Bombay High Court
Mujib Khan Mustafa Khan vs The State Of Mah. Thru P.S.O. Anjangaon ... on 1 August, 2024
2024:BHC-NAG:8273
Judgment
258 apeal589.06 & revn102.07
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.589 OF 2006
WITH
CRIMINAL REVISION NO.102 OF 2007
CRIMINAL APPEAL NO.589 OF 2006
1. Mohd.Sadik s/o Mohd.Amir,
aged about 30 years, occupation : labour.
2. Abdul Kadar s/o Abdul Majid,
aged about 35 years, occupation : labour.
3. Sk.Bashir Sheikh Habir,
aged about 30 years, occupation : labour.
all residents of Bhaldarpura,
all residents of Bhaldarpura,
Anjangaon Surji, district Amravati. ..... Appellants.
:: V E R S U S ::
State of Maharashtra, through
PSO of PS Anjangaon Surji,
district Amravati. ..... Respondent.
===================================
Shri I.S.Charlewar, Counsel for Appellants.
Ms.Soniya Thakur, Additional Public Prosecutor for the State.
===================================
CRIMINAL REVISION NO.102 OF 2007
Mujib Khan Mustafa Khan,
aged about 28 years,
occupation : labourer,
r/o Bhaldar Pura, Anjangaon
.....2/-
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2
Surji, district Amravati. ..... Applicant.
:: V E R S U S ::
1. The State of Maharashtra,
through PSO Anjangaon Surji,
district Amravati.
2. Mohd. Sadik Mohd. Amir
aged about 23 years.
3. Abdul Kadar Abdul Majid
aged about 28 years,
4. Abdul Salim s/o Abdul Majid,
aged about 20 years.
5. Abdul Ajij s/o Abdul Vajir,
aged about 32 years.
6. Sk.Harun s/o Sk.Ismail,
aged about 30 years.
7. Gaffar Mirza @ Shabbir Baig
Karim Baig, aged 50 years.
8. Anwarkha s/o Sadukha,
aged about 30 years.
9. Shaikh Rauf Shaikh Gyasoddin,
aged about 40 years.
10. Shaikh Ibrahim Shaikh Hussain,
aged about 31 years.
11. Sabdar Baig Karim Baig,
aged about 38 years.
12. Chhota Bashir Baig Karim Baig,
.....3/-
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258 apeal589.06 & revn102.07
3
aged about 28 years.
13. Abdul Khalique Mojhd. Vajir,
aged about 20 years.
14. Abdul Majid s/o Abdul Jabbar,
aged about 60 years.
15. Mohd. Vajir s/o Abdul Jabbar
aged about 70 years.
16. Mohd.Ilayas Abdul Jabbar,
aged about 52 years.
17. Abdul Kadir s/o Abdul Majid,
aged about 22 years.
18. Sk.Bashir Sk.Habib,
aged about 25 years.
All Non applicants Nos.2 to 18
are r/o Bhaldarpura,
Anjangaon Surji, district Amravati. ..... Respondents.
===================================
Shri M.V.Bute, Counsel for the Applicant/Complainant.
Shri I.S.Charlewar, Counsel for R-2, 3, 18.
Ms.Soniya Thakur, Additional Public Prosecutor for R-1/State.
===================================
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 11/07/2024
PRONOUNCED ON : 01/08/2024
COMMON JUDGMENT
1. By Criminal Appeal No.589/2006, appellants, who are
original accused Nos.1, 2 and 17, have challenged judgment and
.....4/-
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258 apeal589.06 & revn102.07
4
order of conviction and sentence dated 30.9.2006 passed by
learned Ad hoc Additional Sessions Judge-2, Achalpur (learned
Judge of the trial court) in Sessions Trial No.61/2000 whereby
they are convicted for offence punishable under Section 324 of
the Indian Penal Code and sentenced to undergo rigorous
imprisonment for two years and to pay fine Rs.2000/-, in
default, to undergo simple imprisonment for three months.
