Abdul Nayeem and Others vs State of Madhya Pradesh

N.K. Gupta, J.—The appellants have preferred this appeal against the judgment dated 7.10.1997 passed by the learned Second Additional Sessions Judge, Seoni in S.T.No.38/1996, whereby the appellants were convicted for the offence punishable under sections 436 read with section 149 and 147 of IPC and each sentenced for 3 years'' rigorous imprisonment with fine of Rs. 500/-and fine of Rs. 1,000/-respectively. In default of payment of fine, each of them has to undergo for 2 and 4 months'' additional rigorous imprisonment respectively. Prosecution''s case, in short, is that, on 31.1.1996, at about 9 p.m. in the night, the complainant Mohd. Ishaq (P.W.1) was doing some work in his house situated at village Mararitola, Bahmni, Police Station Kanhiwada, District Seoni. The appellants came and abused the victim. The complainant came outside his house and tried to convince the appellants but, Nayeem Khan assaulted him by a stick causing him injuries near right thumb. Shafiq Khan also assaulted him by a stick causing him injuries on his left arm. Shamim Khan pushed his stick in the abdomen of the complainant and thereafter, the complainant went inside the house and closed his door. The appellants tried to knock the door of the complainant and thereafter, they shouted that set the house of the complainant on fire. Ultimately, the appellants set the house of the complainant on fire and went away. The complainant came outside of his house and with help of Jaywanti Bai (P.W.2), Rajendra (P.W.4), Lekhram and so many other persons, he poured water on the portion of the house, which was set on fire by the appellants. The complainant went to the Police Station Kanhiwada on 1.2.1996 and lodged an FIR, Ex.P/2 at about 10.30 a.m. in the morning. In the FIR, he had also mentioned that in the noon of 31.1.1996, some cloth vendors came to the village and the appellants Rashid and Shafiq destroyed their shops, whereas, the complainant tried to save the property of the cloth merchants and therefore, in revenge such a crime was done by the appellants. The police sent the complainant to the Government hospital, Kanhiwada for his medico legal examination and treatment. Dr. K.K. Sevte (P.W.5) had examined the complainant Ishaq and gave his report, Ex.P/ 7. He found abrasions on the abdomen and left arm of the complainant and there was swelling on his right dorsal aspect. Injuries were simple in nature. After due investigation, a charge-sheet was filed before the JMFC, Seoni, who committed the case to the Sessions Judge, Seoni and ultimately, it was transferred to the Second Additional Sessions Judge, Seoni.

The appellants abjured their guilt. They took a plea that they were falsely implicated in the matter due to enmity of elections. In defence Rambharose (D.W.1) and Rashid Khan (D.W.2) were examined.

After considering the evidence adduced by the parties, the learned Additional Sessions Judge acquitted the appellants from the charges of offence punishable u/s 294, 341 of IPC but, convicted them for the offence punishable under sections 147 and 436 read with section 149 of IPC and sentenced them as mentioned above.

I have heard the learned counsel for the parties.

Learned counsel for the appellant has submitted that the complainant had lodged the FIR against so many persons without any basis. If all the accused persons were involved in the crime then, the complainant must have sustained as many as 7 injuries atleast. However, he sustained only 3 injuries and therefore, no unlawful assembly was constituted. The trial Court has erred in convicting the appellants for the charge of offence punishable u/s 147 of IPC. It is further submitted that no eye witness could see that who set the house of the complainant on fire. Actually, some fire took place in the shed of the cattle which was away from his house and cause of that arson could not be known to anybody. Rambhore (D.W.1) and Rashid Khan (D.W.2) have stated that it was possible that someone had thrown the remaining piece of burning Bidi on that shed and therefore, a small portion of that shed was damaged. No damage was caused to the house of the complainant. No injury was caused to his cattle. Under such circumstances, it is prayed that the appellants be acquitted. In alternate, it is submitted that the appellants have faced the trial and appeal for the last 16 years and therefore, they may not be sent to the jail again.

On the other hand, learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct and no interference is required from the side of this Court.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the appellants formed an unlawful assembly? Whether they can be convicted for the offence punishable u/s 147 of IPC? Whether the appellants were the persons who caused arson in the house of the complainant? Whether the appellants can be convicted for the offence punishable u/s 436 of IPC? And whether the sentence can be reduced?

During the pendency of this appeal, the appellant No. 2 Abdul Hakim Khan has expired and therefore, his name was deleted from the cause title of the appeal. Mohd. Ishaq (P.W.1), Jaywanti Bai (P.W.2), Ballu (P.W.3), and Rajendra (P.W.4) were examined as eye witnesses. Looking to their evidence, it appears that the witness Jaywanti Bai, Ballu and Rajendra came to the spot when the arson was caused in the house of the complainant and he started shouting. Under such circumstances, it is apparent that except the complainant, no one could see the incident of assault. The complainant Mohd. Ishaq has stated that all the appellants knocked his door and assaulted him. They were intended to burn the house but, looking to the FIR, Ex.P/1, it appears that out of the appellants, only 3 persons namely Nayeem Khan, Shafiq Khan and Mohd. Shamim i.e. appellants No. 1, 4 and 6 assaulted him. If the appellants were intended to assault upon the victim and the complainant himself came out of the house then, the appellants could have assaulted him in a brutal manner. It was not possible for the complainant to went inside his house again after getting 3 blows. Actually the FIR was lodged on the next day morning and the complainant had an ample opportunity to consult with his friends and relatives and after due consultation, he could lodge the FIR. Police Station Khanhiwada was 4 kms away from the spot and therefore, the complainant could go to the Police Station in the night of the incident itself.

