Madhya Pradesh High Court
State Of M.P. vs Habib Khan And Ors. on 29 July, 2006
Equivalent citations: 2007CRILJ2505
JUDGMENT S.L. Jain, J.
1. Appellant-State had filed this appeal under Section 378(1) of the Code of Criminal Procedure (henceforth, 'the Cr. P. C) aggrieved by the Judgment and order dated 9-5-92, passed by IInd Additional Sessions Judge. Sehore in Sessions Trial No. 102/90, acquitting the respondents of offences punishable under Sections 148, 302. 323, 324 and 325 read with Section 149 of the Indian Penal Code (hereinafter referred to as 'the IPC for short).
2. Prosecution case in brief Is that about one year before the date of incident Ajij Khan (PW 2) and respondent No. 6 Shabbir Khan contested Panchayat Election. Shabbir Khan was elected resulting in bad blood between complainant party and respondents. On the date of incident at about 5 p.m., Sayeed Khan (PW-8) was returning to his village from village Shyampur after unloading the carl of sugar cane. When he reached near rivar Parwa, he was accosted by respondents Ayub Khan. Hafiz Khan, Jafrudeen and Ajij Khan. Jafrudeen questioned him as to why he raised shoe on his father. Shabbir Khan abused him, Thereafter, Sayeed Khan reached his village and went to the house of Chhote Khan and Informed him about the incident which took place near river Parwa. They decided to lodge a report. While going to lodge the report they found Noor Mohd., Ismail Khan, Hanif Khan also sitting in the Goha of village. They informed them also about the incident which took place at Parwa river. All of them concurred to lodge the report of the said incident and proceeded towards police post. In the way Chhote Khan stayed for attending call of nature and others proceeded.
3. When they reached near culvert of Ganda Nala, they found the respondents present there. Respondents Ismail, Munna Khan and Hakim Khan were armed with Farsa and remaining respondents were armed with lathis. Respondent Shabir Khan asked the complainant party as to where they were going. In reply, Sayeed Khan informed that they are going to Shyampur police post to lodge the report. Thereupon, respondent Shabir told them that they will be shown as to what the lodging of the report is and started beating. Ismail Khan, Sayeed Khan, Munna Khan, Noor Mohd. and Hanif Khan. After the said assault the respondents look to their heels.
4. Chhote Khan saw the above incident of assault from some distance and immediately returned to his village, arranged for a cart and returned to the spot along with Shakur Khan and his son Gudu in the cart. Injured Ismail Khan, Sayeed Khan, Hanif Khan, Noor Mohd. and Munne Khan were being carried to police post, Shyampur, In the way, Ismail Khan succumbed to his Injuries.
5. The FIR of the Incident was lodged by Chhote Khan at police post, Shyampur. After registration of the crime at police station Doraha the investigation started, Hanif Khan, Sayeed Khan, Noor Mohd., and Munna Khan were sent for medical examination to Primary Health Center, Shyampur. Inquest on the dead body of Ismail Khan was performed, The body was sent for postmortem examination. The postmortem was performed by Dr. A. B. Nlyaz who recovered the clothes found on the body of the deceased. The same were seized. Spot map was prepared. Blood stained and plain earth was recovered from the spot. At the instance of the accused persons, weapons of assault were recovered. The seized articles and clothes were sent for chemical examination. Ex. P-33 is the report of Forensic Science Laboratory. The report of serologist was also received.
6. After investigation, a challan for the aforesaid offences was filed against the respondents. Charges were framed against the respondents who abjured their guilt. They pleaded that they are innocent and have been falsely implicated. They also stated that because of the defeat of Aziz Khan in the Panchayat election there were two parties in the village. The accused persons belong to the family of Shabir Khan, therefore, they have been falsely implicated. Respondent Shabir Khan also pleaded that on the date of incident, he was at Sehore and was not present at the place of alleged occurrence.
7. After concluding the trial, learned trial Judge on the basis of evidence of Dr. Nijam (PW-12) found that deceased Ismail Khan died homicidal death. On the basis of evidence of Dr. Hurkat. he found that Hanif Khan and Sayeed Khan sustained injuries by means of hard and sharp weapons. He also found that Munne Khan and Noor Mohd. sustained simple injuries and recorded a finding that the prosecution has failed to prove that the respondents were the perpetrators of the crime and acquitted them of the charges framed against them.
