Rajasthan High Court - Jaipur
Mohd. Akram And Ors vs State Of Rajasthan Through Pp on 15 October, 2019
Bench: Sabina, Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 334/2017
1. Mohd. Akram S/o Mohd. Umar @ Mamad B/c Musalman,
R/o House No.1251, Mardan Khan-Ki-Gali, Bakra Mandi,
M.d. Road, Police Station Lal Kothi, Jaipur.
2. Mohd. Umar @ Mamad S/o Abdul Hakeem B/c Musalman,
R/o House No.1251, Mardan Khan-Ki-Gali, Bakra Mandi,
M.d. Road, Police Station Lal Kothi, Jaipur.
3. Mohd. Rafiq S/o Mohd. Umar @ Mamad B/c Musalman,
R/o House No.1251, Mardan Khan-Ki-Gali, Bakra Mandi,
M.d. Road, Police Station Lal Kothi, Jaipur.
4. Mohd. Atiq S/o Mohd. Umar @ Mamad B/c Musalman, R/o
House No.1251, Mardan Khan-Ki-Gali, Bakra Mandi, M.d.
Road, Police Station Lal Kothi, Jaipur.
5. Mohd. Ashfaq S/o Mohd. Anwar @ Annu B/c Musalman,
R/o House No.1251, Mardan Khan-Ki-Gali, Bakra Mandi,
M.d. Road, Police Station Lal Kothi, Jaipur.
6. Mohd. Rahees S/o Mohd. Anwar @ Annu B/c Musalman,
R/o House No.1251, Mardan Khan-Ki-Gali, Bakra Mandi,
M.d. Road, Police Station Lal Kothi, Jaipur.
7. Mohd. Imran S/o Mohd. Anwar @ Annu B/c Musalman,
R/o House No.1251, Mardan Khan-Ki-Gali, Bakra Mandi,
M.d. Road, Police Station Lal Kothi, Jaipur.
8. Mohd. Altaf S/o Mohd. Basheer B/c Musalman, R/o House
No.1251, Mardan Khan-Ki-Gali, Bakra Mandi, M.d. Road,
Police Station Lal Kothi, Jaipur.
----Appellants
Versus
State Of Rajasthan Through P.p.
----Respondent
For Appellant(s) : Mr. Ashvin Garg with Mr. Rahul Singh Meratwal For Respondent(s) : Mr. Suresh Sahni assisted by Mr. R.M. Sharma Mr. Purushottam Sharma Mr. Javed Choudhary for the State (Downloaded on 06/06/2021 at 11:25:23 PM) (2 of 18) [CRLA-334/2017] HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE INDERJEET SINGH Judgment 15/10/2019 Appellants have filed this appeal challenging their conviction and sentence ordered by the trial court vide judgment / order dated 13.1.2017, as under:-
Accused Mohd. Akram:
U/s. 148 IPC:- to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/-, in default thereof to undergo further one month rigorous imprisonment.
U/s. 323 or 323/149 IPC:- to undergo six months simple imprisonment and to pay a fine of Rs.500/-, in default thereof to undergo further fifteen days simple imprisonment. U/s. 302 IPC:- to undergo life imprisonment and to pay a fine of Rs. 10,000/-, in default thereof to undergo further one year rigorous imprisonment.
U/s. 452 IPC:- to undergo three years rigorous imprisonment and to pay a fine of Rs.2,000/-, in default thereof to undergo further six months rigorous imprisonment.
U/s. 4/25 of Arms Act:- to undergo one year simple imprisonment and to pay a fine of Rs.1,000/-, in default thereof to undergo one month simple imprisonment.
Accused Mohd. Umar @ Mamad, Rafiq, Ashfaq, Rahees, Imran and Altaf:
U/s. 148 IPC:- to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/-, in default thereof to undergo further one month rigorous imprisonment.
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(3 of 18) [CRLA-334/2017] U/s. 323 or 323/149 IPC:- to undergo six months simple imprisonment and to pay a fine of Rs.500/-, in default thereof to undergo further fifteen days simple imprisonment. U/s. 302/149 IPC:- to undergo life imprisonment and to pay a fine of Rs. 10,000/-, in default thereof to undergo further one year rigorous imprisonment.
U/s. 452 IPC:- to undergo three years rigorous imprisonment and to pay a fine of Rs.2,000/-, in default thereof to undergo further six months rigorous imprisonment.
