HIGH COURT OF MADHYA PRADESH AT JABALPUR
Division Bench : Hon’ble Shri Justice S.K.Gangele, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge
CRA No. 2452/2007
Sahib @ Afzal
Vs.
State of Madhya Pradesh
—————————————————————————————
Shri Abhishek Tiwari, Amicus Curiae for the appellant.
Shri A.P.Singh, Government Advocate for the respondent/State.
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CRA No. 2004/2008
Mohd. Sohel Ors.
Vs.
State of Madhya Pradesh
—————————————————————————————
Shri Sanjay Pandey, Advocate for appellants No. 1, 2, 4 5.
Ms. Sneha Mishra, Advocate for appellant No. 3.
Shri A.P.Singh, Government Advocate for the respondent/State.
—————————————————————————————
CRA No. 582/2010
State of Madhya Pradesh
Vs.
Sahib @ Afzal
—————————————————————————————
Shri A.P.Singh, Government Advocate for the appellant/State.
Shri Abhishek Tiwari, Amicus Curiae for the respondent No. 1.
Smt. Sushila Paliwal, Amicus Curiae for the respondent No. 2.
—————————————————————————————
JUDGMENT
(08/05/2018)
Per : Smt. Anjuli Palo, J :-
1. As these appeals have been filed by the accused persons
being aggrieved by the common judgment dated 16.10.2007
passed by VI Additional District and Sessions Judge, Bhopal
2 CRA No. 2452/2007
CRA No. 2004/2008
CRA No. 582/2010
in Session Trial No. 146/2006. Criminal appeal No.
2452/2007 has been preferred by appellant Sahib @ Afzal
challenging the conviction; Criminal Appeal No. 2004/2008
has been filed by Mohd. Sohel, Mohd. Shaukat, Soyeb,
Sharafat and Shahjad Khan challenging the conviction; and
Criminal Appeal No. 582/2010 has been filed by the State
challenging the acquittal of appellants Sahib @ Afzal and
Majid from the charges under Section 147, 148 and 302 r/w
Section 49 of IPC.
Appellant Sahib @ Afzal and Majid have been convicted and
sentenced as below :
Section Act Imprisonment Fine In
default of
fine
25(1)(b) of Arms Act RI for one year 2000/- 3 months
Appellants Mohd. Sohel, Mohd. Shaukat, Soyeb, Sharafat
and Shahjad have been convicted as under :
Section Act Imprisonment Fine In
default of
fine
147 Indian Penal Code RI for two years 1000/- 6 months
148 Indian Penal Code RI for three years 1000/- 6 months
149/302 Indian Penal Code Life Imprisonment 5000/- 6 months
25(1-B) Arms Act RI for one year 2000/- 3 months
Appellant Mohd. Shaukat has been further convicted as
under:
Section Act Imprisonment Fine In
default of
fine
324 Indian Penal RI for one year 2000/- 3 months
Code
3 CRA No. 2452/2007
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CRA No. 582/2010
2. In brief the prosecution case is that on 25.01.2006 at
about 11:00 pm at Motilal Nagar, PS Nishatpura, Rijwan
Khan (PW-9) heard the noise of a quarrel outside his house.
He came out from his house and saw that the appellants and
other co-accused were assaulting Akram Bhaijan with their
knives and abusing him. The appellants were annoyed with
Akram. They suspected that, Akram had informed the police
(mukhbiri) about their profession. They inflicted blows of
their knives on his head, chest, stomach, back and legs. They
intended to kill Akram. Rijwan (PW-9) went there to rescue
Akram, but the appellant Shaukat assaulted him with a knife
on his left palm. Khalid, Mohd. Azam and Javed also came to
rescue Akram. Akram fell down due to fatal injuries. Then
appellants fled away. The persons who were present there
brought him to Hamidia Hospital, where doctor declared him
dead. Then, an FIR was lodged by Rijwan (PW-9) at police
station, Nishatpura. The police registered crime under
Section 302/149 and 324 of IPC against all the appellants and
other accused persons. After investigation, charge sheet has
been filed against them under the same provision before the
concerned Court.
