Madhya Pradesh High Court
Sakhawat vs The State Of M.P. on 29 November, 2022
Author: Satyendra Kumar Singh
1
Cr.A. No. 1598/1999
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 29th OF NOVEMBER, 2022
CRIMINAL APPEAL No. 1598 of 1999
BETWEEN:-
SAKHAWAT, S/O NAJRU ALIAS NAJIR ALI, AGED 40 YEARS, R/O
1. VILLAGE MOHAMMADPURA, DISTT. KHARGONE (MADHYA
PRADESH).
IKRAM S/O IBRAHIM, AGED ABOUT 22 YEARS, R/O 15/2,
2 BRAHMANPURI NEAR GANESH MANDIR , KHARGONE (MADHYA
PRADESH)
[email protected] ALI S/O ANWAR ALI, AGED ABOUT 22 YEARS, R/O
3. VILLAGE, MOHAMMADPURA DISTT KHARGONE (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI VIVEK SINGH, ADVOCATE)
AND
STATE THROUGH P.S. GOGANWA,
DISTRICT KHARGONE, WEST NIMAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAJESH JOSHI, GOVT. ADVOCATE)
----------------------------------------------------------------------------------------------------
This appeal coming on for judgment this day, Hon'ble Shri Justice
Satyendra Kumar Singh passed the following:
JUDGEMENT
Appellants have preferred this appeal under Section 374(2) of
Cr.A. No. 1598/1999
the Code of Criminal Procedure, 1973 (2 of 1974) [in short "Cr.P.C."]
against the judgment dated 06.12.1999 passed by the Court of 2 nd
Additional Sessions Judge, Distt. Khargone (M.P.) in S.T.
No.236/1998, whereby the appellants have been convicted and
sentenced as under:
Section Imprisonment Fine Default
Stipulation
SAKHAWAT ALIAS SHAKUR
307 of IPC 05 years R.I. Rs. 200/- RI for 01 month
HAKIM, IKRAM & UDU alias RAHAT ALI
307/34 of IPC 05 years R.I. Rs. 200/- RI for 01 month
2. Prosecution story, in brief is as follows :-
On 11.05.1998, at about 5:10 a.m., when complainant had gone
towards Mohammadpur Songaon Road to answer nature's call,
appellant Sakhawat alongwith other appellants and co-accused
Hakim (now dead) came there and on previous enmity,
appellant Sakhawat alais Shakur assaulted him with knife near
his chest, stomach and wrist of left hand due to which he
sustained injuries and fell down on the road, while other
appellants and co-accused Hakim(now dead) exhorted him to
kill the complainant. After hearing his screams, Munna
alongwith others came on the spot, took the injured complainant
to his house in an autorickshaw where complainant narrated the
incident to his son Majeed Khan. Thereafter, he was taken to
Hospital Police Chowki, Khargone where FIR (Ex. P-1) was
Cr.A. No. 1598/1999
lodged on the basis of oral complaint made by him. Dr. Ramesh
Chandra Parsai medically examined him and prepared MLC
report (Ex. P-6) and referred him to District Hospital, Khargone
for further treatment, where his X-ray was conducted by Dr.
Rajendra Joshi (PW-13) and Dr. Anil Kadiya(PW-11) treated
him in the District Hospital, Khargone as per MLC report (Ex.
P-1). S.I. T.S. Tomar went to the spot and prepared spot map,
seized slipper worn by the injured from the place of incident as
per seizure memo (Ex. P-5), He also seized blood stained
clothes worn by the injured which were received from the
hospital as per seizure memo (Ex. P-2), Thereafter, he arrested
the appellant and recorded his disclosure statement and on the
basis of which on his instance, weapon used in commission of
crime i.e. knife was seized as per seizure memo (Ex. P-4). All
the seized articles were sent to FSL. After completion of
investigation charge-sheet was filed before the Court of JMFC,
Khargone who committed the case to the Court of Sessions
Judge, Khargone.
3. Learned Trial Court considering the material prima-facie
available on record, framed the charges under Sections 307 r/W 34 of
IPC against the appellants who abjured their guilt and prayed for trial.
