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HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No. 1521/2000
1. Bablu @ Ballu, aged 30
years, s/o Mohd.Khan, r/o
Indira Nagar, Tila
Jamalpura, Bhopal (MP).
2. Habib aged 40 years, s/o
Mohd.Khan, r/o Behind
A.D.M. Slum Area, Idgah
Hills, Bhopal.
3. Santosh Kumar, aged 20
years, s/o Raghuvir Singh
Yadav, r/o Police Lines,
Shahjahanabad, Bhopal
(MP).
..........Appellants
Versus
State of Madhya Pradesh,
through Police Station
Hanumanganj, Distt. Bhopal.
..............Respondent
For the Appellants: Shri S.C. Datt, Sr. Advocate with
Siddharth Datt, Advocate.
For the Respondent: Shri S.K. Rai, Government Advocate.
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PRESENT:
HONOURABLE SHRI JUSTICE RAKESH SAKSENA
HONOURABLE SHRI JUSTICE S.A. NAQVI
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Date of hearing: 05/11/2009
Date of Judgment: 10/11/2009
JUDGMENT
Per: Rakesh Saksena, J.
Appellants have filed this appeal against the judgment
dated 19.5.2000, passed by II Additional Sessions Judge,
Bhopal, in Sessions Trial No. 107/99, convicting and sentencing
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the appellants as under:
Conviction Sentence
Appellant No.1
1. u/s 397 IPC 7 Years Rigorous imprisonment.
2. u/s 302 IPC Life Imprisonment and a fine of
Rs.500 and in default of fine,
further 1 month's RI.
3. u/s 25(1-B)(a) Arms Act. 1 years rigorous imprisonment
and a fine of Rs.500/- . In default
of fine 1 month's further RI.
4. u/s 27 Arms Act. 3 years rigorous imprisonment.
Appellant No.2
1. u/s 397 IPC r/w Sec. 34 IPC 7 years rigorous imprisonment
2. u/s 302/34 IPC Life Imprisonment and a fine of
Rs.500/- and in default of fine
one month's further rigorous
imprisonment.
Appellant No.3
1. u/s 397 IPC 7 years rigorous imprisonment
2. u/s 302/34 IPC Life Imprisonment and a fine of
Rs.500/- and in default of fine
one month's further rigorous
imprisonment.
3. u/s 25(1-B)(a) Arms Act. 1 years rigorous imprisonment
and a fine of Rs.500/- . In default
of fine 1 month's further RI.
4. u/s 27 Arms Act. 3 years rigorous imprisonment
2. In short, the prosecution case is that Akeel (PW-1) and
Zahid Miyan (deceased) were working as a servant and
Muneem, respectively, of Riyaz @ Chhote Pahalwan. On
18.12.1998, at about 12.45 p.m., they were going to State Bank
of India, , Branch at Hamidiya Road, for getting a draft of
Rs.65,800/- prepared. Money was kept by Zahid Miyan in a
bag. When they reached near Gurudwara Road, some
miscreants confronted them and one of them who had a
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‘Chhuri’ rushed towards Akeel. Akeel ran away; Zahid
remonstrated with them asking why they were assaulting him,
but, suddenly Akeel heard sound of a gun fire and on looking
back, saw smokes and a miscreant with a pistol in his hand. He
went to Bank and requested guard of the Bank to help, but he
refused. He then telephoned to Chhote Pahalwan. On going
back, he saw Zahid lying injured on the road. Miscreants had
snatched away his bag containing Rs.65,800/-. He, Shakir
Miyan, Hanif, Mukaddam and Liyakat carried Zahid Miyan in
an auto to Hamidiya Hospital, but, by that time, he expired.
According to Akeel, he was able to identify the miscreants.
When police reached the hospital, he gave Dehati Nalishi
Report (Ex. P/1) to police at 13.45 Hrs. On the basis of Dehati
Nalishi Report, the first information report (Ex. P/24) was
recorded at Police Station, Hanumanganj, Bhopal. Dr. C.S.
Jain , Junior Forensic Specialist, Medico Legal Institute, Bhopal
(PW-21) conducted postmortem examination of the body of
Zahid and vide his report Ex. P/25, found one firearm entry
wound 10 cms. below acromion process on right upper arm.
Size of entry wound was 3 x 3 cms. Wound was surrounded by
abraised collar of irregular margins. Blackening and tattooing
with scorching was seen at margins of wound. Shaft of
humerus bone was fractured. Dr. Jain sent the dead body for X-
ray examination of the chest and right arm region of the body
and on the basis of X-ray plates, he, besides fracture of right
humerus bone, found at least 58 pellets present on the right
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arm, right lung, heart and lungs of the body. 3 rd and 4th ribs
were also fractured. The death of deceased had been caused
by shock and excessive haemorrhage and was sufficient in
ordinary course of nature to cause death. The death was
caused by firearm and was homicidal in nature.