3. After committal of the case learned trial Court
conducted trial and held that except the accused Sahib @
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Afzal and Mazid @ Chhotu, all the appellants are liable for
committing the murder of deceased (Akram) in furtherance of
their common object to kill Akram. They are members of
unlawful assembly to cause death of Akram. At the time of
occurrence, they were armed with deadly weapons (like
knife). Hence, they have committed offence of rioting and
armed with deadly weapon and caused death of Akram which
is punishable under Section 148 and 302/149 of IPC. At the
same time, the appellants Mohd. Shaukat has voluntary
caused simple injuries to witness Rijwan (PW-9) by his knife.
Hence, he was convicted under Section 324 of IPC and
sentenced for life imprisonment and rigorous imprisonment
for one year, respectively. The respondents Mohd. Sahib @
Afzal and Mazid were convicted only under Section 25 Arms
Act and sentenced as mention above.
4. The appellants have challenged the aforesaid
findings on the grounds that learned trial Court has
committed an error while convicted them on weak type of
evidence. There were many contradictions, omissions and
improvements in the versions of the prosecution witnesses.
The testimony of all the eye witnesses is entirely
unbelievable. The trial Court has failed to see that there was
a sudden quarrel which was not a result of pre-meditative act.
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The appellants were not the hardened criminals. The learned
trial Court ought to have acquitted them. The prosecution has
not proved the seizure of the knives. The medical evidence
has also not established that the appellants had a common
intention to commit murder of the deceased. The evidence of
prosecution witnesses are not corroborated by any other
independent witnesses. Hence, evidence of prosecution is
tainted. Many illegalities and irregularities were committed
by the Investigating Officer. It was also alleged that defence
ought to have been accepted in favor of appellants. Hence,
impugned judgment is liable to be set aside and appellants
are liable to be acquitted. State has challenged the acquittal
of the appellants Mohd. Sahib @ Afzal and Mazid from
charges under Sections 147, 148, 149 and 302 of IPC on the
grounds that the trial Court has erred in not appreciating the
entire evidence in proper prospective. The findings of trial
Court are illegal and liable to be set aside and have prayed
for conviction of the respondents Mohd. Sahib @ Afzal and
Mazid for rioting with deadly weapons and murder of Akram
under Section 148 and 302/149 of IPC.
5. We have heard all the learned counsel for the
parties at length and perused the record.
6 CRA No. 2452/2007
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6. The point for determination is that –
Whether the appellants are rightly convicted under
the charges levelled against them.
7. To establish the crime against them, the
prosecution is based on the testimony of eye-witness Rizwan
(PW-9) who is an injured eye-witness. He deposed that at the
time of incident on 25.01.2006 at about 10:30 pm to 11:00
pm, he was present at his house. He heard noise of a quarrel
outside and came out. He saw that all the appellants had
surrounded Akram (since deceased) and were abusing him.
They were armed with knives and told Akram that he was the
informant of the police against the appellants. The appellants
inflicted blows on him using their knives. He sustained
several injuries on his stomach, head, back, leg, chest, etc.
He fell down on the ground. Rizwan (PW-9) reached there to
rescue Akram. Appellant Shaukat assaulted Rizwan by knife.
Rizwan sustained injuries on his left palm. On hearing the
hue and cry, Azam, Khalid, Javed and other persons also
came there and tried to save Akram and Rizwan from the
appellants. Then, the appellants ran away from the spot.
10. Akram and Rizwan were brought to the police
station and on the advice of the police, they were brought to
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Hamidia Hospital. Doctors declared Akram dead. Police
also came there. Dehati Nalishi Ex. P/26 has been lodged by
Rizwan (PW-9). The testimony of Rizwan (PW-9) is also
corroborated by the other eye-witness, Mohd. Azam (PW-10),
Khalid (PW-11) and Javed (PW-13). All the eye-witnesses
strongly proved their presence at the scene of occurrence.
11. S.R.Yadav (PW-20) Inspector deposed that on the
same day, he received information about the incident. He
reached Hamidia Hospital and lodged Dehati Nalishi Ex.
P/26 as narrated by Rizwan (PW-9). Dehati Nalishi (Ex.
P/26) was received by Inspector R.S.Rai (PW-17). He
deposed that FIR Ex. P/34 was registered by him on
26.01.2006 at 1:00 am under Section 302, 149 and 324 of
Indian Penal Code against the appellants. Dehati Nalishi Ex.
