Karnataka High Court
State By Napoklu Police Station vs Chakkera Khader S/O Ummer on 7 June, 2006
Equivalent citations: 2006CRILJ3744, 2006(6)KARLJ136, 2006 CRI. L. J. 3744, 2007 (1) AJHAR (NOC) 194 (KAR.) = 2006 (5) AIR KAR R 52 (DB), 2006 (5) AIR KANT HCR 52, (2006) 4 CRIMES 563, (2007) 1 ALLCRILR 618, (2006) 6 KANT LJ 136
Bench: N.S. Veerabhadraiah, Subhash B. Adi
JUDGMENT
1. This appeal is by the State, being aggrieved of the Judgment of acquittal of the accused for the offence under Section 326 IPC by the learned Chief Judicial Magistrate, Madikeri, in C.C. No. 199/96, dated 23.12.1999.
2. The case of the prosecution in brief is as follows:
The accused-Chakkera Khader as well as the injured-Usman are from Yemmemadu village of Madikeri taluk. The injured-Uaman used to work in the garden land of the accused. As usual, Usman left his house at 8.30 a.m. on 27.10.1996 armed with a knife and he accompanied the accused. The accused took the knife from the hands of Usman saying that it is very sharp. While they were so proceeding, the accused-Chakkera Khader assaulted Usman over the right calf muscle, resulting in a bleeding injury. Immediately, the injured was shifted to the |Government Hospital, Napoklu, by P.W.1-Mohamed and a complaint was lodged as per Ex.P1. Thereafter, the injured was shifted to the District Hospital, Madikeri, for further treatment, where he was an in-patient from 27.10.1996 to 08.11.1996. The Head Constable-P.W.8-K. Laksmaiah registered a case in Crime No. 117/1996, prepared F.I.R. and forwarded to the Court. P.W. 10-Somegowda-Assistant Sub-Inspector of Police, Napoklu Police Station, proceeded to the spot, prepared a mahazar as per Ex. P2 and seized M.O.1-sickle and M.O.2-hawai chappal. Also collected the blood stained mud-M.O.3. He recorded the statement of the witnesses. After completion of the investigation, filed charge sheet.
The learned Chief Judicial Magistrate secured the presence of the accused and framed the charges for the offence under Section 326 IPC. The accused pleaded not guilty and claimed to be tried. The prosecution in ail examined P.Ws.l to 10, marked Exs.P1 to P4 and produced M.Os.1 to 3. The learned Chief Judicial Magistrate for the reasons recorded in its Judgment, acquitted the accused. It is this Judgment of acquittal, which is questioned in the present appeal.
3. The learned Government Pleader submitted that the evidence of P.W.2-Usman shows that it is the accused who assaulted with knife-M.O.1 over his right calf muscle. The incident of assault is witnessed by P.W.4-Nabeesa and P.W.5-Rukia. P.W.3-Haneef speaks of the fact that the accused running armed with knife-M.O.1. P.W.10-Somegowda-Assistant Sub-Inspector, prepared the spot mahazar-Ex. P2 and collected the blood stained mud. When there is clinching evidence to show that It is the accused-Chakkera Khader who assaulted P.W.2-Usman, there was no reason for the learned Chief Judicial Magistrate to acquit the accused. It is also clear from the evidence of P.W.9-Dr. Devadas that the injured was brought to the hospital at Napoklu, he examined him at 9.15 a.m. and found fracture of right fibula upper 1/3rd and that he issued wound certificate as per Ex.P4. Further submitted that it is also in the evidence of P.W.7-Dr. Nagendra Murthy that as the injuries suffered are of grievous in nature, the victim was admitted to the District Hospital at Madikeri as in-patient from 27.10.1996 to 08.11.1996. When the medical evidence also corroborates with the testimony of injured-P.W.2-Usman, the learned Chief Judicial Magistrate arriving at the conclusion that there are two views are possible, is nothing but perverse and illegal. The testimony of the victim-P.W.2 itself is sufficient to convict the accused. Also submitted that the reasonings of the learned Chief Judicial Magistrate that the evidence of injured-P.W.2 is not corroborated by the evidence of other witnesses is also erroneous and not sustainable. Therefore, prayed to set aside the Judgment of acquittal and to convict the accused for the offence under Section 326 IPC.
