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Madhya Pradesh High Court · body

2007 DIGILAW 729 (MP)

Sultan Shah Lala v. State of M. P.

2007-07-16

S.K.KULSHRESTHA, S.S.DWIVEDI

body2007
JUDGMENT Kulshrestha, J. -- 1. This judgment shall govern the disposal of the above appeals and revision, as Appeal No.79/1996 has been filed by the convicted appellants against the judgment 14.12.1995 of the learned V Additional Sessions Judge, Ujjain, in Sessions Trial No.220/1987 by which the appellant No.1 Sultan Shah Lala and No.3 Sarvar Lala (since deceased), have been convicted for an offence punishable under section 326 of the Indian Penal Code while the other appellants have been convicted of the said offence read with section 149 thereof. Each of the appellants has been sentenced to 10 years rigorous imprisonment and Rs.2,000/- fine, in default of payment of fine, to undergo further simple imprisonment for three months; and, also u/s 148 of the IPC and sentenced to 3 years and fine of Rs.l,000/-, Criminal Appeal No.153/1996 has been filed by the State against the acquittal of the respondents therein for offence u/s 302 of the IPC for which also, the accused persons were tried. Criminal Revision No. 122/1996 has been filed by the accused against the acquittal of the complainants in the cross case. 2. Before adverting to the facts of the case, since we find that the criminal revision against the acquittal for offences u/s 147,323 and 149 has been filed in relation to the cross case, at this distance of time, instead of considering the said revision on merits and considering that the offences for which the complainant party in the present case, were tried were trivial, we deem it proper to dismiss the said revision. The learned counsel also does not press the same. This judgment shall, therefore, govern the disposal of Criminal Appeal No.79/1996 and Criminal Appeal No. 153/1996. 3. As observed above, the appellants in Criminal Appeal No.79/1996 were tried for offences u/s 148 and 302/149 of the IPC and, in the alternative, u/s 302/149 of the IPC. According to the prosecution, on 13.8.1987, at about 9:15 a.m. while Abdul Rehman (PW15) was going with his father Mohammad Shaft on foot, accused Sultan Lala arrived on a scooter and obstructed the way of the deceased and Abdul Rehman (PW 15). Accused Sultan Lala then asked Mohammad Shaft as to why he was trying to get his gambling house closed by reporting the matter to the police and started abusing him. A crowd gathered in which Nizamuddin Mistry, Rahim Pahalvan and Ibrahim Lala were also present. Accused Sultan Lala then asked Mohammad Shaft as to why he was trying to get his gambling house closed by reporting the matter to the police and started abusing him. A crowd gathered in which Nizamuddin Mistry, Rahim Pahalvan and Ibrahim Lala were also present. It is stated that in front of these persons, accused Sultan Lala assaulted deceased Mohammad Shaft in his abdomen by a gupti and thereafter, he was joined by the other accused. Accused Sarvar Lala (since deceased) was also wedding a gupti with which he stabbed the deceased in his abdomen. The other accused had come armed with iron pipes with which they assaulted Mohammad Shaft. 4. The injured was rushed to the hospital and report (Ex.P-21) of the incident, was lodged by Abdul Rehman (PW 15). On the basis of the said report. Crime No.332/1987 was registered and the investigation commenced. During investigation, on 15.8.1987, spot map of the place of the incident was prepared. The accused were taken into custody and iron pipes and 'guptis' were recovered from them at their instance. The injured was shifted to Choitram Hospital, Indore, in view of his deteriorating condition. However, he died on 26.8.1987 in the said hospital and his body was forwarded to M.Y. Hospital for post-mortem. Autopsy was conducted by Dr. Ravindra Chaudhary (PW23) who gave report EX.P-9. Prior to the autopsy, while the deceased was alive, he was first seen by Dr. Surendra Dubey (PW8) who gave report EX.P-10. In EX.P-10, he recorded a lacerated wound irregular in shape 1-1/2" x 1/4" x bone deep over parietal region with swelling present. He also noticed a stab wound with clean cut margins in the left hypocondis region of the abdomen from which omentum had come out. Another stab wound was present on the lumber region of abdomen measuring 1" x 1/4" x 1/4" x deep to be measured by CSO. Since these wounds had been stitched, they were so recorded in EX.P-29. In the opinion of Dr. Ravindra Chaudhary (PW23), deceased Mohammad Shaft died of coma and septicaemia. 