Madhya Pradesh High Court
Imtiyaj vs The State Of M.P. on 14 December, 2021
Author: Vivek Rusia
-: 1 :-
CRA Nos. 532/2006 & 577/2006
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(DIVISION BENCH: HON. Mr. JUSTICE VIVEK RUSIA AND HON.
Mr. JUSTICE SATYENDRA KUMAR SINGH)
CRA No. 532 OF 2006
Appellant. Fareed S/o. Abdul Rehaman, Aged 23 years,
Occ. Conductor, Address : Mohalla
Jamalpura,, Mahidpur, District Ujjain.
Vs.
Respondent. State of M.P. through P.S. Mahidpur,
District Ujjain.
*****
CRA No. 577 OF 2006
Appellants. 1. Imtiyaz S/o. Sherali, Aged about 24 years,
Occ. Labourer, r/o. Indira Colony, Lather
Factory, Mahindpur, District Ujjain.
2. Kalu Rathore S/o. Dhoolji Rathore,
Caste - Teli, Aged about 28 years, R/o.
Kehsarpura, Mahindpur, District Ujjain.
Vs.
Respondent. State of M.P. through P.S. Mahidpur,
District Ujjain.
***********************
Shri A.K. Saraswat, Advocate for the appellant - Fareed in CRA
No.532/2006.
Shri Avinash Sirpurkar, learned Senior Advocate (Amicus Curiae) for
appellants - Imtiyaz & Kalu in CRA No.577/2006.
Smt. Mamta Shandilya learned Government Advocate for the
respondent/State.
***********************
JUDGMENT
(Delivered on 14th December, 2021)
Per se Vivek Rusia, J :
The appellants have filed these criminal appeals being
aggrieved by judgment dated 28.3.2006 passed by the 3rd Additional
Sessions Judge, Ujjain in Sessions Trial No.58/2005 whereby they have been
convicted and sentenced as under :
CRA Nos. 532/2006 & 577/2006
Name of Conviction u/s. Sentence Fine imposed In default of
appellant/ awarded payment of the
accused fine.
Fareed 147 of IPC. 1 year RI. - -
302/149 of IPC. Life Rs.5,000/- One year RI.
Imprisonment
323/149 of IPC. 6 months RI - -
Imtiyaz & Kalu 148 of IPC 2 years RI - -
302/149 of IPC Life 5,000/- 1 year RI
Imprisonment
323/149 of IPC 6 months - -
All the sentences have been directed to run concurrently.
2. (i) The prosecution story in short is that the complainant - Jakir
lodged the report at Police Station Mahidpur on 1.8.2004 at 10.20 pm. (Exh.
P/15. According to the contents of the FIR, Fareed and deceased Iftikhar
went on their Yamaha motorcycle bearing Registration No. MP-13-JE-5033
to tea-shop situated at Moti Bazar. When they reached the shop of Dilip
Barber, accused persons with a common intention attacked them by means
of a knife, etc. Imtiyaz and Gabbar were carrying a knife; Gabbar was also
carrying a knife; Shahjad and Sher Ali were carrying 'Gupti'; Gampiya was
carrying 'Ustara'; Raja @ Rajesh was carrying pipe; Kalu was carrying a
country-made pistol. According to the complainant Iftikhar parked the
motorcycle, Imtiyaz and Shahjad started abusing them with filthy language
and threatened to finish them today. Iftikhar was attacked by a knife and the
scuffle was started between them. Gabbar by means of knife and Shahjad by
means of 'Gupti' assaulted Iftikhar on his back. He fell down on the road.
Thereafter Sher Ali assaulted him by means of 'Gupti'. Kalu was carrying a
country-made pistol and did not permit anyone to help Iftikhar. Iftikhar was
also assaulted by legs. Imtiyaz gave a blow by way of 'Gupti' on the neck of
Iftikhar and Fareed kicked him. Gullu came to save them, but he was also
prevented. The incident was witnessed by Chand Khan, Bhola, Dilip and
others. The dispute arose because of the old enmity because Shahjad gave a
statement in the Court in the matter of Section 307 against Iftikhar.
(ii) Jakir and the injured Iftkhar went to the Police Station and lodged
CRA Nos. 532/2006 & 577/2006
the FIR vide Crime No.304/04. The injured were sent to the hospital for
treatment. Iftikhar succumbed to the injuries on 1.8.2004 and the
information was sent to the Police Station. The dead body was sent for
postmortem vide Exh. P/17 on 2.8.2004 on at 8.30 am. The autopsy was
carried out by Dr. Dinesh Chandra Saxena (P.W.7) who found as many as 21
stab wounds all over the body of the deceased Iftikhar and opined vide Exh.
P/7 that he died due to the haemorrhage and syncope owing to the injuries.
