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Madhya Pradesh High Court · body

2007 DIGILAW 949 (MP)

Naimuddin v. State of M. P.

2007-08-31

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2007
JUDGMENT Kulshreshtha, J. -- 1. The above appellants have filed separate appeals against their conviction vide judgment dated 22.8.2005 passed by the learned IV Additional Sessions Judge, Indore in Sessions Trial No.153/ 2003 convicting the appellant Naimuddin under section 302 and section 307 on two counts and appellants Ziyauddin and Riyazuddin under section 302 and 307 (on two counts) read with section 109 of the IPC and sentence' of imprisonment for life and Rs.500/- under section 302 IPC and seven years on each count under section 307 and fine ofRs.250/- while Ziyauddin and Riyazuddin have been sentenced to imprisonment for life under section 302/109 and fine of Rs.500/- seven years rigorous imprisonment on each count under section 307 of the IPC and fine of Rs.250/- each. 2. The facts of the case lie in a narrow compass. According to the prosecution, on 18.3.2002 at about 7:30 p.m. Ashok Bhavsar had come to the square in Marathi Mohalla where he met Prakash Kadam. He inquired from Prakash Kadam where he was going but at that time there occurred a quarrel between the children of the locality and persons from the surrounding area collected there. Accused Ziyauddin and Riyazuddin were standing behind their house. Resenting that there was a quarrel but the persons who had gathered there were not taking any steps to quell it, accused Ziyauddin and Riyazuddin asked Naimuddin to bring a gun and to finish them. Upon this exhortation, accused Naimuddin came out with a gun in his gallery and aiming the gun at deceased Prakash and the other witnesses present near the place of occurrence, he fired several times. As a result of the firing of the gun, the bullet struck deceased Prakash 1,1/2" above his left eye brow. Naimuddin continued firing the gun which resulted in injury to Dinkar Rao PW7 and Chhatar Singh PW14. The fire of the gun caused affray and people started running helter-skelter. 3. The report (Ex.P-14) of the incident was lodged by PW10 Ashok Bhavsar which was recorded by Sub-Inspector Suryanath Singh Yadav. After recording of the FIR, EX.P-24 R.C. Pathak, Town Inspector commenced investigation and proceeded to the spot along with other police personnel. When he reached the spot, he noticed that a large number of persons had gathered there and Prakash Kadam was lying on the 'Otla' of Yogesh Najan with bleeding injuries in his head. After recording of the FIR, EX.P-24 R.C. Pathak, Town Inspector commenced investigation and proceeded to the spot along with other police personnel. When he reached the spot, he noticed that a large number of persons had gathered there and Prakash Kadam was lying on the 'Otla' of Yogesh Najan with bleeding injuries in his head. He was sent in the police van to hospital along with his wife PW11 Smt. Asha and other persons from the locality. On account of the incident, tension mounted and the place had to be cordoned to protect the spot. Information was sent to the police control room and senior officers of the police also arrived. At the instance of Ashok Bhavsar, Spot Map EX.D-2 was prepared, SHO R.C. Pathak also took samples of the blood stained and control earth and then proceeded to the gallery from where the weapon had been fired and collected five empty shells of .22 bullets from there and seized them vide EX.P-23. 4. On receipt of the information that Prakash Kadam had• succumbed to his injuries and his dead body was brought by his wife Asha and Jagdish, a case of unnatural death under section 174 of the CrPC was registered and inquest was held by the SHO of which Memo EX.P-6 was prepared. PW 13 Constable No .2945 was called to take photographs of the spot and the place where the deceased was lying. Other photographs were also taken. After preparation of the Inquest Memo Ex.P-6, the dead body was sent to the hospital for post-mortem examination. It was identified by the Nephew of the deceased before the Autopsy Surgeon. After conducting the Autopsy Report EX.P-30 was sent by him. 5. As per the testimony of Dr. K.K. Saxena PW23 and his report Ex.P30, the following injury was found on the body of the deceased: 1) Gun shot wound oval size 1/2"x1l4" with crushed edges inside of fore head 1-112" above left eye-brow with brain material coming out. 2) Abrasion left elbow 3/4"x 112" red in colour. According to the opinion of the Autopsy Surgeon, the death occurred on account of Coma resulting from the gun shot injury. 