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Madhya Pradesh High Court · body

2007 DIGILAW 886 (MP)

FAYYUM v. STATE OF M. P.

2007-08-14

S.K.KULSHRESTHA, W.A.SHAH

body2007
Judgment S.K.Kulshrestha, J. ( 1. ) This appeal is directed against the judgment dated 04.05.1998 of the learned 1st Additional Sessions Judge, Ujjain in Session Trial No. 148/1995 by which while acquitting co-accused Ayub Khan, Sadik, Rashid and Mannan Khan, the appellants have been convicted for an offence punishable under Section 302 of the Indian Penal Code read with Section 34 thereof and each has been I sentenced to imprisonment for life. ( 2. ) Before the trial Court it was alleged that the appellants had formed an unlawful assembly and in furtherance of their common object they had caused death of Hayat Khan on 13.07.1994. The prosecution case, in brief, is that on 13.07.1994 at about 01.00 p.m. Hasmat Khan (PW-I) was sitting on the OTLA of Ratanlal opposite his house and his son Hayat was coming from the market. He informed his father that Sadik has brought him from the house of Jalil. At that point of time, accused Chhote Khan, Mansoor, Fayyum Khan, Rashid, Sadik and others arrived with various weapons including a country made pistol with few. Immediately thereafter accused Fayyum fired a shot at Hayat which caused injury in his abdomen. He thereafter exhorted others not to leave him alive and that he will take care of the consequences. Rashid and Sadik thereupon, caught hold of Hayat Khan and Fayyum, Mansoor and Chhotu assaulted him with knives causing injuries in his hand, chest and nose. Hayat fell down unconscious and accused persons fled away. At that time, Hasmats son Jakir (PW-2), Habib Shah (PW-4) and Pyara @ Shakil (PW-11) were present. On hearing the commotion, Hasmat as also Dinesh (PW-9), Ashok, Azad and Anil arrived and took Hayat on a handcart. On way, however, Hayat succumbed to the injuries caused to him and was taken to the hospital. PW-1 Hasmat Khan then proceeded to the Police Station where he lodged report Ex.P/1. On receiving the said report, PW-14 SHO K..N. Sharma proceeded towards the hospital and summoned the witnesses to hold inquest. He prepared inquest report Ex.P/3 and under requisition Ex.P/5 requested doctor for autopsy of the deceased. ( 3. ) Autopsy was performed by PW-10 Dr. Shashikant Joshi who gave his report Ex.P/5 A. In the said report, he noticed the following external injuries on the body: - (1) Incised wound on right palm below right thumb. He prepared inquest report Ex.P/3 and under requisition Ex.P/5 requested doctor for autopsy of the deceased. ( 3. ) Autopsy was performed by PW-10 Dr. Shashikant Joshi who gave his report Ex.P/5 A. In the said report, he noticed the following external injuries on the body: - (1) Incised wound on right palm below right thumb. Size 4 cm x 2 cm x 1 cm. Clean cut edges. (2) Incised wound right side of upper lip 1/2 cm x 1/4 cm x 1/4 cm with clean cut edges, blood clots present. (3) Incised-cum-stab wound right side of chest front aspect, Size 1 1/2 cm x 1 cm x cavity deep. Situated 1 1/2 cm medial and downward to lipple. On further examination, the underlying tissue and muscles were clearly cut and on further exploration, the right lower lobe were also cut. (4) Incised-cum-stab wound 3 cm x 1 1/2 cm x cavity deep with clean cut edges on front of left side of chest in the 4th intercostal space obliquely placed directed downwards, inwards and centerlly. On further examination, underlying tissue, muscles were clearly cut. On further dissection, the underlying left lung and right and left atrur of heart were clearly cut. On further examination, the pericordig cavity and pleural cavity contains, about 650 cc of blood with hard blood clots. (5) Multiple abrasions of varying size 1/2 cm x 1/2 cm, 1/2 cm x 1/4 cm, mostly circular and about the same size, scattered on front o right side of chest. Mid and lower zone and adjoining part of right Hypocondrium and epigastic of chest above the land of nipple directed upwards. Total 66 abrasions present. In the opinion of the autopsy surgeon, death occurred due to shock and haemorrhage as a result of injury to vital organs lung and heart. ( 4. ) The clothes of the deceased were sealed and the bundle was handed over to Constable Mansoor Alam who produced it before the Head Constable Salim Beig (PW-5) who seized it vide memo Ex.P/6. Investigating Officer K.N. Sharma (PW-16) went to the spot and took samples of blood stained and control earth vide Ex.P/7. He also prepared spot map Ex.P/27 and informed Patwari to prepare site plan. Patwari Gangaram Parmar (PW-8) went to the spot and prepared the site plan Ex. P/19. Investigating Officer K.N. Sharma (PW-16) went to the spot and took samples of blood stained and control earth vide Ex.P/7. He also prepared spot map Ex.P/27 and informed Patwari to prepare site plan. Patwari Gangaram Parmar (PW-8) went to the spot and prepared the site plan Ex. P/19. Witnesses acquainted with the facts of the case were summoned and the