Madhya Pradesh High Court
Habib Bhaldar vs The State Of Madhya Pradesh on 2 December, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013
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 2ND DAY OF DECEMBER, 2022
CRIMINAL APPEAL No. 1174 of 2013
BETWEEN:-
MOHAMMAD UMAR BHALDAR S/O WASIM KHAN
AGED ABOUT 53 YEARS, OCCUPATION: CONTRACTOR
R/O CHHOTI SAGORE
DISTRICT DHAR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ANIL OJHA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH P. S. SAGORE
DISTRICT DHAR (MADHYA PRADESH)
.....RESPONDENT/STATE
(BY SHRI AKASH SHARMA, G.A. FOR STATE)
CRIMINAL APPEAL No. 1370 of 2013
BETWEEN:-
HABIB BHALDAR S/O RASID BHALDAR
2
Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013
AGED ABOUT 30 YEARS, OCCUPATION: CONTRACTOR
R/O CHHOTI SAGORE
DISTRICT DHAR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI GULAB SHARMA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH P. S. SAGORE
DISTRICT DHAR (MADHYA PRADESH)
.....RESPONDENT/STATE
(BY SHRI AKASH SHARMA, G.A. FOR STATE)
CRIMINAL APPEAL No. 1418 of 2013
BETWEEN:-
RAFIQUE S/O JARDAR KHAN
AGED ABOUT 30 YEARS, OCCUPATION: CONTRACTOR
R/O CHHOTI SAGORE
DISTRICT DHAR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI SANJAY SHARMA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH P. S. SAGORE
DISTRICT DHAR (MADHYA PRADESH)
RESPONDENT/STATE
(BY SHRI AKASH SHARMA, G.A. FOR STATE)
&
CRIMINAL APPEAL No. 1461 of 2013
BETWEEN:-
3
Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013
1. JAKIR S/O BACHCHU @ GULAM BHALDAR
AGED ABOUT 20 YEARS, OCCUPATION: MASON
R/O CHHOTI SAGORE
DISTRICT DHAR (MADHYA PRADESH)
BACHCHU BHALDAR S/O WASIM KHAN @ GULAM KADAR
AGED ABOUT 52 YEARS, OCCUPATION: MASON
2.
R/O CHHOTI SAGORE
DISTRICT DHAR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI GULAB SHARMA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH P. S. SAGORE
DISTRICT DHAR (MADHYA PRADESH)
.....RESPONDENT/STATE
(BY SHRI AKASH SHARMA, G.A. FOR STATE)
Reserved on : 13.07.2022
Pronounced on : 02.12.2022
----------------------------------------------------------------------------------------------
These appeals having been heard and reserved for judgement,
coming on for pronouncement this day, Hon'ble Shri Justice Satyendra
Kumar Singh pronounced the following:
JUDGEMENT
All the above four appeals arise out of common judgement, therefore, these are being decided by a common judgement.
2. These appeals have been preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (2 of 1974) [in short "Cr.P.C."], against the judgement dated 22.08.2013, passed by the Court of 3 rd Additional Sessions Judge, Dhar (M.P.) in Sessions Case No.438/2011, wherein appellants -
4Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 Mohammad Umar Bhaldar, Habib Bhaldar, Rafique, Jakir and Bachchu Bhaldar have been convicted under Sections 148 and 302 r/w 149 of the Indian Penal Code, 1860 (in short "IPC"). Appellants Habib Bhaldar, Rafique, Jakir and Bachchu Bhaldar have also been convicted under Section 25 (1-B) (B) of the Arms Act, 1959. They have been sentenced for the above offences as under :-
S. Conviction Sentence
No. Imprisonment Fine Additional
amount imprisonment
in default of
payment of
fine
Appellant - Mohammad Umar Bhaldar
1 148 of IPC RI for 1 year Rs.500/- RI for 1 month
2 302/149 of IPC Life Rs.1,000/- RI for 3 months
imprisonment
Appellants - Habib Bhaldar, Rafique, Jakir & Bachchu
1 148 of IPC RI for 1 year Rs.500/- RI for 1 month
2 302/149 of IPC Life Rs.1,000/- RI for 3 months
imprisonment
3 25 (1-B)(B) of RI for 1 year Rs.500/- RI for 1 month
Arms Act
All the sentences to run concurrently
3. Prosecution story, in brief is as follows :-
(i) On 29.10.2011, at about 7.45 AM, complainant Farchand Ali
