Punjab-Haryana High Court
Mahmood vs State Of Haryana on 5 October, 2011
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.506-DB of 2002 1
Criminal Appeal No.517-DB of 2002
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:October 05, 2011
Criminal Appeal No.506-DB of 2002
Mahmood ......Appellant
Versus
State of Haryana .......Respondent
Criminal Appeal No.517-DB of 2002
Sahid and others ......Appellants
Versus
State of Haryana .......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.Vinod Ghai, Advocate,
for the appellants.
Mr.P.S.Punia, Addl.A.G.Haryana.
****
JUDGMENT
SABINA, J.
Vide this judgment, the above mentioned appeals will be Criminal Appeal No.506-DB of 2002 2 Criminal Appeal No.517-DB of 2002 disposed of as these have arisen out of a common incident/ judgment.
Prosecution case was set in motion on the basis of the statement of Jom Khan before Sub Inspector Raghubir Parshad on 22.3.1999 at about 11.30 a.m. The complainant stated that he was resident of village Pehchanka and was doing agricultural work. The land of Jafru, Jamshed and others adjoined their land. Jafru and others had harvested their mustard crop and their land was lying vacant. On 22.3.199 at about 8.30 a.m. complainant along with Faruk, Janu @ Jan Mohd. and Altaf Hussain were harvesting wheat crop in their fields. Jafru and others had installed a thresher for their mustard crop. The mouth of the thresher emitting dust was made to face towards the complainant party. As a result of this the dust fell on the complainant party. The complainant party told the other party that the mouth of the thresher be made to face in the other direction as the dust was falling on them. However, Jafru and others took ill of the said fact and left for their village after closing the thresher. After about half an hour, Jafru, Jamshed, Pappu, Dulli and Sahid armed with a gun and lathis reached their fields after conspiring with each other and started the thresher. The complainant party again went and objected to this but the other party started abusing them and attacked them. Jafru gave a lathi blow on the left foot of Farukh. Dulli exhorted Sahid to fire from his gun. Sahid fired at Altaf Hussain on his chest and as a result of this he died at the spot. On hearing the gun shot, the villagers who were harvesting their crop came to the spot. The assailants left the spot along with their respective Criminal Appeal No.506-DB of 2002 3 Criminal Appeal No.517-DB of 2002 weapons.
On the basis of the statement of the complainant formal FIR No.80 was registered on 22.3.1999 at Police Station Hathin under Sections 148, 323, 302, 149 of the Indian Penal Code, 1860 (IPC for short) and Section 25/27 of the Arms Act, 1959 (the Act for short).
After completion of investigation and necessary formalities, challan was presented against the accused. Vide order dated 12.7.1999, charge was framed against the accused under Sections 148, 302 read with Section 149 IPC and under Section 25 of the Act. Prosecution in order to prove its case examined 10 witnesses.
After the close of prosecution evidence, appellant Sahid, when examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), prayed as under:-
"I am innocent. On 22.3.1999 at about 7.00 a.m, we were busy in our harvesting Sarso crops in our fields in three acres of land. One acre of land was mine. Nephew of Harun by the name of Sakir and Fajri w/o Nasruddin were helping us in the matter one acre of Sarso have been harvested. About 25/30 persons of village Pahchanka arrived there with ballam, pharsas and lathis and started tying the harvested crops of Sarso and attacked on Khursheed and other members of his family. Other persons were attacked including Ishak s/o Rahmad, Altaf s/o Sheru, Subhan Khan s/o Mehtu, Tahir s/o Sheru, Criminal Appeal No.506-DB of 2002 4 Criminal Appeal No.517-DB of 2002 Shoran s/o Tilkhan, Azam s/o Nizarkhan, Phanti s/o Rehma, Irshad s/o Suban, Jeetu s/o another Rehman, Rifiat and others pleaded those persons and asked them not to indulge him in an assault as we were empty handed. Out of those persons Ishak, Altaf, Shoran attacked Jamshed by showering lathis blows on Jamshed. Jamshed fell in a unconscious state. Considering him dead those persons started giving injuries to Fajri w/o Fasriddin, Ruksana s/o Hanif, Mozi son of Hanif, these persons were given injuries by Altaf, Irshad, Phanti, Jeetu. When Sakir nephew of Harun tried to run away on the tractor of Sakir s/o Mehmoo, then Irshad gave him a lathi blow, as a result of which his hand was fractured. Dulli son of Munna was given injuries by refire, as a result of which he also suffered a fracture. I with a view to harvest Sarso had gone near the place where other persons were present. Mahmood etc. also came there and ishak, Altaf, Tahir, Rifait had attacked us with pharsas, tabbal and lathis. I was given injuries by Ishak, Altaf and Tahir. I again fell down and with a view to save myself I fired on which there was running all around. The complainant party assaulted us and damaged our tractor. The police party was informed but they were favouring the complainant party and falsely implicated us. We are innocent."
