State Of ... vs Kale Khan Miya Khan & 6 Ors
2018 Latest Caselaw 974 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                      CRIMINAL APPEAL NO.36 OF 2002

          State of Maharashtra through,
          PSO Police Station Paratwada,
          Dist. Amravati.                          ....... APPELLANT

                               ...V E R S U S...

 1]       Kale Khan s/o Miya Khan,
          Aged about 65 years,
          Occ: Agriculturist,
          R/o Dhotarkheda.

 2]       Aslam Khan s/o Kale Khan,
          Aged about 35 years,
          Occ: Agriculturist,
          R/o Dhotarkheda.

 3]       Ismail Khan s/o Kale Khan,
          Aged about 32 years,
          Occ: Agriculturist,
          R/o Dhotarkheda.

 4]       Javed Khan s/o Kale Khan,
          Aged about 27 years,
          Occ: Agriculturist,
          R/o Dhotarkheda.

 5]       Jamshid Khan s/o Kale Khan,
          Aged about 25 years,
          Occ: Agriculturist,
          R/o Dhotarkheda.

 6]       Waris Khan s/o Kale Khan,
          Aged about 32 years,
          Occ: Agriculturist,
          R/o Dhotarkheda.



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 7]       Halimabi w/o Kale Khan,
          Aged about 55 years,
          Occ: Household,
          R/o Dhotarkheda.

          All R/o Dhotarkheda,
          Police Station Paratwada,
          Dist. Amravati.                          ....... RESPONDENTS


                                    WITH

 CRIMINAL APPEAL NO.74 OF 2002


          State of Maharashtra through,
          PSO Police Station Paratwada,
          Dist. Amravati.                          ....... APPELLANT

                               ...V E R S U S...

 1]       Kale Khan s/o Miya Khan,
          Aged about 65 years,
          Occ: Agriculturist,
          R/o Dhotarkheda.
          [Ori.Accused No.1]

 2]       Jamshid Khan s/o Kale Khan,
          Aged about 25 years,
          Occ: Agriculturist,
          R/o Dhotarkheda.
          [Ori.Accused No.5]

 3]       Waris Khan s/o Kale Khan,
          Aged about 32 years,
          Occ: Agriculturist,
          R/o Dhotarkheda.
          [Ori.Accused No.6]




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          All R/o Dhotarkheda,
          Police Station Paratwada,
          Dist. Amravati.                                    ....... RESPONDENTS

 -------------------------------------------------------------------------------------------
          Shri N.H. Joshi, APP for Appellant-State.
          Shri , Advocate/APP for Respondents.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            25    JANUARY 2018.


 ORAL JUDGMENT

The State is in appeal challenging the judgment and

order dated 17-10-2001 rendered by the learned Ad hoc Assistant

Sessions Judge, Achalpur in Session Trial 42/1992, by and under

which while convicting the respondents/accused Kale Khan s/o

Miya Khan, Jamshid Khan Kale Khan and Waris Khan Kale Khan

for offence punishable under Sections 324 of the Indian Penal

Code ("IPC" for short), the learned Sessions Judge was pleased to

acquit the accused Kale Khan s/o Miya Khan, Aslam Khan Kale

Khan, Jamil Khan Kale Khan, Javed Khan Kale Khan, Jamshid

Khan Kale Khan, Waris Khan Kale Khan and Halimabi Kale Khan

for offence punishable under Sections 147, 148, 307, 324, 506-II

and 395 read with Section 149 of the IPC.

2. The State is not only aggrieved by the acquittal of the

afore referred accused, the State is also aggrieved by the sentence

of three months imposed on accused Kale Khan s/o Miya Khan,

Jamshid Khan Kale Khan and Waris Khan Kale Khan who are

convicted for offence punishable under Section 324 of the IPC.

Both the appeals are decided and disposed of by this common

judgment.

3. Seven accused namely Kale Khan Miya Khan, Aslam

Khan Kale Khan, Jamil Khan Kale Khan, Javed Khan Kale Khan,

Jamshid Khan Kale Khan, Waris Khan Kale Khan and Halimabi

Kale Khan faced trial for offence punishable under Sections 147,

148, 307, 324, 342, 506 and 395 read with Section 149 of the IPC.