received a telephonic call from his uncle Liyakat Ali, wherein he called the complainant saying that appellant Bachchu Bhaldar's daughter Nilopher had eloped with some unknown person in the night, and appellant Bachchu Bhaldar and his family members namely Jakir, Habib, Rafique, Mohammad Umar Bhaldar and co-accused Gama (now dead), on the suspicion that Nilopher was taken away by his family conspiracy, were abusing filthy languages to him. After receiving the 5 Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 aforesaid call, when complainant was going to meet his uncle Liyakat Ali and reached near government water tap at Chhoti Sagore, he saw the appellant Jakir holding a faliya, appellant Bachchu Bhaldar a dhariya, appellants Rafique, Habib and co-accused Gama (now dead) holding swords in their hands. Appellant Jakir assaulted Liyakat Ali with faliya on his head, due to which he fell down. Thereafter, all the other appellants and co-accused Gama (now dead) started assaulting him with the weapons in their hands and when the complainant tried to rescue his uncle Liyakat Ali, appellant Mohammad Umar Bhaldar, who was present on the spot, shouted saying if anybody salvage Liyakat Ali then, he will also be killed. On seeing the incident, lots of people gathered on the spot, due to which, appellants and co-accused Gama (now dead) fled away from the place of occurrence. Liyakat Ali, succumbed to his injuries on the spot.
(ii) On the same day, at about 8.00 AM, SHO Anand Tiwari, on the basis of oral complaint made by the complainant Farchand Ali, lodged the FIR bearing Crime No.174/2011 (Exhibit-P/1) against the appellants and co-accused Gama (now dead) for the offences punishable u/S 147, 148, 302/149 and 506 of the IPC at Police Station Sagore, District Dhar (M.P.). He alongwith other police personnel went to the place of occurrence, called the witnesses issuing Safina Form (Exhibit-P/2) and prepared Naksha Panchayatnama (Exhibit-P/3) of the body of the deceased. On the same day, at about 8.40 AM, he sent the deceased's body vide letter (Exhibit-P/23-A) to the District Hospital, District Dhar for post-mortem examination and at about 8.50 AM, prepared spot map (Exhibit-P/5) of the place of occurence and at about 9.15 AM, seized plain and blood soaked soil from the spot as per seizure memo (Exhibit-
6Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 P/4). On the same day, recorded the statement of complainant Farchand Ali.
(iii) On the same day, at about 11.15, AM, Dr. B. R. Bansal conducted the post-mortem of the body of the deceased. He prepared post-mortem report (Exhibit-P/23) and opined that the death of the deceased had occurred due to hypovolumic shock and injury to brain caused by head injury, within 24 hours from the time of post-mortem and his death was homicidal in nature. Blood stained clothes, worn by the deceased at the time of incident were seized as per seizure memo (Exhibit-P/27).
(iv) On 31.10.2011, SHO Anand Tiwari arrested the appellants Mohammad Umar Bhaldar, Jakir, Bachchu Bhaldar, Rafique, Habib Bhaldar and co-accused Gama (now dead), as per arrest memos Exhibit- P/6 to P/11 respectively. He recorded the disclosure statement (Exhibit- P/20) of the appellant Jakir and on the basis of which on his instance seized a blood stained faliya as per seizure memo (Exhibit-P/12) and his blood stained clothes as per seizure memo (Exhibit-P/13). He also recorded the disclosure statement (Exhibit-P/21) of the appellant Bachchu Bhaldar and on the basis of which on his instance seized a blood stained dhariya as per seizure memo (Exhibit-P/14). He also recorded the disclosure statement (Exhibit-P/22) of the appellant Rafique and on the basis of which on his instance seized a blood stained sword as per seizure memo (Exhibit-P/15). He also recorded the disclosure statement (Exhibit-P/19) of the appellant Habib and on the basis of which on his instance seized a blood stained sword as per seizure memo (Exhibit-P/16).
(v) SHO Anand Tiwari vide letter (Exhibit-P/25), sent all the seized articles to the Forensic Science Laboratory, Indore for chemical 7 Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 examination, obtained FSL Report (Exhibit-P/26) and after completion of the investigation, filed the charge-sheet against the appellants and co- accused Gama (now dead) for the offences punishable under Sections 148, 302/149 and 302 of IPC alongwith 25 (1-B)(B) of the Arms Act before the Court of Additional Sessions Judge, Dhar.
