Madhya Pradesh High Court
Moin Ahmed @ Aarju Khan vs The State Of Madhya Pradesh on 25 February, 2022
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Cr.A.No.2591/2010
Moin Ahmed alias Aarju Khan
Versus
State of Madhya Pradesh
Date of Order 25/02/2022
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi, J
Whether approved for
reporting
Name of counsels for For appellant: Ashish Pathak
the parties
For Respondent-State: Shri Puneet
Shroti, Panel Lawyer
Law laid down
Significant Para Nos.
ORDER
(25/02/2022) Appellant has filed this appeal being aggrieved by judgment dated 10/12/2010 passed by II Additional Sessions Judge, Shahdol in Sessions Trial No. 219/2009 convicting him under Section 148 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for six months with fine of Rs. 200/- and in default of payment of fine, simple imprisonment for 15 days. Under Section 307/149 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for five years with fine of Rs. 500/-(two counts) and in default of payment of fine, 2 rigorous imprisonment for six months and under Section 294 of the Indian Penal Code and sentencing him to undergo simple imprisonment for 15 days.
(2) Succinctly, the facts giving rise to the present appeal, as per the prosecution, are that on 21/03/2009 an FIR was lodged by complainant-Basant Gupta at Police Station Shahdol stating therein that the appellant along with his accompllices which were 5 in numbers came at near old Bus Stand and started discussion with his nephew-Rakish. They were constantly abusing and when he refused to talk, committed marpeet with him by means of knife with the intention to kill him. Due to which, he sustained several injuries.
(3) The contention of counsel for the appellant is that judgment passed by the trial court holding the present appellant guilty of the alleged offence is not liable to be sustained as the Court below has not properly appreciated the evidence collected by the prosecution and statement of the witnesses recorded during the trial. There is material contradiction in the statement of witnesses as story narrated by them is not corroborated with the story explained to the police at the time of lodging FIR. In support of his 3 contention he has drawn attention of this Court towards the statement of PW-1 Sachin Patel, wherein he has clearly stated that before incident he did not know any of accused persons. It is stated in paragraph 23 that he had informed the police that he would identify the person who had committed marpeet if they are shown to him. In paragraph 25 he has also stated that at the time of incident he had no dispute with the present appellant. Further, in paragraph 34 he has also stated that he was assaulted by someone on his back, therefore, he could not identify the said person. (4) It is strongly argued by counsel for appellant that in the FIR though the name of present appellant has been mentioned, but the same was lodged by PW-2 Basant Gupta. Although, in his statement he has denied the fact about disclosing the name of accused persons, even he has denied the fact that FIR has been lodged by him. It is further argued that PW-1 Sachin in a statement recorded under Section 161 of Cr.P.C has not stated about causing him injury by the appellant by means of knife. On the contrary, he has stated that someone has assaulted injury to him from his back and thereafter in the court he has developed story and stated that it is the appellant who has 4 caused him injury by means of knife. He further argued that if the statement of PW-2-Basant Gupta is seen who according to prosecution had lodged FIR, in Paragraph 5 he has clearly stated that PW-1 Sachin has told that somebody has caused the injury by knife. In paragraph 6 he has stated that he has not seen the person who assaulted Sachin. In paragraph 10 he has categorically stated that when police had recorded his statement in the hospital at that time he came to know about the name of accused persons and no TIP was conducted. In paragraph 19 he has also admitted that before incident, he has not seen any of the accused persons except Bhupendra and as per paragraph 20 he had never seen the appellant-Arzu Khan. In paragraph 27 he has also admitted that he has not given any information to the police and has not lodged FIR even he did not know the person who has disclosed the information to the police. In paragraph 30 he has further admitted that appellant has not committed marpeet with him.