3. On 21.12.1998, accused Bablu @ Ballu, Habib and
Santosh were arrested and on the information given by Bablu,
on 22.12.1998 a red colour bag with a Katta, some cash and
two applications for bank draft were seized. Accused persons
were put up for test identification parade and after completion
of investigation, charge sheet was filed against the accused
persons and the case was then committed for trial.
4. Accused persons abjured their guilt. According to accused
Bablu, at the time of incident he was present in the Court of
First Additional Sessions Judge, Bhopal, in a criminal case.
According to accused Habib and Santosh, alleged eyewitnesses
of the case spoke against them out of enmity. Accused Bablu,
in his defence, examined DW-1 Zahid @ Chand, DW-2 Mohsin
Ali and DW-4 V.P. Paul. Accused Habib examined his wife as
DW-3 Smt. Abda Bi.
5. Prosecution, to substantiate its case, examined 27
witnesses.
6. Trial Court, relying mainly on the evidence of
eyewitnesses Akeel (PW-1), Shakir (PW-2), Riyaz Ahmed @
Chhote Pahalwan (PW-3) and Sayed (PW-9) and the medical
evidence of Dr. C.S. Jain (PW-21) and Dr. Dhananjay Sharma
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(PW-24), held the accused persons guilty and convicted and
sentenced them as mentioned above.
7. Shri S.C. Datt, learned senior counsel for the appellants,
submitted that the accused/appellants were falsely implicated
due to enmity. Though alleged eyewitnesses Shakir (PW-2) and
Riyaz (PW-3) knew the accused persons by name and were
present at the hospital where Dehati Nalishi Report was lodged
by Akeel (PW-1), yet their names were missing in the said
report. According to him, it clearly indicated that the aforesaid
eyewitnesses falsely implicated the accused persons
subsequently. The evidence of all the aforesaid eyewitnesses
was not trustworthy. He further submitted that the recoveries
and seizures of Katta, ‘Chhuri’ and currency notes were not
incriminating evidence pertaining to the murder of deceased.
The recovery of a bag and applications for obtaining bank draft
were of no use as the same were not established to be the
looted properties. Per contra, Shri S.K. Rai, learned
Government Advocate for the State, contended that the
evidence of eyewitnesses was reliable and sufficient to hold the
accused persons guilty of the offence. According to him, trial
Court was fully justified in recording the finding of guilt
against them.
8. We have heard the learned counsel for the parties and
perused the impugned judgment and evidence on record
carefully.
9. According to Akeel Khan (PW-1), he was working as
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Muneem (Clerk) of Idris Bhai (son of Chhote Pahalwan). On
18.12.1998, in the noon, Idris Bhai gave him a form for
obtaining a bank draft of Rs.65,800/- from the Bank. His
colleague Zahid @ Phuppa (deceased) accompanied him
keeping cash of Rs.65,800/- in a bag for going to Bank. When
they passed from the front of Gurudwara, a boy suddenly
appeared with a ‘Chhuri’ and raised his hand to assault him; he
saved himself by bending, but it injured Zahid. Zahid asked him
as to why he was assaulting him, but in the meantime one of
the accused persons fired gun at him. Akeel (PW-1) pointed
out that accused Santosh was armed with a Chhuri and
accused Bablu had fired. Both the accused persons scuffled
with Zahid for snatching the bag. He got perplexed and rushed
to the Bank and requested to the guard posted there to help
them, but he refused. He went inside the Bank and made a
phone call to Idris Bhai about the occurrence. When he came
back to spot, he found Zahid lying injured. He then carried
Zahid to Hamidiya Hospital in an auto rickshaw, but doctor
declared him dead. When police came to hospital, he gave
Dehati Nalshi (Ex. P/1). On 6.1.1999, in test identification
parade (Ex. P/3) he identified accused Bablu and Santosh. He
did not identify Habib. He also identified the bag containing
cash and the applications to State Bank of India for preparation
of bank drafts. This test identification (Ex. P/4) was conducted
by Naib Tahsildar, Zulfikar Hyder (PW/25).
10. Akeel Khan categorically stated that he had never seen
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accused Bablu and Santosh in the past. He expressed his
ignorance to the suggestion put by defence that Bablu and
Santosh had assaulted his brother Wakil, and his brother had
lodged a named report. He stated that he did not know about
the pendency of any such case, but, at the same time, he
admitted that a case was pending against these two accused
persons for beating his brother and he was also a witness in
that case. However, in the next breath, he stated that he did
not know whether he was witness or not. His evidence that till
date he did not know the names of accused persons and that
Chhote Pahalwan also did not inform him about the names of
assailants, in our opinion, appears suspicious. It seems that he
feigned ignorance about the names of the accused persons for
some ulterior purpose. Spot Map (Ex. P/2), which was drawn
before him, bears the name of accused Santosh. He admitted
that the Spot Map (Ex. P/2) was drawn on his instructions.
