ASIF MAMU Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Criminal Appeal Nos. 949 and 838 of 2007 arise out of the impugned common judgment of conviction rendered by the High Court after reversing the order of acquittal passed by the trial court in Sessions Trial No. 379 / 1996, whereby, appellants Asif Mamu and Mukhtiyar Malik @ Javed, besides accused Rajiulla Khan and Sheru @ Sher Khan Nepali (in short "Asif", Mukhtiyar", "Rajiulla" and "Sheru", respectively) were acquitted. Criminal Appeal No. 718 of 2007 arises out of the said common judgment of conviction passed by the High Court after reversing the separate judgment passed by trial court in Sessions Trial No. 383/96 acquitting eight accused persons, namely, Muzaffar Hussain @ Munne Painter, Mazhar Hussain (in short, "Munne Painter" and "Mazhar", respectively), Badshah, Sadiq, Sajid, Haseen @ Mohasin, Guddu Jadugar @ Mehtab @ Ganja (in short, "Haseen" and "Guddu", respectively) and Salim Kela. These two sessions cases were case and counter case, tried one after the other by the same court, separate evidence was recorded therein and disposed of by separate judgments. As such, we proceed to consider cases of accused persons in the two trials separately. Criminal Appeal Nos. 949 and 838 of 2007

(2.) Asif, the sole appellant in Criminal Appeal No. 949 of 2007 and Mukhtiyar, who is also the sole appellant in Criminal Appeal No. 838 of 2007, and Raziulla, appellant in Criminal Appeal No. 837 of 2007 along with accused Sheru were tried and acquitted of the charges by judgment rendered by the trial court. The State of Madhya Pradesh filed an appeal before the High Court against the said order of acquittal, during the pendency of which accused Sheru died, as such the appeal against him abated. So far as the other three accused persons are concerned, they have been convicted by the High Court under Section 302/149 of Indian Penal Code (for short 'IPC'). Appellants Mukhtiyar and,Asif have been sentenced to death whereas accused Raziulla life imprisonment. All the three accused persons have been further convicted under Section 148, IPC and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 10,000/- each, in default to undergo further rigorous imprisonment for a period of six months. Appellant Mukhtiyar has been also convicted under Section 25(1B) of the Arms Act and sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 10,000/-, in default to undergo further rigorous imprisonment for a period of six months. All the sentences, however, have been ordered to run concurrently. Challenging their convictions the three accused persons filed separate appeals by special leave. As accused Raziulla died during the pendency of appeal, Criminal Appeal No. 837 of 2007 filed by him abated and consequently on 5th August, 2008 an order of abatement of the said appeal was recorded by this Court. Thus, we are required to decide the two appeals filed by appellants Mukhtiyar and Asif.

(3.) Prosecution case in short was that 10/07/1996 was the date fixed in Sessions Trial No. 379/1995 in the court of the 3rd Additional Sessions Judge, Bhopal for evidence. The said case related to causing bullet injury by Mukhtiyar, Sheru and Asif on the leg of one Munne Painter who arrived court premises on that day at 10.30 am along with his witnesses viz., Munnu, Rais Nai, Saleem Baba, Saleem Bucha, Babu Bhai, besides others and they sat in the gallery outside the courtroom of the 3rd Additional Sessions Judge, which was on the first floor of the building of the said courthouse, where accused Mukhtiyar, Sheru, Asif and one boy, who was wearing red shirt, (in short, "red shirt boy") were sitting from before. At 11.45 am accused Rajiulla, who was an advocate and uncle of appellant Mukhtiyar, came there and ordered to kill. Accused Asif and the red shirt boy were armed with knives. Accused Mukhtiyar and Sheru, who were armed with revolvers, started firing from their respective weapons aiming towards Munne Painter besides Saleem Baba and Saleem Bucha and in order to save himself Munne Painter entered inside the courtroom of the 3rd Additional Sessions Judge. As a result of firing by the aforesaid two accused persons, Saleem Baba and Saleem Bucha received injuries and while Saleem Bucha fell down in the gallery itself, Saleem Baba moved to the said courtroom, fell down there and both of them succumbed to their injuries. According to the prosecution, the accused persons, with the intention of putting pressure upon the members of the prosecution party for changing their statement in the Sessions Trial No. 379 / 1995, in which witnesses had come to depose, conspired and made homicidal attack on them. Stating the aforesaid facts, a written report was submitted by Munne Painter before the officer-in-charge, Shahjahanabad police station in Bhopal town on the basis of which First Information Report (for short 'FIR') No. 410/1996 was drawn up at 1.10 pm against five accused persons, namely, Mukhtiyar, Rajiulla, Sheru, Asif and red shirt boy