Criminal Appeal No. 1243 of 2007 with Criminal Appeal No. 1399 of 2008 and Criminal Appeal Nos.1363-1365 of 2010-Decided on 14-09-2010. Case: 1. Abdul Sayeed, 2. Rafique, 3. Rais @ Toun & Ors. Vs State of Madhya Pradesh. Supreme Court (India)
| Case Number | Criminal Appeal No. 1243 of 2007 with Criminal Appeal No. 1399 of 2008 and Criminal Appeal Nos.1363-1365 of 2010-Decided on 14-09-2010 |
| Judges | P. Sathasivam & Dr. B.S. Chauhan, JJ. |
| Issue | Indian Penal Code - Sections 34, 302, 323, 147, 148, 149 and 307; Code of Criminal Procedure 1973 - Section 464 (1) |
| Judgement Date | September 14, 2010 |
| Court | Supreme Court (India) |
Judgment:
Dr. B.S. Chauhan, J.
1. All the aforesaid appeals have been filed against the common judgment and order dated 12.1.2006, of the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal Nos.1191 of 1998; 1210 of 1998; and 281 of 2001 by which the appellants have been convicted under Sections 302/34 of the Indian Penal Code, 1860 (hereinafter called IPC) for committing the murders of Chand Khan and Shabir Khan, while setting aside their conviction under Sections 147 and 148 IPC awarded by the Trial Court.
2. Facts and circumstances giving rise to these appeals are that on 16.8.1994 at about 7.50 p.m., F.I.R. No.1/1994 under Sections 302, 147, 148, 149 and 307 IPC was lodged at Police Station Mandai Chowk Sarangpur, Madhya Pradesh, according to which 17 accused including 5 appellants armed with deadly weapons came from the mosque way; stopped Chand Khan and started beating him with weapons with an intention to kill him. After hearing the hue and cry made by Chand Khan, his wife Zaira Banu, sons Shabir (deceased), Anees (PW.1), and Ashfaq (PW.2), and brother Usman Ali (PW.4) came running to the place of occurrence and after seeing the incident, they were so scared that they could not muster the courage to intervene immediately. After some time Zaira Banu, Shabir and Ashfaq tried to rescue Chand Khan. Shabir was also assaulted, he was seriously injured and died on the spot. Ashfaq (PW.2), and his mother Zaira Banu also got injuries on their persons at the hands of the accused.
3. The Investigating Officer sent the dead bodies for post-mortems which were conducted by Dr. R.P. Sharma (PW.3). In his opinion, the cause of death of both Chand Khan and Shabir was excessive hemorrhage resulting in injuries to brain and lungs. Ashfaq (PW.2) was also examined medically. After completing the investigation, out of the seventeen accused, fourteen were put to trial for offences under Sections 148, 302 and 323, in the alternative 302/149, 324/149 and 323/149 IPC. One Nanhe Khan @ Abdul Wahid died before commencement of trial. One accused namely, Rais S/o Mumtaz is still absconding. While Iqbal @ Bhura, appellant, had also absconded, but afterwards he surrendered and was tried separately. The appellants and the other accused denied the charges and pleaded that they were falsely implicated and claimed trial. The prosecution examined 12 witnesses including Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4), as eye-witnesses. The other relevant witnesses were Dr. R.P. Sharma (PW.3) who conducted the post-mortems on the bodies of the deceased, Ramesh Kumar Dubey (PW.7) and Rajmal Sharma (PW.8) who had investigated the case. The appellants examined 4 witnesses in defence.
4. After conclusion of the trial, the Special Additional Sessions Judge, Shajapur, convicted Abdul Sayeed (A.11), Mumtaz Khan (A.9), Rafiq (A.6) and Rais (A.5) under Section 148 IPC and awarded a sentence of 3 years' imprisonment to each; Mumtaz (A.9) was sentenced to 2 years' imprisonment under Section 147; Mumtaz (A.9) and Abdul Sayeed (A.11) were sentenced to Rigorous Imprisonment for life and fine of Rs.2000/- under Section 302 IPC for committing murder of Chand Khan; Rais @ Toun (A.5) and Rafiq (A.6) were sentenced to Rigorous Imprisonment for life and fine of Rs.1000/- under Section 302 IPC for committing murder of Shabir; Sayeed (A.7) was convicted under Section 324 IPC and given 2 years Rigorous Imprisonment for causing injuries to Ashfaq (PW.2); Hanif Khan (A.1), was convicted under Sections 304 Part-II, 323 and 147 IPC for causing injuries to Shabir. Iqbal alias Bhura, appellant also got convicted in separate Sessions Trial No.190/94 vide judgment and order dated 11.1.2001, under Sections 148 and 302 IPC and was awarded Rigorous Imprisonment of 3 years and life imprisonment respectively along with certain fines.
