Takdeer Shah vs State of Madhya Pradesh Govt.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(MP) 76

IN THE HIGH COURT OF MADHYA PRADESH
Vivek Rusia and Anil Verma, JJ.
Takdeer Shah & Another v. The State of Madhya Pradesh Govt.
Criminal Appeals No. 1219 of 2012, 1249 of 2012, 1313 of 2012, 1321 of 2012, 1324 of 2012 and 1656 of 2013 (Indore): against the judgment and sentence dated 25.9.2012 passed by the 5th Additional Sessions Judge, Mandsaur in Sessions Trial No. 229/2011; Decided on 7.2.2024

Advocates Appeared:
Ms. Sharmila Sharma for appellants;
Tarun Kushwah, Government Advocate for respondent/State.

Headnote:
(1) Witness -- interested witness -- police constables and colleagues of deceased -- they were performing their official duty at time of incident -- they have no common intention for false implication of appellants -- cannot be considered interested witnesses -- some contradictions and omissions in statements of these witnesses, but same trivial in nature -- there is no reason to doubt their presence on spot at time of incident. 2016 (3) JLJ 363 (SC) = (2016) 10 SCC 220 and (2018) 7 SCC 623 followed. [Paras 18, 19 & 21]
(2) Recovery -- statements of all investigating officers well supported by other witnesses of arrest memo, seizure memo and disclosure statements -- some seizure witnesses have turned hostile but investigating officers have no enmity with appellants and no motive for falsely implicating them -- proved that incriminating articles have been recovered from possession of appellants -- blood clots on seized weapon matched with blood sample of deceased in respect of certain appellants -- prosecution has proved its case against said appellants -- DNA report not positive in respect of seizure of iron pipe from possession of one appellant -- his presence and participation become doubtful, hence he deserves acquittal. [Paras 24 & 25]
(3) Penal Code, 1860 -- Ss. 148, 332/149 and 302/149 -- deceased person and injured persons police constables -- assaulted when they were performing their official duty -- injured witnesses have no common intention for false implication of appellants -- contradictions and omissions in statements of these witnesses trivial in nature -- statements of all investigating officers well supported by other witnesses of arrest memo, seizure memo and disclosure statements -- some seizure witnesses have turned hostile but investigating officers have no enmity with appellants and no motive for falsely implicating them -- blood clots on seized weapon matched with blood sample of deceased in respect of certain appellants -- conviction of said appellants confirmed -- DNA report not positive in respect of seizure of iron pipe from possession of one appellant -- his presence and participation become doubtful, hence acquitted. 2018 (3) JLJ 309 (SC) = 2018 (4) Crimes 238 (SC) and 2016 (3) MPLJ (Cri.) (SC) 410 followed. [Paras 18, 19, 24 & 25]
¼1½ lk{kh & fgrc) lk{kh & iqfyl d‚aLVscy rFkk e`rd ds lgdehZ & ?kVuk ds le; og vius inh; drZO; dk fuoZgu dj jgs Fks & vihykFkhZx.k dks feF;k vkfyIr djus dk mudk dksbZ lkekU; vk'k; ugha & fgrc) lk{kh ugha ekus tk ldrs & bu lkf{k;ksa ds dFkuksa esa dqN fojks/kkHkkl vkSj yksi] ijarq og ux.; ç—fr ds & ?kVuk ds le; LFky ij mudh mifLFkfr ij lansg djus dk dksbZ dkj.k ughaA 2016 ¼3½ ts,yts 363 ¼mPpre U;k;ky;½ % ¼2016½ 10 ,llhlh 220 rFkk ¼2018½ 7 ,llhlh 623 vuqlfjrA ¼iSjk 18] 19 ,oa 21½
¼2½ cjkenxh & lHkh vUos"k.k vf/kdkfj;ksa ds dFku fxjrkjh Kkiu] vfèkxzg.k Kkiu vkSj çdVhdj.k dFkuksa ds vU; lkf{k;ksa }kjk HkyhHk‚afr lefFkZr & vf/kxzg.k ds dqN lk{kh i{kæksgh gks x, ijarq vUos"k.k vf/kdkfj;ksa dh vihykFkhZx.k ls dksbZ 'k=qrk ugha rFkk mUgsa feF;k vkfyIr djus dk dksbZ gsrq ugha & lkfcr fd vijk/k esa Q¡lkus okyh oLrq,¡ vihykFkhZx.k ds dCts ls cjken dh xbZ gSa & dqN vihykFkhZx.k ds laca/k esa vf/kx`ghr gfFk;kjksa ij jä ds /kCcs e`rd ds jä ds uewus ls esy [kkrs gSa & vfHk;kstui{k us mä vihykFkhZx.k ds fo:) viuk i{kdFku lkfcr fd;k & ,d vihykFkhZ ds dCts ls yksgs ds ikbi ds vf/kxzg.k ds laca/k esa Mh,u, çfrosnu ldkjkRed ugha & mldh mifLFkfr vkSj Hkkxhnkjh lansgkLin gks tkrh gS] vr% og nks"keqfä ;ksX;A ¼iSjk 24 ,oa 25½
¼3½ naM lafgrk] 1860 & /kkjk 148] 332@149 rFkk 302@149 & e`r O;fä vkSj vkgr O;fä iqfyl d‚aLVscy & og vius inh; drZO; dk fuoZgu dj jgs Fks rc mu ij geyk fd;k x;k & vkgr lkf{k;ksa dk vihykFkhZx.k dks feF;k vkfyIr djus dk dksbZ lkekU; vk'k; ugha & bu lkf{k;ksa ds dFkuksa esa fojks/kkHkkl vkSj yksi ux.; ç—fr ds & lHkh vUos"k.k vf/kdkfj;ksa ds dFku fxjrkjh Kkiu] vf/kxzg.k Kkiu vkSj çdVhdj.k dFkuksa ds vU; lkf{k;ksa }kjk HkyhHk‚afr lefFkZr & vf/kxzg.k ds dqN lk{kh i{kæksgh gks x, ijarq vUos"k.k vf/kdkfj;ksa dh vihykFkhZx.k ls dksbZ 'k=qrk ugha rFkk mUgsa feF;k vkfyIr djus dk dksbZ gsrq ugha & dqN vihykFkhZx.k ds laca/k esa vf/kx`ghr gfFk;kjksa ij jä ds /kCcs e`rd ds jä ds uewus ls esy [kkrs gSa & mä vihykFkhZx.k dh nks"kflf) iq"V & ,d vihykFkhZ ds dCts ls yksgs ds ikbi ds vf/kxzg.k ds laca/k esa Mh,u, çfrosnu ldkjkRed ugha & mldh mifLFkfr vkSj Hkkxhnkjh lansgkLin gks tkrh gS- vr% nks"keqäA 2018 ¼3½ ts,yts 309 ¼mPpre U;k;ky;½ % 2018 ¼4½ ØkbEl 238 ¼,llh½ rFkk 2016 ¼3½ ,eih,yts ¼fØŒ½ ¼,llh½ 410 vuqlfjrA ¼iSjk 18] 19- 24 ,oa 25½