5. In further investigation, the blood stained clothes were seized and they were sent to the Forensic Science Laboratory for examination. After completion of the investigation, the charge-sheet was filed and on the case being committed to the Court of Sessions, charges were framed u/Ss 148,302 and 302/149 of the IPC. 6. 5. In further investigation, the blood stained clothes were seized and they were sent to the Forensic Science Laboratory for examination. After completion of the investigation, the charge-sheet was filed and on the case being committed to the Court of Sessions, charges were framed u/Ss 148,302 and 302/149 of the IPC. 6. The accused denied having committed any offence and pleaded that it was on account of old enmity that they had been falsely implicated. It was also stated that Mohammad Shafi was having political rivalry while accused Sultan Lala pleaded that while he was going on Scooter, he was stopped by deceased Mohammad Shafi, Nizamuddin Mistry, Mohammad Ibraim, Haidarshah and Rahim Pahalvan. Mohammad Shafi then started assaulting him with a stick, his son started assaulting him with a pipe and, therefore, he rushed to the police station and lodged report against the complainant party on the basis whereof a case was registered against the complainant side. Accused Sultan Lala also took the same defence and stated that deceased Mohammad Shafi and his son were annoyed because of his political influence. The trial Court, however, while acquitting the accused persons of charges u/s 302 of the IPC and section 302/149 thereof, convicted the appellants (in Criminal Appeal No.79/1996) of the offences as hereinabove stated. It is against this conviction and sentence that the appellants have filed this appeal while the State has filed Criminal Appeal No.153/1996 against the acquittal of the appellants of the charge u/Ss 302,302/149 of the IPC. 7. Learned counsel for the accused submits that the case of the prosecution is replete with improbabilities and inconsistencies and there are documents that discredit the version of the solitary eye-witness Abdul Rehman (PW 15) and, therefore, the appellants deserve to be acquitted. He has further referred to FIR (Ex.P-25) to show that in as the history of the case given by Afzal, Afzal had stated that the deceased had been assaulted by some miscreants which demolises the prosecution's versin that it were the appellants who had caused the injury to the deceased to which he had succumbed. He has further referred to FIR (Ex.P-25) to show that in as the history of the case given by Afzal, Afzal had stated that the deceased had been assaulted by some miscreants which demolises the prosecution's versin that it were the appellants who had caused the injury to the deceased to which he had succumbed. He has further pointed out that insofar as eyewitnesses Nizamuddin (PWI6), Naseem Khan (PW18), Abdul Hamid Quereshi (PW 19) and Mohammad Ibrahim (PW20) are concerned, the trial Court has discarded the testimony of Naseem Khan (PW 18) and Abdul Hamid Qureshi (PW19) as they were examined by the police u/s 161 of CrPC, after a month of the incident. The learned counsel, therefore, submits that since the evidence of Nizamuddin (PW16) and Mohammad Ibrahim (PW20) suffers from the same vice, their testimony also deserves to be discarded. It has also been urged that since Abdul Rehman (PW 18) has admitted that he had seen Afzal and Afzal had taken his father in a Jeep to the hospital for treatment, it is inconceivable that Abdul Rehman would not disclose the details of the incident to Afzal and in this context if the recital in FIR (Ex.P-25) is noticed, it becomes apparent that Afzal did not know as to who the miscreants were and it was for this reason that in the history recorded in Ex.P-10 it was stated that he was assaulted by antisocial elements in front of the temple. Some other irregularities have also been pointed out to show that the prosecution has modulated its case and the witnesses have prevaricated. 