Firoz Khan vs State Of Madhya Pradesh

This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been preferred by the appellant against the impugned judgment dated 25.08.2009 passed in S.T. No.134/2009 by XIII Additional Sessions Judge, Bhopal (M.P.), whereby the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to R.I. for Life and fine of Rs.5,000/-, in default R.I. for 6 months.

As per the prosecution case, on 14.12.2008 police station Kotwali, Bhopal received an information from City Control Room through Wireless that some quarrel is going on between the boys near Sazid Miya's house. On the basis of this information, the Station House Officer Rajendra Tiwari along with A.S.I. Uttam Singh, P.S.I. R.P. Mishra proceeded to the spot. Dehati Nalish Ex.P-7 was written on the report of Shakur Miya to the effect that Shakur Khan who works as a Chowkidar in the house of Sajid Ali - Unani Shafakhana. at 7:30 p.m. went to attend Namaj at Kabir Masjid, he saw Firoz milkman and one another boy whom he doesn't know were talking in front of the gate of Sajid Ali. When he returned after Namaj, said Firoz and that boy were quarreling. He went to take beetle-nut at the shop and thereafter when he returned to the gate of Sajid Ali, he saw that Firoz and that boy to whom he was quarreling, Firoz was taking him by dragging and on seeing him he left the boy and ran away. Firoz was having a knife which was blood stained. He called Sajid Ali who came out of the house and when Sajid Ali saw the boy in the light of torch, the blood was oozing from the chest of that boy. The boy was dead and there was blood scattered on the mat. He saw that boy with Firoz to whom Firoz has killed by inflicting knife. The incident was also witnessed by Rehan Miya and other persons of the locality.

On the basis of report of Shakur Miya, Dehati Nalisi (Ex.P-7) and marg intimation Ex.P-8 was written. On that basis F.I.R. Ex.P-19 was registered against the accused Firoz Khan under Section 302 of I.P.C.; Panchnama of dead body Ex.P-1 was prepared; Panchyatnama of dead body Ex.P-3 was also prepared and the dead body was sent for postmortem. Dr. D.S. Jain (PW-13) who conducted the postmortem opined that the cause of death was due to shock and hemorrhage as a result of multiple stab injuries to left side of chest by hard, sharp penetrating object. Injuries were sufficient to cause death in ordinary course of nature. The nature of death was homicidal. After postmortem, the dead body was handed over to Saiyad Mukarram Ali on Supurdnama. Spot map was prepared; from the spot the mattress lying on the bed of Chowkidar which was blood stained; one blood stained Rs.50 note, the blood stained pieces of mattress, blood stained mat were seized. From the spot plain soil was also sealed separately. From Saiyad Mukarram Ali one purse of resin having a note of Rs.500/-, six notes of Rs.100/-; eleven notes of Rs.10, one sim of Airtel, driving license having photo of deceased, registration no. of M.P.-04 MP-0988, receipt of Corporation, bill of generator band, one polythene of card, five photos, one of father, one of lady, one of boy and one of small girl; one bunch of keys were recovered from the spot. The memorandum of accused was recorded in presence of witnesses Raees and Sheikh Juber. At the instance of accused, knife and the clothes of accused which he was wearing were seized vide Ex.P-13 and Ex.P-14. The seized articles were sent to F.S.L. Sagar for examination vide Ex.P-22. As per the F.S.L. report, the human blood was found on notes, pieces of mattress, pieces of mat, soil, sweater, T-shirt, shoes, jeans, pant, underwear, belt belonging to deceased and the blood was also found on the articles seized from accused i.e. on pant of jeans, jacket and knife. Out of these articles notes, pieces of mattress, pieces of mat and soil were seized from the spot; sweater, T-shirt, shoes, jeans, pant, underwear and belt were of deceased and on knife recovered from accused. On all these articles human blood was found. After completing the investigation, charge-sheet was filed before the J.M.F.C., Bhopal who committed the case to the Sessions Court for trial.

The accused abjured the guilt and claimed to be tried pleading that he has not committed any offence. The statement of accused under Section 313 Cr.P.C. were recorded. He has taken the defence that he is innocent and has been falsely implicated.

