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Madhya Pradesh High Court · body

2014 DIGILAW 541 (MP)

Mohd. Farukh v. State of M. P.

2014-05-06

N.K.GUPTA

body2014
JUDGMENT 1. All the appellants have preferred the above mentioned criminal appeals against the common judgment dated 25.6.1996 passed by the learned 8th Additional Sessions Judge, Jabalpur in S.T. No.314/1989, and, therefore, all the appeals are decided by the present common judgment. 2. The appellants have challenged the judgment dated 25.6.1996 passed by the 8th Additional Sessions Judge Jabalpur in S.T. No.314/1989 whereby all the appellants were convicted for the offence under section 307 of IPC and sentenced with five years’ RI with fine of Rs.5,000/-, in default of payment of fine, additional RI for one year. 3. The prosecution’s case, in short, is that the victim Fareed Khan (PW1) had lodged an FIR at Police Station Cantt., Jabalpur on 23.3.1989 at about 8:20 p.m. that he went out of the Jabalpur on the previous day and when he came back it was informed that the appellant Ateek Ahmed came in the house of Shribhagwan Sharma and abused the family members of the complainant. Thereafter on 23.3.1989 at about 7:30 p.m. the complainant Fareed Khan asked Shribhagwan Sharma as to why they abused his family members by yesterday. Shribhagwan Sharma called the appellant Ateek Ahmed who came with a dagger and assaulted Fareed Khan by that dagger near left perineal region. On his shouting his brother Nafees Khan (PW2) came to the spot and the appellant Ateek Ahmed assaulted him by that dagger on the left of his back. At the time of incident, the appellant Shribhagwan Sharma had held the victim Nafees Khan and at that time appellant Mohd. Farukh also came to the spot and assaulted to Fareed Khan and Nafees Khan. The SHO of Police Station Cantt. registered the crime and sent Fareed Khan and Nafees Khan to the hospital for their medico legal examination. Dr. A.K.Jain (PW12) examined the victims Nafees Khan and Fareed Khan and gave his report Ex.P-16 and P-17. He found a stab wound to the victim Nafees Khan on the left side of his back, but whose depth was unknown, and, therefore, he referred him for admission in the Ward and further treatment. The detailed report would have been obtained from the treating doctor. He examined the victim Fareed Khan. He sustained a single stab wound on the left side of his abdomen near perineal region from where omentum was coming out. Dr. Anil Dubey (PW9) operated the victim Fareed Khan. The detailed report would have been obtained from the treating doctor. He examined the victim Fareed Khan. He sustained a single stab wound on the left side of his abdomen near perineal region from where omentum was coming out. Dr. Anil Dubey (PW9) operated the victim Fareed Khan. He found that in the small intestine and large intestine some cuts were found. Mesentery was found cut from two places. Cecum was also found cut. As per his opinion the injury of the victim Fareed Khan was fatal in nature. He also treated the victim Nafees Khan and found that the injury was simple in nature. After due investigation, a charge sheet was filed before the CJM Jabalpur, who committed the case to the Sessions Court and ultimately it was transferred to the learned 8th Additional Sessions Judge, Jabalpur. 4. The appellants-accused abjured their guilt. They did not take any specific plea, but they took a plea that they were falsely implicated in the matter. In defence Triveni Bai (DW1) and Jubeda I (DW2) was examined 5. The learned 8th Additional Sessions Judge after considering the evidence adduced by the parties convicted and sentenced the appellants as mentioned above. 6. I have heard the learned counsel for the parties. 7. After perusal of memo of charges, it appears that initially a sandwich charge of section 307 of IPC was framed against the appellants for two counts offences of section 307 of IPC and the learned 8th Additional Sessions Judge while passing the judgment convicted the appellants for the offence under section 307 of IPC and he did not mention as to whether the appellants are convicted for two counts charges or one main charge. Similarly, it is nowhere alleged that the appellant Shribhagwan Sharma or Mohd. Farukh had assaulted any of the victims, and therefore they should have been convicted for the offence under section 307 read with section 34 of IPC and they could not be convicted for the offence under section 307 of IPC directly. However, if any of the accused is convicted for that offence under section 307 of IPC, then he can be convicted for the offence with the help of section 34 of IPC. Under such circumstances, re-appreciation of evidence should be done on the basis of conviction as well as defects as mentioned above in the judgment passed by the trial Court. 