8. Learned counsel for the State, Mr. Girish Desai, Deputy Advocate General, has pointed out that apart from five eye-witnesses, there is clinching medical evidence and the prompt report (Ex.P-25), lends assurance to the fact that Abdul Rehman (PW 15) has unfolded the case of the prosecution immediately after the incident which rules out any scope for embellishment or concoction. 9. We have heard to learned counsel for the parties and perused the record. 10. Though the prosecution examined as many as 26 witnesses, the ocular account of the incident was unfolded by Abdul Rehman (PW 15), Nizamuddin (PW16), Naseem Khan (PW18), Abdul Hamid Quereshi (PW19) and Mohammad Ibrahim (PW20). 9. We have heard to learned counsel for the parties and perused the record. 10. Though the prosecution examined as many as 26 witnesses, the ocular account of the incident was unfolded by Abdul Rehman (PW 15), Nizamuddin (PW16), Naseem Khan (PW18), Abdul Hamid Quereshi (PW19) and Mohammad Ibrahim (PW20). We may also reiterate that insofar as Naseem Khan (PW18) and Abdul Hamid Quereshi (PW19) are concerned, their testimony has not been acted upon by the trial Court as their statements were recorded after a month. Learned counsel has submitted that since the evidence of Nizamuddin (PW 16) and Mohammad Ibrahim (PW20) also suffers from the same vice, their evidence should also be rejected. In respect of Nizamuddin (PW 16) and Mohammad Ibrahim (PW20), we may record that their names figure in the FIR and omission of the investigating agency to record their statements immediately cast a doubt on its truthfulness. We are conscious of the fact that if there is delay in recording the statements of eye-witnesses and the delay is sufficiently explained, the truthfulness of the witness cannot be doubted. However, in the present case, no explanation has been offered for recording the statements on 10.9.1987 while the incident dates back to 13.8.1987. We are, therefore, in complete agreement with the learned counsel for the accused-appellants that testimony of Nizamuddin (PW16) and Mohammad Ibrahim (PW20) cannot be readily accepted. We are, however, of the view that on account of the delayed recording of the evidence of these witnesses, their evidence needs closer scrutiny. 11. Before we advert to the evidence of the prosecution and the ocular account rendered by the eye-witnesses, we may record that immediately after the incident at 10: 15, FIR (Ex.D-6) was lodged by Sultan Shah stating that the appellants were the assailants and the injuries had been caused to him. He was sent for medical examination and his injuries were recorded by Dr. Mahendra Kumar Jain (DW 4) in document Ex. D-71. According to the testimony of Dr. Mahendra Kumar Jain, there was swelling on the back of his neck, he had swelling measuring 1/2" x 1/2" on the right side of the face, there was swelling on his chin, swelling on the right side of neck of the size 3" x 1" and swelling on the left shoulder of the size 1" x 1". Mahendra Kumar Jain, there was swelling on the back of his neck, he had swelling measuring 1/2" x 1/2" on the right side of the face, there was swelling on his chin, swelling on the right side of neck of the size 3" x 1" and swelling on the left shoulder of the size 1" x 1". We are constrained to observe that altough the injuries of Sultan Shah Lala s/o Badshah Khan were simple and most insignificant, the Investigating Officer, chose to register a case vide Ex.D-6, u/s 307 of the IPC and other offences. Neither the medical report of the said accused nor the recital in the FIR justified registration of an offence u/s 307 and, therefore, we consider it proper to examine the investigation conducted by the police in the backdrop of the facts that police acted with partiality towards the accused persons. The reason for delayed examination of some of the witnesses can be ascribed to the apathy of the police and the manner in which the police has favoured the accused persons. 