8. The trial Court found that the presence of the respondents other than Rafique, Israil and Munne Khan at the spot is doubtful, As it was dark, it was not possible for the witnesses to Identify the respondents. It also found that there was no reason for the presence of the respondents at the place of incident, the eye-witnesses examined by the prosecution are interested witnesses and other witnesses though available were not examined, the version given by the eye-witnesses is exaggerated, certain significant facts were omitted by the witnesses at the time of recording of their statements under Section 161 of Cr. P.C., the respondents and the complainant party are having inimical terms and the prosecution witnesses are partisan witnesses, accused persons also sustained injuries during the same incident which the prosecution has failed to explain, the copy of the FIR was not promptly sent to the Magistrate, during investigation also, the statements of the witnesses were not promptly recorded, the investigating officer displayed his commitment towards complainant party and investigation was one sided, criminal case Is pending against the members of the complainant party.
9. The trial Court further found that the prosecution has failed to prove as to which particular respondent caused the injuries to the deceased or to the injured persons, He incident occurred suddenly, there was no reason for the complainant party to go to the police station to lodge a report at an unearthy time. The trial Court found the evidence of the prosecution to be incredible and it was of the opinion that in any case, the accused/respondents are entitled to the benefit of doubt and acquitted them.
10. It is against this order of acquittal that the State has come up in this appeal. Leave was granted to the State-appellant on 13-i 1-92.
11. We have heard Shri T. K. Modh, Dy. Advocate General for appellant-State and Shri Ranjan Banerjee, Advocate for the respondents at length and gone through the record of the case.
12. Shri Modh led us through the record and contended that the learned trial Judge erred in acquitting the respondents of the offences charged. He submitted that the acquittal of the respondents is bad, improper and illegal.
13. Per contra, Shri Ranjan Banerjee, counsel for the respondents supported the impugned judgment.
14. In order to bring home guilt against the respondents, prosecution examined Chhote Khan (PW 6), Sayeed Khan (PW 8), Noor Mohd. (PW 11), Hanif Khan (PW 15), Munne Khan (PW 16) and Shanker (PW 7) as eye-witnesses. Shaker (PW 7) did not support the prosecution case and he was declared hostile. All other prosecution witnesses have uniformly supported the prosecution case.
15. Sayeed Khan (PW 8), has stated that while he was returning to his village after unloading the cart of sugar cane at Shyampur respondents Ayub Khan, Hanif Khan, Jafrudeen and Khalil Khan accosted and abused him. Respondent Jafrudeen also questioned him as to why shoe was raised on his father at Sehore. Sayeed Khan after informing that he did raise the shoe returned to the village along with bullock cart. He went to the house of Chhote Khan and narrated the aforesaid incident. When he and Chhote Khan proceeded to lodge the report of the aforesaid incident, in the way they met Israil Khan, Hanif Khan. Munne Khan and Noor Mohd. in the Goha. The incident of Parwa river was narrated to these per-son's also. They also got ready to go to the police post to lodge the report. All of them proceeded to lodge the report.
16. The witness further stated that when the above members of complainant party reached near Ganda Nala, they found all the accused persons standing at the spot. Israil, Munne and Hakim were armed with Farsa and remaining accused were armed with lathis. Shabir Khan asked them as to where they are going. He informed that they were going to Shyampur police post to lodge the report. Thereupon, saying that they will make him learn what the lodging of the report is all the respondents started beating the members of the complainant party. In the incident deceased (Ismail Khan), Hanif Khan, Munne Khan, Sayeed Khan and Noor Mohd. sustained injuries.
17. The evidence of this witness is corroborated by the evidence of other eye witnesses, namely, Chhote Khan (PW 6), Noor Mohd. (PW 11), Hanif Khan (PW 15) and Munne Khan (PW 16) also.
18. The evidence of the eye-witnesses is further corroborated by the evidence of Dr. A. B. Niyaj (PW 12) who performed the postmortem examination on the dead body of Ismail Khan and Dr. K. G. Hurkat (PW 21) who examined the injured eye-witnesses Hanif Khan, Munne Khan, Sayeed Khan and Noor Mohd.
19. After carefully scrutinizing the evidence of eye-witnesses which is corroborated by other witnesses, we are of the firm opinion that the trial Court rejected the evidence of eye witnesses on untenable grounds.
