Madhya Pradesh High Court
Ale Khan @ Gajju @ Mukhtiyar Khan & ... vs The State Of M.P. on 14 January, 2022
Author: Rajeev Kumar Dubey
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH : RAJEEV KUMAR DUBEY, J
Criminal Appeal No.1919/1997
Ale Khan @ Gajju @ Mukhtiyar Khan and Others.
Vs.
State of M.P.
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Shri Surendra Singh, learned Senior counsel with Shri Rakesh Singh,
counsel for the appellants.
Shri D.K. Shukla, learned P.L. for the respondent / State.
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JUDGMENT
(Reserved on 25.11.2021
Delivered on 14.01.2022)
This criminal appeal has been filed under Section 374(2) of the
Cr.P.C. against the judgment dated 29.08.1997 passed by IV Additional
Sessions Judge, Rewa in Sessions Trial No.26/1992, whereby the
learned Sessions Judge found appellant No.1 Ale Khan @ Gajju @
Mukhtiyar Khan, appellant No.2 Chunai Khan, appellant No.3 Ashtaq
Khan @ Babu Khan and appellant No.4 Dilhaq Khan guilty and
convicted and sentenced them as under:-
Appellants Sections (in IPC) Sentence
Ale Khan @ Gajju @
3 Years and 1 Year
Mukhtiyar Khan 307/34 of IPC (two counts)
307/34 of IPC (two counts)
Chunai Khan 3 Years and 1 Year
Ashtaq Khan @ Babu 307/34 of IPC (two counts)
3 Years and 1 Year
Khan
Dilhaq Khan
307/34 of IPC (two counts) 1 Year each count
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2. As per prosecution case, on 22.09.1991 at around 5-6 PM
complainant Bhola Khan resident of village Amriti came to his house
taking fodder from his farm and after keeping the fodder in the house,
when he came out on the road, appellant No.1 Ale Khan @ Gajju @
Mukhtiyar Khan, appellant No.2 Chunai Khan, appellant No.3 Ashtaq
Khan @ Babu Khan resident of the same village, who were holding
muzzle-loaded guns in their hands, on seeing him threatened to shoot
him if he moved ahead and appellant No.2 Chunnai Khan and appellant
No.3 Astaq Khan fired at him. Appellant No.3 Astaq Khan's bullet hit
his right shoulder and appellant no.2 Chunnai Khan's bullet hit his left
thigh and he shouted, whereupon his niece Shayrabai and uncle Islam
Khan who were making beedi nearby came there. On that appellant
No.1 Ale Khan shot at his niece Shayrabai. The bullet hit under her
chest. At that point of time, appellant no.4 Dilhaq Khan who also stood
at a distance with a 12 bore gun, told appellants Nos. 1 to 3 "they have
not died, fire one more gunshot on them", thereafter the appellants ran
away from the spot. Appellants fired at complainant Bhola Khan due to
an old pending land dispute with the intent to kill him.
3. After the incident Islam Khan (PW-3) took injured Bhole Khan
(PW-1) and Shayrabai (PW-2) to the Civil Hospital, Rewa for
treatment. Dr. Y. S. Baghel (PW-14) examined them and gave MLC
reports (Ex.P-19 & Ex.P-20) respectively to the effect that two gunshot
wounds were found on the body of injured Bhole Khan (PW-1) and one
gunshot wound was found on the body of injured Shayrabai and he also
sent the information to the police regarding admission of injured Bhole
Khan and Shayrabai to the hospital. Kamlakar Pandey (PW-12) entered
that information in Rojnamcha (Ex.P-15) and K.L. Mishra (PW-11),
Assistant Sub-Inspector, P.S., Gurh went to the Civil Hospital, Rewa
where Bhole Khan lodged the report (Dehati nalsi) (Ex.P-1) of the
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incident, which was written by K.L. Mishra and on that basis, he
registered Crime No.111/91 (Ex.P-12) for the offence punishable under
Section 307/34, 506 of IPC at P.S. Gurh and investigated the matter.
During investigation, he prepared a spot map (Ex.P-3) and seized one
blood stained kurta from the possession of Shayrabai and one blood
stained full pant and one shirt from the possession of injured Bhole
Khan (PW-1) and prepared seizure memos (Ex.P-2 and Ex.P-4)
respectively. He also seized one packet received from the hospital
containing blood stained clothes of injured Bhole Khan (PW-1) and
Shayrabai (PW-2) and prepared seizure memo (Ex.P-9) and also
recorded the case diary statement of Bhole Khan (PW-1), Shayrabai
(PW-2), Islam Khan (PW-3) Jummi Bai (PW-4), Harun Khan (PW-7),
Smt. Julekha and Abbas Khan. Police arrested the appellants. R.K.
Gupta, Inspector (PW/10) also seized 12 bore gun and its licence from
the possession of appellant No.4 Dilhaq Khan and prepared seizure
memo (Ex.P/10). K.L. Mishra also sent the seized articles to FSL,
Sagar, through S.P., Rewa along with draft (Ex-P/13).
