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Madhya Pradesh High Court · body

2009 DIGILAW 526 (MP)

Ismile Khan v. State of M. P.

2009-04-21

M.P.NAMJOSHI, S.L.KOCHAR

body2009
JUDGMENT S.L. Kochar, J. 1. The Appellants have challenged their conviction, by filing this appeal, under Section 302/149 of the IPC and sentence of imprisonment for life and fine of Rs. 1,000/- each, in default of payment of fine additional RI for 1 year each and under Section 148 of the IPC RI for 2 years each and Appellants 2 Karamat and No. 5 Yunus have been convicted under Section 25(1)(2)(A) of the Arms Act and sentenced to RI for one year with fine of Rs. 1,000/- each in default of payment of fine 3 months additional RI each vide judgment passed by learned First Additional Sessions judge, Ujjain in Sessions Trial No. 183/1998. 2. The factual matrix of the prosecution case as placed before the trial Court is that PW4 Aashik was the Sarpanch of Village Umariya. On 15.5.1998, he came to Badnagar, a tahsil place, having big market for surrounding villages with his brother deceased Usnian in a Jeep. They parked Jeep by the side of Shivaji road and going on foot towards place known as Dabri. They reached near the shop of Kamal Kasliwal in the noon at 12:30 p.m., the Appellants having country made pistol, sword, farsi reached over there and Appellant Karamat shot fire at the chest of Usman. Usnian sustained several fire arm injuries on right chest and fell down, thereafter Appellant Arif struck a sword blow on the neck of Usman. The wounds started profuse bleeding. Aashik tried to save Usman at which Appellants rushed towards him and Appellant Ismile Khan made exhortation to assault him, but because of cry for help by Aashik Appellants fled away. PW8 Shaukat and PW2 Iqbal reached on the spot. They had also witnessed the incident. Deceased was assaulted, because of personal and political enmity, by the Appellants. Aashik took Usman in a horsecart (Tonga) to civil hospital, where on examination by PW7 Dr. L.A. Kapadiya, he was declared dead. Aashik lodged FIR (Ex.P-5) in Police Station, Badnagar recorded by PW10 Town Inspector Mahendra Singh Shaktawat. Police also recorded merg intimation (Ex.P-15) at the instance of Aashik. Sub-Inspector Fatehbahadur Singh (PW13) prepared inquest report (Ex.P-29) in presence of witnesses and sent the dead body for post-mortem examination. PW7 Dr. L.A. Kapadiya conducted post-mortem and gave report (Fx.P-9). Aashik lodged FIR (Ex.P-5) in Police Station, Badnagar recorded by PW10 Town Inspector Mahendra Singh Shaktawat. Police also recorded merg intimation (Ex.P-15) at the instance of Aashik. Sub-Inspector Fatehbahadur Singh (PW13) prepared inquest report (Ex.P-29) in presence of witnesses and sent the dead body for post-mortem examination. PW7 Dr. L.A. Kapadiya conducted post-mortem and gave report (Fx.P-9). Shri Shaktawat reached on the spot and effected seizure of blood stained and controlled earth, he also prepared spot map (Ex.P-16). On production of blood stained clothes empty cartridges by sweeper of Civil Hospital, the same were seized by Head Constable (PW5). The Appellants were nabbed. On disclosure statements being made by Appellants Karamat, Arif, Asif, Yunus, Kudrat country made pistol, sword, sword, country made pistol and farsi with lathi were seized, respectively. Seized swords were sent to doctor for opinion which is Ex.P-10. On examination by Arms Mohrir PW12 Rajkumar Yadav, he found country made pistol in working condition. His reports are Ex.P-16 and P-27. Seized articles were sent for examination to Forensic Science Laboratory, Indore and Sagar and their reports are Ex.P-24 and Ex.P-25. After obtaining sanction from District Magistrate for prosecution of Appellants under the provisions of Arms Act, the charge-sheet was filed by the police against the Appellants for the above mentioned offences. 3. Appellants denied their complicity with the offences and pleaded false implication because of personal and political rivalry. Appellant Ismile took the plea of alibi. According to him, he was sick on 15th and 16th May, 1998 and he was treated by DW1 Dr. S.D. Garg of Civil Hospital, Ujjain. He examined three witnesses in defence. Learned trial Court finding the Appellants guilty convicted and sentenced them as noted here-in-above. 4. We have heard the learned Counsel for the parties and also perused the entire record carefully. 5. Learned Counsel for the Appellants have submitted that all the three eye-witnesses are the interested, partisan and chance witnesses, therefore, their version should not be relied upon for proving the guilt of the Appellants. Learned Counsel has placed more emphasis on the point that there is no evidence led by prosecution as to how Appellants came to know about presence of deceased Usman and his brother PW4 Aashik in the market and in fact eye-witnesses did not witness the incident and concocted a false case against the Appellants on suspicion. 