The trial Court framed the charges against the appellant under Section 302 of I.P.C. During the course of trial, the prosecution examined as many as 17 witnesses whereas defence examined 4 witnesses. After appreciation of evidence, the trial Court has convicted and sentenced the appellant under Section 302 of I.P.C. as mentioned above, therefore, this appeal.

Since the counsel on record was not present on 20.02.2019 when the case was called out for hearing, therefore, Ms. Manju Khatri, Advocate was appointed as Amicus Curiae to argue this appeal on behalf of the appellant.

We have heard the learned counsel for the parties.

Learned amicus curiae appearing for the appellant submits that there was only one blow. As per the prosecution version, eyewitnesses have turned hostile. The learned Sessions Judge failed to appreciate the evidence in its proper perspective. There are various contradictions and omissions in the statements of the prosecution witnesses which have not been dealt with properly by the trial court. The eyewitnesses are only chance witnesses and the charge under Section 302 of I.P.C. is not proved against the appellant beyond reasonable doubt. Accordingly, argued for acquittal.

On the other hand, learned counsel for the State taken us through the evidence of Abdul Anis (PW-10) and Saiyad Sazid Ali (PW-16) and also based his argument on the postmortem report in which as many as three injuries were found on account of which lungs and heart were ruptured. Learned counsel further submitted that the accused has assaulted with premeditation on account of loan amount of Rs.20,000/-. The evidence of Dr. C.S. Jain (PW-13) clearly points to the death of the deceased due to the injuries caused by accused. There is clear and cogent evidence on record to hold the accused guilty of the offence.

Now the questions for consideration before this Court are that whether the deceased died homicidal death; whether the accused caused the death of the deceased by the knife causing stab injuries on the person of deceased; whether prosecution is able to prove the conduct and overt act of the accused; and whether the trial Court has committed any illegality in convicting and sentencing the appellant?

Abdul Anis (PW-10) eyewitness has deposed that he know the accused by face and on the date of incident he came to know about his name and that he works as a driver. The incident is of 14.12.2008. On that day, this witness along with his friend were going from Sarwar Itwara to their house at Ibrahimpura and when they were passing through the Unani Shafa Khana near State Bank at about 8:30 and 8:45 p.m. he saw that two boys were quarreling and one boy pushed another boy towards the wooden cot (Takhat) and accused inflicted knife blows. He also deposed that he could not see that accused inflicted the blow on which part of the body. He also deposed that he saw the incident about 25 - 30 feet away. Thereafter, he fell down the deceased and started dragging him towards the road. At the same time, one Shakur Khan came there and on his crying, the accused ran away. He also deposed that he did not hear the voice of quarreling. He also deposed that Shakur Khan told that the person who inflicted the knife is Firoz who is a milkman.

In cross examination, Abdul Anis (PW-10) has clearly denied the suggestion that on account of darkness nothing can be seen from 25, 30 feet away whereas he himself deposed that there was a light in the pole and from there the spot can be seen. He also denied the suggestion that the accused ran away on foot. He deposed that he has not seen the number of the motorcycle. He also denied the suggestion that he was knowing the father of deceased from before and also denied that he has given false statement at the instance of father of the deceased. He also denied the suggestion that accused was not present at the spot and also clearly denied the suggestion that there was no quarrel between the accused and deceased and he has not seen the incident.

Saiyad Sazid Ali (PW-16) who is also an eyewitness has deposed that he knows the accused by name and face. The incident is of 14.12.2008 at about 8 to 8:30 p.m. He deposed that when he was passing through Unina Shafa Khana in an auto which was being driven by his friend Amran and this witness was sitting on the side of driver Amran, as soon as he reached on the road which goes from Unani Shafa Khana towards Rosy Laundry, he saw that two boys were quarreling loudly. Out of them one boy was thin and long and another boy was dwarf. One boy was saying to don't marry and then said that Asad don't marry. On this, one boy said that he will marry. They were grappling with each other. During grappling the accused pushed the deceased towards the wooden cot. The accused took out knife and inflicted the knife blow on the chest of deceased. He deposed that the accused was the person who inflicted the deceased. He also deposed that there was darkness inside shutter but deposed that there was light outside the Unani Shafa Khana. In cross examination, this witness has clearly denied the suggestion that he has any relation with the family of deceased. He also denied the suggestion that he has given the statement at the instance of family members of deceased. He also denied the suggestion that he has not witnessed the incident.

