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2017 DIGILAW 2150 (RAJ)

Hakim Khan v. State of Rajasthan

2017-10-05

GOPAL KRISHAN VYAS, MANOJ KUMAR GARG

body2017
JUDGMENT : Gopal Krishan Vyas, J. The instant cr. revision petition has been filed by the complainant petitioner Hakim Khan under Section 397/401 of Cr.P.C. against the judgment dated 22.4.2002 passed by the learned Addl. Sessions Judge No. 3, Jodhpur whereby the learned trial court acquitted the non-petitioners nos. 2 to 6 from the charges levelled against them under Section 302 and 149 IPC in Sessions Case No. 38/2001 and held them guilty for offence under Section 304 Part II read with Section 149 IPC, so also, held accused appellant Kamaruddin guilty for offence under Section 307 IPC and all the accused persons were further held guilty for offence under Section 147 IPC. 2. In this cr. revision petition the complainant has prayed for quashing the finding recorded for acquittal under Section 302/149 IPC and to hold the respondents guilty for the said offence. 3. Before deciding this cr. revision petition it is worthwhile to observe that in criminal revision petition against the final judgment, the conviction cannot be altered. The only scope to remit the case for re-appreciation of evidence and in this case, the respondents were convicted for the offence under Section 304 Part II read with Section 149 IPC along with other offences, but the grievance of the petitioner Hakim Khan is that they should be convicted for the offence under Section 302/149 IPC. For the same, the matter is required to be remitted to the learned trial court. 4. After hearing learned counsel for the parties, we have perused the entire evidence, as well as finding recorded by the learned trial court to acquit the respondents from the charge levelled against them under Section 302/149 IPC and convicting them for offence under Section 304 Part II read with Section 149, 147 and 307 IPC to the accused Kamaruddin. 5. Upon consideration of arguments and evidence on record, it emerges that incident took place on 6.7.2001 in the field of accused party and in the said incident injuries were caused to the accused party as well as complainant party. The learned trial court gave finding that it is a case of exceeding right of private defence. 5. Upon consideration of arguments and evidence on record, it emerges that incident took place on 6.7.2001 in the field of accused party and in the said incident injuries were caused to the accused party as well as complainant party. The learned trial court gave finding that it is a case of exceeding right of private defence. According to the prosecution case, a complaint was lodged by complainant Hakim Khan at Police Station Osiya on 6.7.2001 at 11.15 p.m. Upon the said complaint, FIR No. 72 (Ex.P/40) was registered in which following allegations were levelled by the complainant, which reads as under:- lsok esa Jheku Fkkusnkj lkgc] iqfyl Fkkuk & vkSfl;ka fo"k;%& gR;k dk eqdnek ntZ djokus ckcrA ekU;oj th] uez fuosnu gS fd izkFkhZ gdhe [kka iq= jetku [kka dkSe eqlyeku fuoklh xzke cksnqdyk dh vtZ ekyqe gksos vkt fnu esa djhc 3 cts gekjs fookfnr [ksr esa ,d VªsDVj ls Qrs [kka] byenhu] vkenhu iq= gkle [kka o futkenhu iq= Qrs [kka dejnhu iq= [ksjnhu dkLr djk jgs FksA ftudks egjnhu iq= jlky [kka o vesn vyh iq= ulhj [kka o eSa ge rhuksa euk djus x;s o mudks [ksr [kM+us ls euk fd;k rks mu lHkh vknfe;ksa us ,d jk; gksdj gesa tku ls ekjus dh fu;r ls ykfB;ksa o Qjlh ls gekjs ij ,d ne geyk cksy fn;k lcls igys dejnhu us egjnhu ds flj esa Qjlh dh pksV ekjh o futkenhu us ykBh dh pksV egjnhu ds isjksa o gkFkksa ij ekjh ,oe Qrs[kka o vkenhu us Hkh ykBh dh pksVs egjnhu ds ekjh rks egjnhu tehu ij fxj x;k geus chp cpko fd;k rks esjs futkenhu us flj ij ykBh dh ekjhA >xM+k ns[kdj <+k.kh;k ls jetku [kka] v[ks [kka iq= cjls [kka] teky [kka iq= 'ksj [kka eqlyeku fuoklh cksnqdyk nkSM dj vk;s rks bu yksxks us /kedh nh fd utnhd vk;s rks tku ls [kRe dj nsaxs