8. Under such circumstances, re-appreciation of evidence should be done on the basis of conviction as well as defects as mentioned above in the judgment passed by the trial Court. 8. First of all it would be considered that whether the injuries caused to the victims were fatal in nature or not. In this connection Dr. A.K.Jain (PW12) has proved the MLC reports Ex.P-16 and P-17 of the victim Nafees Khan and Fareed Khan. Nafees Khan sustained a stab wound on left side of his back which was 1/2”x4” and whose depth was 9.1”, and, therefore, the patient was referred to the treating doctor. Dr. Anil Dubey (PW9) has found that the injury caused to the victim Nafees Khan was simple in nature. Since only one blow was given to the victim Nafees Khan, therefore, it cannot be said that the person, who caused that blow was intended to kill him. Hence, for the victim Nafees Khan the accused could be convicted for the offence under section 324 of IPC only. 9. Dr. A.K.Jain (PW12) has proved the injury report Ex.P-17 for the victim Fareed Khan. He found a stab wound to him, which was 2”x1/2” and its depth was unknown on the left side of abdomen near the perineal region. He has specially mentioned that omentum was coming out from the wound. Dr. Anil Dubey (PW9) had operated the victim Fareed Khan. He found so many cuts in his small intestine and large intestine. Mesentery was found cut from two places. Cecum was also found cut. Under such circumstances, the injury caused to the victim Fareed Khan was fatal in nature. Certainly if there were cuts in the intestines, then without its surgery such wounds could not be repaired and result could be that the victim Fareed Khan would have died if no surgery was done to him. Under such circumstances, the opinion given by Dr. Anil Dubey (PW9) was acceptable and the injury caused to the victim Fareed Khan was fatal in nature. 10. So far as the act of assault is concerned, Fareed Khan (PW1), Nafees Khan (PW2), Sheikh Rasheed (PW3), Ramrati Bai (PW4), Batul Nabi (PW6), Shahnaj (PW7) and Raees Khan (PW8) have stated that it was the appellant Ateek Ahmed who assaulted both the victims by giving them one blow each. 10. So far as the act of assault is concerned, Fareed Khan (PW1), Nafees Khan (PW2), Sheikh Rasheed (PW3), Ramrati Bai (PW4), Batul Nabi (PW6), Shahnaj (PW7) and Raees Khan (PW8) have stated that it was the appellant Ateek Ahmed who assaulted both the victims by giving them one blow each. Some of the witnesses have stated that when the appellant Ateek Ahmed assaulted the victims, thereafter the appellant Mohd. Farukh also came to the spot and assaulted the victims. However, except one stab wound, no other injury was found either to Fareed Khan or Nafees Khan, and therefore the story of the witnesses that the appellant Mohd. Farukh also assaulted the victims appears a falsehood. By perusal of the evidence given by the witnesses, it was not alleged against any other accused persons that they assaulted the victims Fareed Khan and Nafees Khan by any weapon. Under such circumstances, it is established that the appellants Shribhagwan Sharma and Mohd. Farukh did not assault by themselves upon the victims Nafees Khan and Fareed Khan. 11. On the basis of the aforesaid discussion, it would be apparent that the appellant Mohd. Farukh could not be convicted either for the offence under section 307 or 324 of IPC directly. Whereas it was established that the appellant Ateek Ahmed assaulted the victims Fareed Khan and Nafees Khan in such a manner that the victim Fareed Khan sustained a fatal injury. It is true that the appellant Ateek Ahmed assaulted both the victims for once, but looking to the history given by the witnesses, it would be apparent that on the previous day the appellant Ateek Ahmed went to the house of the victims and abused them. Thereafter when Shribhagwan Sharma informed him to come to talk with the victim Fareed Khan, the appellant Ateek Ahmed went with a dagger and started assaulting a person known to the house of someone with a weapon, then his intention can be presumed. It would be apparent that it was the appellant Ateek Ahmed who went to the house of the victims, and, therefore, the victims were not the aggressors. No right of private defence was accrued to the appellant Ateek Ahmed. Similarly, no any sudden or grave provocation was caused to the appellant Ateek Ahmed otherwise he would have shown the reason of that provocation. No right of private