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2019 DIGILAW 132 (MP)

Shafique Shah v. State of M. P.

2019-02-11

ANJULI PALO, J.K.MAHESHWARI

body2019
JUDGMENT Maheshwari, J--1. This appeal under section 374(2) of the Code of Criminal Procedure (hereinafter shall be referred to as ''CrPC'') has been filed being aggrieved by the judgment of conviction and the sentence dated 18.8.2009 passed by the Additional Sessions Judge Sohagpur, District Hoshangabad in Sessions Trial No.118/2008 convicting the appellants for the charge of sections 302/34 and 450 of the Indian Penal Code (hereinafter shall be referred to as ''I.P.C'') and sentencing them to undergo imprisonment for life and rigorous imprisonment for three years and to pay a fine of Rs.1000/- in default of payment of fine to further undergo imprisonment for two months each. 2. The case of the prosecution in nutshell is that complainant Shakeel, who was in the occupation of tailoring business, lodged the FIR that his elder brother Mohammad Shafique is running the business of general store and grossery in a rented premises (shop) of Khaleel Shah (since deceased). On 22.4.2007 in the morning at about 8 a.m., his brother Mohammad Shafique went to open his shop and he also proceeded to the market and on his return, when he was crossing the shop of his elder brother, he saw that Shafique Shah and Shakeel Shah (accused persons) have entered in his shop and assaulted him by means of knife. Khaleel Shah was throwing the jars of the general items on the road and threatening his elder brother that if he does not vacate the shop, he would face the dire consequences. When the complainant made an attempt to save his elder brother Mohammad Shafique, the accused persons ran away from the spot. Mohammad Shafique has received two injuries on his person. When the complainant was taking his elder brother to the police station, in front of the shop of Murari Seth, Mohammad Shafique became unconscious and fell down. Mohammad Shafique was admitted to the Sohagpur Hospital with the help of Pawan Choudhary, Mahesh Pachori, Jahar Telkar. The incident was witnessed by Habib Tailor, Abbas, Chhote Khan. It is said that a suit for ejectment was pending between the parties in the competent Court but without awaiting the legal decision from Court, the accused persons wanted to get vacated the shop forcibly, therefore, making assault by means of knife, the injuries have been caused to Mohammad Shafique. The incident was witnessed by Habib Tailor, Abbas, Chhote Khan. It is said that a suit for ejectment was pending between the parties in the competent Court but without awaiting the legal decision from Court, the accused persons wanted to get vacated the shop forcibly, therefore, making assault by means of knife, the injuries have been caused to Mohammad Shafique. When he was brought to the Sohagpur Hospital, Dr.Sudhir Dehariya (PW13) sent the information to the police station vide Exhibit P-17 on which Assistant Sub Inspector Shri R.K.Mishra (PW17) registered the Dehati Nalishi vide Exhibit P-11 and asked for the M.L.C report. On the basis of the Dehati Nalishi, the first information report was registered vide Exhibit P-21. The spot map was prepared by Inspector C.P.Dwivedi (PW16). As the injures sustained by the deceased were severe in nature, therefore, he was referred to the Hoshangabad Hospital where during treatment he succumbed to the injuries for which an intimation was given to the police station whereupon the offence was registered against the accused persons and thereafter the autopsy of the dead body of deceased was conducted by Jitendra Khare (PW18) vide Exhibit P-22. 3. After completion of the investigation, the Challan was filed in the Court of Judicial Magistrate First Class but as the case was triable by the Court of Sessions, therefore, it was committed to the Court of Sessions from-where it was received by the Additional Sessions Judge for trial where the charges of sections 302/34, 450, 452, 427 of the I.P.C were framed against the accused persons. 4. The appellants have abjured their guilt and taken a defence of false implication. The prosecution examined as many as twenty-one witnesses in support of their case. The accused persons have also examined one witness, namely, Ahmad Shah as DW1 in support of their defence. 5. The trial Court relying upon the testimony of the eyewitnesses, namely, Shaheed (PW5), Mohammad Shakeel (PW10), Abbas Khan (PW11), Sheru Rahim (PW12) corroborating the same with the medical evidence found that it is a case of commission of murder by the two accused persons by means of knife and convicted the appellants for the charge of sections 302/34 and 450 of the I.P.C. and directed them to undergo the sentence as hereinabove described. 6. 6. Learned amicus curiae representing the appellants has strenuously urged that the conviction of appellants is not based on due appreciation of the evidence brought on record by the prosecution. It is urged that Mohammad Shakeel (PW10), youner brother of deceased Mohammad Shafique and Abbas Khan (PW11) have not supported the prosecution story. It is urged that the testimony of the eye-witnesses, Shaheed (PW5) and Sheikh Rahim (PW12) also cannot be relied upon. Looking to the nature of injuries received by the deceased, it cannot be said to be a case of culpable homicide amounting to murder. Looking to the facts and circumstances of this case, hardly it may be a case of attempt to commit murder falling under section 307 of the IPC and on account of the death of the deceased, the accused persons cannot be dealt with for the charge of section 302 of the IPC In view of the aforesaid, it is urged that the trial Court has committed an error of law to convict the appellants on the basis of the said evidence brought by the prosecution. 