Noushad and Others vs State of M.P.

S.L. Kochar, J.

The appellants have called in question the legality of the judgment and order passed by learned Addl. Sessions Judge, Kukshi, Distrit Dhar in S.T.No. 268/2000 dated 12th Dec. 2001 wherein learned Judge convicted all the appellants U/Ss. 148, 452/149, 341/149,302/149 and 352/149 of the IPC and sentenced each of them to undergo R.I. for two years U/S. 148 of the IPC, R.I. for three years with fine of Rs. 200-200 and in default whereof to undergo further R.I. for one month U/S 452/149 of the IPC, S.I. for one month U/S.341/149 of the IPC, R.I. for life with fine of Rs. 2000-2000, in default whereof to undergo R.I. for six months U/S 302/149 of the IPC and three months R.I. U/S 352/149 of the IPC. Appellant Noushad was also convicted U/S.25(1)(1-b) (b) of Arms Act and sentenced to undergo R.I. for one year with fine of Rs. 200/- and in default of payment of fine further R.I. for one month. However the substantive sentences were ordered to run concurrently.

In brief the prosecution case is that on 29/5/2000 at 11 a.m. Parveenbi daughter of Khalil Khan went to the grocery shop of Munimji from her house situated in Sanjay Colony Bagh to Musalman Mohalla for purchasing some grocery articles. When she was returning back to her house appellant Guddu @ Shakeel tease her. This was complained by Parveenbi to her brother appellant Jabir. Because of this incident, appellants Noushad, Zakir, Abid after coming houses trespass of deceased Guddu @ Shakeel, appellant Zakir and Abid caught hold of his hands and appellant Noushad took out a knife and dealt a blow on the right side of the chest. During this incident, Rafiq (PW,4), brother of deceased Guddu also came in front of his house and when tried to enter the house, he was caught by the appellant Jabir and Jakir. They also pushed Shamabee (PW.6) who was trying to intervene in the quarrel, At the time of this incident, Rafiq (PW.4), Shamabee (PW.6), Farzana (PW.5) and other witnesses named Sharafat, Shabbir, defence witness Salam son of Kalu Khan (PW.1) and other neighbourers were present and witnessed the incident. It is also said that appellants Shakil, Abid, Jabir were always picking up quarrel prior to the date of this incident and because of previous enmity of the appellants, after forming unlawful assembly, they committed murder of Guddu @ Shakeel. The incident was reported by Rafiq (PW.4). His report is Ex.P.10 recorded by D.S. Bilwal (PW.8) who registered the Crime No. 92/2000 U/S.307/34 of the IPC. Injured Guddu@ Shakeel was sent to the Primary Health Centre, Bagh. He was medically examined by Dr. R.K.Shinde (PW.3). His report is Ex.P.2-B proved by SHO, D.S. Bilwal (PW.8). During the course of treatment, injured Guddu@ Shakeel died in the hospital. Therefore, SHO, D.S. Bilwal (PW.8) done the inquest proceeding of dead body.Inquest report is Ex. P.13 and dead body was sent with medical requisition memo (Ex.P.3) for post mortem. The post mortem was performed by Dr. R.K. Shinde(PW.3), His report is Ex.P.4. According to Dr. Shinde, deceased died because of excessive bleeding due to injury caused to the lungs by sharp edged weapon. Dr. Shinde had also replied the query (Ex.P.5) put to him for seized knife by the police. Dr. Shinde, on examination, found no external injury on the person of Shamabee and on the person of appellant Noushad son of Fayajkhan, found three old incised wounds which were in the process of healing. He also noticed injury on the left palm of appellant Noushad which could be caused during the course of scuffle for snatching the knife, The seized articles were sent for examination to the F.S.L. through(Ex.P.20) memo by Superintendent of police, Dhar and FSL report is Ex.P.21 and 22. After arrest of the appellants and necessary investigation, charge sheet was filed.