6. The witnesses PW7 Dinkar Rao and PW14 Chhatar Singh were also sent for medical examination and their MLC reports were sent by Dr. Goyal PW15. 2) Abrasion left elbow 3/4"x 112" red in colour. According to the opinion of the Autopsy Surgeon, the death occurred on account of Coma resulting from the gun shot injury. 6. The witnesses PW7 Dinkar Rao and PW14 Chhatar Singh were also sent for medical examination and their MLC reports were sent by Dr. Goyal PW15. He noticed the following injury on the body of Chhatar Singh: 1) One lacerated wound size l" x 1/4" x skin thickness on right side of forehead. 2) One haemotama size 1-II2"x 1-1/2" near first injury, These injuries have been caused by hard and blunt object. According to Ex.P-20, Dinkar Rao PW7 had the following injuries: 1) Laceration size 1/4"x 1/4" x 1/4" on right hip and complained of pain in left leg. This injury has been caused by hard and blunt object and the patient was referred to Orthopedic Surgeon for needful. 7. PW3 Constable Manish Prasad Pandey received the clothes of the deceased from the hospital and seized them vide Ex.P-3. Clothes of Dinkar Rao were also seized vide Panchnama Ex.P-33. Naimuddin was arrested on 19.3.2003 vide Panchanama Ex.P-21, Riyazuddin vide Panchnama Ex.P-31 and Ziyauddin vide Panchnama Ex.P-32. On the basis of the disclosure made by Naimuddin on 30.3.2003, the weapon used in the commission of the offence was seized vide Memo Ex.P-25. The weapon was seized along with magazine and the licence produced by this accused. 8. The articles seized were sent to the Forensic Science Laboratory for analysis for which report Ex.P-40 was received from the Laboratory, with regard to the examination of the blood stained clothes and Report Ex.P-43 in respect of the bullet. The examination by the Ballistic Expert is Report Ex.P-45. After further investigation, the accused persons were prosecuted for offences under section 302, 307/34, 109 of the IPC. On charges being framed against the appellants, they denied having committed any offence and demanded a trial. On trial, however, the learned Additional, Sessions Judge found the appellants guilty and convicted and sentenced them as hereinabove stated. Against the said conviction and sentence, the above appeals have been filed. 9. Insofar as the death of Prakash is concerned, the learned counsel appearing for the appellants have not disputed the same. On trial, however, the learned Additional, Sessions Judge found the appellants guilty and convicted and sentenced them as hereinabove stated. Against the said conviction and sentence, the above appeals have been filed. 9. Insofar as the death of Prakash is concerned, the learned counsel appearing for the appellants have not disputed the same. Even otherwise it is clear, that after he died an inquest was held by PW24 R.C. Pathak, Investigating Officer and thereafter his body was sent for post-mortem to the hospital where Autopsy was performed by Dr. KK Saxena about which he gave Report Ex.P-30. The witnesses had also deposed to the said fact and there can, therefore, be no doubt that death of deceased Prakash was homicidal. Even in relation to the injuries sustained by PW7 Dinkar Rao and PW14 Chhatar Singh, the evidence of PW15 Dr. Gopal Goyal proves the fact and this fact is further strengthened by the testimony of PW21 Dr. R.S. Raikwar who treated Dinkar Rao after he had sustained the injury. PW7 Dinkar Rao has also admitted this fact though Chhatar Singh PW14 has not supported the prosecution. From the evidence referred to above, we are satisfied that injuries were received by PW7 Dinkar Rao and PW 14 Chhatar Singh in the very incident in which the death of Prakash had occurred on account of gun shot injury. 