Madhya Pradesh High Court
Shabir Khan & Anr. vs The State Of M.P. on 6 August, 2015
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Criminal Appeal No.343/1997
Criminal Appeal No.360/1997
Criminal Appeal No.365/1997
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH
PRESENT : HON'BLE SHRI JUSTICE N. K. GUPTA
CRIMINAL APPEAL NO.343/1997
Rayees @ Achche Chacha
-VERSUS-
State of Madhya Pradesh
CRIMINAL APPEAL NO.360/1997
Noor Mohammad
-VERSUS-
State of Madhya Pradesh
CRIMINAL APPEAL NO.365/1997
Shabir Khan and another
-VERSUS-
State of Madhya Pradesh
.................................................................................................
Shri Shakeel Ahmed, counsel for the appellants.
Shri Akshay Namdeo, Panel Lawyer for the State.
.................................................................................................
JUDGMENT
(Delivered on the 6th day of August, 2015) All these appeals arose from the common judgment dated 14.2.1997 passed by VIth Additional Sessions Judge, Bhopal in ST No.639/1996 and therefore, they are hereby decided with a common judgment.
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2. The present appeal is preferred by the appellants being aggrieved with the judgment dated 14.2.1997 passed by the VIth Additional Sessions Judge, Bhopal in ST. No.63 of 1996 whereby, the appellant Rayees @ Achche Chacha has been convicted of offence under Section 307 of I.P.C and sentenced to four years rigorous imprisonment with fine of Rs.1000/- while the remaining appellants have been convicted of the offence under Section 307 read with Section 34 of I.P.C. and similar sentence was inflicted on them as was recorded against the main accused Rayess @ Achche Chacha. In default of payment of fine six months rigorous imprisonment in addition was imposed.
3. Facts of the case in short, are that, on 20.9.1995 the complainant Hanif (PW5) resident of Kachhi Sarai, Station Bazariya, Bhopal went to have a cup of tea at the hotel of one Aftab along with his friends Abdul Azim (PW6) and one Farukh. At about 10.30 p.m, while he was talking with his friends, the appellant Noor Mohammad along with other appellants came to the spot. Noor Mohammad and Rayees @ Achche Chacha each had a sword in their hands. The appellants Shabir and Nasir held Hanif and Noor Mohammad gave a blow with the sword to kill Hanif but, Hanif raised his hand and therefore, the fingers of his right hand were cut. Thereafter, the appellant Rayees pierced Hanif's abdomen with sword. Hanif fell down on ground and thereafter, the 3 Criminal Appeal No.343/1997 Criminal Appeal No.360/1997 Criminal Appeal No.365/1997 appellants ran away. The complainant Hanif went to the Police Station, Station Bazariya, Bhopal and lodged the FIR Ex.P/7 within 20 minutes of the incident. He was sent for his medico legal examination. Dr. Rakesh Kumar Jain (PW1) at Hamidia Hospital, Bhopal examined complainant Hanif and gave his report Ex.P/1. He found that Hanif had two incised wounds, one was in his abdomen and second was in his right hand and therefore, he referred the complainant Hanif to RSO, General Surgery, Dr. Snehlata (PW3) who, was working as RSO, General Surgery, examined the complainant Hanif and found that he had two incised wounds:
(i). Incised wound 1.0 x 5 to 6 cm. which was deeper and muscles were found cut,
(ii). Incised wound in between index and middle finger upto to head of metacarpal bone.
Thereafter, Hanif was operated upon his abdominal injury. A report Ex.P/3 was prepared by Dr.Snehlata. After due investigation, charge sheet was filed before the Chief Judicial Magistrate, Bhopal who committed the case to the Court of Sessions and ultimately, it was transferred to VIth Additional Sessions Judge, Bhopal.
4. The appellants abjured their guilt. They did not take any specific plea but, they have stated that they were falsely implicated in the matter. However, in defence Mohammad Farukh (DW1) and Syed Yasin Ali (DW2) were examined.
