Sahib @ Afzal And Anr vs State Of Madhya Pradesh

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

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.,,,,

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 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 eyewitnesses. 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.",,,,

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 witnessâ€​.",,,,

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 able to move his ring finger and little finger.Â,,,,

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.,,,,

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 6x0.5 cms.,,,,

(ii) Incised wound on mid forehead of 3x0.1 cms.,,,,

(iii) Long incised wound on the forehead of 5x0.3 cms extending towards left auxillary region of 1x0.5 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 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 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.,,,,

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.,,,,

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 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 @Â",,,,

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 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.,,,,

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 weapon,,,,

would stand relegated to disutility.â€​,,,,

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 disintegration 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 appellant Â",,,,

himself,  the  chain  of circumstances is therefore complete.â€​",,,,

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.,,,,

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.â€​,,,,

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 manner towards the deceased who is not proved to have been armed.,,,,

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.",,,,

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.",,,,

In our considered opinion, plea of alibi which was 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.,,,,

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 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].,,,,

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