Sikandar & Anr. vs State Of M.P.
2021 Latest Caselaw 9029 MP

                                       -: 1 :-
                                                                  CRA No. 1184/2009


             HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(DIVISION BENCH: HON. Mr. JUSTICE VIVEK RUSIA AND HON.
         Mr. JUSTICE SATYENDRA KUMAR SINGH)

                            CRA No. 1184 OF 2009
Appellant.                        1. Sikandar S/o. Babu Khan Mewati,
                                     Aged 24 years, R/o. Viriyakhedi, Ratlam.
                                  2. Mubarik S/o. Sabir Khan Mewati,
                                     Aged 24 years, R/o. Mewatipura, Alot,
                                     District Ratlam.
                     Vs.
Respondent.                       State of M.P. through P.S. Alot, District Ratlam.

                           ***********************
      Shri Sanjay Sharma, Advocate for the appellants.
      Shri Hemant Sharma, learned Panel Advocate for the respondent/State.

                           ***********************

                                  JUDGMENT

(Delivered on 21st December, 2021)

Per se Vivek Rusia, J :

The appellants have filed this criminal appeal being aggrieved by the judgment dated 24.9.2009 passed by the 2nd Additional Sessions Judge, Ratlam in Sessions Trial No.205/2007 whereby they have been convicted u/s. 302 of the IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- each and in default of payment of the fine amount, to further undergo one year RI.

2. Facts of the case, in short, are as under:

On 16.8.2007, deceased Kallu Pathan @ Aslam went to the barbershop of Prakash (P.W.1) situated at Rajendra Chowk, Alot. At some distance place of the above shop, a son of the deceased; Asif (P.W.8); Farooq Khan (P.W.13); and Fulchandra a driver (P.W.14) heard the sound of fire by gunshots from the barbershop and they immediately rushed to the shop and found that appellant No.1 - Sikandar carrying a pistol and appellant No.2 carrying 'Satur' (animal chopper) were assaulting the deceased and the third accused viz. Kallu Musalman was waiting outside the shop on a motorcycle. After seeing P.W.8, P.W.13 and P.W.14, all the three accused persons fled

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away from the shop towards Sanjay Chowk. The deceased Kallu Pathan was immediately taken in a jeep to the Civil Hospital, Alot, where he was declared dead.

3. A Dehati Nalis was recorded in the Dressing Room of the Civil Hospital at the instance of Asif (P.W.8) at 8.45 am. in which he has disclosed the aforesaid story in detail. The said Dehati Nalis was recorded by Inspector J.P. Verma (P.W.5), Station House Incharge vide Exh. P/6. Thereafter, the FIR was lodged u/s. 302, 34 of the IPC and u/s. 25, 27 of the Arms Act at 9.30 am. in Police Station:Alot against Sikandar, Mumbarik and Kallu Musalman vide Exh. P/10. The Investigating Officer and the Scientific Officer reached the spot, drew the spot map vide Exh. P/8. They have found 7.66 mm two empty shells of cartridges and one live cartridge in the shop.

4. Simultaneously, information about the death of Kallu Pathan was received in the Police Station. The dead body of the deceased was sent for autopsy which was conducted by Dr. Prakash Vishnu Pulambikar, Medical Officer, Civil Hospital, Alot. He found several stab injuries and two gunshot injuries on the vital part of the body of the deceased Kallu Pathan, and he opined that the death resulted due to shock, as a result of excessive external and internal haemorrhage and injuries to vital organs like lungs, heart, liver, spleen. As per his opinion, the death took place within 4-6 hours of the post- mortem; homicidal in nature. All the injuries are antemortem and sufficient to cause death.

