ill»isiSil^NW^!%&^';^.^ BiBKiSISSR^K^^I ••^. ^-^te^ , 4^ t^ —Arl ^!' e^i> '"""^^- '.II':SIi3^MGli;'GOmS;-(^'M^B%,P^.^^ GBXMIH.AJ.i' APP^AL NQ* /4/7 ^1094.1.^:'.;.,1: ::/.^'y^'„:._.:r^.^^ll» '^i^]^y;iSll^^'--i»As^.ar^^^ ..^ .'-•'^.^"^.'y' .•:\.:.^ .••'-...^ •^..:>^-1:''.,.''':^' . 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(..All'. a.ppei :La.nt:s<. except, Ap ^Qllartt:;': No-^ ^.^MQbxn':' K haa.3-;^:; cozivictiQii.'mid^.''s/ee-tionl^ .0:01:1 vi otion'; mid.or.-^ctioii ;;450- :-g ^ye.a^.e^^ Gonvlctxon/mider 's©o;t€on;-.307rea'd!..::.-wt; !::@ct.XG^.. 149IPG-. €years<).,''::l""; ' '. ;;: ::-;1 . ' , :1-.11.;1.: 11: .•^ '(Atl. se!:xtB].ce:s to 'run.-.cp^^^ l^s<l< •A G^ / '^^MMiMSMLSS^^^SIM.^Z^^M^S-.Q^ pBOCSDUBj^^ ... '; • '•;•, ' :/.''- '^^•^~~~~~~~~~^^ 1 BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.05 13:01:20 +0530 (ff HIGM COURT OF CMHATTXSGABgH AT BILASPyR (Mo'n. Mr«Justice Pritinlcer Dlwalcer) Crimlrial Appeal No. 1478 of 199^ APPEU.ANTS &ESEONDENT VERSUS Asgar and others State of Madhya Pradesh Shri Ravj Bhagat. counsel for the appesiants, Shri Vaibhav Goverdhan, PL for the Sfcate. Shri Dileep Singh Rathore, counsel for the compjainants. CRINXNA.S- iAPPEAL.UNDi.R_SECT10N_3Z4.I.2J OF THE OF 1UD_GM.EM^T (3.G'.03.2011) Thls appeal is dlrected against the judgment and. order dated 23.11.1994 passed by Flfth Additlona.1 Sessions Judge, Biiaspur In Sessions Triai No, 120 of 1993 convicting the accused/appe!1ants under Sections 148, 450.. 307 and 307/149 of IPC and sentencing each of them respectively to undergo rigorous jmprisQnment for two years and rigorous jmprisonment for fbur years on each count. ASi the sentences were directed to run concurrently. 2. Brief facts. of the case are that on 26.09.1992: at about 9.15 p.m, FIR Ex.P-15 was lodged by the snjured Md. Yakub (PW-6) aileging in it that on that day at about 7.30 p.m. when he was taking meal In his house, the appeliants entered his house and out of them Mobin Khan was carrylng battle axe and .other appeliants were carrying'dubs in fcheir hands. He has aiieged that the appellant No.4-namely Mobin Khan assauited on his head by battle axe and when he fell down the other accused persons also assaujted him by clubs, He has further. aiieged that when his wlfe Nazima Begum (PW-2)., brother-in-law, Md. Usman Khan (PW-1) and mother-in-law- :^. ^ ^ ^- Zamila Bia Sntervened the matter, the accused persons aiso caused Injuries to Nazima and Usman, Based on this FIR, offence under Sections 147, 148, 149, 307 and 459 of IPC was registered against the accused/appeiiants and after completion of jnvestigatlon challan was fiSed on 30.10.1992 for the offences under Sections 147, 148/ 149, 3G7, 459 and 450 of IPC whereas the Court belovv framed charge against them under Sections 148.. 307, 450, 323 and 323 read with Section 149 of IPC, 3, So as to hold the accused/appejjants guilty, prosecution has examined 09 wltnesses in support of its case. Statements of the accused persons 'were aiso recorded under section 313 of.the Code of CriminaE Procedure in whlch they denied the charges Seveiled against them and pieaded their innocence and faise impllcation In the case. 4. During pendency of the appeal, accused/appeiiant No. 3 nameiy Bablu @ Anwar has expired.. and, therefore, present appeai is confined to accused/appeilants Asgar, Akbar, Mobln and Rashid Khan only. 5, After hearing the parties fhe triai Court has acquitted the acctssed/appellants of the offence under Sectlon 323 and 323 read with Sectlon 149 of IPC but convicfced and sentenced them for the offence under Sections l48y 450.. 