statements were recorded. Accused persons were arrested vide memo Ex.P/8 to P/11 and on the information of the accused Fayyum, he made disclosure Ex. P/13 about the whereabout of 12 bole KATTA which was seized vide Ex. P/16. On a knife being produced by Chhotu, it was seized vide Ex. P/15. A country made pistol was sent to the Reserve Inspector where it was examined by PW-7 Madan Pal Singh who gave his report Ex.P/18. According to this report, the country pistol was found in working order but for ascertaining whether the said weapon had been fired, the weapon was sent to the Forensic Science Laboratory. The sanction from District Magistrate Ex.P/23 for prosecution under the provisions of the Arms Act was also obtained and after completion of the investigation, the accused were prosecuted. ( 5. ) On charges being framed against the accused persons they pleaded that they had been falsely implicated on account of the enmity and the witnesses have been procured to support a false case against them. However, they did not produce any evidence in their defence. Notwithstanding, the plea of the appellants, while acquitting four co-accused, appellants have been convicted for the offence punishable under Section 302/34 IPC and sentenced as herein above stated. ( 6. ) Learned senior counsel for the appellants has submitted that from the events referred to by the prosecution, it is transparent that the first information report Ex.P/1 was brought into being subsequently and antedated. To expatiate learned counsel has referred to documents in this behalf. On 13.07.1994 at 01.00 p.m. the incident is said to have taken place of which report was purportedly made at Police Station, Tarana at 01.18 p.m. Surprisingly, the postmortem as revealed by the PM report Ex.P/5A commenced at 01.20 p.m. The grievance of the learned counsel is that had it been that the FIR had been lodged at 01.18 p.m. it was humanly impossible to shift the body to the hospital and sent requisition for postmortem within two minutes. Learned counsel for the appellants also submitted that though the eye witnesses examined by the prosecution have contradicted inter se and their version is replete with improbabilities, with the result, the correct picture of the state of affairs has not emerged. ( 7. ) Learned Deputy Advocate General for the respondent/State has, however, maintained that since out of the five witnesses examined to unfold the ocular account of the incident, PW-1 Hasmat Khan and PW-3 Jakir have fully supported the prosecution case, coupled with the medical evidence and other circumstances on record with regard to the seized weapons from the, respective appellants, there is clinching evidence of the prosecution and the conviction and sentence passed against the appellants do not call for any interference. ( 8. ) We have heard learned counsel for the parties and perused the record. ( 9. ) The prosecution has examined: 14 witnesses in the case and out of these witnesses, six witnesses were offered as eye witnesses to the incident. PW-1 Hasmat Khan, father of the deceased who lodged FIR Ex.P/1 and PW-3 Jakir, brother of the deceased have given an occular account of the incident while PW-4 Habib Shah and PW-6 Rafique have only partly supported the case of the prosecution. PW-9 Dinesh though cited as an eye witness, has turned completely hostile....... ( 10. ) To appreciate the rival contentions, brief reference to the eye witnesses account would be necessary. PW-1 Hasmat Khar who lodged first information report Ex.P/1 has stated in his deposition that deceased Hayat was his son and about 7 years prior to the date of his deposition, in the afternoon he was sitting on the OTLA of Ratanlal. At that time, Sadik called his son and thereafter Sadik and Rashid caught hold of the hands of his son Hayat and Fayyum shot him with the KATTA with which he was armed. On account of that gun shot, Hayat fell down and he was then assaulted by Ghotiya and Mansoor with knives. Hayat sustained injuries in his chest and waist. When he rushed to the spot, assailants ran away and at that time his drivers son Azad arrived. Azad, Dinesh, Ashok and others took Hayat to the hospital while he went to the Police Station to lodge report. He has affirmed having lodged report Ex.P/1 and his signature thereon. Hayat sustained injuries in his chest and waist. When he rushed to the spot, assailants ran away and at that time his drivers son Azad arrived. Azad, Dinesh, Ashok and others took Hayat to the hospital while he went to the Police Station to lodge report. He has affirmed having lodged report Ex.P/1 and his signature thereon. He has submitted that before they could reach hospital, Hayat had a hiccup and died. ( 11. ) Learned counsel has referred to paragraph 6 of the testimony of PW-1 Hasmat Khan in which he has admitted that at the time of the incident, his son had not arrived. Jakir and Azad had only seen the accused persons running away. He has also stated that he did not Know who was the scribe of the report and the report was