Madhya Pradesh High Court
Saifulla vs The State Of Madhya Pradesh on 1 November, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar, Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 01st OF NOVEMBER, 2022
CRIMINAL APPEAL No. 422 of 2011
BETWEEN:-
SAEED MOLANA S/O SIKANDAR KHA, AGED ABOUT 55 YEARS,
1. GRAM MOYALIKALA PS KURAWAR DISTT. RAJGARH
(MADHYA PRADESH)
RIYASAT KHA S/O SAEED KHA, AGED ABOUT 26 YEARS, GRAM
2.
MOYALIKALA P.S KURAWAR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI LOKESH BHATNAGAR, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH POLICE
STATION KURAWAR DISTT. RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI N.S. BHATI, G.A.)
CRIMINAL APPEAL No. 354 of 2011
BETWEEN:-
RAOOF KHAN S/O NASEER KHAN, AGED ABOUT 40 YEARS,
VILL.MOYALIKALA,PS.KURAWAR,DISTT.RAJGARH (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI LOKESH BHATNAGAR, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH POLICE
STATION KURAWAR,DISTT.RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 02-11-2022
10:06:17
2
(BY SHRI N.S. BHATI, G.A.)
CRIMINAL APPEAL No. 400 of 2011
BETWEEN:-
ACCHU KHAN S/O NASIR KHAN, AGED ABOUT 22 YEARS,
GRAM.KOYALIKALA THA.KURAWAR DISTT.RAJGARH
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI LOKESH BHATNAGAR, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU.ARCHI
KENDRA KURAWAR DISTT.RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI N.S. BHATI, G.A.)
CRIMINAL APPEAL No. 450 of 2011
BETWEEN:-
BADDU KHA S/O SIKANDAR KHA, AGED ABOUT 30 YEARS,
GRAM MOYALIOKALA PS KURAWAR DISTT. RAJGARH
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI LOKESH BHATNAGAR, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH POLICE
STATION KURAWAR DISTT. RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI N.S. BHATI, G.A.)
CRIMINAL APPEAL No. 469 of 2011
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 02-11-2022
10:06:17
3
BETWEEN:-
SAIFULLAH S/O NASEER KHAN, AGED ABOUT 32 YEARS,
VILL.MOILIKALA,PS.KURAWAR,DISTT.RAJGARH (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI A.S. WARSI, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH POLICE
STATION KURAWAR,DISTT.RAJGARH(BIAORA) (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI N.S. BHATI, G.A.)
____________________________________________________
Reserved on : 29/09/2022
Delivered on : 01/11/2022
____________________________________________________
This appeal coming on for order/judgment this day,
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR passed the
following:
:: JUDGMENT ::
1] This judgement, in addition to Criminal Appeal No.422/2011, filed on behalf of appellants Saeed Molana S/o Sikandar Kha and Riyasat Kha S/o Saeed Kha, shall also govern the disposal of Criminal Appeal No.354/2011, filed on behalf of appellant Raoof Khan S/o Naseer Khan, Criminal Appeal No.400/2011 filed on behalf of appellant Acchu Khan S/o Naseer Khan, Criminal Appeal No.450/2011 filed on behalf of appellant Baddu Kha S/o Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 02-11-2022 10:06:17 4 Sikandar Khan and Criminal Appeal No.469/2011 filed on behalf of appellant Saifullah S/o Naseer Khan under Section 374(2) of Cr.P.C. as these appeals have arisen out of the common judgement dated 22/02/2011, passed in Sessions Trial No.146/2010, by the learned Additional Sessions Judge, Narsinghgarh, District Rajgarh (M.P.) whereby, finding the appellats guilty, the learned Judge of the Trial Court has convicted the appellants as under:-
Conviction Sentence
Accused Section Act Imprisonment Fine Imprisonment
in lieu of fine
Saeed Molana 302/149, 148 IPC Life imprisonment & 1000/-, 3 Years RI and
3 Years RI respectively 500/- 6 Months RI
Riyasat Kha 302/149, 148 IPC Life imprisonment & 1000/-, 3 Years RI and
3 Years RI respectively 500/- 6 Months RI
Raoof Khan 302/149, 148 IPC Life imprisonment & 1000/-, 3 Years RI and
3 Years RI respectively 500/- 6 Months RI
Acchu Khan 302/149, 148 IPC Life imprisonment & 1000/-, 3 Years RI and
3 Years RI respectively 500/- 6 Months RI
Baddu Kha 302/149, 148 IPC Life imprisonment & 1000/-, 3 Years RI and
3 Years RI respectively 500/- 6 Months RI
Saifullah 302/149, 148 IPC Life imprisonment & 1000/-, 3 Years RI and
3 Years RI respectively 500/- 6 Months RI