defence was accrued to the appellant Ateek Ahmed. Similarly, no any sudden or grave provocation was caused to the appellant Ateek Ahmed otherwise he would have shown the reason of that provocation. Under such circumstances, it is presumed that the appellant Ateek Ahmed had knowledge about the result of his overt-act, and, therefore, he assaulted the victims voluntarily. Hence the appellant Ateek Ahmed was guilty for the offence under section 324 of IPC causing injuries to the victim Nafees Khan by a dagger. The learned Additional Sessions Judge has committed an error of law and fact in convicting the appellant Ateek Ahmed for the offence under section 307 of IPC for the victim Nafees Khan. However, it is proved that he voluntarily assaulted the victim Nafees Khan causing a fatal injury. It was argued by the learned counsel for the appellant Ateek Ahmed that the appellant Ateek Ahmed gave a single blow to the victim Fareed Khan, and, therefore, he did not intend to kill the victim Fareed Khan. Such contention of the learned counsel for the appellant Ateek Ahmed cannot be accepted that because intention of the accused can be derived from his conduct that he did not kill the victim Fareed Khan, but he had given such a forceful blow causing fatal injuries on the body of the victim Fareed Khan. He must have thought that the victim Fareed Khan would die due to single below. Under such circumstances, when he caused a fatal injury to the victim with the knowledge that by such fatal injury the victim could die, the ingredients of section 300 of IPC are attracted and the accused was guilty for the offence under section 307 of IPC. Hence the learned Additional Sessions Judge has rightly convicted the appellant Ateek Ahmed for the offence under section 307 of IPC for the victim Fareed Khan. 12. So far as the conviction of the appellants-accused is concerned, there are different version given by the various witnesses. Someone told that the appellant Ateek Ahmed was called by Shribhagwan Sharma and thereafter Shribhagwan Sharma held the victims Fareed Khan and Nafees Khan at the time of incident and thereafter the appellant Ateek Ahmed assaulted them. 12. So far as the conviction of the appellants-accused is concerned, there are different version given by the various witnesses. Someone told that the appellant Ateek Ahmed was called by Shribhagwan Sharma and thereafter Shribhagwan Sharma held the victims Fareed Khan and Nafees Khan at the time of incident and thereafter the appellant Ateek Ahmed assaulted them. Fareed Khan has stated that initially the appellant Ateek Ahmed assaulted his brother Nafees Khan and when he tried to save his brother Nafees Khan, then he assaulted him also, whereas Nafees Khan (PW2) has stated that initially Fareed Khan was held by Shribhagwan Sharma and Mohd. Farukh and the appellant Ateek Ahmed assaulted him by a knife, thereafter they assaulted. He has also stated that at the time of incident he was lying on the bed and Ateek Ahmed assaulted him on his back by a dagger. Looking to the version of the victim Nafees Khan, it would be apparent that when he was sleeping in his room, the appellant Ateek Ahmed assaulted him by a dagger and at the time of incident the remaining appellants were not present in the room where Nafees Khan was sleeping. Therefore, if the appellant Ateek Ahmed assaulted the victim Nafees Khan, then there was no role of remaining appellants and, therefore, their common intention cannot be presumed with the appellant Ateek Ahmed for the assault caused to the victim Nafees Khan. 13. The witnesses have stated in a very different manner about the assault caused to the victims and to whom assault was firstly caused. According to Fareed Khan and Nafees Khan, initially Ateek Ahmed assaulted the victim Nafees Khan first and thereafter when Fareed Khan intervened, he assaulted Fareed Khan on his left perineal region. However, if the FIR Ex.P-1 is perused, then it would be apparent that on the previous day of the incident the victim Fareed Khan was out of station, and, therefore, he called Shribhagwan Sharma and asked as to why he abused in the previous day and thereafter Shribhagwan Sharma called the appellant Ateek Ahmed, who came and assaulted on the left perineal region of the victim Fareed Khan and thereafter he assaulted the victim Nafees Khan, who tried to save his brother. Under such circumstances, it would be apparent that each and every witness has turned the prosecution story according to his/her version. Under such circumstances, it would be apparent that each and every witness has turned the prosecution story according to his/her