4. Learned Trial Court considering the material prima-facie available on record, framed the charges u/S 148 and 302/149 of IPC against appellant Mohammad Umar Bhaldar and u/S 148 and 302, in the alternative 302 r/w 149 of IPC and also u/S 25 (1-B)(B) of the Arms Act against the appellants Jakir, Habib, Rafique, Bachchu Bhaldar, and co-accused Gama (now dead), who abjured their guilt and prayed for trial. In their statements recorded under Section 313 of Cr.P.C., they pleaded their false implication in the matter. Appellants Rafique and Habib have taken defence of alibi and have examined Mahesh Kumar (DW-1) and Mohammad Rafique (DW-2) respectively in their defense.
5. Learned Trial Court after appreciating the oral as well as documentary evidence available on record, recorded the findings that prosecution proved its case beyond reasonable doubt against all the appellants for the offences punishable u/S 148 and 302 r/w 149 of IPC. Appellants Jakir, Habib, Rafique, and Bachchu Bhaldar have also been convicted for the offences u/S 25 (1-B) (B) of the Arms Act and sentenced all of them, as mentioned in para-1 of this judgement, Being aggrieved with the said judgement of conviction and order of sentence, appellants have preferred the instant appeals for setting aside the impugned judgement and discharging them from the charges framed against them.
6. Vide impugned judgement, co-accused Gama was also convicted and sentenced as above, against which he had preferred criminal appeal bearing 8 Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 Cr. A. No.1371/2013 before this Court, which has been abated because of his death.
7. In Cr. A. No.1174/2013, learned counsel for the appellant Mohammad Umar Bhaldar submits that this appellant has falsely been implicated only because he is close relative of the other appellants. It has been alleged against him that he being member of the unlawful assembly, who committed murder of the deceased Liyakat Ali, was exhorting and assisting the other appellants in committing the aforesaid crime. As per prosecution case itself appellant was not having any arm at the time of incident. No specific overt act has been attributed to him. Learned Trial Court has committed a legal error while appreciating the evidence available on record and finding the statements of prosecution witnesses reliable. Therefore, the impugned judgement of conviction and order of sentence may be set aside and the appellant may be acquitted from the charges framed against him.
8. In Cr. A. No.1370/2013 and Cr. A. No.1418/2013, learned counsel for the appellants Habib and Rafique submits that deceased's nephew complainant Farchand Ali himself deposed that his house is about one kilometer away from the place of occurrence, and on the date of incident he reached the place of occurrence after receiving the deceased's telephonic call at 7.45 AM, and had seen the incident. But neither his mobile phone nor call details of his mobile phone has been produced on record. Admittedly, after the incident no mobile phone was found with the body of the deceased. Hence, his presence on the spot at the time of incident is highly suspicious. Other eye witnesses namely, Jafar Ali (PW-2), Maksud Khan (PW-3), Haidar Ali (PW-4) and Sajid Ali (PW-6) all are sons and close relatives of the deceased, and are chance witnesses. As per prosecution case, their statements were recorded on next day of the incident i.e. 30.10.2011, while they deposed that their 9 Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 statements were recorded on the date of incident. Their statements are contradictory to the medical evidence. Their blood stained clothes have not been seized. In view of the above, their presence on the spot at the time of incident also becomes doubtful.
Learned counsel for the appellants has relied upon the judgement passed by this Court in the case of Vijay Singh Vs State of M.P. [Laws(MPH)- 2004-9-34], the judgement passed by the High Court of Delhi in the case of Ramesh Kumar Vs State of Delhi [Laws(DLH)-2016-10-67] and the judgements passed by the Apex Court in the cases of Ganesh Bhavan Patel Vs State of Maharashtra [Laws(SC)-1978-10-20] and State of Rajasthan Vs Taran Singh [Laws(SC)-2003-10-28].