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5. The learned Additional Sessions Judge after considering the evidence adduced by the parties convicted the appellants as mentioned above.
6. I have heard the learned counsel for the parties at length.
7. In the present case, the prosecution has examined two eye witnesses. Out of them Hanif (PW5) is the victim himself whereas, Abdul Azim (PW6) was examined as a friend of Hanif who, was present at the spot, when the incident took place. Both of them have stated that all the appellants had come to the spot. The appellants Shabir and Nasir scuffled with Hanif and thereafter, Noor Mohammad gave a blow with dagger like sword upon Hanif and since Hanif raised his hand, he received an injury on his hand. In the meantime, Rayees @ Achche Chacha pierced his abdomen with a sword. These witnesses have also stated that thereafter, Rayees gave a second blow of sword on the leg of Hanif three wounds were bleeding. On the other hand, the appellants had examined Mohammad Farukh (DW1) and Yasin Ali (DW2) to establish that the complainant Hanif was assaulted by unknown persons and thereafter, he decided to lodge the FIR against the appellants because a quarrel took place between Hanif and the appellants a few days back relating to playing a game of carom.
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8. The defence counsel before the trial Court has cross examined Dr. Rakesh Kumar Jain (PW1) on the question about the time of examination of the complainant Hanif. Dr. Rakesh Kumar Jain who prepared the MLC report Ex.P/1 has accepted that in MLC Ex.P/1, time of examination was shown to be 11.20 p.m and thereafter, by overwriting the word "P.M." was converted into the word "A.M." A photo copy was shown to Dr. Jain to show that such manipulation was done by Dr. Jain after issuance of the MLC report to the Police and a photo copy of the MLC register was produced before the Court. In this connection the FIR Ex.P/7 can be referred in which it is clearly mentioned that the incident took place at 22.30 hours and the FIR was lodged at 22.50 hours. Similarly, Dr. Snehlata in her report Ex.P/3 has mentioned the time when she examined the complainant Hanif in which it is clearly mentioned that the patient was examined at 11.00 p.m. However, over writing has been done in the report Ex.P/3 so that the word "P.M." was made to be "A.M.". However, only a suggestion of overwriting was made to Dr. Snehlata but, she was not cross examined whether she changed the time of examination. The possibility cannot be ruled out that in the document Ex.P/3 such overwriting of time was done by an unauthorized person after the report was already filed with the charge sheet. A photo copy of the document Ex.P/3 is also produced. Though it is not exhibited but, it is available at 6 Criminal Appeal No.343/1997 Criminal Appeal No.360/1997 Criminal Appeal No.365/1997 page 34 in the record of the trial Court in which clearly time of examination was shown to be 11.00 P.M. Hence, after considering the time mentioned in the FIR and looking to the emergency when the complainant sustained such injury for which he was to be operated, it is clear that Dr. Rakesh Kumar Jain (PW4) was misguided. However, according to the document Ex.P/7 the FIR was filed by the complainant within 20 minutes of the incident and on the same night his surgery took place. Hence, the incident took place in the night and Dr. Rakesh Kumar Jain and Dr. Snehlata examined the complainant in the night itself. Some mischief has been done in the documents Ex.P/1 and Ex.P/3 by an unknown person which does not help the appellants.
9. On the basis of the mischief, the defence evidence was given. Mohammad Farukh (DW1) and Yasin Ali (DW2) have stated that the incident occured at 10.30 a.m in the morning and unknown persons had assaulted the complainant Hanif. As discussed above, the incident took place at about 10.30 P.M in the night. Apparently, the defence witnesses are telling a falsehood before the Court to save the appellants and therefore, their evidence cannot be believed. Similarly, the evidence given by Abdul Azim (PW6) is not believable. Initially he has stated that the incident took place before him and he saw the culprits. He has stated that one accused held Hanif by his vest and he held Hanif till Hanif fell down on the 7 Criminal Appeal No.343/1997 Criminal Appeal No.360/1997 Criminal Appeal No.365/1997 ground whereas, no such story has been told by Hanif himself. If Hanif was talking with Abdul Azim and others and he was so brutally assaulted then, being a friend, it was the duty of Abdul Azim to take the injured complainant Hanif to the hospital or to the Police Station but, Hanif as well as Abdul Azim have accepted that none of the friends of complainant Hanif went with him to the Police Station or to the hospital. The conduct of the friends as shown by these witnesses clearly indicates that Abdul Azim was not present at the time of incident.