2. By Criminal Revision No.102/2007, petitioner, who is
complainant, has challenged the judgment impugned in the
appeal as learned Judge of the trial court acquitted all accused
persons i.e. accused Nos.1 to 17 (including accused Nos.1, 2 and
17 in Criminal Appeal No.589/2006) of offences punishable
under Sections 147, 148, and 307 of the Indian Penal Code and
37 read with 135 of the Bombay Police Act and 4/25 of the Arms
Act and accused Nos.1, 2 and 17 in Criminal Appeal
No.589/2006 are convicted under Section 324 of the Indian
Penal Code.
3. The prosecution case unfurled during the course of trial
is as under:
.....5/-
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5
Mujib Khan Mustafa Khan, (applicant in the present
criminal revision hereinafter is referred as "the complainant"),
residing at Bhaldarpura, Anjangaon Surji, district Amravati is a
businessman dealing in cloths. Appellants and acquitted accused
also reside in the same village where as the complainant resides.
When the complainant was looking for a rickshaw on road, the
appellants and acquitted accused rushed towards him with deadly
weapons like swords and pipes and sticks in their hands and
assaulted the complainant. Appellants Mohd.Sadik s/o
Mohd.Amir, original accused No.1, and Sk.Bashir Sheikh Habir,
original accused No.17, gave blows with iron pipes. Whereas,
appellant Abdul Kadar s/o Abdul Majid, original accused No.2,
gave a blow of sword on the head of the complainant. In the
assault, the complainant received bleeding injury on his head and
fracture of his leg. Somehow, he rushed to the police station and
lodged a report. On being taken to Anjangaon Hospital and given
treatment, he was referred to the General Hospital at Amravati
whereat he was indoor patient for about 15-20 days. The doctor
opined that the injury the complainant received is sufficient to
cause his death.
.....6/-
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4. On registration of the crime, the investigating officer seized
relevant articles, recorded relevant statements of witnesses and,
after completion of investigation, filed chargesheet against all
accused persons. The police registered the crime against
appellants and acquitted accused persons. The investigating
officer visiting the spot of the incident and drawing spot
panchanama seized simple blood stained earth.
5. Since offences for which chargesheet came to be presented
against all accused persons were exclusively triable by Sessions
Court, learned Magistrate in whose court the chargesheet was
presented committed the case to the Court of Sessions.
6. After committal of the case, learned Sessions Judge framed
charge vide Exhibit-123. All accused persons pleaded not guilty
and claimed to be tried.
7. In support of the prosecution case, the prosecution
examined in all nine witnesses namely Mujibkhan s/o Mustafakhan
vide Exhibit-156 (PW1), the complainant; Ishakkhan s/o
Ibrahimkhan vide Exhibit-159 (PW2); the eyewitness; Dildarkhan
.....7/-
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7
Sardarkhan vide Exhibit-160 (PW3), the eyewitness; Sattarkha s/o
Gaffarkha vide Exhibit-161 (PW4), the pancha on spot of
panchanama; Nitin More vide Exhibit-167 (PW5), pancha on
seizure memo; Ahmadkhan Hafijkhan vide Exhibit-170 (PW6), the
pancha on memorandum statement and recovery of weapons;
Dr.Vaishali Kadu vide Exhibit-173 (PW7), the Medical Officer;
Prakashchandra Joshi vide Exhibit-177 (PW8), the Investigating
Officer, and Ramkrushna Taide vide Exhibit-186 (PW9), the
Investigating Officer.
8. Besides the oral evidence, the prosecution placed reliance
on oral report Exhibit-157, spot panchanama Exhibit-162, seizure
memos Exhibits-163 to 166, seizure memo Exhibit-168, medical
certificate Exhibit-174, seizure memos Exhibits-178 to 185,
memorandum statement of accused No.1 Mohd.Sadik Exhibit-187,
recovery panchanama Exhibit-188, seizure memos Exhibits-89 to
199, letter to the Chemical Analyzer Exhibit-200, and the Chemical
Analyzer's Report Exhibit-201.
9. On the basis of the said evidence, learned Judge of the trial
court held accused Nos.1, 2 and 17 guilty of offences punishable
.....8/-
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8
under Section 324 of the Indian Penal Code and sentenced them as
the aforesaid.