20. The main reason for disbelieving the eye witness-account as recorded by the trial Court is that there was dark at the place of incident and it was not possible for the eyewitnesses to identify the respondents.
21. This finding cannot be allowed to stand. Chhote Khan has stated that the incident had occurred few minutes after the sunset. Sayeed Khan (PW 8) in para 25 of his statement has stated that he could see the accused persons standing at the spot from the distance of more than 10 to 12 paces. This suggests that there was sufficient light at the time of incident. Noor Mohd. (PW 11) has stated that at about 6 p.m. he was informed about the incident which took place at Parwa river and immediately there-after he along with others proceeded to lodge the report. Thus, the incident which occurred lew minutes after 6 p.m. in the month of January cannot be said to have occurred in the dark. Though, Hanif Khan (PW 15) has stated that the incident occurred between 7 to 7.30 p.m. but this witness is an illiterate villager. He may not have a perfect time sense. There may be some error on his part in mentioning time. In his cross-examination in para 15, the witness has stated that he from one end of the culvert could see the respondents standing on the other side of the culvert. As stated by Sayeed Khan (PW 8) in para 25 of his statement, the length of the culvert was 10-12 paces. Thus, this witness could see the accused persons from a distance of 12 feet and it cannot be said that there was dark at the time of incident.
22. There is not even a whisper in the cross-examination of any of the eye-witnesses that at the time of incident there was dark and it was not possible for the witnesses to identify the respondents. In the FIR also the time of incident was alleged to be between 6.30 to 7 p.m. Even after the sunset some light known as twilight remains. The incident occurred during this twilight, therefore, it cannot be said that because of the dark, it was not possible for the eye-witnesses to identify the accused persons. In their cross-examination, it was not suggested that because of the dark, it was not possible for them to identify the respondents.
23. Learned Counsel for the respondents vehemently submitted that Chhote Khan in the FIR lodged by him had clearly stated that because of some dark, he could not identify 7-8 persons. In his evidence in the Court also he admitted that there was some dark, therefore, the finding recorded by the trial Court that because of the dark it was not possible for the eye-witnesses to see the incident or identify the respondents is sustainable.
24. The contention is not acceptable. In the FIR, it was clearly mentioned by Chhote Khan that there was some dark. It was not stated that it was complete dark. It was clearly stated that because of some dark and because of the fact that the incident already started while he was attending call of nature he could not identify some of the respondents. In his evidence this witness has explained that some of the assailants were seen by him from their back side, therefore he could not mention the names of all the respondents in the FIR.
25. From the evidence of Chhote Khan and other eye-witnesses, it is clear that, Chhote Khan stopped in the way to urinate and he was at a distance, while other eye witnesses could see the incident from the closer proximity. The another reason for no)., identifying some of the accused as shown by Chhote Khan in the FIR is that about 17 persons were beating and he saw the incident from some distance. It was not possible for him to identify and remember the names of all the assailants. Even if the evidence of Chhote Khan is doubted about the presence of all the respondents at the spot, from the evidence of other eye-witnesses, it has been clearly established that all the respondents participated in the incident.
26. The respondents were very well known to the witnesses. Therefore, they had no difficulty in identifying them even in poor light. The identity of the accused is amply established. The place of incident was an open place and not a covered one. There was sufficient opportunity to the witnesses to see the faces of the respondents that Loo for a very long time.
27. Another main reason recorded by the trial Court for acquitting the accused is that the prosecution witnesses failed to explain the injuries found on the person of the members of the accused party.
28. Learned Counsel appearing for the respondents, relying on Ramlagan Singh and others v. State of Bihar , Lakshmi Singh and others etc. v. State of Bihar and State of Rajasthan v. Madho and Anr. , submitted that the non-explanation of the injuries sustained by the accused at the time of occurrence is a very important circumstance from which the Court should draw the inferences that the prosecution suppressed the genesis of the occurrence. The prosecution witnesses are lying on a most material point and the defence version which explains the injuries is probable.
29. The contention is not acceptable. There is no hard and fast rule that simply because the prosecution witnesses did not explain the injuries on the person of the accused party, entire evidence should be discarded. No capital can be made by the defence out of the injuries found on the person of some of the accused which are simple in nature. The case of the accused that the members of the complainant party came to assault them cannot be accepted. It were the members of the accused party who were armed with lethal weapons. If the complainant party would have suddenly reached to assault the respondent-party there was no reason for the latter to reach the place of occurrence along with the lethal weapons. Therefore, this contention is not acceptable.
