Gullu@Gul Mohammad@Salim vs The State Of Madhya Pradesh on 6 November, 2017

[Cites 8, Cited by 4]

Madhya Pradesh High Court

Gullu@Gul Mohammad@Salim vs The State Of Madhya Pradesh on 6 November, 2017

This appeal under Section 374(2) of Cr.P.C. has been preferred by the appellant/accused against the judgment and conviction dated 18.03.2016, passed by the Special Sessions Judge, Damoh in S.T. No. 269/1996, whereby appellant/accused has been convicted for commission of offences punishable under section 302 of IPC and sentenced to undergo imprisonment for life and fine of Rs.1,000/- with default stipulation.

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 -2 - Cr. A. No.1142/2016 incident Musu had married with accused Sukko Bai, against the consent of his brothers and family members. At the time of incident 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, deceased Akram arrived at village Chirai Chonch and went to the house of Akhtar Khan who was living in front of the house of Gallu. They inquired from him about Musu and Sukko Bai and thereafter they came in front of the house of Musu and called Musu out of house and asked him to go with them to their house. Musu came out of the house and following him appellant Gallu armed with knife, Sukko Bai armed with sward and other accused persons Hamid Khan, Sullu alias Sultan, Anwar Khan and Rahim Khan came there. When Musu refused to go with complainant Phool Khan, a heated talks and altercation took place between them. Meanwhile, accused Hamid, Sullu, Anwar, Sukko Bai and Rahim exhorted the appellant 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 accused persons and Gallu ran away from the spot. Akram was brought to District Hospital Damoh, where doctor declared him dead. An intimation of death of Gallu (Ex.P/6) was sent by doctor to Police Station Kotwali, Damoh, where police registered Marg intimation (Ex.P/11). Phool Khan lodged First Information Report at police out post Jabalpur Naka, Police Station, Damoh, Dehat. Sub Inspector B.S. Dhurve, registered Dehati Nalashi (Ex.P/1) and Dehati Marg Intimation (Ex.P/10) and initiated the inquest. SHO, Rakesh Bhatt (PW-16) Police Station Damoh, Dehat reached -3 - Cr. A. No.1142/2016 on the spot prepared spot map (Ex.P/14), seized plain earth and red earth by seizure memo (Ex.P/2) and prepared panchnama of dead body (Ex.P/4) 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. Appellant Gallu remained absconded during investigation, therefore, after usual investigation a charge sheet has been filed against the accused persons Hamid, Sukko Bai, Rahim, Sullu alias Sultan and Anwar before the Court. Appellant Gallu was arrested on 18.06.2012, thereafter the police has filed supplementary charge-sheet against him before the Court.

3. The trial Court has framed the charge of offence punishable under Section 148, 302/149, 324/149 (two counts) of IPC. The appellant abjured guilt and pleaded innocence. The prosecution has examined 17 witnesses where as the appellant has examined one witness in his 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 appellant Gallu had assaulted the deceased by knife and committed his murder and appellant Gallu had also inflicted simple injuries to witnesses Phool and Akhtar Khan. The trial Court has held the appellant guilty for commission of offence punishable under Section 302 of IPC and sentenced as mentioned hereinabove.

5. It is argued by the learned counsel for the appellant that from the evidence adduced by the prosecution it appears that at the time of incident the deceased Akram had -4 - Cr. A. No.1142/2016 a quarrel with his brother Musu (PW-2). Akram wanted to take Musu with him by force. When Musu denied to go with him, Akram and Mussu had a sudden fight in which Akram received injuries. Present appellant was neither the member of unlawful assembly nor he had assaulted the deceased. 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-1) 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 appellant 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/1) and Dehati Marg Intimation (Ex.P/10) were recorded by the police and inquest was conducted. The dead body was sent for postmortem.

8. Dr. Y.P. Patel (PW-17) 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.

-5 - Cr. A. No.1142/2016

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 19.5 cm and another incised wound on the heart size 2.5 cm. One transverse incised wound 4 X 1 cm over liver. Peritoneal wall was also cut. Liver was cut at front side.