1 The defence of the appellant Noushad was that he was assaulted by deceased Guddu(r) Shakeel by knife, causing injury on his left palm and thereafter during the course of scufflem, deceased sustained injury by his own knife. All the appellants have denied the prosecution allegations and claimed trial.

2 The learned trial Court, after recording the prosecution and defence witnesses, convicted the appellants as mentioned hereinabove.

The learned counsel for appellants have submitted that against appellant No.2 Noushad, offence at the most U/S.304-1 of the IPC would be made out and agaist appellants Nos. 2 Zakir S/o Sathar Khan, No. 3 Abid, No. 4 Jabir and No. 5 Jakir S/o Jahid Khan, no case is made out for their conviction as convicted by the trial court.

The learned counsel for State has supported the impugned judgment.

After hearing both the parties and having gone through the oral and documentary evidence adduced by the prosecution as well as defence, we are of the opinion that on the basis of the statements of three prosecution eye witnesses ie. Rafiq(PW.4), Farzana(PW.5) and Shamabee (PW.6) out of which Farzana (PW.5) is a child witness, all these three witnesses aer brother, niece and sister-in-law of the deceased Guddu(r) Shakeel. The incident had occurred according to these eye witnesses at the first instance in front of their house and thereafter incident of causing injury to deceased by appellant Noushad occurred inside the house which was witnessed by Farzana (PW.S) and Shamabee (PW.6) who present inside the house. It has also come in the statements of these witnesses that in front of their house so many persons of that locality were assembled but the prosecution has not examined any one of them as independent witnesses.

Rafiq (PW.4) has also mentioned in his E.I.R. (ex.P.10) about presence of Shamabee(PW.6), Salam S/o Kalu Khan and Shabbir S/o Sher Khan and other persons of the same locality. All the three eye witnesses are closely related to the deceased Guddu@ Shakeel. Therefore, we have to examine their testimony with great care and caution. Though, the near relatives will not leave the real culprit, but possibility of involvement of innocent person along with the real culprit cannot be ruled out by the witnesses having close relation with the deceased.

All the three eye witnesses were not able to say as to how and when quarrel started with the deceased and appellants in front of the house of the deceased. Farzana (PW.5) and Shamabee(PW.6) were inside the house and they have said specifically that they were not aware of the fact of quarrel which took place outside the house when and why?.

Rafiq(PW.4) has also stated that when he reached at his house, in front of his house, several persons were present and appellants were having verbal altercation with his brother Shakeel. They also started assaulting Shakeel because of which he entered inside the house. He was chased by appellants Noushad, Abid and Zakir S/o Sattar Khan. They too also entered inside the house. When this witness tried to enter inside the house he was caught by appellants Jakir S/o Jahid Khan and Jabir S/o Khalil Khan. Inside the house both the hands of deceased Guddu @ shakeel were caught by appellants Zakir S/o Sattar Khan and Abid. Thereafter appellant Noushad took out knife from his pocket and dealt a knife blow which fell on the right side of the chest of the deceased. After causing solitary blow, all the three ran away from the house. He has also stated in paragraph four that at the time of incident several-persons were standing outside of his house and out of them Sharafat S/o Latif Khan came inside the house and they took the deceased to the hospital. This witness Rafiq (PW.4) went to the police station and lodged the report (Ex.P.10). In paragraph eight this witness has testified that when he reached in front of his house, 30 to 40 persons were present there and all the applellants were quarrelling with deceased. When they started assaulting Guddu@ Shakeel, he entered inside the house. In paragraph 14 this witness has specifically stated that deceased and he were not having any kind of ill-will or quarrel with the appellants. For the first time the quarrel took place in front of their house and after the incident he came to know that dispute arose in relation to the sister of the appellant Jabid. He himself was not having any personal knowledge about the said incident. In paragraph 15 this witness stated Shat prior to the incident deceased and appellants were having good relation. They were moving together and also playing together. The say of Rafiq (PW.4) is that deceased Guudu @ Shakeel entered inside the house either to save himself or to pick up lathi of other things from inside. The defence suggestion regarding possession of knife by the deceased has been denied by this witness.