Under such circumstances, where the FIR is delayed and it is clear that the complainant was assaulted by only 3 persons, whereas he had added the names of so many persons in the FIR, there is no specific overt-act shown against the other appellants, so that it can be said that they had any common object with the accused persons who assaulted the complainant. Under such circumstances, it cannot be said that 5 or more persons were interested in assaulting the complainant or they were interested to set his house on fire. The learned Additional Sessions Judge has erred in holding that an unlawful assembly was constituted. When no unlawful assembly was constituted then, none of the appellants could be convicted for offence punishable u/s 147 of IPC. Consequently, conviction directed against all the appellants for the offence punishable u/s 147 of IPC cannot be maintained.

Learned Additional Sessions Judge has dealt with the case in a superficial and negligent manner. It is awful to see that no charge for offence punishable u/s 323 of IPC was framed against the appellants either directly or with help of sections 149 or 34 of IPC and therefore, none of the appellants were convicted for the offence punishable u/s 323 of IPC. For the constitution of the offence punishable u/s 147 of IPC, it is to be proved that a criminal force was used by the unlawful assembly and the result of that criminal assault was to voluntarily cause injuries to the complainant. Now after 16 years of the incident, it is not proper to remand the case back for framing of charges u/s 323 read with section 34 of IPC. Under such circumstances, I have no option except to acquit the appellants from the charges of offence punishable u/s 147 of IPC.

The witnesses Mohd. Ishaq, Jaywanti Bai, Ballu and Rajendra have stated that after the assault took place with the complainant, he entered in the house and thereafter, he came out of the house when his house was set on fire and at that time the appellants had gone away and therefore, the complainant could not see that out of the appellants, who set his house on fire. The complainant has tried to make a story that all the appellants were ready to set his house on fire. They have some apparatus which were creating flames. However, the names of persons who have such apparatus havng flames were not shown in the FIR, Ex.P/1 lodged by the complainant nor in his case diary statement. Similarly, Jaywanti Bai and Ballu have stated that the appellant Nayeem had that apparatus and he set the house of the complainant on fire but, such fact was not mentioned in their case diary statements. On the contrary, the witness Rajendra (P.W.4) had stated that it was the appellant Rashid who set the house of the complainant on fire. Looking at the contradictions between the statements of the various witness and also contradictions between their statements in the Court and their previous statements u/s 161 of Cr.P.C., it would be apparent that some of the appellants went to the house of the complainant to assault him and therefore, they have no device to do any arson in the house. Therefore, it cannot be accepted from the evidence given by these witnesses that the appellant Nayeem had any apparatus for making arson. Looking to the evidence of these witnesses, none of them were present at the time when the fire started in the shed of the cattle. Rajendra was residing 3 kms away from the house of the complainant Mohd. Ishaq, whereas, Ballu and Jaywanti Bai came to the spot when the complainant started shouting about the fire and therefore, they could not see the culprit, who set the shed of the cattle on fire. Similarly, according to the complainant Mohd. Ishaq, he went inside the house after his assault and therefore, he was not sure that amongst the appellants, who was the person who set the shed of the cattle on fire. It is already observed that all of the appellants were not present at the spot and no unlawful assembly was constituted then, for the act of one appellant, all the appellants cannot be convicted.

No overt-act of the appellants is proved to show that they have any common intention to set the house of the complainant on fire and therefore, all the appellants cannot be convicted for the offence punishable u/s 436 of IPC with help of section 149 or 34 of IPC. Therefore, only the appellant who set the shed of the cattle on fire was responsible for the offence punishable u/s 436 of IPC. The complainant himself could not say that amongst the appellants, who was the culprit who did that offence. He could not see anyone who set the shed of the cattle on fire. On the contrary, he came out of his house and called the witnesses on shouting when he saw the flames coming out from the shed. Under such circumstances, where the complainant is not sure that who set his house on fire then, conclusion cannot be drawn on the basis of suspicion only and none of the appellants can be convicted for the offence punishable u/s 436 of IPC or for any inferior offence of the similar nature.

On the basis of the aforesaid discussion, it is apparent that neither the appellants can be convicted for the offence punishable u/s 147 of IPC nor they can be convicted for offence punishable u/s 436 of IPC directly or with help of sections 149 or 34 of IPC and therefore, conviction as well as the sentence directed by the trial Court cannot be sustained. The appeal filed by the appellants is hereby allowed. The conviction as well as sentence directed by the trial Court against the appellants for the offence punishable under sections 147 as well as 436 read with section 149 of IPC is hereby set aside. They are hereby acquitted from all the charges appended against them. They are entitled to get the fine amount back from the trial Court, if they have already deposited.

Presence of the appellants is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged. Copy of the judgment be sent to the trial Court with its record for information and compliance.