Madhya Pradesh High Court
Aslam Khan vs The State Of Madhya Pradesh on 27 February, 2021
Author: Sujoy Paul
1
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
CRIMINAL APPEAL NO.8816 OF 2019
(Aslam Khan vs The State of Madhya Pradesh)
Indore, Dated 27.02.2021
Mr. Sanjay Kumar Sharma, learned counsel for the appellant.
Mrs. Mamta Shandilya, learned counsel for the
respondent/State.
ORDER
Per Shailendra Shukla, J:
Heard on IA No.2938/2020 which is an application for urgent
hearing of the case. Keeping in view the reasons mentioned in the
application, the application for urgent hearing stands allowed.
Accordingly, IA No.2938/2020 stands disposed of.
Also heard on IA No.9665/2019 which is an application filed
under Section 389 of Code of Criminal Procedure, 1973 seeking
suspension of sentence of sole appellant - Aslam Khan S/o
Navinoor Khan who has been convicted who has been convicted
by Second Additional Sessions Judge, Rajgarh (Biaora) in Session
Trial No.154/2014 vide judgment dated 05.10.2019 and sentenced
him as under:-
Conviction Sentence
Section & Act Imprisonment Fine Amount Imprisonment
in lieu of fine
302 of IPC, 1860 Life Rs.5000/- Additional RI for
Imprisonment six months
25 (1-b) Arms 02 years RI Rs.500/- Additional RI for
Act, 1959 one month
27 of Arms Act, 03 years RI Rs.1000/- Additional RI for
1959 two months
The prosecution story in short was that Dehati Nalisi report
was lodged on 26.04.2014 by complainant - Jamnabai (PW/1) at
Police Station Machanpur (Rajgarh) stating that her son Badrilal had
gone for cattle grazing where the appellant had an altercation with
complainant - Jamnabai and thereafter Aslam shot dead Badrilal.
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
CRIMINAL APPEAL NO.8816 OF 2019
(Aslam Khan vs The State of Madhya Pradesh)
The prosecution story is based on eye witnesses account of
Pinki (PW/6) and Devika (PW/3) also on oral dying declarations
made by deceased to Jamnabai, his mother (PW/1).
Learned counsel for the appellant submits that appellant has
been implicated due to previous rivalry. He has invited the Court's
attention to the deposition of Jamnabai (PW/1) who has stated that
after hearing the sound of bullet fire, she reached at the spot where
her son was lying who told him that she should get away with the
girls otherwise she would also be killed, thus, as per learned
counsel for the appellant, Badrilal did not name Aslam while taking
his last breathes. He has further invited the Court's attention to
para-5 of cross-examination of this witness who had admitted that
she had been admitted to the Court by SHO and had told her as to
what she should state. Thus, this is a tutored witness as per learned
counsel for the appellant. He has further invited the Court's attention
to paras 6 and 7 of her deposition in which she admits the factum of
enmity between the appellant and Badrilal. He has further drawn
Court's attention to witness Devika (PW/3) who although claims to
be an eye-witness but in para 2 of her cross-examination she
admits that while she ws grazing goats she heard the shots being
fired from firearm. He also drawn Court's attention to paras 11 and
12 of witness Dr. Pushpak (PW/14) who had conducted the
postmortem of deceased Badrilal. This witness in para 11 has
admitted that firearm was sent to him by police and also admits that
he had not seen any burn marks on the abdomen of deceased. In
para 12, this witness admits that holes on the baniyan of deceased
Article - 'A' have been cut in square and thus, learned counsel
thereby submits that there is nothing to suggests that the deceased
died due to particular firearm fired by appellant and that the injuries
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
CRIMINAL APPEAL NO.8816 OF 2019
(Aslam Khan vs The State of Madhya Pradesh)
were due to gun shots. He has also invited Court's attention to para
47 of the judgment in this regard. Learned counsel has also invited
attention to Ex. P/30 which is the ballistic report in which the expert
has not been able to state as to when the shot was fired, that the
expert could not gave a definite opinion as to whether the spent
cartridge was fired from the same fire arm. Learned counsel for the
appellant last submits that the appellant was on bail during trial and
he has not misused the liberty so granted to him. With these
submissions, suspension has been sought.
Learned counsel for the respondent/State was also heard. He
has filed the written submissions in which it has been stated that the
eye witnesses account and oral dying declarations of PW/1 is
creditworthy.
Submissions were considered and original record was
perused.
Jamnabai (PW/1) has filed the Dehati Nalisi report within two
hours of the incident. There is no contradiction in her dehati nalisi
report and in her examination-in-chief. Regarding she hearing gun
shot wound and had seen the appellant running from the spot. She
states that her son Badrilal had only told her that she would also be
killed, cannot be reach in isolation. It would be understood that the
appellant was talking about appellant Aslam Khan only. This witness
having lodged dehati nalisi report was deem conversant with the
factual matrix of the incident. Hence, her admission that she was
being asked by the Investigating Officer to narrate the incident,
would not amount to creating a dent in her creditworthiness. The
factum of old rivalry is a double edged sword and therefore it does
not give any benefit to the appellant.
Witness Pinki (PW/6) is the niece of Badrilal. She has stated
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
CRIMINAL APPEAL NO.8816 OF 2019
(Aslam Khan vs The State of Madhya Pradesh)
that appellant Aslam had shot Badrilal in her presence. In her police
statements Ex.D/3, there is no contradiction regarding the fact that
Aslam had shot Badrilal in her presence.
In the ballistic report, Ex. P/13, it has been found that there is
an evidence to the effect that the fire arm seized from the appellant,
bullet had been fired. In the same report, it has been found that the
holes found in the T-Shirt C/1 were gunshot holes. Witness PW/14
Dr. Pushpak has also found the gunshot injuries on the abdomen of
deceased Badrilal.
After duly consideringf the material available on record, the
fact that the appellant was on bail during trial would not give benefit
to the appellant - Aslam Khan because at the stage of suspension
of sentence, the Court needs to peruse the evidence available and
then form an opinion in the matter which is an exercise distinct from
that of under Section 439 of Code of Criminal Procedure, 1973.
Consequently, no case is made out for grant of suspension of
sentence to appellant. Accordingly, IA No.9665/2019 stands
rejected.
Record has been received.
Be listed for final hearing in due course.
(SUJOY PAUL) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by
ARUN NAIR
Date: 2021.03.01
12:25:09 +05'30'
