Mohammed Abid Khan Vs State Of Chhattisgarh

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CRA No.492/2016

2025:CGHC:59744

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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Digitally signed by AMARDEEP AMARDEEP CHOUBEY CHOUBEY Date: 2025.12.16 18:26:23 +0530

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CRA No. 492 of 2016

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Mohammed Abid Khan S/o Late Mohammed Rafique Aged About 20 Years R/o In Front Of Fatima Market, Shahid Hamid Nagar Gali, Police Station City Kotwali, Raipur, Tahsil And District Raipur, Chhattisgarh

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... Appellant

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versus

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State Of Chhattisgarh Through Station House Officer, Police Station Maudahapara, Raipur, District Raipur, Chhattisgarh.

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... Respondent

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(Cause title taken from CIS)

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For Appellant : Mr. Syed Imtiaz Ali, Advocate. For Respondent : Ms. Supriya Upasane, G.A.

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Hon'ble Shri Justice Bibhu Datta Guru

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Judgment on Board

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09/12/2025

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This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 14.03.2016 passed in Sessions Trial No. 216/2015 by the learned Sessions Judge, Raipur, C.G. whereby the appellant has been convicted and sentenced as under:-

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Conviction	Sentence
U/s 326 of the IPC	R.I. for 3years
U/s 25(1B)(b)of Arms Act	R.I. for 1year

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Both the sentences were directed to run concurrently.

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Case of the prosecution, in brief, is that the complainant, Rajkumar Uike PW-2/injured lodged a report on 21.07.2015 at about 10:10 p.m., alleging that at around 9:45 p.m., while he was standing near Ashok Dry Cleaning Shop in Bombay Market and talking with Laxmi Gupta, the appellant came, threatened him, and told him not to talk to Laxmi Gupta or maintain any relationship with her. Thereafter, the appellant stabbed the complainant with a knife on the left side of his stomach. Based on which, FIR was registered against the appellant. During the investigation, the police prepared a site map of the crime scene. A memorandum statement of the appellant was recorded and on being enquired, a knife was seized at the instance of the appellant. A blood-stained T-shirt was seized from the complainant. The appellant/accused was arrested. After completion of investigation, final report was filed.

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In course of trial the prosecution examined as many as 8 witnesses to bring home the charges. The accused person abjured the guilt; pleaded innocence; and false implication.

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The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 14.03.2016 convicted

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and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal.

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Learned counsel for the appellant submits that the impugned judgment of conviction and sentence is contrary to law and facts on record and suffers from gross illegality. Learned counsel submits that the witnesses who were present on the spot, they turned hostile. Seizure of knife has not been proved by the version of prosecution. Learned counsel further submitted that the prosecution has utterly failed to prove any motive or intention on the part of the appellant to commit the alleged offence. Hence, it is submitted that the conviction of the appellant is unsustainable in law and deserves to be set aside. He further prayed that the appellant has already undergone the jail sentence of about 8 months and the appeal be partly allowed by reducing the sentence already undergone by the appellant.

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Learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference, therefore, this appeal deserves to be dismissed.

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I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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Rajkumar Uike (PW-2), complainant/injured stated that in his evidence that on the date of incident, a scuffle took place between

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him and the accused near a tree in front of Bombay Market, Raj Talkies, due to which, the accused stabbed him in the left side of his abdomen, below the ribs. The witness reported this incident to the Maudhapara Police Station. In cross-examination, he stated that the accused had previously kept Lakshmi Gupta (PW-6) as his wife, and thereafter he himself kept her as his wife, which was the reason for the dispute with the accused.

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Lakshmi Gupta PW-6, stated that on the date of incident, a scuffle took place between the accused and complainant, which she witnessed. Both the accused and the complainant were assaulting each other, and at that time, someone stabbed complainant with a knife. Regarding the allegation that the accused stabbed the complainant, the prosecution declared the witness hostile. The witness then stated that she did not see the accused stabbing the complainant; however, she came to know that the complainant had been stabbed in the stomach when he was brought to the hospital. She further stated that she could not say with certainty that the accused was the person who stabbed the complainant. She further admitted that someone had stabbed Rajkumar prior to the fight with the accused. She also admitted that, apart from the accused, the complainant, and herself, no one else was present on the spot at the time of the incident. Therefore, her statement suggesting that someone else may have inflicted the injury on the complainant is contradicted by her own testimony, as there is no

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statement or circumstance indicating the presence of any other person at the time of the incident.

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Subhash alias Raj Tiwari (PW-1) produced as a spot witness, but he turned hostile. Even after being declared hostile by the prosecution and subjected to cross-examination, he completely denied having seen or having any knowledge of the incident. Therefore, no support to the prosecution case could be derived from his testimony.

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Harishankar Nirmalkar (PW3) stated that he did not remember the proceedings that took place in his presence, whereupon he was declared a hostile witness and subjected to leading questions by the prosecution, but the witness did not support the prosecution in any way.

