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2023 DIGILAW 1844 (RAJ)

Sikandar Khan v. State of Rajasthan

2023-09-29

FARJAND ALI

body2023
JUDGMENT : FARJAND ALI, J. 1. The petitioners were convicted and sentenced in the following manner by the learned Additional Chief Judicial Magistrate No. 4, Bikaner vide judgment dated 22.01.2003 passed in Criminal Regular Case No. 216/2002: Offence for which convicted Sentence, fine and default sentence Section 452 of the IPC One year's simple imprisonment alongwith a fine of Rs. 1,000/- and in default of payment of fine, further to undergo two months' simple imprisonment Section 323/34 of the IPC Three months' simple imprisonment alongwith a fine of Rs. 250/- and in default of payment of fine, further to undergo one month's simple imprisonment 2. Being aggrieved of the aforesaid judgment, the petitioners preferred an appeal, which was partly allowed by the learned Sessions Judge, Bikaner vide judgment dated 20.07.2004 passed in Criminal Appeal No. 9/2003, whereby while maintaining the conviction of the petitioners under Section 323/34 of the IPC, they were acquitted from the offence under Section 452 of the IPC and instead, they were convicted for the offence under Section 451 of the IPC. The learned appellate court also set aside the order of sentence passed by the learned trial court and instead of awarding the sentence of imprisonment, a fine of Rs. 2,000/- and Rs. 1,000/- was imposed upon each of the petitioner for the offences under Sections 451 and 323/34 of the IPC respectively and in default of payment of fine, they were ordered to undergo simple imprisonment of four months and one month respectively for these counts. 3. Bereft of elaborate details, facts relevant and essential for disposal of the instant criminal revision are that complainant Hajara submitted a report (Ex.P/1) as the Police Station Jamsar to the effect that on 22.01.1999 in the evening at about 07.00 p.m. she and her daughter Salema were cooking food in the kitchen of their house. At that time, Sikandar, Haidar and 5-7 persons of the same village came with an intention to kill them. Sikandar and his brother Haidar entered the kitchen abusing, while the other persons, who were holding lathis and axes, stood surrounding the kitchen. The complainant was sitting in the kitchen. Haider kicked her 3-4 times and when her daughter Salema tried to rescue her, Haidar and Sikander also assaulted her with fists and kicks. They twisted her fingers. Sikandar and his brother Haidar entered the kitchen abusing, while the other persons, who were holding lathis and axes, stood surrounding the kitchen. The complainant was sitting in the kitchen. Haider kicked her 3-4 times and when her daughter Salema tried to rescue her, Haidar and Sikander also assaulted her with fists and kicks. They twisted her fingers. Sikandar made the complainant stand up by grabbing her hair and slapped her near the ear and also broke the gold chain worn by her. When she made a hue and cry, Ilahibux, Shaukat and other villagers came running, upon which the assailants ran away. On the basis of the aforesaid report, FIR No. 22/1999 for the offences under Sections 452, 523, 382, 354, 147, 148 and 149 of the IPC was registered and after usual investigation, a charge-sheet was filed against the present petitioners for the offences under Sections 452, 323 and 34 of the IPC. 4. The Learned Magistrate framed charges against the petitioners for the offences under Sections 452 and 323/34 of the IPC and upon denial of guilt by them, commenced the trial. During the course of trial, the prosecution in order to prove the offences, examined as many as 6 witnesses and exhibited various documents. The accused, upon being confronted with the prosecution allegations, in their statement under Section 313 Cr.P.C. denied the allegations and submitted that they were falsely implicated in the case. No evidence was adduced in defence. Then, after hearing the learned Public Prosecutor and the learned Defence Counsel and upon meticulous appreciation of the evidence, learned trial court convicted and sentenced the accused petitioners for offences under Sections 452 and 323/34 of the IPC vide judgment dated 22.01.2003. Aggrieved by the judgment of conviction, they preferred an appeal, which was partly allowed by the learned appellate court in the manner stated above vide judgment dated 20.07.2004. Hence, this revision petition is filed before this court. 5. Learned counsel for the petitioners submits that the petitioners have been falsely implicated in the case due to enmity. The incident is alleged to have happened on 22.01.1999 and the FIR was lodged on 06.02.1999 with a delay of more than 15 days, for which no plausible explanation has been offered by the complainant party. 