Hameed Khan And Ors. vs The State Of M.P. on 6 November, 2017

[Cites 6, Cited by 18]

Madhya Pradesh High Court

Hameed Khan And Ors. vs The State Of M.P. on 6 November, 2017

This appeal under Section 374(2) of Cr.P.C. has been preferred by the appellants/accused against the judgment and conviction dated 25.9.1998, passed by the Special -2 - Cr. A. No.2317/1998 Judge, Damoh in S.T.No.269/1996, whereby all the appellants/accused have been convicted for commission of offences punishable under section 302/149 of IPC and sentenced to undergo imprisonment for life. Appellant no.2 Sukko Bai has also been convicted under section 148 of IPC and sentenced to undergo one year R.I., whereas other appellants have also been convicted under section 147 of IPC and sentenced to undergo R.I. for one year.

2. The prosecution story in brief is that the deceased Akram Khan was the brother of complainant Phool Khan (PW-2) and Musu alias Mustaq Khan (PW-8). A few days before the incident Musu had married with appellant No.2 Sukko Bai, against the consent of his brothers and family members, he was living with Sukko Bai in the house of accused Gallu alias Gul Mohammad at village Chirai Chonch. On 03.06.1996 around 5 O' clock in the early morning Phool Khan and his relative Akhtar Khan came to village Chirai Chonch and arrived in front of house of Gallu. They called Musu out of house and asked him to go with them to their house. Musu came out of the house and following him accused Gallu armed with knife, Sukko Bai armed with sward and other appellants Hamid Khan, Sullu alias Sultan, Anwar Khan and Rahim Khan came there. When Musu refused to go with complainant Phool Khan, a heated words and altercation took place between them. Meanwhile, appellants Hamid, Sullu, Anwar, Sukko Bai and Rahim exhorted the accused Gallu to kill Akram than, Gallu inflicted blows of knife on chest, abdomen and hands of Akram and caused fatal injuries. Sukko Bai also assaulted Akram by sword on his back. Phool Khan and Akhtar Khan tried to intervene and they were also beaten by Gallu. After beating Akram all appellants and Gallu -3 - Cr. A. No.2317/1998 ran away from the spot. Akram was brought District Hospital Damoh, where doctor declared him dead. A report about death of Gallu (Ex.P/1) sent by doctor to Police Station Kotwali, Damoh, where police registered Marg intimation (Ex.P/2). Phool Khan lodged First Information Report (Ex.P/3) at police out post Jabalpur Naka, Police Station, Damoh, Dehat. Sub Inspector B.S. Dhurve, registered Dehati Nalashi (Ex.P/3) and Dehati Marg Intimation (Ex.P/2) and initiated the inquest. SHO, Rakesh Bhatt (PW-23) Police Station Damoh, Dehat reached on the spot prepared spot map (Ex.P/17), seized plain earth and red earth by seizure memo (Ex.P/4) and prepared panchnama of dead body (Ex.P/6) and sent the body of postmortem to District Hospital, Damoh. Phool Khan and Akhtar Khan were also medically examined. The statement of witnesses were recorded. Accused Gallu remained absconded during investigation, therefore, after usual investigation a charge sheet has been filed against the present appellants before the Court.

3. The trial Court has framed the charge of offence punishable under Sections 147, 148, 302/149, 324/149 of IPC. The appellants abjured guilt and pleaded innocence. The prosecution has examined 24 witnesses where as the appellants have examined one witness in their defence.

4. Learned trial Court on appreciation of evidence adduced by the prosecution arrived at the conclusion that the appellants had formed unlawful assembly with an object to commit murder of Akram and in furtherance of common object of the assembly accused Gallu and appellant Sukko Bai had assaulted the deceased by knife and sword and committed his murder and accused Gallu had inflicted simple -4 - Cr. A. No.2317/1998 injuries to witnesses Phool and Akhtar Khan. The trial Court has held the appellants guilty for commission of offence punishable under Sections 147, 148, 302/149 of IPC and sentenced as mentioned hereinabove.

5. It is argued by the learned counsel for the appellants that from the evidence adduced by the prosecution it appears that at the time of incident the deceased Akram had a quarrel with his brother Musu (PW-8). Akram wanted to take Musu with him by force. When Musu denied to go with him, Akram and accused Gallu had a sudden quarrel in which Akram received injuries. Present appellants were neither the members of unlawful assembly nor they have instigated or aided the main accused Gallu to commit crime. There is substantial discrepancies occurred in the testimonies of prosecution witnesses. There statements are not corroborated by independent witnesses. The trial Court on erroneous appreciation of evidence had wrongly relied upon the brother of deceased namely Phool Khan (PW-2) and relative Akhtar Khan (PW-3) ignoring the contradiction of their police statements. Actually the deceased and his brothers came to the house of Gallu to beat Sukko Bai and his family members. The trial Court has wrongly held the appellants guilty for commission of alleged offence.