6. Learned Counsel has placed more emphasis on the point that there is no evidence led by prosecution as to how Appellants came to know about presence of deceased Usman and his brother PW4 Aashik in the market and in fact eye-witnesses did not witness the incident and concocted a false case against the Appellants on suspicion. 6. Learned Counsel for the State has supported the impugned judgment and finding arrived at by the learned trial Court and placed reliance on Supreme Court judgment passed in case of Sachchey Lal Tiwari v. State of U.P. (2004)11 SCC 410 , on the point of chance witness. 7. It is culled out from the record that conviction of the Appellants is based on eye-witnesses account of PW2 Iqbal Shah, PW4 Aashik brother of deceased and PW8 Shaukat corroborated by medical evidence seizure of arms on disclosure statement as per provision under Section 27 of the Evidence Act from the possession of the Appellants and Forensic Science Laboratory report (Ex.P-24 and Ex.P-25). 8. Supreme Court in case of Sachchey Lal Tiwari (supra), while considering the question of chance witness in paragraph 7 observed as under: In a murder trial by describing an independent witness as "chance witness" it cannot be implied thereby that his evidence is suspicious and his presence at the scene doubtful. Murders are not committed with previous notice to witnesses soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in Anr. man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter of explaining their presence. The Courts below have scanned the evidence of PW2 in great detail and found it to be reliable. We find no reason to differ. {Also see Supreme Court judgment passed in case of Sarvesh Narayan Shukla v. Daroga Singh and Ors. AIR 2008 SC 320 }. 9. The Courts below have scanned the evidence of PW2 in great detail and found it to be reliable. We find no reason to differ. {Also see Supreme Court judgment passed in case of Sarvesh Narayan Shukla v. Daroga Singh and Ors. AIR 2008 SC 320 }. 9. It is well settled legal proposition that evidence of interested and partisan witnesses cannot be discarded out right OP. this ground but Court-; are required to be cautious and careful while appreciating their evidence. The interested and partisan witnesses will not leave the real culprit but at the same time they arc not immune to implicate the innocent person/persons along with the real culprit. 10. Keeping in mind this principle, now, we deal with the eye-witnesses account. PW2 Iqbal has deposed that he had gone Badnagar market for purchasing goods, where he met Shaukat (PW8). They purchased goods and vegetables and coming towards grain market (Dhan Mandi) and when reached near the shop of one Sindhi overheard report of country made pistol and saw that Usman was lying on the ground thereafter Appellant Arif caused a sword blow on the neck of Usman. PW4 Aashik was standing at the distance of 10 feet. He cried for help. Appellants rushed to assault Aashik but on cry being raised by him Appellants fled away. Iqbal saw Appellant Karamat and Yunus having country made pistol and Appellant Arif, Ismile and Kudrat were possessing sword and farsi attached with wooden handle. Aashik and he took Usman in Horsecart (Tonga) to hospital, where Dr. Kapadiya on examination declared Usman dead, thereafter, Aashik went to lodge report and he stayed near dead body of Usman. He has also stated that he disclosed about the incident to Nasir on his interrogation. In cross-examination, he has honestly admitted about pendency of some criminal cases against him on the basis of report lodged by Sher Ali and Arif. In his whole cross-examination, nothing substantial has come to fragile his statement. In paragraph 7, he was confronted with his case diary statement (Ex.D-2) wherein it is not mentioned that he asked the Appellants not to quarrel. In our considered opinion, this is not a material omission which amounts to contradiction. 11. Next witness PW4 Aashik, brother of the deceased has deposed that he and his brother deceased Usman went in a Jeep to Badnagar. In our considered opinion, this is not a material omission which amounts to contradiction. 