10. Learned counsel for the appellant Naimuddin has vehemently urged that the evidence of the eye-witness PW7 Dinkar Rao and the other eyewitnesses who have pointed out that Nairn had recklessly fired at the mob is contradicted by the fact that in the Spot Map EX.D-2 and the Patwari Map Ex.P-26, there was obstruction of a gallery of the neighboring building between the gallery from which the gun was allegedly fired and the target which was aimed. Under these circumstances, contends the learned senior counsel, Naimuddin could not have shot either the deceasd or caused injuries to the witnesses PW7 and PW14. Reference has also been made to the documents from EX.D-l to D-7 to buttress the said argument about the impossibility of the act having taken place in the manner described by the prosecution. 11. Learned senior counsel Shri S.K. Vyas, has submitted that Ziyauddin and Riyazuddin have been stated to have exhorted the appellant Naimuddin. Reference has also been made to the documents from EX.D-l to D-7 to buttress the said argument about the impossibility of the act having taken place in the manner described by the prosecution. 11. Learned senior counsel Shri S.K. Vyas, has submitted that Ziyauddin and Riyazuddin have been stated to have exhorted the appellant Naimuddin. It is for this reason that they have been convicted for the offences allegedly committed by Naimuddin with the aid of section 109 of the IPC. His contention is that apart from PW9 Gopal, none has stated anything to implicate these appellants on the ground that they had exhorted the deceased to bring the weapon and to shoot the person who were trying to be merely spectators of the fight which had taken place between the children of the locality. Learned counsel submits that evidence of exhortation is weak and when the evidence itself is feeble and not supported by the persons who had stated the said fact to the Investigating Officer it becomes hazardous to found conviction on such shaky evidence. He has also submitted that it has duly been brought on record that some of the children who were fighting with others, were the children of these appellants and, therefore, it is inconceivable that these appellants would exhort or incite Naimuddin, son of the appellant Ziyauddin and nephew of appellant Riyazuddin, to fire at the mob at the peril of causing injury to their own children. 12. Shri Desai, learned Deputy Advocate General, per contra, contends that insofar as Naimuddin is concerned, a large number of witnesses had deposed against him and PW9 Gopal has also referred to the exhortation of the other appellants in pursuance whereof Naimuddin brought his rifle and shot at the people gathered there. He has further referred to the medical evidence which conforms and corroborates the oral testimony and also the steps taken during investigation. 13. We have heard the learned counsel for the parties and perused the record. 14. The prosecution has examined, in all 24 witnesses out of which PW5 Raghunath Rao Shinde, PW6 Bala Saheb, PW7 Dinkar Rao, PW8 Jagdish Bhavsar, PW9 Gopal, PW 10 Ashok Bhavsar, PW12 Lalit Thomre, PW14 Chhatar Singh and PW22 Yogesh were examined for ocular testimony. 13. We have heard the learned counsel for the parties and perused the record. 14. The prosecution has examined, in all 24 witnesses out of which PW5 Raghunath Rao Shinde, PW6 Bala Saheb, PW7 Dinkar Rao, PW8 Jagdish Bhavsar, PW9 Gopal, PW 10 Ashok Bhavsar, PW12 Lalit Thomre, PW14 Chhatar Singh and PW22 Yogesh were examined for ocular testimony. PW5 Raghunath Rao Shinde has not supported the prosecution and has merely stated that he had heard the sound of gun fire, PW6 Bala Saheb has completely turned hostile and has not said anything in favour of the prosecution, PW7 Dinkar Rao who was himself injured as per MLC Report EX.P-20 has only implicated Naimuddin and not the other appellants, PW8 Jagdish Bhavsar has not supported the prosecution at all and has stated that he had learnt that gun was fired, PW9 Gopal has given a vivid account of the incident referring also to the exhortation given by Ziyauddin and Riyazuddin in pursuance whereof the appellant Naimuddin had brought the gun and fired at the mob, PW 10 Ashok Bhavsar who lodged FIR EX.P-4 has only spoken against Naimuddin, PW 12 Lalit Thomre has also deposed against Naimuddin and has been declared hostile in respect to the complicity of accused Ziyauddin and Riyazuddin, PW 14 Chhatar Singh although injured, has turned turtle and not supported the prosecution evidence, PW22 Yogesh has only named Nairn but not implicated the other two appellants. 