Learned counsel for the appellants further submits that admittedly, incident took place in a crowded place but no independent witness has been examined. Complainant has deposed that after the incident police came on the spot, conducted the inquest proceedings and thereafter, he went to P.S. Sagore and lodged the FIR (Exhibit-P/1). Therefore, FIR (Exhibit-P/1), said to be lodged at 8.00 AM, is apparently anti-time and manipulated. Mandatory provisions of Section 157 of Cr.P.C. have not been complied with. The whole prosecution case is doubtful, even then appellants have been convicted for the offences punishable u/S 148, 302 r/w 149 of IPC and u/S 25 (1-B)(B) of the Arms Act. The impugned judgement is liable to be set-aside, hence be set aside and appellants be discharged from the charges alleged against them.
Learned counsel for the appellants has relied upon the judgements passed by the Apex Court in the cases of Marudanal Augusti Vs State of Kerala [Laws(SC)-1979-3-35], Bir Singh Vs State of U.P. [Laws(SC)-1977- 8-12], State of Rajasthan Vs Shri Chiranji Lal [Laws(SC)-2001-2-23] and judgement passed by this Court in the case of Samarjeet Singh Vs State of 10 Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 M.P. [Laws(MPH)-2012-2-155].
9. In Cr. A. No.1461/2013, learned counsel for the appellants Jakir and Bachchu Bhaldar has also submitted similar arguments as that of above. He submits that all the prosecution witnesses are interested witnesses and their presence on the spot at the time of incident have not been proved. Learned Trial Court has committed error in believing the statements of aforesaid prosecution witnesses. Appellants have been implicated only on the basis of suspicion. Hence, impugned judgement be set aside and appellants be discharged from the charges alleged against them.
10. Per contra, learned Public Prosecutor for the respondent-State while supporting the impugned judgement of conviction and order of sentence submits that the judgement was passed by the Trial Court after proper appreciation of evidence available on record. The same is well reasoned establishing the guilt of the appellants beyond a reasonable doubt. Therefore, confirming the impugned judgement of conviction and order of sentence, the appeals filed by the appellants may be dismissed.
11. We have heard learned counsel for the parties at length and perused the record.
12. Prosecution case is based on direct as well as circumstantial evidence and prosecution in its support has examined in all 12 prosecution witnesses including complainant Farchand Ali (PW-1), Jafar Ali (PW-2), Maksud Khan (PW-3), Haidar Ali (PW-4) and Sajid Ali (PW-6) as eye witnesses. Other material witnesses are Dr. B.R. Bansal (PW-8), who conducted the post- mortem of the body of the deceased and SHO Anand Tiwari (PW-9), who lodged the FIR and investigated the case.
13. From the unchallenged testimony of Dr. B.R. Bansal (PW-8) and the post-mortem report (Exhibit-P/23), prepared by him, this fact appears 11 Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 undisputed that he conducted the post-mortem of the body of deceased at District Hospital, Dhar and found following injuries on his body:
(i) One incised wound measuring about 8 x 3 x 2 cm., on left tempro parietal region of the skull. On section of tempro parietal region fracture was found in that part.
(ii) One incised wound measuring about 8 x 3 x 2 cm. on right tempro parietal region. On section of tempro parietal region fracture of tempro parietal bone was found.
(iii) One lacerated wound measuring about 3 x 1 x 1 cm. on right shoulder.
(iv) Three incised wounds measuring about 7 x 3 x 2 cm on right leg and foot. On section fracture of tibia bone was found.
14. From the statements of Dr. B.R. Bansal (PW-8) and the post-mortem report (Exhibit-P/23), prepared by him as well as query report (Exhibit-P/24), given by him, this fact also appears undisputed that all the above injuries found on the body of the deceased were antimortem and injuries No.1, 2 and 4 were caused by hard and sharp object, while injury No.3 was caused by hard and blunt object, and the deceased died due to hypovolumic shock and injury to brain, caused by head injury, within 24 hours from the time of post-mortem and his death was homicidal in nature. From the nature and number of the injuries found on the body of the deceased and also the nature of weapon, used in the crime, it is apparent that the same were caused with an intent to commit deceased's murder.
15. During cross-examination of Dr. B.R. Bansal (PW-8), it has been tried to brought on record that the post-mortem of the body of the deceased was conducted not on 29.10.2011, but on 30.10.2011. But upon perusal of the post- mortem report (Exhibit-P/23), it is apparent that the body of the deceased was received in the hospital for post-mortem examination on 29.10.2011 at about 11.00 AM and post-mortem of the same was started on the same day at about 11.15 AM. Therefore, merely on the basis of correction in the digit '2' on 4 th 12 Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 and 6th pages of the post-mortem report (Exhibit-P/23), it cannot be said that the same was done on 30.10.2011.