11. Next witness PW4 Aashik, brother of the deceased has deposed that he and his brother deceased Usman went in a Jeep to Badnagar. They parked Jeep by the side of Shivaji Road and proceeded on foot towards Dabri locality or area. When they reached near the shop of one Kamal Kasliwal, Appellants with arms appeared on the road from a lane known as Lakharseri. Appellant Karamat and Yunus were having country made pistol whereas Ismile, Arif and Kudrat possessing sword and farsi attached with wooden handle. Appellant Karamat fired country made pistol which hit near the neck of the deceased and he cried for help. The Appellants rushed to assault him and Appellant Ismile exhorted to other Appellants. At that juncture, Shaukat and Iqbal also reached over there, on which Appellants entered in a lane and ran away. He has also stated that Appellants were having old political rivalry. He proved FIR (Ex.P-5). In cross-examination, he admitted pendency of cases in Court between his party and the Appellants. In his cross-examination also not an iota of evidence has come which may cause dent to his version as companion of deceased and eye-witness. In paragraph 9, he was asked about omission of the fact in FIR and his case diary statement regarding reaching of Shaukat and Iqbal by running on the spot whereupon Appellants ran away. He answered that he mentioned this fact and if same is not available in both the documents he cannot say anything. On due consideration, this is not a material omission which amounts to contradiction for discarding the entire statement of this witness. 12. Last eye-witness is PW8 Shaukat, who has also corroborated the statement of PW2 Iqbal. It is worthwhile to mention that PW2 Iqbal and PW8 Shaukat have not stated as to who fired the country made pistol. According to them, their attention was diverted only after hearing report of firing by country made pistol and they saw that deceased was lying on the spot, thereafter, Appellant Arif dealt a sword blow causing injury on the neck of deceased. Witness Shaukat has specifically stated that there was enmity between both groups on account of Gram Panchayat election. Appellant Ismile was the former Sarpanch. Thereafter, PW4 Aashik became Sarpanch. He has also admitted pendency of criminal cases against him. Witness Shaukat has specifically stated that there was enmity between both groups on account of Gram Panchayat election. Appellant Ismile was the former Sarpanch. Thereafter, PW4 Aashik became Sarpanch. He has also admitted pendency of criminal cases against him. In his cross-examination, not a single omission, contradiction or improvement was found with his previous statement. 13. The statement of aforesaid all the 3 eye-witnesses is fully corroborated by evidence of PW7 Dr. L.A. Kapadiya, who proved postmortem report (Ex.P-9). The homicidal death of deceased has not been disputed by the Appellants before the trial Court as well as before this Court, otherwise also it is fully proved on the basis of evidence of Dr. Kapadiya, who found incised wound 4"x3" on front side of the neck cutting skin, muscle, trachea, esophagus, blood artilleries and circle wounds caused by fire arm on right side of chest and in the area of 6th and 8th ribs admeasuring 2"x2" underneath the injury 6th and 7th ribs were broken and inside the wound in abdomen a piece of plastic stick was found having 4 small feathers (empty cartridge) piercing upto liver. On the chest there were 28 wounds. He preserved that empty cartridge and properly handed over to the investigating agency. In his opinion, deceased died because of excessive bleeding and shock due to injuries on vital part of the body causing damage to vital organs and injuries were sufficient in ordinary course of nature to cause death. 14. The evidence of eye-witnesses has also duly corroborated by Forensic Science Laboratory report (Ex.P-24) wherein opinion given by the expert that 12 bore country made pistol seized from Appellant Karamat was in working condition and empty Cartridge which was found inside the body of deceased was fired from the said pistol. PW11 ASI, S.N. Sharma has proved the seizure memo Ex.P-4 whereby 12 bore country made pistol was seized from the possession of Appellant Karamat and he identified the same as Article "A" in the Court. The pistol was seized in pursuance of memorandum statement given by Appellant Karamat vide Ex.P-1 recorded by PW10 Station House Officer Mahendra Singh Shaktawat. According to statement of Karamat he kept the pistol in the box and box was kept by him inside his house. PW12 Rajkumar Yadav, Arms Mohrir examined this country made pistol and found the same in working condition. According to statement of Karamat he kept the pistol in the box and box was kept by him inside his house. PW12 Rajkumar Yadav, Arms Mohrir examined this country made pistol and found the same in working condition. He identified the pistol as Article "A" in Court and proved its examination report (Ex.P-26). The learned trial Court has rightly relied upon this evidence to corroborate the testimony of the three eyewitnesses. 