307 and 307/149 Of IPC 6. Contention of Shri Bhagat, counsel. for the appeiiants is that during pendency of appeal, parties have compromised the m-atter out of the Court and therefore the said appiicatlon. may be considered, He submits that even jf the entire case is taken as it is the offence under Section 307 of IPC is not made out against the appellants because except one injury suffered by Md. Yakub In hls llttie to@, the other Injuries L -3- suffered by him, his wife Nazima Begum (PW-2) and brother- in-law, Md. Usman Khan (PW-1) are simple ln nature, According to him in stead of offence under Section 307 of IPC, the offence under Section 325 of IPC is made out against the appellants, He further submits that the appellant Nos, i^ 2 & 5 have aiready remajned in jai! for about two months whereas appellant No. 4 has remalned jn jali for about 1 year and 28 days and this aspect may also be consldered whlle considering the applicatjon regarding compromjse between the partles, 7. On the other hand supporting the smpugned judgment the iearned State Coun.ses has pointed out that the offences under Sectlon 307 and 450 of IPC are not compoundabie and at best the effect of the said appjjcatlon can be considered by this Court. He submits that the conviction of the appetlants under Section 307 of IPC is just and proper and the nature of injury is totaily IrreSevant and St ss the intention which Is to be seen by thls Court. 8. Shri Dilip Singh Rathore, counsei appearing on behalf of the compiainants nameSy Ishtekhar Ahmad and Mohammed Usman Khan submits that Ishtekhar Ahmad ss the son of snjured iate Mohd. Yakub whereas Mohd. Usman Khan himself ss a tnjured person. He submjts that comp!ainants and the appeilants are not only residing In the same viilage but they are aiso reiatives and over a lapse of time they have amlcably settled thelr dispufee and good relations have been restored between them and the compialnants are no more interested to prosecute the accused/appeliants. 9. Heard counsei for the parties and perused the matersal available on record jncluding the judgment impugned. ^\ i '^m^.^ vy ":-^^^^'i '^. -IA- 10. Md. Yakub (PW-6) - the main injured and the Sodger of the FIR in his Court statement has stated that on 26,09.1992 when he was taklng meal sn his house,, the appellant No.4, Mobjn Khan assaulted on his head by battle axe as a resuit of which he started bleeding and thereafter other accused persons assaulted. hjm by ciubs and they were saying that he should not be aSive. Upon hearing cries when nis wlfe Nazima Begum (PW-2) jnten/ened the matter. she too was assaulted by the appeljants and thereafter seejng his brother-in-law.. Md. Usman Khan (PW-1) and mother-in-law- ZamiJa Bia the accused/appejjants fled away from the spot. He has stated that If his brother-ln-iaw and mother-in-law had not 'lnten/ened the matter, he wouid have been kilSed. He has further stated that as there existed a iand dispute between him and the appejlants.. he was assaulted by them. . In- cross- examlnation., this wltness appears to be very flrm and has reiterated as to in what manner he was assautted by.the accused/appeljants. Md. Usman Khan (PW-1) js a seizurewjtness of Exs. P-1 to P-7 by which battle axe and clubs of the accused/appeSiants and certain other artides like blood stainsd soiS etc. were seized. Nazlma Begum (PW-2) whiJe supporting the statement of her husband Md. Yakub has described as to in what manner her husband was assaulted by the accused/appellants. She has also admitted the fact that there exlted .a. land dispute between her husband and the appejiant No.4 Mobin Khan., Dr. R. K. Gupta (PW-3) had medically examined Md. Yakub (PVV-6), Nazima Begum (PVV- 2) and Md, Usm.an (PW-1) and glven hls reports Exs. P-8 to P- 10 respectivejy. Accordlng to.him., injury