2] In brief, the facts giving rise to the present appeals are that
Dehati Naleshi in the present case was lodged on 19/05/2010, at around 11:35 am in the government hospital, Kurawar, District Rajgarh (M.P.) by complainant PW/1 Munna S/o Saeed Khan in respect of an incident which took place in the morning at 7:00 am., The author of the Dehati Naleshi is said to be PW/10 R.A. Khan. It was alleged by the complainant Munna that in the morning when he Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 02-11-2022 10:06:17 5 had gone to distribute milk along with his father Saeed Khan to village Palkhedi, while returning back to their village Piplyakaji, they were stopped by two motorcycles being ridden by accused/appellants Saeed Molana, Baddu Kha, Acchu Khan, Saifu Khan, Riyasat Kha and Raoof Khan, all residents of village Moyalikala and started beating them with sticks which they were already carrying. Baddu Kha assaulted his father on his head whereas Saeed Molana hit him on his left hand, Acchu Khan on left hand, Saifu Khan on his left hand and Raoof Khan on the stomach, because of which, his father fell down and started bleeding. Complainant Pw/1 Munna also tried to save his father but as all the accused persons were wielding sticks, they also ran away after him so he fled from the spot, however, when he raised an alarm, Sharif Khan of his village and Mohd. Mustafa of village Lulakhal came to the spot but the assailants had fled away from the spot on their motorcycles. Thereafter, he brought his father Saeed Khan to the government hospital, Kurawar where he was declared as dead on arrival. On the aforesaid, Dehati Naleshi Ex.D/1, FIR Ex.P/25 was lodged in the name of accused persons and subsequently, the charge sheet was filed after completion of investigation. The case was committed and finally it was tried by the learned judge of the Trial Court, who, after recording the evidence has convicted the appellants as aforesaid. Hence, these appeals. 3] Learned counsel for the appellants have submitted that the appellants are lodged in jail since last around 11 years and even Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 02-11-2022 10:06:17 6 assuming the case of the prosecution to be true, the sentence awarded to the appellants is liable to be reduced to the sentence already undergone by them considering the injuries suffered by the deceased and the weapons used by the appellants which are sticks only. Reliance is also placed upon a decision rendered by the Supreme Court in the case of Rudrappa Ramappa Jainpur and others Vs. State of Karnataka reported as 2004 (7) SCC 422. Thus, it is submitted that at the most, their common intention which can be gathered from the material available on record, can be said to be of causing the grievous hurt and not murder.
4] Learned counsel appearing for the respondent/State on the other hand has opposed the prayer and it is submitted that the learned Judge of the Trial Court has rightly convicted the appellants and no illegality has been committed in appreciating the evidence and convicting the appellants as aforesaid. Thus, it is submitted that the appeals be dismissed.
5] Heard learned counsel for the parties and perused the record.
6] From the record, it is found that so far as the death of the deceased Saeed Khan is concerned, it has been proved by PW/7 Dr. Mahendra Gupta who had conducted the postmortem and found the following injuries:-
"1.Lacerated wound 4x1x1 cm on the occipital region of the head.
2. Bruise 4x2 cm in the middle of the right leg and bone Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 02-11-2022 10:06:17 7 fracture in tibia and fibula bone.
3. Lacerated wound 3x1x1 cm in the middle of the left leg and bone fracture in tibia and fibula bone.
4. Bruise 4x3 cm in the middle on the front side of the right arm and bone fracture of radius and ulna bone
5. Bruise 6x2 cm on the right arm and bone fracture of radius and ulna bone
6. Bruise 6x2 cm on the front area of the chest
7. Bruise 8x2 cm on left lower back
8. Bruise 2x1 cm on the right palm"
7] So far as the internal injuries are concerned, it was found that both the lungs of the deceased were found to be pale, and right lung was ruptured. and the liver and kidneys of the deceased were also found pale.