Farjana (PW.S) the niece of the deceased, aged about 13-14 years has deposed that appellants Abid and Zakir caught the hands of deceased Shakeel, thrown him on the ground, thereafter appellant Noushad took out knife from his pocket and dealt a blow, At the time of incident his aunt Shamabee(PW.6) tried to intervene but she was pushed by the appellants. In paragraph seven this witness has stated that she had seen the appellants only when she entered inside the house. Prior to that she did not see them and she was not knowing whether in front of their house these appellants came together or separately.

The next eye witness is Shamabee (PW.6), who has deposed that outside their house verbal altercation and quarrel between the deceased and appellants were going on, thereafter all of a sudden deceased rushed inside the house. Followed by appellants Abid, Zakir and Noushad. Appellants Abid and Zakir caught the hands of deceased Shakeel. They thrown him on the ground. Thereafter appellant Noushad took out a knife and dealt a blow on the right side of the chest of the deceased. Appellants Jakir and Jabir had caught Rafiq (PW.4) outside the house and when she tried to rescue the deceased appellants pushed her resulting into her fall on the ground. After causing injury by knife, all the appellants fled away from their house. In paragraph six she has deposed that they were inside the house, therefore, not knowing since how long the quarrel was going on outside the house. She was preparing tea inside the house and on hearing of verbal altercation she understood and thought that some minor dispute was going on.

On the basis of the eye witnesses account, the total situation boils out that appellants and deceased were having verbal quarrel in front of the house of the deceased and there is no evidence available on record about when appellants reached in front of the house of the deceased, whether they all reached together of assembled one after another. There is also no material adduced by the prosecution that what kind of verbal altercation or talk was going on between the deceased and appellants in front of the house of the deceased. It is also evident that all the appellants were empty handed. Under these circumstances and state of evidence, it would be very difficult to hold that the appellants were the member of unlawful assembly as defined VI S.141 of the IPC and whose common object was to commit murder of deceased by causing knife injury. Mere presence of five or more persons would not be sufficient to hold that they are the member of unlawful assembly whose common object was to commit crime. See Supreme Court judgments passed in Malhu Yadav and Others Vs. State of Bihar, and Bharosi and Others Vs. State of M.P., .

There is also no evidence on record that the appellants Abid, Zakir, Jakir and Jabir were having prior knowledge about possession of knife by appellant Noushad because none of the prosecution witness has stated that Noushad was openly having knife in his hand or brandishing the same. When Rafiq (PW.4) reached at his house, who is the brother of the deceased, he saw the appellants having verbal discussion with the deceased and they started beating to deceased. If common object of the assembly was to commit murder of deceased Guddu @ Shakeel by causing injury by knife, that very moment they would have caught the deceased Shakeel and also caused injury to him. But nothing had happened like this and the statement of Rafiq (PW.4) to the effect that appellants started beating Shakeel does not sound well because the autopsy surgeon Dr. R.K. Shinde (PW.3) found only one injury caused by knife. He did not find any other external injury like abrasion or contusion which could be present on the person of the deceased if deceased was beaten by the appellants outside the house. Rafiq (PW.4), in paragraph 18 has stated that deceased entered inside the house to save himself or to take lathi or other weapon inside the house. This shows that deceased was not also behaving calmly and quietly but he was also aggressive and if he would have had some weapon or if he succeeded in picking up some weapon after going inside, he would have assaulted the appellants.

Other witnesses Farjana (PW.5) and Shamabee (PW.6) were inside the house and they did not witness the actual incident outside the house but according to their statements, it is crystal clear that outside the house verbal altercation was going on an these witnesses had also felt that only some talk or minor verbal quarrel was going between the appellants and the deceased. Therefore, they did not care to come out of the house and witness the incident.

Under these situation, we are of the considered view that the appellants were not the member of unlawful assembly. They were also not openly having any weapon in their hands as such they all were empty handed and their common object was also not to commit murder of deceased Shakeel. Therefore, during the course of verbal talk and altercation, out of five appellants, some one acted causing injury by knife, the others would not be responsible for his act.

