Madhya Pradesh High Court
The State Of Madhya Pradesh vs Pista @ Shakil on 1 November, 2023
Author: Vivek Rusia
Bench: Vivek Rusia, Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
CRIMINAL APPEAL No. 162 of 2015
BETWEEN:-
1. MOHAMMAD ASIF S/O MO. AYYUB, AGED
ABOUT 35 YEARS, R/O: KHERATI MAZID KE
PICHE, TOPKHANA, DISTRICT UJJAIN
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI PRAMOD CHOUBEY - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH P.S. MAHAKAL, UJJAIN
DISTRICT UJJAIN (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI TARUN KUSHWAH - GOVERNMENT ADVOCATE)
-----------------------------------------------------------------------------------------
CRIMINAL APPEAL No. 1457 of 2015
BETWEEN:-
THE STATE OF MADHYA PRADESH
THROUGH P.S. MAHAKAL, UJJAIN
DISTRICT UJJAIN (MADHYA PRADESH)
.....APPELLANT
(BY SHRI TARUN KUSHWAH - GOVERNMENT ADVOCATE)
AND
1. PISTA @ SHAKIL S/O RAFIQ AHMAD, AGED
2
ABOUT 25 YEARS, R/O: 14, GUDRI MATAN
MARKET, UJJAIN (MADHYA PRADESH)
2. MOHSEEN@ BACCHA S/O MASUD, AGED
ABOUT 24 YEARS, OCCUPATION: NIL R/O:
BEGAM BAGH, KACCHI COLONY, UJJAIN
(MADHYA PRADESH)
3. JAFAR S/O NIJAMUDDIN, AGED ABOUT 25
YEARS, R/O: KANDHA MOHALLA, UJJAIN
(MADHYA PRADESH)
4. IMRAN@ GULREJ S/O MOHD, RAFIQ KHAN,
AGED ABOUT 25 YEARS, R/O: 9/3, MASJID
COMPOUND, SHIKARI GALI, UJJAIN
(MADHYA PRADESH)
5. MOHD. ASIF S/O MOHD. AYYUB, AGED ABOUT
35 YEARS, R/O: KHERATI MASHJID KE PICHE
TOPKHANA, UJJAIN (MADHYA PRADESH)
6. ABDUL LATAIF S/O ABDUL SHAKUR, AGED
ABOUT 28 YEARS, R/O: GALI NO.9,
TOPKHANA, UJJAIN (MADHYA PRADESH)
7. AJJU@ AJHAR S/O ABDUL VAHAB, AGED
ABOUT 23 YEARS, R/O: 3/6, TOPKHANA,
UJJAIN (MADHYA PRADESH)
....RESPONDENTS
(BY SHRI UMESH SHARMA - ADVOCATE)
-----------------------------------------------------------------------------------------
CRIMINAL APPEAL No. 276 of 2016
BETWEEN:-
THE STATE OF MADHYA PRADESH
THROUGH P.S. MAHAKAL, UJJAIN
DISTRICT UJJAIN (MADHYA PRADESH)
.....APPELLANT
(BY SHRI TARUN KUSHWAH - GOVERNMENT ADVOCATE)
AND
1. MOHAMMAD AYYUB KALA S/O MOHAMMAD
YUSUM, AGED ABOUT 29 YEARS, R/O: JHUGGI
JHOPADI BEGAMBAG COLONY, UJJAIN
(MADHYA PRADESH)
2. AJHAR S/O ABDUL HAMID, AGED ABOUT 23
YEARS, R/O: FATEH MASJID, UJJAIN
3
(MADHYA PRADESH)
....RESPONDENTS
(NONE FOR THE RESPONDENTS)
------------------------------------------------------------------------------------------
Reserved on : 11/10/2023
Pronounced on : 01/11/2023
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These appeals having been heard and reserved for orders, coming
on for pronouncement this day, JUSTICE ANIL VERMA pronounced the
following:
JUDGMENT
This judgment shall govern the disposal of the Criminal Appeal No.162 of 2015 (Mohd. Asif Vs. State of M.P.), Criminal Appeal No.1457 of 2015 (State of M.P. Vs. Pista @ Shakil and others) and Criminal Appeal No.276 of 2016 (State of M.P. Vs. Mohd. Ayyub Kala and Anr.), as all the three criminal appeals arise out of the common judgment dated 20.1.2015.