10. Heard learned counsel Shri I.S.Charlewar for appellants
and respondent Nos.2, 3 and 18 in Criminal Revision
No.102/2007, learned counsel Shri M.V.Bute for the applicant in
Criminal Revision No.102/2007, and learned Additional Public
Prosecutor Ms.Soniya Thakur for the State
11. Learned counsel for appellants submitted that the evidence
adduced by the prosecution is inconsistent, unreliable, and
suffering from omissions and contradictions. As per the charge,
accused No.1 Mohd.Sadik was allegedly carrying sword, however
the evidence shows that he had assaulted by means of iron pipe.
The sword was not seized during the investigation. The injured
sustained simple injuries. Though Medical Officer PW7 Dr.Vaishali
Kadu stated that the injured sustained fracture injury, there is no
evidence to ascertain that the injured sustained fracture injury and
that too no X-Ray was obtained. As per the prosecution, PW2
Ishakkhan is eyewitness, who witnessed the incident from his
gallery. However, he has not stated before the Investigating Officer
.....9/-
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9
that he saw the incident from his gallery. The said omission is
proved by the accused persons during the cross examination of the
Investigating Officer. Insofar as injuries sustained by the injured
are concerned, as per the medical evidence, two injuries i.e.
lacerated wound on parietal region of scalp were attributed to
accused No.1. As far as injuries inflicted by other two accused
persons are concerned, who allegedly assaulted the injured, are
not supported by the medical certificate. The evidence as to the
assault by all the accused persons is not supported. The evidence
of eyewitness PW2 Ishakhan and PW3 Dildarkhan PW3 shows that
accused No.2 has also given a blow of sword on the head of the
complainant, however neither the sword was seized nor the injury
was found on the person of the complainant by sword. Thus, the
entire evidence adduced by the prosecution is inconsistent,
untrustworthy and, therefore, appellants deserve to be acquitted.
12. Learned Additional Public Prosecutor for the State
supported the judgment impugned and submitted that the
evidence as to the assault by appellants is consistent and
corroborative and no interference is called for. He submitted that
.....10/-
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10
the evidence is also supported by the medical evidence. In view of
that, the appeal is devoid of merits and liable to be dismissed.
13. Learned counsel for the petitioner/complainant submitted
that all accused persons formed an unlawful assembly and in
furtherance of common object of that assembly assaulted the
complainant. Thus, it was common act of all accused persons and,
therefore, the same was a constructive liability of all accused
persons. Section 149 of the Indian Penal Code, makes every
member of an unlawful assembly at the time of committing of
offence guilty of the offence. The Section creates a vicarious
liability for the unlawful acts committed pursuant to the common
object by any other member of the assembly and, therefore, all
accused persons are responsible for the act of accused No.1. He
submitted that learned Judge of the trial court has not considered
the said aspect and erroneously acquitted the accused. The
punishment imposed by learned Judge of the trial court is also a
meager punishment and it shall be proportionate to the act
committed by the accused and, therefore, the judgment impugned
deserves to be modified and the sentence imposed upon appellants
.....11/-
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258 apeal589.06 & revn102.07
11
in the appeal as well as respondents in the revision is to be
enhanced by allowing the revision.
14. After hearing learned counsel for respective parties and
going through the evidence adduced, it has to be seen whether the
prosecution has succeeded in proving that the accused persons
formed an unlawful assembly and in pursuance of that assembly
they assaulted the complainant in furtherance of their common
object.
15. To prove the charge, the prosecution mainly placed
reliance on the evidence of complainant PW1 Mujibkhan, the
injured in the incident. As per his evidence, on the day of the
incident, at about 7:00 am, he came out of his house to hire a
rickshaw. At the relevant time, accused No.2 Abdul Kadar abused
and assaulted him by means of sword. He gave him a blow of the
sword on his head and he fell down. In the meantime, accused
No.1 Mohd.Sadik and accused No.17 Sk.Bashir came there with
iron pipes in their hands and they beat him with iron pipes on his
left leg, right hand and his right hand and left leg were fractured
due to the said assault. Accused No.8 Shaikh Rauf also came there
.....12/-
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12
and attacked him with sword stick and gave a blow of the sword
stick on his chest. In the meantime, all accused came there and
they also beat him. He was assaulted due to the old enmity. Prior
to the incident in question also, his family members were
assaulted. This incident was witnessed by neighbours. He was
also hospitalized for 20-25 days and, therefore, he lodged the
report.
