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2004 Supreme(MP) 146
High Court Of Madhya Pradesh
RAJEEV GUPTA, S. L. JAIN
SHEIKH BASHIR - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Criminal Appeal 520 Of 1989
Decided On : 02/13/2004
Headnote:
Section 302 - Homicide - IPC - [302, 34] - The court found that the death of Sheikh Nasir was homicidal and proceeded to determine the crucial question of who caused the death and whether it amounted to murder. The court analyzed the eye-witness accounts and found inconsistencies in the evidence, leading to doubts about the credibility of the witnesses. The court also considered the ownership and possession of the field, injuries sustained by the accused party, and the right of private defence. Ultimately, the court held that the appellants acted in the exercise of their right of private defence and acquitted them of the offence punishable under Section 302 read with Section 34, IPC.
Fact of the Case:
The prosecution case involved the murder of Sheikh Nasir during a ploughing operation in a disputed field. The appellants were convicted under Section 302, IPC read with Section 34 and sentenced to imprisonment for life. The appellants claimed they were falsely implicated and asserted their right of private defence.
Finding of the Court:
The court found inconsistencies in the eye-witness accounts, doubts about the credibility of witnesses, and lack of evidence regarding the ownership and possession of the field. Ultimately, the court held that the appellants acted in the exercise of their right of private defence and acquitted them of the offence.
Issues: The key issues included determining the cause of Sheikh Nasir's death, assessing the credibility of the witnesses, and establishing the right of private defence.
Ratio Decidendi: The court's decision was influenced by the inconsistencies in the evidence, doubts about witness credibility, and the assessment of the right of private defence in the context of ownership and possession of the field.
Final Decision: The court acquitted the appellants of the offence punishable under Section 302 read with Section 34, IPC, and ordered the release of appellant Sheikh Bashir from custody.
( 1 ) APPELLANTS Sheikh bashir and Sheikh Shafiq, who stand convicted under Section 302, IPC read with Section 34 thereof with sentence of imprisonment for life vide impugned judgment dated 11-3-89 passed by the Second Additional sessions Judge, Bhopal, in Sessions Trial no. 98/86, have filed this appeal under Section 374 (2) of the Code of Criminal Procedure.
( 2 ) THE prosecution case, in brief is that on 30-10-87 at about 12. 00 o'clock in the afternoon the plouging operation was going on in the field of deceased Sheikh Nasir, known as "raghunathwala khet'. Deceased shekih Nasir along with Sayed Ali (PW -10 ). Sheikh Mohd. alias Gutkay (PVV-12) and sheikh Rafique (PW-14) was ploughing the field. Sheikh Haneef (PW-9) and Sheikh rayees (PW-11) were engaged in agricultural operations in the adjoining field. Appellant sheikh Dasheer his two sons namely. Sheikh shafiq, appellant No. 2, and Sheikh Sharif and his brother-in low, Sheikh Rehman reached the spot.
( 3 ) APPELLANTS Sheikh Bashir and Sheikh shafique were armed with ballams. Sheikh rehrnan was armed with ballarn mounted on a rod. Sheikh Rehman abused the complainant party and asked them not to plough the field. Rehman tried to deal a blow of ballam on Sayed Ali which he saved. Appellant Bashir dealt a ballam on the head of sayed Ali and dealt another blow on his shoulder. Sayed Ali ran away from the spot. Thereafter, appellant Bashir and Rehman dealt blows of ballam on Nasir. One blow of rehman landed on the neck of Nasir which resulted in his instantaneous death on the spot itself. After the incident, the appellants and their co-accused Sheikh Sharif and rehman went towards their village.
( 4 ) SAYED Ali (PW-10) along with Babu (PW-1) went to the police station Habibganj and lodged FIR, Ex. P-1. S. K. Sharma (PW-17) Station House Officer, police station, habibganj reached the spot and prepared spot map Ex. P-17. He also prepared the inquest panchnama (Ex. P-9 ). Bloodstained soil, chappals of deceased Nasir and a pirana were recovered from the spot as per Ex. P-18. Dead body of Nasir was sent for post mortem examination to Gandhi Medical College, bhopal. Appellants and Sheikh Shariff were arrested as per memo, Ex. P-20. A bushshirt stained with blood was recovered from the person of Sheikh Sharif as per Ex. P-2.
( 5 ) ON the information given by appellant sheikh Bashir a ballam was recovered as per Ex. P-10. A bamboo stick was recovered in pursuance of the information given by appellant Sheikh Shafique as per Ex. P-12. A lathi was recovered on the information given by Sheikh Sharif as per Ex. P-11.
( 6 ) DR. B. P. Dubey, conducted postmortem examination on the body of deceased nasir and found the following injuries : (1) Linear abrasion, lateral end was 3. 5 cm below the level of left nipple, going downwards and medially, 5 cm long. (2) Abrasion on left elbow, posterior aspect, circular 3 cm diameter. (3) Incised wound on left upper arm lateral medial aspect, 6 cm above the elbow joint, size 3. 5 cm x 5 cm, vertical, muscle deep. (4) Superficial incised wound, lateral end was on right anterior axillary line and 20 cm above the anterior superior iliac spine, size 7 x 0. 5 cm, transverse. (5) Incised wound obliquely vertical on anterior medial aspect of right forearm, 8 cm. below the elbow joint, size 3. 5 x 5 cm. skin deep, upper end is medially situated. (6) Incised wound on anterolateral aspect of right forearm, 5 cm below the elbow joint, margins are inverted, size 11 x 3 cm, vertical. (7} lacised wound 1. 5 cm lateral to the injury No. 6 on right forearm size 9 x 2 cm, vertical, muscle and tissue protruding out, injuries Nos. 6 and 7 are communicating with each other. (8) Stab wound on the neck 5 cm above the manubrium sternum, transverse, size 7 x 1. 5 cm, x 4 cm on right side which is superficial and 3 cm on left side. Wound was deep on left side, it had cut the muscle anterior left border of trachea, common carotid artery and jugular vein, viscera a
