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Madhya Pradesh High Court · body

2007 DIGILAW 845 (MP)

Babloo v. State Of M. P.

2007-08-06

ARUN MISHRA, K.S.CHAUHAN

body2007
JUDGMENT : ARUN MISHRA, J. The appeal has been preferred by the appellant Babloo aggrieved by his conviction under section 302 of Indian Penal Code and sentence of rigorous imprisonment for life imposed by First Additional Sessions Judge Chhatarpur in S.T. No. 123/94 as per judgment dated 12-3-1998. 2. Prosecution case in short is that on 2-5-1994 an altercation took place in the noon between Riyaz Baksh @ Munna Khan and accused Babloo, the report of the same (P-13) was lodged by Maiyadeen (PW-12), thereafter the deceased Munna Khan was going on a scooter driven by Bobby Ahuja, Munna was sitting in the middle and Shekhar Nai was also on the scooter. Mohd. Muin (PW-1) had also followed them, he was relative of the deceased, when they reached near house of Lakhan Nai, they met with Babloo. Babloo and Munna scuffled, Mohd. Muin and Shekhar intervened, in the course of scuffling Babloo took out a big needle and inflicted two blows on the chest of Munna Khan and ran away. Munna Khan was taken to the hospital by Bobby, Shekhar Nai and Muin where he was declared dead. Munna Khan died as a result of the injuries inflicted by the accused. Dehati-nalishi was drawn, that was taken from hospital by Laxmi Prasad (PW.5) to the police station, on that crime was registered and the FIR was reduced in writing. Seizure of big needle was made at the instance of Munna, seizure memo (P-3) was drawn in the presence of Mohd. Muin (PW-7), accused was charged for committing the offence under section 302 of Indian Penal Code. 3. The accused abjured the guilt and contended that he was innocent and had been falsely implicated in the case. 4. The prosecution has examined in all 14 witnesses. No witness in defence has been examined. Aggrieved by the conviction and sentence imposed by the Trial Court, this appeal has been preferred by the accused Babloo. 5. Shri Alok Tapikar, learned counsel appearing for the accused appellant has submitted that it is a case where appellant was not aggressor. It appears from the statement of Mohd. No witness in defence has been examined. Aggrieved by the conviction and sentence imposed by the Trial Court, this appeal has been preferred by the accused Babloo. 5. Shri Alok Tapikar, learned counsel appearing for the accused appellant has submitted that it is a case where appellant was not aggressor. It appears from the statement of Mohd. Muin (PW-1) that in order to take revenge of the altercation that had taken place on the same day, accused Babloo was chased by the deceased and his companions and when accused was going away on seeing them, the scooter on which deceased was travelling was stopped, Munna Khan got down and other companions also followed him. In the circumstances of the case there was right of private defence of person available with the appellant. Alternatively he has submitted that it was due to sudden provocation that injuries were inflicted by the accused as an effort was made to surround him by the deceased and his companions, thus it was the case falling under exception to section 300 not punishable under section 302 and conviction could have been recorded under section 304 Part I or II of Indian Penal Code. He has also submitted that in their statement other eye witnesses Shekhar Nai (PW-9) and Bobby (PW-10) did not support the prosecution case. Even the report of Serological examination has not been filed as such the corroborating evidence was also missing. In the facts and circumstances of the case accused be acquitted or alternatively his conviction be converted under section 304 of Indian Penal Code as accused has undergone the sentence of more than 12 years, he was arrested on 2-5-1994, consequently appellant be released. 6. Shri S. K. Rai, learned Govt. Advocate has submitted that in the noon also the altercation had taken place between the deceased Munna and accused Babloo of which report (P-13) was lodged which was recorded in general diary, thereafter, when deceased Munna was going back he was again attacked by the accused Babloo and with a big needle on the vital part of the body i.e. chest, two injuries were inflicted by the accused. Injuries were sufficient in ordinary course of nature to cause death, consequently conviction of appellant under section 302 of Indian Penal Code was proper. There was nothing to disbelieve version of Mohd. Muin (PW-1). Injuries were sufficient in ordinary course of nature to cause death, consequently conviction of appellant under section 302 of Indian Penal Code was proper. There was nothing to disbelieve version of Mohd. Muin (PW-1). Thus no case for interference in the appeal was made out. 7. In the instant case prosecution has examined three eye witnesses Mohd. Muin (PW-1), Shekhar Nai (PW-9) and Bobby Ahuja (PW-10). Mohd Saeed (PW-2) and Mohd. Dawood (PW-3) are the witnesses of inquest. Lakshmi Prasad (PW-5), Constable took Dehati-Nalishi from the hospital to the police station, on that case was registered by G.L.Tiwari (PW-8) and FIR was reduced in writing. Gajraj Singh Patel (PW-6) was examined to prove the spot map. So as to prove seizure of big needle Ayub Khan (PW-7) had been examined. Gajraj Singh (PW-11) Constable took the body to the hospital and brought back to the clothes of the deceased after post-mortem was performed by Dr. Hari Agrawal (PW-14). Beside P. L. Ahirwar (PW-13) Investigating Officer, had also been examined on behalf of prosecution. 