12. Be that as it may, since evidence of Nasim Khan (PW18) and Abdul Hamid Quereshi (PW 19) has not been acted upon by the trial Court and Nizamuddin (PW16) and Mohammad Ibrahim (PW20), though named, have been examined after a month or so, we proceed to first consider the evidence of Abdul Rehman (PW15), on the basis whereof the conviction has been founded by the trial Court. Abdul Rehman (PW 15) is the son of the deceased and according to his sttement he was present at the time of the incident. This fact is disputed by the learned counsel for the accused on the ground that this FIR (Ex.P-25) has been brought into being afterwards and the testimony of Abdul Rehman cannot, therefore, be said to find corroboration from the FIR. To buttress this argument, learned counsel has invited attention to Ex.D-6, report lodged by accused Sultan Lala at 10: 15. A specific question was asked as to whether Abdul Rehman (PW15) who stated to have stayed in the police station for quite some time, had seen Sultan Lala which he denied. To buttress this argument, learned counsel has invited attention to Ex.D-6, report lodged by accused Sultan Lala at 10: 15. A specific question was asked as to whether Abdul Rehman (PW15) who stated to have stayed in the police station for quite some time, had seen Sultan Lala which he denied. Learned counsel submits that if the FIR had been lodged at 10:00 a.m., as projected by the prosecution, there was no reason why the witness Abdul Rehman (PW15) would not see Sultan Lala who lodged the FIR at 10: 15 on the same day. There is nothing in the testimony of Abdul Rehman (PW15) to show that he was sitting at a place in the police station from where the place where Sultan Lala was present, was visible. We are, therefore, of the view that on the basis of the submission made, it cannot be said that the FIR is a document which has been ante-timed. 13. Learned counsel has further submitted that Abdul Rehman (PW 15) had admitted that while he was about to proceed towards the police station, his brother Afzal had arrived. Learned counsel, therefore, submits that it is inconceivable that if Afzal had arrived on the spot, the witness Abdul Rehman, his brother, would not fill him with the information with regard to the commission of offence and the latter would state in Ex.P-10 that some miscreants had stabbed his father. In his testimony, Abdul Rehman has stated that immediately after the incident, both his brothers, Afzal Khan and Rafique Khan, had arrived and taken his father to the hospital and he had proceeded to Mahankal Police Station to make a report where he lodged FIR (Ex.P-5). If one sees a person in the pool of blood, the anxiety of all concerned is to first make available to him the medical aid to ensure that his condition does not deteriorate further. As per the medical evidence, it is clear that the deceased had sustained two incised wounds in his abdomen and one lacerated wound over his head and in that precarious condition of his health, if Afzal proceeded to the hospital to ensure earliest medical aid to his father, without wasting his time to discuss the matter with Abdul Rehman (PW15), no abnormality can be attached to such a conduct. As a matter of fact, the conduct of Abdul Rehman (PW15) and of his brother Afzal was quite natural. The criticism of the learned senior counsel for the appellants that Abdul Rehman has stated in EX.P-10, while giving history of the case, that the deceased was attacked by miscreants and, therefore, the FIR is false, also does not convince us. It is clear that Afzal did not waste any time to apprise his brother of the incident and since he had taken his father for treatment and it was imperative for him to narrate the history, unwittingly he had mentioned that it was the work of miscreants. We may also record that no steps were taken by the defence to call Afzal u/s 311 of CrPC as a Court witness and to confront him with the recital in the said document. This technicality apart, even if it is taken that the document favouring the accused can be considered when it is the document on which the prosecution is placing reliance, we have already observed ~hat since Afzal did not know anything about the incident, the testimony of Abdul Rehman (PW15) cannot be discredited with the statement of Afzal to the Doctor who recorded Ex.P-10. 