Mentioning of the name of accused Santosh in Spot Map (Ex. P/
2), which was drawn at about 5.00 p.m. on the same day, in our
opinion, castes serious doubt on the veracity of his evidence
that he did not know Santosh by name. He deposed that
except him no other person was present at the spot. The
persons, who accompanied him in the auto, also did not know
the names of the assailants, as they had not witnessed the
incident and they had come at the spot subsequently.
According to him, right from the date of incident till the date
when he participated in the test identification parade
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(6.1.1999), none met him who had witnessed the incident or
knew the names of assailants. According to him, Chhote
Pahalwan (PW-3) was not present at the time of incident; he
had come subsequently. He neither accompanied him in the
auto nor met him in the hospital. He even did not see him at or
near the place of occurrence while he was carrying Zahid in
the auto. According to him, even on the next day of the
incident, when he went to his duty at the place of Chhote
Pahalwan (PW-3), there had been no talk about the occurrence.
This appears to us extremely suspicious. Further Akeel denied
that Bablu Khan’s shop of commission agency was situated at
some distance from the shop of Chhote Pahalwan (PW-3).
Contrary to it, Sakir (PW-2) testified that he knew the accused
persons since last 8-10 years. Accused Bablu, in the past, was
working as a ‘Hammal’ (labourer) and presently had a shop in
the vegetable market. Bablu was running a shop there for last
three years. He deposed that Bablu was the President of
‘Hammal Welfare Committee’ for last four years. Witness Akeel
used to work as a Clerk in the shop of Chhote Pahalwan. This
fact was reiterated by Riyaz Ahmed @ Chhote Pahalwan also.
He too testified that there was a Broker Shop of accused Bablu
in vegetable market, which was situated about 4-5 poles away
from his shop. He stated that there were onion and potato
shops in front of the shop of Bablu and he (Chhote Pahalwan)
also dealt in potato and onion business. Akeel and Idris used to
go to recover money from the shopkeepers having shops in
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front of the shop of accused Bablu. On analysis of the above
evidence, it seems to us that accused Bablu was also known to
Akeel (PW-1). Thus not naming the accused persons in the first
information report by Akeel, in our opinion, throws a thick
cloud of suspicion on his evidence. Consequently, his evidence
is not reliable.
11. Sakir (PW-2), Riyaz @ Chhote Pahalwan (PW-3) and Syed
(PW-9), who claimed to be the eyewitnesses of the incident,
named the accused persons. Syed (PW-9) named only accused
Santosh and Habib. According to Sakir (PW-2), when he was
loading vegetables in the handcart in the vegetable market, on
hearing hue and cry, he saw Santosh assaulting Zahid with a
‘Chhuri’. There had been a scuffle between them and, in the
meanwhile, accused Bablu fired a Katta at Zahid. Zahid fell
down then accused persons assaulted him with fists and kicks
and snatched away his bag. Bablu and Santosh snatched the
bag and accused Habib brought a motorcycle, on which all of
them ran away. According to Riyaz @ Chhote Pahalwan
(PW-3), when Zahid and Akeel were going to Bank, he was
following them. He saw Santosh pouncing over Akeel with a
‘Chhuri’; Akeel ran away, then Habib, Bablu and Santosh
surrounded Phuppa (deceased), Santosh inflicted an injury on
his face, and Bablu and Habib snatched the bag from him,
which contained Rs.65,800/-. When Phuppa resisted, Bablu
fired a shot at him. After the incident all the accused persons
ran away on the motorcycle. Sakir (PW-2) deposed that he,
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Chhotte Pahalwan and some other persons went to hospital
taking the dead body of Phuppa in an auto. Akeel came later;
he did not go to hospital with them. According to him, police
was present in the hospital and he had informed to them that
he had witnessed the occurrence. He had also informed the
names of the assailants. It was around 1.15 p.m. when he
narrated the incident to police. At that time, Chhote Pahalwan,
Akeel and some other persons were also present there. This
part of his evidence is contradicted by the evidence of Akeel
(PW-1), who testified that there was nobody at the place of
occurrence and that he carried the deceased to hospital in an
auto and further that he did not meet any person, who had
witnessed the incident or who knew the assailants. According
to him, he had not seen Chhote Pahalwan at the spot or in the
hospital.