5. Learned counsel for the petitioners submits that the petitioners have been falsely implicated in the case due to enmity. The incident is alleged to have happened on 22.01.1999 and the FIR was lodged on 06.02.1999 with a delay of more than 15 days, for which no plausible explanation has been offered by the complainant party. There are number of contradictions in the statements of the prosecution witnesses, which brings the prosecution story under a grave shadow of doubt. The medical evidence produced in this case is also not trustworthy as the alleged victim was medically examined on 08.02.1999, i.e. 18 days after the incident and the doctor in the injury report Ex.P/4 noted the duration of the injury as 12 days. The prosecution has failed to prove occurrence of the incident by producing sufficient evidence on record. Thus, the learned trial court as well as the learned appellate court have committed an error of law in appreciating the evidence brought on record. Hence, it is prayed that the impugned judgments may be quashed and set aside and the petitioners may be acquitted from the charges. 6. Per contra, learned Public Prosecutor has opposed the submissions advanced by the learned counsel for the petitioners and has submitted that there are concurrent findings of the two courts of competent jurisdiction on the point of guilt of the petitioners. The prosecution has been able to prove the offences alleged against the petitioners beyond any reasonable doubt and despite that, the learned appellate court has taken a lenient view and has just imposed fine upon the petitioners instead of awarding them jail term. Hence, no interference is called for in the impugned judgments. 7. I have heard the learned counsel for the petitioners as well as the learned Public Prosecutor at length and have gone through the record of the case. 8. The learned trial court has meticulously examined and discussed the evidence brought on the record and has given a finding that the complainant Hajara (PW-1) and her daughter Salema (PW-2) have given vivid details of the incident, in which the two petitioners accompanied by 5-7 persons entered their house and assaulted them with fists and kicks, slapped the complainant and twisted the finger of her daughter. The reason assigned for the assault is that the petitioners used to take round on motorcycle in front of the complainant's house and upon asking them to refrain from such activity, they bore a grudge against the complainant and committed the offence in order to wreak vengeance. The story narrated by the aforesaid two witnesses is further corroborated by the testimonies of Ilahibux (PW-3) and Shaukat (PW-5), who reached at the spot hearing the ruckus and saw the petitioners standing in the house of the complainant. Aladin (PW-4) also supported the prosecution story. The testimony of Dr. P.K. Sameja (PW-6), who conducted medical examination of Salema and prepared injury report (Ex.P/4) noticing injury on her middle finger, further strengthen the prosecution story. So far as the delay in lodging the FIR is concerned, the complainant herself has stated that there were efforts being made by the opposite party to settle the dispute through Panchayat, but since there was no outcome, she lodged the report. The learned trial court considered this to be a justifiable reason for the delay in lodging the FIR. Based on the aforesaid findings, the learned trial court recorded conviction of the petitioners. 9. The learned appellate court on a reappraisal of the evidence, agreed with the findings recorded by the trial court, but taking a liberal approach, altered the conviction from one under Section 452 IPC to Section 451 of the IPC and instead of sending the accused to jail, just imposed fine upon them. Though the learned appellate court has diluted the offence from Section 452 to 451 of the IPC, but still there are concurrent findings of two courts of competent jurisdiction regarding culpability of the accused petitioners. It is a well-settled position of law that revisional court is loath to interfere with the concurrent findings on facts recorded by the courts below unless glaring features which would otherwise tantamount to gross miscarriage of justice are brought to the notice of the Court. In the case at hand, I find no ground, either legal or factual, which may require interference of this court in the judgment of conviction and order of sentence in exercise of powers under Section 397/401 of the CrPC. I find no illegality, perversity of impropriety in impugned judgments passed by the learned courts below. 10. Resultantly, I find no merit in the instant revision petition. Accordingly, the same is dismissed.