5. All the said convicts filed Criminal Appeal Nos.1191/98; 1210/98; 1233/98; and 281/2001 before the High Court of Madhya Pradesh. The State of Madhya Pradesh also filed Criminal Appeal No.1447/98 against the acquittal of some of the accused for offences under Sections 302/149, 324/149 and 323/149 IPC. As all the appeals related to the same incident, the High Court disposed of all the appeals by the common judgment and order dated 12.1.2006 wherein the appellants had been convicted as mentioned hereinabove, i.e., under Sections 302/34 IPC setting aside their conviction under Sections 147/148 IPC. The High Court allowed Criminal Appeal No.1191/98 with regard to the other co-accused, Hanif Khan, Bashir Khan, Sayeed and Aslam. The appeal filed by the State of Madhya Pradesh was partly allowed. Hence, these appeals.
6. All these appeals have arisen from the same incident and have been filed against the common judgment of the High Court and thus, are being heard together.
7. Shri Fakhruddin, learned Senior counsel, Shri Ranbir Singh Yadav and Ms. Rakhi Ray, learned counsel appearing for the appellants, have submitted that in case the High Court had set aside the conviction of all the appellants and other co-accused under Sections 147/148 IPC, question of convicting them with the aid of Section 34 IPC did not arise, even otherwise no charge under Section 34 IPC was framed by the Trial Court; nor any evidence had been led to show that offences had been committed by the appellants in furtherance of a common intention. Essential ingredients of Section 34 IPC, i.e., that a common intention was shared, has not been established by the prosecution. More so, the weapons allegedly used for committing the offences by the appellants do not tally with the ocular evidence of the eye-witnesses. Therefore, injuries caused to the deceased and other injured persons cannot be attributed to the appellants. Conviction under Sections 302/34 IPC is unwarranted and thus, the appeals deserve to be allowed.
8. On the other hand, Shri C.D. Singh, learned counsel appearing for the State, has vehemently opposed the appeals contending that not framing the charge under Section 34 IPC is not fatal to the prosecution and the High Court has rightly convicted the appellants under Sections 302/34 IPC. Seventeen persons came to the spot armed with deadly weapons with a common intention to kill Chand Khan. They surrounded Chand Khan and started causing injuries to him. In such a fact-situation the eye-witnesses may not describe exactly what role had been played by an individual assailant. If there are small omissions in the depositions of the eye- witnesses, the same require to be ignored. The injured witnesses have to be relied upon and even in case there is some conflict between the ocular evidence and medical evidence, the ocular evidence has to be preferred. Therefore, the appeals lack merit and are liable to be dismissed.
9. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
10. As mentioned hereinabove, 17 persons had allegedly participated in the crime. As per the prosecution, on the date of occurrence, i.e., 16.8.1994 at about 11 A.M., one Kamla Bai, daughter of Dev Karan, neighbour of informant Anees (PW.1) was molested by Munim Khan and Mumtaz Khan (accused/appellant) in the fields of Faqir. Smt. Gora Bai, mother of Kamla Bai, complained to Chand Khan with regard to the said incident. Chand Khan (since deceased), went to advise the uncle of Munim Khan and Pappu alias Chote Khan in this regard and scolded them. He also gave one slap to one of the accused. The appellants and other co-accused did not like the conduct of Chand Khan and in the evening the appellants and the co-accused committed the offence mentioned hereinabove. In fact, this had been the motive for commission of the offence.
11. Out of the seventeen accused, ten stood acquitted by the courts below. One of them is still absconding. One had died prior to the commencement of the trial. Only five accused/appellants have been convicted by the High Court. Therefore, we are concerned only with the cases of these appellants. Making reference to any of the other co-accused at this stage would not serve any purpose.
12. As per the Autopsy Report (Ex.P/7-A), prepared by Dr. R.P. Sharma (PW.3) in respect of Chand Khan, the following external injuries were noticed:-
1. Incised wound on head at occipital region, 1.5 cm x 1 x bone deep with fracture.
2. Incised wound on right parietal region 2.5 cm x = x bone deep fracture of right parietal bone, clotted blood on cerebral membrane.
3. Incised wound on left leg 10 cm x 2 cm upto bony region of Tibia.
4. Stab wound on left side of chest between 3rd and 4th rib deep upto lung 1.5 cm x = cm x deep upto left lung puncture.
5. Incised wound on left arm of posterior...
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