LAWS(MPH)-2002-1-58

STATE OF M P Vs. MEHBOOB KHAN

Decided On January 02, 2002
STATE OF MADHYA PRADESH Appellant
V/S
MEHBOOB KHAN Respondents

JUDGEMENT

(1.) The State has preferred this appeal against the impugned judgment and order dated 16/9/1989, passed by the Fourth Additional Sessions Judge, Bhopal, in Session Trial No. 103/85 whereby accused Farookh was convicted for offence under section 302 and sentenced to life imprisonment and other accused persons (respondents herein) were acquitted of the charge under section 302 read with section 149 of the Indian Penal Code. All the accused persons including Farookh were acquitted of the charge under section 148, Indian Penal Code, Further, it may not be out of context to record that the appeal by accused Farookh against conviction abated on his death.

(2.) Succinctly narrated the facts of the prosecution case are that accused/respondents Ayub Khan (R-2), Ishaq alias Gattua (R-3), Yakoob (R-4) and convicted accused Farkooh are sons of accused Mehboob !Ulan (Rh). On the other hand prosecution witnesses Mohamad Jameel (P.W. 1), Faridul Hassan (P.W. 2) and Mohamad Ilyas (P.W. 3) are interested witnesses. Further the parties were enimically disposed towards each other for one reason or other. On 5/2/1985 at about 6 Oclock in the evening behind Boldarpura Road at Bhopal. deceased Zahoor Mohamad was unloading goods brought from BHEL on the plot of his shop with his son Jameel Mohamad. At that moment accused Farookh and Mehboob came carrying swords and started quarrel with the deceased alleging that the said plot belonged to them and objected to unloading of goods which led to altercation between them. In the meantime, other accused namely Yakoob with sword, Ayub with Farsa and accused Ishaq alias Gattua empty handed also arrived there and/ on their exhortation to kill the deceased, accused Farookh caused sword injuries including the fatal one in the stomach of the deceased who collapsed on the spot of incident. The deceased was carried to Hamidia Hospital, Bhopal, by Jameel Mohd., where he lodged FIR on 5/2/1985 at 7 P.M. byway of Dehati Nalishi which was registered for offence under sections 307/34, Indian Penal Code, wherein, he named accused Mehboob, Farookh, Yakoob and Ayub. He also named Mohd. Iliyas Baddu, Farrid and Sajid Ali to have seen the incident Zahbor Mohamad expired during his treatment on 21/2/1985. On investigation a challan was laid and accused persons were charged for offences under sections 148 and 302/149 of the Indian Penal Code.

(3.) The trial Court on a careful appreciation of evidence placed reliance on the dying declaration (Ex.P / 4/A) and the Dehati Nalishi (Ex.P-12) and found that except in the evidence of interested witnesses in no other evidence nor even in the dying declaration of Zahobr Mohamad (Ex.P/4-A), it is mentioned that the accused/respondents (herein) reached the spot with deadly weapons and exhorted accused Farookh to cause death of the deceased or they surrounded him and dealt blows, therefore no offence under section 148 against accused Farookh and that under section 302 read with section 149 of the Indian Penal Code against the rest of the accused were proved. Accordingly the learned trial Judge held accused Farookh guilty of offence under section 302 for thrusting sword into the stomach of the deceased and acquitted others.