Madhya Pradesh High Court
Mustakeem And Ors. vs State Of M.P. on 17 November, 1999
Equivalent citations: 2000(1)MPHT417
JUDGMENT N.K. Jain, J.
1. This appeal under Section 374(2) of Cr.P.C. is directed against the judgment dated 14-3-95, passed by VIIth Addl. Sessions Judge, Indore, in S.T. No. 243/94, convicting accused appellants Mustakeem, Nisar @ Nasir and Salim, under Sections 302 & 323 r/w. Section 34 I.P.C. and sentencing them each to imprisonment for life for the former offence and 6 months R.I. for the latter.
2. All the three appellants are brothers, sons of Khalil Khan. The incident is said to have taken place on the night of 16-5-92, around 10.30 p.m. at 9, Laxmipuri, Indore. Deceased Ibrahim Sheikh and his son Mohammad Altmas were sitting on the door of their house when the three accused persons armed with Farsi and Lathis came there and assaulted the deceased. Mohammad Altmas when tried to save his father was also assaulted by the accused persons. Deceased Ibrahim Sheikh sustained a number of severe injuries and later on died in the hospital. A report of the incident (Ex. P-2) was lodged by Mohammad Altmas the same night at 11.15 p.m. at P.S. Malharganj, Indore. The police registered a crime and after due investigation charge-sheeted the appellants for trial.
3. At the trial the appellants abjured their guilt and denied all the circumstances appearing against them in the prosecution evidence. The Court below after trial held the appellants guilty, convicted and sentenced them as aforesaid, thus giving rise to this appeal.
4. We have heard Shri Jaisingh, learned counsel for the appellants and Shri Girish Desai, Government Advocate for the respondent-State.
5. It is not disputed before us that deceased Ibrahim Sheikh had on the relevant date died a homicidal death. It is also not disputed that Mohammad Altmas also received injuries in the same incident. So the only question requiring determination is as to who did the deceased to death and caused injuries to Mohammad Altmas.
6. The impugned conviction is based mainly on the evidence of Mohammad Altmas (P.W. 3), Abdul Vahab (P.W. 4) and Abdul Alim (P.W. 5). While Mohammad Altmas was himself injured in the occurrence, the two other witnesses lived in the same vicinity and claimed to have witnessed the occurrence. They all have testified that accused Mustakeem, Nisar @ Nasir and Salim had assaulted the deceased causing his death. They further testified that the accused persons also assaulted Mohammad Altmas causing injuries to him.
7. Learned counsel for the appellants has assaulted the evidence of the P.Ws. above showing discrepancies in their statements as also in the F.I.R. (Ex. P-2). It is further pointed out that their evidence is also not in tune with the medical evidence on record. In fact we were taken from the entire evidence on record and it was contended that the identity of the assailants was not fully established.
8. In the F.I.R. (Ex. P-2) names of the accused appellants are not disclosed. However, the assailants were described as the sons of Khalil Khan. As admitted by Mohammad Altmas (P.W. 3) who lodged the F.I.R., he did not know these accused persons by their names but did not know them by their faces and by their father's name. Under the circumstance it cannot be said that identity of the accused persons was not disclosed in the F.I.R.. The two other witnesses Abdul Vahab (P.W. 4) and Abdul Alim (P.W. 5) have identified and named the accused persons correctly. They have further explained as to how they came to know the accused persons even since before the incident in question. Under the circumstance, omission in the F.I.R. regarding names of the appellants is not of much consequence. Nevertheless, the evidence of the witnesses need to be scrutinised carefully and with reference to the medical evidence on record.
9. It is interesting to note that the accused persons were also put to test identification by Mohammad Altmas. It is further curious to note that this witness could not identify accused Salim. In our opinion the proceedings of test identification parade were wholly unnecessary inasmuch as the accused were known to the witnesses since before the occurrence. Mohammad Altmas has explained as to why he could not at that time identify accused Salim. This accused is in any case identified by this witnesses as also by other two witnesses in the Court which is in fact the substantive evidence. Under the circumstance, failure on the part of Mohammad Altmas to identify this accused in test identification parade is again of no much consequence.
