Madhya Pradesh High Court
Wahid Khan vs State Of M.P. on 22 November, 2007
Equivalent citations: 2008(1)MPHT364
Author: R.C. Mishra
Bench: R.C. Mishra
JUDGMENT R.C. Mishra, J.
1. This appeal arises from the judgment dated 24-12-19% passed by Sessions Judge, Khandwa in S.T. No. 176/1993, whereby the appellant has been convicted under Section 307 of the IPC and sentenced to undergo R.I. for 3 years. He is one amongst the persons, who were prosecuted and charged with the offences punishable under Sections 148, 332 and 307 read with Section 149 of the IPC, for rioting and attacking the police patrol party with deadly weapons. However, for the reasons recorded in the impugned judgment only, the learned Trial Judge acquitted the other eight accused of all and the appellant of the remaining charges.
2. The prosecution story, in short, may be narrated as under:
(i) On 8-12-1992, in the wake of communal tension as a sequel to demolition of Babri Mas/id at Ayodhya, curlew was clamped in the city of Khandwa to maintain law and order. Head Constable Bhagwan Choudhary (P.W. 6), Constable Virendra Pratap Singh (P.W. 4) and Constable Amar Singh (P.W. 3) (for short 'Bhagwan, Virendra and Amar') were members of patrolling party, deployed in the disturbed area, under the control of Inspector Satyendra Kumar (P.W. 5), the then SHO of Police Station, Moghat Road.
(ii) At about 12.30 p.m., a wireless message was received to this effect that situation was explosive in Mundipura, a locality predominantly occupied by Muslims. The parly led by Satyendra Kumar immediately proceeded towards Mundipura and in the transit area of Implipura, joined the police force headed by Dy. S.P., G.S. Kushwaha (P.W. 9). As they reached near the house of co-accused Altaf, the appellant and all the co-accused, armed with deadly weapons and exhorting each other to kill them saying that the police personnel had demolished the Babri Mas/.id, attacked them. First of all, the appellant struck Bhagwan on his chest with a gupti and Abdul Hamid dealt a sword blow that landed on his forehead; Altaf hit on his right shoulder with pharsa and Sheikh Jalil, expressing his intention to cut his hand, also assaulted him with a pharsa but he was able to save himself. At this point of time, Amar and Virendra came forward to prevent further attack on Bhagwan but they were also beaten by the other accused with lathis. G.S. Kushwaha also rushed to intervene but Sheikh Jameel made an unsuccessful attempt to kill him by dealing a sword blow on his neck.
(iii) Upon the FIR (Exh. P-19), lodged by Bhagwan, a case, under Sections 147, 148, 149, 353, 332 and 307 of the IPC was registered. He was sent to the main hospital along with Amar and Virendra. Dr. Narendra Singh Obeja (P.W. 1) admitted Bhagwan to the hospital and referred him to the surgical specialist for further examination and treatment. He also advised X-ray examination of Bhagwan's left chest, Amar Singh's right leg and Virendra's left thumb but no bony injury could be noticed in the corresponding radiological examinations. However, Surgical Specialist Gopal Krishna (P.W. 7) described the incised injuries found on Bhagwan's chest as grievous and dangerous to life.
(iv) Sub-Inspector Antar Singh (P.W. 8) seized bloodstained uniform of Bhagwan; apprehended the accused and recovered respective weapons at their instance. The seized weapons along with the clothes of Bhagwan were sent to FSL, Sagar for chemical examination. Noticing bloodstains thereon, the Chemical Examiner forwarded the exhibits to the Serologist for further examination. Although the Serologist also found bloodstains on trousers and shirt yet, he could not determine the origin of blood on gupti, alleged seized from the appellant, due to disintegration.
3. The appellant as well as the other accused denied the charges. When examined, under Section 313 of the Code of Criminal Procedure (for short, 'the Code'), co-accused Sheikh Jameel asserted that the police party had picket up a quarrel with the female members of their family who, in violation of the prohibitory order, had gone to fetch water for drinking. According to him, the police personnel not only assaulted the women folk but also fired gun shots in the air before entering into his house to beat him. The appellant also pleaded that the police party trespassed into his house at the time when his aunt was going to offer Namaz (prayer to God). As per his statement, the police officials first struck his aunt with sticks and on his expressing intention to make a complaint, not only belaboured him but also caused damage to his household goods and, in the process, they took away his wrist watch and camera.
4. The prosecution sought to bring home the charges by examining as many as 9 witnesses including the injured persons and the medical experts whereas the defence proved existence of injuries allegedly caused by the police officials to the appellant and co-accused Sheikh Jameel.
