Madhya Pradesh High Court
Firoj Khan vs The State Of Madhya Pradesh on 11 January, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 10984 of 2022
(FIROJ KHAN AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 11-01-2023
Shri Prakash Upadhyay - Advocate for the appellants.
Shri S. K. Kashyap - Government Advocate for the State.
Parties are heard on I.A.No.22462/2022, an application for suspension of
sentence and grant of bail to appellants Firoj Khan & Afroj Khan arising out of
judgment dated 21/11/2022 delivered in Sessions Trial No.500109/2011 by VII
Additional Sessions Judge, Rewa (M.P.).
The appellants have been convicted under Sections 307/34, 323/34 &
324/34 of the IPC and sentenced to undergo R.I. for 14 years and fine of
Rs.5,000/-, R.I. for one year and fine of Rs.1,000/- and R.I. for three years and
fine of Rs.2,000/- respectively with default stipulation.
Learned counsel for the appellants submits that as per prosecution story
on 04/07/2010 at around 03:00 P.M. a free fight had taken place, in which main
accused Pinku @ Mohammad Gauhar allegedly assaulted on the head of
Shakeel by means of sword. There was a civil dispute between the parties,
which became subject matter of litigation and a Court of competent jurisdiction
decreed it in favour of the appellants party. In the quarrel and assault which had
taken place on 04/07/2010, appellants also lodged a report, which became
subject matter of a separate trial, in which persons from opposite party were
convicted for committing an offence under Section 323 of the IPC and
Cr.A.No.11387/2022 arising out of said judgment is pending consideration
before this Court.
Shri Upadhyay placed reliance on Para-11 of the impugned judgment,
Signature Not Verified
Signed by: ANURAG SONI
Signing time: 12-Jan-23
11:59:48 AM
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wherein Court opined that it was a case of free fight. By placing reliance on a
judgment of Hon'ble Apex Court in the case of Pathubha Govindji Rathod &
Another Vs. State of Gujrat, (2015) 4 SCC 363 and a Division Bench
judgment of this Court in the case of Sardar Singh & Others Vs. State of
M.P., 2005 0 Supreme (MP) 504 it is argued that in a case of free fight the
doctrin of vicarious liability and as a result Section 34 & 149 of IPC cannot be
pressed into service. The indivicual act of the accused persons is to be seen. In
the instant case the main and singular assault is by means of a sword by Pinku
@ Mohammad Gauhar. Thus, appellants were wrongly held guilty for
committing offence under Section 307 with the aid of Section 34 of IPC. The
appellants were on bail during trial and they did not misuse the liberty / freedom.
Final hearing of this appeal will take time. Considering the aforesaid remaining
jail sentence of appellants may be suspended.
Shri S.K. Kashyap, learned Government Advocate for the
respondent/State opposed the prayer on the basis of objection.
We have heard the parties at length.
Considering the aforesaid factual backdrop coupled with the fact that the
main allegation is on Pinku @ Mohammad Gauhar, without expressing any
opinion on merits, we deem it proper to suspend the remaining jail sentence of
the appellants. Accordingly, I.A.No.22462/2022 is allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of appellants is hereby suspended and it is directed that
appellants Firoj Khan and Afroj Khan be released on bail on their furnishing
a personal bond for a sum of Rs.30,000/- (Rupees Thirty Thousand only)
each with one solvent surety each of the like amount to the satisfaction of the
Signature Not Verified
trial Court with a further direction to appear before the trial Court, Rewa
Signed by: ANURAG SONI
Signing time: 12-Jan-23
11:59:48 AM
(M.P.) on 17/04/2023 and also on such other dates as may be fixed by the trial
Court in this regard during the pendency of this appeal.
Certified copy as per rules.
(SUJOY PAUL) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
as
Signature Not Verified
Signed by: ANURAG SONI
Signing time: 12-Jan-23
11:59:48 AM