4. Learned Trial Court after appreciating the oral as well as
documentary evidence available on record vide judgment dated
06.12.1998 recorded the finding of conviction u/S 307 of IPC
against the appellant no.1 - Sakhawat alias Shakur and sentenced
Cr.A. No. 1598/1999
him to suffer 05 years RI with fine of Rs. 200/- and convicted co-
accused Hakim (now dead) and appellants no. 2 & 3 i.e. Ikram and
Udu alias Rahat Ali u/S 307/34 of IPC and sentenced them to
undergo 05 years RI with fine of Rs. 200/- each with default
stipulation. Being aggrieved with the said judgement of conviction
and order of sentence, appellants have preferred this appeal for setting
aside the impugned judgement and discharging him from the charges
framed against them.
5. During the pendency of appeal, co-accused Hakim died,
therefore, appeal with regard to him stood abated by order dated
04.12.2021.
6. Learned counsel for the appellant submits that admittedly,
appellant no. 1 - Sakhawat is the son-in-law of the complainant -
Hamid Khan. All the appellants have entered into a compromise with
the complainant. He further submits that Dr. Ramesh Chandra
Parsai(PW-9), who medically examined the complainant after the
incident never deposed or stated in his MLC report (Ex. P-6) that the
injuries found on the body of the complainant were grievous in nature.
Dr. Anil Kadiya (PW-11) admitted in his cross-examination that he
has also not mentioned in his report (Ex. P-1) that the injuries found
on the body of the injured/complainant were grievous or dangerous to
life. He deposed that he had opined about the nature of the injuries
found on the body of the complainant as grievous on the basis of x-ray
report while Dr. Rajendra Joshi(PW-4) who conducted his x-ray has
not stated so. Hence, ingredients of Section 307 of IPC do not get
Cr.A. No. 1598/1999
attracted in the matter. As parties have entered into compromise and
appellants are facing trial since last about 28 years and during trial and
pendency of appeal, they have suffered considerable period of jail
incarceration. Therefore, the conviction of the appellant no.1 u/S 307
of IPC and appellants no. 2 and 3 u/S 307/34 of IPC be converted into
Section 326 and 326/34 of IPC and sentenced awarded to them be
reduced to the period already undergone by them.
7. Per contra, learned counsel for the respondent-State, while
supporting the impugned judgement of conviction and order of
sentence submits that the judgement was passed by the Trial Court
after proper appreciation of evidence available on record. He further
submits that appellants alongwith co-accused Hakim and others
inflicted injuries on vital part of the body of the complainant,
Therefore, ingredients of Sec 307 of IPC are fully attracted in the
matter. Impugned judgment of conviction is well reasoned
establishing the guilt of the appellant beyond reasonable doubt.
Therefore, confirming the impugned judgement of conviction and
order of sentence, the appeal filed by the appellants may be
dismissed.
8. I have heard learned counsel for the parties at length and
perused the record.
9. Complainant - Hamid Khan (PW-1) deposed that on
11.05.1998, at about 5:15 a.m. when he had gone to answer nature's
call and was present on the pathway of Mohammadpur Sonagon,
appellants alongwith co-accused Hakim (now dead) armed with knife
Cr.A. No. 1598/1999
came there. Appellant Sakhawat assaulted him by deadly weapon
knife on his stomach and when he tried to save himself, he sustained
injuries on wrist of his left hand. Appellants no.2 and 3 i.e. Ikram and
Udu alias Rahat Ali exhorted appellant no.1 - Sakhawat to kill the
complainant. Then appellant no.1 - Sakahwat inflicted 03 blows of
knife into his stomach , due to which he fell down. He deposed that
witness Munna alias Narmada took him to his house in his
autorickshaw, where he narrated the incident to his son Majid Khan
(PW-2).