8] The cause of death is said to be the cumulative effect of the injuries suffered by the deceased and resultant loss of blood. The death was homicidal in nature. The report is filed as Ex.P/24. In his cross examination, Dr. Gupta has admitted that had the deceased been treated immediately after the incident, he probably could have been saved. He has also stated that the cause of death is not the rupture of lung as his other lung was not damaged.
9] From the possession of the appellants, sticks have been recovered and as per the FSL report Ex.P/31 except the sticks recovered from the appellant Saeed Molana which is Article-G, none of the other articles namely D, E, F, H and I had blood on Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 02-11-2022 10:06:17 8 them whereas on Article-G, the human blood was also found. The sticks have been recovered from the appellants which have been proved by PW/5 Mohd. Javed who has supported the case of the prosecution.
10] So far as the eyewitness account is concerned, PW/1 Munna happens to be the eyewitness who was also accompanying the deceased Saeed Khan at the time of incident. He has reiterated his version of Dehati Naleshi, however, he has not attributed any specific injury caused by the appellant Saeed Molana. In the cross examination, he has been suggested that around 3 years ago, the father of the complainant (deceased Saeed Khan) had assaulted the appellants and has feigned ignorance that he was also tried for the said assault. He has also denied in respect of various offences which the complainant's father had committed including abducting a girl named Salma. He has also denied that he was convicted in a kidnap case and a theft case was also registered against him. He has admitted that after the incident, his father was also given buttermilk by one Gorelal. He has also admitted that certain dispute was also going on with the appellants on account of right of way which goes through the appellants' land. He has also been suggested that his father had many enemies who had committed his murder and only because there was a dispute going on in respect of right of way, the appellants have been falsely implicated in the case, to which he has denied.
Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 02-11-2022 10:06:17 911] PW/2 Sharif Khan was the second person to reach on the spot. He has also stated that all the six accused persons assaulted the deceased Saeed Khan and when he along with Mustafa reached to the spot, the accused persons ran away from the spot. The other person who reached on the spot was PW/8 Mohd. Mustafa Khan, who has also supported the case of the prosecution and has named all the accused persons as the assailants who ran away from the spot after assaulting the deceased.
12] On careful perusal of the aforesaid evidence led by the prosecution, this Court has come to a conclusion that the intention of the appellants cannot be said to be that of causing murder of the deceased and at the most, it can be said that their intention was to cause grievous hurt as the death was the result of cumulative effect of all the injuries and specially when the appellants had only used sticks to assault the deceased and there was only one injury on his head which was not a fracture. Indeed he has suffered four fractures on both his hands and legs and one of his lung was also ruptured which was not the cause of the death, the intention of the appellant does not appear to be causing death Reference in this regard may be had to the decision rendered by the Supreme Court in the case of Rudrappa Ramappa Jainpur and others Vs. State of Karnataka (supra) as relied upon by the counsel for the appellants. The relevant para of which reads as under:-
"19. Having regard to the facts of the case we have no doubt Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 02-11-2022 10:06:17 10 that A-1, A-2, A-3, A-4 and A-6 had formed themselves into an unlawful assembly. But the moot question which arises, at this stage, is as to whether the common object of the unlawful assembly was to commit the murder of the deceased or whether the common object was to give him a beating and cause grievous hurt to him. To answer this question scrutiny of the medical evidence on record is necessary to find the nature of injuries inflicted. It also involves looking into other circumstances of the case.