(5) Further submission of counsel for the appellant is that there are vital contradiction in the statement of the witnesses. Looking to the entire case and the statement of witnesses, it reveals that nobody knows the name of person 5 who caused injury to them and later on they developed the story and false case has been prepared against the appellant and other accused persons. Although, PW-1 Sachin has taken the name of appellant, but in his statement he has stated contrary that somebody assaulted him from his back but he has not seen him. PW-2 Basant has taken the name of Sonu Yadav who caused injury to PW-1 Sachin and Basant himself. Counsel for the appellant further submits that the allegation made against the appellant with regard to causing injury is not sustainable, therefore, he cannot be held guilty for the offence committed under Section 307 and 149 of IPC. He further submits that when there was no allegation and statement made against the appellant, he can not be held guilty of offence under Section 148 and even 294 of IPC. It is contended that the dispute was also not against the present appellant, but it was a dispute of some money transaction with regard to motorcycle, therefore, the present appellant cannot be said to be a member of unlawful assembly.
(6) Per contra, counsel for State has fervently opposed the submissions made by counsel for the appellant stating that trial court has rightly held the appellant guilty 6 for offence alleged against him. While drawing attention of this Court towards statement of PW-6-Atul Mishra counsel for respondent has propounded that this witness in his statement has clearly stated that Arzu Khan (appellant herein) assaulted Sachin Patel and identification parade was also conducted. He has further accepted that Sonu Yadav has caused injury only to Basant Gupta. Counsel for State has relied upon the observation made by the trial court in paragraph 48 of the judgment, in which it has observed that accused persons were more than 5 in numbers, formed unlawful assembly and also caused injury to the complainant party, therefore, court below has rightly convicted the appellant under Section 148 and 149 of IPC. He further urged that the appellant was armed with Katta and also fired. The trial court has discussed this fact in paragraph 40 of its judgment. He has supported the findings given by the trial court which goes root of the matter and submits that the appeal is without any substance and is therefore liable to be dismissed.
(7) In response, counsel for the appellant has submitted that the story with regard to using the fire arm has been disbelieved by the Court and as such there is no 7 substance in submissions made by counsel for State. He submits that in view of the facts and circumstances of the case, the appeal in respect of the present appellant Moin Ahmed @ Arzu Khan is concerned deserves to be allowed and he is entitled to be acquitted in the alleged offence. (8) Both sides have made lengthy arguments on factual and legal issues. I have carefully perused the records and have considered the rival submissions. (9) On perusal of record, it is clear that the trial court has disbelieved the story of using fire arm as projected by the prosecution. The present appellant has been convicted as he has assaulted the injured Sachin Patel. Though, there is vital contradiction in the statement of witnesses, but presence of appellant is noticed in the spot and his participation in the crime has also been reported by other witnesses. So far as the injuries sustained by Sachin Patel is concerned Dr.S.N.Dubey(PW-13) has opined that the same can be caused by means of knife, but the same are simple in nature.
(10) In the above premises, I am of the considered opinion that the appellant was involved in the crime, actively participated and caused injury to Sachin Patel, but 8 those injuries were simple in nature, therefore, instead of Section 307 of IPC, he should have been convicted under Section 324 of IPC. Considering the fact that present appellant remained in jail for 8 days during trial and after conviction remained more than eight months, the sentence awarded to him can be reduced to the period already undergone by him subject to deposit of fine amount of Rs.10,000/-, apart from the fine already imposed. The fine amount shall be deposited by the appellant within a period of 30 days from today and if the same is not deposited with the court of CJM, Shahdol, he will have to suffer the remaining period of sentence.
Accordingly, appeal is partly allowed.
(SANJAY DWIVEDI) JUDGE SUSHMA Digitally signed by SUSHMA KUSHWAHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=06cc7ec7869e71b23c61580e1aaad85481f7ea48cd875c1 KUSHWAHA 8e5a68787947df0c5, pseudonym=3162691BECDE33282E19E0CEBA20524E31482089, serialNumber=0844205F54108DDA40342AD423EF1D3DE29D4F5 E3FC94CC59B05D91905B104C7, cn=SUSHMA KUSHWAHA Date: 2022.03.21 16:57:24 +05'30' 9 10