The other accused also took up similar pleas in their Criminal Appeal No.506-DB of 2002 5 Criminal Appeal No.517-DB of 2002 statements under Section 313 Cr.P.C.
The accused examined DW-1 Dr.Sudhir Kapoor in their defence.
The trial Court vide judgment/ order dated 14.6.2002/ 15.6.2002 convicted and sentenced the accused for offence under Section 148, 302 read with 149 IPC. Accused Sahid was also convicted and sentenced qua offence under Section 27 of the Arms Act. Hence, the present appeals by the appellants.
PW-1 Dr. Jagmohan Mittal deposed that on 22.3.1999, he had conducted the postmortem examination on the dead body of Altaf Hussain along with Dr. B.L. Chimpa and had found following injuries on the person of the deceased:-
"There was a fire arm wound 5 cm x 4 ½ cm on right side of chest just near the mid line and 6 cm away from the right nipple and upwards and inwards. There was a colour of abrasion around the wound. Blackening and tatooing was present around the wound. Clotted blood was seen in and around the wound. There was corresponding hole on the shirt and baniyan. On dissection the direction of wound was upwards and outwards underlying 2nd and 3rd and 4th ribs were fractured. Plural cavity was full of blood. There were number of small lacerated wound present over the right lungs. Three pallets from wound sealed- All other organs were healthy."
In their opinion the cause of death was due to shock and haemorrhage as a result of fire arm injury. The injury was ante Criminal Appeal No.506-DB of 2002 6 Criminal Appeal No.517-DB of 2002 mortem in nature and was sufficient to cause death in the ordinary course of nature. The time between injury and death was instantaneous and between death and postmortem was within 4-18 hours.
PW-5 Jom Khan deposed as per the contents of the FIR. PW-6, Farukh has corroborated the statement of PW-5. PW-10, SI Ragubir Parshad deposed that on 22.3.1999, on receipt of information qua a fight having taken place between the villagers of village Androlla and Pahchanka, he reached the spot along with other police officials and recorded the statement of Jom Khan. On the basis of the same formal FIR was registered. The dead body was sent for postmortem examination. He lifted blood stained earth and .12 bore empty cartridge from the spot. He prepared rough site plan with correct marginal notes. He had arrested the accused on 22.3.1999. On the basis of the disclosure statements suffered by the accused, the weapons used by them at the time of occurrence were recovered from the disclosed place.
DW-1 Dr.Sudhir Kapoor deposed that on 22.3.1999 at about 9.10 p.m. on police request, he had examined accused Jamshed present in the Court and had found following injuries on his person:-
"1. Lacerated bleeding wound 1 cm x 0.25 cm x 0.25 cm deep on the left parietal region. 10 cm above the left ear. There was swelling around the wound and the patient was feeling vertigo.
2. Reddish bruise 10 cm x 2 cm in size on the dorsom Criminal Appeal No.506-DB of 2002 7 Criminal Appeal No.517-DB of 2002 side of left scapula starting from the upper part of scapula going downward obliquely towards the middle. It was 12 cm below the root of the back. Movement of the scapula was partially restricted.