2. The appellant Mohd. Asif has preferred Criminal Appeal No.162/2015 against the judgment dated 20.1.2015 passed in Sessions Trial No.487/2011 by the 3rd Addl. Sessions Judge, Ujjain (M.P.), whereby he has been convicted for the offence under Section 148 of IPC and sentenced to 3 years R.I. He has been also convicted for the offence under Section 302 IPC and sentenced to undergo Life Imprisonment with fine of Rs.1,000/- and compensation of Rs.50,000/-, with usual default stipulation. All other co-accused persons have been acquitted from the charges under Section 147, 148, 302/149 and 153-A of IPC.
43. The State has preferred Criminal Appeal No.1457 of 2015 and Criminal Appeal No.276 of 2016 against the judgment of acquittal of accused Pista @ Shakil, Mohsin @ Baccha, Jafar, Imran, Mohd. Asif, Abdul Latif, Ajju @ Ajhar, Mohd. Ayyub Kala and Ajhar in the same aforesaid case.
4. As per the prosecution story on the intervening night of 2- 3/9/2011 at about 1.20 A.M. complainant Jagdish Rami (PW-1) reported Dehati Nalishi (Ex.P/1) at P.S. Mahakal, Ujjain by stating that he along with his brother Mahesh Rami (deceased) and Madanlal were going towards the house situated at Daulatganj as their mother resides there, at that time accused persons including 10 to 15 boys belonging to the Muslim community came there from Topkhana side and they started assaulting upon Mahesh Rami by kicks and fists and stones. At that time appellant Mohd. Asif took out a knife and inflicted injury over the stomach of Mahesh Rami with intention to kill him, due to which blood was oozing out. Complainant and Madanlal took the injured Mahesh to their home and thereafter to hospital, but during the treatment Mahesh succumbed. It was also alleged that youths of Muslim community made quarrel regarding the installation of Ganesh idol at Fawwara Chowk, due to which communal riot began between Hindu and Muslim community. They also disturbed the harmony between both the communities. Dr. G.S. Dhawan (PW-4) performed the postmortem of the deceased and found various injuries over the body of the deceased and opined that death of deceased is homicidal in nature.
5. Further prosecution story is that, Inspector Aaradhna Raikwar has prepared the spot map and seized blood stained pant of the victim.
5Accused persons have been arrested and during the investigation, a knife and blood stained pant and shirt has been recovered from the possession of appellant Mohd. Asif. Blood stained and simple soil was also recovered from the place of incident. All the accused persons have been arrested and during the test identification parade Mohd. Asif and other co-accused persons were identified by the different eyewitnesses. Call details has also been seized. After obtaining the sanction for their prosecution from the State Government regarding the offence under Section 153 of IPC, charge sheet has been prepared.
6. After due investigation, charge sheet was filed before the JMFC, Ujjan, who has committed the case to the Court of Sessions, Ujjain, which has been later on transferred to the 3 rd ASJ, Ujjain. The prosecution examined as many as 22 witnesses before the trial Court. The defence has examined 4 witnesses. The trial court after appreciating the evidence available on record, convicted and sentenced the appellant Mohd. Asif for the offence under Section 148 and 302 of IPC and sentenced him as mentioned herein-above. The trial Court has acquitted all other co-accused persons from all the charges.
7. Appellant Mohd. Asif has filed Criminal Appeal No.162 of 2015 against his conviction and the State has filed other two Criminal Appeal Nos.1457 of 2015 and 276 of 2016 against the judgment of acquittal of accused/respondents Pista @ Shakil, Mohsin @ Baccha, Jafar, Imran, Mohd. Asif, Abdul Latif, Ajju @ Ajhar, Mohd. Ayyub Kala and Ajhar.
8. Learned counsel for the appellant Mohd. Asif in Criminal Appeal No.162 of 2015 has submitted that the judgment of the trial Court is 6 contrary to the law and facts on record. It is neither legal, nor proper, nor correct. Learned trial court was wrong in believing the prosecution witnesses and discarding the defence version and also wrong in drawing the unwarranted inferences. There was material contradictions and omissions, which was not duly considered by the trial Court. Hence, he prays that the appeal be allowed and the impugned judgment of conviction and sentence passed by the trial Court be set aside and the appellant be acquitted from all the charges.
9. Per contra, learned counsel for the respondent/State opposed the prayer by supporting the impugned judgment passed by the trial Court and prayed for dismissal of the Criminal Appeal No.162 of 2015 by submitting that the trial Court on the basis of the proper appreciation of evidence, has rightly convicted the appellant Mohd. Asif and same does not call for any interference.
