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Madhya Pradesh High Court

Chhote Kha vs The State Of M.P. on 9 August, 2017

Bench: P.K. Jaiswal, Virender Singh

                    1                                  Cr.A. No.1165/2003

                HIGH COURT OF MADHYA PRADESH

                              BENCH AT INDORE

                         Hon'ble Shri P.K. Jaiswal and

                        Hon'ble Shri Virender Singh, JJ.



                        Criminal Appeal No.1165/2003



              Chhote Kha S/o Gulab Kha (Dead) and others

                                       Vs.

                                  State of M.P.

                               -x-x-x-x-x-x-x-x-x-x-

Smt. Sharmila Sharma and Shri Rajesh Yadav, learned counsel for the
appellants.

Shri Umesh Gajankush, learned Deputy Advocate General for the
respondent/State.

                               -x-x-x-x-x-x-x-x-x-x-

                                JUDGMENT

(Delivered on 09/08/2017) Per : Virender Singh, J. :-

1. Challenge, in the present appeal is to the judgement and order dated 12/11/2003 passed in sessions trial No.201/2001, where by learned Trial 2 Cr.A. No.1165/2003 Court held the appellant guilty for the offence punishable under Section 302 and 302/34 Indian Panel Code, 1860 and sentenced them for life imprisonment thrice; each for causing death of Aziz Khan, Habeeb Khan and Ishhak Khan all three sons of Yaseen Khan by inflicting injuries by axe and Dharia and fine of Rs.10,000/- for each count of offence totaling to Rs.30,000/- each accused and in default of payment of fine further to go for two years RI for each offence.

2. Background facts sans unnecessary details are as follows: There was a dispute between the accused persons and the deceased persons with regard to the ownership of an agricultural land situated in village Majithi. on 17/6/2001, complainant Barkat Bi, sister of the deceased person was at her field adjacent to the disputed land for preparing the field for sowing. She saw that the accused Chhote Khan was running cultivator in the field of his brother and other accused persons Mohammed Hussain, Rahis Khan, Kallo Bi were collecting clods from the same field. At about 5 o'clock in the evening, deceased persons came there. They objected the act of the accused person and ask them not to cultivate the field; but the accused persons were reluctant and refused to stop the work. A dispute took place between them. During the scuffle, the accused Kallo Bi threw chili powder kept with her in a polythene carry bag on the deceased person. Immediately thereafter the accused persons assaulted the deceased persons by axe and Dhariya. They inflicted injuries to all victims. When they screamed the accused persons shouted that don't spare them and they should not be left alive. Scared by all this, Burkat Bi left the place. She reached her brother's home and informed her brother's son Feroz and her 3 Cr.A. No.1165/2003 sister-in- laws, who went to the spot, but due to night and rainfall Barkat Bi remained at home. In the morning she visited the spot and found all her brothers dead and their motorcycle was lying there in a broken condition. She then reported the matter to the police Mandsaur. The police registered crime number 92/2001 and investigated the case. During investigation, the police sent the dead bodies for postmortem, seized blood stained and plain soil from the place of the incident, prepared spot map, took the accused person into custody and interrogated them and on their information seized Axe and Dharia used in the crime and sent them for FSL examination. In the FSL examination, human blood was found on the Axe and Dharia. The police, after completing the investigation filed charge sheet, which ended in the conviction of the appellants.

3. Charge-sheet against the accused Rahies was filed before the Juvenile Court as he was found minor at the time of the incident.

4. The appellant has preferred the present appeal on the grounds that the judgement of the learned lower court is contrary to law and facts on record. Findings of the learned lower court are neither legal nor proper. Learned Trial Court has committed error in believing the prosecution case or disbelieving the defence version. The learned trial court has drawn unwarranted inferences. It has also committed error in not considering the material omissions and contradictions in the statements of the prosecution witnesses. On these grounds, the appellants prayed for acquittal.

5. In his arguments, learned Counsel for the appellants submitted that the FIR in the case was delayed and no plausible explanation has been forwarded by the prosecution. It is further argued that the field where the 4 Cr.A. No.1165/2003 scuffle took place belongs to the accused Chhote Khan and the deceased were intruders. The accused persons acted in their self defence. It is further argued that the conduct of prosecution witness Barkat Bi is unnatural. Her presence on the spot is doubtful. Presence of other witnesses Hanif and Firoz is also doubtful as they were not named in the FIR or in the statement recorded under section 161 Cr.P.C. of Barkat Bi.

6. Learned Public Prosecutor, appearing on behalf of the State, has vehemently opposed the prayer of the appellants. He argued that the prosecution has established its case beyond all reasonable doubts. Even after cross examination, no contradiction or omission which affects the roots of the case could be pointed out by the defence. It is further submitted by the learned Public Prosecutor that Barkat bi has stated the story before the court. Other two witnesses Hanif and Firoz have supported her statements. Their presence on the spot was natural as Barkat bi went there to prepare her field for sowing. Though it is admitted by her that cultivator cannot be operated by a woman alone but she has explained that her son promised to come therefore she was waiting for him. The statements of the witnesses are strongly corroborated by the seizure of the blood stained Axe and Dharia from possession of the accused persons and statements of investigating officer and doctor. The evidence of the prosecution in this triple murder case is very much clear and cogent and sufficient to establish the guilt of the accused persons. Learned trial court has committed no error in finding them guilty and sentencing them for life. Therefore, learned Public Prosecutor prayed for dismissal of the appeal.