JUDGMENT

1. Since all these six appeals have been filed against the common impugned judgment, therefore, the same are being decided by this common judgment.

2. All these appeals have been filed by all the appellants under section 374 of Criminal Procedure Code, 1973 (in short “Cr.P.C) against the impugned judgment dated 25.9.2012 passed by 5th Additional Sessions Judge, Mandsaur in Sessions Trial No. 229/2011, whereby all the appellants have been convicted under sections 148, 332/149 and 302/149 of IPC and sentenced to undergo one year R.I with fine of Rs. 1000/- each; two years R.I with fine of Rs. 2000/- each and life imprisonment with fine of Rs. 3000/- each respectively with usual default stipulation.

3. Prosecution case in brief is that on 18.7.2011 at night at about 08:40 PM police constable Mukesh Singh Bhadoriya and Brajraj Singh were posted at P.S. Y.D. Nagar in cobra Scott on special duty. During patrolling, when they turned to village Multanpura and reached near house of Ibrahim Aldad, they saw accused Raghu @ Sarfiraz having Katta in his one hand and one steel pipe in another hand and accused Maqsud Batla, Ashiq Gulla and Yusuf Gulla also having steel pipe and accused Shehzad Gulla, Takdeer Shah, Iliyas and other one person having stick in their hands and they surrounded near Mukesh Singh Bhadoriya and Brajraj Singh. At that time,accused Raghu @ Sarfraz fired by katta. Both of police constable fell down and escaped from gun fire. Accused Sarfraz and other accused person were talking that both came daily for caught us and today they would kill them. Thereafter all of them inflicted injury to both of them. When complainant Mukesh Singh Bhadoriya made hue and cry, at that time other cobra scott person Jitendra and Rakesh come on the spot for his rescue, thereafter accused person run away from the spot. Constable Jitendra and Rakesh took Brajraj for treatment in civil hospital, Mandsaur. During treatment. Barajraj Singh died. Complainant Mukesh Singh Bhadoriya lodged Dehati Nalishi. Accordingly, later on, the merg and FIR was registered.

4. Prosecution case in further is that Sub-Inspector Musa Khan went on the spot and prepared Naksha Panchanama and spot map and also recovered blood stained soil, simple soil and deceased’s hairs from the spot. Police arrested all the accused persons in presence of witnesses and their disclosure statements were recorded. At the instance of accused persons, iron rod, sticks and some of the blood stained clothes were recovered. Postmortem of the deceased was conducted by Dr. D.K. Sharma (PW-23) and found that the deceased sustained fatal injuries over his head and cause of death is due to acute head injury by hard and blunt object and death is homicidal in nature. MLC of victim Mukesh Singh Bhadoriya was conducted by concerned doctor. Seized articles were sent to FSL, Sagar for its chemical examination and DNA test. Thereafter, FSL report was received. Duty certificates of both the constables were obtained. District Magistrate, Mandsaur gave prosecution sanction for the offences under sections 25 and 27 of the Arms Act.

5. After completion of investigation, charge-sheet was filed before the JMFC, Mandsaur, who committed the case to the Court of Sessions Judge, Mandsaur, which was, later on, transferred to the Court of 5th ADJ, Mandsaur. Prosecution examined as many as 30 witnesses and defence examined 6 witnesses. The trial Court, after appreciating evidence available on record, convicted all the appellants under sections 148, 332/149 and 302/149 of IPC and sentenced as mentioned herein above and also acquitted accused Abdul Rahman, Javed Ratlami, Annu Niyargar and Smt. Rukhsana bi from all the charges. Hence the appellants have preferred all these appeals separately.

6. Learned counsel for the appellants contended that judgment of conviction passed by the trial Court is contrary to law and facts on record. It is neither legal, nor just, proper and correct. Statement of sole eye witness M