16. The cross examination of complainant PW1 Mujibkhan
shows that the spot of the incident is an open plot. The houses of
accused No.1 Mohd.Sadik, accused No.13 Abdul Majid, accused
No.14 Mohd.Vajir, and accused No.15 Mohd.Iliyas are in front of
that open place and houses of other accused persons are far away
from the said open place. It also came in his cross examination
that they were not on talking terms with the accused persons. It
also came in the cross examination that he is also prosecuted along
with his family members under Section 307 of the Indian Penal
Code and the dispute arose on account of open space property.
There was old enmity between them. Thereafter some omissions
are brought on record to the extent that he has not narrated before
.....13/-
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13
the Investigating Officer that accused No.2 Abdul Kadar abused
him. He has also not narrated that he was assaulted on left leg and
right hand. He has also not stated that accused No.2 Abdul Kadar
assaulted him by means of sword and, thereafter, accused No.17
Sk.Bashir beat him with iron pipe. Thus, these material omissions
show that as far as assault by accused No.2 Abdul Kadar by sword
is an improvement. Moreover, assault by accused No.1
Mohd.Sadik and others on his hands and legs is also an
improvement.
17. To corroborate the version, the prosecution placed reliance
on two eyewitnesses namely PW2 Ishakkhan and PW3 Dildarkhan.
The evidence of PW2 Ishakhan shows that at the time of
the incident, he was standing in front of gallery of his house. The
accused persons beat the complainant by means of swords, sticks,
and pipes and the complainant received injuries on chest, legs, and
other parts of the body. Thus, he has not narrated specific role of
each of accused persons. As far as the evidence is concerned, that
he witnessed the incident from the gallery of his house, it is an
omission which he had not stated before the investigating officer at
.....14/-
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14
the time of recording of statements. The defence of accused
persons is that the complainant fell on a cement concrete stream
(nali) and sustained injuries, however due to a previous enmity,
they were implicated. PW2 Ishakhan admitted that he had seen
the complainant near the stream.
The evidence of PW3 Dildarkhan also shows that he has
not narrated the role of each accused. He stated in his evidence
that all accused persons assaulted the complainant by means of
swords, sticks and iron pipes. Accused No.2 Abdul Kadar had
given a blow of sword on the head of the complainant. Accused
No.8 Shaikh Rauf, inflicted a blow of sword on the chest of the
complainant. Accused No.1 Mohd.Sadik and accused No.17
Sk.Bashir assaulted the complainant with iron pipes. His cross
examination shows that he is not aware whether a civil suit is
pending between the complainant and the accused persons. He
admitted that after hearing a noise, he went to the spot of the
incident and saw that the complainant was lying on the open space
near the "Nali". Thus, his cross examination shows that he reached
at the spot of the incident after the incident.
.....15/-
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15
18. Besides the oral evidence, the prosecution placed reliance
on the medical evidence of PW7 Dr.Vaishali Kadu. As per her
evidence, she examined the complainant and found lacerated
wound on right parietal region of scalp was L shape, vertically 4 x
1 x 2 cm transversely 3 x 1 x 2 cm and lacerated wound with
swelling on lower 1/3rd left lower limb size 2 x 1 x 1 cm. She
stated that the above injuries may be caused by hard and blunt
object. The head injury was with compound fracture left lower
end of tibia and fibula. Accordingly, she issued medical certificate
Exhibit-174. She further stated that injury No.2 may be possible by
iron pipe and injury No.1 was sufficient to cause death in the
ordinary course of nature. She further admitted that incised
wound can be caused by a sharp knife razor and sword. Whereas,
lacerated wound can be caused by blunt object. Injury No.1 can be
caused by iron pipe. "L" shape injury is not possible by one blow of
sword. There was no fracture to the scalp. She further stated that
in X-Ray if no bone injury is found, it becomes is simple injury.
19. To prove the incident by way of the circumstantial
evidence, the prosecution examined pancha on spot of
.....16/-
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16
panchanama PW4 Sattarkha. The said witness has admitted
during the cross examination that he put his signature in all
documents in the police station and he is not aware about contents
of panchanama.