15. The formal evidence comprises the evidence of PW16 Rakesh and PW17 Pushpendra Singh who have, both, not supported the prosecution story with regard to the disclosure and seizure of the offending weapon. PW11 Smt. Asha wife of the deceased who stated that she had heard about the incident, PW 13 Kamal Chand who had taken photographs, PW18 Hariom Dubey, Patwari, prepared Spot Map Ex.P-26 and PW19 Mithalal who deposed to the arm licence of appellant Naimuddin. 16. In the above frame work of the prosecution evidence, star witness of the prosecution is PW9 Gopal. We may reiterate that Gopal is the only witness who has referred to the evidence of exhortation on the basis whereof the appellants Ziyauddin and Riyazuddin have been convicted. Testimony of Gopal indicates that on the date of the incident, at about 7 or 7:30 p.m., in the courtyard of Marathi Mohalla, a quarrel took place between the children who were playing cricket. Testimony of Gopal indicates that on the date of the incident, at about 7 or 7:30 p.m., in the courtyard of Marathi Mohalla, a quarrel took place between the children who were playing cricket. Hearing the commotion, appellant Ziyauddin and Riyazuddin came out to see from the gallery. They got enraged on account of the said quarrel and abusing and stating that persons gathered there were amusing themselves on account of the quarrel, and were not taking steps to stop the brawl, called Nairn and Ziyauddin told Nairn to bring gun from inside and when he came out, Nairn shot at the mob and killed one or two persons. About 4 to 5 rounds were fired and when he came out he saw that Kamal had been shot dead and Dinkar Rao and Chhatar Singh had sustained injuries. There is not even a whisper withregard to the participation or exhortation having been made by Riyazuddin. PW7 Dinkar Rao is an injured witness but he does not refer to any exhortation having been given by Ziyazuddin or Riyazuddin. The other injured witness is Chhatar Singh but Chhatar Singh PW14 has not supported the prosecution case at all and has been declared hostile. His injury does not appear to have been caused by a bullet. Nothing could be elicited in his cross-examination to further the case of the prosecution. PW10 speaks about the role played by Naimuddin and so is the case with the testimony of PW12 Lalit Thomre and PW22 Yogesh. 17. In view of the above testimony of the prosecution witnesses, we may now briefly examine as to whether the appellants Ziyauddin and Riyazuddin could have been convicted for abetment on the ground that Ziyauddin had exhorted Naimuddin to bring the rifle and also to shoot the persons. Riyazuddin has not at all been implicated by PW9 Gopal nor by any other witness in respect of the allegation that he had also exhorted the accused Nairn to bring the gun and fire the same at the crowd. Even otherwise, it is inconceivable that both of them would exhort a unison and it is for this reason that PW9 Gopal has modulated the story and stated that only Ziyauddin, father of the appellant Naimuddin, had exhorted the principal accused. 18. Even otherwise, it is inconceivable that both of them would exhort a unison and it is for this reason that PW9 Gopal has modulated the story and stated that only Ziyauddin, father of the appellant Naimuddin, had exhorted the principal accused. 18. It is trite that evidence of exhortation is a weak piece of evidence and only if the prosecution leads satisfactory evidence and there are corroborative circumstances that such an evidence can be acted upon. In the present case only PW9 Gopal has stated that Ziyauddin had exhorted in departure from the prosecution story that both Ziyauddin and Riyazuddin had exhorted the deceased with the result the incident occurred. In lainul Haque v. State of Bihar [ AIR 1974 SC 45 ], the Supreme Court has ruled that the evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect is clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. 