Madhya Pradesh High Court
Mohd. Faiz vs The State Of Madhya Pradesh on 10 May, 2022
Author: Virender Singh
Bench: Virender Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIRENDER SINGH
ON THE 10th OF MAY, 2022
CRIMINAL APPEAL NO. 6269 of 2019
Between:-
Sachin, S/o Shri Om Prakash
Karosiya, Aged about 31 years,
Occupation Labour, R/o A-341,
Mulla Colonym, Housing Board
Colony, Karond Nishatpura district
Bhopal.
...Appellant
(Shri V.C. Rai, counsel for the appellant)
And
The State of Madhya Pradesh,
Through- P.S- Nishatpura,
district Bhopal (M.P.)
...Respondent
(By Shri Pramod Pandey, Public Prosecutor)
CRIMINAL APPEAL NO. 4978 of 2021
Between:-
Mohd. Faiz, S/o Shri Mohd. Zafar,
aged about 34 years, Occupation
Labour, R/o LIG EWS-50, Behind
Rusali Masjid, Housing Board
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Colony, Karonda, Nishatpura,
district Bhopal.
...Appellant
(Shri A. Usmani, counsel for the appellant)
And
The State of Madhya Pradesh,
Through- P.S- Nishatpura,
district Bhopal (M.P.)
...Respondent
(By Shri Pramod Pandey, Public Prosecutor)
...................................................................................
These appeals coming on for hearing on IA No.6369/2022 an
application for suspension of sentence under Section 389 Cr.P.C. and
for final hearing (in Cr.A No. 4978/2021).
JUDGMENT
Learned counsels appearing for appellant Mohd. Faiz (in Cr.A No. 4978/2021) submitted that the appellant Mohd. Faiz has completed half of the sentence; therefore, either his sentence be suspended or his appeal be heard finally.
2. This Court chose to hear the appeals finally.
3. Both the appellants have been booked by Police Station, Nishatpura, Bhopal in Crime No. 359/2018 under Sections 307, 327, 3 506/34 I.P.C and 25 (1B)(b) of the Arms Act; therefore, their respective appeals are heard together and are being disposed off by this common judgment.
4. Charge-sheet was filed against both of them and they were charged under Section 307 read with Section 34 I.P.C in alternate Section 329 read with Section 34 I.P.C and 506 Part-II I.P.C. In addition to that Mohd. Faiz was also charged under Section 25 (1B)(b) of the Arms Act, 1959. They both were tried together. On the date of delivery of judgment, i.e., 6.7.2019 appellant Mohd. Faiz remained absent, hence the case was posted for delivery of judgment on 9.7.2019. On that date also Mohd. Faiz did not appear before the Court; therefore, the Court delivered the judgment against appellant Sachin and acquitted him from the charge under Section 307/34 and 506 part-II I.P.C as well as Section 25 (1B)(b) of Arms Act but convicted him under Section 329/34 I.P.C and awarded four years R.I. with fine of Rs.1000/- in default R.I. for three months. He preferred Criminal Appeal No. 6269/2019.
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5. Appellant Mohd. Faiz declared proclaimed offender and perpetual arrest warrant was issued against him on 25.7.2019. After about two years of the delivery of judgment with regard to co-accused Sachin, on receiving information that Mohd. Faiz is detained in jail in connection with some other crime, a production warrant was issued on 17.9.2020 and in compliance whereof he was taken into custody in this case. Thereafter a separate judgment was passed against him on 19.2.2021, whereby he was also convicted under Section 329 I.P.C and 25 (1B)(b) of the Arms Act and was awarded 4 years R.I. with fine of Rs.1000/- and 2 years R.I. with fine of Rs.1,000/- respectively along with default punishment of four and one month's R.I. He also preferred Appeal bearing Cr.A No. 4798/2021.
6. The prosecution case, in brief, is that on 12.5.2018 when complainant Sheikh Sattar was standing near Syed Hazrat Jinsawali Dargah situated near a liquor shop at about 19:15 hours, both the appellants, viz., Faiz and Sonu came and asked for money to buy liquor. Faiz was having a knife in his hand. When Sheikh Sattar refused to accede to their prayer, Sonu caught his hands and Faiz 5 wielded knife twice with intent to kill him. In his attempt to defend himself, Sattar sustained injuries on the left thumb and also on the head. Ashok Verma (PW-2) and Sunil Ahirwar (PW-3), who were standing beside defended him. On their intervention both the assailants left the place under the threat to life.