5. The police arrested appellants - Sikandar and Mubarik and on their disclosure, only a knife was recovered. Mubarik in his memorandum u/s. 27 of the Evidence Act disclosed the name of Akil S/o. Babu Ibrahim, Taju @ Taj Mohd. S/o. Chandu Kabadi give him Rs.10,000/- out of Rs.2,00,000/- and two pistols for killing Kallu Pathan. Accordingly, Rafiq, Sharif and Taju @ Taj Mohd. were also added as accused persons. The police could not recover the pistol said to have been used in the commission of the crime. The Scientific Officer submitted his report dated 16.8.2007 vide Exh. P/17. After completing the investigation, the police filed the charge-sheet against 5 accused persons as the accused viz. Kallu S/o. Babu Khan could not be not

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arrested till date.

6. The prosecution has examined the owner of the barbershop viz. Prakash as P.W.1 on 1.1.2008. After his examination in chief, the defence counsel filed an application u/s. 231(2) of the Cr.P.C. praying that the cross- examination of Prakash be done after examination of main witnesses viz. Asif and Farooq. Vide order dated 1.3.2008 learned Addl. Sessions Judge has allowed the said application and the cross-examination of Prakash was deferred. As per trial program, the prosecution has examined (i) P.W.2, P.W.3, P.W.4, P.W.5 on 9.4.2008, (ii)P.W.6 and P.W.7 on 6.5.2008, (iii) P.W.8, P.W.9 and P.W.10 on 26.6.2008, (iv) P.W.11 and P.W.12 on 17.12.2008. Rahul son of Prakash (P.W.1) appeared before the trial Court on 14.7.2009 but he was not examined dropped from the list of witnesses by the prosecution. Rahul gave information to the court about the death of his father Prakash (PW-1) on 23.3.2009 hence he could not be cross-examined. Thereafter, the prosecution has examined the remaining witnesses.

7. In defence, the appellants and other accused did not examine any witnesses. In their statement u/s. 313 of the Cr.P.C., they pleaded their false implication.

8. After evaluating the evidence that came on record, learned Addl. Sessions Judge vide judgment dated 24.9.2009 has acquitted Rafiq, Sharif and Taju @ Taj Mohd. from the charges u/s. 148, 302/149 and 120-B of the IPC as the prosecution failed to prove the conspiracy and common intention with the contract killers. Learned Addl. Sessions Judge also acquitted the present appellants from the offence u/s. 148 and 120-B of the IPC but convicted and sentenced them u/s. 302 of the IPC, as stated first. Hence, the present appeal before this Court.

9. Shri Sanjay Sharma learned counsel for the appellants argued that the learned trial Court has erred in relying on the statement of Prakash (P.W.1) who was not cross-examined by the defence counsel. Except for Prakash, there was another witness who is his son viz. Rahul, but the prosecution has dropped him from the list of witnesses despite including his name in the list of witnesses. So far as the presence of Asif Khan (P.W.8), Farooq Khan

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(P.W.13) and Fulchandra (P.W.14) is concerned, it is doubtful because the deceased Kallu Pathan went alone the barbershop. He further submitted that no TIP was conducted by the police, therefore, the identification by these three persons in the court has wrongly been accepted by the learned trial Court. The police could not arrest Kallu S/o. Babu Khan Shah till date hence there may not be any person of this name, hence the entire story of the prosecution becomes doubtful. There is no recovery of the pistol from appellant Sikandar. In such a defective investigation, the appellants have wrongly been convicted u/s. 302 of the IPC. He also submitted that the police came up with the story of conspiracy and contract killing, but since the conspiracy could not be proved, therefore, there was no motive for the appellants to commit the murder of Kallu Pathan. Hence on this count also they cannot be convicted in the name of contract killing, the appellants are entitled for acquittal.

10. On the other hand, the learned Panel Advocate appearing for the respondent/State, argued in support of the impugned judgment. He submitted that in view of Section 33 of the Evidence Act, the examination-in-chief of Prakash (P.W.1) has rightly been taken into consideration. According to him, two persons came with the pistol and knife in their hands. He heard the gunshot fire and the deceased Kallu Pathan in bleeding condition. After turning around, he saw Asif S/o. deceased Kallu Pathan and others coming from the shop. The aforesaid evidence has corroboration of Asif Khan (P.W.8), Farooq Khan (P.W.13) and Fulchandra (P.W.14). The death of the deceased was homicidal in nature on the basis of autopsy and testimony of the Doctor which is not in dispute. Asif (P.W.8) lodged the FIR naming the present appellants, therefore, there was no question of conducting the TIP. Asif duly identified the appellants in the Court. Since the conspiracy and contract killing has not been established, therefore, the appellants have rightly been convicted u/s. 302 of the IPC. Hence, no interference is called for and the appeal is liable to be dismissed.