8. First coming to the ocular evidence and circumstances leading to the incident. It is not in dispute that in the noon altercation had taken place between deceased Munna and accused Babloo on the date of incident itself of which the report was lodged by deceased Munna, it was recorded in the general diary (P-13) at 4:25 PM on 2-5-1997 by Maiyadeen (PW-12). It was recorded in the general diary that when deceased was sitting in the Watch Repairing Shop, accused was also sitting in the shop of General Stores of Kanhaiya since Babloo was the driver of shop keeper, Babloo was drunk and had abused brother in law of Munna, on that Munna intervened, accused also hurled abuse to him and brought lathi and caused injury on the elbow of right hand. When accused Babloo ran towards him with knife he ran away and went to the police station and lodged report (P-13). It was found to be a case of non-cognizable nature, it was mentioned in general diary that there was no visible injury on the right elbow of Munna. It appears that thereafter, deceased Munna was going on the scooter along with two other companions, driven by Bobby (PW-10), Munna was sitting in the middle and Shekhar Nai (PW-9) was also the pillion rider. The story as unfolded by Mohd. It appears that thereafter, deceased Munna was going on the scooter along with two other companions, driven by Bobby (PW-10), Munna was sitting in the middle and Shekhar Nai (PW-9) was also the pillion rider. The story as unfolded by Mohd. Muin (PW-1) the complainant who lodged dehati-nalishi on the basis of which FIR had been recorded by the police. In dehati nalishi it was mentioned that he came to know that there was altercation between deceased Munna and accused Babloo, while he was sitting he saw Bobby, Shekhar Nai and deceased Munna going on the scooter, he also followed them, when they reached near the house of Lakhan Nai, Babloo came there and started scuffling with Munna, however, in the statement recorded in the Court Mohd. Muin (PW-1) has given a different version. He has clearly stated in Para -6 of cross-examination that Shekhar asked Munna to stop the scooter as accused Babloo was standing. In Para - 7 he has further deposed that as soon as Babloo saw that Munna, Shekhar Nai and Bobby came on the scooter, he approached towards narrow lane, he was followed by deceased, Munna, Shekhar Nai and others. Then deceased Munna and Shekhar Nai asked the accused to stop and talk with them, there apart scuffle took place between the deceased and accused and in the course of scuffling accused inflicted two blows with the help of a big needle on the chest of Munna. Men may lie but circumstances do not, it was clear from the circumstances projected by this witness that it was not the intention of accused Babloo to quarrel with deceased Munna, Shekhar etc., he wanted to escape into a narrow lane and he has proceeded towards the same but the scooter on which deceased Munna, Shekhar Nai and Bobby were travelling was stopped, Mohd. Muin (PW-1) was also following them, it appears that all of them had followed the accused and when he wanted to escape asked him to stop. It appears that they wanted to take the revenge of the incident that had taken place in the earlier hours of the day and wanted to teach a lesson to accused Babloo. It was on sudden provocation that accused had inflicted two blows with big needle on the chest of Munna resulting in his death. It appears that they wanted to take the revenge of the incident that had taken place in the earlier hours of the day and wanted to teach a lesson to accused Babloo. It was on sudden provocation that accused had inflicted two blows with big needle on the chest of Munna resulting in his death. Two other eye witnesses namely Shekhar Nai (PW-9) and Bobby (PW-10) did not support the prosecution case, they had been declared hostile, thus prosecution was left with the aforesaid version of Mohd. Muin (PW-1) and we are of the considered opinion in view of his statement that it was not the case of murder punishable under section 302 of Indian Penal Code. The case falls under Exception (1) of section 300 of Indian Penal Code, thus it was punishable under section 304 Part I of Indian Penal Code. 9. When we consider seizure, its memo that has been proved by Ayub Khan (PW-7), spot map has been proved by Gajraj Singh Patel (PW-6), Maiyadeen (PW-12) has proved the report (P-13) recorded in general diary which was lodged by deceased Munna, Inquest has been proved by Mohd. Saeed (PW-2) and Mohd. Dawood (PW-3). Statement of Maqbool Baksh is of no value as he has not witnessed the incident he was informed later on. Lakshmi Prasad (PW-5) took dehati-nalishi to the police station. FIR was proved by G. L. Tiwari (PW- 8). Other part of investigation has been proved by P. L. Ahirwar (PW-13), Investigating Officer. In the facts and circumstances of the case not filing of the report of FSL could not be said to be causing dent in the prosecution case with respect to the aforesaid offence committed by the accused. 10. Consequently, we acquit the appellant for commission of offence under section 302 of Indian Penal Code and convict him under section 304 (I) and sentence him for a period already undergone. The accused be set at liberty in case he is not required in any other offence. 11. Resultantly, the appeal is allowed in part to the aforesaid extent.