P/26 and FIR Ex. P/34 also corroborate the testimony of
Rizwan and other eye-witnesses.
12. Both the documents clearly establish the
involvement of all the appellants. Names of all the other
eye-witnesses are also mentioned in the FIR Ex. P/34 and
dehati nalishi Ex. P/26. The promptness in lodging the FIR
by names of the assailants and all the material facts
mentioned in FIR itself indicate the truthfulness of the
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incident. It prevents the possibility of false implication of
the appellants in the concocted story. There is no material
contradictions and omission in the testimonies of eye-
witnesses. There is no inconsistency between their
testimonies and with the FIR which inspires confidence and
establish that the evidence of the eye-witnesses is
trustworthy. Hence, it it not liable to be disbelieved.
13. It is also pertinent to mention here that the
Rizwan (PW-9) is injured eye-witness. The testimony of
injured eye-witness has great evidentiary value. In case of
Mukesh Vs. State (NCT) of Delhi [(2017) 6 SCC 1], the Hon’ble
Supreme Court has held that –
“The injuries found on the person of who
was injured in the same occurrence lends
assurance to his testimony that he was
present at the time of the occurrence along
with the prosecutrix. The evidence of an
injured witness is entitled to a greater
weight and the testimony of such a witness
is considered to be beyond reproach and
reliable. Firm, cogent and convincing
ground is required to discard the evidence
of an injured witness”.
14. Dr. Pravendra Malik (PW-14) examined Rizwan
(PW-9) on the date of incident at about 11:00 pm. He found
an incised wound of about 2.5 x 1 cms on his left palm and
internal tissues were visible from the cut. Rizwan was not
9 CRA No. 2452/2007
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able to move his ring finger and little finger.
15. As per Dr. Pravendra Malik, all the injuries were
caused by hard and sharp object. In his cross-examination,
he strongly denied that the injuries were caused by broken
glass. The evidence of Dr. Pravendra Malik is corroborated
by the testimony of other eye-witnesses particularly the
testimony of Rizwan (PW-9). Dr. J.K.Chourasia (PW-12)
also corroborated the testimony of Dr. Pravendra Malik.
Hence, it is properly believed by the trial Court.
16. Dr. J.K.Chourasia (PW-12) also examined the
injuries of deceased Akram on the same date of incident at
around 11:20 pm at Hamidia Hospital. Dr. Ashok Sharma
(PW-19) conducted autopsy of the deceased Akram and
found the following injuries on the person of the deceased :
(i) Abrasion on left forehead obliquely
of 6×0.5 cms.
(ii) Incised wound on mid forehead of
3×0.1 cms.
(iii) Long incised wound on the forehead
of 5×0.3 cms extending towards left
auxillary region of 1×0.5 cms.
(iv) Penetrating stab wound on left chest
of 3x0.3 cms. from chest rupturing
the lungs and heart
(v) Stab wound below and similar to
injury No. (iv) of 2.5 x 0.3 cms.
(vi) Penetrating stab wound of 4.5 cms
below and similar to injury No. (v) of
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1.5 x 3 cms. Main artery was cut.
(vii) Stab wound below injury No. (vi) on
the stomach of 1x0.2 cms and 10 cms
depth.
(viii) Stab wound radial to injury no. (iv)
of 1x0.3 cms and depth of 7 cms.
cutting the main artery.
(ix) Stab wound of 8 cms lateral to injury
no. (5) on the stomach of 1x0.3 cms
and depth of 14 cms penetrating the
intestine.
(x) Stab wound on the stomach lateral to
injury No. (viii) of 1x0.3 cms on the
stomach and 7 cms in depth cutting
intestine.
(xi) Stab wound lateral to injury No. (x)
on the stomach of 1.2x0.3 cms
cutting the intestine and spleen.
(xii) Multiple stab wound on left back : 7
in number.
(xiii) Stab wound on the right side of back
of 1.2x0.3x7 cms deep rupturing the
lung.
(xiv) Long lacerated wound on the right
shoulder of 5x1 cm.
(xv) Stab wound on the right chest of
1.3x0.2 cms penetrating the chest
rupturing the lung.
