Back
2007 Supreme(MP) 871
2008(1) JLJ 34
S.K. Kulshreshtha and Smt. Manjusha Namjoshi, JJ.
Naimuddin v. State of M.P.
Criminal Appeals No. 967, 940 and 949 of 2005 (Indore): against the judgment of IV Additional Sessions Judge, Indore, passed in Sessions Trial No. 153 of 2003; decided on 31.8.2007.
Z.A. Khan and S.K. Vyas with Zishan Ali and L.S. Chandiramani for appellants;
Girish Desai, Deputy Advocate General for State.
Headnote:(1) Penal Code, 1860 -- Ss.302/149 and 307/109 -- evidence of exhortation -- is a weak piece of evidence -- cannot be acted upon unless evidence is clear, cogent and reliable.
According to the prosecution, on 18.3.2002 at about 7:30 p.m. Ashok Bhavsar had come to the square in Marathi Mahalia where he met Prakash Kadam. He inquired from Prakash Kadam where he was going but at that time there occurred a quarrel between the children of the locality and persons from the sunounding area collected there. Accused Ziyauddin and Riyazuddin were standing behind their house. Resenting that there was a quilted but the persons who had gathered there were not taking any steps to quell it, accused Ziyauddin and Riyazuddin asked Naimuddin to bring a gun and to finish them. Upon this exhortation, accused Naimuddin came out with a gun in his gallery and aiming the gun at deceased Prakash and the other witnesses present near the place of occurrence, he fired several times. [Para 2
Held: There is quite often a tendency to implicate some person in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect is clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant.
A large number of witnesses including PW7 Dinkar Rao, injured in the incident apparently because he must be in the close vicinity of the area, has not attributed any exhortation to any of the appellants Ziyauddin and Riyazuddin. PW14 Chhatar Singh who was injured and whose presence at the time of the incident cannot be doubted, has not supported the prosecution story while PW22 Yogesh though implicates Nairn, but not the other appellants.
Criminal Appeal No.940/2005 (Ziyauddin v. State of M.P.) is allowed. The conviction of the appellant under section 302/149 and 307 IPC (two counts)/l09 and the sentence awarded there under is set aside and he is acquitted of the charges against him. Ziyauddin is in jail undergoing sentence. He be forthwith released if not required in connection with any other matter.
Criminal Appeal No.94912005 (Md. Riyazuddin s/o Azizuddin v. State of M.P) is allowed. Conviction of Riyazuddin under section 3021109 and section 307 (two counts) 1109 is set aside and he is acquitted of the charges against him. Riyazuddin is on bail. His bail bond shall stand discharged. AIR 1974 SC 45 and 1998(2) Crimes 250 (SC) followed. [Paras 18, 19, 28 & 29
(2) Penal Code, 1860 -- Ss.302 and 307 -- gun fired at mob -- one died and two injured -- offences made out.
From the evidence which has come on record, it cannot be doubted that Nairn fired a gun and such a weapon was also seized at his instance of which he was holder of an arm licence. The ocular testimony of PW9 Gopal, PW7 Dinkar Rao, PW10 Ashok Bhavsar, PW 12 Lalit Thomre, PW 22 Yogesh clearly implicates the said appellant. It is stated by the witnesses that Naimuddin had brought the gun and thereafter fired at the mob with the result Prakash died and Dinkar Rao and Chhatar Singh received injuries.