No.l sustained by Md. Yakub couid have been caused by a battie axe whereas the other Injuries sustained by him couid have been cau.sed by dub. He has further stated that -he had advised to.take X- .... "t^ •^•^^^' ^ € k^ c. -s~- ray of Md. Yakub. In respect of nature of injunes sustained by Md. Yakub, he has opined that injury No.5 was grievous in nature but the other injuries were simple Sn nature. He has further stated that had the head injury on the vital part of his body been further deep., Md. Yakub coutd have died. Dr. C.S. Sharma (PW-4) who js a radlologist had taken X-ray of Md. Yakub and found his llttle toe fractured. C. S. Dwjvedj (PW- 5)/ the Investjgating Officer has supported the prosecution case. Gajpatl Siddar (PW-7) is the Patwarl who had prepared the. spot'map Ex. P-16, Mussain Ali (PW-8) is'the Head Constable who took the seized artide for F.S.L A. K, Sjngh (PW-9) has done part of investigatjon. 11, Minute examinatton of the evidence reflects that on the date of incjdent a)J the accused/appellants entered the house of the complainant Md. Yakub and assaulted hlm by means of battle axe and clubs. The evidence further reflects that except injury No.5 the other injunes sustained by the complainant were simple jn nature but injur/ No.5 was grievous in nature. In respect of head snjury sustalned by the compjainant the doctor has oplned that had it been further deep, the patient wouid have dled but the doctor has not said that the snjuries sustained by Md. Yakub were suffjdent to cause death in the ordinary course of nature. The evidence does not refiect tnat the injuries were caused by the appejiants to Md, Yakub wjth an Intention to cause his death, 12. Taking the cumulative effect of the evidence.. this Court ss of the considered opinion that jn stead of offence under Section 307 of IPC, the offence under Section 325 of IPC is made out against the appeilants. So far as the other offences are concerned.. they are ciearly made out agajnst the appejiants and theref-ore their convictjon under Sectsons 148 and 45Q of IPG aDoears feo be justified. ^.y^^%;'u; ^'...; ^:-f /.' ^ iS ^ .-• ,^> 13. In the resuit.. the appeilants are convicted under Sections 325, 148 and 450 of the Indian Penal Code. However. they are acquitted of the offence under Section 307 of the IPC, 14. As the appeliants and the complainants have entered into compromlse and have filed an application under Section 320 (2) (5) of Cr.P.C. to this effect duly supported by affidavlts of the parties, offence under Sections 325 and 148 of the Indian Penal Code is compoundabie with the permisslon of the Court, the application flied by the parties is aiiowed and the compromise desired by the parties Ss permitted to be entered into. 15. The resuit pf this compromise wouid be the acquittai of the appeliants of the offences punishable under Sections 325 and 148 ofthe Indian Penai Code, 16. As the offence under Sectlon 450 IPC is not compoundable in nature and therefore the application filed under Sectlon 320(2)(5) Cr.P.C, in respect of this offence is rejected. However, iooking to the fact that the accused/appeilants No. 1, 2 & 5 have aiready remained in lail for about two months whereas appedant No. 4 has remained in jaii f'or about 1 year 28 days, that the appellants are oid aged persons, that the inddent had taken place about 18 years back and the partles have compromised the matter out side the Court, in the facts and clrcumstancesof the case, this Court Is of the view that it wouid be in the interest of justice if the. jaii sentence imposed on them ss reduced to the period aiready undergone by them. Order accordingly. 17. Appeal is thus partiy aJiowed. Sd/- pritinkerDiwaker Judge