Accused Mohd. Atiq:
U/s. 148 IPC:- to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/-, in default thereof to undergo further one month rigorous imprisonment.
U/s. 323 or 323/149 IPC:- to undergo six months simple imprisonment and to pay a fine of Rs.500/-, in default thereof to undergo further fifteen days simple imprisonment. U/s. 302/149 IPC:- to undergo life imprisonment and to pay a fine of Rs. 10,000/-, in default thereof to undergo further one year rigorous imprisonment.
U/s. 452 IPC:- to undergo three years rigorous imprisonment and to pay a fine of Rs.2,000/-, in default thereof to undergo further six months rigorous imprisonment.
U/s. 4/25 of Arms Act:- to undergo one year simple imprisonment and to pay a fine of Rs.1,000/-, in default thereof to undergo one month simple imprisonment.
All the sentences were ordered to run concurrently. Prosecution case was set in motion on the basis of report Exhibit-P/7 lodged by complainant Mehboob son of Maqsood Khan. On the basis of report Exhibit-P/7, formal FIR (Downloaded on 06/06/2021 at 11:25:23 PM) (4 of 18) [CRLA-334/2017] Exhibit-P/45 bearing No.17/2011 dated 25.1.2011 was registered at Police Station Lal Kothi, Jaipur City (East) under Sections 147, 148, 149, 323, 307 and 452 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC'). Offence under Section 302 IPC was added later, on account of death of injured Imran Khan son of Maqbool Khan.
Prosecution story in brief, as per the FIR is that the complainant was residing in House No.1260 alongwith his family. At about 7:00 PM on 25.1.2011, Atiq, Rafiq, Akram, Altaf and Guddu alongwith 10-12 other persons, whose names complainant did not know, entered the house of complainant armed with sword, Farsa and started inflicting injuries to them. Akram gave a sword blow on the head of the complainant. Maqbool, Imran, Wasim, Rahees and Babbal wife of Mehraj suffered injuries in the incident. Injured were shifted to Sawai Man Singh Hospital, Jaipur by the police. The incident had occurred on account of lifting of kite, although the same was got resolved by the elders of the area.
After completion of investigation and necessary formalities, challan was presented against the appellants.
Charges were framed against the appellants under Sections 148, 323 or 323/149, 324 or 324/149, 302 or 302/149 and 452 IPC. Charge was also framed under Section 4/25 of Arms Act, 1959 against appellants Mohd. Akram, Mohd. Imran, Mohd. Ateek and Mohd. Altaf.
Appellants did not plead guilty to the charges framed against them and claimed trial.
In order to prove its case, prosecution examined thirty- five witnesses during trial. Accused - appellants when examined (Downloaded on 06/06/2021 at 11:25:23 PM) (5 of 18) [CRLA-334/2017] under Section 313 Cr.P.C. after the close of prosecution evidence, prayed that they were innocent and had been falsely involved in this case.
Appellants examined one witness in their defence. Learned counsel for the appellants has submitted that the appellants have been falsely involved in this case. As per the FIR, the accused who had attacked the complainant party were Atiq, Rafiq, Akram, Altaf and Guddu. Challan was not presented against accused Guddu. Hence, no offence under Section 148 IPC could be said to be made out in the present case. So far as appellants Umar, Ashfaq, Rahees and Imran are concerned, they were not named in the FIR, although, they were known to the complainant party. The said appellants had been later falsely involved in this case. There was no previous enmity between the parties. The dispute had occurred on a trivial issue regarding 'kite flying'. The occurrence had taken place near Fattu Kiryana Store at Point 'X' shown in the site plan Exhibit-P/4. Hence, no offence under Section 452 IPC could be said to be made out. Learned counsel for the appellants has further submitted that it was a case of version and cross-version. FIR Exhibit-P/58 had been lodged by the appellants side against the complainant side. Both FIRs Exhibit-P/45 and Exhibit-P/58 were investigated together. Accused had also suffered injuries in the incident as was evident from their arrest memos. Hence, at the most, it could be said to be a case of free fight. Treating doctor had not been examined during the trial and the said fact had caused serious prejudice to the appellants.
Learned State Counsel who is assisted by counsel for the complainant has opposed the appeal.