7. On the other hand, learned Panel Lawyer representing the respondent/State has argued in support of the finding recorded by the trial Court and relying upon the testimony of Shaheed (PW5), Mohammad Shakeel (PW10), Abbas Khan (PW11), Sheru Rahim (PW12), contended that it is a clear case of murder wherein the incident was witnessed by Mohammad Shakeel (PW10), who was the author of the first information report and corroborating his testimony with the testimony of the police officials which also found support from the medical evidence so also the testimony of Shaheed (PW5) and Sheru Rahim (PW12), the injuries were found proved on the person of deceased resulting into his death, therefore, the trial Court has not committed any error of law to convict the appellants for the charge mentioned hereinabove. 8. We have heard learned counsel for the parties. It is pertinent to mention here that deceased is Mohammad Shafique while one of accused of Shafique Shah. Similarly, the complainant is Mohammad Shakeel while the other co-accused is Shakeel Shah. With the aforesaid explanation, now the case is required to be analyzed on merits. The deceased was a tenant in the shop of the accused persons. The case for ejectment was pending in the Civil Court. Similarly, the complainant is Mohammad Shakeel while the other co-accused is Shakeel Shah. With the aforesaid explanation, now the case is required to be analyzed on merits. The deceased was a tenant in the shop of the accused persons. The case for ejectment was pending in the Civil Court. On 22.4.2007, the accused persons alongwith their father Khaleel Shah visited to the shop in which deceased Mohammad Shafique was running the business of general store and grossery. Khaleel Shah thrown out the jar of the general items from the shop on the road and exhorted that if the deceased does not vacate their shop, he would face dire consequences. Accused Shafique Shah and Shakeel Shah entered in the shop of Mohammad Shafique and assaulted him by means of knife. The incident was witnessed by Mohammad Shakeel (PW10). Mohammad Shaheed (PW5) is also an eye-witness to the incident. He saw that accused Shafique Shah assaulted the deceased by means of knife on his stomach while co-accused Shakeel Shah was standing there. The said testimony found support from the MLC performed by Dr. Sudhir Dehariya (PW13). Thereafter, as per the postmortem performed by Dr. Jitendra Khare (PW18), the injuries were found on the stomach and the intestine was coming out from the said injuries resulting into the death of the deceased. In addition to the aforesaid, the testimony of the other witnesses, namely, Mahesh Pachori (PW1), Lateef (PW2), Sheikh Rahim (PW3), Pawan Kumar Choudhary (PW4) has also been considered by the trial Court where some of the witnesses have supported the prosecution story. After considering the evidence and the material brought on record by the prosecution, the trial Court reached on conclusion that the charges framed against the accused persons have been proved under sections 302/34 and 450 of the IPC and accordingly convicted and sentence them as mentioned hereinabove. 9. In our considered opinion, the trial Court has not committed any error in relying upon the testimony of Shaheed (PW5), Mohammad Shakeel (PW10), Abbas Khan (PW11), Sheru Rahim (PW12) corroborating the same with the medical evidence. Some of the witnesses, who partially remained hostile, is of no help to the appellants looking to the evidence of the other eye-witnesses. The charge of commission of murder of deceased Mohammad Shafique against the appellants has been proved by the prosecution beyond reasonable doubt. Some of the witnesses, who partially remained hostile, is of no help to the appellants looking to the evidence of the other eye-witnesses. The charge of commission of murder of deceased Mohammad Shafique against the appellants has been proved by the prosecution beyond reasonable doubt. Under such circumstances, the finding of conviction and the sentence as directed by the Trial Court do not warrant any interference in this appeal. 10. Insofar as the alternative argument regarding conversion of the offence from the charge of section 302 to section 307 of the IPC is concerned, looking to the injuries sustained by the deceased, it cannot be said that the appellants were not having common intention to cause bodily injury sufficient to cause his death in ordinary course of nature. It does not appear to be a case for attempt to commit murder but infact is appears to be a case in which the accused persons have intentionally assaulted the deceased by means of knife on his vital part resulting into his death, therefore, the alternative argument regarding conversion of charge from section 302 to section 307 of the IPC is hereby repelled. 11. Resultantly, this appeal filed by the appellants is devoid of any merit and hence it is dismissed maintaining the finding of conviction and the order of sentence passed against the appellants for the charge of sections 302/34 and 450 of the IPC vide judgment dated 18.8.2009 passed by the Additional Sessions Judge Sohagpur, District Hoshangabad in Sessions Trial No. 118/2008. 12. At the end, it is our duty to record the words of appreciation in favour of the amicus curiae, who assisted the Court in the disposal of this appeal, which is pending since 2009. Pradeep Dwivedi, Amicus Curiae for appellants; Smt. Manjeet P.S. Chuckal, Panel Lawyer for respondent/State.