9. It is opined by the doctor that cause of death was syncope (shock) due to injuries on heart and other parts of the body. The injuries are anti-mortem caused by hard and sharp object like knife and sword sufficient to cause death. In cross examination the testimony of Dr. Y.P. Patel remained unchallenged and duly supported by PM report (Ex.P/17). Thus, relying open 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 appellant Gallu had committed the murder of deceased. The -6 - Cr. A. No.1142/2016 prosecution had examined Phool Khan (PW-1), Musu (PW-2), Akhtar Khan (PW-3), Khalkul Bai (PW-6) as eye witnesses to the incident. Whereas, Aslam (PW-7), is the witness 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-2) is the brother of complainant of Phool Khan (PW-1) and deceased Akram. It is also not denied that the incident took place in front of the house of Gallu who is the brother of Sukko Bai. Complainant Phool Khan (PW-1) 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 present in the house of Gallu and they have come to take Musu home with them. Thereafter Akram called Musu from outside of house of Gallu. Musu came out of the house and when Akram told him to return home, appellant Gallu armed with knife, Sukko Bai armed with sword and other accused persons 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, there was a heated talk and altercation arose between Sukko Bai and deceased Akram. Meanwhile, accused Hamid Khan exhorted to kill Akram, than accused Gallu gave the blows of knife over chest, abdomen and hand of Akram and caused grievous injuries.

12. In cross-examination of above witnesses and also in accused statement under Section 313 of Cr.P.C. the appellant had admitted that at the time of incident deceased Akram and his brother Phool Khan came on the spot to take back -7 - Cr. A. No.1142/2016 Musu with them. Musu was staying in the house of Gallu with Sukko Bai. Musu told his brothers Akram and Phool Khan that he would not go with them, an altercation and quarrel took place between them and Musu had assaulted the deceased Akram. This shows that there was a quarrel in front of the house of appellant Gallu, during which the deceased had sustained injuries. Musu (PW-2) had denied this story of defense and categorically deposed in his statement that at the time of incident Gallu had inflicted blows of knife to deceased and caused fatal injuries.

13. Musu (PW-2) deposed that prior to the incident he was living with Sukko Bai in Katangi. A day prior to the incident he arrived in the house of Gallu and staying there. At the time of incident his brothers Akram and Akhtar called him out of house and asked him to go with them. They had objection against the relationship of Musu and Sukko Bai. When Musu was talking with his brothers Sukko Bai, appellant Gallu armed with knife and other family members arrived on the spot. Sukko Bai told the deceased that she would not allow Musu to go with them leaving her. A quarrel took place there and Gallu inflicted blows of knife and caused fatal injuries to deceased. In cross-examination Musu had not made any contradictory statement. Khalkul Bai (PW-6) had also deposed in the same manner.

14. Thus, the statement of Phool Khan (PW-2) is duly corroborated by Akhtar Khan (PW-3), Khalkul Bai (PW-6) and Musu (PW-7). The report of incident was lodged without any delay and in FIR (Ex.P/1) also it is mentioned that appellant had inflicted fatal injuries to deceased. It is also important to note that after the incident the appellant had absconded and -8 - Cr. A. No.1142/2016 after a gap of 10 years he was arrested by the police. The conduct of appellant also indicates about his culpability.

15. Although, the witnesses Phool Khan, Aktar Khan, Musu and Khalkul Bai are relatives but only on this ground alone their testimony cannot be discarded. It is settled law that merely because in a murder case, prosecution witnesses were interested and inimical, that by itself is no ground to reject their testimony in toto. The evidence of interested witnesses should however be scrutinised with care. Close relationship of the witness with the injured is not sufficient to suspect credibility and desirability subjecting the testimony of the evidence of the relatives to close and severe scrutiny arises only when it is shown that there was likelihood of an attempt to falsely implicate an accused but where the incident had taken place in the broad day-light and there was no reason to falsely implicate the accused, the testimony of the interested witness could not be brushed aside.

16. In the present case on careful reading of the statement of eye witnesses, in our considered opinion, that they are telling the truth about the incident wherein appellant Gallu had assaulted the deceased by knife and caused fatal injuries. The trial Court on proper appreciation of evidence has recorded the finding of guilt against the present appellant. Appellant has inflicted multiple injuries on vital part of person of body of deceased by knife and acted in crule manner. Deceased was not armed with any weapon. He came there only to take his brother Musu with him. Therefore, there is no provocation given by the deceased. Thus, the act of appellant clearly establishes that he had inflicted the injuries to deceased with intention and knowledge to kill him. Thus, the trial Court has rightly held -9 - Cr. A. No.1142/2016 the appellant guilty for commission of murder of deceased, which is punishable under Section 302 of IPC. The sentence is also awarded accordingly.

17. Thus, the appeal has no merits is hereby dismissed.

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

Vin**




        VINOD SHARMA
        2017.11.07 01:13:06
        -08'00'

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