20. PW5 Nitin More, acted as a pancha on the memorandum
statement of accused No.1 Mohd.Sadik, at whose instance the
clothes of the accused were seized, has not supported the
prosecution case.
21. PW6 Ahmadkhan, also acted as pancha on memorandum
statement of accused No.1 Mohd.Sadik and recovery of weapons.
However, the said witness has also not supported the prosecution
case.
22. Investigating Officer PW8 Prakashchandra Joshi,
investigated the crime partly. As per his evidence, during the
investigation, he seized clothes of accused No.7 Anwarkha,
accused No.8 Shaikh Rauf, accused No.10 Sabdar Baig, accused
No.11 Chhota Bashir, and accused No.17 Sk.Bashir.
.....17/-
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17
23. PW9 Ramkrushna Taide, another Investigating Officer,
narrated about the investigation carried out by him. As per his
evidence, on 8.10.1999, accused No.1 Mohd.Sadik gave him his
confessional statement and on the basis of the said statement, the
iron pipe was seized from the roof of the house. The seizure
panchanama is at Exhibit-188. He has also seized clothes of the
complainant as well as accused No.2 Abdul Kadar, accused No.3
Abdul Salim, accused No.4 Abdul Ajij, accused No.5 Sk.Harun,
accused No.6 Gaffar Mirza, and accused No.12 Abdul Khalique,
and after completion of the investigation, submitted the
chargesheet against all the accused persons. During his cross
examination, omissions are proved by the prosecution. All
incriminating articles are forwarded to the Chemical Analyzer. The
Chemical Analyzer's Report Exhibit-201 shows that blood stains
were found on the clothes of the accused and on iron pipes, but
blood group was not ascertained.
24. On the basis of the above evidence, the prosecution
claimed that all accused persons have formed unlawful assembly
and in pursuance of the common object of that assembly assaulted
.....18/-
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18
the complainant. The cross examination of complainant PW1
Mujibkhan shows that only accused No.1 Mohd.Sadik, accused
No.13 Abdul Majid, accused No.14 Mohd.Vajir, and accused No.15
Mohd.Iliyas are residing near the spot of the incident.
25. The expression unlawful assembly is defined in Section 149
of the Indian Penal Code and any member of such unlawful
assembly is punishable under Section 143 of the Indian Penal
Code. The common object has to be inferred from facts and
circumstances of each case. When there is a sudden fight, the
members of such groups would not form an unlawful assembly.
26. As far the contention of the complainant is concerned, it
shows that accused No.2 Abdul Kadar assaulted him by means of
sword and gave him a blow of the sword on his head and he fell
down. Whereas, accused No.1 Mohd.Sadik and accused No.17
Sk.Bashir came there with iron pipes in their hands and they beat
him with iron pipes on his left leg, right hand and his right hand
and left leg were fractured due to the said assault and all accused
persons came there and they also beat him. On the contrary, the
evidence of eyewitness PW3 Dildarkhan shows presence of
.....19/-
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19
accused No.1 Mohd.Sadik, accused No.2 Abdul Kadar, accused
No.8 Shaikh Rauf, and accused No.17 Sk.Bashir. As far as accused
No.9 Shaikh Ibrahim and accused No.10 Sabdar Baig are
concerned, allegation is abetting the other accused persons to kill
the complainant. Regarding role of accused No.9 Shaikh Irbrahim
and accused No.10 Sabdar Baig in respect of abetment, the
evidence of the complainant is silent. He nowhere stated that
accused No.9 Shaikh Irbrahim and accused No.10 Sabdar Baig
were abetting the other accused persons to kill the complainant.
As per the evidence of the complainant, accused No.1 Mohd.Sadik
Khan and accused No.17 Sk.Bashir Khan assaulted him by means
of iron pipes on his left leg and right hands. Whereas, as per the
evidence of eyewitness PW3 Dildarkhan, accused No.8 Shaikh Rauf
gave blow of sword on the chest of the complainant and accused
No.1 Mohd.Sadik and accused No.17 Sk.Bashir assaulted the
complainant by means of iron pipes.