4. Learned Counsel Sri. Abdulla submitted that the testimony of P.W.2-Usman is not corroborated by the evidence of other witnesses. The doctors have stated that such injuries could also be caused on a fall while running. When two views are possible, the view which is in favour of the accused has to be accepted. Thereby the prosecution has failed to prove the charges levelled against the accused beyond reasonable doubt. Also submitted that while the accused was residing at Dubai, the injured was in the habit of visiting his house and developed illicit intimacy with his wife and when the accused Chakkera Khader came to the village, he saw Usman with the company of his wife. It is submitted that the injured-Usman on seeing the accused started running and in the act of running, fell down and sustained injury. Therefore submits that the testimony of P.W.2-Usman cannot be believed. His evidence shows that there is lot of improvements, wherein he has clearly admitted that; his statement before the Police he has not stated about the amount of Rs. 1,700-00 due by the accused, which is an after thought. Also submitted that on account of the illicit relationship by P.W.2-Usman with the wife of the accused, he divorced his wife and the same is admitted in the evidence of the prosecution witnesses. It is submitted that where the testimony of the prosecution witnesses are doubtful in nature, giving room for two views, the testimony of the prosecution witnesses should not be believed. In this regard he relies on the following decisions:
1. ; Hem Raj and Anr. v. State of Punjab.
2. (2006)1 Supreme Court Cases 401; T. Subramanian v. State of T.N.
3. ; Devatha Venkataswamy Alias Rangaia v. Public Prosecutor, High Court of A.P.
4. AIR 2004 Supreme Court 2943; Ram Swaroop and Ors. v. State of Rajasthan.
5. ; State of Rajasthan v. Raja Ram.
6. ; Harijana Thirupala and Ors. v. Public Prosecutor, High Court of A.P., Hyderabad.
Relying on the decisions supra submitted that the Judgment of acquittal by the trial Court normally should not be interfered unless the Judgment is perverse or illegal. Also submitted that the sworn testimony of P.W.2 itself is not sufficient to rely in the absence of any other corroborative materials. In this regard, relies on the decision ; Lallu Manjhi and Anr. v. State of Jharkhand. Further submitted that the Judgment of the learned Chief Judicial Magistrate is well founded and well reasoned. Therefore, prayed to dismiss the appeal by confirming the Judgment of acquittal.
5. In the light of the submissions, the point for consideration that arises;
Whether the learned Chief Judicial Magistrate, Madikeri, is justified in acquitting the accused or the finding is perverse or illegal and suffers from infirmity? If so, liable to be interfered with?
6. The judicial pronouncements of the apex Court as is observed in the decisions referred to supra make clear that when the findings of the Court below are wholly unreasonable or perverse and not based on evidence on record or suffers from serious illegality including ignorance or misleading of evidence on record, the appellate Court will be justified in set aside such an Order of acquittal. Similar views are expressed in the case of Hem Raj and Anr. v. State of Punjab , where the view taken by the Court below found reasonably possible, acquittal should not be reversed.
In the case of T. Subramanian v. State of T.N. (2006)1 Supreme Court Cases 401; while considering the scope of appeal it is held that;
If the accused succeed in proving his case by preponderance of probabilities and where two views reasonably possible by very same evidence and the appellate Court without considering the reasons assigned by the trial Court, it is erroneous on the part of the appellate Court to interfere and reverse such finding.
In the case of Devatha Venkataswamy alias Rangaiah v. Public Prosecutor, High Court of A.P. it is observed;
While so re-appreciating the evidence, the appellate Court should first analyse the findings of the trial Court and then for valid reasons to be recorded it can reverse such finding of the trial Court In the case of Ram Swaroop and Ors. v. State of Rajasthan reported in AIR 2004 Supreme Court 2943, while considering the scope of appeal against acquittal at para 25 thus observed:
Having regard to the findings recorded by the trial Court and having gone through the evidence on record, we are of the view that this was not a case in which the High Court ought to have interfered with the order of acquittal passed by the trial Court. It is well settled that if two views are reasonably possible on the basis of the evidence on record, the view which favours the accused must be preferred. Similarly it is well settled that if the view taken by the trial Court while acquitting the accused is a possible, reasonable view of the evidence on record, the High Court ought not to interfere with such an order of acquittal merely because it is possible to take the contrary view. It is not as if the power of the High Court in any way is curtailed in appreciating the evidence on record in an appeal against acquittal, but having done so, the High Court ought not to interfere with an order of acquittal if the view taken by the trial Court is also a reasonable view of the evidence on record and the findings recorded by the trial Court are not manifestly erroneous, contrary to the evidence on record or perverse.