Dr. C.S. Jain (PW-13) has conducted the postmortem on the person of deceased and has found the following injuries:-

''1.अ. बांयी छाती पर निपल से एकदम उपर तिरछा स्थिति 5 गुणा 2 सेंमी गुणा 11 सेंमी आकार का जिसमे फेंफड़ा भी कट गया था इस घाव का एक किनारा नुकीला व दूसरा बोथरा था ।

ब. एक चुभा हुआ घाव बायें निपल से तीन सेंमी नीचे 5 गुणित 2 गुणित 10 सेमी का इस घाव में हृदय भी आगे व पीछे से कटा हुआ था बायी ओर की छाती खून से भरी हुई थी इस घाव का एक सिरा नुकीला दूसरा बोथरा था ।

एक त्वचा तक गहरी तिरछी स्थिति चोट बायें हथेली पर तीन गुणित 02 सेमी की थी चोट कटा हुआ घाव थी हथेली मे सूखा खून लगा था ।''

The doctor opined that the cause of death was due to shock and hemorrhage as a result of multiple stab injuries left side of chest by hard, sharp penetrating object. He also opined that the injuries were sufficient to cause death in ordinary course of nature. The nature of death was homicidal.

Syeed Mukarram Ali (PW-1) is father of deceased has deposed that Shakur Khan has told him at the place of occurrence that accused Firoz Khan has killed the deceased by knife and fled away from the place of occurrence. He also deposed that accused was working in the STD of his son deceased from 2004 to 2006 and they were friends. He deposed that his son deceased has given Rs.20,000/- to the accused but on demand he was not returning the amount. Ajhar Ali (PW-5) is brother of deceased deposed that at about 7:30 p.m. Firoz came to his house and his brother Asad went along with him.

Saiyad Sazid Ali (PW-2) deposed that he knows the accused Firoz. He brings milk in his house. He deposed that his Chokidar Shakur Khan told him that two boys were quarreling with each other outside. He deposed that he has not witnessed the incident. This witness has been declared hostile by the prosecution. Mohd. Shakur Khan (PW-4), Mohd. Waseem (PW-7) have also been declared hostile. Mohd. Almas (PW-3) is a witness of Naksha Panchyatnama Ex. P-3 and a witness of seizure Ex.P-5. Sheikh Juber (PW-6) is a witness of arrest of accused Ex.P-11 and also the witness of memorandum Ex.P-12 and seizure Ex.P-13.

Achchhelal (PW-9) deposed that he was posted as Head Constable at Police Station Kotwali, Bhopal. He deposed that he received the information from Control Room about the incident. He recorded Rojnamcha Sanha No.775/08 Ex.P-8. He deposed that Rohit Dubey, Constable brought Ex.P-7 Dehati Nalisi and Ex.P-8 marg intimation to the police station and on the basis of Dehati Nalisi he recorded the F.I.R. Ex.P-19 in Crime No.309/08 under Section 302 of I.P.C.

Rajendra Tiwari (PW-12) was posted as Sub Inspector in the Police Station Kotwali, Bhopal on 14.12.2008 and written Dehati Nalisi (Ex.P-7) at the instance of Shakur Khan. He also recorded marg intimation Ex.P-8. He also deposed that he made the Naksha Panchayatnama of dead body in the presence of witnesses and also made the seizure memo Ex.P-4 and Ex.P-5.

The accused in his defence has examined Alia Bi (DW-1), Mohd. Sarwar (DW-2), Arman (DW-3) and Iqbal Kadar Khan (DW-4). Mohd. Sarwar (DW-2) in his cross examination has denied the suggestion that Abdul Anis was not with him on 14.12.2008.