We have heard the learned counsel for the parties and perused the record.

11. As per the prosecution story, on the date of the incident i.e., on

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16.8.2007, Kallu Pathan went to the barbershop of Prakash (P.W.1) which is not in dispute as the Investigating Officer as well as the Scientific Officer have recovered the blood, empty cartridges and other signs from the spot of the crime. After hearing the gunshot fire, Asif Khan (P.W.8), Farooq Khan (P.W.13) and Fulchandra (P.W.14) rushed to the shop and saw the appellants

- Sikandar and Farooq carrying the arms in their hands. They found the deceased Kallu Pathan lying in a pool of blood. Asif (P.W.8) immediately took him to the Civil Hospital where Dehati Nalis was recorded at his instance at 8.45 am. in which he has narrated the entire incident to Inspector J.P. Verma, therefore, the presence of Asif (P.W.8) cannot be doubted. There is no delay in recording the Dehatinalish by him. After the incident, Asif immediately took his father to the hospital and police also reached there. His presence has also been confirmed by Prakash (P.W.1) whose examination in chief was recorded on 1.3.2008 in which he has noticed Asif and two other persons coming to the shop. His examination-in-chief was completed but the cross-examination was deferred because the prosecution filed an application u/s. 231(2) of the Cr.P.C. seeking examination of Asif (P.W.8) and Farooq before cross-examination of PW-1. However, the learned Addl. Sessions Judge has allowed the application and the cross-examination of Prakash (P.W.1) was deferred.

12. Learned counsel for the appellants submitted that since Prakash (P.W.1) was not subjected to cross-examination, therefore, his examination- in-chief cannot be relied on. The aforesaid submission is not in conformity with Section 33 of the Evidence Act, which is reproduced below:

"33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.--Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided-- that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-

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examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation. A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section."

As per Section 33, the evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. The fact of the death of Prakash (PW-1) has not been disputed by the appellants. The death- certificate was produced by his son Rahul on 14.7.2009. Since there was no challenge to the death of Prakash (P.W.1) and his cross-examination was not possible, therefore, his examination-in-chief cannot be discarded. Hence the trial court did not commit any illegality in relying on his examination-in- chief.

13. The presence of Asif Khan (P.W.8), Farooq Khan (P.W.13) and Fulchandra (P.W.14) has been established by Prakash (P.W.1). The cause of the death of Kallu Pathan is not in dispute as death was homicidal in nature. He sustained as many as 10 incised stab wounds and two gunshot wounds as per the autopsy conducted by Dr. Prakash Vishnu Pulambikar (P.W.10). The police have recovered two empty shells of cartridges and one live cartridge and also recovered the knife on the disclosure made by the appellants. There is no challenge to the findings recorded by the learned Addl. Sessions Judge in Para 18 of the impugned judgment.

14. Even if the conspiracy / unlawful /assembly or common intention has not been established by the prosecution but there is direct evidence of four eyewitnesses who have seen these toe appellants committing murder of Kallu Pathan. Ocular evidence has fully corroboration by the evidence of scientific officer and doctor who conducted autopsy. There is recovery of empty cartridges from the crime scene hence not recovery of pistol is not

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fatal to the prosecution case.

In view of the above discussion we do not find any ground to interfere with the impugned judgment.

Accordingly, this appeal fails and is hereby dismissed. The record of the court below be sent back forthwith.

         ( VIVEK RUSIA )                   (SATYENDRA KUMAR SINGH)
             JUDGE.                                JUDGE.
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