4. The case of the prosecution, as is unfolded, during the

course of trial is thus :

The house of the injured Ismail Khan (P.W.4) is

adjacent to the house of the accused. Indubitably, there was a

dispute between the injured P.W.4 and the accused regarding

open land between their houses and a civil litigation was pending.

The accused demolished a wall standing on the land and P.W.4

Ismail Khan put a curtain in the place of the demolished wall. The

incident occurred on 23-6-1990 at 10-00 a.m. or thereabout.

Accused Kale Khan accompanied by a photographer arrived at the

spot to take photographs of the disputed land and raised the

curtain. Injured Ismail Khan objected, a verbal altercation ensued,

the rest of the accused arrived at the spot and started quarreling

with injured P.W.4 Ismail Khan. The accused assaulted Ismail

Khan with stick, pipe and axe. P.W.4 Ismail Khan was tied with

rope and taken to the house of the accused, the door of the house

of the accused was closed and P.W.4 Ismail Khan was brutally

assaulted by the accused in their house. P.W.7 Hafizabi who is the

wife of Ismail Khan and the informant attempted to rescue Ismail

Khan and in the process was beaten by the accused. The accused

threatened to kill Hafizabi should she intervene. P.W.4 Ismail

Khan suffered bleeding injuries all over the body, his clothes were

stained with blood and he became unconscious. In the

interregnum, his wife Hafizabi lodged police report, an offence

was registered against the accused and injured Ismail Khan was

rescued by the police who arrived at the scene of the incident.

Ismail Khan and Hafizabi were medically examined.

Ismail Khan was admitted in Civil Hospital, Amravati for a month.

Investigation ensued upon completion of which charge-sheet was

submitted in the Court of Judicial Magistrate First Class, Achalpur

which committed the proceedings to the Sessions Court.

5. The learned Sessions Judge framed charge (Exhibit

15) under sections 147, 148, 307, 324, 342, 506 read with section

149 of the Indian Penal Code, the accused abjured guilt and

claimed to be tried. The defence is of total denial and false

implication.

6 P.W.4 Ismail Khan the injured witness has deposed

that an altercation ensued when accused Kale Khan raised the

curtain which he had put up on the disputed land, to take

photographs. Accused Ismail Khan put a rope, around his neck,

brought him down on the ground and accused Kale Khan assaulted

him with stick, accused Jamshid Khan assaulted with pipe and

accused Waris Khan assaulted with an axe, is the deposition.

P.W.4 has deposed then he was taken to the house of the accused,

tied with rope and assaulted with stick, axe, pipe and chain and

was threatened with a knife. Accused Kale Khan took away

Rs.10,000/- which P.W.4 was carrying and the accused Aslam

Khan took away the wrist watch. Since he become unconscious, he

was taken to Irwin Hospital and was admitted for a month.

The other material witness is the wife of P.W.4

Hafizabi (P.W.7) who has deposed that there was an altercation

between her husband and the accused in which the accused

assaulted her husband. When she attempted to intervene, accused

Kale Khan, Ismail Khan and Waris Khan assaulted her. Her

husband P.W.4 was taken by the accused to their house. She has

proved report Exh.44.

P.W.2 Sugrabi has deposed to have witnessed the

accused beating P.W.4. She states that the accused took P.W.4 to

their house and beat and assaulted him there. Kasam Baig P.W.5

states that having come to know the incident from Sabir and Kalim

he went to the spot and saw accused beating P.W.4. He has

deposed that the accused took P.W.4 Ismail Khan by putting a

rope around his neck and closed the door of their house. P.W.1

Nazrana, P.W.3 Uttamrao Shingale and P.W.8 Ramchandra Akhre

did not support the prosecution.