30. In Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors. , it has been clearly laid down that the non-explanation of the injuries on the person of the accused party is not always fatal for the prosecution.
31. In the facts of the present case the omission on the part of the prosecution to explain injuries on the person of the members of the accused party will not affect the prosecution case as the injuries are simple and do not render the defence version to be true. The presence of minor injuries on the person of the members of the accused party prove their presence at the spot at the time of occurrence without shadow of doubt.
32. Other grounds stated by the trial Court for not believing the prosecution case are also untenable. The contradictions pointed out by the trial Court in the evidence of the prosecution witnesses are not material. The omissions pointed out by the trial Court in the case diary statements recorded during investigation are not significant and cannot be said to be contradictions in terms of the explanation given under Section 162, Cr. P.C.
33. Merely because independent witnesses did not corroborate true prosecution case the evidence of other eye witnesses which is otherwise acceptable cannot be discarded. The enmity and the existence of the two parties also cannot be said to be reasons to reject the otherwise acceptable evidence of the prosecution witnesses. It can also not be said that the statements of the prosecution witnesses were recorded by the police after inordinate delay. The statements of the prosecution witnesses under Section 161, Cr. P.C. were recorded on the next day of the incident which look place in the previous evening. Investigating Officer was not questioned about the delay.
34. The reason accorded by the trial Court for the acquittal of the accused that there was no occasion for the prosecution witnesses to go to the place of occurrence at the relevant time also is untenable. 6.30 p.m. cannot be said to be an unearthy hour for the prosecution witnesses to go to the police station. Due to the incident occurred with Saeed Khan at Parwa river the complainant party was apprehending some problem, therefore, they were going to police post for lodging the report of that incident. Therefore, it cannot be said that there was no reason for them to reach the spot. Even if there was some flaw in the investigation, it will not justify the acquittal.
35. The trial Court also recorded the finding that the prosecution has failed to prove the specific role of each of the respondents.
36. When it has been proved beyond any shadow of doubt that the respondents formed an unlawful assembly and the respondent-party was prepared for a fight, it must follow its intention to fight and cause injuries to the other party. No overt act by each member of the assembly is necessary to attract Section 149, I.P.C. Where a concerted attack is made on the victims by a large number of persons it is often difficult to determine the actual part played by each offender. But on that account for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons proved to be members cannot escape the consequences arising from the doing of that act which amounts to an offence. It cannot be said that any one of the respondents was present at the spot innocently. It can also not be said that some of the members of the unlawful assembly went beyond the common object and committed crime graver than the assembly had in its object. Therefore, the acquittal of the accused persons on account that the specific role was not attributed cannot be said to be justified.
37. Learned Counsel for respondents submitted that so far as respondent Shabbir Khan is concerned, from the evidence of Nand Ram (DW 1) and Advocate N. P. Upadhayaya (DW 2) and Pisorilal (DW 3) it is established that on the date of incident respondent Shabbir Khan was present at Sehore till 6.00 p.m. He left Sehore at 6.00 p.m. and reached Shyampur after 7.15 p.m.
38. The evidence of defence witnesses cannot be said to be reliable. As per the version of Nand Ram and Advocate, N. P, Upadhayaya, Shabbir Khan was at Sehore to give evidence in the Court. Normally Court works up to 5.00 p.m. He must have been discharged by the Court before 5.00 p.m. The distance of Shyampur from Sehore is only 29 kms. This much distance can be travelled within half an hour. The incident occurred at 6.00 p.m., therefore, it cannot be said that Shabbir Khan could not have reached at the spot at the time of incident. It is also difficult to believe that the counsel will remember the exact date when the witness appeared in the Court and time at which he left the Court. It has been suggested to (DW 2) that Shabbir Khan was discharged by the Court at 3.00 p.m. The evidence of defence witnesses appears to be suspicious and on the basis of these witnesses the plea of alibi raised by respondent Shabbir Khan is not acceptable.
39. Learned Counsel for the respondents vehemently submitted that the scope of interference in appeal against acquittal is limited and it will not be appropriate to send the respondents to jail after 14 years of their acquittal disturbing the order of acquittal based on reasonable grounds.