5. On consideration of the entire evidence on record, learned Trial Judge, for the reasons assigned in the judgment under challenge, found the appellant guilty of attempting the murder of Bhagwan. He, accordingly, convicted and sentenced him as indicated hereinabove.
6. Legality and propriety of the conviction have been assailed on the following grounds:
(i) The prosecution evidence, rejected as unreliable in respect of the other eight accused, could not have formed basis of conviction of the appellant.
(ii) Non-explanation of the injuries found on the person of the appellant was sufficient to conclude that the prosecution had not presented a true version of the occurrence.
(iii) Number and nature of injuries, sustained by the appellant, in conjunction with other evidence on record, probablised the plea of self-defence.
However, the learned Govt. Advocate, while making reference to the incriminating pieces of evidence, contended that the conviction was well-merited.
7. In order to appreciate the merits of the rival contentions in the right perspective, it is necessary to first advert to the medical evidence available on record.
8. Dr. Narendra Singh Obeja (P.W. 1) proved existence of injuries found on the bodies of Amar. Virendra and Bhagwan as well as those sustained by the appellant and co-accused Abdul Jameel. The respective injuries were described as under:
Injuries on the body of Amar (P.W. 3):
(i) Swelling on right little toe, tenderness present.
(ii) Abrasion lateral to right eye, linear 1" in length.
Injuries on the body of Virendra (P.W. 4):
(i) Abrasion on right thumb distal phalanx on the dorsal aspect, size 1/4" x 1/4". Swelling and tenderness present.
(ii) Abrasion on right knee, 1/4" x 1/4".
Injuries on the body of Bhagwan (P.W. 6):
(i) Incised wound on left side of chest, inter-post stage near sternum, oblique placed, size 1 1/4" x 1/4", bleeding present, margin clean cut.
(ii) Incised wound on left lateral to injury No. (i), size 1 1/2" x 1/4" x bleeding present oblique, margin clean cut.
(iii) Incised wound on left side of forehead transverse. Clean cut margin, size 1 1/2" x 1/4" x 1/4", bleeding present.
Injuries on the person of the appellant:
(i) Lacerated wound on left parietal region,
(ii) Swelling on right hand.
Injury on the person of co-accused Abdul Jameel:
Lacerated wound on scalp.
9. Surgical Specialist Dr. Gopal Krishna Shrivastava (P.W. 7) testified that the injury Nos. (i) and (ii) on Bhagwan's chest were grievous in nature and dangerous to life whereas the Radiologist Dr. Narendra Kumar Jain (P.W. 2) clearly admitted that bony injuries were found in the index and middle fingers of appellant's right hand.
10. Bhagwan (P.W. 6) reiterated the allegation, as recorded at his instance by ASI Antar Singh (P.W. 8) in the FIR (Exh. P-19), that it was the appellant who had dealt repeated blows with a gupti on his chest. Virendra (P.W. 4) and Amar (P.W. 3), though not able to particularize the blow, corroborated this fact that in a concerted attack, not only Bhagwan but they had also sustained injuries. However, none of the injured members of the police party came forward to explain as to how the abovementioned injuries were sustained by the appellant and Abdul Jameel. The commanding officer namely G.S. Kushwaha (P.W. 9) unequivocally admitted that he had not witnessed as to how the injuries found on the persons of Bhagwan, Amar and Virendra were caused. Although, he alleged that one of the members of the assembly namely Sheikh Jameel had dealt a sword blow on his neck yet, he could not identify the assailant amongst the accused in the dock. Moreover, statement made by the Constables Virendra (P.W. 4) and Amar (P.W. 3), that they were assaulted with lathis while saving Bhagwan from further attack, was not found acceptable. This apart, Bhagwan's assertion to the effect that co-accused Abdul Hamid and Altaf had inflicted blows with sword and pharsa on his forehead and right shoulder respectively was also disregarded. However, despite these inconsistencies and infirmities in the statements of the prosecution witnesses, the learned Trial Judge, in his endeavour to separate grain from the chaff, came to the conclusion that, in the light of evidence and surrounding circumstances, the appellant's role in causing both the incised injuries found on the Bhagwan's chest was proved beyond a reasonable doubt.
11. The maxim "falsus in-uno falsus in omnibus" has no application in our country. The fact that Bhagwan was disbelieved as against other co-accused namely Abdul Hamid and Altaf did not afford any reasonable ground to discard his evidence in its entirety. Learned Trial Judge, therefore, did not commit any illegality in holding that the appellant was the author of the incised wounds noticed on Bhagwan's chest. Still, he completely misdirected himself in ignoring the grievous injuries found on the person of the appellant as the obvious consequence of reaction to his aforesaid over act.
