Gaffar & Anr vs State Of Madhya Pradesh

This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 28-5-1999 passed by 1st Additional

Sessions Judge, Indore in S.T. No. 53/1996, by which the appellant Gaffar has been convicted for offence under Section 325/34 of Cr.P.C. and has

been sentenced to undergo the rigorous imprisonment of 3 years and a fine of Rs. 1000/- with default sentence of rigorous imprisonment three months.

Initially, four persons, namely, the appellant Gaffar, Bashir, Rustam, Irshad Khan and Lalu Khan were tried. The co-accused Irshad died during the

pendency of the Trial. The appellant Bashir has also expired during the pendency of this appeal, and by order dated 26-9-2005, the appeal filed by

Bashir has been dismissed as having abated. The co-accused Rustam and Lalu Khan have been acquitted by the Trial Court, therefore, the present

appeal is for Gaffar only.

This appeal was filed in the year 1999 and on 26-4-2018, the amicus curiae was appointed by this Court, as none had appeared for the appellant.

The case was taken up for hearing on 2-8-2018 and on that date, even the amicus curiae did not appear before the Court. Under these circumstances,

this Court was left with no other option but go through the record and decide the appeal on merits in the light of the judgment passed by the Supreme

Court in the case of Surya Baksh Singh Vs. State of Utter Pradesh, reported in (2014) 14 SCC 222. However, on 6.8.2018 the counsel for the

appellant has filed the written arguments, which are taken on record and accordingly the written arguments have also been considered.

The necessary facts for the disposal of the present appeal in short are that on 25-8-1994, the complainant Suresh lodged a report to the effect that

he was informed that one person in an injured condition is lying and when he went there, he found that one person was lying in an injured condition.

His one hand was already amputated and another hand was broken. He disclosed his name as Yusuf and informed that Gaffar and Bashir have

caused the above mentioned injuries. On the basis of the aforesaid complaint, the police registered the offence. The injured Yusuf was sent for

medical examination. The statements of the witnesses were recorded, spot map was prepared, the accused persons were arrested and after

completing the investigation, the police filed the charge sheet against the appellant, Bashir, Irshad, Lalu Khan and Rustam for offence under Sections

147,307,325,326,147 of I.P.C.

The Trial Court framed charges under Sections 147, 307/149, 325/149 of I.P.C.

The appellant and the other co-accused persons abjured their guilt and pleaded not guilty.

The accused Irshad, died during the pendency of the Trial and accordingly his name was deleted.

The prosecution in order to prove its case examined Vishnu (P.W.1), Ghanshyam (P.W.2), Suresh (P.W.3), Dr. P.C. Jain (P.W.4), Aklim Khan

(P.W.5), Mohd. Akram (P.W.6), Mehrab Khan (P.W.7), Bashir Khan (P.W.8), Yusuf (P.W.9), Sultan Singh (P.W.10), Chain Singh (P.W.11),

Nirbhay Singh (P.W.12), Naushad (P.W.13), Gheesaji (P.W.14), Basubai (P.W.15), Binu Singh (P.W. 16), Geete Singh (P.W.17), Ram Singh

(P.W.18), and Ramesh Chandra Gulati (P.W.19). The appellant Gaffar did not examine any witness in his defence.

The Trial Court by Judgment and Sentence dated 28-5-1999 passed in S.T. No.53/1996, acquitted the co-accused Lalu Khan and Rustam and

convicted the appellant and co-accused Bashir. The acquittal of the co-accused Lalu Khan and Rustam has not been challenged, therefore, any

reference to their name, shall be for the purposes of considering the case of the appellant Gaffar. The another appellant Bashir has died during the

pendency of the appeal, and by order dated 26-9-2005, his appeal has been dismissed as having abated.

As none appears for the appellant to argue the matter, therefore, this Court has gone through the record on its own and heard the learned Counsel

for the State.

Before considering the facts of the case, this Court feels it appropriate to consider that whether the injured Yusuf (P.W.9) had sustained any

injury or not?

Dr. P.C. Jain (P.W.4) had medically examined the injured Yusuf and had found the following injuries on his body:-

“Lacerated wound 6X4 cm size present on Left fore arm Amputation fresh present on right forearm near elbow joint.â€​

The M.L.C. report is Ex. P.5.

Although this witness was cross examined, however, nothing could be elicited from his evidence to make the evidence of this witness untrustworthy or

unreliable.

Thus, it is proved that the injured Yusuf had sustained grievous injuries, as defined under Section 320 of IPC.

Next question for determination is that whether the appellant had caused injuries to the injured Yusuf or not?

Vishnu (P.W.1) has stated that he had seen one person lying in an injured condition but he did not tell him about the incident.

Suresh (P.W.3) is the kotwar and had lodged the report, and although admitted that he had lodged the F.I.R. Ex. P.4, but turned hostile on the

question of information given by the injured Yusuf.

Aklim Khan (P.W.5) is not an eye witness and he had merely heard from the villagers about the incident.

Mohd. Akram (P.W.6) has turned hostile and did not support the prosecution story.

