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Madhya Pradesh High Court · body

2009 DIGILAW 823 (MP)

KABIR KHAN @ HIRU v. STATE OF M. P.

2009-07-20

MANJUSHA P.NAMJOSHI, R.S.GARG

body2009
JUDGMENT : R. S. GARG, J. 1. The appellants, being aggrieved by the judgment dated 20-11-1999 passed in Sessions Trial No. 184/92 by the learned Additional Sessions Judge, Narsinghgarh, convicting appellants No. 7 and 8, namely, Nisar Ahamd and Barkat Ali under section 148 read with section 307/149, Indian Penal Code and rest of the appellants under sections 148, 302/149 (on two counts) 307/147, Indian Penal Code, sentencing all the appellants under section 148, Indian Penal Code to undergo rigorous imprisonment for three years and under section 307/149, Indian Penal Code to undergo rigorous imprisonment for seven years and pay a fine of Rs. 1000/-, in default of payment of fine to undergo rigorous imprisonment for one month, sentencing appellants No. 1 to 6 and 9 to 13 for three years rigorous imprisonment under section 148 IPC, imprisonment for life under section 302/149, Indian Penal Code (on two counts) and pay a fine of Rs. 1000/-, in default of payment of fine to undergo rigorous imprisonment for one month, have filed this appeal. 2. The prosecution case as it comes out from the mouth of PW-5 Jaisingh, who had lodged the First Information Report (Exhibit P/35) appears to be that on 8-5-1992, Jaisingh was going to the house of Hemraj Mewade for taking his food; at Surajpol Chauraha Balla @ Baldev met him; Balla @ Baldev had a cycle with him; Bulbul @ Punam Chand also met them and all the three persons boarded one cycle and proceeded towards the house of Hemraj Mewade. Jaisingh was sitting on the back of the cycle while Bulbul @ Punam Chand was sitting on the iron rod while Balla @ Baldev was cycling. Immediately, when they reached at some place near a speed-braker, Mahfooz @ Nana hurled a bomb which hit Bulbul @ Punam Chand on his leg; the cycle shivered; thereafter accused Rashid Khan threw another bomb which hit Balla @ Baldev on his back and thereafter, accused Kabir @ Hiru threw another bomb which had hit on the back of the cycle. All the three fell from the cycle; accused Syed gave a sword blow on the head of Jaisingh and he gave another blow which hit Jaisingh on his right hand. Accused Mehandi Hasan, accused Barkat Ali, accused Hasan Ahmad Qureshi caught Jaisingh and tied him with a tree and thereafter, Jaisingh was beaten. All the three fell from the cycle; accused Syed gave a sword blow on the head of Jaisingh and he gave another blow which hit Jaisingh on his right hand. Accused Mehandi Hasan, accused Barkat Ali, accused Hasan Ahmad Qureshi caught Jaisingh and tied him with a tree and thereafter, Jaisingh was beaten. Accused Sharafat Ali, accused Shaukat Ali, accused Anwar Ahmad, accused Wahid Khan hit him by means of an iron rod; accused Nisar Ahmad fired a shot and he also hit Jaisingh. Bulbul @ Punam Chand was beaten by Rashid Khan, Sharif Khan, Shahjad and Mehfooz @ Nana. Jaisingh and Bulbul @ Punam Chand were also beaten by accused Chand Khan, Bhure Khan Intikhab @ Ballu, Nasir, Shafique and others. As a result of the bomb explosion, Balla @ Baldev died on the spot. The matter was reported to the Police by PW-5 Jaisingh. Immediately after receiving the report, PW-5 Jaisingh and Bulbul @ Punam Chand were sent to the hospital for examination and repair of their injuries. 3. Dr. P. S. Pal (PW-21) examined Bulbul @ Punam Chand and found number of injuries on his person. He also examined Jaisingh and found number of injuries on person of Jaisingh. The said reports are available on record as Exhibits P/37 and P/38. However, Bulbul @ Punam Chand could not survive and later on died, therefore, the dead bodies of Bulbul @ Punam Chand and Balla @ Baldev were sent for the post-mortem. Dr. C. S Jain (PW-19) conducted the postmortem and the reports of Balla @ Baldev and Bulbul @ Punam Chand are available on record as Exhibits P/33 and P/34 respectively. 4. The Investigating Agency prepared the Panchnama of the spot; seized number of articles; recorded the statements of the witnesses and after being armed with sufficient material, filed Chalan against as many as sixteen accused persons. The accused persons denied commission of the offence, therefore, they were subjected to trial. 5. After hearing learned counsel for the parties, the learned Court below found that the prosecution could not prove its case against accused Salli @ Abdul Salim, Bhure Khan and Shafique Khan, therefore, the said three persons were acquitted of all the charges. The accused persons denied commission of the offence, therefore, they were subjected to trial. 5. After hearing learned counsel for the parties, the learned Court below found that the prosecution could not prove its case against accused Salli @ Abdul Salim, Bhure Khan and Shafique Khan, therefore, the said three persons were acquitted of all the charges. Accused Nisar Ahmad Khan and accused Barkat Ali were also acquitted of the offence punishable under section 302/149, Indian Penal Code but, however, they were convicted under sections 148, 307/149, Indian Penal Code and were sentenced as referred to above. Rest of the appellants were convicted and sentenced as referred to above. 