19. A large number of witnesses including PW7 Dinkar Rao, injured in the incident apparently because he must be in the close vicinity of the area, has not attributed any exhortation to any of the appellants Ziyauddin and Riyazuddin. PW14 Chhatar Singh who was injured and whose presence at the time of the incident cannot be doubted, has not supported the prosecution story while PW22 Yogesh though implicates Nairn, but not the other appellants. In lag Narain Prasad v. The State of Bihar [1998(2) Crimes 250 (SC)], the apex Court has observed that where the exact evidence of exhortation is not available and the witnesses have made improvement, possibility of false implication is not ruled out. The relevant discussion contained in paragraph 7 of the report reads as extracted below: "7. All these aspects have not been considered by the High Court. We are of the view that the prosecution has not proved beyond reasonable doubt that the appellant had exhorted his son to kill Prabhakar and therefore the High Court was not right in confirming the conviction of the appellant. All these aspects have not been considered by the High Court. We are of the view that the prosecution has not proved beyond reasonable doubt that the appellant had exhorted his son to kill Prabhakar and therefore the High Court was not right in confirming the conviction of the appellant. We, therefore, allow this appeal, set aside the judgment and order passed by the High Court and acquit the appellant of the charge levelled against him. His bail bonds are ordered to be discharged." 20. We have already observed that only one witness PW9 Gopal, and that too in departure from his earlier stance, has attributed exhortation to Ziyauddin. Under these circumstances, there is no evidence at all against Riyazuddin and, therefore, Riyazuddin could not have been convicted by the Court below with the aid of section 109 of the IPC. Coming to the case of Ziyauddin, Ziyauddin could also not have been convicted on the basis of the testimony of PW9 Gopal. The learned Additional Sessions Judge has apparently not taken into account that all persons who were cited as eye-witnesses except PW9 Gopal, to unfold the ocular testimony in respect of the prosecution case have not stated a word about Ziyauddin having exhorted the principal accused. Under these circumstances, and in view of the above quoted decisions, it will be hazardous to sustain the conviction of appellant Riyazuddin also. 21. This takes us to the case of the principal accused Naimuddin. From the evidence which has come on record, it cannot be doubted that Nairn fired a gun and such a weapon was also seized at his instance of which he was holder of an arm licence. The ocular testimony of PW9 Gopal, PW7 Dinkar Rao, PW10 Ashok Bhavsar, PW12 Lalit Thomre, PW22 Yogesh clearly implicates the said appellant. It is stated by the witnesses that Naimuddin had brought the gun and thereafter fired at the mob with the result Prakash died and Dinkar Rao and Chhatar Singh received injuries. The ocular testimony of PW9 Gopal, PW7 Dinkar Rao, PW10 Ashok Bhavsar, PW12 Lalit Thomre, PW22 Yogesh clearly implicates the said appellant. It is stated by the witnesses that Naimuddin had brought the gun and thereafter fired at the mob with the result Prakash died and Dinkar Rao and Chhatar Singh received injuries. Learned counsel for the appellant Ziyauddin has made two fold submissions: (1) it was not possible to fire from the gallery of the house of the accused at the deceased or the witnesses on account of the obstruction of vision due to the gallery of the house of Shri Shinde He has further submitted that since the medical evidence has not been forthcoming with regard to the evidence of bullet being that of 22 rifle, the appellant Ziyauddin could not have been convicted. In this connection the learned counsel has invited attention to the Spot Map D-2 prepared by PW24 R.C. Pathak and Ex.P-26 prepared by Patwari. He has also taken us to the documents marked as EX.D-l to EX.D-7 to buttress his argument. 