The death was homicidal in nature within 24 hours duration. The police
registered the FIR u/s. 302, 147, 148, 149 on 1.8.2004 against 8 accused
vide Exh. P/15. The police reached the spot, drew a map, recorded the
statement of witnesses. Out of 8 accused, the police could arrest only three
and the remaining five are still absconding.
(iii) After completing the investigation, the police filed the charge
sheet before the competent Court from where the trial was committed to the
Court of Sessions. The charges u/s. 148, 147, 302, 323 read with Section 149
of IPC were framed against the present appellants. The appellants denied the
charges and pleaded for trial. In order to prove the charges, the prosecution
has examined as many as 15 witnesses and got exhibited 16 documents. In
defence the appellants did not examine any witness. After evaluating the
evidence that came on record, learned Addl. Sessions Judge vide judgment
dated 28.3.2006 convicted and sentenced the appellants, as stated first.
Hence, the present appeal before this Court.
(iv) Since no one was appearing for the appellants in both the appeals
for the last four months, therefore, we have appointed Shri Avinash
Sirpurkar, Sr. Advocate as amicus curiae to argue on behalf of the appellants.
Later on, Shri Sraswat Learned Counsel has argued on behalf of appellants
3. Shri Sirpurkar, learned Amicus Curiae appearing for the appellants in
CRA No.577/2006 has submitted that the appellants have wrongly been
convicted u/s. 302 with the aid of Section 149 of the IPC. There are omnibus
allegations of causing injuries by a knife to the deceased by 8 accused . As
per the version in the FIR lodged by Jakir (P.W.11), complainant Jakir along
with the deceased reached the market where the appellants and remaining
CRA Nos. 532/2006 & 577/2006
accused were already present. After some altercation, the accused assaulted
the deceased by means of a knife and other arms. It is not the case of the
prosecution that the accused persons had knowledge that the deceased and
complainant would be coming to the spot and they were there with a
common object or intention to assault them. The accused persons as well as
the deceased and complainant, all have a criminal background, therefore,
possession of the dangerous weapons was was not for the purposes of
rioting. Hence, the requirement of Section 148 & 149 of IPC does not fulfil
in this case. The appellants have been convicted u/s. 148 of the IPC which is
a substantive provision but they did not form an unlawful assembly. In
absence of Section 149 of IPC, their individual act is liable to be examined
in this case. It is further submitted that it is not in dispute that the deceased
sustained as many as 21 stab wounds, but so far as appellant - Fareed is
concerned, he was there with empty hands and allegedly assaulted by legs,
no injury was caused by him. So far as appellant -Kalu is concerned he was
wielding a country-made pistol but did not fire from it and he did not cause
any gunshot injury. Hence, the conviction of Fareed and Kalu u/s. 302/149
of IPC is liable to be set aside. So far as appellant - Imtiyaz is concerned
Shri Saraswat Learned Counsel submits that, there is an omnibus allegation
of causing injuries by means of a knife. It is further submitted that the
dispute arose because of the sudden provocation. There was no pre-planning
to commit the crime. As it is not a case of unlawful assembly and there was
no common intention, therefore, the conviction of appellant - Imtiyaz is
liable to be convicted u/s. 304 Part II of the IPC for which he has already
undergone a sufficient period of incarceration. It is further submitted that
except Jakir and Gullu all other witnesses have turned hostile. Jakir and
Gullu have a criminal records.
4. On the other hand, learned Govt. Advocate appearing for
respondent/State, has argued in support of the impugned judgment by
submitting that out of 8 accused, only 3 were arrested and they all assaulted
the deceased with a common intention by means of deadly weapons, hence
they formed an unlawful assembly, hence they have been rightly convicted
CRA Nos. 532/2006 & 577/2006
u/s. 302/149 of the IPC. Hence, no interference is called for and the appeals
are liable to be dismissed.
We have heard the Learned Counsel for the parties and perused the
record of the trial court.
5. The prosecution has examined Javed as P.W.1 who has identified the
accused and the deceased, but according to him, he did not know about the
dispute between the accused and deceased. Likewise, Dilip (P.W.2) has
denied any fight and murder in front of his shop. Maula Idaris (P.W.4) has
been declared hostile. Mohd. Chand Kha @ Chandu (P.W.5) has not
supported the prosecution case. Mohd. Hasan (P.W.8) has also stated that he
did not know whether Iftikhar died or was alive, he had no idea about the
murder in front of his shop. The only witness who has supported the
prosecution case is Jakir (P.W.11) and according to him, he along with
deceased Iftikhar went to Moti Bazar on Motorcycle bearing Registration
No. MP-13-JE-5033 and after parking the motorcycle, they went to the shop
of Dilip Barber where Imtiyaz, Gabbar, Shahjad, Sheru, Gampiya, Kalu,
Raja and Fareed were already present. Imtiyaz and Gabbar abused Iftikhar
with filthy language and assaulted by means of knife. Shahjad and Sheru
assaulted Iftikhar by means of 'Gupti'. Gampiya caused him injury by means
of 'Ustara'. Kalu was standing there with a country-made pistol in his hand
and was threatening the others for giving evidence in the matter. Fareed
assaulted the deceased by legs. According to Jakir (P.W.11), Raja gave a
blow by means of a pipe. Thereafter, Gullu also came there and all the
accused ran away from the spot. The prosecution has examined Gullu as
P.W.12 and according to him also, except Fareed and Kalu, all the accused
persons have assaulted Iftikhar by means of a knife, 'Gupti'. On the basis of
these two witnesses, the appellants have been convicted and sentenced, as
stated first.