6. Shri Jai Singh, learned senior counsel and Shri P. K. Shukla, learned counsel for the appellants, submitted that PW-1 Premnarayan and PW-5 Jaisingh are unreliable witnesses. They also submitted that the injuries found on the person of deceased and the injured were caused by some other persons, who were not identified. It was also submitted that PW-5 Jaisingh was examined on 9.9.1996. In his examination-in-chief, he simply named Nasir Khan as the person, who had thrown the bomb and also involved Barkat Ali, who had tied Jaisingh with the tree. It is submitted that later on the prosecution agency made an application for recall of the said witness PW-5 Jaisingh; the application was confined to identification of one of the accused Hasan; the witness was recalled; even in absence of the Public Prosecutor, the learned Trial Judge assumed the role of the Prosecutor; he examined the witness afresh and allowed him to speak against the other accused persons. 7. It is submitted that being aggrieved by the conduct of the said Judge, an application for transfer of the case was filed. The said application was rejected and, therefore, the matter was finally decided by the learned Trial Judge. Placing reliance upon the judgments of the Supreme Court, Bombay High Court and the Privy Council which we shall refer to at the appropriate place, it was submitted that if the Judge assumes the role of a Prosecutor then the trial stands vitiated and every accused deserves to be acquitted. It is also submitted that the application filed under section 311, Indian Penal Code, if was allowed, for a limited purpose then the learned Judge was not entitled to act as a Prosecutor and re-examine the witness as a new witness. It is also submitted that the application filed under section 311, Indian Penal Code, if was allowed, for a limited purpose then the learned Judge was not entitled to act as a Prosecutor and re-examine the witness as a new witness. It is also submitted that though section 165 of the Indian Evidence Act authorizes a Judge to put any question at any time to a witness but the trial has to be conducted by a Public Prosecutor and if such a trial is not conducted by a Public Prosecutor and the Judge had assumed the role of the Public Prosecutor then the trial itself has to be quashed. 8. For proper appreciation of the legal arguments, it would be necessary to refer to section 165 of the Indian Evidence Act. Section 165 of the Indian Evidence Act reads as under :- 165. Judge's power to put question or order production - The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agent shall be entitled to make any document or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved : Provided also that the section shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under section 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall her dispense with primary evidence of any document, except in the cases hereinbefore excepted. 9. Undisputedly, section 165 of the Indian Evidence Act confers unfettered jurisdiction upon a Judge to put questions to a witness as he pleases in any form at any time in order to discover or to obtain proper proof of relevant fact. 9. Undisputedly, section 165 of the Indian Evidence Act confers unfettered jurisdiction upon a Judge to put questions to a witness as he pleases in any form at any time in order to discover or to obtain proper proof of relevant fact. When such a jurisdiction is conferred upon a Judge then it cannot be said that to elucidate the fact, the Judge was not entitled to put question. 10. Sections 225 and 226 of the Code of Criminal Procedure read as under :- 225. Trial to be conducted by Public Prosecutor - In every trial before a Court of Sessions, the prosecution shall be conducted by a Public Prosecutor. 226. Opening case for prosecution - When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. 11. According to section 225, Criminal Procedure Code, a trial before a Court of Sessions is to be conducted by a Public Prosecutor. According to section 226, the Prosecutor is obliged to open his case by describing the charge brought against the accused and stating by what evidence, he proposes to prove the guilt of the accused. 12. In the present matter, undisputedly, PW-5 Jaisingh was firstly examined by the prosecution on 9-9-1996. Undisputedly, the Public Prosecutor was present in the Court and he had opened his case. Sections 225 and 226, Criminal Procedure Code do not say that even after the case is opened by the Public Prosecutor, any further examination or re-examination cannot be conducted by the Court or the Court would not be entitled to put questions to a witness under its legal authorization as provided under section 165 of the Indian Evidence Act. 13. In the present matter, after the prosecution's application was granted, the witness was submitted for further examination. Ordinarily, he was required to be re-examined by a Public Prosecutor but it was not so done. The High Court can take note of the fact that in a Sessions Division where there are more than one Sessions Court, number of the Public Prosecutor is not equal to number of the Sessions Court. Ordinarily, he was required to be re-examined by a Public Prosecutor but it was not so done. The High Court can take note of the fact that in a Sessions Division where there are more than one Sessions Court, number of the Public Prosecutor is not equal to number of the Sessions Court. Many times, a Public Prosecutor remains busy in one or the other Court and even he is not available for declaring a witness hostile or to make a request to the Court for his re-examination. It is also a common feature that in presence of the defence Counsel, the Court starts putting questions to the witnesses, which should ordinarily be put by the Public Prosecutor. When such questions are put by a Court to the witnesses, the Counsel for the defence never raises an objection. If a Counsel would raise an objection about conduction of the proceedings by the Court contrary to the provisions of section 225 then certainly the defence would be allowed to say that despite such an objection, the Court conducted the trial. The practice followed and adopted in the Lower Court is a practice of convenience and nobody raises an objection to it. Under the circumstances, we are unable to hold that if a Public Prosecutor does not conduct the trial, the trial would stand vitiated. 