Madhya Pradesh High Court
Bablu @ Ballu & Ors. vs The State Of M.P on 10 November, 2009
Author: Rakesh Saksena
Bench: Rakesh Saksena, S.A. Naqvi
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No. 1521/2000
1. Bablu @ Ballu, aged 30
years, s/o Mohd.Khan, r/o
Indira Nagar, Tila
Jamalpura, Bhopal (MP).
2. Habib aged 40 years, s/o
Mohd.Khan, r/o Behind
A.D.M. Slum Area, Idgah
Hills, Bhopal.
3. Santosh Kumar, aged 20
years, s/o Raghuvir Singh
Yadav, r/o Police Lines,
Shahjahanabad, Bhopal
(MP).
..........Appellants
Versus
State of Madhya Pradesh,
through Police Station
Hanumanganj, Distt. Bhopal.
..............Respondent
For the Appellants: Shri S.C. Datt, Sr. Advocate with
Siddharth Datt, Advocate.
For the Respondent: Shri S.K. Rai, Government Advocate.
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PRESENT:
HONOURABLE SHRI JUSTICE RAKESH SAKSENA
HONOURABLE SHRI JUSTICE S.A. NAQVI
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Date of hearing: 05/11/2009
Date of Judgment: 10/11/2009
JUDGMENT
Per: Rakesh Saksena, J.
Appellants have filed this appeal against the judgment dated 19.5.2000, passed by II Additional Sessions Judge, Bhopal, in Sessions Trial No. 107/99, convicting and sentencing 2 the appellants as under:
Conviction Sentence Appellant No.1 1. u/s 397 IPC 7 Years Rigorous imprisonment. 2. u/s 302 IPC Life Imprisonment and a fine of Rs.500 and in default of fine, further 1 month's RI. 3. u/s 25(1-B)(a) Arms Act. 1 years rigorous imprisonment and a fine of Rs.500/- . In default of fine 1 month's further RI. 4. u/s 27 Arms Act. 3 years rigorous imprisonment. Appellant No.2 1. u/s 397 IPC r/w Sec. 34 IPC 7 years rigorous imprisonment 2. u/s 302/34 IPC Life Imprisonment and a fine of Rs.500/- and in default of fine one month's further rigorous imprisonment. Appellant No.3 1. u/s 397 IPC 7 years rigorous imprisonment 2. u/s 302/34 IPC Life Imprisonment and a fine of Rs.500/- and in default of fine one month's further rigorous imprisonment. 3. u/s 25(1-B)(a) Arms Act. 1 years rigorous imprisonment and a fine of Rs.500/- . In default of fine 1 month's further RI. 4. u/s 27 Arms Act. 3 years rigorous imprisonment
2. In short, the prosecution case is that Akeel (PW-1) and Zahid Miyan (deceased) were working as a servant and Muneem, respectively, of Riyaz @ Chhote Pahalwan. On 18.12.1998, at about 12.45 p.m., they were going to State Bank of India, , Branch at Hamidiya Road, for getting a draft of Rs.65,800/- prepared. Money was kept by Zahid Miyan in a bag. When they reached near Gurudwara Road, some miscreants confronted them and one of them who had a 3 'Chhuri' rushed towards Akeel. Akeel ran away; Zahid remonstrated with them asking why they were assaulting him, but, suddenly Akeel heard sound of a gun fire and on looking back, saw smokes and a miscreant with a pistol in his hand. He went to Bank and requested guard of the Bank to help, but he refused. He then telephoned to Chhote Pahalwan. On going back, he saw Zahid lying injured on the road. Miscreants had snatched away his bag containing Rs.65,800/-. He, Shakir Miyan, Hanif, Mukaddam and Liyakat carried Zahid Miyan in an auto to Hamidiya Hospital, but, by that time, he expired. According to Akeel, he was able to identify the miscreants. When police reached the hospital, he gave Dehati Nalishi Report (Ex. P/1) to police at 13.45 Hrs. On the basis of Dehati Nalishi Report, the first information report (Ex. P/24) was recorded at Police Station, Hanumanganj, Bhopal. Dr. C.S. Jain , Junior Forensic Specialist, Medico Legal Institute, Bhopal (PW-21) conducted postmortem examination of the body of Zahid and vide his report Ex. P/25, found one firearm entry wound 10 cms. below acromion process on right upper arm. Size of entry wound was 3 x 3 cms. Wound was surrounded by abraised collar of irregular margins. Blackening and tattooing with scorching was seen at margins of wound. Shaft of humerus bone was fractured. Dr. Jain sent the dead body for X- ray examination of the chest and right arm region of the body and on the basis of X-ray plates, he, besides fracture of right humerus bone, found at least 58 pellets present on the right 4 arm, right lung, heart and lungs of the body. 3 rd and 4th ribs were also fractured. The death of deceased had been caused by shock and excessive haemorrhage and was sufficient in ordinary course of nature to cause death. The death was caused by firearm and was homicidal in nature.