Mehrab Khan (P.W.7) has turned hostile and has stated that the injured Yusuf told him that he had teased a girl.

Bashir Khan (P.W.8) is also a hearsay witness but this witness has stated that he was told by the injured Yusuf about the names of the assailants

and incident.

Yusuf (P.W.9) is the injured. This witness has stated that he was taken away by all the five accused persons, and the co-accused Lalu Khan and

Rustam caught hold the hands of this witness, Irshad sat on his chest and Gaffar and Bashir, with the help of a pointed stone amputated his both

hands. He further stated that about 9 years back, the appellant Gaffar had teased the wife of the injured and a criminal case was also registered. This

witness was cross-examined in detail and a question was put to him about the omission of the old enmity in the case diary statement, which was

admitted by this witness, and explained that because of poor physical condition, he did not narrate this fact to the police and also admitted that for the

first time, he is disclosing this fact in the Court. However, the appellant Gaffar, in his statement under Section 313 of Cr.P.C. has admitted that about

9 years back he was tried for teasing the wife of the injured Yusuf but stated that he has been acquitted. Thus, in the light of the admission made by

the appellant Gaffar in his statement under Section 313 of Cr.P.C., the allegation of old enmity as alleged by the injured Yusuf, was corroborated by

the appellant himself.

Sultan Singh (P.W.10) has turned hostile and did not support the prosecution case.

Chain Singh (P.W.11) and Gheesaji (P.W.14) also did not support the prosecution case but admitted their signatures on various documents

including Ex. P. 8 to P.16.

Nirbhay Singh (P.W.12) also turned hostile and did not support the prosecution case.

Naushad (PW. 13) is the seizure witness of blood stained cloths of the injured Yusuf.

Basubai (P.W.15) saw a person lying in an injured condition near the public hand pump

Binu Singh (P.W.16) and Geete Singh (P.W.17) have also stated that they had seen a person lying in an injured condition but did not support the

prosecution case, with regard to the information given by the injured.

Ram Singh (P.W.18) is a police personal, who had recorded the F.I.R. Ex. P.4.

Ramesh Chandra Gulati (P.W. 19) is the investigating officer.

As per the prosecution story, blood stained stones were recovered at the instance of the accused Bashir and as per the F.S.L. report, Ex. P. 26,

Blood was found but the blood group could not be ascertained as per the Serology report. However, as the appellant Bashir has already expired,

therefore, the recovery of blood stained stones at the instance of Bashir is not being considered in detail.

Thus, the entire prosecution case hinges on the evidence of Bashir Khan (P.W.8) and Yusuf (P.W.9), although some of the witnesses have

supported the prosecution case to the extent that they had seen a person lying in an injured condition. The injuries suffered by the injured Yusuf

(P.W.9) have been fully corroborated by the Dr. P.C. Jain (P.W.4).

Although Mehrab Khan (P.W. 7) has stated that he was told by the injured Yusuf that he had teased a girl and thereafter turned hostile and did

not support the prosecution case, but it is not the defence of the appellant Guffar that the injured had teased any girl/women. On the contrary, the

victim Yusuf has stated that the appellant Gaffar had teased his wife about 9 years back and there was a Criminal Case and this factual aspect has

also been admitted by Gaffar in his statement under Section 313 of Cr.P.C. but has stated that he has been acquitted. Thus, it is clear that there was

an old enmity between the injured and the appellant Gaffar and enmity is a double edged weapon and it provides a cause for committing offence also.

Thus, considering the admission made by Gaffar in his statement under Section 313 of Cr.P.C. as well as considering the evidence of the injured

Yusuf (P.W.9) as well as the evidence of Bashir Khan (P.W.8) coupled with the fact that the injuries found on the body of the injured Yusuf (P.W.9)

fully corroborates his evidence, this Court is of the considered opinion, that the appellant Gaffar has committed the offence of amputating the right

hand from the elbow and causing lacerated wound near the left arm. Although the appellant was initially tried for an offence under Section 307/149 of

I.P.C., but the Trial Court has convicted the appellant for offence under Section 325/34 of I.P.C. Since, the acquittal of the appellant for the remaining

offences has not been challenged, therefore, the appellant Gaffar is held guilty of committing offence under Section 325/34 of Cr.P.C.

So far as the question of sentence is concerned, the Trial Court has awarded the jail sentence of rigorous imprisonment of 3 years. Looking to the

nature of injuries caused to the injured Yusuf, this Court is of the considered opinion, that the Trial Court, has already taken a very lenient view,

accordingly, the sentence of rigorous imprisonment of three years and a fine of Rs. 1000 with default imprisonment does not warrant any interference.

Accordingly, the judgment and sentence dated 28-5-1999 passed by 1st Additional Sessions Judge, Indore in S.T. No. 53/1996 is hereby affirmed.

The appellant is on bail. His bail bonds and surety bonds are hereby cancelled. He is directed to immediately surrender before the Trial Court for

undergoing the remaining jail sentence.

The appeal fails and is hereby dismissed.