(xvi) Stab wound near injury no. (xv) of
1x0.2 cms and 7 cms. deep
penetrating the chest.
(xvii) Stab wound on right side of back of
15x0.3 cm and 8 cms deep
penetrating the diaphragm and large
intestine.
(xviii) Stab wound on right side of chest 1.3
x 0.2 cms. and 7 cms deep
penetrating the stomach.
(xix) Stab wound 6 cms. below injury No.
16 of 13x0.3 cms penetrating the
11 CRA No. 2452/2007
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stomach rupturing the large intestine.
(xx) Stab wound 4 cms below injury No.
16 penetrating the stomach of 1.2x0.2
cms, 6 cms deep
(xxi) Incised wound on the right knee
1x0.2 cms.
(xxii) Incised wound below 4 cms of above
wound of 1x3 cm.
(xxiii) Lacerated wound on the right ankle
of 4x1 cms x bone deep.
(xiv) Lacerated wound on right side of
head 5x1 cms.
(xvi) Incised wound on left parietal region
of 3.5x0.5 cms.
17. Dr. Ashok Sharma (PW-19) opined that deceased
died due to excessive bleeding from several fatal wounds and
coma. All the injuries were caused by hard, sharp and pointed
objects and were sufficient to cause death of the deceased in
ordinary course of nature within 24 hours from postmortem.
He also found cut impression on the clothes of the deceased.
Parallel to the injuries found on the body of the deceased.
18. Inspector S.R. Yadav (PW-20) stated that on
27.01.2006, he recorded the memorandums of the appellants
Mohd. Shaukat, Mohd. Sohel and Mohd. Soyeb as Ex.P/6,
Ex.P/7 and Ex.P/8. According to their memorandums, he
seized a knife from the house of the appellant Mohd.
Shaukat. Similarly, he recovered another knife from the
possession of appellant Mohd. Sohel and a knife was
12 CRA No. 2452/2007
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recovered from the possession of appellant Mohd. Soyeb.
Different knives were seized form the possession of Mohd.
Shaukat, Mohd. Sohel and Mohd. Soyeb vide seizure memo
Ex.P/12. Ex.P/13 and Ex.P/14. S.R. Yadav (PW-20) has also
recovered three different knives as per the memorandums of
of appellants Sahab @ Afzal, Mohd. Majid @ Chotu and
Shahzad vide seizure memo Ex.P/16, Ex.P/15 and Ex.P/17.
19. Dr. Ashok Sharma (PW-19) examined all the six
knives which were hard, sharp and pointed objects. He
deposed that he took a picture of the aforesaid weapons. The
injuries mentioned in his postmortem report (Ex.P/36) and
cut marks found on the clothes of the deceased can be caused
by the aforesaid weapons. His report Ex.P/38 has also
supported the prosecution case properly. It is important to
mention here that learned counsel for the appellants has not
cross-examined Dr. Ashok Sharma (Pw-19) nor he has
challenged the doctor's opinion. In our considered opinion
the testimony of Dr. Ashok Sharma (PW-19) has duly
corroborated the direct evidence. There is no reason to
disbelieve the opinion of Dr. Ashok Sharma which has
further corroborated by other evidence on record and doctor's
opinion. All the weapons were sent for FSL examination by
S.R.Yadav (PW-20). In the FSL report (Ex.P/40) blood stains
13 CRA No. 2452/2007
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were found on the soil collected from the spot and clothes of
the deceased and particularly all the six knives as Article-E,
F, G, H, I J all were blood stained, which were recovered
from the appellants. In four knives as Article-E, F, H J,
the expert confirmed that human blood was present on it.
Due to the technical reason that spots of blood were
disintegrated and quantity of blood was not sufficient.
Origin of blood was not confirmed in FSL report.
20. In case of State of Rajasthan Vs. Teja Ram
Ors. [(1999) 3 SCC 507], Hon'ble Supreme Court has held
as under :
"Failure of the Serologist to detect the origin of
the blood, due to disintegration of the serum in
the meanwhile, does not mean that the blood
stuck on the axe would not have been human
blood at all. Sometimes it happens, either
because the stain is too insufficient or due to
hematological changes and piasmatic
coagulation that a Serologist might fail to detect
the origin of the blood. Will it then mean that
the blood would be of some other origin? Such
a guess work that blood on the other axe would
have been animal blood is unrealistic and far
fetched in the broad spectrum of this ease. The
effort of the criminal court should not be to
prowl for imaginative doubts. Unless the doubt
is of a reasonable dimension which a judicially
conscientious mind entertains with some
objectivity no benefit can be claimed by the
accused.