3. On 21.12.1998, accused Bablu @ Ballu, Habib and Santosh were arrested and on the information given by Bablu, on 22.12.1998 a red colour bag with a Katta, some cash and two applications for bank draft were seized. Accused persons were put up for test identification parade and after completion of investigation, charge sheet was filed against the accused persons and the case was then committed for trial.
4. Accused persons abjured their guilt. According to accused Bablu, at the time of incident he was present in the Court of First Additional Sessions Judge, Bhopal, in a criminal case. According to accused Habib and Santosh, alleged eyewitnesses of the case spoke against them out of enmity. Accused Bablu, in his defence, examined DW-1 Zahid @ Chand, DW-2 Mohsin Ali and DW-4 V.P. Paul. Accused Habib examined his wife as DW-3 Smt. Abda Bi.
5. Prosecution, to substantiate its case, examined 27 witnesses.
6. Trial Court, relying mainly on the evidence of eyewitnesses Akeel (PW-1), Shakir (PW-2), Riyaz Ahmed @ Chhote Pahalwan (PW-3) and Sayed (PW-9) and the medical evidence of Dr. C.S. Jain (PW-21) and Dr. Dhananjay Sharma 5 (PW-24), held the accused persons guilty and convicted and sentenced them as mentioned above.
7. Shri S.C. Datt, learned senior counsel for the appellants, submitted that the accused/appellants were falsely implicated due to enmity. Though alleged eyewitnesses Shakir (PW-2) and Riyaz (PW-3) knew the accused persons by name and were present at the hospital where Dehati Nalishi Report was lodged by Akeel (PW-1), yet their names were missing in the said report. According to him, it clearly indicated that the aforesaid eyewitnesses falsely implicated the accused persons subsequently. The evidence of all the aforesaid eyewitnesses was not trustworthy. He further submitted that the recoveries and seizures of Katta, 'Chhuri' and currency notes were not incriminating evidence pertaining to the murder of deceased. The recovery of a bag and applications for obtaining bank draft were of no use as the same were not established to be the looted properties. Per contra, Shri S.K. Rai, learned Government Advocate for the State, contended that the evidence of eyewitnesses was reliable and sufficient to hold the accused persons guilty of the offence. According to him, trial Court was fully justified in recording the finding of guilt against them.
8. We have heard the learned counsel for the parties and perused the impugned judgment and evidence on record carefully.
9. According to Akeel Khan (PW-1), he was working as 6 Muneem (Clerk) of Idris Bhai (son of Chhote Pahalwan). On 18.12.1998, in the noon, Idris Bhai gave him a form for obtaining a bank draft of Rs.65,800/- from the Bank. His colleague Zahid @ Phuppa (deceased) accompanied him keeping cash of Rs.65,800/- in a bag for going to Bank. When they passed from the front of Gurudwara, a boy suddenly appeared with a 'Chhuri' and raised his hand to assault him; he saved himself by bending, but it injured Zahid. Zahid asked him as to why he was assaulting him, but in the meantime one of the accused persons fired gun at him. Akeel (PW-1) pointed out that accused Santosh was armed with a Chhuri and accused Bablu had fired. Both the accused persons scuffled with Zahid for snatching the bag. He got perplexed and rushed to the Bank and requested to the guard posted there to help them, but he refused. He went inside the Bank and made a phone call to Idris Bhai about the occurrence. When he came back to spot, he found Zahid lying injured. He then carried Zahid to Hamidiya Hospital in an auto rickshaw, but doctor declared him dead. When police came to hospital, he gave Dehati Nalshi (Ex. P/1). On 6.1.1999, in test identification parade (Ex. P/3) he identified accused Bablu and Santosh. He did not identify Habib. He also identified the bag containing cash and the applications to State Bank of India for preparation of bank drafts. This test identification (Ex. P/4) was conducted by Naib Tahsildar, Zulfikar Hyder (PW/25).