4. After investigation, police filed a charge-sheet before JMFC,
Rewa, whereupon Criminal Case No.585/1991 was registered and
learned JMFC committed the case to the Court of Session, where S.T.
No.26/92 was registered. Learned IV ASJ framed charge against all the
appellants for the offence punishable under Section 307/34 of IPC and
tried the case. However, appellants abjured their guilt and took the
defence that Injured Bhole Khan (PW-1) and Shayrabai (PW-2)
sustained injuries due to a bomb blast and falsely implicated the
appellants in the case due to old animosity. In this regard they also
produced Hamid Khan (DW-1) in their defence. Learned trial Court
after trial found appellants guilty for the aforesaid offences and
sentenced them as mentioned above.
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5. Though, earlier appellants also challenged the convictions of
appellant nos.1, 2, 3 and 4 under Section 307/34 of IPC in the appeal
but during the course of the argument learned counsel for the appellants
submits that he does not want to challenge the findings of the trial
Court regarding conviction of appellant No.1 Ale Khan @ Gajju @
Mukhtiyar Khan, appellant No.2 Chunai Khan and appellant No.3
Ashtaq Khan @ Babu Khan under Section 307/34 of IPC. Appellant
No.1 Ale Khan @ Gajju @ Mukhtiyar Khan, appellant No.2 Chunai
Khan and appellant No.3 Ashtaq Khan @ Babu Khan have restricted
their submission only on the point of sentence awarded by the trial
Court to them on the basis of compromise. Only appellant No.4 Dihaq
Khan wants to challenge the findings of the trial Court regarding
conviction as well as sentence given by the trial Court to him.
Otherwise, also the findings of trial Court finding appellant Appellant
No.1 Ale Khan @ Gajju @ Mukhtiyar Khan, appellant No.2 Chunai
Khan and appellant No.3 Ashtaq Khan @ Babu Khan guilty for the
offences punishable under section 307 read with 34 of IPC is appears to
be correct. In this regard injured Bhole Khan (PW-1) clearly deposed
that in the incident, appellant No.2 Chunai Khan and appellant No.3
Babu Khan fired at him with guns and bullets, which hit in his left ribs
and his left leg. On hearing him shout, his niece Shayrabai (PW-2) and
uncle Islam Khan came and Shayrabai tried to save him, then appellant
No.1 Ale Khan shot her too. In this regard, his statement is also
corroborated by the FIR (Ex.P/1) and the Court statements of injured
Shayrabai (PW-2) and other eyewitnesses of the incident Islam Khan
(PW-3) and Jummi Bai (PW-4), who also deposed the same and also by
the statement of Dr. Y.S. Baghel (PW-14) who examined the injured
Bhole Khan (PW-1) and Shayrabai (PW-2) soon after the incident and
found two gunshot injuries on the body of injured Bhole Khan (PW-1)
and one gunshot injury on the body of Shayrabai (PW-2). From their
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statements, it is clearly proved that on the date of incident i.e.
22/09/1991 appellant No.1 Ale Khan @ Gajju @ Mukhtiyar Khan,
appellant No.2 Chunai Khan, appellant No.3 Ashtaq Khan @ Babu
Khan made a common intention to kill Bhole Khan (PW-1) and
Shayrabai (PW-2) and in furtherance of their common intention
appellant No.2 Chunai Khan and appellant no.3 Ashtaq Khan @ Babu
Khan fired at Bhole Khan (PW-1) and appellant No.1 Ale Khan fired at
Shayrabai (PW-2) and caused gunshot injuries to them. So in the
considered opinion of this Court, the trial Court did not commit any
mistake in finding appellant No.1 Ale Khan @ Gajju @ Mukhtiyar
Khan, appellant no.2 Chunai Khan and appellant no.3 Ashtaq Khan @
Babu Khan guilty for the offences punishable under Section 307 read
with Section 34 of IPC in two counts. Hence, the conviction of the
appellant No.1 Ale Khan @ Gajju @ Mukhtiyar Khan, appellant No.2
Chunai Khan and appellant No..3 Ashtaq Khan @ Babu Khan under
Section 307 read with Section 34 of IPC in two counts is hereby
affirmed.
6. As regards appellant no.4, learned counsel for the appellants
submitted that in the FIR, it is not mentioned that appellant no.4 Dilhaq
Khan came on the spot along with appellant no.1 Ale Khan @ Gajju @
Mukhtiyar Khan, appellant no.2 Chunai Khan and appellant no.3
Ashtaq Khan @ Babu Khan. Though it is alleged that appellant no.4
Dilhaq Khan who also stood at a distance with a 12 bore gun, told
appellant Nos. 1 to 3 that Bhole Khan (PW-1) and Shayrabai (PW-2)
had not died, so fire one more gunshot on them, but there is no
evidence on record to show that at the behest of appellant no.4 Dilhaq
Khan, other appellant Nos. 1 to 3 fired more shot at injured Bhole Khan
(PW-1) and Shayrabai (PW-2). So, on the basis of prosecution
evidence, it cannot be said that appellant No.4 Dilhaq Khan had the
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common intention with the other appellants to kill injured Bhole Khan
(PW-1) and Shayrabai (PW-2). Learned trial Court without appreciating
this fact wrongly found appellant No.4 Dilhaq Khan guilty for the
offences punishable under Section 307 read with Section 34 of IPC in
two counts. This argument of learned counsel for the appellants has
force.