16. So far as the issue whether aforesaid injuries found on the body of the deceased were caused by the appellants is concerned, complainant Farchand Ali (PW-1), Jafar Ali (PW-2), Maksud Khan (PW-3), Haidar Ali (PW-4) and Sajid Ali (PW-6) all have deposed that they were present on the spot at the time of incident and they saw the appellants assaulting the deceased with deadly weapons faliya/sword/dhariya, but their presence on the spot has been seriously challenged by the appellants. Admittedly, all the above witnesses, being close relatives of the deceased, are interested witnesses, therefore, their testimony require close scrutiny.
17. Complainant Farchand Ali (PW-1) deposed that on 29.10.2011, at about 7.45 AM, he received a telephonic call from his uncle Liyakat Ali, wherein he told him that appellant Bachchu Bhaldar's daughter Nilopher had eloped with some unknown person in the night, and appellant Bachchu Bhaldar and his family members namely Jakir, Habib, Rafique, Umar Bhaldar and co-accused Gama (now dead), on the suspicion that Nilopher was taken away by his family conspiracy, were abusing filthy languages to him. He deposed that after receiving the above call, when he was going to meet his uncle Liyakat Ali and on the way reached near government water tap at Chhoti Sagore, he saw the appellant Jakir holding a faliya, appellant Bachchu Bhaldar a dhariya, appellants Rafique, Habib and co-accused Gama (now dead) holding swords in their hands. He deposed that thereafter, appellant Jakir assaulted Liyakat Ali with faliya on his head, due to which he fell down, thereafter, all the other appellants and co-accused Gama (now dead) started assaulting him with the weapons in their hands. He deposed that when he tried to rescue his uncle Liyakat Ali, appellant Mohammad Umar Bhaldar shouted saying if anybody 13 Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 salvage Liyakat Ali then, he will also be killed.
18. Complainant Farchand Ali (PW-1) further deposed that after seeing the incident, when people gathered on the spot, appellants and co-accused Gama (now dead) fled away from the spot. He deposed that when he tried to lift Liyakat Ali in his Tata Magic vehicle for taking him to hospital, he found him dead on the spot. He deposed that thereafter, police came there and conducted inquest proceedings and took his signatures on Safina Form (Exhibit-P/2), Naksha Panchayatnama (Exhibit-P/3) and other documents, whereafter he went to police station and lodged the FIR (Exhibit-P/1). Appellants have challenged the presence of the complainant on the spot mainly on the grounds that since he himself stated that at the time of incident, he was about one kilometer away from the spot and it was not possible for anyone to reach there within such a short span of time, no mobile phone was found with the body of the deceased and call details of his mobile phone have also not been produced on record, hence his presence on the spot at the time of incident is suspicious.
19. Complainant Farchand Ali (PW-1) nowhere states that deceased Liyakat Ali had made his call from the place of occurrence. He specifically deposed that deceased had called him saying appellant Bachchu Bhaldar's daughter Nilopher had eloped with some unknown person in the night, and appellant Bachchu Bhaldar and his family members namely Jakir, Habib, Rafique, Umar Bhaldar and co-accused Gama (now dead), on the suspicion that Nilopher was taken away by his family conspiracy, were abusing filthy languages to him. He, in para-3 of his examination-in-chief, specifically deposed that when he was going to meet the deceased, then on the way he saw the incident near government water tap at Chhoti Sagore. From his aforesaid statements, it is apparent that deceased had called him prior to the beginning of the incident. Therefore, non-seizure of deceased's mobile phone with his 14 Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 body and non-production of call details of his mobile phone do not make the complainant's presence suspicious on the spot at the time of incident. Complainant Farchand Ali (PW-1) deposed that he reached the spot in his Tata Magic vehicle and this fact has not been challenged, therefore, his presence on the spot cannot be said to be as unnatural.
