NOUSHAD & ORS. Vs. STATE OF M.P.

JUDGEMENT

(1.) THE appellants have called in question the legality of the judgment and order passed by learned Addl. Sessions Judge, Kukshi, District 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.

(2.) 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.

(3.) 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 against 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.