10. Also Abdul Azim has stated much about the wound caused to the complainant Hanif on his leg but, Dr. Rakesh Kumar Jain and Dr. Snehlata did not find any wound on the leg of complainant Hanif. When Hanif did not get any injury on his left leg then such exaggerated statement could not be given by the eye witness Abdul Azim. Thirdly, Abdul Azim has stated that he did not know the names of the appellants. According to him, the culprits were shown to him at the Police station. If Abdul Azim was present at the spot then he would have enquired from the complainant Hanif about the assailants and the enmity of Hanif with the appellants and therefore, he would know the name of the culprits immediately after the incident. On the basis of the aforesaid discussion, it appears that the witness Abdul Azim (PW6) was not present at the spot and his testimony is unbelievable. 8 Criminal Appeal No.343/1997 Criminal Appeal No.360/1997 Criminal Appeal No.365/1997
11. The complainant Hanif (PW5) has stated that after the incident he went to the Police Station all alone and lodged an FIR Ex.P/7. Ex.P/7 is duly proved by ASI Manoj Sharma (PW7). The FIR is written within 20 minutes of the incident and the injuries as told by the complainant caused to himself were found by Dr. Rajesh Kumar Jain (PW1) and Dr. Snehlata (PW3). It is true that a dispute took place between the parties 3-4 days back relating to playing a game of carom but, it cannot be said that due to that small dispute the complainant would have falsely implicated the appellants in the matter where he sustained such injuries for which a surgical operation was required. Hence, in absence of any support of eye witness, the testimony of the complainant Hanif should be believed and it is proved beyond doubt that the appellants have assaulted the complainant Hanif.
12. According to Dr. Snehlata (PW3), she gave an opinion about the injury caused on fingers of the complainant Hanif that it was grave. However, she has accepted that such injury was not grave and no fracture was found below the injury. No opinion was given by Dr. Snehlata about the injury caused in the abdomen of the complainant Hanif. However, she has stated that some surgery was done to the complainant Hanif. Hanif has accepted that he remained in the hospital for 11 days after the surgery. If surgery was done to Hanif then the bed head ticket relating to notes of surgery should 9 Criminal Appeal No.343/1997 Criminal Appeal No.360/1997 Criminal Appeal No.365/1997 have been proved. However, no such bed head ticket has been proved by any doctor. In such a case when bed head ticket is not proved, it would be apparent from the statement of Dr. Snehlata and Hanif that the surgery was done on the abdomen of Hanif. It could be only done if there was any injury on the vital part of his body i.e. the abdomen and if surgery would not have been done, he could die of hemorrhage. Hence, the injury caused to the abdomen of the complainant Hanif appears to be fatal in nature.
13. Hanif has stated that Rayees @ Achche Chacha gave a second blow with a sword like dagger on the leg of complainant Hanif. In absence of any second injury, the story of second assault given by Rayees @ Achche Chacha cannot be believed and therefore, it is clear that one assault was made by Noor Mohammad with a sword like dagger causing a simple injury and Noor Mohammad did not repeat the assault. Similarly Rayees @ Achche Chacha pierced the abdomen of the complainant with a sword and no second assault was made by him. In this connection, the judgment passed by the Apex Court in the case of "State of U.P. Vs. Virendra Prasad" [(2009) 9 SCC 37] may be referred in which it is held that for constitution of an offence under Section 307 of I.P.C two ingredients must be present viz. :
(1). An intention of or knowledge relating to commission of murder.