10. State has filed Criminal Appeal Nos.1457 of 2015 and 276 of 2016 by stating that eyewitness Jagdish (PW-1) has categorically stated against all the accused persons and clearly identified the appellant Mohd. Asif along with other accused persons. Madanlal (PW-2), Kundan (PW-3) and Pankaj Rami (PW-5) have also supported the case of the prosecution. PW-10 Abhishek Solanki also deposed that at the time of incident assailants were saying that these are Hindus and kill them. All the accused persons were members of unlawful assembly and being a member of that assembly, they have disturbed the communal harmony. There is ample evidence available on record, but the trial Court has not considered and evaluated the same. Hence, he prays that the impugned judgment of acquittal regarding the respondents of 7 Criminal Appeal Nos.1457 of 2015 and 276 of 2016 be set aside and all the accused persons be convicted for the offence under Section 147, 148, 153-A & 302/149 of IPC.
11. Per contra, learned counsel for the respondents in the aforesaid appeals contended that the trial Court on the basis of the evidence available on record, rightly acquitted all these respondents/accused persons and no interference is required.
12. Learned counsel for both the parties heard at length and perused the entire record with due care.
13. In order to appreciate the merits of the rival contentions in right perspective, it is necessary to first advert to the medical evidence available on record.
14. Dr. Mahesh Marmat (PW-8), who has performed the MLC of the victim Mahesh Rami, has deposed that on 2.9.2011 Mahesh Rami was brought by Pankaj Rami in the hospital. During the examination, he found stab wound on the right side of the abdomen having size 2 x 5 c.m. abdomen deep. His condition was very critical and he was admitted for RSO surgery in the B Surgical Ward. His MLC report is Ex.P/11. Dr. G.S. Dhawan (PW-4), who has performed the postmortem of the deceased Mahesh Rami, has found 7 injuries all over his body including the stitched wound in right side of iliac region having size about 21/2 inch. He opined that the death of the deceased was due to the haemorrhage and shock as a result of abdominal stab injury. The postmortem report is Ex.P/5-A. However, on the aforesaid report, no effective cross-examination was done by the accused persons and in 8 absence of any serious challenge to the medical report, we have no option, but to accept the postmortem report and the oral evidence of Dr. Mahesh Marmat (PW-8) and Dr. G.S. Dhawan (PW-4). Since there is no serious challenge to the aforesaid findings, hence we uphold the same findings and it has been proved that the death of the deceased was homicidal in nature and he has been died due to the abdominal stab injuries and its complications.
15. Now the next question is that who is the author of the incident of murder of deceased?
16. Jagdish (PW-1) has categorically stated in his statement that at the time of incident he along with his brother Mahesh Rami and Madanlal were returning to their home, at that time from Topkhana side 10 to 15 youths of Muslim community came there and they started assaulting to them and accused Asif took out knife from his pocket and with intention to kill, he stabbed the knife on the abdomen of Mahesh, due to which blood was oozing out. They took Mahesh firstly to the Government Hospital, then Patidar Hospital and later on to CHL Apollo Hospital, Ujjain, but during the treatment Mahesh died. Jagdish (PW-1) has also identified the appellant Asif before the trial Court. Madanlal (PW-2), who happens to be brother of the deceased and the eyewitness, also supported the statement of Jagdish (PW-1) by stating that before him present appellant along with 6-7 persons came on the spot. Then Asif stabbed a knife on the abdomen of Mahesh, then Asif and other accused persons fled away from the spot. Madanlal (PW-2) also deposed that there was some dispute regarding the installation of Ganesh idol on the Fawwara Chowk, due to which youths of Muslim 9 community committed this act. Madanlal (PW-2) also identified the appellant Mohd. Asif before the trial Court.
17. Prosecution has also examined Kundan Bagoliya (PW-3) as an eyewitness, who deposed that accused Imran caught hold the deceased Mahesh and other 5-6 persons beat him by using kicks and fists and one of the accused was having a knife. Then they ran towards him, seeing them he fled away from the spot. Later on he came to know that Mahesh Rami has been died.
18. Pankaj Rami (PW-5) is also eyewitness. He also supported the case of the prosecution by stating that appellant Asif stabbed knife on the abdomen of his uncle Maheshchandra and accused Pista, Jafar, Mohsin, Ayub Kala and other persons also surrounded his uncle and father and committed Marpit with them. He was present on the spot and also saw the whole incident. Piyush Chaturvedi (PW-7) is also examined as an eyewitness, but he did not depose that as to who has inflicted the knife on the abdomen of the deceased. He could not identify the miscreants, therefore, his evidence is not so material. Abhishek Solanki (PW-10) although not deposed against the other co- accused persons, but he categorically deposed against the appellant Asif that Asif gave a blow of knife on the abdomen of Mahesh Rami.