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Dr. Rohit Dubey (PW-4) stated that he examined the injured complainant on 21.07.2015. He found an incised wound measuring 2 × 0.5 cm on the abdomen, which was caused by a hard and sharp object. While referring the injured for further treatment, the witness issued report Ex. P-8. In crossexamination, the witness admitted that an injury similar to the one observed could possibly be caused by falling on a piece of glass. In his report, alcohol smell was found during breathing of complainant. Dr. Amit Agrawal (PW-5) stated that when the complainant Rajkumar Uike was admitted for treatment in the Surgery Department of Dr. Bhimrao Ambedkar Hospital, Raipur,

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he found that the injured had a penetrating wound extending into the abdominal cavity, causing perforation of the peritoneum. The injured remained admitted in the hospital for treatment from 21.07.2015 to 31.07.2015.

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Upon a close scrutiny of the entire evidence on record, it is evident that the testimony of the injured witness, PW-2 inspires confidence and remains consistent on material particulars. He has categorically stated that the appellant had assaulted him with a knife, resulting in a incised wound on his stomach. The accused had previously kept Lakshmi Gupta (PW-6) as his wife, and thereafter, the complainant himself kept her as his wife and because of which, an altercation took place between the accused and complaint on the date of incident. Lakshmi Gupta (PW-6) explicitly denied seeing the accused stab the complainant, admitting uncertainty about the perpetrator and even revealing a prior stabbing of the complainant by someone else before the scuffle.

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Though the injured statement is sufficient but the seizure of knife has not been proved in the case. The other material witnesses, Harishankar Nirmalkar (PW-3) and Subhash alias Raj Tiwari (PW1) have turned hostile and not supported the prosecution's version, even under leading questions and cross-examination.

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However, on a careful assessment of the nature of injury and the surrounding circumstances, it does not appear that the appellant

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had any intention to cause death or knowledge that his act was so imminently dangerous as to make death a probable consequence. The assault was limited to a single blow on the stomach, and no further attempt was made to strike any vital part of the body. In the medical report, at the time of incident the complainant was in ineabriated condition. The seizure witness has not supported the version of prosecution and the FSL report regarding the seized knife has not been exhibited. Consequently, the essential ingredients required to constitute an offence under Section 25(1) (b) of the Arms Act are not fully established.

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The prosecution has to bring home the charges leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. Consequently, the appellant is acquitted for the offence under Section 25(1)(B)(B) of the Arms Act. However, looking to the statement of Complainant-Rajkumar Uikey PW-2, which is supported by the medical report, the conviction under Section 326 of IPC is just and proper and accordingly the same is maintained.

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So far as sentence part is concerned, it would be apt to take into consideration certain mitigating factors. It is evident that the incident occurred suddenly without any prior enmity or premeditated intention to kill. The assault appears to have taken place in the heat of passion. Furthermore, the appellant has already undergone the jail sentence of about 8 months.

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As regards sentence, in the matter of Mohammad Giasuddin v. State of Andhra Pradesh reported in (1977) 3 SCC 287, Hon'ble Supreme Court has observed that if you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in para-9 as follows:

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"9. Western jurisprudence and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817:

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"The laws of England are written in blood". Alfieri has suggested: 'society prepares the crime, the criminal commits it'. George Nicodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education. It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub- culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook,

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should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw: 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield: "If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences”

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Further the Hon’ble Apex Court in the matter of Pramod Kumar Mishra vs. State of Uttar Pradesh reported in (2023) 9 SCC 810 has reiterated the above facts and also placed reliance upon the decision rendered in Mohammad Giasuddin (supra).

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Considering all these above aspects and also considering the fact that during pendency of this appeal the appellant was on bail since 2016; and did not misuse the liberty granted to him and keeping in view the Judgment of Hon'ble Supreme Court in the matter of George Pon Paul v. Kanagalet, (2009) 13 SCC 478, and in light of the Supreme Court in cases of Mohammad Giasuddin (supra) and Pramod Kumar Mishra (supra) and further considering the fact that the appellant has served almost 8 months of his jail sentence , this Court is of the opinion that no fruitful purpose would be served by sending the appellant back to jail at this stage and the ends of justice would be adequately served, if the appellant is sentenced to the period already

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undergone by him during trial and incarceration.

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Accordingly, the appeal is allowed in part . While maintaining the conviction of the appellant under Section 326 of the IPC, the sentence awarded to him by the learned trial Court is modified to the period already undergone by him with a fine of Rs. 20,000/-. The said fine amount shall be deposited within a period of 60 days from the date of receipt of a copy of this judgment, failing which, the appellant shall undergo further R.I. for 3 months. The entire fine amount of Rs. 20,000/- shall be payable to the victim/injured as compensation.

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The appellant is reported to be on bail. His bail bond is not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS.

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The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. SD/-

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(Bibhu Datta Guru) Judge

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Gowri/Amardeep

Mohammed Abid Khan v. State Of Chhattisgarh

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Mohammed Abid Khan v. State Of Chhattisgarh

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