(2). And the doing of an act towards it.10
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In the light of the aforesaid judgment if act of Noor Mohammad is considered then he did not give a blow in a forceful manner and therefore, no finger of the complainant was amputated or fractured, hence it cannot be said that the appellant Noor Mohammad had intended to kill Hanif. Similarly Rayees @ Achche Chacha though stabbed a sword in the abdomen of the complainant Hanif but,he did not know as to whether he pushed the sword sufficiently in the abdomen so that the complainant Hanif would have died. Hence, it cannot be said that the appellant Rayees @ Achche Chacha had intended to kill the complainant Hanif or had knowledge that by his act the complainant Hanif would die. Hence in the light of aforesaid judgment passed in the case of Virendra Gupta (supra), the appellants cannot be convicted of offence under Section 307 of I.P.C.
14. Further the judgment of Apex Court in the case of "Jai Narain Mishra and others Vs. The State of Bihar"
AIR 1972 SC 1764 may be referred in which it is held that though an injury is caused on the vital part of the body of the victim, endangering his life, could not be deemed to be an injury which would have necessarily caused death and in that case the accused must be given benefit of doubt and conviction should be converted into an offence under section 326 of I.P.C. In the present case, the bed head ticket of complainant Hanif was not proved. It is proved that surgery 11 Criminal Appeal No.343/1997 Criminal Appeal No.360/1997 Criminal Appeal No.365/1997 of his abdomen was done but, no definite opinion was given by Dr. Snehlata though in the absence of surgery the complainant Hanif would have died. In the light of the judgment passed by the Apex Court in the case of Jai Narain Mishra (supra) for overt act of Rayees @ Achche Chacha no offence punishable under Section 307 of I.P.C. may constitute. In place of offence under Section 307 of I.P.C. offence under Section 326 of I.P.C shall constitute.
15. As discussed above the offence under Section 326 of I.P.C was committed by Rayees @ Achche Chacha whereas, the appellant Noor Mohammad had voluntarily caused a simple injury by a sharp cutting weapon and he had individually committed a crime under Section 324 of I.P.C. It is alleged against the appellants Shabir and Nasir that they held the complainant Hanif when the other appellants were assaulting the complainant Hanif by swords or sword like dagger. However, according to the FIR Ex.P/7 the complainant Hanif was seated at a hotel and the appellants suddenly appeared before him. It is mentioned by the complainant Hanif that Shabir and Nasir tried to hold him but, if they would have tried to hold or held the complainant Hanif then the complainant Hanif could not raise his hand to save himself from the assault caused by Noor Mohammad. The complainant Hanif did not say that Shabir and Nazir assaulted him with any weapon and therefore, by mere presence of 12 Criminal Appeal No.343/1997 Criminal Appeal No.360/1997 Criminal Appeal No.365/1997 Shabir and Nasir, it cannot be said that they had any common intention along with the co-accused Noor Mohammad or Rayees @ Achche Chacha. Hence, the appellants Shabir and Nasir cannot be convicted of either of offence under Section 307 of I.P.C. or any inferior offence of the same nature. They did not commit any offence of assault themselves and their common intention with co-accused could not be proved by the prosecution.
