1 S.B. Criminal Appeal No. 339/1989 (Muqarram Khan Vs. State) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T S.B. CRIMINAL APPEAL NO. 339/1989 (MUQARRAM KHAN VS. STATE) APPEAL UNDER SECTION 374 CR.P.C AGAINST JUDGMENT DATED 25.08.89 PASSED BY LEARNED ADDITIONAL SESSIONS JUDGE NO.1, UDAIPUR IN SESSIONS CASE NO. 40/1980 Date of Judgement : 18.12.2009 PRESENT HON'BLE MR. C.M. TOTLA, J. Mr. Shaitan Singh for the appellant. Mr. K.K. Rawal, P.P. = = = = = BY THE COURT :- Appeal challenges conviction and sentence of appellant for the offences of Sections 148, 323/149, 325/149, 307/149 IPC and concurrently running awarded different imprisonments maximum of two and half years and fine Rs. 1300/-. Heard learned counsel for the appellant and learned Public Prosecutor. Brief alleged facts and events per prosecution are that on 29.10.78 at about 7:30 PM, Rashid PW/1 informed and lodged report at P.S. Surajpole, Udaipur that on that evening at about 7:15 when he and his brothers Majid, Aziz, Saleem and Hamid were sitting at tailoring shop of brother Aziz and doing tailoring work – from towards Surajpole came truck being driven by Hayat who sitting at front seat Jabbar and Mukarrar and from behind alighted Nawab, Sajjad, Ejaz, Gudda, Zulfikar and Bullan – in hands of 2 S.B. Criminal Appeal No. 339/1989 (Muqarram Khan Vs. State) Hayat was spear (Farsa) and with others lathis and all these entering the shop inflicted injuries at them. Alleged that Hayat with spear inflicted injury on head of Majid - Mukkarram and Sajjad with lathis on head of Majid – Jabbar and Nawab with lathis on Aziz – Gudda and Ejaz with lathi on Hamid – Zulfikar and Bullan with lathi on Rashid and Salim. Also averred that he does not know if any other weapon used and he observed Sunder lal and some others witnessing the incident, then these assailants went away in truck and they (Rashid and others) all in tempo of Prakash have come to police station. Stated that two and half years earlier, Pathak stabbed Jabbar and challan submitted against five in which Pathak and Kanju convicted but Aziz, Hamid and Chunnu Bhai acquitted so and in order to revenge, incident committed. On this oral report, SHO PW/8 registered FIR No. 277/78 Ex.P/1 for the offences of Ss 147, 148, 149, 307, 323, 325 IPC. ASI PW/10 in course of investigation inspected place of occurrence where on floor was blood. Blood stained clothes banyan and shirt presented by injured Aziz and Majid and pant of Salim and also the truck seized– preparing memos Ex.P/3, Ex.P/4 & Ex.P/5 seized vide memo Ex.P/6. The persons other than appellant Mukarram and one Mohammad were arrested and on information of Sajjad Khan from his residential house at his instance, recovered a knife and a bamboo lathi and on information and instance of Nawab Khan, from his house, lying below mattress recovered was Farsa – on information of Jabbar recovered a knife and lathi – on information of Sajid Mohd was recovered a Farsa from his house lying in old mattress like material. On information of others said to be recovered are lathis. Injury reports of Hamid, Rashid, Salim, Ajiz, Majid and x-ray reports of Salim, Aziz and Majid obtained who said to have sustained 3 S.B. Criminal Appeal No. 339/1989 (Muqarram Khan Vs. State) several grievous injuries by sharp weapon. It appears that police report against eight persons submitted for above mentioned offences in January, 1979 appears that learned Sessions Judge vide judgment dated 14.07.81 in Sessions Case No. 22/79 convicted and sentenced Hayat, Jabbar, Nawab, Zulfikar, Bullan, Ejaz, Sajjat for offences of Section 148, 307 read with 149 IPC. In continuation to the above police charge-sheet, supplementary charge-sheet submitted in April, 1980 and Sessions case registered in May, 1980 per order 18.03.83 two were discharged and Mukkaram and Mohammad charged for the offences of Section 148, 325/149, 323/149 and 307/149 IPC. Among the prosecution witnesses examined PW/1 is complainant injured and PW/2,3,4 Hamid,Salim and Aziz and PW/7 Majid Khan are injured eye-witnesses. PW/5 Om Prakash and PW/6 Sunder lal are also eye-witnesses. PW/9 Ram Singh is motbir of seizure of clothes etc. Pw/9 registered FIR and ASI PW/10 inspected place of occurrence. In defence examined are appellant Mukkarram DW/1 and witnesses Aziz DW/2 and Lalchand DW/3. Appellant explains and depose that he with named other persons was out in truck RSY 2129. According to defence witnesses appellant and other accused was on Gogunda on that day and (he being Sarpanch) both stayed at his house for about two hours. Learned Judge arriving conclusions that