It cannot be said that in all cases where there
was failure of detecting the origin of the. blood
the circumstance arising from recovery of the
14 CRA No. 2452/2007
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weapon would stand relegated to disutility."
21. In the case of Sunil Clifford Daniel Vs. State of
Punjab [(2012) 11 SCC 205] similarly held as under :
"A similar issue arose for consideration by this
Court in Gura Singh v. State of Rajasthan,
AIR 2001 SC 330, wherein the Court, relying
upon earlier judgments of this Court,
particularly in Prabhu Babaji Navie v. State of
Bombay, AIR 1956 SC 51; Raghav Prapanna
Tripathi v. State of U.P., AIR 1963 SC 74; and
Teja Ram (supra) observed that a failure by the
serologist to detect the origin of the blood due to
dis-integration of the serum, does not mean that
the blood stuck on the axe would not have been
human blood at all. Sometimes it is possible,
either because the stain is too insufficient, or due
to haematological changes and plasmatic
coagulation, that a serologist may fail to detect
the origin of the blood. However, in such a case,
unless the doubt is of a reasonable dimension,
which a judicially conscientious mind may
entertain, with some objectivity, no benefit can
be claimed by the accused, in this regard.
In view of the above, the Court finds it
impossible to accept the submission that, in the
absence of the report regarding the origin of the
blood, the accused cannot be convicted, upon an
observation that it is only because of lapse of
time that the classification of the blood cannot
be determined. Therefore, no advantage can be
conferred upon the accused, to enable him to
claim any benefit, and the report of dis-
integration of blood etc. cannot be termed as a
missing link, on the basis of which, the chain of
circumstances may be presumed to be broken.
As the recoveries of the bloodstained gunny
bag, dumb-bell, tie, etc. were made on the
basis of the disclosure statement of the
15 CRA No. 2452/2007
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appellant himself, the chain of
circumstances is therefore complete."
22. Therefore, we come to the conclusion that there is
ample and sufficient evidence against the appellants to
establish that they were gathered together with common
objective of committing murder of the deceased. They jointly
acted in a cruel and unusual manner towards deceased Akram
who was unarmed.
23. We are not convinced with the submission of
learned counsel for the appellants that this was a case which
falls under exception 4 of Section 300 of IPC is quoted here
in below:-
"Exception 4. Culpable homicide is not
murder if it is committed without premeditation
in a sudden fight in the heat of passion upon a
sudden quarrel and without the offender having
taken undue advantage or acted in a cruel or
unusual manner."
The language of Exception 4 to Section
300 is, thus, clear that culpable homicide is not
murder if it is committed without premeditation
in a sudden fight in the heat of passion upon a
sudden quarrel provided the offender has not
taken undue advantage or acted in a cruel or
unusual manner. In this case, there is no evidence
to show that the deceased was armed in any
manner. On the other hand, the appellants were
armed with knives and attacked the deceased on
him even after he fell down. Thus, all the
appellants, who were the offenders, have taken
undue advantage and acted in a cruel and unusual
16 CRA No. 2452/2007
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manner towards the deceased who is not proved
to have been armed.
24. It was also stated by the eye witnesses that during
the incident, deceased had fallen down then surrounded and
assaulted by the accused persons. There are 26 fatal injuries
on all over of the body of the deceased including his head,
chest, abdomen, spleen and intestine. All the injuries were
caused by hard, sharp and pointed weapons as narrated by Dr.
Ashok Sharma (PW-19) in his report Ex.P/38. In our
opinion, Section 149 of IPC properly invoked for convicting
the aforesaid six appellants herein. With regard to the
acquittal of the appellants Afzal and Majid from the charges
under Sections 147, 148 and 302 read with Section 149 of
IPC.
25. Learned trial Court has held that as per the
defence version their presence on the spot is doubtful. All the
eye witnesses have clearly identified them by their names.
They have also established their active involvement with the
crime along with the other appellants. Police has also seized
knives from their possession, as per their memorandums.