In the case of State of Rajasthan v. Rajaram observed as follows:
There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference.
In the case of Harijana Thirupala and Ors. v. Public Prosecutor, High Court of A.P., Hyderabad thus observed:
Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.
7. We are taken through all the above Judgments. The judicial pronouncements make clear that no case is precedent on facts. What the Court has to see is whether the reasonings of the trial Court are well founded and acceptable with sound reasonings, then the question of reversing the finding of the trial Court does not arise. As is observed above, it is only in case, if the evidence on record has not been properly appreciated by ignoring the material facts, it is open to the appellate Court to interfere with such Judgment of the trial Court. It is with these reasonings, we proceed to consider and re-appreciate the evidence on record.
8. It is in the evidence of P.W.1-Mohammed that on 27.10.1996 at about 9.30 a.m. while he was near Maszid, he received information about the accused assaulting his son at Yemmemadu of Padiyani village. Immediately he rushed to the spot and noticed injury over the right leg with bleeding. He shifted his son to the Government Hospital, Napoklu, from there his son was shifted to the District Hospital, Madikeri. It is also in his evidence that after shifting the injured to the hospital at Napoklu, he proceeded to the Police Station and lodged a complaint as per Ex.P1. The testimony of P.W.1 shows that on coming to know of the incident of assault, he shifted his injured son-P.W.2-Usman to the Government Hospital, Napoklu and lodged a complaint. Thereafter, the injured was shifted to the District Hospital, Madikeri.
9. Before re-appreciating the evidence of the prosecution witnesses as well as the injured, we have to take note of the fact the reasons assigned by the learned Chief Judicial Magistrate for acquittal.
At para 13 of the Judgment it is observed as follows:
From the evidence of this witness and P.W.2 who is said to be the eye witness, there is no corroboration because P.W.3 never says that he has seen the accused assaulting P.W.2. What he says is he was in the house at 9 a.m. He heard the noise of shouting. He came out and found one person running holding the sickle in his hand and P.W.2 fell down sustaining injury on his leg. Therefore, P.W.3 is not the eye witness to the incident. He has not seen the accused assaulting P.W.2, but he has seen that the accused was running with the sickle in his hand. Similarly P.W.4 also says that she has seen the incident from a distance and further during the cross-examination she says that she has not seen the quarrel between the P.W.2 and the accused. These two witnesses never says directly that the accused has assaulted P.W.2. Therefore, this statement of P.W.3 and 4 and the allegations made in the complaint Ex.P1 are not corroborated.
The learned Chief Judicial Magistrate observed that P.W.3-Haneef and P.W.4-Nabeesa have not seen the incident and are not corroborated with the complaint Ex.P1.
Further at para 14 of the Judgment it is observed as follows:
He says that if a person were to thrown a sharp edge weapon against a person who is running the above said injuries are not likely to be caused. If a person assaulted by dagger, there is possibility of causing the injuries as stated in Ex.P4. He had admitted the patient in the first time, advising him to approach a major hospital....
At para 15 of the Judgment it is observed as follows:
As could be seen from the evidence of these doctors there is a divergent opinions. The specialist who has been examined as P.W.7 says that if a sharp edged weapon were to be thrown while running, the injuries are likely to be caused, whereas P.W.9 says that it is not possible. Therefore, there are two divergent views in this behalf.
Further at the middle of para 15 of the Judgment it is observed as follows:
As per Ex.P2 the M.O.1 was recovered from the spot. If this Ex.P2 is taken into consideration, the accused should have left M.O.1 at the spot itself and ran away from the spot. As could be seen from the evidence of P.W.3 the accused was running from the spot by holding the weapon in his hand. If this is so, how this weapon came again near the spot which was said to have been recovered by the police under the mahazar. Therefore, even this aspect is also not corroborated.
It is with these reasonings, the trial Court disbelieved the testimony of the injured P.W.2-Usman as well as P.W.3-Haneef, fP.W.4-Nabeesa and P.W.5-Rukiya. Now we have to consider whether the said reasonings are acceptable or perverse in nature.