10. Akeel Khan categorically stated that he had never seen 7 accused Bablu and Santosh in the past. He expressed his ignorance to the suggestion put by defence that Bablu and Santosh had assaulted his brother Wakil, and his brother had lodged a named report. He stated that he did not know about the pendency of any such case, but, at the same time, he admitted that a case was pending against these two accused persons for beating his brother and he was also a witness in that case. However, in the next breath, he stated that he did not know whether he was witness or not. His evidence that till date he did not know the names of accused persons and that Chhote Pahalwan also did not inform him about the names of assailants, in our opinion, appears suspicious. It seems that he feigned ignorance about the names of the accused persons for some ulterior purpose. Spot Map (Ex. P/2), which was drawn before him, bears the name of accused Santosh. He admitted that the Spot Map (Ex. P/2) was drawn on his instructions. Mentioning of the name of accused Santosh in Spot Map (Ex. P/
2), which was drawn at about 5.00 p.m. on the same day, in our opinion, castes serious doubt on the veracity of his evidence that he did not know Santosh by name. He deposed that except him no other person was present at the spot. The persons, who accompanied him in the auto, also did not know the names of the assailants, as they had not witnessed the incident and they had come at the spot subsequently. According to him, right from the date of incident till the date when he participated in the test identification parade 8 (6.1.1999), none met him who had witnessed the incident or knew the names of assailants. According to him, Chhote Pahalwan (PW-3) was not present at the time of incident; he had come subsequently. He neither accompanied him in the auto nor met him in the hospital. He even did not see him at or near the place of occurrence while he was carrying Zahid in the auto. According to him, even on the next day of the incident, when he went to his duty at the place of Chhote Pahalwan (PW-3), there had been no talk about the occurrence. This appears to us extremely suspicious. Further Akeel denied that Bablu Khan's shop of commission agency was situated at some distance from the shop of Chhote Pahalwan (PW-3). Contrary to it, Sakir (PW-2) testified that he knew the accused persons since last 8-10 years. Accused Bablu, in the past, was working as a 'Hammal' (labourer) and presently had a shop in the vegetable market. Bablu was running a shop there for last three years. He deposed that Bablu was the President of 'Hammal Welfare Committee' for last four years. Witness Akeel used to work as a Clerk in the shop of Chhote Pahalwan. This fact was reiterated by Riyaz Ahmed @ Chhote Pahalwan also. He too testified that there was a Broker Shop of accused Bablu in vegetable market, which was situated about 4-5 poles away from his shop. He stated that there were onion and potato shops in front of the shop of Bablu and he (Chhote Pahalwan) also dealt in potato and onion business. Akeel and Idris used to go to recover money from the shopkeepers having shops in 9 front of the shop of accused Bablu. On analysis of the above evidence, it seems to us that accused Bablu was also known to Akeel (PW-1). Thus not naming the accused persons in the first information report by Akeel, in our opinion, throws a thick cloud of suspicion on his evidence. Consequently, his evidence is not reliable.
11. Sakir (PW-2), Riyaz @ Chhote Pahalwan (PW-3) and Syed (PW-9), who claimed to be the eyewitnesses of the incident, named the accused persons. Syed (PW-9) named only accused Santosh and Habib. According to Sakir (PW-2), when he was loading vegetables in the handcart in the vegetable market, on hearing hue and cry, he saw Santosh assaulting Zahid with a 'Chhuri'. There had been a scuffle between them and, in the meanwhile, accused Bablu fired a Katta at Zahid. Zahid fell down then accused persons assaulted him with fists and kicks and snatched away his bag. Bablu and Santosh snatched the bag and accused Habib brought a motorcycle, on which all of them ran away. According to Riyaz @ Chhote Pahalwan (PW-3), when Zahid and Akeel were going to Bank, he was following them. He saw Santosh pouncing over Akeel with a 'Chhuri'; Akeel ran away, then Habib, Bablu and Santosh surrounded Phuppa (deceased), Santosh inflicted an injury on his face, and Bablu and Habib snatched the bag from him, which contained Rs.65,800/-. When Phuppa resisted, Bablu fired a shot at him. After the incident all the accused persons ran away on the motorcycle. Sakir (PW-2) deposed that he, 10 Chhotte Pahalwan and some other persons went to hospital taking the dead body of Phuppa in an auto. Akeel came later; he did not go to hospital with them. According to him, police was present in the hospital and he had informed to them that he had witnessed the occurrence. He had also informed the names of the assailants. It was around 1.15 p.m. when he narrated the incident to police. At that time, Chhote Pahalwan, Akeel and some other persons were also present there. This part of his evidence is contradicted by the evidence of Akeel (PW-1), who testified that there was nobody at the place of occurrence and that he carried the deceased to hospital in an auto and further that he did not meet any person, who had witnessed the incident or who knew the assailants. According to him, he had not seen Chhote Pahalwan at the spot or in the hospital.