3. Reddish bruise 4.5 cm x 2 cm in size on the antero lateral side of the left upper arm starting from anterior side of shoulder joint going towards pit of aisle posteriorly. Movement was painful, X ray were advised for all the injuries which were kept under observations. Injuries were caused by blunt weapon within a duration of 12 hours.
On the same day, on police request, at 9.30 p.m., he had medico legally examined Dulli and found following injuries on his person:-
"Lenior abrasion 2 cm x 0.25 cm in size with no fresh bleeding on the scalp on left parietal region. Clotted blood was after cleaning the area. No fresh bleeding was found. Complain of pain was there but the area was not tender. Neither any swelling was present.
2. Complain of pain on the middle part of the right fore arm. On examination there was no bruise or abrasion seen. Movement of the forearm was normal. Both the injuries were simple cause by blunt weapon caused within a duration of 24 hours."
He also proved the medico legal reports Ex.DD to Ex.DG and Ex.PX.
Criminal Appeal No.506-DB of 2002 8Criminal Appeal No.517-DB of 2002 Learned counsel for the appellants has submitted that the prosecution had failed to prove its case. The parties were inimical towards each other. The accused party was busy harvesting mustard crop in their fields. About 25-30 persons of village Pehchanka armed with ballam, pharsas and lathis started tying the harvested crop belonging to the accused party and attacked Khurshid and other members of his family. Jamshed fell in an unconscious state and considering him dead, they had inflicted injuries on the complainant party. Appellant Sahid had fired in self defence. Some ladies had also suffered injuries at the hands of the accused party.
Learned State counsel, on the other hand, has submitted that it was a case of an eye witness account. All the accused had come to the spot armed with deadly weapons. Accused Sahid had fired at Altaf, whereas, Farukh, PW-6, had suffered injuries at the hands of the other accused who were armed with lathis. The ocular version was duly corroborated by the medical evidence.
The argument raised by learned counsel for the appellants to the effect that the injuries had been inflicted on the complainant party by the accused in their self defence, however, fails to inspire confidence. Although DW-1 has proved on record the medico legal reports Ex.DD to Ex.DG but none of those persons, who had been examined by Dr.Shailesh Kumar Tripathi have been examined by the accused in their defence to establish the fact that they had suffered injuries in the alleged occurrence. Appellant Sahid has taken a plea in his statement under Section 313 Cr.P.C. that he Criminal Appeal No.506-DB of 2002 9 Criminal Appeal No.517-DB of 2002 had fired a shot as he had been inflicted injuries by Ishak, Altaf and Tahir. However, there is no medical opinion on record in this regard to substantiate the said plea. Hence, the plea of self defence raised by learned counsel for the appellants is liable to be rejected.
The present case rests on an eye witness account. The complainant, while appearing in the witness box as PW-5 and injured Farukh, while appearing in the witness box as PW-6, have deposed qua the manner of occurrence. As per the said witnesses, appellant Sahid had fired at deceased Altaf, whereas, appellants Jafru, Jamshed and Mahmood had inflicted injuries on the person of PW-6 Farukh. The ocular version is duly corroborated by medical evidence qua the injuries on the person of the deceased as well as injured PW-6 Farukh. Admittedly, there was no prior enmity between the parties. It appears that a sudden fight took place between the parties as the accused party was using its thresher qua harvested mustard crop. In his cross-examination, PW-5 has deposed that when they had approached the accused at the first instance, they were not armed with any weapon. Similarly when they went to the accused at the second instance, the accused were not openly armed with any weapon. From this, it can be inferred that the accused had not come to the spot armed with weapons with any premeditation. It appears that at the spot a sudden fight took place between the parties and hence, all the accused would be liable for their individual acts. Thus, it cannot be said that the accused had formed an unlawful assembly. Consequently, the accused are liable to be acquitted of the charge framed against them under Section 148 IPC.