7. The injured was immediately taken to a nearby hospital and admitted therein. The hospital authorities intimated the Police. The Police immediately reached to the Hospital and recorded Dehati Nalshi (Ex P-1). Based on this Dehati Nalshi, an F.I.R was deduced into writing and Crime No. 359/2018 was registered (Ex. P-15) The Police visited the spot, prepared spot map (Ex. P-3), seized blood stained and plain soil from the spot (Ex. P-2), arrested both the appellants, recovered a knife from Mohd. Faiz (Ex. P4, 5 and 8), collected medical papers of the injured and after completing investigation filed the charge-sheet, which culminated in the conviction of the appellants as indicated herein above.
8. Both the appellants have preferred their respective appeals on the grounds that their conviction and sentence is bad in law. The Trial 6 Court failed to appreciate the evidence available on record properly. It further committed error of law in not giving proper emphasis on the defence version. The Trial Court did not properly consider that Dr. Sanjay Singh Gour (PW-4) had admitted that the injuries found on the left thumb and head of the injured were not grievous one. The injured was admitted on 12.5.2018 and discharged on 14.5.2018 (Ex. P-13). Therefore, the conviction of the appellants under Section 329 I.P.C. for causing grievous hurt is bad in law. The Trial Court further failed to see that in the police statement (Ex. D-1), the complainant did not allege about the demand of Rs.500/- for liquor, but such story was developed subsequently. Independent witnesses, viz., Ashok Verma (PW-2) and Sunil Ahirwar (PW-3) have not supported the allegation made by the complainant. This fact has also missed observation of the Trial Court. Witnesses of seizure P.W.2 Ashok Verma and PW-5 Gangaram have also not supported the case of the prosecution or the recovery of knife from the possession of Mohd. Faiz. The investigation of the case is also defective. The trial Court has not 7 considered omissions and contradictions appeared in the statement of the witnesses. Therefore, the appellants are entitled for acquittal.
9. In the arguments counsels for both the appellants reiterated the same grounds which have been mentioned in the preceding paragraphs and, therefore, they need no repetition. In addition, the learned counsel for the appellant Sachin in Cr.A. No. 6269/2019 has stated that nothing has been recovered from his possession.
10. Learned Public Prosecutor has opposed the prayer of the appellants and supported the aforesaid both the judgments.
11. I have heard the counsels and have perused the record.
12. Before the Trial Court, injured Sheikh Sattar (PW-1) has categorically stated that at the time of the incident, he was standing near Syed Hazrat Jinsawali Dargah. Both the appellants came and hurled abuses. They demanded Rs.500/- to buy liquor and on his refusal Sachin caught his hands and Faiz wielded knife twice with intent to kill him. He sustained injury on the head which could be treated by placing 22 stitches. Another injury inflicted on left thumb and here also he had to get five stitches. Ashok Verma (PW-2) and 8 Sunil Ahirwar (PW-3) who were sitting beside, defended him. Ashok Verma (PW-2) immediately called his sons and when they both, viz., Faizan and Salman reached there, offenders left the spot under the threat of life. On the lengthy cross-examination of both the appellants separately, nothing emerged on record to disbelieve his deposition made on oath in the examination-in-chief. The statement of the complainant is well supported by the corresponding injuries observed of Dr. Sanjay Singh (PW-4).
13. True it is that independent witnesses Ashok Verma (PW-2) and Sunil Ahirwar (PW-3) have not supported the case of the prosecution but they both have been declared hostile and they could not offer any plausible explanation for making a statement contrary to their earlier statement. Law is well settled that hostility of any witness does not affect the quality of the statement of any other witness, particularly the injured witness. Since to prove any fact the number of witnesses has not been fixed, the conviction can be based on the statement of only a single witness. Non-supportive statement of other witnesses does not affect the case of the prosecution adversely. Besides, apt to be 9 mentioned here that during the trial on 6.2.2019 independent witness Ashok Verma (PW-2) submitted an application before the Trial Court that Mohd. Faiz along with his two friends approached his mother and threatened her to kill her son. The complainant has also stated in his examination before the Court that the appellants were threatening him to compound the case otherwise to face dire consequences. The hostility of the witnesses can be understand in this backdrop. Even otherwise keeping in view the settled proposition of law, non-support of Ashok Verma or Sunil Raikwar does not affect the prosecution case.