12. These injuries assumed importance in view of the admission made by Dy. S.P., G.S. Kushwaha (P.W. 9) that, acting upon the credible information that unlicensed arms were concealed in the houses of Mundipura, the police party had started search operation. According to him, when he reached near the house of Altaf, the persons assembled there, started shouting that the police officials were responsible for demolition of Babri Maszid and attacked the patrolling police force with deadly weapons like sword and gupti. Constable Amar Singh (P.W. 3) was also emphatic in stating that Bhagwan was assaulted at the time when the police personnel were about to conduct a raid in the house of Altaf.
13. Section 22 of the Arms Act, 1961 provides for search and seizure of arms or ammunition, concealed in a house or premises for any unlawful purpose. Accordingly, search for arms would be illegal if a Magistrate did not order it. Further, by virtue of Section 37 of the Act, the search shall be carried out in accordance with the corresponding provisions of the Code. There is nothing on record to suggest that the mandatory provisions of the Code pertaining to recording of belief before raiding the houses were complied with. This Court is not oblivious of the principle that protection, under Section 99 of the IPC, to a public servant extends even for acts which will not be strictly justified by law (See : Kanwar Singh v. Delhi Admn. ) yet, as indicated already, the act of raiding the residences of the appellant and other inmates of Mundipura, without recording the reason to believe that arms and ammunitions were hidden therein, was not justifiable. In other words, the search operation, being void, would not attract under Section 99 of the IPC.
14. Section 129 of the Code gives power to an officer-in-charge of police station, or in his absence, to any police officer not below the rank of Sub-Inspector to disperse an unlawful assembly by use of civil force. This provision is based on the principle of common law that the officers charged with maintenance of law and order can use only that much force as is necessary for disposal of an unlawful assembly and suppression of riot. As early as in 1893, Lord Bowen, in his report on Colliers's Strike and Riot, made the following recommendation:
The degree of force which may lawfully used in the suppression of an unlawful assembly depends upon the nature of such assembly, for the force used must always be moderated and proportioned to the circumstances of the case and to the end to be obtained.
(Quoted with approval in QE v. Subha Naik 1898 ILR 21 Mad 249)
15. The word 'curfew' has not been defined in the Code or any other Statute pertaining to public order. In the middle Ages, the word 'curfew' was used for a regulation causing a bell to be rung every evening at a certain time as a signal for people to cover fires, put out lights, and retire (Webster's New World Dictionary of the American Language). (In medieval Europe), in addition to the ringing of a bell at a fixed hour in the evening as a signal for covering or extinguishing fires, it also concluded:
(i) An order establishing a specific time in the evening after which certain regulations apply, as that no children may still be outdoors.
(ii) A signal, usually made with a bell, announcing the start of the time of restrictions under the curfew.
(iii) The time of sounding a curfew. (Webster's Encylopaedic Unabridged Dictionary of English Language).
16. Thus, in essence, curfew means the practice of ringing an evening (Shorter Oxford English Dictionary). Accordingly, the mere imposition of a curfew in a disturbed area by the District Magistrate would not clothe the police officer, authorised under Section 129 of the Code, with any extra statutory power.
17. Non-explanation of injuries sustained by the appellant entitled him to take the plea of private defence. It is well settled that, even if the accused does not plead self-defence, it is open to Court to consider such a plea if the same could arise from the evidence and material on record. The plea of self-defence cannot be discarded merely on the ground that it was not specifically taken by the accused in his statement under Section 313 of the Code (Kashiram v. State of M.P. AIR 2001 SC 2902 referred to). The burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea. In the cross-examination of the prosecution witnesses or by adducing defence evidence. (Salim Ziya v. State of U.P. AIR 1979 SC 391 relied on).
18. Right of private defence cannot be weighed in golden scales in an oft-quoted axiom. (Amjad Khun v. Stale of M.P. referred to). Since the appellant had no intention to kill Bhagwan, his act amounted to an offence under Section 308 whereas the injuries sustained by him had made the police officials liable for the offence under Section 325 of the IPC. Thus, on facts also, it is not possible to conclude that the right of private defence had been exceeded.
19. In this view of the matter, the convicting the appellant for inflicting the injuries, found on the body of Bhagwan, is not sustainable in law as he was also entitled to act in exercise of right of private defence of body as well as that of property.
20. Accordingly, the appeal is allowed and the impugned conviction and consequent sentence passed against the appellant are hereby set aside.
Appellant Wahid Khan is on bail. His bail bonds shall stand discharged.