14. Afzal has stated that on 13.8.1987 at about 9:15 a.m., while his father Mohammad Shafi was crossing the Iron Bridge and he had taken him with him stating that they would soon return, as they reached ButkeshwarTemple and took a turn, accused Sultan Lala came from behind and stopped the Scooter in front of them. Sultan Lala then asked him as to why he was making report' against his gambling house. Thereafter he abused him and took out a gupti, from under the matting of the Scooter and stabbed him in the abdomen. Just then Sarvar Lala, Rashid Lala, Rashid, Wahid Lala, Mehmood Lala, Yusuf Lala, Amanulla, Balam, Salam, Hela Mohammad Jaan Lala arrived. Sarvar Lala was armed with a gupti with which he stabbed the deceased in the stomach. Sarvar Lala was also armed with a Revolver and accused Balam and Amanulla had iron pipes " with which they started assaulting his father. We may pause here to refer to Ex.P-10, the first MLC of the deceased. In this MLC, the Doctor has mentioned that the deceased had only one lacerated wound and two stab wounds. Sarvar Lala was also armed with a Revolver and accused Balam and Amanulla had iron pipes " with which they started assaulting his father. We may pause here to refer to Ex.P-10, the first MLC of the deceased. In this MLC, the Doctor has mentioned that the deceased had only one lacerated wound and two stab wounds. We are, therefore, unable to appreciate the testimony of Abdul Rehman (PW 15) when he ascribes assault to Balam and Amanulla over the head of the deceased. This situation is also confirmed by the statement of Nizamuddin (PWI6) who says that the assault with pipe was made by Balam and Amanulla; Wahid Lala (PW20) states that the assault was made by Balam and Amanulla. It is, therefore, not possible to attribute this injury to either Balam or Amanulla as the statement of the prosecution witnesses in respect of the two, is false. We may further point out that insofar as the incident is concerned, the act of Sultan Lal in coming to the place on a scooter and taking out a gupti from the matting was an individual act and it does not appeal to us that every person who came later armed with iron rods participated in the incident. If such a large number of persons had participated in the incident, the victim would have sustained a large number of injuries referable to the use of hard and blunt weapon while as per Ex.P-10, only one lacerated wound was found and it is difficult to ascribe the same to either Balam or Amanulla. However, insofar as the act of Sarvar Lala is concerned, it is clear that he had also stabbed the deceased with a gupti in his abdomen and this fact finds corroboration from the medical evidence. Appellant Sarvar Lala has died during pendency of this appeal and, therefore, sofar as Sarvar Lala is concerned, this appeal and the State Appeal both abate. 15. We may also record that according to the learned senior counsel, the carbon copy of the FIR that was sent to the Magistrate in accordance with the requirement of section 157 of the CrPC, did not contain the name of Rashid, which, according to the learned counsel, impinges the sanctity of the FIR. We have already adverted t6 the statement of Abdul Rehman (PW15) and the FIR recorded at his instance. We have already adverted t6 the statement of Abdul Rehman (PW15) and the FIR recorded at his instance. It is not the case of the defence that it was on account of some interpolation attributable to Abdul Rehman (PW 15) that the said name was inserted in the FIR. We are, therefore, of the view that the testimony of Abdul Rehman (PW 15) does not suffer from any infirmity though the learned counsel submits that bereft of the testimony of other eye-witnesses Nizamuddin (PW16), Nasim Khan (PW18), Abdul Hamid Quereshi (PW19) and Mohammad Ibrahim (PW20), his testimony cannot be said to be of sterling quality. 16. We may add that If specific acts had not been imputed to appellants other than appellants No.1 and 3, their constructive liability could have been examined but when their alleged participation is found to be demonstrably false on account of the injury sustained by the deceased, they cannot be held liable for the alleged commission of the offence. 17. We are, therefore, of the considered view that appellant No.2 Mehmood Shah Lala, appellant No.4 Abdul Salim s/o Abdul Sattar, appellant No.5 Mohammad Yusuf s/o Abdul Hamid, appellant No.6 Saiduddin s/o Fariduddin and appellant No.7 Amanullah Khan, deserve to be acquitted. Accordingly, their conviction and sentence passed against them is set aside and they are set at liberty. 