7. We have considered rival contentions and have gone through the record.

8. This is well established by the unrebutted testimony of Dr. Suresh Jain PW-1 and autopsy reports Ex.P/1,2,3 given by him, statements of Barkat Bi, Hanif and Firoz, and other evidence relating to investigation in this regard like sending the dead bodies for post mortem etc. that on the date, time and place of the incident, Aziz Khan, Habeeb Khan and Ishhak Khan all three sons of Yaseen Khan died and their death was homicidal. It needs not much discussion.

9. It is stated by Barkat Bi PW/3 that on 17/06/2001 at about 5 o'clock in the evening when she was on her field for preparing it for sowing, she saw that the accused persons were collecting gravels or rubbles from the field of her brother, who came there and objected the same; but the accused persons were reluctant and they refused to stop the work. Some hot talk and fierceful arguments took place between them. During scuffle, accused Kallo bi threw something like chili powder on the deceased person. Kallo Bi and Chhote Khan shouted that don't spare them; they should not be left alive. Chhote Khan inflicted a blow on the head of Ishak by axe, Mohammad Hussain inflicted a blow on the face and head of Habib by axe and Rahies attacked on the face and head of Aziz by Dharia. They all fell down and died on the spot. She reached home late as the house was almost 2 miles away and informed her brother Rafique, son Feroz and her sisters-in-laws (Bhabhi), who went to the spot, but due to night and rainfall and as all the Nullah were flooded; she remained at home. In the morning; she visited the spot and found all her brothers dead. She then filed FIR.

The police registered and investigated the case. The police prepared spot map, seized motor cycle, soil and slippers of the deceased and prepared documents ExP/5 to 9. Hanif PW/4 and Firoz PW/5 have supported her statement. Statements of all these three witnesses remained intact even after cross-examination. Statement of Dr. Jain along with post mortem reports, statement of ASI R.N. Pal along with FIR, Panchnama Lash, seizure memo of chilly powder and blood stained soil from the spot Ex.P/5- 12, Statement of SHO Pradeep Singh Ranawat alongwith, arrest memos, memos 27 Evidence Act and seizure memos Ex.P/13-18 & 24-27 fully corroborates the statement of Barkat BI. All this evidence is convincing and sufficient to hold the accused persons guilty, which the learned Trial Court has rightly done.

10. In this case there is a delay of 15 hours in filing the FIR, but this delay is sufficiently explained by the prosecution that due to night and rains and flooded Nullah of the vicinity, the complainant could not lodge the report. Learned Trial Court has discussed this argument in para 23 of the impugned judgement and has correctly held that there was sufficient cause for delay in filing the FIR. Nothing contrary is available on record to show that the findings are incorrect.

11. It is further argued that the conduct of prosecution witness Barkat Bi is unnatural. Her presence on the spot is doubtful. Presence of other witnesses Hanif and Firoz is also doubtful as they were not named in the FIR or in the statement recorded under section 161 Cr.P.C. of Barkat Bi. All main prosecution witnesses are relatives, interested and inimical to the accused persons on the dispute of agriculture land which belongs to the 7 Cr.A. No.1165/2003 accused Chhote Khan and there are contradiction and omissions in their statements. But learned Trial Court has dealt with all these issues in para 24 to 33 of the judgement and has rightly concluded that all these points do not affect adversely the merits of the prosecution case. On careful reassessment, we find nothing wrong in the findings of the learned Trial Court, which are well supported by the authorities on the issues mentioned in the judgement itself. It is unnecessary to reiterate them all here for the same conclusions. We would like to add here only one thing that the case of the prosecution would remain undamaged or unharmed even if the statements of Hanif and Firoz are taken out from the record as the statements of Barkat Bi supported and corroborated with the other material available on record is self sufficient to determine the guilt of the accused person.

12. In alternate it is argued that the field where the scuffle took place belongs to the accused Chhote Khan and the deceased were the intruders. The accused persons acted in their self defence. But this defence has not been taken during trial. Learned Trial Court has correctly held in para 36 of the judgement that this is not the case of the defence that the deceased were having any arms or they have attacked in such a way that generated a reasonable apprehension in the mind of the accused person that they might kill them, in such situations; it does not appear that the accused persons caused the incident in furtherance of their right of private defence.

13. Thus, we do not find any force in any of the contention of the learned defence counsel. We are not convinced that some unknown miscreants caused the deaths of all three brothers as they were having some criminal 8 Cr.A. No.1165/2003 history and due to enmity; the accused persons are falsely implicated in the case. The appeal, in our view has no merits, deserves to be dismissed and is dismissed hereby.

14. The order of the learned Trial Court regarding disposal of the property/articles is hereby confirmed.

              (P.K. Jaiswal)                              (Virender Singh)
                  Judge                                          Judge

Aiyer*