appellant being member of un-lawful assembly inflicted severe grievous injuries by sharp weapons and committed offences punishable under Ss. 148, 323/149, 325/149 and 307/149 IPC. Learned counsel for the appellant argues that (i) on very same 4 S.B. Criminal Appeal No. 339/1989 (Muqarram Khan Vs. State) evidence in this trial one other named person is acquitted and evidence against appellant is not different to that in relation to acquitted one (ii) only because appellant is named in FIR, he cannot be deemed to be present and participated (iii) learned trial Judge himself observed that Medical officer doctors who treated and examined injuries of said injured are not produced in evidence and not examined also are other important witnesses – as far as appellant is concerned, in relation to him, causing of any injury is not proved (iv) injury allegedly attributed to appellant is by lathi and no grievous injury of such object caused to any(v) version of witnesses contradictory and inconsistent to each other on material aspects. Thrustly submitted that when no injury report is exhibited and no doctor examined, then in such case, prosecution case is not proved at all. Learned Public Prosecutor submitted that injuries by sharp object is proved to have been inflicted and appellant was among the persons more than five who collectively inflicted injuries. Giving thoughtful consideration to the arguments, carefully gone through the evidence produced, record and judgment impugned. FIR was lodged by Rashid Khan PW/1 within 15-20 minutes of incident. In FIR Ex.P/1 appellant is named and PW/1 also depose about his presence and inflicting of injuries by appellant. PW/1 also names other more than five accused (for whom decided), PW/2, PW/3, PW/4 and also PW/7 all depose describing those named in FIR as being there at the shop – in FIR also is narration of injuries to PW/2, PW/3, PW/4 and also PW/5. These injured witnesses PW/1 to PW/4 and PW/7 all narrating incident have stated of injury being caused to them by all these persons. All these witnesses have named all the accused. Thus, proved is presence and assembly of more than five persons and also causing of injuries by them. As 5 S.B. Criminal Appeal No. 339/1989 (Muqarram Khan Vs. State) is observed, appellant is named in FIR and other reasons proving his involvement are described by learned Sessions Judge. For the same incident conviction of some other for the offence of Section 148 etc is not disputed. A careful look at the evidence produced proves presence of appellant with other persons and constituting assembly. Learned trial Judge has categorically observed in judgment that related or any Medical officer or doctors not presented in evidence - injury reports are not exhibited and provisions of Section 33 Evidence Act and of 299 are not applicable. For the above reasons, inference is clear that nature of injuries cannot be taken to be proved. The oral evidence discloses that un-lawful assembly was there. Irrespective of the nature of injuries, stands proved that injuries to Pws 1,2,4 & 7 inflicted by persons more than five including appellant. All of them were armed with lathis and some of them with spear. These elements itself constitute offences punishable under Section 148, 323 (and/or 149 read with S. 323 IPC). For the reasons above, as not is proved causing of injury by sharp weapon or grievous injury, therefore, the appellant is to be acquitted of the offence of Sections 324, 325/149 and also 149/307 IPC. However, appellant is proved to have committed offence of Section 148 and 323 IPC. Coming to the sentence, the incident is of year 1979. Appellant faced trial for 7-8 years and now about 20 years have elapsed since conviction and suspension of sentence and 30 years to incident, so in the opinion of the Court, now will be just and proper to extend benefit of Probation of Offenders Act with order of payment of prosecution expenses which is determined at Rs.2000/-. 6 S.B. Criminal Appeal No. 339/1989 (Muqarram Khan Vs. State) Accordingly, acquitting the appellant of the offences of Ss 324, 325, 307/149 IPC, he is convicted for the offences of Ss 148, 323 IPC. But instead of sentencing him, appellant is released on probation for a period of one year provided he furnishes personal bond and a surety in the sum of Rs. 10,000/- each for maintaining peace and of good behaviour and not to indulge in un-lawful activity and also deposit prosecution expenses Rs.2000/- before the Sessions Court on or before 31.01.2010- doing so, his bail bonds presented under Section 389 Cr.P.C shall stand discharged. (C.M. TOTLA), J.