10. P.W.2-Usman, injured, in his evidence has stated that he know the accused, about 3 years back on one day at 9.00 a.m. the accused Khader took him from Yemmemadu to Padiyani for coolie work. While they were proceeding, a girl came from opposite side. The accused told him to go ahead. While he was so proceeding, the accused assaulted on his right calf, as a result he suffered with bleeding injury. His evidence also shows P.W.3-Haneef who was near by took him to Napoklu hospital, from there he was taken to the District Hospital, Madikeri and thereafter took further treatment at Mangalore. It is in his evidence that the accused was due in a sum of Rs. 1,700-00 towards coolie as he had worked in his garden land, whereas the accused was postponing the payment. It is also in his evidence that while he was proceeding to the land, the accused assaulted by him, and stated that he can identify the knife-M.O.1.
In the cross-examination, he has stated that prior to the incident, the accused was at Dubai. His wife was staying in the village and that he used to go very often to the house of the accused while he was at Dubai. He denied the suggestion that he had developed illicit relationship with the wife of the accused. In that connection, when the accused tried to caught him red-hand, while running sustained injuries. He denied the suggestion that a false case has been foisted against the accused. In the further cross-examination, he has admitted that after the incident in question the accused has divorced his wife. He has not stated before the Police that the accused was due in a sum of Rs. 1,700-00.
11. P.W.3-Haneef in his evidence has stated that he know the accused and P.W.2-Usman and also know about the incident that took place on one day at 9.00 a.m. about 2 years back. He has stated that he heard the shouting. Immediately he rushed to the spot and found the accused running away and armed with a knife, whereas P.W.2 found on the ground and there was bleeding from the leg and was not in a position to talk. Immediately, himself and another Usuf shifted him to Napoklu hospital. Also stated that on the same day the Police came and prepared the spot mahazar-Ex.P2 and also seized the knife-M.O.1, which was found at the spot.
In the cross-examination, he has stated that the distance to his house from the place of the incident is about 150 ft. He has further stated that earlier to the incident, the accused was residing at Dubai, whereas the accused's wife Fathima was residing at Yemmemadu in the coffee estate. During that time, P.W.2 was going to the coffee estate for doing coolie work. He denied the suggestion about the illicit relationship between the injured and the said Fathima and also stated that he does not know as to whether the accused has divorced his wife or not. He denied the suggestion that while P.W.2 running away, fell down and sustained injuries.
12. P.W.4-Nabeesa in her evidence has stated that she know the injured as well as the accused and also know about the incident. About 3 years back on one day at about 9.00 a.m. that she was going for coolie work at Yemmemadu, at that time she noticed P.W.2-Usman as well as accused-Khader were coming. Then accused assaulted P.W.2 with a knife on his leg and caused bleeding injury. Thereafter, the accused ran away from the spot.
In the cross-examination she has stated that the distance from the place of galata to her house is about 200 ft. and stated that she did not observe as to why P.W.2 and accused were quarreling. Also stated that she witnessed the incident from a distance. But, she did not speak with anybody. In the further cross-examination she has admitted that prior to the incident the accused was residing at Dubai, whereas his wife-Fathima was residing in the garden and stated that she does not know about the illicit relationship between the injured and the accused's wife.
13. P.W.5-Rukiya in her evidence stated that she know the accused and the injured. That about 3 years back at about 9.00 a.m. in front of her house the accused assaulted with knife on the leg of the injured, as a result the injured suffered with bleeding injury. She left for her coolie work. Also stated that she cannot identify the knife. However state that P.W.2 was wearing hawai chappal-M.O.2 and the knife is at M.O.1.
In the cross-examination, she stated that she cannot say as to with which knife the accused assaulted and also she cannot say the nature of the injury suffered. She further stated that she does not know anything about the illicit relationship by the injured with the accused's wife.
14. P.W.6-P.A. Abdul Gaffar though admitted that he know the accused, given a go by to the case of the prosecution as far as preparing of majazar-Ex.P2 and the witness was cross-examined by treating him as hostile.