6. We have heard the learned counsel for the parties and perused the record.

7. It is not disputed by the defense that at the time of incident deceased Akram had sustained multiple injuries and he succumbed to these injuries on the spot. He was brought to District Hospital, Damoh for treatment where doctors had found him dead. It is also not disputed that Dehati Nalashi (Ex.P/3) and Dehati Marg Intimation (Ex.P/2) were recorded -5 - Cr. A. No.2317/1998 by the police and inquest was conducted. The dead body was sent for postmortem.

8. Dr. Y.P. Patel (PW-24) deposed that on 03.06.1996 at District Hospital, Damoh he had performed postmortem of deceased Akram and found following injuries:-

i. Incised wound 4 X 1.5 cms. on left side of chest cutting 9th and 10th ribs and muscles, clotted blood was present.

ii Incised wound 5 X 1 cm transverse on body of sternum lower third. Sternum bone was cut. iii. Incised wound 4 X 1.5 cm over left side of chest at nipple.

iv. Transverse incised wound 2 X 1 cm near injury No.iii.

v. Incised wound vertical 10 cm X 1.5 cm bone deep over left fore arm.

vi. Transverse incised wound 5 X ½ cm over lower 1/3rd of left hand.

vii. Transverse incised wound over right, third, fourth and fifth fingers bone deep. viii. Transverse incised wound 6 X 1.5 X 2 cm over right hand palm.

On internal examination, it is found that there was incised wound transversely placed on outer surface of right ventricle size 2 X 5 cm. Transverse incised wound 4 X 1 cm over liver. Peritoneal wall, liver and heart were also cut.

9. It is opined by the doctor that cause of death by syncope (shock) due to injuries on heart and other part of the body. The injuries are anti-mortem in nature caused by hard and sharp object like knife and sword, sufficient to -6 - Cr. A. No.2317/1998 cause death, in ordinary course of nature. In cross examination the testimony of Dr. Y.P. Patel remained unchallenged and duly supported by PM report (Ex.P/21). Thus, relying upon the statement of doctor and postmortem report it is rightly found proved by learned trial Court that the death of deceased Akram was homicidal.

10. Now the question arises whether the present appellants were the members of unlawful assembly and in furtherance of common object of the assembly they had instigated the main accused Gallu to kill the deceased. The prosecution had examined Phool Khan (PW-2), Akhtar Khan (PW-3), Khalkul Bai (PW-7), Musu (PW-8) as eye witnesses to the incident. Whereas, Tampu alias Kalam (PW-9), Aslam (PW-10), Kalu Khan (PW-11), Bhure Khan (PW-12) and Shakir (PW-13) are the witnesses who arrived on the spot after the incident and before whom deceased had made statement as dying declaration.

11. It is not disputed that Musu alias Mustaq (PW-8) is the brother of complainant of Phool Khan (PW-2) and deceased Akram. It is also not denied that the incident took place in front of the house of main accused Gallu who is the brother of appellant Sukko Bai. Complainant Phool Khan (PW-2) and Akhtar Khan (PW-3) deposed in their statement that at the time of incident around 5:30 am early in the morning Akram and Akhtar came to the house of Phool Khan, which is situated in front of house of accused Gallu. Akram and Akhtar told Phool Khan that their brother Musu was living with Sukko Bai in the house of Gallu and they have come to take Musu home with them. Thereafter Akram called Musu from outside of the house of Gallu. Musu came out of the house and when Akram told him to return home, accused -7 - Cr. A. No.2317/1998 Gallu armed with knife, Sukko Bai armed with sword and other appellants Hamid, Sullu, Anwar and Rahim also came there. Sukko Bai said that Musu would not go with complainant and she would not allow him to leave her, then there was a heated talk and altercation arose between Musu and deceased Akram. Meanwhile, appellants exhorted to kill Akram, than accused Gallu gave the blows of knife over chest, abdomen and hand of Akram and caused grievous injuries. Khalkul Bai (PW-7) and Musu (PW-8) also deposed in the same manner.

12. Since, Phool Khan, Akhtar Khan, Khalkul Bai and Musu are close relatives of the deceased, therefore, we have to consider their statements with caution and circumspection. First we will consider the case of Sukko Bai. Complainant Phool Khan (PW-2) has not stated in his evidence that at the time of incident Sukko Bai had also assaulted the deceased by sword. In First Information Report (Ex.P/3) also it was not mentioned that Sukko Bai had assaulted the deceased by sword. Other witnesses Akhtar Khan (PW-3), Khalkul Bai (PW-7) deposed that Sukko Bai had assaulted the deceased by sword on his back. But, this fact is not mentioned in their police statements (Ex.D/2) and (Ex.D/4) respectively. This is material omission, which creates doubt on the statement of these witnesses. Musu (PW-8) deposed that Sukko Bai had assaulted the deceased by sword on his back. But, in postmortem report (Ex.P/21) doctor has found no injury of sword on back of the deceased. Keeping in view the above contradictions in the statements of witnesses, which are not corroborated by medical evidence and FIR (Ex.P/3) we cannot believe beyond doubt on the testimony of above witnesses in regard to appellant Sukko Bai. It is not proved -8 - Cr. A. No.2317/1998 beyond doubt that Sukko Bai had assaulted the deceased by sword. The trial Court has recorded wrong finding on this point, ignoring the discrepancies in the statement of above witnesses.