written down in the room of Head Constable. ( 12. ) On the basis of the above testimony of PW-1, learned senior counsel has pointed out that Jakir and Azad could not have been eye witnesses to the main incident as PW-1 has admitted that they had come later and had seen the accused fleeing. He has further pointed out that since the report was written in the room of the Head Constable, the statement of investigating officer PW-14 K.N. Sharma to the effect that he had recorded the First information report stands shattered. If the statement of this witness in paragraph 7 is examined in the correct perspective, it becomes obvious that he has merely admitted that report was written in the room of Head Constable. He has nowhere stated that Head Constable himself had recorded the first information report so as to contradict the statement of PW-14. K N Sharma. In this view of the matter, we are not impressed by the contention of the learned senior counsel that the prosecution evidence suffers from irreconcilable contradictions. ( 13. ) Coming to the statement of PW-3 Jakir, brother of the deceased, he has corroborated the main theme of the deposition of PW-I Hasmat Khan, his father. He has deposed that he was in the house and when he heard noise outside, he came out to see and found that Fayyum shot his brother Hayat, Ayub was exhorting others and Sadik and Rashid caught hold of the deceased while Mansoof and Chhotu stabbed him with their respective knives. ( 14. He has deposed that he was in the house and when he heard noise outside, he came out to see and found that Fayyum shot his brother Hayat, Ayub was exhorting others and Sadik and Rashid caught hold of the deceased while Mansoof and Chhotu stabbed him with their respective knives. ( 14. ) In the above context, we may also examine the testimony of PW-4 Habib Shah and PW-6 Rafique Khan who have partly supported the prosecution. PW-4 Habib Shah has deposed that while he was proceeding to MADARWADA at about 01.00 p.m. he saw Hayat going in that direction but he was stabbed. At that point of time, one bullet was fired but he could not see as to who was the miscreant. Since he did not refer to the overt act of the accused persons or their identity, he was declared hostile. PW-6 Rafique Khan has deposed that while he was going to bus stand he witnessed that Mansopr and Chhotu had caught hold of Hayat and were stabbing him with knives. He has clarified that Chhotu had caught hold of Hayat while Mansoor Khan had stabbed him with the knife and Fayyum had fired a shot which caused injury in his abdomen. He has clearly stated that apart from the three appellants, there v/as none on the spot. He is also a witness to the recovery of the weapons from the accused but since he did not support the recoveries, he was declared hostile and cross examined by the prosecution. ( 15. ) The story that emerges from the testimony of the above witnesses is that Fayyum had fired with the country pistol with which he was armed. To fathom the truth of the above story, other attending circumstances are also required to be considered. Immediately after the incident, postmortem was performed and in the postmortem though Dr. Shashikant Joshi (PW-10) has mentioned that there were multiple abrasions of various size 1/2 cm x 1/2 cm and 1/2 cm x 1/4 cm mostly circular and about same size. 66 in number, he could not say whether these were injuries caused by gun shot. As a matter of fact, he has admitted in no uncertain terms that the deceased Hayat had not sustained any gun shot injuries. 66 in number, he could not say whether these were injuries caused by gun shot. As a matter of fact, he has admitted in no uncertain terms that the deceased Hayat had not sustained any gun shot injuries. Though we have our reservations with regard to the injury No.5 found by the doctor, in view of the fact that PW-10 Dr. Shashikant Joshi has himself not accepted the prosecution story that there was gun shot injury, it cannot be said that appellant No. 1 Fayyum had fired from the KATTA and caused gun shot injury to the deceased. The above discrepancies apart, the weapon seized from Fayyurn was sent to the Reserve Inspector for examination and according to the evidence of PW-7 Madanpal Singh, Head Constable, the hammer and trigger of the weapon were in working order, which he reported vide Ex.P/18. The said weapon was forwarded to the Forensic Science Laboratory to ascertain whether the weapon had been fired. However, in the report of the FSL Ex.P/28, it is mentioned that the said country pistol had been sent to the ballistic expert of the laboratory. No report was received thereafter to show that the weapon had actually been fired, with the result, it cannot be said with any degree of certainty that the said weapon which was seized from appellant No. 1, had been fired at the time of the incident. We may also add that since no empty was found at the seen of occurrence, it was not possible for the laboratory to ascertain whether a particular Cartridge which resulted in