The allegation against appellants Jakir S/o Jahid Khan and Jabir S/o. Khalil Khan is that he caught Rafiq (PW.4) and did not allow him to enter inside the house. Therefore, both these appellants would be independently responsible for commission of offence of wrongful restraint punishable U/ S.341 and also U/S. 352 for their act of use of criminal force. Therefore, their conviction and sentence U/Ss.148, 452/149,302/149, 341/149, and 352/149 are hereby set aside and they are sentenced independently U/Ss. 341 and 352 of the IPC, sentenced to the period already undergone (211 days and 280 days respectively) with fine of Rs. 500/- under each count. In default of payment of fine, each appellant shall undergo further R.I. for one month under each count. In case the appellants have deposited the fine amount as imposed by the trial Count, the same shall be adjusted and remaining fine amount, if any, be refunded to these appellants.

The appellants Abid S/o Bhurekhan and Zakir S/o Salter Khan are responsible for commission of the offence of wrongful restraint by catching hold of the hands of deceased Shakeel. They also cannot be convicted for the act of Noushad for causing solitary injury to deceased by knife because there is no evidence on record that they were knowing the fact that Noushad was having knife in his pocket and will use the same for committing murder of deceased Shakeel. After causing one injury by knife by appellant Noushad, there was no second blow given to deceased by Noushad and appellant Abid and Zakir also did not continue to hold the deceased. Therefore, for the act of Noushad both the appellants Abid and Zakir could not be convicted. Thus, their conviction U/Ss. 148, 302 read with 149, 452 read with 149, 341 read with 149 and 352 read with 149 are hereby set aside. But they are convicted U/Ss.341, 352 and 452 of the IPC independently for commission of wrongful restraint, for using criminal force and house trespass with preparation for hurt, assault or wrongful restraint and they are sentenced to the period already undergone (210 days and 210 days respectively) with total fine of Rs.6000/-in all counts to each appellant. In default of payment of fine amount, they shall undergo R.I. for one year. In case these appellants have deposited the fine amount as imposed by the learned trial Court, the same shall be adjusted.

We concur with the finding of the learned trial Court about recovery of button knife from the possession of the appellant Noushad for which he was not having any valid licence. Therefore, he is liable for conviction U/s 25(1) (I-b)(b) of Arms Act.

In view of the foregoing discussions, conviction and sentence of the appellant Noushad S/o Fayyaz Khan U/Ss 148, 302/149, 352/149, 341/149, 452/149 of the IPC are hereby set aside. Instead thereof he is sentenced U/ Ss.302 and 452 of the IPC independently and sentenced to undergo R.I. for life with fine of Rs. 2000/- and three years R.I. and fine of Rs. 2000/- in respective counts and in default of payment of fine he shall undergo further R.I. for one year and six months respectively. His conviction and sentence passed U/S.25 (I)(I-b)(b) of the Arms Act is also maintained and he is sentenced to undergo R.I. for one year and fine of Rs. 200/-, in default whereof to undergo further R.I. for one month. However, all the substantive sentences shall run concurrently.

Out of realisation of fine amount, Rs. 15,000/- (rupees fifteen thousand) be paid as compensation to the legal heirs of the deceased Guddu @ Shakeel.

The appeal is partly allowed on the terms indicated hereinabove. The appellants No.2 to 5 i.e. Zakir, Abid, Jabir and Jakir are on bail. The appellants are directed to appear before the trial Court on 14th September, 2005 and deposit the remaining fine amount as imposed herein above. The excess fine amount, if any, deposited by appellants No.4 Jabir and No.5 Jakir be refunded to them. The learned counsel for appellants is directed to inform the appellants to remain present before the trial Court on the aforementioned date. Upon depositing the fine amount, their bail bond and surety bond stand cancelled. On failure to deposit the fine amount, the learned trial Court is directed to initiate proceedings against the appellants in accordance with the law under intimation to this Court.