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(6 of 18) [CRLA-334/2017] Learned counsel for the complainant has submitted that the plea of free fight had not been taken by the appellants in their defence and had been argued for the first time in appeal. Injuries on the person of appellants were not required to explained by the prosecution. Moreover, injuries on the person of the appellants were superficial in nature. Accused appellants had failed to prove on record their medico-legal examination reports to substantiate injuries suffered by them. Eyewitness have withstood the test of cross-examination with regard to involvement of the appellants in the crime.
In support of his arguments, learned State counsel has placed reliance on decision of Hon'ble Supreme Court in Kattukulangara Madhavan vs. Majeed & Ors., (2017) 5 SCC 568, wherein it has been held as under:-
"23. In the first place, the presence of an accused as part of an unlawful assembly, when not as a curious onlooker or a bystander, suggests his participation in the object of the assembly. When the prosecution establishes such presence, then it is the conduct of the accused that would determine whether he continued to participate in the unlawful assembly with the intention to fulfill the object of the assembly, or not. It could well be that an accused had no intention to participate in the object of the assembly.
For example, if the object of the assembly is to murder someone, it is possible that the accused as a particular member of the assembly had no knowledge of the intention of the other members whose object was to murder, unless of course the evidence to the contrary shows such knowledge. But having participated and gone along with the others, an inference whether inculpatory or exculpatory can be drawn from the conduct of such an accused. The following questions arise with regard to the conduct of such an accused:
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1. What was the point of time at which he discovered that the assembly intended to kill the victim?
2. Having discovered that, did he make any attempt to stop the assembly from pursuing the object?
3. If he did, and failed, did he dissociate himself from the assembly by getting away?
The answer to these questions would determine whether an accused shared the common object in the assembly. Without evidence that the accused had no knowledge of the unlawful object of the assembly or without evidence that after having gained knowledge, he attempted to prevent the assembly from accomplishing the unlawful object, and without evidence that after having failed to do so, the accused disassociated himself from the assembly, the mere participation of an accused in such an assembly would be inculpatory."
Learned counsel for the complainant has placed reliance on the decision of Hon'ble Supreme Court in State of Gujarat vs. Bai Fatima & Ors., (1975) 2 SCC 7, wherein it has been held as under:-
"19. In the instant case not only the plea of private defence was not taken by the respondents in their statement under Section 342 but no basis for that plea was laid in the cross-examination of the prosecution witnesses or by adducing any defence evidence. In our opinion the burden of establishing that plea was not discharged in any manner by the respondents even applying the test of preponderance of probabilities in favour of that plea. There is absolutely no material in the records of this case to lead to any such conclusion. We do not think that the Trial Judge was right in assuming that respondent no. 1 must have received the injuries in the first incident. It may well be that she received the injuries in the second incident. Since prosecution did not come forward to show in what manner she received those injuries, assumption can be made to the farthest extent in favour of the respondents that respondent no.1 received (Downloaded on 06/06/2021 at 11:25:23 PM) (8 of 18) [CRLA-334/2017] the injuries with a stick, may be at the hands of Gulabkhan or any other person on his side. But surely the assumption could not be stretched to the extent it has been done by the High Court. The High Court is not right in saying that by the tripping of the legs Gulabkhan would have fallen on his face and not on his back. A man may fall on back or on face depending upon the side and the angle of the tripping. The other error committed by the High Court is when it says :
"It appears to us to be more probable that while the quarrel was going on in the Angana of the deceased and the deceased was delivering blows of stick on the accused no. 1, she squeezedhis testicles in order to liberate herself from his attack. It appears that she did so while the deceased was standing and giving blows on her."
The deceased was wearing a pant and it is impossible to imagine that the, squeezing of the testicles could be done by respondent no. 1 to the extent of causing his death soon after the squeezing when Gulabkhan was in a standing position. In that position he could have at once. moved back and liberated himself. The extent of squeezing done in this case was possible only if respondent no. 1 could sit on his legs after he bad fallen down at his back. This lends further support to the prosecution story that respondent no. 2 caught his hands from behind meaning thereby from towards the side of his head, in the front being respondent no. 1 on his legs. In our opinion, therefore, there was absolutely no basis or material in the records of this case to enable the High Court to record an order of acquittal- in favour of the respondents by extending them a right of private defence. Even going to the maximum in favour of the respondents that respondent no.1 got the blows with a stick at the hands of Gulabkhan and in the second incident it is manifest that her action of assault on him was a deliberate counterattack to cause him such injury which at least was likely to cause his death. The counter-,attack could in no sense be an attack in exercise of the right of private defence."