injury to the deceased had been fired from the same weapon; as pin marks and breach marks were not available for comparison. Thus, if the evidence of PW-7 Madanpal Singh is believed, it merely proves that a weapon was seized from appellant No.1 Fayyum which was in working order. The weapon has not been in any manner connected with the crime. This apart, in view of the admission of PW-10 Dr. Shashikant Joshi. since firearm injury was not found on the body of the deceased, it cannot be said that appellant No.1 Fayyum fired any shot at the deceased which caused injury to him. ( 16. ) We are conscious of the fact that it is not necessary in a case which attracts constructive liability to prove the overt act of the accused persons. ( 16. ) We are conscious of the fact that it is not necessary in a case which attracts constructive liability to prove the overt act of the accused persons. But once the prosecution chooses to give particulars of the overt acts and said description is found demonstratively false, it makes it doubtful that the person was on the spot and had participated in the incident. It is, therefore, not akin to general participation where constructive liability would be attracted. Under these circumstances, appellant No. Fayyum s/o Ayub Khan deserve the benefit of doubt especially, when on all counts, medical evidence, evidence of the ballistic and the evidence of the eye witnesses, his participation is not made out. ( 17. ) As regards appellant No.2 Chhotu @ Maqsud s/o A. Manna Khan, while the evidence of PW-1 Hasmat Khan and PW-3 Jakir indicates that both of them had participated in the assault and each had caused injuries by means of a knife, the testimony of PW-6 Rafique to the extent that he supports the prosecution case contraindicates participation of Chhotu in-so-far as causing of injuries is concerned. Rafique has been declared hostile only as he has not supported the seizure and recovery of the weapon, but his initial testimony is in accordance with the version of the prosecution. PW-3 Jakir, according to the statement of his father, had arrived at a time when the accused persons were fleeing, therefore, much credence cannot be attached to his version as to the actual incident. It is, therefore, PW-1 Hasmat Khan alone who says that Chhotu had stabbed the deceased while PW-6 Rafique had ascribed the stabbing to appellant No. 3 Mansoor Khan and that appellant No.2 Chhotu had merely caught hold of the deceased. ( 18. ) Learned counsel for the respondent/State has pointed out that as many as 4 incised/stab injuries were found on the body of the deceased and, therefore, even if the role ascribed to Chhotu by Rafique (PW-6) is examined, since he continued to keep the deceased in his grip till four injuries were caused, it was apparent that he shared the same intention as appellant No.3 Mansoor and, therefore, sanctity of his conviction under Section 302/34 of the Indian Penal Code cannot be doubted. A reference to the evidence of PW-6 Rafique bears out that Chhotu had caught hold of the deceased and Mansoor had stabbed him. A reference to the evidence of PW-6 Rafique bears out that Chhotu had caught hold of the deceased and Mansoor had stabbed him. It does not, any way state that Chhotu was keeping hold of the deceased till all the injuries had been caus by Fayyum. Thus, it is doubtful that Chhotu had caught the deceased, pinned in his grip till Mansoor had caused him all the four injuries by means of a knife. Since in view of the testimony ot PW-6 Rafique Khan a doubt is created with regard to the statement ofPW-1 Hasmat Khan that both Chhotu and Mansoor had started stabbing his son Hayat, benefit of this doubt should accrue to the accused. Accordingly, in the absence of any evidence, that Chhotu was sharing the same intention of causing death of the deceased along with Mansoor Khan, Chhotu cannot be held liable under Section 302/34 of the Indian Penal Code. At the most, he must have expected that appellant No.3 Mansoor Khan may cause grievous injury to the deceased Hayat. Under these circumstances, Chhotu cannot be held guilty for an offence under Section 326/34 of the IPC only. ( 19. ) In the result, this appeal partly succeeds. While Fayyum s/o Ayub Khan is acquitted of the charge against him, conviction of Chhotu under Section 302/34 IPC and the sentence of imprisonment for life awarded to him are set aside. He is, in stead, convicted under Section 326 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years. The appeal of Mansoor Khan s/o A. Manna Khan (appellant No.3) is dismissed except that he is convicted under Section 302 of the IPC, simpliciter. The sentence awarded to him thereunder is maintained. The appellants are on bail. The bail bonds of appellant No. 1 Fayyum are discharged. Appellants No.2 and 3 are directed to surrender to their bail bonds to serve out the sentence awarded to them. Simultaneously, warrants of arrest be issued against appellants No.2 and 3 for sending them to jail to serve out the sentence awarded to them.