AKBAR KHAN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE appellant accused has filed this appeal being aggrieved by the judgment dt. 8.8.2002 passed by Special Judge constituted under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act ( in short the Act ) Shajapur, in Special Case No. 126/2001 whereby he has been convicted and sentenced for the offence of Section 326 of IPC for RI 3 years with fine of Rs. 500.00 with stipulation of the further imprisonment in default of depositing the fine.

(2.) THE facts giving rise to this appeal in short are that on 27.7.2001 at about 9.30 in the nigh the victim Santosh Malviya went to the residence of his neighbour Rajjak Ali to ask the physical condition of his son as he was ill. When at the residence of Rajjak Ali the victim was taking the tobacco, at same time appellant lashed with Farsi accompanied with Mushtaq lashed with iron rod came there and by abusing him with filthy languages by taking the name of his caste (Ballate) asked him that without asking them has he came to their residence and appellant gave a blow of Farsi (the sharp edged weapon) on his left leg resultantly, he sustained the injuries with bleeding. At the same time, co-accused Mushtaq also gave a blow of iron rod on his right leg resultantly, the victim fell down and cried for help, on which the appellant and co-accused fled away from such place. Subsequent to such incident the victim was taken to his residence by said Rajjak. Thereafter accompanied with his sister Rajkumari and one Vinod Khare the victim came to the Police Station Pachore, and lodged the report Annexure P/2 on which the offence under Section 323,294,506/34 of the IPC and Section 3(1) (x) of the Act was registered and the victim was sent to Hospital for his medical examination on carrying the same by Dr. Dinesh Rajved PW-1. He prepared his MLC report according to which one lacerated wound was found below the knee of the right leg while one incised would was found below the knee of the left leg. As per further averments of the MLC the second injury was giving the pain and the victim was not in a position to move his left leg. He also advised for X-ray of such injury. On carrying out the same by Dr. M.K.Joshi PW-5 he found the fracture in the left leg. After holding the investigation and collecting the papers of the aforesaid medical examination and X-ray, the appellant accompanied with the co- accused Mushtaq was charge sheeted for the offence of Section 323,294,324,325 and 506/34 of the IPC and also of Section 3(1)(x) of the Act.

(3.) SHRI Dinesh Rathore, learned appearing Counsel for the appellant after taking me through the evidence along with the exhibited documents of the charge sheet and the impugned judgment said that the story put forth by victim Santosh has not been supported by any independent source of the evidence and besides it the alleged incident was happened in the night and in such premises, it could not be deemed that appellant was identified by the victim as culprit of the incident but subsequent to happening the incident by fabricating the false story, the appellant has been implicated in the matter but such aspect has not been considered by the Trial Court and he has been convicted under the wrong premises. In continuation he argued that in view of the available evidence the appellant could not have been convicted by the Trial Court more than Section 324 of the IPC because it was not the case punishable under Section 326 of the IPC. and firstly prayed for extending the acquittal to the appellant in alternate he argued that on affirming the conviction of the appellant, then considering the circumstances that appellant has already suffered the judicial custody of 6 days during pendency of the Trial between period 2.8.2001 to 8.8.2001 and besides this, he also suffered the mental agony of this case in last 11 years, during this period he also appeared on various dates before the Trial Court as well as in compliance of the order passed in this appeal before this Court besides this he did not possess any criminal antecedents in his past, his awarded jail sentence be reduced up to the aforesaid period for which he has already undergone by enhancing the amount of fine under the discretion of the Court and prayed to dispose of this appeal accordingly.