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(9 of 18) [CRLA-334/2017] Learned counsel for the complainant has next placed reliance on the decision of Hon'ble Supreme Court in Rameshwar & Anr. vs. State of Madhya Pradesh, (2019) 8 SCC 303, wherein it has been held as under:-
"13. As per Ex.-P6-post-mortem certificate, deceased Ram Autar sustained one gun shot injury, that is, circular hole of 1.5 cm on his back. Ram Lakhan (PW-15)-the Investigating Officer had seized one .12 bore cartridge and one .12 bore empty cartridge from the spot. PW-15 also seized two plastic pieces which were emitting the smell of gun power and the above material objects were seized under Ex.-P11-seizure memo. Insofar as accused No.3- Umacharan (since acquitted) who is said to have fired a gun shot, none of the witnesses have stated as to which part of the body of the deceased the said gun-shot was hit. Considering the fact that there was no cogent evidence against Umacharan, the trial court granted benefit of doubt and acquitted him. As rightly held by the High Court, the evidence against the appellants-accused is not identical as against the co-accused Umacharan who was acquitted.
14. Learned senior counsel for appellant No.2 mainly urged that there are contradictions in the evidence of the witnesses as to who fired gun shots on deceased Ram Autar. As held by the High Court, even assuming that appellant No.1-Rameshwar has fired gun shot, the conviction of appellant No.2-Balaram can be sustained with the aid of Section 34 IPC. To invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be provided that (i) there was common intention on the part of several persons to commit a particular crime; and (ii) in furtherance of that common intention, the crime was actually committed by them. In the present case, the presence of appellant No.2 has been established by consistent evidence of the eye- witnesses viz. PWs 1, 2, 6 and 7. Admittedly, appellant (Downloaded on 06/06/2021 at 11:25:23 PM) (10 of 18) [CRLA-334/2017] No.2 was armed with rifle and thus shared the common intention acting in concert with accused Rameshwar. When appellant No.2 has been proved to have acted in furtherance of the common intention, his conviction under Section 302 IPC was rightly affirmed by the High Court by invoking the aid of Section 34 IPC. We do not find any reason for warranting interference with the impugned judgment.
15. In the result, the conviction of appellant No.2-Balaram under Section 302 IPC read with Section 34 IPC and the sentence of life imprisonment imposed upon him is affirmed and this appeal is dismissed qua appellant No.2. Since the appellant No.1-Rameshwar has passed away, the appeal against him is dismissed as abated. The appellant No.2 shall surrender within a period of six weeks from today to serve the remaining period of sentence, failing which he shall be taken into custody."
Present case relates to murder of Imran Khan son of Maqbool Khan and injuries suffered by Rahees Ahmed P.W.2, Mehboob P.W.3, Maqbool Ahmed P.W.4, Smt. Babban P.W.23, Imaran P.W.29 and Haseen, in the incident which had occurred on 25.1.2011. Thus, the case rests on eyewitness account.
Complainant while appearing in the witness box as P.W.3 has deposed that on 25.1.2011 at about 8:00 PM, 10-12 persons entered their house including Rafiq, Akram, Atiq, Mohd. Umar, Altaf, Imran, Rahees, Ashfaq and Guddu, who were armed with swords, knives and Farsa. Rafiq gave a sword blow to him and his son Haseen. Akram gave knife blow on his head. Atiq gave Farsa blow to his sister-in-law and thereafter, the said persons fled away from the spot. Akram was armed with a knife, Rafiq was armed with a sword, Atiq was armed with a Farsa, Umar and Altaf were armed with iron rods. When he came out of the gate, he saw that his brother Maqbool, Rahees, Imran son of Maqbool were (Downloaded on 06/06/2021 at 11:25:23 PM) (11 of 18) [CRLA-334/2017] smeared in blood and they told him that they had been inflicted injuries by Akram, Rahees, Atiq, Rafiq, Umar, Altaf, Imran and Ashfaq with sharp edged weapons i.e. sword and knife. Police reached at the spot and took them to SMS Hospital. In his cross- examination, he deposed that they did not have any dispute with the accused prior to 25.1.2011. He knew the names of the accused appellants on 25.1.2011. They had not disclosed to the police that the incident had occurred in their house. Whatever had been narrated by him in examination-in-chief was not stated in his statement recorded by the police Exhibit-D/2.