14. It is a fact that the charge under Section 307 I.P.C. has not been found proved against the appellants but it does not mean that due to un-availability of essential ingredients to constitute the said offence the entire case of the prosecution becomes doubtful and has to be thrown away. Therefore, this contention of the appellants also is not helpful to them to get acquitted against the charges found proved by the Trial Court.
15. It is argued that the investigation is defective in this case. It is pointed out that the incident had taken place on 12.5.2018. The 10 Dehati Nalshi was recorded on the same date but the Investigating Officer Anil Kumar (PW-7) has admitted that his departure is recorded in Rojnamcha Sanha on 13.5.2018 at 13:16 hours. But, this statement is related to departure of the witness with regard to the subsequent investigation of the case. Therefore, it does not affect the case of the prosecution. No other defect in the investigation could be pointed out by the appellants.
16. It is a fact that Dr. Sanjay Singh Gour (PW-4) has admitted in his cross-examination that no grievous injury was detected in the medical examination and this fact has not been controverted by the State. The Trial Court has convicted the appellants under section 329 observing that since the injury was caused by a deadly weapon, it has to be considered a grievous injury. But this finding is contrary to the law as well as the facts of the case. Therefore, the conviction of the appellants under Section 329 is not sustainable.
17. Nothing has been stated against the recovery of knife from Mohd. Faiz except that both independent witnesses have not supported the case of the prosecution but as stated earlier, hostility of some of 11 the witnesses does not mean that other witnesses are telling lie, until and unless their own statements are of such nature that reasonable doubt can be raised against them. In this case Investigating Officer has proved the recovery and his statement is well supported by the documents prepared at the time of recovery, i.e., Ex.P-8, P-16,P-17 and in cross-examination his statement could not be rebutted. There is no allegation of biasness against him and otherwise also, he is an impartial responsible police officer and there is nothing to show that he was acted mala fidely or has falsely implicated him. Therefore, in this respect also, the finding of the Trial court are based on correct appreciation of the evidence.
18. In view of the aforesaid discussion the appeals preferred by both the appellants are partially allowed. Their conviction and sentence under Section 329 I.P.C are set aside. However, looking to the allegations made against them and the injuries found caused to the complainant they are convicted under Section 327 I.P.C. The conviction of Appellant Mohd. Faij under Section 25 (1B) (b) of the Arms Act, 1959 is maintained.
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19. In this case the appellant Mohd. Faij had wielded knife repeatedly, when the injured refused to succumb to his demand of giving him money to purchase liquor and caused injuries by knife on his head. He again attempted to cause injury and in his attempt to defend, the injured sustained injuries on the left thumb. Mohd. Faiz has Crime No. 854/2020 under Section 25 Arms Act, registered at Police Station Nishatpura, Bhopal in his account. Besides, his conduct appeared during the trial and the fact that he absconded from the Court when the Trial Court was going to deliver the judgment and he was declared proclaimed offender, his conduct to tamper with the evidence of the prosecution and other facts and circumstances of the case and also keeping in view the nature and gravity of the injuries caused by him, nature of accusation made against him, sentence awarded to him by the Trial Court for the offences under Section 329 I.P.C is also set aside. Now, for the offence under Section 327 I.P.C he is awarded 3 years R.I. with fine of Rs.10,000/- and in default R.I. for six months. No need appears to alter his sentence for the offence under section 25 13 (1B)(b) of the Arms Act, 1959 both the sentences shall run concurrently.
20. The offence against appellant Sachin has also been found proved. As per the allegation, he caught hold the hands of the victim. He did not cause any injury to him. He has no criminal record. He had fully cooperated with the trial. Therefore, for the offence under section 327/34 I.P.C. found proved against him, he is awarded 1 years's R.I. with fine of Rs.2500/- in default R.I. for three months.
21. In the result, in the manner indicate herein above the appeals are partly allowed and are disposed off.
22. All pending I.As., if any, stand closed.
(Virender Singh) Judge vivek VIVEK KUMAR TRIPATHI 2022.05.13 18:06:05 +05'30'