14. In the matter of Adan Haji Jama and others vs. The King, reported in AIR 1948 Privy Council 63, which was a case from Somaliland, the Privy Council observed that in view of the provisions as contained in sections 226, 393, 236 and 413 of Administration of Criminal Justice Ordinance 1926, the Prosecutor should conduct the trial and if a Judge conducts the entire trial, the trial would stand vitiated. In Paragraph 9 of the said Judgment, the Privy Council also observed that absence of a Prosecutor necessarily involves a breach of section 226 of the Ordinance, since he could neither open his case nor examine his witnesses. The Privy Council further observed that the provisions of the Ordinance, if are not followed and every witness is examined by the learned Judge as Public Prosecutor then the trial would stand vitiated. 15. In the present matter, it is not in dispute before us that PW-5 Jaisingh was firstly examined by the Public Prosecutor and on his recall, the Court had put certain questions to him. 15. In the present matter, it is not in dispute before us that PW-5 Jaisingh was firstly examined by the Public Prosecutor and on his recall, the Court had put certain questions to him. The learned Judge had put questions to the witness in presence of the defence Counsel. There is nothing on record to show, suggest or prove that when the learned Judge of the Trial Court was examining the witness or was putting certain questions to him, any objection was ever raised by the defence Counsel. 16. True it is that an application for transfer of the case was filed before the learned Sessions Judge on the ground that the Trial Judge was acting like a Public Prosecutor but the said application came to be rejected and the defence was satisfied with the said order. After much water had flown, at the appellate stage to say that such a procedure could not be followed would patently be an afterthought. A party cannot be allowed to keep an ace up his sleeves and bring the same as a surprise at the appellate stage. 17. In the matter of Mohammad Iqbal Ahmad vs. State of A. P., reported in (1979) 4 SCC 172 referring to section 311, the Supreme Court had observed that in a criminal case, the Supreme Court or for the matter any Court should not ordinarily direct fresh evidence to fill up the lacuna deliberately left by the prosecution. It was further observed that the liberty of subject was put in jeopardy and it cannot be allowed to be put in jeopardy again at the instance of the prosecution which failed to avail of the opportunity afforded to it. 18. The above-referred observations made by the Supreme Court were relied upon by a learned Single Judge of High Court of Maharashtra in the matter of Omprakash Shankarlal Sharma vs. State of Maharashtra, reported in 1993 Cri.L.J. 3175. In the said matter, the application was allowed on a very cursory ground and the High Court found that on such a cursory ground, an application could not be allowed. 19. In the present matter, after giving our thoughtful consideration to the facts of the case, we are unable to hold that the trial Court allowed the application filed under section 311 of the Code of Criminal Procedure just for the sake of asking. 19. In the present matter, after giving our thoughtful consideration to the facts of the case, we are unable to hold that the trial Court allowed the application filed under section 311 of the Code of Criminal Procedure just for the sake of asking. In the present matter, the application was allowed for sufficient reasons and thereafter, the witness was brought before the Court. 20. On the legal aspect of the matter, we are unable to hold that the Court below committed any error either in asking certain questions to PW.5 Jaisingh or in granting the application filed on behalf of the prosecution under section 311 of the Criminal Procedure Code. 21. On the merits it was submitted that PW.5 Jaisingh is an absolutely unreliable witness and that infact the deceased and PW.5 Jaisingh were carrying bombs in a sling-bag and when their cycle turtled over the speed-braker bomb blasted and in the said blast two persons suffered fatal injuries while PW.5 Jaisingh had suffered certain injuries. The above referred argument is absolutely in the air. It has not been suggested to the witnesses that cut injuries were also suffered by PW.5 Jai Singh in the said accidental blast. It will be seen from the records and the report of Dr. P.S. Pal PW.21 that Jai Singh had suffered as many as four cut injuries. Though, it was aruged that the sharp nail from the bomb could cause such injury but in our opinion, the nature of the injuries would rule out every possibility that the injuries could be caused by a bomb. 22. It is also to be seen that from the statements of the defense witnesses that they tried to explain the injuries suffered by Jaisingh and others, however, after going through the statements of PW.5 Jaisingh and PW.1 Premnarayan we are unable to hold that the defense witnesses are not reliable specially in view of the statements of PW.5 Jaisingh when he had said that the bomb exploded on a particular part of the body and the said particular part of the body had the blast injuries. 