Nawab Khan P.W.1 deposed that on 25.1.2011, he had received a phone call that a dispute had arisen between neighbours i.e. Imran and Maqbool. Imran had been taken to the hospital. He reached the hospital and met Imran. Imran informed him that Umar, Altaf, Rahees and Atiq had brought him out of the vehicle near Kiryana Store and thereafter, Akram, Imran, Ashfaq and Rafiq had attacked him with knives. In his cross-examination, he deposed that the incident had not occurred in his presence.
Rahees Ahmed P.W.2 deposed that on 23.1.2011, a dispute had arisen between him and the family members of Umar with regard to kite flying by their children. However, the dispute was got settled by the respectables of the area. On 25.1.2011, in the evening he was going towards his house from the market. When he had reached near Kiryana Store, he saw that some persons were quarreling. He reached the spot and saw that Umar, Rahees and Atiq had caught hold of his nephew Imran. He tried to rescue his nephew. In the meantime, his brother Maqbool also reached the spot and both of them tried to save Imran. Altaf raised a Lalkara that Imran should not be allowed to go alive. (Downloaded on 06/06/2021 at 11:25:23 PM)
(12 of 18) [CRLA-334/2017] Then Imran son of Annu and Ashfaq son of Annu, Rafiq, Akram and Mohd. Umar encircled Imran. Akram, Rafiq and Imran son of Annu gave knife blows to Imran and as a result, he started bleeding. Ashfaq gave stick blow on his nose and forehead. Rahees gave Farsa blow on his head. Maqbool was inflicted an iron rod blow by Altaf. They fell on the ground and they were given leg blows by the accused. Then, he alongwith his brother took Imran to their house and they were followed by the accused, where they inflicted injuries to his elder brother Mehboob and ladies/children. In his cross-examination, he deposed that when Mehboob had lodged the report, they had narrated the incident to him and they were present in the hospital at that time.
Maqbool Ahmed P.W.4 has corroborated the statement of Rahees Ahmed P.W.2. In his cross-examination, he deposed that they had no dispute with the accused prior to 25.1.2011. He knew the names as well as faces of the accused prior to 25.1.2011. In Exhibit-D/5, it was not stated as to with which weapon injury had been inflicted to Imran. It was not stated in Exhibit-D/5 with regard to weapon carried by the accused. This witness was confronted with his police statement Exhibit-D/5, wherein complete facts stated by him during trial in his examination-in-chief were not mentioned.
Abdul Gani P.W.5 deposed that on 25.1.2011, he was sitting in front of his house. At about 8:00 PM, he saw that in front of Fattu Kiryana Store, Umar, Akram, Rafiq, Imran, Ashfaq, Altaf and Atiq came armed with knives and had inflicted injuries to Imran. He inquired from Imran as to who had inflicted injuries to him and he told him that Umar, Altaf, Ashfaq, Atiq and Rahees had caught hold of him and due to this reason, he could not save (Downloaded on 06/06/2021 at 11:25:23 PM) (13 of 18) [CRLA-334/2017] himself. However, the statement Exhibit-D/6 of this witness was recorded by police on 17.4.2011, whereas, the incident had occurred on 25.1.2011. Hence, no reliance can be placed on the statement of Abdul Gani P.W.5.
Smt. Babban P.W.23 did not support the prosecution case, during trial and stated that her statement had not been recorded by police nor any occurrence had taken place in her presence.
Imran son of Riaz P.W.29 deposed that on 25.1.2011, he was present in his house. At about 8/8:30 PM, he heard noise from Fattu Kiryana Store. He reached the spot and saw that Umar and Atiq had caught hold of Imran son of Maqbool Khan. Akram, Rafiq, Imran son of Angwar armed with sharp edged weapon were inflicting injuries to him. He tried to rescue Imran and Altaf gave a pipe blow on his head. Maqbool and Rahees were also inflicted injuries by the accused. Accused also reached at their house and inflicted injuries to his other family members.
Injured Haseen was not examined during trial.