Blood stains were found on their knives.
26. In our considered opinion, plea of alibi which was
17 CRA No. 2452/2007
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taken by them is purely an afterthought. All the eye witnesses
have not accepted that at the time of the incident appellant
Afzal and Majid were not present on the spot. It is also
important to note that Rizwan (PW-9) is an injured eye
witness. No suggestion has been given to him about "not
presence of the appellants Sahib @ Afzal and Majid" on the
spot or with regard to their plea of alibi. Similarly, no
suggestion has been given to the other eye witnesses nor they
accepted the absence of the aforesaid appellants from the
spot. It is apparently clear that the story of defence witnesses
is after thought. It is made during the stage of defence
evidence. On the aforesaid reason we are not inclined to
accept the aforesaid defence version in favour of the
appellants Sahib @ Afzal and Majid.
27. In case of Pawan Kumar Vs. State of Himachal
Pradesh, (2017) 7 SCC 780 the Hon'ble Supreme Court has
held as under:
"First we shall deal with the nature of
jurisdiction the High Court exercises when it
reverses a judgment of acquittal to that of
conviction in exercise of appellate jurisdiction.
It is put forth by the learned Additional
Advocate General that the prosecution has
been able to establish the active role played by
the accused by adducing cogent evidence and
hence, the reversal of the judgment of acquittal
by the High Court is absolutely flawless. In
Jadunath Singh and others v. State of Uttar
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CRA No. 582/2010
Pradesh [(1971) 3 SCC 577], a three-Judge
Bench of this Court has opined:- "22. This
Court has consistently taken the view that in an
appeal against acquittal the High Court has full
power to review at large all the evidence and to
reach the conclusion that upon that evidence
the order of acquittal should be reversed. This
power of the appellate court in an appeal
against acquittal was formulated by the
Judicial Committee of the Privy Council in
Sheo Swarup v. King Emperor [AIR 1934 PC
227] and Nur Mohammad v. Emperor [AIR
1945 PC 151]. These two decisions have been
consistently referred to in the judgments of this
Court as laying down the true scope of the
power of an appellate court in hearing criminal
appeals (see Surajpal Singh v. State [AIR
1952 SC 52]; Sanwat Singh v. State of
Rajasthan [AIR 1961 SC 715]; Sudha
Renukaiah Ors. Vs. State of Andhra
Pradesh [(2017) 13 SCC 81] and Gandi
Doddabasappa @ Gandhi Basavaraj Vs.
State of Karnataka [(2017) 5 SCC 415])."
28. In our opinion, learned trial Court has committed
an error in acquitting Sahib @ Afzal and Majid form the
charges under Sections 147, 148 and 302 read with Section
149 of IPC.
29. Accordingly, CRA No. 582/2010 filed by the State
for convicting Sahib @ Afzal and Majid is hereby allowed.
Their acquittal from the aforesaid charges is hereby set aside.
They are also convicted under Sections 147, 148 and 302
read with Section 149 of IPC and are awarded sentence as
follows :
19 CRA No. 2452/2007
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CRA No. 582/2010
Section Act Imprisonment Fine In
default of
fine
147 Indian Penal Code RI for two years 1000/- 6 months
148 Indian Penal Code RI for three years 1000/- 6 months
149/302 Indian Penal Code Life Imprisonment 5000/- 6 months
All the sentences shall run concurrently.
30. CRA No. 2452/2007 filed by the appellant Sahib
@ Afzal and CRA No. 2004/2008 filed by the other
appellants are hereby dismissed.
31. It is directed that the appellants Sahib @ Afzal and
Majid shall immediately surrender before the trial Court for
undergoing remaining part of their sentence under Sections
147, 148 and 302 read with Section 149 of IPC and Section
25 (1)(B) or Arms Act. In case the other appellants are on
bail, they shall surrender immediately before the trial Court
to serve the remaining part of their jail sentence, failing
which the trial Court shall take appropriate action against
them under intimation to the Registry of this Court.
32. Copy of this judgment be sent to the Court below
for information and compliance alongwith its record.
(S.K.GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE
vidya
Digitally signed by
SREEVIDYA
Date: 2018.05.09 10:47:52
+05'30'