[Para 21
¼1½ naM lafgrk] 1860 && /kkjk 302@149 rFkk 307@149 && izksRlkfgr fd, tkus dk lk{; && nqcZy lk{; gS && dkjZokbZ ugha dh tk ldrh tc rd fd lk{; Li"V] rdZlaxr vkSj voyacuh; ugha gksA
vfHk;kstu ds vuqlkj] 18-3-2002 dks vijkg~u yxHkx 7%30 cts v‘kksd Hkkolkj ejkBh eksgYyk ds pkSd esa vk;k Fkk tgk¡ mls izdk‘k dne feykA mlus izdk‘k dne ls iwNk fd og dgk¡ tk jgk Fkk fdarq ml le; ogk¡ eksgYys ds ckydksa esa >xM+k gqvk vkSj vklikl ds {ks= ls O;fDr ogk¡ ,d= gks x,A vfHk;qDr ft;kmn~nhu vkSj fj;ktqn~nhu vius ?kj ds ihNs [kM+s FksA ogk¡ >xM+k gks jgk Fkk fdarq O;fDr tks ogk¡ ,d= gq, Fks mls ‘kkar djus ds fy, dqN ugha dj jgs Fks] blls vizlUu gks dj vfHk;qDr ft;kmn~nhu vkSj fj;ktqn~nhu us ubZeqn~nhu ls canwd yk dj mudks lekIr dj nsus ds fy, dgkA ,sls izksRlkgu ij vfHk;qDr ubZeqn~nhu viuh xSyjh esa canwd ys dj vk;k vkSj e`rd izdk‘k vkSj ?kVukLFky ij mifLFkr vU; lk{khx.k dks y{; dj ds mlus vusd Qk;j fd,A ¼iSjk 2
vfHkfu/kkZfjr % cgq/kk] okLrfod vkØe.kdkjh ds vfrfjDr vU; O;fDr ij vkgr ij vkØe.k djus ds fy, vkØe.kdkjh dks izksRlkfgr djus dk vkjksi yxk dj mls Q¡lkus dh izo`fÙk gSA bl ckjs esa tc rd Li"V] rdZlaxr vkSj voyacuh; lk{; ugha gks] okLrfod vkØe.kdkjh dks vfHkdfFkr :i ls izksRlkfgr djus okys ds fo:) nq‘izsj.kk dh nks"kflf) vfHkfyf[kr ugha dh tk ldrhA
cgqla[; lkf{k;ksa us ftuesa v lk 7 fnudj jko Hkh lfEefyr gS] tks ?kVuk esa {kfrxzLr gqvk D;ksafd Li"V gS fd og ml {ks= ds cgqr fudV jgk gksxk] ft;kmn~nhu vkSj fj;ktqn~nhu fdlh vihykFkhZ ds fo:) fdlh izksRlkgu dk vkjksi ugha yxk;k gSA v lk 14 Nrjflag us tks {kfrxzLr gqvk Fkk vkSj ?kVuk ds le; ftldh mifLFkfr ij lansg ugha fd;k tk ldrk] vfHk;kstu dFkk dk leFkZu ugha fd;k gS tc fd v lk 22 ;ksxs‘k us ubZe dks vkfyIr fd;k gS fdarq vU; vihykfFkZ;ksa dks ughaA
nkafMd vihy Ø-940@2005 ¼ft;kmn~nhu fo- e-iz- jkT;½ eatwj dh tkrh gSA vihykFkhZ dh Hkk-na-la- dh /kkjk 302@149 rFkk 307 ¼nks vkjksi½@109 ds v/khu nks"kflf) vkSj rn/khu vf/kfu.khZr naMkns‘k vikLr fd, tkrs gSa vkSj og mlds fo:) vkjksiksa ls nks"keqDr fd;k tkrk gSA ft;kmn~nhu tsy esa naMkns‘k Hkksx jgk gSA ;fn vU; ekeys esa vk{ksfir ugha gks] og rRdky NksM+ fn;k tk,A
nkafMd vihy Ø-949@2005 ¼eks- fj;ktqn~nhu iq= vthtqn~nhu fo- e-iz- jkT;½ eatwj dh tkrh gSA /kkjk 302@109 rFkk /kkjk 307 ¼nks vkjksi½@109 ds v/khu fj;ktqn~nhu dh nks"kflf) vikLr dh tkrh gS vkSj og mlds fo:) vkjksiksa ls nks"keqDr fd;k tkrk gSA fj;ktqn~nhu tekur ij gS] mlds tekuri= mUeksfpr fd, tkrs gSaA , vkb vkj 1974 ,l lh 45 rFkk 1998¼2½ ØkbEl 250 ¼,l lh½ vuqlfjrA ¼iSjk 18] 19] 28 ,oa 29
¼2½ naM lafgrk] 1860 && /kkjk 302 rFkk 307 && HkhM+ ij canwd dk Qk;j fd;k && ,d dh e`R;q rFkk nks {kfrxzLr && vijk/k fl)A
vfHkys[k ij izkIr lk{; ij ls bl ij lansg ugha fd;k tk ldrk fd ubZe us canwd dk Qk;j fd;k vkSj ,slk vk;q/k mldh izsj.kk ij vfHkx`ghr fd;k x;k ftldk og vk;q/k&vuqKfIr /kkjd FkkA v lk 9 xksiky] v lk 7 fnudj jko] v lk 10 v‘kksd Hkkolkj] v lk 12 yfyr Bksejs] v lk 22 ;ksxs‘k ds pk{kq‘k vfHklk{; ls mDr vihykFkhZ Li"Vr% vkfyIr gksrk gSA lk{khx.k }kjk dFku fd;k x;k gS fd fu;ktqn~nhu canwd yk;k Fkk vkSj rRi‘pkr~ HkhM+ ij mlus Qk;j fd, ftlds ifj.kkeLo:i izdk‘k dh e`R;q gqbZ vkSj fnudj jko rFkk Nrjflag {kfrxzLr gq,A ¼iSjk 21
Kulshreshtha, J. -- 1. The above appellants have filed separate appeals against their conviction vide judgment dated 22.8.2005 passed by the learned IV Additional Sessions Judge, Indore in Sessions Trial No.153/ 2003 convicting the appellant Naimuddin under section 302 and section 307 on two counts and appellants Ziyauddin and Riyazuddin under section 302 and 307 (on two counts) read with section 109 of the IPC and sentence' of imprisonment for life and Rs.500/- under section 302 IPC and seven years on each count under section 307 and fine ofRs.250/- while Ziyauddin and Riyazuddin have been sentenced to imprisonment for life under section 302/109 and fine of Rs.500/- seven years rigorous imprisonment on each count under section 307 of the IPC and fine of Rs.250/- each.
