Mohammed Afsar vs State Of Chhattisgarh
2023 Latest Caselaw 792 Chatt

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                 HIGH COURT OF CHHATTISGARH, BILASPUR
                                    Order Sheet
                               CRA No. 813 of 2021
Mohammed Afsar, S/o Premchand Jain, aged about 28 years R/o Budhapara,
Hanuman Mandir Gali, Police Station Kotwali, Raipur, District Raipur (Chhattisgarh)
                                                                        ....Appellant
                                                                            (In Jail)
                                       Versus
State of Chhattisgarh, through Police Station Tikrapara, District Raipur (Chhattisgarh)
                                                                       ....Respondent

WITH

CRA No. 1043 of 2021 Mohammad Mohsin Khan, S/o Javed Khan, aged about 30 years, R/o Taj Nagar, Nana Kiran Stores, Santoshi Nagar, Police Station Tikrapara, Raipur, District Raipur (Chhattisgarh) ....Appellant (In Jail) Versus State of Chhattisgarh, through SHO, Police Station Tikrapara, District Raipur (Chhattisgarh) ....Respondent WITH

CRA No. 1633 of 2021 Mohammad Ishaan, S/o Mohammad Munna Khan, aged about 24 years, R/o Village Taj Nagar, Satnamipara, Police Station Tikrapara, Raipur, District Raipur (Chhattisgarh) ....Appellant (In Jail) Versus State of Chhattisgarh, through Police Station Tikrapara, District Raipur (Chhattisgarh) [2]

....Respondent WITH

CRA No. 1659 of 2021 Mohammad Basheer Khan Chisti, S/o Mohammad Yunus Khan, aged about 27 years, R/o Sanjay Nagar, Madni Chowk, Police Station Tikrapara, Raipur, District Raipur (Chhattisgarh) ....Appellant (In Jail) Versus State of Chhattisgarh, through SHO, Police Station Tikrapara, District Raipur (Chhattisgarh) ....Respondent WITH

CRA No. 109 of 2022 Mohammad Saleem, S/o Mohammad Anwar, aged about 27 years, R/o BSUP Colony, Block No.3/12, 14, Police Station Tikrapara, Raipur, District Raipur (Chhattisgarh) ....Appellant (In Jail) Versus State of Chhattisgarh, through Police Station Tikrapara, District Raipur (Chhattisgarh) ....Respondent Division Bench:

Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal

08/02/2023 Mr. Anil Khare, Senior Advocate assisted by Mr. Priyank Agrawal and Mr. Praveen Agrawal, Advocates for the appellant in CRA-813-2021.

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Mr. Hemant Gupta, Advocate for the appellant in CRA-1043-2021.

Mr. Sanjay Agrawal, Advocate for the appellants in CRA-1633-2021 & CRA- 109-2022.

Mr. Shailesh Tiwari, Advocate for the appellant in CRA-1659-2021.

Mr. Sudeep Verma, Deputy Government Advocate for the respondent-State.

Heard on IA No.01/2021 filed in CRA-813-2021, IA No.01/2021 filed in CRA-1043-2021, IA No.01/2021 filed in CRA-1633-2021, IA No.01/2021 filed in CRA-1659-2021 and IA No.01/2022 filed in CRA-109-2022, which are applications under Section 389 of Cr.P.C. for suspension of sentence and grant of bail moved on behalf of appellants- Mohd. Afsar (A-3), Mohd. Mohsin (A-4), Mohd. Ishaan (A-6), Mohd. Basheer (A-2) and Mohd. Saleem (A-5) respectively.

By impugned judgment of conviction and order sentence dated 24.07.2021, the accused-appellants herein have been convicted as under:

       Conviction                                 Sentence
 U/s. 506-II of IPC          R.I. for 03 years.
 U/s. 147 of IPC             R.I. for 02 years.
 U/s. 148 of IPC             R.I. for 02 years.
 U/s. 323 r/w 149 of         R.I. for 01 year.
 IPC
 U/s. 324 r/w 149 of         R.I. for 03 years (on each count).
 IPC (on two counts)
 U/s. 325 r/w 149 of         R.I. for 03 years each with fine of Rs.500/- each
 IPC (on two counts)         and, in default of payment of fine, additional R.I.
                             for 01 month each.
 U/s. 302 r/w 149 of          Life Imprisonment with fine of Rs.1,000/- and, in
 IPC (on two counts)          default of payment of fine, additional R.I. for 01
                              month.