13. As far as appellants Hamid, Sullu, Anwar and Rahim are concerned, it is nowhere stated by any prosecution witness that at the time of incident these witnesses were also armed with weapons. Phool Khan (PW-2) had not stated that these appellants had beaten the deceased or in any way helped Gallu to kill the decease. Akhtar Khan (PW-3) in his statement para-3 deposed that all appellants had surrounded the deceased and Hamid and Rahim had caught hold of him, but these facts are not mentioned in police statement (Ex.D/2) of this witness. Khalkul Bai (PW-7) had not deposed anything about participation of above appellants. Musu (PW-

8) had deposed that Hamid and Rahim had caught hold of deceased but this fact was not mentioned in his police statement. Thus, keeping in view the omission in police statement, their statements cannot be relied on this point and it cannot be believed that at the time of incident appellants Hamid and Rahim had caught hold of deceased or appellants had surrounded the deceased and aided the main accused Gallu to assault the deceased.

14. As far as, instigation to commit murder of deceased is concerned, in this regard Phool Khan (PW-2) deposed that appellants Rahim, Hamid, Anwar and Sullu exhorted the main accused Gallu to cut the hand and nose of deceased. He does not say appellants had exhorted to kill the deceased. Whereas other witnesses Akhtar Khan (PW-3) Khalkul Bai (PW-7) had deposed that all the appellants had told main accused Gallu to kill the deceased. This is general statement.

-9 - Cr. A. No.2317/1998

Musu (PW-8) deposed that only appellant Hamid told Gallu to kill the deceased. He does not state against Rahim, Anwar and Sullu. Therefore, there is variance in the statement of witnesses and it is not clear actually who had exhorted the main accused to kill the deceased.

15. Other witnesses Jalil Khan (PW-5), Aslam (PW-10), Kallu Khan (PW-11), Bhure Khan (PW-12) and Shakir (PW-

13) who arrived on the spot soon after the incident, deposed that the deceased or other witnesses had not told them that the appellants had instigated the main accused Gallu to kill the deceased. Therefore, the independent witnesses do not support and corroborate the statements of PW-3, PW-2, PW- 7 and PW-8. There is omission in police statement of Jalil Khan (PW-5), Tampu (PW-9), Kalu Khan (PW-11), Bhure Khan (PW-12) and Shakir (PW-13) regarding the participation of Sukko Bai in assaulting the deceased. Therefore, this cannot be believed that the deceased had told these witnesses that Sukko Bai had also assaulted him.

16. Thus, from above discussion, it is doubtful that Sukko Bai had assaulted the deceased by sword and all the appellants had exhorted the main accused Gallu to kill the deceased. It is also doubtful that Sukko Bai was armed with sword. The incident took place in front of the house of appellants, therefore, their presence on the spot is natural. It is quite possible that seeing the quarrel between deceased Akram with his brother Musu all the appellants had arrived on the spot. It is admitted by Phool Khan (PW-2) in his statement in para-18 that at the time of incident there was a quarrel. Akram and Gallu were standing facing each other, all of sudden Gallu had assaulted the deceased by knife, therefore, he could not get time to intervene and save the -10 - Cr. A. No.2317/1998 deceased. This show there was a sudden fight, in which Gallu had assaulted the deceased. All the appellants had come on the spot without any weapon. They have not beaten the deceased or participated in quarrel. Simply their presence on the spot is not sufficient to make them member of unlawful assembly. Thus, there is no evidence to indicate that there was an unlawful assembly and appellants were the members of that assembly. The trial Court on erroneous appreciation of evidence ignoring the discrepancies in the statement of prosecution witnesses had arrived at the wrong conclusion that the appellants were member of unlawful assembly and shared common object to commit murder of deceased with main accused Gallu.

17. Thus, in view of above discussion we do not find the alleged offence proved beyond reasonable doubt against the appellants. Consequently, the appeal is allowed. The conviction and sentence inflicted by the trial Court on appellants under Sections 147, 148, 302/149 is hereby set aside and the appellants are acquitted of the charges of aforesaid offences. They are on bail. There bail bonds stands discharged.

           (S.K. Gangele)                   (Anurag Shrivastava)
               Judge                               Judge

Vin**




        VINOD
        SHARMA
        2017.11.07
        01:13:55 -08'00'

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