19. So far as appellant Mohd. Asif is concerned, he was identified by Jagdish Chandra (PW-1), Madanlal (PW-2), Pankaj Rami (PW-5) and Abhishek Solanki (PW-10) before the trial Court. During the investigation, T.I. parade was conducted to identify Asif. The same was conducted by the Tehsildar Dharmraj Pradhan (PW-6), who has 10 categorically stated in his statement that on 16.11.2011 he has conducted the test identification parade and during the T.I. parade appellant Mohd. Asif was only identified by the witness Pankaj and memo of his identification parade is Ex.P/6. Abhishek Solanki, Gaurav Siroliya and Shailendra Yadav also identified the Mohd. Asif and their identification memos are Ex.P/7, P/8 & P/9. The witnesses Pankaj, Abhishek Solanki and Jagdish also corroborated the aforesaid identification parade in their statements. The identification was conducted by the Naib Tehsildar as per the due procedure. No material irregularity has been pointed out in the T.I. proceedings, therefore, these T.I. proceedings regarding the identification of appellant Asif appears to be trustworthy and it also corroborates the case of the prosecution.
20. Learned counsel for the appellant submits that Jagdish (PW-1) and Madanlal (PW-2) are the real brothers of the deceased and Pankaj Rami (PW-5) is the real nephew of the deceased. Being close relatives, they are interested witnesses, therefore, their evidence cannot be relied upon, but from perusal of the record it appears that there is no material contradictions and omissions in the statement of all these witnesses. These witnesses have no personal enmity or any other motive for false implication of appellant Asif in the instant case, they were going together towards their home, therefore, their presence on the spot is quite natural.
21. The Hon'ble Apex Court in the case of Piara Singh and Others Vs. State of Punjab reported in (1977) 4 SCC 452 in paragraph No.4 has held as under:-
11"4. ........ It is well settled that the evidence of interest or inimical witnesses is to be scrutinised with care but cannot be rejected merely only ground of being a partisan evidence. If on a perusal of the evidence the court is satisfied that the evidence is credit-worthy there is no bar in the Court relying on the said evidence."
22. Hon'ble the apex Court in the case of Chandrasekar and Another Vs. State reported in (2017) 13 SCC 583 has held as under:-
"Witness being related to deceased, not a ground to reject his testimony just requiring greater scrutiny and caution in considering the same. False implication negated. The intention to cause death along with motive stands established."
23. On the basis of the aforesaid citations and the evidence available on record, all these witnesses appears to be trustworthy. The evidence of the aforesaid eyewitnesses are well corroborated by the medical evidence available on record and also the evidence of Inspector Ajay Jain (PW-20). He has deposed that on 5.10.2011 he has arrested the accused Asif through arrest memo (Ex.P/34) and on the basis of discovery statement (Ex.P/35), recovered blood stained pant and shirt and a knife from his house through seizure memo (Ex.P/36). Although prosecution did not prove the FSL report regarding the seized articles, but Abhishek (PW-17) who is the witness of arrest memo (Ex.P/34), discovery statement (Ex.P/35) and seizure memo (Ex.P/36) has also corroborated that police has arrested Asif before him and on the basis of his statement, police recovered a knife and pant & shirt from the possession of accused Asif. There is no reason to disbelieve the 12 statement of investigating officer Inspector Ajay Jain (PW-20) and witness Abhishek (PW-17). On the basis of the aforesaid ocular and documentary evidence available on record, it is proved that a knife and blood stained shirt and pant were recovered from the possession of appellant Asif.
24. Learned counsel for the appellant Asif submitted that name of the appellant Asif and other co-accused persons were not mentioned in the Dehati Nalishi (Ex.P/1) and FIR (Ex.P/13) and the persons who were present in the mob, were not identified by the independent witnesses, therefore, prosecution has failed to prove its case, but it is noteworthy that the incident had taken place all of a sudden and witnesses Jagdish and Madanlal were not aware about the name of the appellant/accused, therefore, they could not name all the accused persons in their earlier report, but later on they have identified the appellant Mohd. Asif. Therefore, no adverse inference can be drawn against the prosecution.
