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Judgment
This criminal appeal has been filed on behalf of appellant against the judgment dated 23.1.2016 passed by learned Additional Sessions Judge,
Sujangarh, District Churu, in Sessions Case No.15/2008 whereby he convicted the appellant for the offence under Section 307 I.P.C. and sentenced
him for 10 years rigorous imprisonment and fine of Rs.10,000/- and in default of payment of fine, further to undergo one month’s simple
imprisonment.
Brief facts of the case are that on 19.5.2008 at 4:15 P.M. the complainant Sita Ram was admitted in Shekhawati Hospital, Jaipur and he in his
statement recorded by the police, has stated that on 18.5.2008 at 3:30 PM he was going towards Vijay Singh Khethan’s home and at about 3:45
P.M. when he reached in the back street of Rampuriya Cottage, then accused Manish Harizan, Aslman Khayamkhani Holidhora and 5-7 other
persons came there and surrounded him and caused injuries to him and took him with his car to Naya Bazar Chowk where Manish attacked on him
with knife wherein the complainant received knife injury on shoulder of right hand. The accused Aslman and other co-accused beat him with lathi,
pipe road, knife etc. and thereafter Panna Lal Prajapat, Manoj and some other persons reached at the spot and they got the injured admitted in the
hospital at Sujangarh from where he was referred to Jaipur.Â
On the basis of Exhibit P/33 an FIR No.75/2008 for the offences under Sections 365, 323, 324, 325, 326, 307 and 143 I.P.C. was registered. After
the investigation charge sheet for the offences under Sections 365, 367, 307, 323, 324, 325, 326 and 143 I.P.C. was filed before the Judicial Magistrate
No.1, Sujangarh. The accused appellant was tried by the learned Additional Sessions Judge, Sujangarh, District Churu for the offences punishable
under Sections 148, 365, 367, 323/149, 325/149, 326/149 and 307/149 I.P.C. The prosecution produced 21 witnesses in the witness box in support of
its case. The appellant was examined under Section 313 Cr.P.C. and the appellant denied all the allegations made against him.
After hearing learned counsel for the parties and perusing the material available on record, the learned trial court vide judgment dated 23.1.2016
convicted and sentenced the accused-appellant as aforesaid.
Aggrieved with the judgment dated 23.1.2016, the accused-appellant has filed the present appeal before this Court.Â
Heard learned counsel for the parties.
Learned counsel for the appellant has contended that the finding of guilt recorded by the learned trial court against the appellant is contrary to the
evidence available on record. All the prosecution witnesses do not support the prosecution story. The PW-1 Rajendra, PW-2 Sarvesh and PW-11
Virendra Kashwa are real nephew of the injured Sita Ram who has been produced by the prosecution as eye witnesses of the alleged incident and
they do not support the prosecution story and PW-21 Rupa Ram has been declared hostile by the prosecution. Before the trial court, the
complainant PW-20 Sita Ram has made number of variations in his court statement and there are number of contradictions in his statement with the
other witnesses.
It is further contended that the recovery witnesses of alleged weapon i.e. PW-11 Virendra and PW-12 Shyamdeen also did not support the
prosecution story. It is contended that there is lot of contradictions in the statements of prosecution witnesses which were not appreciated by the
learned trial court. As per injury report, the injuries No.1 and 2 were caused by sharp edged weapon and it is evident from the charge sheet that the
same were inflicted by late Manish Harizan and knife was recovered from him, therefore, the offence under Section 307 I.P.C. is made out against
late Manish Harizan and the learned trial court has wrongly punished the present appellant under Section 307 I.P.C. The injured Sita Ram PW-20 in
his court statement has clearly stated that the knife injuries were caused by late Manish Harizan. It is also contended that place where incident took
place was a public place where any time it was crowded with traffic.
In view of above arguments, the learned counsel for the appellant Aslman Khan has prayed that the present appeal may kindly be allowed and the
accused-appellant Aslam Khan may kindly be acquitted of the offence under Section 307 I.P.C.Â
In the alternative, learned counsel for the appellant has prayed that if this Court finds that the learned trial court has rightly convicted the appellant for
the offence punishable under Section 307 I.P.C., then sentence may be reduced to the period already undergone by him as the incident was occurred
on 19.5.2008 and it will not be justified to send the appellant behind the bars after a long period of 10 years. The appellant has already remained in
judicial custody for a period of 7 years, 7 months and 10 days.