16. Though the appellant Noor Mohammad has also caused a simple injury to the complainant Hanif by a sharp cutting weapon and he came to the spot along with the accused Rayees @ Achche Chacha and he could see that Rayees @ Achche Chacha had a sword in his hand but, if background of the assault is considered then only a quarrel took place between the parties due to playing of a game of carom and possibility cannot be ruled out that the appellant Noor Mohammad could have visited the spot to teach a lesson to the complainant Hanif which could be achieved by threatening or by causing simple hurt to the complainant Hanif and therefore, if the appellant Noor Mohammad had a sword like dagger in his hand or he saw the sword in the hand of the appellant Rayees @ Achche Chacha, it cannot be said that he intended to cause a grave injury to the complainant Hanif. It is stated by the complainant Hanif that the appellant Noor Mohammad assaulted him to take his life but, 13 Criminal Appeal No.343/1997 Criminal Appeal No.360/1997 Criminal Appeal No.365/1997 since he raised his hand in between his body and the sword a simple injury was caused on his fingers. However, it is not made clear by the complainant Hanif that which part of his body was aimed by Noor Mohammad and secondly, the appellant Noor Mohammad did not give any forceful assault and therefore, neither the fingers of the complainant Hanif could be amputated nor fractured and hence, if such assault would have touched any vital part of the complainant Hanif then a simple injury would have been caused on the skin. Hence, it cannot be presumed that the appellant Noor Mohammad had intended to cause a grave injury by a sharp cutting weapon to the complainant Hanif. Hence, it cannot be said that he had any common intention with the appellant Rayees @ Achche Chacha. On the basis of the aforesaid discussion the appellant Noor Mohammad should be convicted of offence under Section 324 of I.P.C. for his individual overt act whereas, the appellant Rayees @ Achche Chacha should be convicted of offence under Section 326 of I.P.C.
17. The learned counsel for the appellants has submitted that the appellants have faced the trial and appeal since the year 1996 and therefore, they have faced such a harassment for 19 years and therefore, their sentence may be reduced to the period for which they remained in the custody. It would be apparent that Rayees @ Achche Chacha remained in the custody for one month during the appeal whereas, Noor 14 Criminal Appeal No.343/1997 Criminal Appeal No.360/1997 Criminal Appeal No.365/1997 Mohammad remained in the custody for approximately 44 days during the trial and 7-8 days during the appeal. Looking at the crime committed by Noor Mohammad with the reason that he was the first offender and aged about 22 years at the time of incident, a lenient view may be taken against him that his sentence may be reduced to the period for which he remained in the custody but, no such lenient view can be taken for the appellant Rayees @ Achche Chacha. In this connection the judgment of the Apex Court in the case of "Sadha Singh and another Vs. State of Punjab" AIR 1985 SC 1130 may be referred in which the Apex Court has condemned three months rigorous imprisonment for offence under Section 307 of I.P.C with the words that it was mockery of the justice. Hence an effective sentence is to be inflicted upon the appellant Rayees @ Achche Chacha.
18. On the basis of the aforesaid discussion the appeal filed by the appellant Shabir and Nasir is hereby allowed. Their conviction as well as the sentence of offence under Section 307 read with Section 34 of I.P.C is hereby set aside. Both are acquitted from all the charges appended against them. The appeal of the appellant Noor Mohammad is hereby partly allowed. His conviction and sentence of offence under Section 307 read with Section 34 of I.P.C. is hereby set aside. He is acquitted from the charge of Section 307 or 307 read with Section 34 of I.P.C. but, convicted of offence under 15 Criminal Appeal No.343/1997 Criminal Appeal No.360/1997 Criminal Appeal No.365/1997 Section 324 of I.P.C on the same charge and sentenced to the jail sentence of the period for which he remained in the custody during the trial and appeal. The appeal filed by the appellant Rayees alias Achche Chacha is also partly allowed. His conviction as well as jail sentence of offence under Section 307 of I.P.C. is hereby set aside. He is acquitted from that charge but, under the same head of the charge he is convicted of offence under section 326 of I.P.C and sentenced to one years rigorous imprisonment with fine of Rs.5000/-. In default of payment of fine he shall undergo six months rigorous imprisonment in addition. If fine amount is deposited then a sum of Rs.5000/- be given to the complainant Hanif r/o Kachchi Sarai,Station Bazariya, District Bhopal by way of compensation.
19. The appellants are on bail. Their presence is no more required therefore, it is directed that the bail bonds of the appellants Shabir, Nasir and Noor Mohammad shall stand discharged whereas, the appellant Rayees @ Achche Chacha is directed to surrender immediately before the trial Court without any delay so that he shall be sent to undergo the sentence recorded by this Court.
20. The copy of the judgment be sent to the trial Court along with its record for information and compliance.
(N.K. GUPTA) JUDGE 6.8.2015