18. This takes us to the case of appellant No.1 Sultan Shah Lala who had stabbed the deceased in the abdomen. Deceased was also stabbed by Sarvar Lala s/o Badshah Khan, but since he has expired during the pendency of this appeal, this appeal has abated in his case. We have, therefore, to consider the case of appellant No.1 Sultan Shah Lala only. 19. Learned counsel submits that it is not clear from the evidence of Dr. Surendra Dube (PW8) and Dr. Ravindra Chaudhary (PW23) as to which of the two injuries in the stomach turned out to be fatal. This apart, the post-mortem report indicates that the deceased died of coma and septicaemia. The death took place after 13 days of the incident. The trial Court, therefore, especially in view of the testimony of Dr. Surendra Dube (PW8) that the injury was dangerous to life, took the view that the offence would fall under the description of offence punishable u/s 326 of the IPC and not u/s 302. The death took place after 13 days of the incident. The trial Court, therefore, especially in view of the testimony of Dr. Surendra Dube (PW8) that the injury was dangerous to life, took the view that the offence would fall under the description of offence punishable u/s 326 of the IPC and not u/s 302. The appellant has also been convicted u/s 148 of the IPC, but on account of our finding and the acquittal of the other accused persons, the conviction u/s 148 and the sentence awarded thereunder, does not survive. The deceased was aged 85 years and the testimony of Dr. Chandrashekhar Chimaniya (PW22) indicates that it was on account of the problem in the respiratory organs and frequent cough that the deceased died of pneumonitis and failure of breathing. Though in any other case in similar circumstances, where the death had not been on account of the old age and the other associated problem, we would have appreciated the stand of the State that acquittal u/s 302 was not sustainable, looking to the peculiar features of this case and the facts and circumstances alluded to above, we find that for the said solitary act of stabbing the deceased by a gupti, the appellant No.1 has been rightly held guilty u/s 326 of the IPC. 20. Learned counsel for the appellant (accused) submits that a compromise has already been filed in the present case by the complainant and other persons which is on record. In view of the decision in Ram Pujan v. State of Uttar Pradesh [ AIR 1973 SC 2418 ], Tarak Nath Singh v. State of West Bengal [(1998)1 CCR 136 (SC)], and the decision in Bankat and another v. State of Maharashtra [2005(I) MPWN 80= (2005)1 SCC 343 ], since the appellant has already undergone six months imprisonment, he may be released on the period already undergone. We are conscious that the compromise even in non-compoundable cases serves as a mitigating and extenuating circumstance. This case dates back 13.8.1987 and the appellant No.1 is on bail and at this distance of time, after two decades, it would be harsh to send him back to jail. Under these circumstances, and in view of the compromise, we are of the opinion that the accused should be sentenced to the imprisonment already undergone and substantial fine. 21. This case dates back 13.8.1987 and the appellant No.1 is on bail and at this distance of time, after two decades, it would be harsh to send him back to jail. Under these circumstances, and in view of the compromise, we are of the opinion that the accused should be sentenced to the imprisonment already undergone and substantial fine. 21. Accordingly, the appellant No.1 Sultan Shah Lala is though acquitted of the charge u/s 148 of the IPC and sentence of 3 years awarded to him thereunder, is set aside, his conviction u/s 326 of the IPC is maintained, but his sentence is reduced to the period already undergone and fine of Rs.20,000/- (Rs. Twenty thousand). He is granted a month's time to deposit the fine, failing which he shall have to undergo rigorous imprisonment for one year. All other appellants are acquitted. Accordingly, Criminal Appeal No.79/1996 is partly allowed, Criminal Appeal No.153/ 1996 filed by the State is dismissed, and Criminal Revision No. 122/1996 is dismissed for the reasons stated hereinabove and as the accused do not want to press the same in view of the compromise.