12. When we turn to the evidence of Chhote Pahalwan (PW-3), we find that he stated that after the incident he went back to his shop as nobody was present at his shop. Though there was telephone at the shop, even then he did not inform anybody on phone because he was a patient of diabetes. He felt nervous. According to him, a Police Post was situated at the corner of vegetable market and it would have taken only 2-3 minutes to go there from the spot, yet he did not go there because he was feeling bad. He gave his statement to police at about 4-5 p.m. on the same day at the spot, when police came there. He stated that he did not inform the names of assailants 11 to Akeel because he himself knew them. Thus, the evidence of Sakir (PW-2) that Chhote Pahalwan (PW-3) went with the dead body to hospital, runs counter to the evidence of Chhote Pahalwan himself.
13. Another eyewitness, Mohd. Syed (PW-9), happened to be a child witness of about 12 years of age. According to him, when he was going to meet his father, he saw three persons beating a man near the gate of Gurudwara. One person was assaulting him by fists and kicks, second had a 'Chhuri' and third was snatching his bag. According to him, these persons were accused Santosh and Habib. Santosh was the person, who inflicted injuries to deceased by means of 'Chhuri'. After the occurrence, all the three persons had run away on a Hero Honda motorcycle and he went to his father, who was present in vegetable market. According to him, there were 50-60 persons, who had witnessed the occurrence. Since he was at a distance, he could not count the blows inflicted by 'Chhuri' to deceased. He had identified accused Santosh and Habib in the test identification parade.
14. On a bare perusal of the statement of this witness, we find that he did not say that any of the assailants was armed with a firearm and had fired at the deceased. The absence of this material fact of the prosecution story in his statement renders his testimony suspicious and doubtful, especially in view of the fact that he did not identify accused Bablu in the test identification parade. Apart from that, his evidence is 12 further belied by the evidence of Dr. C.S.Jain who did not find even a single injury by any sharp edged weapon on the body of deceased. His evidence, in our view, is not trustworthy.
15. After a thorough scanning and critical scrutiny of the evidence of the aforesaid eyewitnesses viz. Sakir (PW-2), Chhote Pahalwan (PW-3) and Mohd. Syed (PW-9), we find that their presence at the spot was doubtful. Had they been present at or near the place of occurrence and witnessed the incident, the names of accused persons would have certainly been mentioned in the first information report (Ex.P/1), lodged by Akeel (PW-1). The absence of the names of the accused persons in Dehati Nalishi (Ex. P/1) throws considerable doubt about their participation in commission of the crime. The evidence of Akeel (PW-1) that he did not know the names of accused persons was not reliable for the reason that he used to work at the shop of Riyaz @ Chhote Pahalwan (PW-3), which was situated at a short distance from the shop of accused Bablu and that he named accused Santosh in the spot map (Ex. P/2).
16. The arguments advanced by the learned counsel for the State that the bag snatched by the accused persons was recovered from the possession of accused Bablu, therefore, it was established that he was one of the assailants, is not acceptable to us, as the recovery of the said bag does not appear to us free of suspicion. Mehtab (PW-11), an independent witness of the alleged seizure, stated that he and 13 the police officers remained out of the house from which Bablu had brought out the bag and that the house was already lying open. Though there was nobody on the first floor where the room was situated, yet there were tenants in the ground floor. Apart from that, the seized bag was though put up for test identification conducted by Naib Tahsildar, Zulfikar Hyder (PW-25), but, on perusal of his statement, it is seen that he did not say even a word about holding the identification of the said article. Yet another important aspect is that according to Akeel (PW-1), applications for Bank Drafts were given to him by Idris and the currency notes were kept in a bag by Zahid, but Idris (PW-4) did not say a single word about giving these articles to any of them. It is also strange that the applications for drafts were found in the seized bag when they were in the possession of Akeel. Akeel did not say that these applications were snatched from him or that he had kept them in the bag. In our opinion, for these reasons and in the absence of the evidence of the person, who conducted the test identification of the article, the test identification could not be held proved and in the absence of such evidence the identification of the articles before the Court cannot be accepted.
17. For, the reasons stated above, we are of the view that prosecution failed to establish beyond doubt that the accused/appellants robbed the deceased and committed his murder. Prosecution also failed to establish the recovery of the arms from the possession of the accused persons. The finding 14 of conviction and sentence recorded by the Trial Court, therefore, deserves to be and is hereby set aside. Appellants are acquitted.
18. Appeal allowed.
(RAKESH SAKSENA) (S.A. NAQVI)
JUDGE JUDGE
shukla
15
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No. 1521/2000
Bablu @ Ballu and others
Versus
State of Madhya Pradesh
JUDGMENT
For consideration
(Rakesh Saksena)
JUDGE
__/11/2009
Hon'ble Shri Justice S.A. Naqvi
JUDGE
__/11/2009
POST FOR /11/2009
(Rakesh Saksena)
Judge
___/11/2009