rks os Mj dj :d x;s ckn esa gYyk lqudj egjnhu dk HkkbZ [ksjnhu Hkh NqM+kus Hkkxk ftls jkLrs esa gh gekjs [ksr esa vkM+s fQj dj jksd fy;k o dejnhu o ethn [kka iq= eksgEen ljhQ us tku ls ekjus dh fu;r ls ykBh o Qjls ls ekjihV dh ftlls og Hkh ?kk;y gksdj ogh fxj x;kA fQj oks yksx ekjihV dj Hkkx x;sA ckn esa egjnhu o [ksjnhu dks ge eksgu flag th dh xkM+h ls lQk[kkuk ysdj vk jgs Fks rks egjnhu dh jkLrs esa gh ekjihV ls vk;h pksVksa ls e`R;q gks x;h o [ksjnhu xEHkhj :i ls ?kk;y gS tks fd tks/kiqj esa vLirky esa Hkjrh gSA rFkk egjnhu dh yk'k M.G.H. eqjnk[kkuk esa j[kh gSA eqythekuksa us tku cqt dj gR;k djus dh fu;r ls geyk dj pksVs igqapk dj egjnhu dh gR;k dh gS o [ksjnhu o eq>s ?kk;y fd;k gSA nksf"k;ksa ds f[kykQ l[r dk;Zokgh dh tkos] fjiksVZ is'k gSA rkjh[k 06-07-2001 v0fu0 ,lMh@& gdhe [kka 6. The investigating agency after completing the investigation filed charge-sheet against the respondents for the offences under Sections 148, 302/149 IPC and under Section 4/25 of the Arms Act. In the trial, after framing charge statements of 21 witnesses were recorded by the learned trial court and, thereafter, the statements of accused respondents were recorded under Section 313 Cr.P.C., 1973 and in defence statement of DW-1 Dr. Hari Kishan Sharma, DW-2 Pema Ram @ Prema ram and DW-3 Muse Khan were recorded from defence side and finally the judgment was delivered on 22.4.2002 whereby the accused respondents were acquitted from the charge levelled against them for offence under Section 302/149 IPC but convicted them for offence under Sections 304 Part II read with Section 149, 147 and 307 IPC to the accused Kamaruddin. 7. Learned counsel appearing for the petitioner argued that the learned trial court has grossly erred in law and facts in not convicting the non-petitioners in spite of the fact that prosecution has proved its case beyond reasonable doubt for forming unlawful assembly and their object was to cause murder but the learned trial court failed to appreciate the entire evidence in right perspective. Further, it is argued that it was not necessary for the prosecution to explain the injuries caused to the accused in every case, therefore, the learned trial court was not required to throw the prosecution case on this ground. No other ground is raised by the learned counsel for the petitioner, but prayed that the finding of learned trial court for acquittal of respondents from the charge under Section 302/149 IPC is not sustainable in law. 8. Per contra learned counsel appearing for the respondents vehemently argued that no interference is called for in this revision petition because the learned trial court has appreciated entire evidence and considered the most important fact that number of injuries were caused to the accused persons which is not properly explained, so also, gave finding that the place where occurrence took place, the accused party was in possession, therefore, the instant revision petition may kindly be dismissed. 9. After hearing learned counsel for the parties we have examined the entire evidence and considered the most important fact that injuries were caused to four accused persons. 9. After hearing learned counsel for the parties we have examined the entire evidence and considered the most important fact that injuries were caused to four accused persons. The learned trial court though observed in the judgment that injuries are there but there is no explanation from the prosecution so as to prove how these injuries were caused to the accused respondents. Further, the learned trial court gave detailed finding so as to acquit the respondents from the charges levelled against them under Section 302/149 IPC and to give finding that it is a case of exceeding the right of private defence. 10. In our opinion, it is not a fit case for interference to disturb the finding of the learned trial court or to remit the case for re-appreciation. 11. Therefore, this revision petition is hereby dismissed.