40. It is true that the scope of Interference in appeal against acquittal is limited and the High Court should and will always give proper weight and consideration to the view of the trial Judge as to the credibility of the witnesses, the presumption of innocence in favour of the accused, right of accused to the benefit of doubt and slowness of the appellate Court in disturbing the finding of fact arrived at by a Judge who had an advantage of seeing the witnesses but we have stated earlier that there has been manifest illegality in the approach to the case and the appreciation of the evidence by the trial Court. The finding of fact recorded by the trial Court is wholly unreasonable and there has been a resultant miscarriage of justice.
41. The trial Court went astray from the basic features of the case. On re appraisal of the evidence we find that the reasons given by the trial Court are far too slender for acquitting the accused.
42. Learned Counsel for respondents lastly submitted that the injuries sustained by deceased are not on the vital parts. The incident took place as a result of earlier quarrel. The case does not satisfy the requirements of Section 300, I.P.C. since it could not be said that the death was intended. In support of the contention, learned Counsel for respondents relied on Laxman Laku Nikalje v. The State of Maharashtra .
43. The counsel also submitted that incident occurred in spur of moment therefore, accused can be held guilty of committing offence under Section 304, Part II of the I.P.C. and they are not liable to be convicted for the offence punishable under Section 302, I.P.C.
44. This contention also is not acceptable. Dr. Niyaji found two incised wounds on the fronto parietal region of the deceased. The bones below the injures were fractured. Brain matter came out. There was fracture on the tibia also. It cannot be said to be a case of single injury. Doctor also stated that the injuries found on the body of the deceased were sufficient in the ordinary course of nature to cause death, therefore, it cannot be said that the case does not satisfy the requirement of Section 300 of the I.P.C. From the nature of injuries it is clear that the death was intended.
45. From the evidence available on record it is established beyond reasonable doubt that the respondents committed the offence of rioting armed with deadly weapons and In prosecution of the common object of unlawful assembly committed murder of Ismail Khan and voluntarily caused injuries to Hanif Khan and Saeed Khan by means of Farsi, an instrument for cutting and also voluntarily caused simple injuries to Hanif Khan, Noor Mohd. and Munna Khan and, therefore, committed offences punishable under Sections 148, 302 read with Section 149, Section 324 read with Section 149 and Section 323 read with Section 149 of the I.P.C.
46. The impugned judgment and order of acquittal, therefore, is set aside. The respondents are convicted for the offences punishable under Section 148 of the I.P.C., Section 302 read with Section 149 of the I.P.C., Section 324 read with Section 149 of the I.P.C. and also Section 323 read with Section 149 of the I.P.C., and sentenced to R.I. for one year each for offence under Section 148 of the I.P.C., life imprisonment with fine of Rs. 5,000/- (Rupees five thousand) each, for offence punishable under Sections 302 read with Section 149 of the I.P.C. R.I. for six months each for offence punishable under Section 324 read with Section 149 of the I.P.C. and R.I. for three months each for offence punishable under Section 323 read with Section 149 of the I.P.C.
47. Respondents No. 4, Sayub Khan, No. 9, Rais Khan and No. 16 Munne Khan are in custody. They were directed to be sent to Sehore jail vide order dated 19-7-2006. They shall undergo the sentences as awarded to them in paragraph 46 above. Respondents No. 1 Habib Khan. No. 2 Israil Khan, No. 3 Hakim Khan, No. 5 Hakim Khan. No. 6 Shabbir Khan. No. 7 Hafiz, No. 8 Khalil Khan, No. 10 Salim Khan, No. 11 Rafik Khan, No. 12 Jafruddin, No. 13 Munna Khan, No. 14 Filal Khan and No. 15 Jalil Khan are on bail. Their bail bonds and personal bonds are cancelled. They shall surrender before the C.J.M., Sehore on 17-8-2006. On their surrender, the C. J. M., Sehore shall send them to jail to undergo the sentence as awarded to them in paragraph 46 above. Respondent No. 1 7 is reported to be in jail in connection with some other offence. If it is so, CJM shall issue production warrant for securing his presence and send him to jail to serve out the sentence as awarded. The period for which the respondents remained in jail in connection with this case, shall be set of in the period of sentence of imprisonment awarded to them. In case, the respondents fail to appear before the CJM, Sehore on the stipulated date, the CJM shall issue non-bailable warrants of arrest against them to ensure their presence for sending them to jail.