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2003 DIGILAW 1335 (MP)

State of M. P. v. Mohammed Javed

2003-12-09

RAJEEV GUPTA, S.L.JAIN

body2003
JUDGMENT Gupta, J. -- Appellant State has preferred this appeal against the· impugned judgment dated 21.7.1988, passed by Vth Additional Sessions Judge, Bhopal in Sessions Trial No. 145/87, whereby respondent accused Mohammed Javed was acquitted of the charge under section 302, of the Indian Penal Code. Police Talaiya, Bhopal after completing the investigation of the case registered at Crime No. 310/87, charge-sheeted respondent accused Mohammed Javed for the alleged commission of the offence punishable under section 302, of the IPC. Respondent accused Mohammed Javed was alleged to have committed murder of one Mohammed Sharief by causing injuries on him by means of a knife, at about 10.00 a.m., on 8.7.1987. Respondent accused Mohammed Javed abjured his guilt and pleaded false implication to the charge framed by the trial Court under section 302 of the IPC. At the trial, the above charge was sought to be proved against accused Mohammed Javed on the evidence of PW 1 Bindeshwari Prasad, PW 2 Hoob Narayan, PW 3 Abid Hussain, PW 4 Mohammed Yakub, PW 5 Dr. R.K. Singh, PW 6 Laxman Singh Thakur, PW 7 Prabhu Dayal, PW 8 Talib Hussain, PW 9 Zahoor Mian, PW 10 Lakhpat Singh, PW 11 S.J. Jeffrin, PW 12 Amla Singh and PW 13 Dr. B.K. Tiwari. Respondent accused Mohammed Javed did not examine any witness in his defence. The trial Court, on the ocular and medical evidence led by the prosecution at the trial, found it proved that deceased Mohammed Sharief sustained as many as 12 external injuries on 8.7.1987, and died a homicidal death on account of those injuries. The trial Court, on a close scrutiny of the evidence led by the prosecution at the trial, found that the evidence of the prosecution witnesses suffered from serious infirmities and as such could not be acted upon. The trial Court, therefore, recorded the impugned judgment of acquittal of respondent accused Mohammed Javed of the charge under section 302, of the IPC. Shri G.S. Ahluwalia, the learned Dy. Advocate General, vehemently argued that the trial Court has erred in discarding the evidence of the prosecution witnesses on flimsy and untenable grounds. The facts that deceased Mohammed Sharief sustained as many as 12 external injuries on 8.7.1987 and died a homicidal death on account of those injuries were neither disputed by the defence before the trial Court nor are under challenge before us, in this appeal. The facts that deceased Mohammed Sharief sustained as many as 12 external injuries on 8.7.1987 and died a homicidal death on account of those injuries were neither disputed by the defence before the trial Court nor are under challenge before us, in this appeal. That apart, there is overwhelming ocular and medical evidence to establish the above facts beyond any shadow of doubt. We, therefore, uphold the findings recorded by the trial Court in that behalf. There is no direct evidence so far as the actual killing of Mohammed Sharief is concerned. The charge of murder against the accused was sought to be proved mainly on the evidence of PW 8 Talib Hussain and PW 9 Zahoor Mian, who claim to have seen accused Mohammed Javed coming out of the room with a blood stained knife; where subsequently deceased Mohammed Sharief was found lying injured. The trial Court while considering the evidence of PW 8 Talib Hussain, in paras 14 to 16 of the judgment, observed that the evidence of this witness was full of improbabilities. Similarly, while considering the evidence of PW 9 Zahoor Mian, in paras 17 to 20 of the judgment, the trial Court took note of the fact that this witness on his own admission did not know the accused from before and he saw him for the first time on the date of the incident. Admittedly, no 'test identification parade' was held during the course of the investigation. The trial Court as such found it unsafe to act upon the 'dock identification' of accused Mohammed Javed, by this witness. The alleged seizure of knife (the alleged weapon of the offence) too was not found reliable for the reasons mentioned in para 18, of the judgment. We have perused the evidence led by the prosecution at the trial, in general, and that of PW 3 Abid Hussain, PW 8 Talib Hussain and PW 9 Zahoor Mian, in particular. On a close scrutiny of their evidence, we are satisfied that the infirmities pointed out by the trial Court are very much borne out from the evidence on record. PW 9 Zahoor Mian has categorically admitted in his cross-examination, that he did not know accused Mohammed Javed from before the incident and he saw him for the first time on the date of the incident itself. PW 9 Zahoor Mian has categorically admitted in his cross-examination, that he did not know accused Mohammed Javed from before the incident and he saw him for the first time on the date of the incident itself. Admittedly, no 'test identification parade' was held during the course of investigation for the identification of the accused by this witness. The alleged incident took place on 8.7.1987 and this witness was examined in the Court on 11.2.1988 i.e. after more than 6 months of the incident. In this view of the matter, no fault can be found with the approach of the trial Court in not acting upon the 'dock identification' of accused Mohammed Javed, by this witness. The remaining solitary evidence of PW 8 Talib Hussain also suffers from serious infirmities. At the first place, the narration of events by him is highly improbable. We further notice from the first medical certificate (Ex. P-17), of deceased Mohammed Sharief, that the body of the deceased was recovered near some Nadeem Press situated at Itwara. This document further makes it evident that at the time the body of the deceased was brought to the Hospital, even his name was not known to anyone. These disclpsures make the evidence of PW 8 Talib Hussain unreliable, for the simple reason that if PW 8 Talib Hussain had in fact witnessed the occurrence as alleged by him, there was no earthly reason as to why the name of the deceased was not disclosed to the Doctor when his body was taken to the Hospital. That apart, the admission of PW 3 Abid Hussain, in para 3 of his statement, that his brother PW 8 Talib Hussain immediately after the incident disclosed to him that some Parvez stabbed deceased Mohammed Sharief to death also makes the prosecution case against accused Mohammed Javed doubtful. The findings recorded by the trial Court leading to the acquittal of respondent accused Mohammed Javed are based Oil proper appreciation of the evidence led by the prosecution at the trial. The learned State Counsel could not point out any such piece of legal evidence which was not taken into consideration by the trial Court while recording the impugned judgment of acquittal. Mere possibility of another view on the prosecution evidence will not, by itself, be sufficient to warrant interference in an appeal against acquittal. The learned State Counsel could not point out any such piece of legal evidence which was not taken into consideration by the trial Court while recording the impugned judgment of acquittal. Mere possibility of another view on the prosecution evidence will not, by itself, be sufficient to warrant interference in an appeal against acquittal. In this view of the matter, we do not find scope for any interference. For the foregoing reasons, the appeal against acquittal fails and is hereby dismissed. The impugned judgment of acquittal of respondent accused Mohammed Javed of the charge under section 302, of the IPC, is hereby affirmed. Respondent accused Mohammed Javed is on bail. His bail bonds shall stand discharged.