20. xxxxx
21. According to him there was no injury to the brain nor was death caused by injury No.1 on the head. In his view death was the cumulative effect of the injuries suffered by the deceased. The doctor has not stated any one of the injuries was sufficient in the ordinary course to cause the death. According to him death was due to shock and hemorrhage as a result of injuries to vital organs. The medical evidence, therefore, discloses that though the deceased had suffered serious injuries, none of them by itself was sufficient to cause the death in the ordinary course. The death was the result of the cumulative effect of all the injuries. Apparently, therefore, even though A-1 and A-2 were armed with axes, as deposed to by the witnesses, they caused injuries to the deceased only from the blunt side of the axes. Injury No.1 was no doubt caused by the sharp side of the axe but that injury was not of a very serious nature, though having fractured a bone, it was grievous in nature. Having regard to the nature of the injuries and the other facts and circumstances of the case we are of the view that the object of the unlawful assembly was not to commit the murder of the deceased but certainly to cause grievous hurt to him. Learned counsel for the appellants drew our attention to paragraph 9 of the judgment reported in 1994 Supp (3) SCC 235 : Shivalingappa Kallayanappa and others vs. State of Karnataka where in similar circumstances this Court found the appellants guilty of the offence under Sections 326/149 IPC and only two of the accused who had caused injuries resulting in the death of the deceased were held liable for their individual acts and punished under Section 302 IPC. That was also a case where some of the appellants, though armed with axes, did not use the sharp side but only gave one or two blows on the head with the Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 02-11-2022 10:06:17 11 butt ends. Some of the accused, who were armed with stick dealt blows only on the legs and/or on the hands which were not serious. In these circumstances this Court came to the conclusion that the common object of the unlawful assembly could not be said to be to cause murders and at any rate it could not be said that all the accused shared the same and that they had knowledge that the two deceased persons would be killed and with that knowledge they continued to be the members of the unlawful assembly. It was observed that whether there existed a common object of the unlawful assembly to commit murder depended upon various factors.
22. It is true that when such a question arises for consideration by the Court, no judgment can be cited as a precedent howsoever similar the facts may be. As was observed by this Court in Pandurang and others vs. State of Haryana : AIR 1955 SC 216 each case must rest on its own facts and the mere similarity of the facts in one case cannot be used to determine a conclusion of fact in another. In the instant case, we find that the alleged motive for the commission of the offence was rather flimsy. Members of the prosecution party as well as the members of the defence party were related to each other and so were most of the witnesses. It is also the consistent case of the prosecution that till 15 days before the occurrence their relationship was cordial. Only two weeks before the occurrence the son of the deceased had assaulted the younger brother of A-1 who had tried to dismantle the public tap in the village. This could hardly provide a motive for committing the murder of the deceased. The grievance, if any, was against the son of the deceased and in any event, even if it is assumed that this may have led to ill will between the parties, it would be too much to infer that for this reason the appellants would have decided to commit the murder of the deceased. The injuries found on the witnesses are simple in nature except the fracture of ribs suffered by PW-4. The injuries were not on vital parts of the body. It, therefore, does not appear that A-3, A-4 and A-6 shared the common object to commit murder. So far as the deceased is concerned, injury no.1 caused by A-1 did not endanger the life of the deceased nor was any one of the other injuries sufficient in the ordinary course of nature to cause the death of the deceased. The serious injuries found on the Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 02-11-2022 10:06:17 12 chest of the deceased by the doctor were caused by use of the axe from its blunt side. Death was the cummulative effect of all the injuries. These facts do indicate that the appellants did not intend to cause the death of the deceased, and the object of the unlawful assembly could not be to cause the death of the deceased. Of course they must have known that if they assaulted the deceased with such weapons as they carried, it may result in grievous hurt to him. We are, therefore, of the view that in the facts and circumstances of this case, the appellants must be held to have formed an unlawful assembly, the common object of which was to cause grievous hurt to the deceased. They are, therefore, guilty of the offence under Sections 326/149 IPC. Since none of the injuries found on the person of the deceased was in itself sufficient in the ordinary course to cause death, neither A-1 nor A-2 can be held guilty of the offence under Section 302 IPC on the basis of their individual act."
13] Testing the facts of the case in hand on the anvil of the aforesaid dictum of the Supreme Court, this court finds that the appellants' case is on a better footing for the reasons that they had used only sticks to assault the deceased whereas in the said case of Rudrappa Ramappa Jainpur (supra), axes were also used. In view of the same, the appellants intention in the present case cannot be said to be that of killing the deceased Saeed Khan but to cause grievous injuries only and thus their sentence u/s.302 of IPC is altered to s.326 of IPC only and instead, they are convicted u/s.326/149, 148 of IPC and taking note of the fact that the appellants have already suffered around 11 years of incarceration, this Court is inclined to accept the contentions raised by the learned counsel for the appellants that their sentence may be reduced to the sentence already undergone by them.
Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 02-11-2022 10:06:17 1314] In view of the same, the appeals stand partly allowed and the sentence of the appellants is reduced to the sentence already undergone by them. The appellants be released forthwith, if not required in any other case.
A copy of signed order be placed in connected appeals.
Sd/- Sd/-
(SUBODH ABHYANKAR) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
krjoshi
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 02-11-2022
10:06:17