Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 1199 (MP)

Gulzar Ahmad @ Gulzar Khan v. State of M. P.

2013-10-03

AJIT SINGH, B.D.RATHI

body2013
JUDGMENT : B.D. RATHI, J. 1. This appeal has been preferred under Section 374 of the Code of Criminal Procedure (for short “the Code”) being aggrieved with the judgment dated 27-2-2002 passed by the Additional Sessions Judge designated as Special Judge, Shahdol in Sessions Trial No. 173/2000, whereby appellant Nos. 1 and 2 have been convicted under Section 302/34 of the Indian Penal Code (for short ‘the IPC’) and sentenced to undergo imprisonment for life with fine stipulation, whereas the appellant Nos. 3 and 4 have been convicted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and sentenced to undergo imprisonment for life with fine stipulation and R.I. for four years with fine stipulation respectively, while all the appellants have also been convicted under Section 364 of the Indian Penal Code and sentenced to undergo R.I. for five years with fine stipulation, with the direction that the custodial sentences shall run concurrently. 2. The prosecution story, in short, is that on 12-11-1999 when Gudda @ Nafis Khan was returning after answering the call of nature, appellant Hakeem, co-accused Nanhu, appellant Ismail, co-accused Rajendra, appellants Gulzar and Saleem, armed with country made pistols and Lathis came running towards Nafis and started forcibly taking him towards Farhada. Seeing this, as Ismail (PW-5) shouted and ran towards them, villagers Lateef Khan (PW-2), Fazal Khan, Jumman Khan (PW-3), Wazir Khan, Fazal Ali and brother Hakeem also came forward to his rescue. Near the house of Bahav Khan, Hakeem Khan, Nanhu Khan and Ismail Khan fired at Nafis leading to injuries on his face, mouth and nose and he fell down. Seeing the said witnesses, the appellants kept firing and pelting stones at them, due to which, being frightened, they returned. Hafiz, brother of Nafis, after a while, informed that Nafis had died. The report of the incident (Ex.P/11) was lodged by Ismail khan (PW-5) on the same day at about 8 a.m. upon which Crime No. 41/99 (Ex.P/12) was registered and after investigation, charge-sheet was filed. 3. During trial, appellants denied the charges and pleaded false implication. 4. Learned counsel for the appellants submitted that the impugned judgment was based upon mis-appreciation of evidence on record. According to him, there is material inconsistency between the evidence of witnesses. 3. During trial, appellants denied the charges and pleaded false implication. 4. Learned counsel for the appellants submitted that the impugned judgment was based upon mis-appreciation of evidence on record. According to him, there is material inconsistency between the evidence of witnesses. He further submitted that author of the First Information Report (for short “the FIR”) being brother of the deceased, was an interested witness. He also contended that weapons used in commission of offence were neither seized nor any sanction to prosecute under Arms Act was obtained by the prosecution and accordingly, prayed that the appellants deserved to be acquitted. 5. In response, learned Government Advocate while making reference to the incriminating pieces of evidence on record, submitted that the conviction was well merited and the impugned judgment does not warrant interference. 6. Having regard to the arguments advanced by the parties, record of the trial Court was perused. 7. To bring home the charges, prosecution examined as many as 7 witnesses. Out of them, being eye-witnesses to the incident, the most material witnesses were Latif Khan (PW-2), Jumman Khan (PW-3) and Ismail Khan (PW-5), author of the FIR. It was not in dispute that death of Nafis S/o Farid Khan was homicidal in nature. Autopsy was conducted by Dr. R.S. Maravi (PW-7) and cause of death was ascertained as shock and cardio-respiratory failure due to excessive haemorrhage caused by gunshot injury. Details of the gunshot injuries were mentioned in the Autopsy report (Ex.P/1A) dated 13-11-1999. Therefore, there is no need to re-appreciate the evidence on this point. 8. Ismail Khan (PW-5) categorically deposed that when Nafis was returning after answering the call of nature, at that time, Hakim, appellant Ismail and Nannu, armed with country made pistols and Gulazar, Salim and Rajendra having Lathis and Dandas came running, caught hold of Nafis and started taking him towards Village Farhada. As he shouted, Villagers Nazir, Fazal Ali, Jumman, Latif Khan, Hafiz reached there and they all ran after them for rescuing Nafis. Near the House of Tailor, Hakim, Ismail and Nannu, together, fired at Nafis, who sustaining injuries, fell on the spot and died. Then report (Ex.P/11) was lodged by him. His evidence was fully corroborated by that of other independent eye-witnesses Latif Khan (PW-2) and Jumman Khan (PW-3). Near the House of Tailor, Hakim, Ismail and Nannu, together, fired at Nafis, who sustaining injuries, fell on the spot and died. Then report (Ex.P/11) was lodged by him. His evidence was fully corroborated by that of other independent eye-witnesses Latif Khan (PW-2) and Jumman Khan (PW-3). Nothing could be elicited in their cross-examination so as to suggest that they were interested in securing conviction of the appellants on absolutely false grounds. 9. Admittedly, during trial co-accused Nannu had died. On perusal of the record, it is quite vivid, that country made pistols that were used for commission of offence were neither seized nor any sanction to prosecute under Arms Act was obtained from the District Magistrate. Therefore, in our considered view, conviction under Section 27 of the Arms Act cannot be sustained. 10. Thus, taking into consideration the facts and circumstances of the case and after appreciating the evidence on record, we do not find any illegality or perversity in the impugned judgment so far as it relates to convictions and sentences on other counts. 11. In view of the aforesaid, the appeal stands allowed in part. Conviction and sentence as awarded to appellant Nos. 3 and 4 namely Hakim and Ismail under Section 27 of the Arms Act are set aside and they are acquitted of that offence. The remaining impugned convictions and sentences of all the four appellants are affirmed. Fine amount, if deposited by appellant Nos. 3 and 4 for their conviction under the Arms Act, be refunded or adjusted towards their other fine sentences. 12. Appellant Nos. 3 and 4 are in jail and appellant Nos. 1 and 2 are on bail. Therefore bail bonds of appellant Nos. 1 and 2 stand cancelled. They are directed to surrender before the trial Court on or before 18-11-2013 for being committed to custody for undergoing the remaining part of custodial sentences, failing which the trial Court shall take necessary steps to secure their arrest and ensure execution of sentences. 13. Copy of this judgment along with record of the trial Court be sent to the trial Court for information and compliance.