Dr. Pawan Kumar Gard P.W.28 deposed that on 26.1.2011, he had conducted Post Mortem examination on the dead body of deceased Imran son of Maqbool. He proved the Post Mortem examination report Exhibit-P/44. A perusal of Post Mortem examination report Exhibit-P/44 reveals that deceased Imran Khan had suffered following injuries:-
"1. Stiched wound (Metallic) present over right side to mid sternal region vertically placed 6 cm in length with tailing over lower margin end.
2. Stiched wound 3 cm long with metallic suture present obliquely placed over right side of chest. Margins are clear cut and regular.
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3. Stiched wound 14 cm long with metallic suture present over the right side chest below the right nipple transerversly to obliquely.
4. Stiched wound 4 cm long present over right side abdomen 14 cm later umblicus.
5. Intracostal drain tube mark present over right side lateral aspect of chest 4th - 5th space.
6. Drain tube mark present over right side lateral aspect of abdomen.
7. Colostomy mark present over right side abdomen through which intestine is coming out.
8. Stiched wound with metallic suture 21 cm in length over anterior aspect of abdomen about and before the umblicus.
Further examination of injury No.1, 2 , 3 and 4 shows that the injury no.1 is muscle deep only upto the sternum and the injury No. 2 is only chest cavity deep and passing through the intercostal space only. The injury No.3. is communicating with the chest cavity passing through the intercostal space and passing through the right diaphragm where suture are present further shows there is a incised stab wound over right lobe of liver of size 4 cm x ½ cm x 6 cm in depth. In margins of the wound of liver are clear cut, regular and well defined with red clotted blood. The injury No.4 shows- is communicating with the peritoneal cavity the peritoneal cavity shows clear cut margin. Further shows repair of ascending colon and right mesocolon done with surgical sutures the intestinal injury is liver deep.
It was further mentioned that the injuries nos. 5 to 8 were on account of treatment given by the surgeon. The death of deceased Imran was due to haemorrhagic shock as a result of antemortem injuries nos. 2 to 4.
Dr. Sumant Dutta P.W.27 deposed that on 27.1.2011, he had medico-legally examined Rahees and proved his medico- legal examination report Exhibit-P/5 and opinion report Exhibit- P/6. He further deposed that on the same day, he also medico- legally examined Mehboob and proved his medico-legal examination report Exhibit-P/8 and opinion Exhibit-P/9. He further deposed that on the same day, he medico-legally examined (Downloaded on 06/06/2021 at 11:25:23 PM) (15 of 18) [CRLA-334/2017] injured Maqbool Khan and proved his medico-legal examination report Exhibit-P/10 and opinion Exhibit-P/11. He further deposed that on the same day, he had medico-legally examined injured Haseen and proved his medico-legal examination report Exhibit- P/40. He further deposed that on the same day, he examined injured Imran son of Riaz Khan and proved his medico-legal examination report Exhibit-P/42 and opinion Exhibit-P/43. He further deposed that on the same day, he had medico-legally examined injured Babban and proved her medico-legal examination report Exhibit-P/36 and medical opinion Exhibit-P/37.
Police officials examined during trial have deposed with regard to investigation conducted in the case.
Thus, in the present case, from the statements of injured witnesses, it is evident that the incident had occurred on 25.1.2011 near Fattu Kiryana Store at Point 'X' shown in the site plan Exhibit-P/4. There was no previous enmity between the parties. The dispute had arisen between the parties on account of kite flying by children. As per the FIR, the said dispute had been got resolved by the respectables of the area. Hence, after carefully going through the statements of the witnesses, we are of the opinion that the incident had suddenly occurred near Kiryana Store. So far as deceased Imran is concerned, he had suffered four injuries, which are attributed to appellant Akram by the prosecution witnesses. A perusal of the medical record of injured Rahees, Mehboob, Maqbool Khan, Babban, Haseen, Imran (P.W.29) reveals that the said injured had suffered simple injuries. A perusal of the arrest memos of appellants Exhibit-P/18, Exhibit- P/19, Exhibit-P/20, Exhibit-P/25, Exhibit-P/26 and Exhibit-P/27 reveals that they had also suffered simple injuries. (Downloaded on 06/06/2021 at 11:25:23 PM)
(16 of 18) [CRLA-334/2017] FIR Exhibit-P/58 was lodged by the accused side with regard to the incident-in-question. During the course of arguments, it has transpired that negative Final Report was submitted by the investigating agency in the said case.