version. Such story which is contradictory from the FIR cannot be accepted. Hence, it cannot be presumed that the appellant Ateek Ahmed assaulted the victim Nafees Khan first and thereafter he assaulted the victim Fareed Khan. 14. On the basis of the aforesaid discussion, it would be apparent that in the FIR it is nowhere mentioned that the appellant Mohd. Farukh held the victim Fareed Khan at the time of incident. It is nowhere told that the appellant Mohd. Farukh provoked the appellant Ateek Ahmed to assault the victim Fareed Khan. Hence, no common of the appellant Mohd. Farukh can be presumed in assaulting the victim Fareed Khan. By mere presence of the appellant Mohd. Farukh, it cannot be said that he had any common intention with the appellant Ateek Ahmed. Under such circumstances, it was not proved beyond doubt that the appellant Mohd. Farukh had any common intention with the appellant Ateek Ahmed in assaulting the victim Fareed Khan or Nafees Khan, and, therefore, he could not be convicted by any count of offence under section 307 of IPC with the help of section 34 of IPC, because neither he himself assaulted the victims nor he had any common intention with the main accused Ateek Ahmed. Hence, at present the appellant Mohd. Farukh could not be convicted for the offence under section 307 either directly or with the help of section 34 of IPC. 15. Similarly, it is alleged against the appellant Shribhagwan Sharma that he was called by the victim Fareed Khan to explain as to why he abused the family members of the victim Fareed Khan on the previous day and thereafter he called the appellant Ateek Ahmed, who abused the family members of Fareed Khan on the previous day and Ateek Ahmed gave blows to the victim Fareed Khan. It was alleged that Shribhagwan Sharma held the victim Fareed Khan and at that time Ateek Ahmed assaulted him. Looking to the material contradiction in the evidence given by the various witnesses, it would be apparent that the story of holding the victim Fareed Khan by the appellant Shribhagwan Sharma appears to be incorrect. It was alleged that Shribhagwan Sharma held the victim Fareed Khan and at that time Ateek Ahmed assaulted him. Looking to the material contradiction in the evidence given by the various witnesses, it would be apparent that the story of holding the victim Fareed Khan by the appellant Shribhagwan Sharma appears to be incorrect. If he would have held the victim Fareed Khan and the appellant Ateek Ahmed would have assaulted thereafter, then such assault could not be caused at random place of the body of the victim Fareed Khan. But looking to the random position of the injury caused to the victim Fareed Khan by holding him at the time of incident, it cannot be said that the appellant Shribhagwan Sharma held the victim Fareed Khan at the time of incident. There is no allegation against the appellant Shribhagwan Sharma that he held the victim Nafees Khan at the time of incident. 16. So far as the fact is concerned, that Shribhawan Sharma called the appellant Ateek Ahmed and thereafter Ateek Ahmed assaulted the victims. It is true that Shribhagwan Sharma called the appellant Ateek Ahmed, but there was no reason shown as to why the appellant Ateek Ahmed was called. If the appellant Ateek Ahmed was interested to cause a fatal injury to Fareed Khan, then he should have done some harm in furtherance of his common intention. Actually when Shribhagwan Sharma called the appellant Ateek Ahmed, then he did not know that Ateek Ahmed come with a dagger. If the appellant Shribhagwan Sharma would have framed conspiracy with the appellant Ateek Ahmed to give an assault, then due to the incident of the previous day present incident could have taken place with Nafees Khan and not with Fareed Khan. Fareed Khan was not present in the incident of the previous day, and, therefore, it could not be a plan that the victim Fareed Khan should be hurt in such a manner, and therefore if the appellant Shribhagwan Sharma called the appellant Ateek Ahmed, then by such call it cannot be said that he had any common intention with the appellant Ateek Ahmed. 17. 