Criminal Appeal No.506-DB of 2002 10Criminal Appeal No.517-DB of 2002 So far as appellant Sahid is concerned, he has admitted the fact that he had fired a shot with his gun at Altaf Hussain. Since the shot had been fired on the chest of the deceased, it can be concluded that the same had been fired with an intention to commit murder of Altaf deceased. Hence, the said appellant has been rightly convicted for an offence under Sectioln 302 IPC.
So far as appellants Mahmood, Jafru and Jamshed are concerned, they had inflicted injuries on the person of injured PW-6 Farukh. The said appellants were armed with lathis at the time of occurrence. Appellant Mahmood had inflicted an injury with a lathi on the leg of PW-6 Farukh. Appellant Jafru had given a lathi blow on the left ankle of PW-6 Farukh. Appellant Jamshed had caught hold of PW-6 Farukh from his arms when the other appellants had inflicted injuries on his person. Admittedly, the said injuries on the person of PW-6 Farukh were simple in nature. Ex.PX is the medico legal report qua PW-6 Farukh. The same was proved on record by DW-1. As per the same, injured PW-6 Farukh had suffered following injuries:-
"1. 1 cm x 0.1 cm reddish colour abrasion at the front of knee joint of right side just above the skin of patella.
2. 1 cm x 0.2 cm reddish colour two abrasions at the middle portion of medial side of right leg.
3. A swelling of 4 cm x 2 cm at lateral side of lower portion of left side of leg (lateral portion of left leg) advised for the Xray."
As per Ex.PX, injury No.1 and 2 were declared simple in Criminal Appeal No.506-DB of 2002 11 Criminal Appeal No.517-DB of 2002 nature, whereas, opinion qua injury No.3 was to be given after X-ray examination. However, there is no opinion on record qua nature of injury No.3 and hence, the same is liable to be treated as simple in nature. The ocular version qua injuries suffered by PW-6 is duly corroborated by medical evidence. Hence, appellant Mahmood and Jafru are liable for an offence under Section 323 IPC. Appellant Jamshed is liable for an offence under Section 323 read with Section 34 IPC .
So far as appellant Dulli is concerned, he is alleged to have raised a lalkara . Since it was a case of free fight, appellant Dulli is liable to be acquitted. Although his presence at the spot is established as he had also suffered injuries in the alleged occurrence but he is liable to be acquitted of the charge framed against him.
So far as appellant Pappu @ Ali Mohd. is concerned, no specific overt act has been attributed to him by the eye witnesses. The possibility that he has been falsely involved in this case cannot be ruled out and hence, he is also liable to be acquitted of the charges framed against him.
Accordingly, Criminal Appeal No. 506 DB of 2002 is partly allowed. Appellant Mahmood is acquitted of the charges framed against him and is convicted for commission of an offence under Section 323 IPC and is sentenced to undergo rigorous imprisonment already undergone by him.
Criminal Appeal No. 517 DB of 2002 is partly allowed. Appellants Dulli and Pappu @ Ali Mohd. are acquitted of the charges framed against them.
Criminal Appeal No.506-DB of 2002 12Criminal Appeal No.517-DB of 2002 Appellant Sahid is acquitted of the charge framed against him under Section 148 IPC. However, his conviction and sentence for commission of an offence under Section 302 IPC and Section 27 of the Act are maintained. Both the sentences are ordered to run concurrently. The appellant, who is on bail, be taken in custody to undergo remaining part of his sentence.
Appellant Jafru is acquitted of the charges framed against him. However, he is held guilty for commission of an offence under Section 323 IPC and is convicted thereunder. The said appellant is sentenced to undergo rigorous imprisonment already undergone by him.
Appellant Jamshed is acquitted of the charges framed against him. However, he is held guilty for commission of an offence under Section 323/ 34 IPC and is convicted thereunder. The said appellant is sentenced to undergo rigorous imprisonment already undergone by him.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
October 05, 2011
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