On the other hand, learned Public Prosecutor has supported the impugned judgment and vehemently opposed all the contentions of learned counsel for
the appellant. It is contended that the learned trial court has not committed any error in convicting the accused-appellant for offence under Section
307 I.P.C. The finding of learned trial court is based on material available on record.Â
On perusal of record, it reveals that injured Sita Ram (PW-20) has given pracha bayan (Ex.P/33) in hospital to the Investigating Officer in which he
stated that :-
^^dy fnukad 18-5-08 ds oDr djhc 3-30 cts eSa esjs ?kj ls jokuk gksdj fot; flag [ksrku ds ?kj tk jgk Fkk tc eSa oDr djhc 3-45 ih,e ij jkeiqfj;k dksVst dh
fiNyh xyh esa igaqpk rks lkeus ls dkys jax dh yxtjh 302 uEcjksa dh xkM+h esjh xkM+h ds vkxs yx xbZA eSa dqN le> ikrk mlls igys ml xkM+h esa ls
euh""k gfjtu] vlye dk;e[kkuh gksyh /kksjk ,oa 5&7 vU; O;fDr mrj dj vk;s vkSj eq>s pkjksa rjQ ls ?ksj fy;k vkSj esjh xkM+h ds QkVd [kksydj eq>s
tcjnLrh viuh xkM+h esa iVd fy;k vkSj xkM+h ?kqekdj u;k cktkj pkSd esa vk x;s rc euh""k us pkdw fudkydj esjh Nkrh ij okj djuk pkgk ij eSa ?kqek rks
esjs nkfgus gkFk ds cktw esa pkdw ?kwl x;k rc vlye us dgk fd bldks fedw uhps iVdks vkSj mu lcus feydj eq>s xkM+h esa ls uhps mrkj fy;k vkSj
xkM+h esa ls ikbZi lfj;s vkSj ykBh;k mrkj fy;s] rc euh""k us dgk blds flj gh flj ij ekjks rkfd ;g ftUnk cp uk lds rc vlye us yksgs ds ikbZi dh esjs flj esa
ekjuh pkgh rks eSaus nkfguk gkFk Ã…ij dj fy;k ftlls pksVs esjs nkfgus gkFk ij yxh vkSj esjk gkFk VwV x;k fQj euh""k o fedw us o vU; 5&7 us yksgs
ds ikbZi o lfj;ksa ykBh;ks ls esjs flj es ekjuh pkgh rks eSaus iyV jiV dj xkM+h ds uhps flj dj fy;k rks bu yksxksa us esjs nksuksa iSjksa ij pksVs ekjuk
'kq: dj fn;k rc eSaus tksj&2 ls fpYykuk 'kq: dj fn;k fd cpkvks&2 brus esa eksVj lkbZdy ij lokj losZ’k o jktsUnz vk x;s ftUgksaus chp cpko djus dh
dksf’k’k dh o vM+kSlh iM+kSl dh rjQ ns[kk rks :ikjke ,oa yhyk/kj Hkh muds utnhd igaqp pqds Fks rc pkjksa us feydj euh""k vlye o vU; lHkh
dks yydkjk rc brus esa dqN yksx vkSj cktkj dh rjQ ls vkrs fn[ks rks mlds lkFkh Hkkxus yxs rc euh""k us fpYykdj dgk Hkkxks er iqfyl ls esjh ckr gks
j[kh gS ysfdu oks :ds ugha vkSj dlkbZ ckMs dh rjQ Hkkx x;sA**
In the light of pracha bayan (Ex.P/33) and upon perusal of statement of injured Sita Ram (PW-20) recorded during the trial, he has clearly stated that
the accused-appellant Aslam Khan inflicted injuries on hand and legs of the injured.
Upon perusal of statement of Dr. Dalip Soni (PW-9), who prepared injury report (Ex.P/6) of injured has stated that injury No.3 which was caused on
the right shoulder was caused by blunt weapon. The injuries No.1 and 2 were caused on right arm of the injured, but said injuries were caused by
sharp edged weapon and the allegation against the appellant is that he caused injury to the injured by pipe which is blunt weapon.
In these circumstances, according to the statement of injured and injury report, the accused-appellant has not caused any grievous injury by any sharp
edged weapon. According to the pracha bayan (Ex.P/33), the injured has stated that only one injury has been caused by the accused appellant on
his hand and number of injuries were caused by co-accused late Manish Harizan by sharp edged weapon.
Upon perusal of evidence produced by the prosecution, statement of injured Sita Ram (PW-20) is corroborated by medical evidence as well as
statement of other eye witnesses, therefore, the prosecution has succeeded to prove offence under Section 307 I.P.C. against the accused-appellant,
therefore, the learned trial court has not erred in convicting the accused for the offence under Section 307 I.P.C.
Looking to the sentence awarded to the accused-appellant and the fact that appellant has remained in custody for a period of 7 years, 7 months and 10
days years and no previous conviction is on record, therefore, it is justified that the instant appeal filed by the accused-appellant Aslam Khan is liable
to be partly allowed and conviction under Section 307 I.P.C. is liable to be upheld, but looking to the fact that accused-appellant remained in custody
for a period of 7 years, 7 months and 10 days upto date and he caused only one injury by pipe and the only question raised in this appeal regarding
sentence awarded to the appellant by the trial court for commission of offence under Section 307 I.P.C., this Court deems it fit and appropriate to
reduce the period of sentence awarded to the accused-appellant to the period already undergone by him and also to order the accused-appellant
Aslam Khan to pay compensation to the injured Sita Ram.
In the result, the instant appeal filed by the accused-appellant Aslam Khan is partly allowed and conviction under Section 307 I.P.C. is upheld, but
sentence awarded by learned trial court is reduced to the period already undergone by him and accused-appellant is also directed to deposit
Rs.50,000/- for compensation within thirty days from today by way of demand draft issued by a nationalized bank in the trial court.Â
If such amount is deposited within the stipulated time, the same shall be paid to the injured Sita Ram after obtaining proper receipt thereof.Â
If the accused-appellant fails to deposit the said amount within a period of thirty days from today so granted to him by this Court, he is liable to
undergo additional sentence of six months simple imprisonment.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish a personal bond in the sum of
Rs.25,000/- and a surety bond in the like amount before the learned trial court within one month, which shall be effective for a period of six months to
the effect that in the event of filing of Special Leave Petition against the judgment, the appellant, on receipt of notice thereof, shall appear before
Hon'ble the Supreme Court.