6. As per Section 141 of IPC, an assembly of five or more persons is
designated an "unlawful assembly", if the common object of the persons
composing that assembly is to commit any offence. Anyone who
intentionally joins that assembly becomes a member of an unlawful
CRA Nos. 532/2006 & 577/2006
assembly by virtue of Section 142. Whoever is a member of an unlawful
assembly, shall be punished with imprisonment of either description for a
term which may extend to six months, or with fine, or with both. Whoever,
being armed with any deadly weapon, or with anything which, used as a
weapon of offence, is likely to cause death, is a member of unlawful
assembly, shall be punished with imprisonment of either description for a
term which may extend of two years, or with fine, or with both. Section 148
provides that whoever is guilty of rioting, being armed with a deadly weapon
or with anything which, used as a weapon of offence, is likely to cause
death, shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both. Every member
of unlawful assembly guilty of the offence committed in prosecution of the
common object of that assembly, are liable to be punished u/s. 149 of the
IPC. For punishing u/s. 149 of IPC, there has to be a common object
between the members forming an unlawful assembly.
7. As per the testimony of Jakir (P.W.11), he and the deceased - Iftikhar
reached the Barbershop of Dilip (P.W.2) where the appellants and other
accused were already present. It is not the case of Jakir (P.W.11) and Golu
that accused persons had knowledge about their coming to the spot and they
were ready with deadly weapons to kill the deceased with a common object.
In order to form a common object, there has to be a meeting of mind and
planning to commit an offence. Since the deceased and Jakir (P.W.1) reached
the spot and thereafter the deceased was assaulted by the accused persons, it
cannot be said that there was a common object or intention between the
accused to assault him. No evidence has been led by the prosecution to the
effect that the accused persons knew reaching of Jakir and deceased to the
place of incidence. Since all were gathered with deadly weapons, therefore,
they formed an unlawful assembly hence rightly been convicted u/s. 148 of
the IPC, but their conviction u/s. 302 /149 is not sustainable.
Now the individual act of the appellants in this crime is liable to be
examined as to whether they are liable to be convicted u/s 302 of the Indian
Penal Code,1860?
CRA Nos. 532/2006 & 577/2006
8. The prosecution has successfully established by way of ocular as well
as medical evidence that Imtiyaz caused the injuries to the deceased along
with others by means of a knife and gupti. So far as the role of the appellant
- Kalu is concerned, he was on the spot wielding a country-made pistol and
threatening others. He did not cause any injury even there is no charge of the
Arms Act against him. So far as appellant - Fareed is concerned, he
allegedly assaulted the deceased by legs without any deadly weapon in his
hands. For punishing the accused u/s. 302, their individual act is liable to be
seen because there was no common object to commit a crime. Since the
appellants viz. Kalu and Fareed did not cause any injury either to Jakir or to
the deceased, therefore, they are not liable to be punished u/s. 302. Hence,
the conviction of appellants - Fareed and Kalu u/s. 302 with the aid of
Section 149 the Indian Penal Code,1860 is set aside.
9. So far as appellant - Imtiyaz is concerned, since it is not a case of
Section 149 of the IPC, therefore, his conviction u/s. 302/149 of IPC is set
aside but he is convicted u/s. 302 of the IPC and sentenced to undergo life
imprisonment with a fine as already imposed.
In view of the discussion, the appellants are hereby convicted and sentenced
as under:-
Name of Conviction u/s. Sentence Fine imposed In default of
appellant/ awarded payment of the
accused fine.
Fareed 147 of IPC. The period - -
already
undergone
302/149 of IPC. Acquittal - -
323 of IPC. Already - -
undergone
Kalu 148 of IPC The period - -
already
undergone
302/149 of IPC Acquittal - -
323 of IPC Acquittal - -
Imtiyaz 148 of IPC 2 years RI - -
302 of IPC Life 5,000/- 1 year RI
Imprisonment
323 of IPC 6 months - -
CRA Nos. 532/2006 & 577/2006
With the aforesaid, both Criminal Appeals stand partly allowed to the
extent indicated above. Record of Court below be sent back forthwith.
( VIVEK RUSIA ) (SATYENDRA KUMAR SINGH)
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2021.12.14 17:11:37 +05'30'