27. Perusal of the medical evidence reveals that only two
injuries were found on the person of the complainant i.e. lacerated
wound on right parietal region of scalp and lacerated wound with
.....20/-
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swelling on lower 1/3rd left lower limb. The Medical Officer
specifically admitted that "L" shape injury is not possible by sword
and the injury sustained on the head is by hard and blunt object
and not by sharp object.
28. Thus, the entire oral evidence is inconsistent with the
medical evidence.
29. Insofar as presence of the accused persons at the spot of
the incident is concerned, the evidence adduced is vague in nature.
The oral evidence of the complainant shows that he was assaulted
by all the accused persons and his right hand and left leg received
fracture injuries. The opinion of the Medical Officer shows that
there was head injury with compound fracture on left lower limb
at the end of tibia and fibula. This is also ascertained without
obtaining any X-Ray. As far as the fracture injury is concerned,
there is no explanation of the Medical Officer on what basis she
came to conclusion that the injured has sustained the fracture
injury.
.....21/-
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30. Thus, the entire evidence especially the evidence of the
complainant is not consistent with the medical evidence. Even, if
the oral evidence of the complainant is accepted, he states that
accused No.2 Abdul Kadar gave blow of sword on his head, but the
Medical Officer states that injury on head is of hard and blunt
object. As far as blow of sword on the chest of the complainant is
concerned, no injury is found on his chest. The evidence further
shows that he was assaulted by iron pipes, but only two injuries
are found on the persons of the complainant.
31. As per the evidence of the complainant, quarrel started as
accused No.2 Abdul Kadar abused him, but this evidence is in the
nature of omission.
32. It is true that falsus in uno, falsus in omnibus is not
applicable in India, but considering the nature of evidence, which
is completely inconsistent and not inspiring confidence as to the
incident, the defence of appellants, that there was a previous
enmity and due that enmity they were implicated, is supported by
the cross examination of witnesses as complainant PW1 Mujibkhan
has admitted that there was a previous enmity and criminal
.....22/-
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22
complaints are filed against each other. No history of assault was
narrated before the Medical Officer though immediately the
complainant was examined by the Medical Officer. The Medical
Officer has also not stated that any history of assault was narrated
before her. A common object may be formed by express
agreement after mutual consultation. It may be formed at any
stage by all or few members of assembly, but there has to be some
evidence on record to show that unlawful assembly was
constituted with an common object. In the absence of the
evidence, as the common object and as to the formation of the
unlawful assembly the appellants are to be acquitted from charges.
33. Learned Judge of the trial court has not considered the
inconsistent evidence as to the assault, which is also not
corroborated by the medical evidence. Learned Judge of the trial
court has also not considered that recoveries at the instance of the
accused persons are not proved. Admittedly, witness acted as
pancha on the memorandum statement namely PW6 Ahmadkhan
has not supported the prosecution case. The evidence of the
investigating officer nowhere shows that the statement of accused
.....23/-
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23
No.1 Mohd.Sadik was voluntary one. Moreover, the recovery is
from the open place.
34. It is well settled that burden is on the prosecution to prove
charges beyond all reasonable doubts. Considering the evidence
on record, which is not consistent and inspiring confidence, as to
the actual occurrence of the incident, benefit of doubt will go to
the accused persons. When two views are possible, the view in
favour of the accused will prevail.
35. In this view of the matter, the criminal appeal deserves to
be allowed.
36. Insofar as the enhancement of the sentence is concerned,
there is no satisfactory evidence to show that the appellants were
present at the spot of the incident and in furtherance of their
common object they assaulted the complainant. In absence of the
evidence, the submissions made by learned counsel Shri M.V.Bute
for the complainant deserve to be discarded.
.....24/-
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24
37. In this view of the matter, the criminal revision is devoid of
merits and liable to be dismissed. Hence, following order is
passed:
ORDER
(1) The criminal appeal is allowed.
(2) The judgment and order of conviction and sentence dated
30.9.2006 passed by learned Ad hoc Additional Sessions Judge-
2, Achalpur in Sessions Trial No.61/2000 convicting accused
Nos.1, 2 and 17 is hereby quashed and set aside.
(3) Accused Nos.1, 2 and 17 are acquitted for which they are
charged.
(4) The criminal revision is dismissed.
The appeal and revision stand disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 02/08/2024 11:07:02