Parties are residing in the neighbourhood and they had no previous enmity. It appears that the incident occurred all of a sudden and it was a case of free fight. Thus, all the accused would be responsible for their individual acts. There is no quarrel with the preposition of law settled by the judgment relied by the learned counsel for the complainant but the same fail to advance argument raised by the learned counsel for the complainant that in the present case all the accused had come to the spot in connivance with each other to commit the offence of murder. Rather, from the facts and circumstances of the present case, it does not transpire that all the accused had come to the spot in connivance with each other with a view to commit the offence of murder. It appears to be a case of free fight. Apart from the deceased Imran, who had suffered knife injuries at the hands of appellant Akram, the remaining injured had suffered simple injuries.
So far as appellant Akram is concerned, he is attributed knife injuries to the deceased. As per Post Mortem Report, deceased had died on account of injuries no. 2 to 4. Blood stained knife was recovered at the instance of appellant Akram during investigation. Hence, he has been rightly held guilty of offence under Section 302 IPC by the trial court.
So far as appellants Umar, Ashfaq, Rahees and Imran are concerned, they were not named in the FIR. Rahees Ahmed P.W.2 has categorically deposed in his cross-examination that FIR (Downloaded on 06/06/2021 at 11:25:23 PM) (17 of 18) [CRLA-334/2017] had been lodged by complainant Mehboob after they had narrated the incident to him. The complainant as well as Maqbool Ahmed P.W.4 have deposed that they knew all the accused prior to the incident. The fact that the names of accused Umar, Ashfaq, Rahees and Imran are not reflected in the FIR leads to the inference that the possibility that they might have been falsely involved in the case at a later stage, cannot be ruled out. A perusal of the FIR reveals that the complainant knew names of accused Atiq, Rafiq, Akram, Altaf and Guddu and did not know the names of other 10/12 persons who were accompanying the said accused. Since the complainant already knew the accused Umar, Ashfaq, Rahees and Imran prior to the incident, in normal circumstances, the names of the said appellants would have also reflected in the FIR. Hence, appellants Umar, Ashfaq, Rahees and Imran are liable to be acquitted from the charges framed against them by giving them benefit of doubt. Thus, in the present case, no offence under Section 148 IPC can be said to be made out, as the number of accused comes to less than five.
So far as appellants Akram, Rafiq, Atiq and Ashfaq are concerned, their conviction and sentence as ordered by the trial court under Section 323 IPC are liable to be upheld, as they have inflicted simple injuries to the injured and the said accused have been duly named by the injured in their statements as the persons who had committed the crime. As per the medico-legal examination reports of the injured proved on record, all the injured had suffered simple injuries with blunt weapon. So far as injured Babban is concerned, she had suffered one injury with a sharp edged weapon. However, injured Babban while appearing in the witness box had not supported the prosecution case and has (Downloaded on 06/06/2021 at 11:25:23 PM) (18 of 18) [CRLA-334/2017] thus not attributed injuries inflicted on her person to any of the appellant.
So far as appellants Akram and Atiq are concerned, their conviction and sentence as ordered by the trial court under Section 4/25 of Arms Act is liable to be upheld as during investigation of the case, knife was recovered from the accused appellant Akram and sword was recovered from the appellant Atiq.
In the present case, the occurrence had occurred near Fattu Kiryana Store. Hence, no offence under Section 452 IPC can be said to be made out and appellants are liable to be acquitted of the charge framed against them under Section 452 IPC.
Accordingly, the conviction and sentence of appellant Akram under Sections 302, 323 IPC and Section 4/25 of Arms Act is maintained and he is acquitted of the charge framed against him under Sections 148 and 452 IPC.
So far as accused Umar, Ashfaq, Rahees and Imran are concerned they are acquitted of the charges framed against them by giving them benefit of doubt.
Conviction and sentence of accused Rafiq and Altaf under Section 323 IPC is maintained and they are acquitted of the remaining charges framed against them.
So far accused Atiq is concerned, his conviction and sentence as ordered by the trial court under Section 323 IPC and Section 4/25 of Arms Act are maintained and he is acquitted of remaining charges framed against him.
Appeal stands disposed of accordingly.
(INDERJEET SINGH)J. (SABINA)J.
Anil Makwana /21
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