25. In view of the foregoing analysis and unimpeachable testimony of witnesses coupled with the medical evidence and seizure of weapon and other incriminating articles from the possession of appellant Mohd. Asif, according to us the prosecution has not committed any error in holding that appellant Mohd. Asif has murdered the deceased Mahesh Rami by stabbing knife over his abdomen during the communal riots between Hindu and Muslim community. Therefore, we are not inclined to take a different view that was taken by the learned trial Court. Hence, we hold that the learned trial court has rightly convicted and sentenced the appellant Mohd. Asif for the offence under Section 148 and 302 of IPC.
1326. So far as the other Criminal Appeal No.1457 of 2015 (State of M.P. Vs. Pista @ Shakil and others) and Criminal Appeal No.276 of 2016 (State of M.P. Vs. Mohd. Ayyub Kala and Anr.) are concerned, which have been filed by the State against the judgment of acquittal of other accused persons except Mohd. Asif. From perusal of the entire evidence available on record, it appears that although Jagdish (PW-1) in para-6 of his examination-in-chief stated that Pista, Mousin, Jafar, Imran, Latif and Ajhar are the persons who have beaten him and his brother Mahesh by using kicks and fists, but no test identification parade was conducted by the prosecution regarding the identification by Jagdish (PW-1) to other co-accused persons except Mohd. Asif. In para- 1 of his examination he categorically stated that he does not know the accused persons by name, therefore, disclosure of the name by the Jagdish appears to be doubtful. Madanlal (PW-2) has also deposed that except Mohd. Asif he does not know the name of other co-accused persons. The prosecution has not arranged T.I. parade for Madanlal (PW-2), therefore, his statement against the other co-accused persons also appears to be vague and doubtful.
27. Although Kundan Bagoliya (PW-3) deposed that Imran caught hold the deceased Mahesh and he has identified him during the test identification parade, but statement of Kundan (PW-3) is not supported by the other eyewitnesses. Pankaj Rami (PW-5) also deposed that Pista, Jafar, Mohsin and Asif surrounded his father and uncle and beaten them, but Piyush Chaturvedi (PW-7) has denied from T.I. parade proceedings by stating that he never identified any accused in Bhairavgarh Jail. From perusal of statement of all these witnesses, it 14 appears that they have made only omnibus statements against the other co-accused persons. They have not made any cogent statement regarding the active participation of all these accused persons. No incriminating weapon has been recovered from their possession and their presence on the spot is also doubtful.
28. Apart from above, the prosecution has failed to point out any material evidence against the accused/respondents of Criminal Appeal No.1457 of 2015 and Criminal Appeal No.276 of 2016 regarding the aforesaid offence. Considering the statement of prosecution witnesses and the finding given by the learned trial Court, we are of the considered view that the prosecution has failed to prove its case beyond reasonable doubt against the respondents of Criminal Appeal No.1457 of 2015 and Criminal Appeal No.276 of 2016.
29. The Hon'ble Apex Court in the case of Sampat Babso Kale Vs. State of Maharashtra reported in AIR Online 2019 SC 648 held that the presumption of innocence attached to every accused person gets strengthened on acquittal of accused by the trial court. The High Court should not lightly interfere with the decision of the trial Court.
30. In view of the aforesaid, no illegality or perversity is found in the impugned judgment regarding the acquittal of respondents/accused persons in connection of Criminal Appeal No.1457 of 2015 and Criminal Appeal No.276 of 2016. Accordingly, no case is made out to set aside the judgment of acquittal against the aforesaid respondents.
1531. Having regard to the aforesaid, the Criminal Appeal No.162 of 2015, Criminal Appeal No.1457 of 2015 and Criminal Appeal No.276 of 2016 being devoid of any merit and substance are hereby dismissed.
32. The conviction and sentence of the appellant Mohd. Asif (CRA No.162 of 2015) under Section 148 & 302 of IPC is hereby affirmed. Appellant Mohd. Asif is in jail. He shall remain in jail to undergo the remaining part of his jail sentence.
33. The order regarding disposal of the property as pronounced by the trial Court is affirmed.
34. Registry is directed to send a copy of this judgment to the trial Court along with the record for information and necessary action.
35. Signed order be kept in the file of CRA No.162/2015 and a copy thereof be placed in the file of connected CRA No.1457/2015 and CRA No.276/2016.
C.C. as per rules.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Trilok/-
Digitally signed by TRILOK SINGH
SAVNER
Date: 2023.11.02 17:01:32 +05'30'
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