(All substantive sentences shall run concurrently) [4]

The case of the prosecution, in short, is that on 22.08.2018, in the night at about 11:30 PM, at Bhawani Nagar, Boriyakhurd within the ambit of Police Station Tikrapara, Raipur the accused-appellants herein alongwith other co- accused persons constituted unlawful assembly, shared common object and were armed with deadly weapons like knife, bamboo stick and stones and, in furtherance of their common object, the accused persons abused the complainant party in public place, threatened them to kill and assaulted injured persons, namely, Jagadhar Nishad, Umesh, Khedu Yadav, Lakhan Yadav, Roopa Bai by means of knife, stone, hand and fist and caused them fatal injuries and further committed murder of Rajesh @ Tikaram (deceased) by causing grievous injury through knife.

Mr. Anil Khare, learned Senior Counsel appearing for appellant- Mohd. Afsar (A-3) submits the appellant is innocent and he has been falsely implicated. The appellant has good prima facie case and he hopes to succeed in his appeal. He has been convicted only with the aid of Section 149 of IPC and he has not committed murder of the deceased- Rajesh. Learned Senior counsel further submits that though in Dehati Nalsi (Ex.P/06), lodged by Jagadhar Nishad (PW-

03), he has named appellant- Mohd. Afsar (A-3), but in his statement before the Court he has not named appellant- Mohd. Afsar (A-3) specifically that he was present on the spot and that offence was committed in furtherance of the common object of the assembly shared by him. Further, only motor-cycle has been seized from the possession of appellant- Mohd. Afsar (A-3), which is also not owned by him and expect this there is no legally admissible evidence available on record to connect the appellant- Mohd. Afsar with the offences in question. Learned Senior counsel also submits that the appellant- Mohd. Afsar (A-3) is in jail since 23.08.2018 and there is no possibility of this appeal to be heard finally in near future. The learned trial Court without appreciating the oral and documentary evidence available on record convicted the appellant for the aforementioned offences by recording perverse findings, which is contrary to [5]

record, thus, appellant be enlarged on bail by suspending his remaining jail sentence.

Mr. Hemant Gupta, learned counsel appearing for appellant- Mohd. Mohsin (A-4) submits that there is no evidence available on record against appellant- Mohd. Mohsin (A-4) to connect him with the offences in question. Nothing incriminating has been seized from his possession and he has not committed murder of deceased- Rajesh, as he died due to stab injury on abdomen. The only allegation against- Mohd. Mohsin (A-4) is that he has assaulted injured witness- Umesh Yadav (PW-04). Learned counsel further submits that there are major contradictions and omissions in the statements of prosecution witnesses. The appellant- Mohd. Mohsin (A-4) is also in jail since 23.08.2018, thus, he be enlarged on bail by suspending his remaining jail sentence.

Mr. Sanjay Agrawal, learned counsel appearing for the appellants- Mohd. Ishaan (A-6) and Mohd. Saleem (A-5) submits that nothing incriminating has been seized from the possession of appellants- Mohd. Ishaan and Mohd. Saleem and they have not committed murder of deceased- Rajesh. The only allegation against them is that they have abused and caused injury to Kheduram Yadav (PW-01). They are also in jail since 23.08.2018, thus, they be enlarged on bail by suspending their remaining jail sentences.

Mr. Shailesh Tiwari, learned counsel appearing for the appellant- Mohd. Basheer (A-2) submits that though he has been named by Jagadhar Nishad (PW-03), but in the postmortem report (Ex.P/37), proved by Dr. S.N. Manjhi (PW-

11), cause of death of deceased- Rajesh is due to hemorrhage and shock as a result of stab injury on abdomen and further in the query report (Ex.P/39) the doctor has clearly stated that stab injury was caused by the knife, which was seized from the possession of co-accused- Shahbaz Khan @ Shabbu (A-1) and in reply to Query No.03, the doctor has further clearly opined that no injury was found over the body of the deceased caused by bamboo stick, which was recovered from the possession of the appellant- Mohd. Basheer (A-2). Learned [6]

counsel also submits that the said seized bamboo stick was subjected for FSL examination and in the FSL report dated 07.12.2018 (not exhibited but filed alongwith paper-book at Page-100) though it has been mentioned that blood has been found on the bamboo stick seized from the possession of appellant- Mohd. Basheer (A-2), but it is not clear whether the said blood is of human origin or belongs to same blood group to that of deceased. Therefore, it is weak piece of evidence and cannot be relied upon by the learned trial Court to convict the appellant. He is in jail since 23.08.2019 and there is no possibility of this appeal to be heard finally in near future, thus, he be enlarged on bail by suspending his remaining jail sentence.