20. Appellants themselves have taken defence that just after the incident, police had reached the spot and conducted the inquest proceedings prior to the lodging of the FIR. Safina Form (Exhibit-P/2) and Naksha Panchayatnama (Exhibit-P/3), prepared at that time, both bear signatures of the complainant, therefore, there is no reason to disbelieve his presence on the spot at the time of the incident. Jafar Ali (PW-2) and Haidar Ali (PW-4) are deceased's son and nephew respectively and were residing at the same place, hence their presence on the spot was quite natural.
21. Other eye witnesses namely Maksud Khan (PW-3) and Sajid Ali (PW-6) were admittedly, chance witnesses. Maksud's statements u/S 161 of Cr.P.C. were recorded after about 6 days of the incident, Safina Form (Exhibit-P/2) and Naksha Panchayatnama (Exhibit-P/3), prepared on the spot just after the incident, do not bear his signatures. His name was also not mentioned in the FIR (Exhibit-P/1), therefore, learned Trial Court has rightly discarded his testimony. Statements of Sajid Ali (PW-6) were although recorded on the next day of the incident and his name was mentioned in the FIR (Exhibit-P/1), but the time of lodging of the FIR (Exhibit-P/1) has been seriously challenged. Safina Form (Exhibit-P/2) and Naksha Panchayatnama (Exhibit-P/3) do not bear his signature and the reason given by him for his presence on the spot at the time of incident i.e. to meet his employer Shamsuddin has not been corroborated by any other evidence, therefore, his presence on the spot at the time of incident cannot be said to be proved beyond reasonable doubt.
15Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013
22. Complainant Farchand Ali (PW-1), Jafar Ali (PW-2), and Haidar Ali (PW-4) have deposed that at the time of incident appellant Jakir assaulted Liyakat Ali with faliya on his head, due to which he fell down and thereafter, appellant Bachchu Bhaldar assaulted him with dhariya, while appellants Rafique, Habib and co-accused Gama (now dead) assaulted him with swords and appellant Mohammad Umar Bhaldar, shouted saying if anybody salvage Liyakat Ali then, he will also be killed. But, as per medical evidence, in all six injuries, one incised wound on left tempro parietal region, one incised wound on right tempro parietal region, one lacerated wound on right shoulder and three incised wounds on right leg and foot were found on his body. Therefore, their statements about the acts and involvement of all the appellants in the crime appears suspicious.
23. So far as the involvement of appellant Jakir is concerned, statements of all the above three witnesses are consistent on the point that he assaulted the deceased with faliya on his head. Medical evidence i.e. statements of Dr. B.R. Bansal (PW-8) and the post-mortem report (Exhibit-P/23), prepared by him, corroborate their aforesaid statements, wherein two incised wounds of equal size measuring about 8 x 3 x 2 cm. were found on deceased's left and right tempro parietal region of the skull. FSL report (Exhibit-P/26) also corroborate their statements, wherein, human blood was found on his clothes (Article-E/1 & E/2), seized from his possession as per seizure memo (Exhibit-P/13) and also on faliya (Article-D), seized on the basis of his disclosure statement (Exhibit-P/20) and on his instance from his house as per seizure memo (Exhibit-P/12). Appellant Jakir has not given any explanation as to how the aforesaid articles were stained with human blood, therefore, learned Trial Court relying on the judgement passed by the Apex Court in the case of John Pandian Vs State (2010) 14 SCC 129, has rightly found the involvement of 16 Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 the appellant Jakir in the crime.
24. The statements of the complainant Farchand Ali (PW-1), Jafar Ali (PW-
2) and Haidar Ali (PW-4) with regard to the involvement of appellants Bachchu Bhaldar and Rafique also find suport from the medical evidence and FSL report. All the above three witnesses specifically deposed that at the time of incident, appellant Bachchu Bhaldar was holding dhariya and appellant Rafique was holding sword and when the deceased Liyakat Ali fell down on the spot due to the assault made by appellant Jakir, both the above appellants Bachchu Bhaldar and Rafique assaulted the deceased with dhariya and sword. Dr. B. R. Bansal (PW-8) specifically stated and reported in his post-mortem report (Exhibit-P/23) that apart from the injuries found on the body of the deceased Liyakat Ali, he also found three incised wounds, all are of same size measuring 7x3x2 cm. on his leg alongwith a lacerated wound on his right shoulder. He specifically stated and reported in his query report (Exhibit- P/24) that the aforesaid injuries found on the body of the deceased may be caused by the weapon seized in the case from the possession of the appellants.