17. Fareed Khan was not present in the previous incident and there was no possibility of any planning to assault him, therefore by calling the appellant Ateek Ahmed, it cannot be said that the appellant Shribhagwan Sharma was intended to assault the victim Fareed Khan in a fatal manner with the co-accused Ateek Ahmed. As it is stated that when the victim Nafees Khan tried to save his brother, thereafter he was assaulted by the appellant Ateek Ahmed and Ateek Ahmed did not give fatal blow to him. Under such circumstances, it cannot be presumed that the appellant Ateek Ahmed came with a dagger to assault the victim Nafees Khan from very beginning, and therefore by calling the appellant Ateek Ahmed, it cannot be said that the appellant Shribhagwan Sharma had common intention to cause injury to the victim Nafees Khan. Under such circumstances, the prosecution has failed to prove the conduct of appellant Shribhagwan Sharma so that it can be presumed that he had any common intention with the coaccused Ateek Ahmed. There is no allegation on the appellant Shribhagwan Sharma that he himself assaulted any of the victims, therefore neither he can be convicted for the offence under section 307 nor of section 324 of IPC either directly or with the help of section 34 of IPC. The learned Additional Sessions Judge has committed an error of law and fact in convicting the appellant Shribhagwan Sharma for offence of section 307 of IPC. 18. So far as the sentence is concerned, the learned counsel for the appellant Ateek Ahmed has submitted that the appellant was the first offender and he has faced the trial and appeal since the year 1989. He remained for more than two years during the trial and appeal, and, therefore, his sentence may be reduced to the period for which he remained in the custody. In the present case it is true that the appellant was the first offender at the time of incident, however he remained in the custody for approximately 23 months. He was on bail during the trial and during the pendency of appeal he was released on temporary bail of two months vide order dated 8.5.1997 and thereafter he had absconded and his presence could be procured in April 2013, and therefore he remained absconding for 16 years. He was on bail during the trial and during the pendency of appeal he was released on temporary bail of two months vide order dated 8.5.1997 and thereafter he had absconded and his presence could be procured in April 2013, and therefore he remained absconding for 16 years. Therefore, it cannot be said that he has faced the trial and appeal for such a lengthy period. Looking to the overt-act that he gave a single blow and he had no criminal past, therefore some lenient view may be taken against the appellant. Under such circumstances, his jail sentence may be reduced from a period of 5 years’ RI to the period of 2.5 years with a direction that a heavy fine amount be imposed for the concerned offence. Since no separate sentence has been passed for the second offence under section 307 of IPC, then it would not be proper to pass a separate sentence against the appellant for the offence under section 324 of IPC committed by the appellant to the victim Nafees Khan. 19. On the basis of the aforesaid discussion, the Criminal Appeal No.1054/1996 and Criminal Appeal No.1103/1996 filed by the appellants Mohd. Farukh and Shribhagwan are hereby allowed. Their conviction and sentence for the offence under section 307 of IPC are hereby set aside. They are acquitted from all the charges appended against them. They would be entitled to get the fine amount back, if they have deposited the same before the trial Court. Whereas Criminal Appeal No.1396/1996 filed by the appellant Ateek Ahmed is hereby partly allowed. His conviction for the offence under section 307 of IPC (for the victim Fareed Khan) is hereby maintained, but sentence is reduced from the period of 5 years to the period of 2.5 years’ RI by enhancement of fine amount from a sum of Rs.5,000/- to a sum of Rs.10,000/-, in default of payment of fine, he shall undergo six months’ RI in addition. If fine is deposited, then a sum of Rs.7,000/- be given to the victim Fareed Khan s/o Shri Papa Khan resident of Sanjay Gandhi Nagar, Cantt., Jabalpur by way of a compensation. 20. If fine is deposited, then a sum of Rs.7,000/- be given to the victim Fareed Khan s/o Shri Papa Khan resident of Sanjay Gandhi Nagar, Cantt., Jabalpur by way of a compensation. 20. Since no separate conviction or sentence was passed by the trial Court for the victim Nafees Khan and if such conviction is directed and sentence is given, then that may run concurrently, therefore it makes no difference and there is no need to convict the appellant Ateek Ahmed for the offence under section 324 of IPC for the victim Nafees Khan, because no such conviction was directed by the trial Court. 21. Office is directed to arrange issuance of supersession warrant for the appellant Ateek Ahmed. The remaining appellants are on bail, their bail bonds shall stand discharged. 22. A copy of this judgment be sent to the trial Court with its record for information and compliance. ............