15. We do not find any force in the arguments of learned Counsel for the Appellants that as to how Appellants came to know about presence of deceased Usman and his brother Aashik in the market. It is evident from the statement of eye-witnesses and other witnesses that Appellants and complainant party were residing in the same village and Badnagar is a tehsil place situated near their village where villagers used to go for purchasing and for their other day to day work. As deceased and witnesses were present in the market, Appellants could also remain present in the market and no question was put by defence to all the three eye-witnesses in this regard. Investigating Officer has specifically stated in his statement that on the spot in market several shops were opened and persons were present but immediately alter the incident shops were closed and none came forward to give statement because of which he could not record the statement of witnesses of locality. 16. Learned trial Court has dealt with the defence evidence about plea of alibi of Appellant Ismile in paragraph 38 to 41 of the impugned judgment and given finding that evidence was created lateron we fully agree with this finding. DW1 Dr. Garg has deposed that in OPD of Civil Hospital. Badnagar between 10-10:30 to 12:45 of 15.5.1998 he examined Appellant No. 1 Ismile but no OPD record of the hospital was got filed and proved by the defence. Dr. Garg has proved only prescription (Ex.P-6) wherein time 12:45 p.m. is mentioned which is highly suspicious. At one place Dr. Garg has deposed that he examined Appellant Ismile in OPD and at the same time he has also stated that private practice was not allowed to Government doctors but home visit was allowed and he visited the house of Appellant Ismile because of which time was mentioned in the prescription. No official record has been filed except prescription slip in loose papers. No official record has been filed except prescription slip in loose papers. The OPD slip Ex.D-11 could be got prepared by anybody in the hospital disclosing name of Ismile and as discussed by learned trial Court in para 39, no record of the hospital was called in defence and got proved. In this view of the matter, the plea of alibi of Appellant Ismile has not been proved strictly as per norm of proof of plea of alibi by adducing cogent, reliable and Government official record. 17. Keeping in mind the law of appreciation of evidence of interested and partisan witnesses, we are of the view that Appellant No. 1 Ismile Khan, Appellant No. 4 Kudrat and Appellant No. 5 Yunus deserve for benefit of doubt because against them there is no specific overt act attributed by the eye-witnesses and they had not caused any injury to deceased. Mere presence of these Appellants on spot which is a market place it cannot be said that they were members of unlawful assembly whose common object was to commit murder of deceased {See Supreme Court judgment passed in case Bunnilal Chaudhary v. State of Bihar (2007)1 SCC 66. Conviction and sentence of Appellant No. 1 Ismile Khan, Appellant No. 4 Kudrat and Appellant No. 5 Yunus are hereby set aside. They are on bail. The bail and surety bonds stand discharged. 19. The conviction and sentence of Appellant No. 2 Karamat Khan and No. 3 Arif are hereby altered from 302/149 of the IPC to 302/34 of the IPC. It is trite that if accused is charged with the aid of Section 149, he can be convicted with the aid of Section 34 of the IPC and no prejudice would be caused to him. These Appellants were having country made pistol and sword and after causing injury by pistol on chest of the deceased by Appellant Karamat, Appellant Arif dealt a severe sword blow on the neck of the deceased which caused very serious injury on the neck cutting internal vital organs. It is clear that they were having pre-concert to commit murder of deceased Usman, who succumbed to the fire arm and sword injury, therefore, it is clear that both the Appellants in furtherance of common intention committed murder of deceased Usman. {See Supreme Court judgment Hamlet Singh v. State of Kerala (2003)10 SCC 108}. 20. It is clear that they were having pre-concert to commit murder of deceased Usman, who succumbed to the fire arm and sword injury, therefore, it is clear that both the Appellants in furtherance of common intention committed murder of deceased Usman. {See Supreme Court judgment Hamlet Singh v. State of Kerala (2003)10 SCC 108}. 20. In view of the above, this appeal is allowed in part. Conviction and sentence of Appellant No. 1 Ismile, No. 4 Kudrat and No. 5 Yunus are hereby set aside. The appeal of Appellant No. 2 Karamat and No. 3 Arif is dismissed with alteration of their conviction in place of Section 302/149 of the IPC to Section 302/34 of the IPC sentence to RI for life and fine of Rs. 1,000/- in default of payment of fine they shall suffer additional RI for one year. Conviction and sentence of both the Appellants under Section 148 of the IPC are hereby set aside. Conviction and sentence of Appellant Karamat under Section 25(1)(2)(A) of the Arms Act as imposed by the trial Court are hereby affirmed.