10. All the above witnesses have uniformly deposed that accused Salim carried Chhuri (long knife) and assaulted the deceased with that weapon. However, as regards to other two accused persons, there is discrepancy in the evidence of these witnesses about the weapons carried and used by them in the incident. While Mohammad Altmas has very emphatically stated that both these accused Mustakeem and Nisar @ Nasir assaulted the deceased with lathis, Abdul Vahab stated that Mustakeem carried lathi and Nasir was armed with a Farsi. According to Abdul Alim accused Nasir carried some shining weapon while Mustakeem used a wooden block. Apparently there is no consistency in the statements of these witnesses so far as accused Mustakeem and Nasir are concerned.
11. Adverting to the medical evidence on record, the deceased was first examined by Dr. Vijay Agrawal (P.W. 8) while his autopsy was performed by Dr. P.C. Jain (P.W. 12).
12. According to Dr. Vijay Agrawal, the deceased had three lacerated wounds on the head and face and blackening of right eye (vide report Ex. P-8). He further stated that these injuries were caused by some hard and blunt object. However, Dr. P.C. Jain (P.W. 12) had found 5 incised wounds; one on the fore-head and 4 on various parts of the face of the deceased (vide report Ex. P-16). There is obvious contradiction in the two medical reports. However, the evidence of Dr. Jain supports the direct evidence of the P.Ws. 3, 4 and 5 that knife blows were given to the deceased by accused Salim. Needless to say that Dr. Jain had the advantage of examining injuries of the deceased more closely while conducting his post-mortem examination. He has very clearly stated that margins of these injuries were clean-cut indicating that they were incised wounds caused by some sharp cutting weapon. As against it, Dr. Agrawal had examined the deceased in the night. He seems to have missed the nature of the margins of the injuries and clearly feel into error in describing the injuries as lacerated wounds.
13. In Pyarasingh (AIR 1977 SC 2274), the apex Court has held that "where the opinion of a medical witness is contradicted by another medical witness both of whom are equally competent to form an opinion, the opinion of that expert should be accepted which supports the direct evidence in the case." Similar view is expressed in Tanviben, 1997 (7) SCC 156.
14. In the instant case, the opinion expressed by Dr. Jain is in tune with the direct evidence of eye-witnesses who all have uniformly stated that accused Salim had assaulted the deceased by means of a Chhuri (used in slaughter houses). However, as against other accused persons the evidence of these witnesses is in consistent with the opinion expressed by Dr. Jain.
15. Having gone through the entire evidence carefully, we are left in no manner of doubt that accused appellant Salim was the assassin or one of the assassins of the deceased. However, a reasonable doubt is created as to the complicity of the other two accused Mustakeem and Nisar @ Nasir who at any rate are entitled to benefit of doubt.
16. As a last leg it was contended by Shri Jaisingh, learned counsel for the appellants, that as against accused Salim also the only offence made out is under Section 304 not under Section 302 I.P.C.. It is pointed out that neither of the two Doctors has expressed the opinion that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. We are, however, not persuaded by the argument. Notwithstanding the omission on the part of the prosecutor to question the Doctor in this regard, the very nature of the injuries sustained by the deceased clearly goes to show that the injuries were sufficient in ordinary course of nature to cause death. As is evident from the report (Ex. P-16), the deceased had as many as 5 incised wounds all on the head and face. Internally his frontal bond was cut and the brain was torned in an area 6 x 2 cm.. The brain matter was coming out and the blood was present in the base of skull. There can be thus no manner of doubt that the assassin while inflicting these injuries intended and intended only to cause death. The act of accused Salim, therefore, squarely fell within the perview of 'Murder' as defined under Section 300 I.P.C.. He was also responsible for the injuries caused to Mohammad Altmas. His conviction under Sections 302 and 323 I.P.C. and sentences awarded therefor, call for no interference. However, as already pointed out, the two other accused Mustakeem and Nisar @ Nasir are entitled to benefit of doubt and consequent acquittal.
17. In the result we allow this appeal in part and to the extent indicated above. Conviction of accused Salim under Sections 302 and 323 I.P.C. and the sentences awarded therefor are maintained and his appeal is dismissed. Conviction recorded against accused Mustakeem and Nisar @ Nasir and the sentences awarded to them by the trial Court are set-aside and they both are acquitted. They are already on bail and their bail bonds shall stand discharged.