Apart from the evidence of Shakur Khan (PW-4) there are other eyewitnesses Abdul Anis (PW-10) and Saiyad Sazid Ali (PW-16) who have seen the two boys quarreling, have been examined by the prosecution. Despite minor omissions and contradictions, it remains that as per the opinion of Dr. C.S. Jain (PW-13), the incident has occurred for which there are witnesses who informed the police and also there are other two eyewitnesses who witnessed the incident. Their version also proves the fact that deceased died a homicidal death.

So far as the evidence on record regarding the alleged incident by accused in causing the death of deceased is concerned, the evidence of Dr. C.S. Jain (PW-13) clearly depicts that the injuries on lungs and heart were the cause of death of deceased. It appears that the seizure witnesses have turned hostile but the fact remains that there are other witnesses Abdul Anis (PW-10) and Saiyad Sazid Ali (PW-16) who have clearly proved the prosecution case. They have been confronted with some minor contradictions and omissions. No doubt, there are some minor contradictions here and there but the fact remains that the incident has occurred in the background of non-payment of loan amount taken by the accused and deceased has been stabbed by the accused not a single blow. It appears that as per the evidence of doctor three blows were caused as noted above. But, however, the injuries caused on the lungs and heart which ultimately ruptured the organs, was the reason for cause of death. Moreover, the assault by the accused is supported by the witness version of Abdul Anis (PW-10) and Saiyad Sazid Ali (PW-16). Though the fact with regard to seizure of motorcycle used by the assailant is not supported by Waseem (PW-7) but it does not affect the prosecution case. The seizure of knife which was used in commission of offence, has been duly proved by the prosecution evidence. The recovery of the knife as well as the medical report and postmortem report clearly depicts the fact that the said injuries have been caused due to assault by accused. The trial Court has found out in its reasoning that the injuries which have been caused due to the stabbing on the fatal parts of the body, were the cause of death.

The incident is of 14.12.2008 and accused was arrested on 23.12.2008 and at his instance knife was recovered. The evidence of recovery of weapon and also as per Section 27 of the Evidence Act the recovery of incriminating article supports the prosecution version that the knife which was used in commission of offence has been recovered from the accused.

On overall appreciation of evidence on record, we are convinced that the injuries have been caused by the accused on the fatal parts of the body while the quarrel between the accused and deceased was going on. The fact remains that on account of rupture of the lungs and heart by the injuries caused by accused is the cause of death of deceased.

The learned amicus curiae argued that even two or three injuries caused were without any intention and premeditation to cause the death of the deceased. It is submitted that accused is in jail since more than 10 years and in the absence of any such premeditation to commit any murder as the incident occurred due to provocation all of a sudden between the accused and deceased as such the offence does not fall under Section 302 of I.P.C. but fall under Section 304 Part-I of IPC.

However, on perusal of the evidence of witnesses, it is apparent on record that in the case in hand the accused caused the puncture wounds on the lungs and heart of the deceased which necessarily leads to the premeditated act of the accused on account of non payment of loan amount of Rs.20,000/-. Thus, it is clear that the accused has caused the injuries on the vital parts of the body with intention to cause the death of deceased. The trial Court in the impugned judgment has dealt with this aspect in great detail which appears to be just and proper. In spite of some minor contradictions in the evidence of Saiyad Sazid Ali (PW-16) about the distance, we are convinced with the evidence available on record that the accused is the person who is involved in the commission of the offence and the witnesses could see the incident from that distance and apart from the informant who declared hostile there are other eyewitnesses who have witnessed the incident.

In view of the foregoing discussion, we are of the view that the prosecution has proved the case beyond reasonable doubt against the appellant that he has committed the offence under Section 302 of I.P.C. The trial Court has rightly convicted and sentenced the appellant as mentioned above. The judgment of the trial court does not suffer from any infirmity.

We do not see any reason to interfere with the judgment passed by the trial Court. Accordingly, the appeal is dismissed and the judgment of conviction and sentence passed by the trial Court is hereby affirmed.

We appreciate the efforts made by Ms. Manju Khatri, learned amicus curiae. The High Court Legal Services Committee is directed to remit the fee of Rs.4000/- to the amicus curiae for assisting the Court.