2. The facts of the case lie in a narrow compass. According to the prosecution, on 18.3.2002 at about 7:30 p.m. Ashok Bhavsar had come to the square in Marathi Mohalla where he met Prakash Kadam. He inquired from Prakash Kadam where he was going but at that time there occurred a quarrel between the children of the locality and persons from the surrounding area collected there. Accused Ziyauddin and Riyazuddin were standing behind their house. Resenting that there was a quarrel but the persons who had gathered there were not taking any steps to quell it, accused Ziyauddin and Riyazuddin asked Naimuddin to bring a gun and to finish them. Upon this exhortation, accused Naimuddin came out with a gun in his gallery and aiming the gun at deceased Prakash and the other witnesses present near the place of occurrence, he fired several times. As a result of the firing of the gun, the bullet struck deceased Prakash 1,1/2" above his left eye brow. Naimuddin continued firing the gun which resulted in injury to Dinkar Rao PW7 and Chhatar Singh PW14. The fire of the gun caused affray and people started running helter-skelter.
3. The report (Ex.P-14) of the incident was lodged by PW10 Ashok Bhavsar which was recorded by Sub-Inspector Suryanath Singh Yadav. After recording of the FIR, EX.P-24 R.C. Pathak, Town Inspector commenced investigation and proceeded to the spot along with other police personnel. When he reached the spot, he noticed that a large number of persons had gathered there and Prakash Kadam was lying on the 'Otla' of Yogesh Najan with bleeding injuries in his head. He was sent in the police van to hospital along with his wife PW11 Smt. Asha and other persons from the locality. On account of the incident, tension mounted and the place had to be cordoned to protect the spot. Information was sent to the police control room and senior officers of the police also arrived. At the instance of Ashok Bhavsar, Spot Map EX.D-2 was prepared, SHO R.C. Pathak also took samples of the blood stained and control earth and then proceeded to the gallery from where the weapon had been fired and collected five empty shells of .22 bullets from there and seized them vide EX.P-23.
4. On receipt of the information that Prakash Kadam had• succumbed to his injuries and his dead body was brought by his wife Asha and Jagdish, a case of unnatural death under section 174 of the CrPC was registered and inquest was held by the SHO of which Memo EX.P-6 was prepared. PW 13 Constable No .2945 was called to take photographs of the spot and the place where the deceased was lying. Other photographs were also taken. After preparation of the Inquest Memo Ex.P-6, the dead body was sent to the hospital for post-mortem examination. It was identified by the Nephew of the deceased before the Autopsy Surgeon. After conducting the Autopsy Report EX.P-30 was sent by him.
5. As per the testimony of Dr. K.K. Saxena PW23 and his report Ex.P30, the following injury was found on the body of the deceased:
1) Gun shot wound oval size 1/2"x1l4" with crushed edges inside of fore head 1-112" above left eye-brow with brain material coming out.
2) Abrasion left elbow 3/4"x 112" red in colour. According to the opinion of