15. P.W.9-Dr.Devadas in his evidence has stated that he was working as a medical officer at Napoklu Government Hospital. On 27.10.1996 at about 9.15 a.m. he examined one patient by name Usman with the history of assault at about 8.30 a.m. by Chakkera Khader. On examination, he found the following injury:
Wide chopped wound over right leg cutting all the blood vessel and muscle tissues extending up to the bone with severe bleeding measuring 4" x 3" x 1".
He has further stated that there was a fracture of right fibula upper l/3rd and the patient has taken further treatment at the District Hospital, Madikeri and City Hospital, Mangalore. He has further stated that again on 19.11.1996, the patient came back from the City Hospital, Mangalore for follow-up treatment. On his examination, it was partially healed and there was deformity of right knee with wasting of muscles below the right knee leading to permanent disability and he has issued the wound certificate as per Ex.P4.
In the Cross-examination, he has admitted that he has not mentioned the condition of the patient in Ex.P4. He has stated that when a person throws M.O.I or sharp edged weapon against a person who is running with the above said injuries are not likely to be caused and stated if a person is assaulted by a dagger, there is no possibility of causing the injuries as stated in Ex.P4 and stated that he admitted the patient and advised him to approach a major hospital.
16. P.W.7-Dr. Nagendra Murthy in his evidence has stated that he was working as a senior specialist at the District Hospital, Madikeri. On 10.12.1996 one patient by name Usman was referred from Napoklu Primary Health Center alleged to have been assaulted on right calf region treated him as an in-patient from 27.10.1996 to 08.11.1996. Further stated that the patient was discharged on his request as the patient want to go to Mangalore. The injury was grievous in nature and he issued certificate as per Ex.P3.
In the cross-examination, he has stated that if a person while running, an object like M.O.1 were to be thrown towards his leg, the injury as stated above may likely to be happened.
17. The testimony of P.W.3-Haneef clearly goes to show that his house is at a distance of about 150 ft. from the place of the incident. On hearing the cry, he came out and noticed the accused running away armed with a knife, whereas P.W.2 had suffered with bleeding injury over his leg. Though P.W.3 has not witnessed the incident of assault, it evidences the fact that immediately after the assault in question the accused ran away, whereas the injured-Usman had suffered with bleeding injury over his leg.
18. Coming to the evidence of P.W.4-Nabeesa, she has categorically stated that while she was going towards Hemmemadu for coolie work, the accused and P.W.2 were coming, whereas the accused assaulted P.W.2 with a knife over his leg and thereafter the accused ran away. She has made it clear in the cross-examination that she did not observe what was the quarrel between the accused and injured and stated that her house is at a distance of 200 ft. from the place of the incident. She has further made clear that she witnessed the galata from a distance. But, she did not speak with anybody and went away. On a careful scrutiny of the testimony of P.W.4-Nabeesa establishes the fact that the accused assaulted P.W.2. But, she was not aware for what reason the quarrel took place. The quarrel may be for whatever reason, but the fact remains that she witnessed the incident of assault from a distance. Therefore, there is nothing to discard or disbelieve the testimony of P.W.4.
Similarly, P.W.5-Rukiya has categorically stated that the incident of assault took place in front of her house, whereas the accused assaulted on the leg of P.W.2 and caused bleeding injury. Though the answer given in the cross-examination is in the negative, no much importance has been elicited to discard the testimony of this witness when she has clearly spoken about the assault in question.
19. Now coming to the testimony of injured-Usman. On the day of the incident, the accused was taking him to his land for coolie work. While the injured was going ahead, the accused assaulted on the right calf muscle with a knife causing severe bleeding injury. It is no-doubt true that P.W.2 has given an explanation to what reason the accused has assaulted i.e., the accused was due in a sum of Rs. 1,700-00 and he demanded for payment of the amount. On that ground he assaulted. No much importance is elicited to discard his evidence insofar as the assault is concerned by the accused.
20. It is vehemently contended that the testimony of P.Ws.3, 4 and 5 does not corroborate with the testimony of P.W.2. As already pointed out, we are satisfied with the testimony of P.W.3-Haneef, P.W.4-Nabeesa and P.W.5-Rukiya who speak about the presence of the accused and the injured. Assuming for a while that none of the witnesses have witnessed the incident of assault, it does not go to the root of the prosecution case. As the testimony of the injured does not give room to discredit his version, it is relevant to know that the incident of assault has taken place in the morning. Immediately P.W.I proceeded to Napoklu Police Station and lodged a complaint as per Ex.P1 and a case was registered in Crime No. 117/1996 for the offence under Section 324 IPC.
