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2016 DIGILAW 872 (RAJ)

Subhan Khan v. State of Rajasthan

2016-06-14

SANDEEP MEHTA

body2016
JUDGMENT : Sandeep Mehta, J. By way of this appeal, the appellant Subhan Khan has approached this Court being aggrieved of the judgment dated 31.03.1994 passed by the learned Additional Sessions Judge, Bikaner in Sessions case No.89/1992 whereby, the learned trial Judge, whilst acquitting the appellant from the charges under Sections 147, 148, 323/149 and 302 of the IPC, convicted him for the offence under Section 304-II IPC and sentenced him to undergo rigorous imprisonment for a period of 5 years and a fine of Rs.2,000/- in default of payment of fine to further undergo 6 months rigorous imprisonment. 2. Shri M.K. Garg, learned counsel representing the appellant, at the outset, did not challenge the finding of guilt recorded by the trial court against the appellant. However, he urged that the appellant has remained in custody for nearly 3 years as against the sentence of 5 years awarded to him. He further urged that as per the prosecution case, the appellant as well as the co-accused Peeran Khan were attributed the allegation of causing head injuries to the deceased Jeevan Khan. The appellant was allegedly armed with a sharp weapon Barchhi whereas Peeran Khan was armed with a lathi with which, both inflicted blows on the head of the deceased Jeevan Khan. The trial Judge, acquitted Peeran Khan of all the charges. As per the medical evidence, two injuries noticed on the head of the deceased Jeevan Khan were both caused by blunt weapon. Thus, he urged that as a matter of fact, the trial court could not have convicted the appellant for the offence under Section 304-II IPC and conviction, if at all, could have been recorded for the offence under Section 325 IPC. By now, more than 25 years have passed by from the occurrence. He thus prayed that the appellant deserves to be let off on the sentence already undergone by him. 3. Learned Public Prosecutor has vehemently opposed the submissions advanced by the appellant's counsel. However, he too does not dispute the fact that from the statement of the star prosecution witness, being the first informant Sadiq Ali (PW-8), it is reflected that the appellant herein as well as Peeran Khan inflicted head injuries to the deceased Jeevan Khan. 4. Admittedly, the appellant herein was armed with a sharp weapon Barchhi at the time of incident. The co-accused Peeran Khan was armed with a lathi. 4. Admittedly, the appellant herein was armed with a sharp weapon Barchhi at the time of incident. The co-accused Peeran Khan was armed with a lathi. As per the medical evidence as deposed by Dr. R.K. Gupta (PW-3), who conducted postmortem on the body of the deceased Jeevan Khan, he noticed two lacerated wounds on the skull of the deceased, both of which were found to be grievous and sufficient in the ordinary course to cause death. Thus from the admitted allegations of the prosecution, a doubt is created as to whether, the head injuries caused to Jeevan Khan can be specifically attributed to the appellant alone or that whether the appellant as well as Peeran Khan were responsible for causing such injuries. The trial court has acquitted Peeran Khan by the impugned judgment. 5. In this background, this Court is of the opinion that as there is a significant amount of doubt in the prosecution story regarding the identity of the assailant who inflicted the fatal injury to the deceased, the appellant deserves to be dealt with leniently on the aspect of sentence. The trial court awarded sentence of 5 years rigorous imprisonment to the appellant of which, he has suffered actual custody of more than 3 years. The incident is of 1991. The appellant was convicted way back in 1994. His sentences were suspended by this Court on 20.06.1994. Thus, if the appellant is sent back to custody after nearly 25 years of incident, it would amount to a travesty of justice. 6. Consequently, the appeal is allowed in part. While upholding the conviction of the appellant as recorded by the trial court for the offence under Section 304-II, the sentence awarded to him is reduced to the period already undergone by him which comes to more than 3 years as noted above. The sentence of fine is maintained which shall be 30 deposited within a period of four months from today failing which, the appellant shall be taken into custody for suffering the default sentence. The appellant is on bail. His bail and bonds are discharged. He need not surrender. Record be sent back forthwith.