22. Coming to the first limb of the argument of the learned senior counsel for appellant Ziyauddin, we proceed to examine EX.P-26 prepared by the Patwari. Though it is stated that just the corner of the house of Laxman Shinde touches the trajectory where from accused has been shown to have fired, the Photographs Ex. D-l, D-2 and D-3 indicate that the gallery end of Laxman Shinde is of wooden grill in which the portion above the grill is completely open. Thus, even if we believe that the gallery of Shinde causes obstruction, it does not prevent to the bullet being fired from the rifle through the substantial aperture between the grill and the space on top. The map prepared by PW24 Investigating Officer, EX.D-2 also makes it apparent that the object that was aimed was in direct trajectory of the fire and, therefore, the statement that the view was obstructed, is illusory. We have also been taken through the site map prepared by the defence EX.D-7 and though the yellow line shows that there is obstruction between the object and the place from which the gun was fired, we have already alluded to the fact that there was a grill in the gallery from which a person could easily aim and fire a shot. People have seen Naimuddin firing the rifle and the consequences that entailed and, therefore, there is no room for speculation that the rifle was not fired by Naimuddin as it was impossible to see the target. The defence documents viz. D-l, D-2 and D3 do not demolish the case of the prosecution. 23. We may however, record that PW14 Chhatar Singh though injured has not supported the prosecution and has turned hostile though he speaks of some injury over his head, he does not state as to how he sustained that injury. Apart from PW9 Gopal, none has supported the fact that Chhatar Singh was injured. Even otherwise his injury does not appear to be a gun shot injury. 24. Since Chhatar Singh has not stated that he was injured on account of the fire from the rifle by appellant Naimuddin, conviction of Nairn uddin under section 307 IPC also for the injuries sustained by Chhatar Singh cannot be sustained. 25. Learned counsel has also submitted that since there was no ill will and the incident had taken place suddenly in which the bullet was fired, the offence would be of the description punishable under section 304 of the IPC. While it is true that nothing has been brought out to show that there was enmity between the accused Naimuddin and Prakash who was shot or the witnesses, the act was so imminently dangerous that it would, in all probability, cause death or such bodily injury as is likely to cause death. Clause fourthly of section 300 reads as under: Fourthly -- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 26. It cannot be denied that the accused Nairn had fired at the mob and his act was so imminently dangerous that it was bound to cause death. In fact, death was caused and two persons were also hurt. Under these circumstances, it cannot be said that even on the basis of the prosecution case, appellant Naimuddin could not be held guilty of having committed culpable homicide not amounting to murder. 27. In the result, Criminal Appeal No.967/2007 (Naimuddin s/o Ziyauddin v. State of M.P.) is partly allowed. In fact, death was caused and two persons were also hurt. Under these circumstances, it cannot be said that even on the basis of the prosecution case, appellant Naimuddin could not be held guilty of having committed culpable homicide not amounting to murder. 27. In the result, Criminal Appeal No.967/2007 (Naimuddin s/o Ziyauddin v. State of M.P.) is partly allowed. While his conviction for offence under section 302 and for attempting at the life of PW7 Dinkar Rao is maintained along with the sentence of imprisonment for life for the former offence and rigorous imprisonment for seven years for the latter conviction for attempting at the life of PW 14 Chhatar Singh is set aside. 28. Criminal Appeal No.940/2005 (Ziyauddin v. State of M.P.) is allowed. The conviction of the appellant under section 302/109 and 307 IPC (two counts)/109 and the sentence awarded there under is set aside and he is acquitted of the charges against him. Ziyauddin is in jail undergoing sentence. He be forthwith released, if not required in connection with any other matter. 29. Criminal Appeal No.949/2005 (Md. Riyazuddin s/o Azizuddin v. State of M.P.) is allowed. Conviction of Riyazuddin under section 3021 109 and section 307 (two counts)/l09 is set aside and he is acquitted of the charges against him. Riyazuddin is on bail. His bail bond shall stand discharged. 30. All the above appeals are thus, disposed of.