10. Complainant's son Majid Khan (PW-2), Sajid (PW-3), his wife
Matloom Bi (PW-4) and witness Munna alias Narmada (PW-5), all
have supported his aforesaid statement and deposed that after the
incident when Munna alias Narmada took the complainant in his
autorickshaw to their house, complainant told them that appellants had
assaulted him. Head Constable Murlidhar (PW-7) deposed that on the
date of incident, he lodged an FIR (Ex. P-1) on the basis of complaint
made by the complainant and sent him to hospital for medical
examination. Dr. Ramesh Chandra Parsai(PW-9) deposed that on the
same day at about 5:30 p.m., he medically examined the complainant
and found the following injuries on his body:
1. Incised wound 3x1/2 cm left side of chest region 6 th intercostal,
depth cannot be assessed. Advised chest x-ray.
2. Incised wound 3 cm x 1 cm peritoneum deep on left
hypochondrium; peritoneum deep. Depth cannot be assessed .
Advised x-ray
Cr.A. No. 1598/1999
3. Incised wound ½ cm x ½ cm on left wrist dorsal aspect. Simple
caused by sharp object within 06 hours of medical examination.
11. Dr. Rameshchandra Parsai (PW-9) deposed that all the injuries
were caused by hard and sharp object within 06 hours of the medical
examination as per MLC report (Ex. P-10). He opined that injury no.
2 was grievous in nature, but he admitted in his cross-examination that
he did not mention the nature of injury in his report (Ex. P-1).
12. Complainant Hamid Khan's statement finds support from the
oral testimony of witnesses as well as medical evidence i.e. from the
statement of Dr. Rameshchandra Parsai (PW-9) and MLC report (Ex.
P-6) prepared by him, statement of Dr. Anil Kadiya (PW-11) and
MLC report(Ex. P-10) prepared by him. Nothing has been extracted
during their cross-examination on the basis of which their aforesaid
statements can be disbelieved or doubted. Hence, this fact is
established that on the date of incident, at about 5:10 a.m., appellant
Sakhawat assaulted the complainant with knife while other appellants
i.e. Ikram and [email protected] Rahat Ali have exhorted and assisted him due to
which complainant sustained injuries as stated hereinabove.
13. Dr. Anil Kadiya (PW-11) although deposed that injury no.2
found on the body of the complainant was grievous in nature, as his
peritoneum was coming out , but he no where mentioned that the
same was dangerous to life. Hence, although this fact is also
established that injury found on the body of the complainant was
caused by hard and sharp object and was serious in nature, but there is
nothing on record from which it can be inferred that the same was
Cr.A. No. 1598/1999
caused with an intention to commit his murder.
14. In view of the above, only on the basis of single grievous injury,
it is not safe to infer that injuries found on the body of the
complainant were caused with an intent to commit his murder.
Therefore, conviction of appellants under Section 307 and 307/34 of
IPC is not sustainable and the same are liable to be modified and
converted into Section 326 and 326/34 of IPC. Moreso, appellant no.1
- Sakhawat has suffered about 3 months and 3 days of custody and
appellants no. 2 and 3 have suffered about 01 month custody.
15. Consequently, this criminal appeal is allowed in part and the
judgment of conviction is modified as follows:
The judgement of conviction and order of sentence
dated 06.12.1999 passed by the Court of 2nd Additional
Sessions Judge, Distt. Khargone in S.T. No. 236/1998,
is modified and converted into Section 326 and 326/34
of IPC in place of Section 307 and 307/34 of IPC and
the sentence awarded to the appellants for the
aforesaid offence is reduced from RI for 5 years to the
period already undergone by them i.e. about 3 months
in case of appellant no. 1 - Sakhawat for the offence
u/S 326 of IPC and 1 month in case of appellants no. 2
and 3 - Ikram and Udu alias Rahat Ali for the offence
u/S 326/34 of IPC with fine and default stipulation as
imposed by the trial Court. Learned Trial Court is
directed to ascertain the period of jail incarceration
Cr.A. No. 1598/1999
suffered by the appellants from the concerned jail and
thereafter they be set at liberty if they are not required
in any other case.
16. With the above said modification, the criminal appeal is
disposed of finally.
The Registry is directed to send back the trial Court record
forthwith alongwith the copy of this judgment. Let a copy of this
order be also sent to the concerned jail authorities for apprising the
appellants about the disposal of appeal and necessary action.
(Satyendra Kumar Singh)
Judge
sh/-
SEHAR
HASEEN
2022.12.03
17:00:59
+05'30'