21. The evidence of P.W.9-Dr. Devadas establishes the fact that the Injured was examined on 27.10.1996 at about 9.15 a.m. alleged to have assaulted by Chakkera Khader. On examination, he found the following injuries and issued wound certificate Ex.P4 as follows:
Wide chopped wound over right leg cutting all the blood vessel and calf muscle tissue completely extending up to the bone, with severe bleeding measuring 4" x 3" x 1". On X-ray -> chip # right fibula upper 1/3rd [City Hospital, Mangalore], D.O.A. 27.10.96 at D.H. Madikeri. Patient referred to Mangalore on 8.1.96 from D.H. Madikeri. On 18.11.96 patient discharged from City Hospital, Mangalore. On 19.11.96 patient came to PHC, Napoklu, for follow up and admitted again. On 19.11.96 -> wide partially healed ulcer or bone deep over right leg with healthy granulatory tissue here and there.
Flexor deformity of right knee with wasting of muscles below the right knee, leading to permanent disability of right lower limb.
The above mentioned injury is grievous in nature.
22. The wound certificate clearly reveal that on examination of the X-ray found the fracture over right fibula upper 1/3rd which is due to assault with a knife. That apart, on perusal of the medical certificate issued by P.W.7-Dr. Nagendra Murthy, Chief Medical Officer of the District Hospital, Madikeri, shows that the injured was treated as an in-patient from 27.10.1996 to 08.11.1996. When the testimony of P.W.7-Dr. Nagendra Murthy and P.W.9-Dr. Devadas shows from the nature of the injury, there is no ambiguity or any divergent opinion insofar as the injury is concerned.
23. The learned Chief Judicial Magistrate observed that the doctors have given divergent opinion. May be true one has stated that such an injury can be caused when a weapon is thrown on the leg and may not cause such injury. But, in the case on hand, when the testimony of injured-P.W.2 clearly establishes the fact that it is the accused who assaulted on the calf muscle resulting in fracture, it points only on the guilt of the accused and nothing else. There is no possibility of implicating this accused falsely. The evidence on record has not been properly analysed and appreciated by the learned Chief Judicial Magistrate and thereby crept in a wrong conclusion in acquitting the accused, which in our opinion is perverse, illegal and not based on evidence on record. Even discrediting the testimony of P.Ws.3, 4 and 5, the evidence of P.W.2-Usman, who is injured, itself is sufficient to hold that it is the accused who assaulted him and caused grievous injury punishable for the offence under Section 326 IPC as it has resulted in the fracture of right fibula upper l/3rd .
24. For the foregoing reasons, we hold that the Judgment of acquittal is perverse, illegal and not based on the material evidence. Accordingly, we set aside the Judgment of acquittal and convict the accused for the offence under Section 326 IPC.
25. We have heard the learned Counsel for the respondent/accused insofar as the sentence is concerned.
26. The learned Counsel for the respondent/accused brings to the notice of the Court the case of Naib Sing v. State of Punjab and also the case of Bankat and Anr. v. State of Maharashtra , in which a sympathetic view came to be taken as the accused are relative and the incident in question had taken about 10 years back. Therefore, prayed to take a lenient view and pass appropriate order.
27. In the present case, it is not in dispute the accused and the injured are relatives. The defence is that the injured had developed illicit intimacy with the accused's wife. Therefore he wanted to caught him red-hand and it also came to the notices of many of the villagers. It appears that due to the said fact the accused might have assaulted with knife. Though it is not the prosecution case, by applying the principles laid down in both the cases supra, the incident of assault having taken place about 10 years back and also further having a reformity approach, in our opinion, if the accused were to be sent behind the bars after lapse of 10 years would not be proper. Therefore, we proceed to pass the following:
ORDER In the result, the appeal is allowed in part, sentencing the accused to undergo imprisonment for the period already in custody and pay a fine of Rs. 5,000-00 within a period of 45 days from today. In default of payment of fine amount, the accused shall undergo S.I. for a period of six months. Out of the fine amount of Rs. 5,000-00, an amount of Rs. 4,000-00 be paid to the injured-P.W.2-Usman after proper identification.