MAJID KHAN Vs. STATE OF M.P.

JUDGEMENT

(1.) APPELLANTS Majid Khan, Mardan Khan and Subhan Khan have been convicted under section "307/34", Indian Penal Code and sentenced to rigorous imprisonment for four years, and seven years respectively. They have also been sentenced to pay fine. They have been further convicted under section "324/34", Indian Penal Code and sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 500/- each. They were charged for the offences under sections 307 and 324, Indian Penal Code also but they have been acquitted of those charges.

(2.) IT is no longer in dispute that an incident of violence took place on 9-10-1993 at about 7 A.M. in village Sukha in which Iddan Khan (P.W.4) sustained fourteen injuries out of which twelve were incised wounds and Imrat (P.W. 10) received two injuries as per reports Ex.D.2 and Ex.D.4 filed in the counter case. On the other hand accused Majid Khan was badly injured and he had five incised wounds coupled with several fractures on his body as per report Ex.D.3. There were counter cases. One was Sessions Trial No. 44 of 1994 against the appellants and the other was Sessions Trial No. 10 of 1994 against Iddan Khan (P.W.4) and Imrat (P.W.10). After trial of both the cases the finding which was arrived at by the trial Court was that it was a case of "free fight". It could not be ascertained with reasonable certainty who mounted the first attack and how the fight ensued but it was clear that both the sides were armed with lethal weapons, they came on the spot to strike each other with full preparation and there were serious injuries on both the sides. There was no other witness in the present case to support the prosecution version except the evidence of the two injured persons. Accused Subhan Khan was held to have caused most of the serious incised wounds found on the body of Iddan Khan (P.W.4) by Katarna, a sharp edged weapon which brought the case against him within the ambit of section 307, Indian Penal Code. The plea of self-defence set up by the appellants was negatived but on the basis of the material on record no specific finding could be arrived at which injuries of Iddan Khan (P.W.4) and Imrat Khan (P.W.10) were caused by accused Majid Khan or Mardan Khan. The inference drawn by the trial Court in para 38 of the impugned judgment is that all the three appellants had formed common intention to cause the death of Iddan Khan (P.W.4) and cause hurt to Imrat (P.W.10) and in furtherance of that common intention they caused injuries to them. After recording this finding the appellants were convicted under sections 307/34 and 324/34, Indian Penal Code and they were acquitted of the alternative charges under sections 307 and 324, Indian Penal Code.

(3.) THE question is whether appellants Majid Khan and Mardan Khan could be convicted with the aid of section 34, Indian Penal Code on the finding that it was a case of "free fight".