23. It was then submitted that 3 accused persons had hurled the bombs and the other set of the accused came later therefore, the Court must hold that the other accused persons at best are guilty under section 307/149 Indian Penal Code. 24. 23. It was then submitted that 3 accused persons had hurled the bombs and the other set of the accused came later therefore, the Court must hold that the other accused persons at best are guilty under section 307/149 Indian Penal Code. 24. From the statements of PW.5 Jaisingh and PW.1 Premnarayan it will appear that number of the accused persons (convicted under section 302/149) had assembled on the spot much before the incident and two of the accused who had been convicted under section 307/149, Indian Penal Code came later. 25. From the evidence available on the record, it would appear that two accused persons namely Nisar and Barkat Ali came on the spot subsequent to hurling of the bomb and therefore, they had been rightly convicted under section 307/149, Indian Penal Code for their criminal acts. 26. It cannot be argued that the other accused persons who came later on the spot, therefore, other accused persons had hurled the bombs on the complainant side did not share the common intention. 27. It was argued that PW.1 Premnarayan is an unreliable witness; firstly because he was not named in the FIR, secondly because his statements were recorded by police after two days, thirdly because he had said that he had seen the first accused throwing the bomb and lastly because he happened to be a chance witness. 28. PW.1 Premnarayan is a resident of the same area. According to him when he was coming from Ramkund side, suddenly he had seen that one man had hurled a bomb on the three passers-by. If a person happens to be of the same vicinity then his presence in the said vicinity is not by chance, and such a witness cannot be called a chance witness. In the present matter PW.1 Premnarayan is a resident of particular vicinity and his presence in the said area cannot be doubted. Recording of his statement after two days in our opinion, may show somelapse on the part of the police but the same would not make such witness unreliable. 29. So far as non-mention of the name of this witness in the first information report is concerned, it is always to be noted that the first informant lodges the report in the manner and fashion as he had seen the incident and noting the surrounding circumstances. 29. So far as non-mention of the name of this witness in the first information report is concerned, it is always to be noted that the first informant lodges the report in the manner and fashion as he had seen the incident and noting the surrounding circumstances. If first eye witness is also the first informant does not mention the name of an eye witness who had seen the incident then such non mention of the name in the first information report would not make another eye witness unreliable. Reliability of a witness depends upon the value and worth of his statement. Simply because the first informant could not see that how many persons had seen the incident, then the version of the first informant would not become gospel truth and make the other eye witnesses unreliable. 30. Taking into consideration the character of the evidence and the trend of the cross-examination and that Premnarayan stood firm against the said cross-examination, we hold that he is a witness of truth and is worth reliance. 31. It was then contended that Premnarayan PW.1 and Jaisingh PW.5 have not named the 13 convicts who have been held guilty by the learned Court below. At this stage it would be necessary to observe that one of the convicts Kabir Khan @ Hiru had expired during the pendency of this appeal. From the statements of Premnarayan it will appear that he was alleging criminality and criminal action against Nana (since deceased), Bhura (since acquitted) Kabir Khan @ Hiru (died during the pendency of this appeal), Nisar Khan, Chand Khan and Barkat Ali. PW. 5 Jaisingh had stated against that Nana (died during the course of the trial), Bhura (since acquitted) Safayat, Hiru Chacha (died during the pendency of this appeal). Sharafat, Shoukat, Rashid, Nisar Ahmed, Nasir Khan, Chand Khan and Barkat were involved in the commission of the offence. Both of the eye witnesses have not asserted any overt act against appellant No. 2 Mehandi Hasan, appellant No. 4 Shoukat Ali appellant No. 6 Hasan Ahmed Qureshi, appellant No. 12 Nasir Khan and appellant No. 13 Wahid Khan. It appears that these five persons have been convicted because they were named in the first information report and the case diary statement of the witnesses. It appears that these five persons have been convicted because they were named in the first information report and the case diary statement of the witnesses. In absence of any evidence against the abovereferred five persons we are obliged to hold that the Court below was unjustified in convicting the above five appellants. 32. The appeal filed by Safayat, Rasid Khan, Nisar Ahmed, Barkat Ali, Sharafat, Nasir Khan, Chand Khan and Shoukat Ali for the reasons aforesaid deserve to and is accordingly dismissed. However, the appeal filed by Mehandi Hasan, Hasan Ahmed, Qureshi, Anwar and Wahid Khan for the reasons aforesaid is allowed. Rest of the terms of the order are maintained.