SHARIF Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS criminal appeal has been filed under proviso to Section 372 Cr.P.C. aggrieved of the judgment dated 11.5.2012, passed by the Additional Sessions Judge (Fast Track) No.2, Bharatpur, Camp Kaman in Session Case No.5/2011, whereby the learned trial court has been pleased to acquit the accused respondents of offences under sections 341, 308 or 308/149 IPC, and only convict the accused Irfan for offences under sections 148, 323, 324/149 and 325 IPC, the accused Fajji @ Mehmood for offences under sections 148, 323, 324 and 325/149 and other accused respondents for offences under sections 148, 323, 324/149 and 325/149 IPC. On the issue of sentencing benefit of probation under the provisions of Probation of Offenders Act has been granted to accused respondents.

(2.) THE facts of the case are that on 17-11-2008 the complainant appellant Sharif lodged a written report Ex.P-5 at Police Station Pahari, district Bharatpur with regard to an incident which took place on the morning of 17-11-2008 at 9.00 AM. In the said complaint, the background of the incident was given out as an altercation which took place on 16-11-2008 between complainant's Bhabhi and wife of Ayub one Abida. Due to this altercation of the earlier day, on 17-11-2008 the accused respondents with a common intention armed with deadly weapons were stated to have come to the house of complainant's uncle Jafru and brother Yusuf. It was stated that accused respondents attacked them and gave severe beatings causing grievous injuries to several members of the family. Fajji was stated to have inflicted axe-blow on the head of Mubarik, Irfan was stated to have inflicted a lathi blow on the head of Hasan Mohammad, aside of the other accused respondents generally beating the inmates in the house. On the basis of aforesaid report the police registered a FIR No.273/2008 for offences under sections 143, 323, 341, 451, 336 and 379 IPC. The opposite party also with regard to the same incident got registered a FIR No.275/2008. In the said FIR the persons belonging to complainant party were named. Investigation having been made challan was filed in the Magistrate's court. The matter committed to the sessions court. Charges were framed against accused respondents under sections 148, 323, 341, 324 or 324/149, 325 or 325/149, 308 or 308/149 IPC. The accused respondents denied the charges and claimed to be tried. The prosecution examined 16 witnesses and exhibited 28 documents in support of its case and sought conviction for the offences charged. The accused respondents denied the prosecution case and stated that FIR No.273/2008 came to be lodged falsely with an intention of the complainant's themselves and help them find a defence in FIR (No.275/2008) imminent in the facts of the case. On the basis of evidence led before the trial court, particularly the evidence of Dr.Sunil Sharma Pw.16, the trial court found that albeit a grievous injury had been inflicted by Irfan on the head of Hasan Mohammad, yet there was no evidence on record that it was in the ordinary course of nature sufficient to cause death. Taking into consideration the circumstances of the altercation between the complainant and accused respondents, and cross-cases, the learned trial court found that in the overall facts of the case no intention to cause death or intention to cause injury likely to cause death or even knowledge that their act was likely to cause death could be attributed to accused respondents and that the accused respondents were therefore entitled to be acquitted of the offence under section 308 simplicitor or with the aid of 149 IPC. The trial court also held that the accused respondents from the evidence on record did not appear to have put any of the complainant party into wrongful confinement, and therefore were not to be held guilty of section 342 IPC. However from the evidence on record, the learned trial court was pleased to find the accused respondents guilty of various offences as detailed earlier in this order.

(3.) THE learned counsel for the appellant could not point out any fundamental defect in the impugned judgment dated 11-5-2012 passed by the learned Additional Sessions Judge (Fast Track) No.2, Bharatpur, Camp Kaman. It could not be disputed that the injury of Hasan Mohammad was not found by the Dr.Sunil Sharma, Pw.16 to be sufficient in the ordinary course of nature to cause death. Learned counsel has not been able to point out from the impugned order as to how the trial court could be stated to have overlooked any evidence on record and come to a different finding then it did on the criminal culpability of the accused respondents. Nor could it be stated or argued as to how the impugned order dated 11-5-2012 could be termed perverse for reaching a conclusion which could not reasonably be reached on the evidence before the court.