Per-contra, Mr. Sudeep Verma, learned State counsel opposed the applications and submits that the learned trial Court is absolutely justified in convicting the appellants herein for the offences mentioned herein-above with the aid of Section 149 of IPC, as on the fateful day they all constituted unlawful assembly alongwith other co-accused persons and shared common object and, in furtherance thereof, they abused and assaulted the complainant party, caused them injuries and committed murder of deceased- Rajesh. By taking this Court to the statements of Kheduram Yadav (PW-01), Jagadhar Nishad (PW-03) and Umesh Yadav (PW-04), learned State counsel further submits that they have clearly supported the case of the prosecution and, a conjoint perusal of their statements coupled with other evidence available on record would show that there are ample evidence available on record to connect the appellants herein with the offences in question. Hence, their applications deserve to be rejected.

We have heard leaned counsel for the parties on the applications for suspension of sentence and grant of bail filed in this batch of appeals, considered their rival submissions and went through the record with utmost circumspection.

In the instant case, Dehati Nalsi (Ex.P/06) was lodged by Jagadhar Nishad (PW-03), wherein he has named Shahbaz Khan @ Shabbu (A-1), Mohd.

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Basheer Khan (A-2) and Mohd. Saleem Khan (A-5) only, but while recording his statement before the Court, on being asked from the Court, he has named Shahbaz Khan @ Shabbu (A-1), Mohd. Basheer Khan (A-2) and Mohd. Saleem Khan (A-5), who came to the spot and abused him and on further being asked from the Court, he named Shahbaz Khan @ Shabbu (A-1) who caused stab injury to the deceased. Furthermore, Dr. S.N. Manjhi (PW-11), who has conducted postmortem of the dead-body of deceased and gave PM report (Ex.P/

37), has clearly stated in his statement before the Court that death of deceased occurred on account of excessive bleeding as he suffered two stab injuries. Moreover, in query report (Ex.P/39) also, the doctor has clearly stated that death of deceased would be caused by knife, which in the instant case has been recovered from the possession of co-accused Shahbaz Khan @ Shabbu (A-1) and further in answer to Query No.03, he has clearly stated that no injury was possible from the bamboo stick recovered from the possession of Mohd. Basheer Khan (A-2). Though, seizure of bamboo stick has been affected from the possession of Mohd. Basheer (A-2), but in FSL report dated 07.12.2018 it has been mentioned that blood has been found and it is not clear whether the same is of human origin or that of deceased. From the possession of appellant- Mohd. Afsar (A-3) only motor-cycle has been seized and except this nothing incriminating material/article has been seized from his possession and that of other appellants herein in order to implicate them for the offences in question. Indeed, knife through which injuries were caused to the deceased and he succumbed to death has been seized from the possession of co-accused- Shahbaz Khan @ Shabbu (A-1).

In that view of the matter and further taking into consideration that all the appellants are in custody since 28.08.2019 and hearing of these appeals would take prolonged period of time, we deem it appropriate to allow all these applications for suspension of sentence and grant of bail moved on behalf of appellants.

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Accordingly, the substantive jail sentence awarded to appellants- Mohd. Basheer (A-2), Mohd. Afsar (A-3), Mohd. Mohsin (A-4), Mohd. Saleem (A-5) and Mohd. Ishaan (A-6) by the learned trial Court is hereby suspended. They be released on bail on their executing bail bonds of Rs.25,000/- (Twenty Five Thousand Only) each with one surety each in the like amount to the satisfaction of the concerned trial Court for their appearance before the Registry of this Court on 04.05.2023. They shall thereafter appear before the concerned trial Court on a date to be given by the Registry of this Court and shall continue to appear there on all such subsequent dates as are given to them by the said Court, interval being not less than 6 months, till final disposal of these appeals.

Consequently, IA No.01/2021 filed in CRA-813-2021, IA No.01/2021 filed in CRA-1043-2021, IA No.01/2021 filed in CRA-1633-2021, IA No.01/2021 filed in CRA-1659-2021 and IA No.01/2022 filed in CRA-109-2022 are allowed.

It is made clear that the observations made hereinabove are only confined for disposal of aforesaid IAs filed in these appeals and it shall not be construed as an expression of opinion of this Court on the merits of the matter.

C.C. as per rules.

                           Sd/-                                      Sd/-
                    (Sanjay K. Agrawal)                       (Radhakishan Agrawal)
                         Judge                                      Judge




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