SUBHAN KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of this appeal, the appellant Subhan Khan has approached this Court being aggrieved of the judgment dated 31.03.1994 passed by the learned Additional Sessions Judge, Bikaner in Sessions case No.89/1992 whereby, the learned trial Judge, whilst acquitting the appellant from the charges under Sections 147, 148, 323/149 and 302 of the IPC, convicted him for the offence under Section 304 II I.P.C. and sentenced him to undergo rigorous imprisonment for a period of 5 years and a fine of Rs.2,000/- in default of payment of fine to further undergo 6 months rigorous imprisonment.

(2.) Shri M.K. Garg, learned counsel representing the appellant, at the outset, did not challenge the finding of guilt recorded by the trial court against the appellant. However, he urged that the appellant has remained in custody for nearly 3 years as against the sentence of 5 years awarded to him. He further urged that as per the prosecution case, the appellant as well as the co-accused Peeran Khan were attributed the allegation of causing head injuries to the deceased Jeevan Khan. The appellant was allegedly armed with a sharp weapon Barchhi whereas Peeran Khan was armed with a lathi with which, both inflicted blows on the head of the deceased Jeevan Khan. The trial Judge, acquitted Peeran Khan of all the charges. As per the medical evidence, two injuries noticed on the head of the deceased Jeevan Khan were both caused by blunt weapon. Thus, he urged that as a matter of fact, the trial court could not have convicted the appellant for the offence under Section 304II I.P.C. and conviction, if at all, could have been recorded for the offence under Section 325 I.P.C. By now, more than 25 years have passed by from the occurrence. He thus prayed that the appellant deserves to be let off on the sentence already undergone by him.

(3.) Learned Public Prosecutor has vehemently opposed the submissions advanced by the appellant's counsel. However, he too does not dispute the fact that from the statement of the star prosecution witness, being the first informant Sadiq Ali (PW-8), it is reflected that the appellant herein as well as Peeran Khan inflicted head injuries to the deceased Jeevan Khan.