7. The learned Sessions Judge recorded a finding that

the prosecution did not prove that the accused formed an unlawful

assembly. The reasons recorded by the learned Sessions Judge in

support of the conclusion are found in paragraph 7 of the

judgment impugned. I have examined the evidence on record in

the context of the reasons recorded by the learned Sessions Judge,

and having done so, I see no reason to take a view different from

that taken by the learned Sessions Judge. Concededly, the

altercation was not premeditated. Accused Kale Khan,

accompanied by photographer intended to take photograph of the

disputed site. Injured Ismail Khan objected. An altercation ensued

in which P.W.4 suffered injuries. The fact that the accused could

lay their hands on weapons, which were apparently brought from

the adjacent house of the accused, is not decisive. The finding

recorded by the learned Sessions Judge that since the accused are

held not to be members of an unlawful assembly, and in the teeth

of evidence on record section 149 of IPC is not attracted, the

individual role played by the accused by each of the accused

would have to be examined, is again unexceptionable.

8. P.W.4 has deposed that he was assaulted firstly near

his house and then in the house of the accused. P.W.4 admits to

have become unconscious when he was first assaulted near his

house, which would render his evidence as regards the second

assault which allegedly took place in the house of the accused,

doubtful. The learned Sessions Judge has given due weightage to

the said admission. The evidence of P.W.4 is not supported in

entirety by his wife Hafizabi P.W.7. She has not spoken in detail

about the assault on her husband by the accused. She has

generally deposed that her husband Ismail Khan was assaulted by

the accused and that when she sought to intervene she was beaten

up. The evidence of injured Ismail Khan P.W.4 is in consistent with

the medical evidence. P.W.4 has deposed that accused Kale Khan

inflicted 22 blows of stick. The version is obviously exaggerated.

The medical report Exh.67 which is proved by the author Dr.

Khadse (P.W.12) who examined P.W.4 reveals one injury on the

eye brow, one injury each on both the legs and one contusion on

the left chest. The report does not categorize the injuries as simple

or grievous. The medical evidence is not consistent with the

deposition of P.W.4 that he received bleeding injuries on head,

back side and neck. No signs of such injuries were seen in the

medical examination. Exaggeration and over implication is writ

large on the evidence of the testimony of the injured P.W.4.

9. The learned Sessions Judge has considered the

evidence of P.W.7 Hafizabi meticulously. The evidence of P.W.7,

as noted supra, does not fully support the version of her husband

P.W.4. P.W.7 does not disclose the nature and extent of the

assault, the weapon or the body part of which she received injury.

She was medically examined by P.W.12 who has proved the injury

certificate Exh.66 which notices injury to her right hand middle

finger and a contusion on the left side of her head. The learned

Sessions Judge has recorded sound reasons for acquitting the

accused 1 Kale Khan, accused 2 Aslam Khan, accused 3 Jamil

Khan, accused 4 Javed Khan, accused 5 Jamshid Khan, accused 6

Waris Khan and accused 7 Halimabi w/o Kale Khan for the

offences punishable under section 147, 148, 307, 324, 506-II and

395 read with section 149 of the IPC and convicting accused 1

Kale Khan, accused 5 Jamshid Khan and accused 6 Waris Khan for

the offence punishable under section 324 of the IPC. It is more

than apparent from the evidence, that the prosecution clearly

made an attempt to over implicate the accused. The version of

P.W.4 that money and wrist watch was snatched is rightly

disbelieved by the learned Sessions Judge. The exaggerated

version of assault, which is inconsistent with and indeed falsified

by the medical evidence, is duly considered. I do not see any

perversity or error in approach or appreciation of evidence in the

judgment and order impugned. I do not see any compelling reason

to interfere with the judgment of acquittal.

10. In so far as criminal appeal 36/2002 is concerned, the

learned A.P.P. is to a certain extent justified in the submission that

having convicting accused 1 Kale Khan, accused 5 Jamshid Khan

and accused 6 Waris Khan for the offence punishable under

section 324 of the IPC, the learned Sessions Judge was over liberal

in imposing sentence of only three months. However, since the

incident occurred 28 years ago, I am not inclined to consider the

State appeal seeking enhancement of the said sentence.

11. In the result, both criminal appeal 36/2002 and

criminal appeal 74/2002 deserve to be dismissed, and are

accordingly dismissed.

JUDGE

NSN