25. SHO Anand Tiwari (PW-9) deposed that he recorded the memorandum statements (Exhibit-P/21 and P/22) of the appellants Bachchu Bhaldar and Rafique and on the basis of which, on their instance, he seized a blood stained dhariya from the house of appellant Bachchu Bhaldar, as per seizure memo (Exhibit-P/14) and a blood stained sword from the possession of appellant Rafique, on his instance, as per seizure memo (Exhibit-P/15). It is apparent from the FSL report (Exhibit-P/26) that the dhariya (Article-F) seized from the possession of appellant Bachchu Bhaldar and sword (Article-G) seized from the possession of appellant Rafique, contained stains of human blood. Appellants have nowhere explained as to how the aforesaid weapon seized from their possession were stained with human blood therefore, learned Trial 17 Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 Court has rightly held that these two appellants Bachchu Bhaldar and Rafique were also involved in the crime. Learned Trial Court has appreciated the evidence available on record in right perspective exhaustively.
26. The appellants have vehemently challenged the whole prosecution case on the ground that FIR (Exhibit-P/1) said to be lodged after the incident at about 8.00 AM was anti-time and copy of the same was not sent to the concerned Magistrate therefore, the whole prosecution story becomes doubtful. It has also been argued that names of the appellants were not mentioned in the merg intimation report and the same has intentionally not been exhibited during trial, which also makes the prosecution story doubtful. In this regard, it is pertinent to mention that complainant Farchand Ali (PW-1) himself deposed that when he tried to lift the deceased Liyakat Ali into his Tata Magic vehicle for taking him to the hospital, he found him dead on the spot. At that time, police reached the spot and conducted the inquest proceedings thereafter, he went to the police station and lodged the FIR. Safina Form (Exhibit-P/2) and Naksha Panchayatnama of the body of the deceased (Exhibit-P/3) bears his signature. As time of preparing of the aforesaid documents have not been mentioned therein therefore, submissions made by learned counsel for the appellants have force that FIR of the incident (Exhibit-P/1) was not lodged at 8.00 AM, as shown therein but the facts of the instant case is distinguishable from the cases of Marudanal Augusti (supra), Bir Singh (supra) and Samarjeet Singh (supra).
27. In the instant case, it is apparent from the statements of Dr. B. R. Bansal (PW-8) and the post-mortem report (Exhibit-P/23) prepared by him, dead body of the deceased was sent at about 10.25 AM vide application (Exhibit- P/23-A) to the hospital and was received at about 11.00 AM and the post- mortem of the same started at about 11.15 AM. Complainant Farchand Ali 18 Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 (PW-1) in paras-16 and 17 of his cross-examination stated that after the incident, it took about 15-20 minutes to carry out the inquest proceedings and after about 30 minutes therefrom, they took the body of the deceased for post- mortem examination. As the time gap between the incident and reaching the dead body of the deceased to the hospital was not so long therefore, although the FIR is anti-time, there appears no probability of manipulation in the FIR. For the sake of arguments, even if we presume that the same was manipulated, then also the prosecution case is based on direct evidence and the testimony of the complainant Farchand Ali (PW-1), Zafar Ali (PW-2) and Haidar Ali (PW-
4) are corroborated with the medical evidence as well as as FSL report, wherein stains of human blood was found on the weapons seized from the possession of the aforesaid appellants therefore, only because the FIR was anti-time and copy of the same was not timely sent to the Magistrate, whole prosecution story cannot be disbelieved or doubted. Hence, the aforesaid cases cited by learned counsel for the appellants are of no assistance to them.
28. So far as the involvement of the appellants Mohd. Umar Bhaldar and Habib Bhaldar are concerned, complainant Farchand Ali (PW-1) as well as other eye witnesses namely, Jafar Ali (PW-2) and Haidar Ali (PW-4), all have made stereotype statements that when they tried to save the deceased Liyakat Ali, appellant Mohd. Umar Bhaldar shouted saying if anybody salvage Liyakat Ali then, he will also be killed. There is nothing else against him on the record. Admittedly, appellant Mohd. Umar Bhaldar is close relative of the other appellants, who were found involved in the crime. Hence, probability of his false implication in the matter cannot be ruled out therefore, without any corroborative evidence, only on the basis of oral stereotype statements of above witnesses, it is not safe to hold that appellant Mohd. Umar Bhaldar was also involved in the crime.
19Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013
29. Complainant Farchand Ali (PW-1), Jafar Ali (PW-2) and Haidar Ali (PW-4) have although deposed that appellant Habib was present on the spot and assaulted the deceased Liyakat Ali with sword but the sword said to be seized from his possession does not contain stains of human blood, as per FSL report (Exhibit-P/26). Hence, considering the number of injuries found on the body of the deceased, his involvement in the crime also becomes suspicious and without any corroborative evidence, only on the basis of oral testimony of the complainant Farchand Ali (PW-1), Zafar Ali (PW-2) and Haidar Ali (PW-
4), it is not safe to hold that he was also involved in the crime.
30. Since the involvement of the appellants Mohd. Umar Bhaldar and Habib Bhaldar have been found suspicious therefore, conviction of these two appellants for the offence punishable under Sections 148 and 302/149 of IPC as well as 25 (1-B)(B) of the Arms Act is liable to be set aside. As there was no unlawful assembly therefore, the conviction of other three appellants namely, Rafique, Jakir and Bachchu Bhaldar for the offence punishable under Section 148 of IPC is also liable to be set aside and their conviction under Section 302/149 of IPC is liable to be modified to 302/34 of IPC and their conviction under Section 25 (1-B)(B) of the Arms Act is liable to be affirmed.
31. In view of the aforesaid discussion, Cr. A. No.1174/2013 and Cr. A. No.1370/2013 filed by appellants Mohd. Umar Bhaldar and Habib Bhaldar succeeds and stands allowed. The impugned judgement of conviction and order of sentence dated 22.08.2013, passed by the Court of 3rd Additional Sessions Judge, Dhar (M.P.) in Sessions Case No.438/2011 for the offence punishable under Sections 148 and 302/149 of IPC in respect of appellant Mohd. Umar Bhaldar and Sections 148 and 302/149 of IPC in respect of appellant Habib Bhaldar alongwith Section 25(1-B)(B) and sentenced them as stated in para-1 of this judgement are hereby set aside. Vide 20 Cr.A. Nos.1174/2013, 1370/213, 1418/2013 & 1461/2013 order dated 17.01.2014, the jail sentence of appellant Mohd. Umar Bhaldar has already been suspended. Learned Trial Court is directed to ascertain the period of jail incarceration suffered by the appellants from the concerned jail and thereafter they be set at liberty if they are not required in any other case. Their bail bonds, if any, shall stand discharged. Fine amount, if any, deposited by the appellants be refunded to them.
32. Cr. A. No.1418/2013 and Cr. A. No.1461/2013 filed by appellants Rafique, Jakir and Bachchu Bhaldar stand partly allowed and the impugned judgement of conviction and order of sentence dated 22.08.2013, passed by the Court of 3rd Additional Sessions Judge, Dhar (M.P.) in Sessions Case No.438/2011 for the offence punishable under Sections 148 and sentence awarded to them for the said offence, as stated in para-1 of this judgement is hereby set aside and they are acquitted from the said offence. Appellants' conviction under Section 302/149 of IPC is liable to be modified and converted into Section 302/34 of IPC and is hereby converted into Section 302/34 of IPC in place of Section 302/149 of IPC with no change in the order of sentence. Finding with regard to the offence punishable under Section 25 (1-B)(B) of the Arms Act is liable to be affirmed, as learned Trial Court has not committed any error in finding the appellants guilty for the said offence.
33. With the above, all the appeals are disposed of finally.
34. The Registry is directed to send back the Trial Court record forthwith alongwith copy of this judgement. Let a copy of this order be also sent to the concerned jail authorities for its speedy compliance and necessary action.
Certified copy as per rules.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
gp
GEETA
Digitally signed by GEETA PRAMOD
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=1dc3d93a178bbacd0e9485f9f6e99335499bddb32501850a PRAMOD 4984b5b63f6d7a38, pseudonym=12F09B7BC77D4D3D96B764E8FA34B6FE3874D434, serialNumber=41554F8E701AEEB833278B4FDD900CBED72CCF299E A61E33BBE6175289BA0390, cn=GEETA PRAMOD Date: 2022.12.05 18:44:14 +05'30'