12. When we turn to the evidence of Chhote Pahalwan
(PW-3), we find that he stated that after the incident he went
back to his shop as nobody was present at his shop. Though
there was telephone at the shop, even then he did not inform
anybody on phone because he was a patient of diabetes. He felt
nervous. According to him, a Police Post was situated at the
corner of vegetable market and it would have taken only 2-3
minutes to go there from the spot, yet he did not go there
because he was feeling bad. He gave his statement to police at
about 4-5 p.m. on the same day at the spot, when police came
there. He stated that he did not inform the names of assailants
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to Akeel because he himself knew them. Thus, the evidence of
Sakir (PW-2) that Chhote Pahalwan (PW-3) went with the dead
body to hospital, runs counter to the evidence of Chhote
Pahalwan himself.
13. Another eyewitness, Mohd. Syed (PW-9), happened to be
a child witness of about 12 years of age. According to him,
when he was going to meet his father, he saw three persons
beating a man near the gate of Gurudwara. One person was
assaulting him by fists and kicks, second had a ‘Chhuri’ and
third was snatching his bag. According to him, these persons
were accused Santosh and Habib. Santosh was the person,
who inflicted injuries to deceased by means of ‘Chhuri’. After
the occurrence, all the three persons had run away on a Hero
Honda motorcycle and he went to his father, who was present
in vegetable market. According to him, there were 50-60
persons, who had witnessed the occurrence. Since he was at a
distance, he could not count the blows inflicted by ‘Chhuri’ to
deceased. He had identified accused Santosh and Habib in the
test identification parade.
14. On a bare perusal of the statement of this witness, we
find that he did not say that any of the assailants was armed
with a firearm and had fired at the deceased. The absence of
this material fact of the prosecution story in his statement
renders his testimony suspicious and doubtful, especially in
view of the fact that he did not identify accused Bablu in the
test identification parade. Apart from that, his evidence is
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further belied by the evidence of Dr. C.S.Jain who did not find
even a single injury by any sharp edged weapon on the body of
deceased. His evidence, in our view, is not trustworthy.
15. After a thorough scanning and critical scrutiny of the
evidence of the aforesaid eyewitnesses viz. Sakir (PW-2),
Chhote Pahalwan (PW-3) and Mohd. Syed (PW-9), we find that
their presence at the spot was doubtful. Had they been
present at or near the place of occurrence and witnessed the
incident, the names of accused persons would have certainly
been mentioned in the first information report (Ex.P/1), lodged
by Akeel (PW-1). The absence of the names of the accused
persons in Dehati Nalishi (Ex. P/1) throws considerable doubt
about their participation in commission of the crime. The
evidence of Akeel (PW-1) that he did not know the names of
accused persons was not reliable for the reason that he used to
work at the shop of Riyaz @ Chhote Pahalwan (PW-3), which
was situated at a short distance from the shop of accused
Bablu and that he named accused Santosh in the spot map (Ex.
P/2).
16. The arguments advanced by the learned counsel for the
State that the bag snatched by the accused persons was
recovered from the possession of accused Bablu, therefore, it
was established that he was one of the assailants, is not
acceptable to us, as the recovery of the said bag does not
appear to us free of suspicion. Mehtab (PW-11), an
independent witness of the alleged seizure, stated that he and
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the police officers remained out of the house from which Bablu
had brought out the bag and that the house was already lying
open. Though there was nobody on the first floor where the
room was situated, yet there were tenants in the ground floor.
Apart from that, the seized bag was though put up for test
identification conducted by Naib Tahsildar, Zulfikar Hyder
(PW-25), but, on perusal of his statement, it is seen that he did
not say even a word about holding the identification of the said
article. Yet another important aspect is that according to Akeel
(PW-1), applications for Bank Drafts were given to him by Idris
and the currency notes were kept in a bag by Zahid, but Idris
(PW-4) did not say a single word about giving these articles to
any of them. It is also strange that the applications for drafts
were found in the seized bag when they were in the possession
of Akeel. Akeel did not say that these applications were
snatched from him or that he had kept them in the bag. In our
opinion, for these reasons and in the absence of the evidence of
the person, who conducted the test identification of the article,
the test identification could not be held proved and in the
absence of such evidence the identification of the articles
before the Court cannot be accepted.
17. For, the reasons stated above, we are of the view that
prosecution failed to establish beyond doubt that the
accused/appellants robbed the deceased and committed his
murder. Prosecution also failed to establish the recovery of the
arms from the possession of the accused persons. The finding
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of conviction and sentence recorded by the Trial Court,
therefore, deserves to be and is hereby set aside. Appellants
are acquitted.
18. Appeal allowed.
(RAKESH SAKSENA) (S.A. NAQVI)
JUDGE JUDGE
shukla
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HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No. 1521/2000
Bablu @ Ballu and others
Versus
State of Madhya Pradesh
JUDGMENT
For consideration
(Rakesh Saksena)
JUDGE
__/11/2009
Hon'ble Shri Justice S.A. Naqvi
JUDGE
__/11/2009
POST FOR /11/2009
(Rakesh Saksena)
Judge
___/11/2009