NASIR Vs. STATE OF M P

JUDGEMENT

(1.) Since both the aforesaid appeals arising out of one and the same judgment, therefore, they are being decided by this common judgment.

(2.) The appellants named above have preferred Criminal Appeal No.652/1998 against the judgment dated 30/4/98 passed by the learned IVth Additional Sessions Judge, Dewas in S:T. No.4/96 whereby acquitting all the appellants for the offence punishable under Sections 302, 302/34 of the I.P.C., but convicting them under Section 294 of the I.P.C. and sentencing each of them to suffer simple imprisonment for one month and also convicting appellants Nasir and Shabbir @ Kallu under Section 307 of the I.P.C and appellants Salim and Sardar Bi under Section 307/34 of the I.P.C. and sentencing them each to undergo R.I. for ten years with fine of Rs.1,000/-, in default of payment of fine, to suffer S.I. for two months. The State has filed Criminal Appeal No. 1445/98 against the acquittal of the respondents for offence under Section 302/34 of the I.P.C.

(3.) The prosecution case in nut shell as put forth before the Trial Court is that on 4/6/1995, in the night at 9.20 p.m., complainant Haroon Patel(P.W.l) was standing at a betel shop situated on Subhash Chowk, Dewas. Deceased Shabbir son of Babu Khan and witnesses Abid Hussain(P.W.2) and Dayanand Gupta(P.W.3) were also standing near to Haroon Patel. At that moment, appellant Kallu @ Shabbir, Nasir, Sardarbi @ Addi and Salim reached over there in a auto-rickshaw. All started hurling filthy abuses in the name of mother and sister of deceased Shabbir and also assaulted him by an iron rod(Saria). Appellant Kallu @ Shabbir caused injury by choori. Appellant Salim used lathi. After assaulting deceased Shabbir, son of Babu Khan, all the accused persons fled away from the scene of occurrence. The incident was immediately reported to Kotawali Police, Dewas by P.W.I Haroon Patel vide Ex-P/1. The deceased was assaulted by the accused persons on account of some earlier quarrel between younger son of Sardarbi and deceased Shabbir. Deceased Shabbir was taken to Government Hospital, Dewas where he was examined by P.W.7 Dr. Suresh Thakur, who issued M.L.C. report (Ex-P/16). Dr. Thakur on written request by concerned police vide Ex-P/17 recorded dying declaration of deceased Ex-P/18. After primary treatment, looking to the serious condition of the deceased, he was immediately referred for further treatment in M.Y. Hospital, Ihdore and from M.Y. Hospital, he was shifted to Private Hospital, Sheik Hatim where deceased died on 5/6/95 early in the morning at 5.40 a.m. The death was reported at Palasia Police Station, Indore where Merg(Ex-P/16) was registered on 5/6/95 at 6.30 p.m. Ramsingh, S.I.(P.W.12) prepared the inquest report(Ex-P/14) and sent the dead body of the deceased for postmortem examination, which was conducted by Dr. Surendra Dubey(P.W.9) in M.Y. Hospital, Indore. The postmortem report is Ex-P/19. The accused persons were arrested and on their disclosure statement, weapons were seized. During the course of investigation, spot map(Ex-P/15) was got prepared by Patwari and the police also prepared spot map, that is, Crime Details Form(Ex-P/2). After completion of investigation, charge-sheet was filed against all the four appellants under Sections 302/34 and 294 of the I.P.C.