life, therefore, learned Trial Court has erred in convicting the appellants for the offence punishable u/s 307, 307/149 of IPC. Considering the statement of Doctor and considering the fact that none of the injuries sustained by the victim was on vital part of the body and none of the injuries sustained by victim was dangerous to life, learned Trial Court is not justified in convicting the appellants for the offence punishable u/s 307 or Section 307/149 of IPC, therefore, Criminal Appeal No. 235/1998 is partly allowed setting-aside the conviction of the appellants for the offence punishable u/s 307, 307/149 of IPC.
Appellant Afjal Khan is convicted for the offence punishable u/s 326 of IPC and remaining appellants are convicted for the offence punishable u/s 326 read with Section 149 of IPC.
So far as the sentence is concerned, appellant Afjal has been in custody for one month during trial and remaining appellants have been in custody for 5 to 17 days. They have been in custody after passing of impugned judgment from 10.2.1998 to 2.4.1998. Therefore, appellants have been in custody for a total period of more than two months. Appellants are facing this trial since the year 1998 and their offence has been compounded by the legal representatives of the victim. Therefore, considering all these circumstances, sentence already undergone by the appellants is sufficient to meet the ends of justice. Therefore, sentence awarded to the appellants is reduced to already undergone by them maintaining the fine amount.
Since the sentence of appellants have been converted for the offence punishable u/s 326, 326/149 of IPC, consequently, question of enhancement of sentence does not arise. Therefore, Criminal Appeal No. 522/1998 filed by the State, is dismissed. The bail bonds of the appellants are, hereby, discharged. A copy of this judgment be kept in Criminal Appeal No. 522/1998.