7. There is no allegation against the appellant no.4 that in the
incident, he also fired at the Bhole Khan or Shayrabai. Though
complainant Bhole Khan (PW-1) in his Court statement deposed that on
the date of incident, at around 5-6 PM he came to his house taking
fodder from his farm and after keeping it in the house, when he came
out from the house, he saw appellant No.1 Ale Khan @ Gajju @
Mukhtiyar Khan, appellant No.2 Chunai Khan, appellant No.3 Ashtaq
Khan @ Babu Khan and appellant no.4 Dilhak Khan who were holding
guns in their hands. Appellant no.4 Dilhak Khan, stood 5 steps away
from the pole and the remaining three appellants came near the pole.
Appellant No.2 Chunnai Khan and appellant No.3 Astaq Khan fired at
him, bullets hit on his left ribs and left leg. He fell down and started
shouting. Hearing him shout, his niece Shayrabai and uncle Islam Khan
came there and Shayrabai tried to save him, whereupon appellant No.1
Ale Khan fired at Shayrabi. On this point his statement is also
corroborated by the statements of injured Shayrabai (PW/2) and other
eyewitnesses of the incident Islam Khan (PW-3) and Jummi Bai (PW-
4). They also deposed the same. But in the FIR (Ex.P/1) lodged by
injured Bhole Khan himself as well as in the case diary statements of
Bhole Khan (PW/1), Shayrabai (PW-2) and other eyewitnesses of the
incident Islam Khan (PW-3) and Jummi Bai (PW-4) (Ex.D/1 to Ex.D/4)
respectively it is not mentioned that at the time of incident appellant
no.4 Dilhaq Khan came on the spot along with appellant no.1 to 3. So
in this regard their statements become an afterthought, which cannot be
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believed. Though, Bhole Khan (PW/1) and eyewitnesses of the incident
Islam Khan (PW-3) and Jummi Bai (PW-4) also deposed in one voice
that the appellant no.4 who was standing on the spot with the gun told
the other appellants they had not died yet, shoot them once more and I
will see (वव अभभ मरव नहह हह उनकक एक एक गकलभ और ममरक मह दवख लललगम), but Bhole Khan
(PW-1) himself admitted in his cross-examination that at the behest of
appellant no.4 Dilhaq Khan, none of the appellants fired further shots.
Had the appellant no.4 Dilhaq Khan any intention to murder Bhole
Khan, he himself could have fired at the Bhole Khan. Islam Khan (PW-
3) and Jummi Bai (PW-4) are the relatives of the Bhole Khan. In the
FIR lodged by Bhole Khan (PW-1) himself, it is mentioned that at the
time of the incident, Haroon Khan and other residents of the village
came on the spot. However, regarding involvement of the appellant
no.4 Dilhaq Khan in the incident, the statement of Bhole Khan does not
corroborate with the statement of Haroon Khan (PW/7) independent
witness of the incident. Prosecution did not produce any other
independent witness to support the statement of Bhole Khan (PW-1)
regarding involvement of the appellant no.4 Dilhaq Khan in the
incident. Even injured Shayrabai (PW-2) in her Court statements has
not deposed that at the time of incident appellant no. 4 Dilhaq Khan
told other appellants that they had not died yet, shoot them once more
and he would see. So in this regard statements of Bhole Khan (PW-1),
Islam Khan (PW-3) and Jummi Bai (PW-4) cannot be believed. In the
considered opinion of this Court, learned trial Court committed a
mistake in finding that appellant no.4 had a common intention with the
other appellants to commit murder of Bhole Khan and Shayrabai and in
finding appellant no. 4 Dilhaq Khan guilty for the offence under
Section 307 read with Section 34 of IPC in two counts.
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8. As regards the sentence awarded by the trial Court to appellant
No.1 Ale Khan @ Gajju @ Mukhtiyar Khan, appellant No.2 Chunai
Khan and appellant No.3 Ashtaq Khan @ Babu Khan under Section
307 read with Section 34 of IPC in two counts, learned counsel of the
appellants submitted that injured Bhole Khan has entered into the
compromise with the appellants, which has been verified by Registrar
Judicial. Though, the offence under Section 307 of IPC is not
compoundable, this fact can be taken into consideration in determining
the quantum of the sentence. Appellant No.1 Ale Khan @ Gajju @
Mukhtiyar Khan, appellant No.2 Chunai Khan and appellant No.3
Ashtaq Khan @ Babu Khan have already suffered more than four
months in jail during the trial of the case and they have been facing trial
for the last 29 years. So in the interest of justice, the sentence of
imprisonment awarded to them be reduced to the period already
undergone.
9. But in this regard, arguments of learned counsel for the appellants
do not appear to be wholly correct. The offence punishable under
Section 307 of IPC is non-compoundable as per Section 320 of Cr.P.C.
Hon'ble Apex Court in the case of Bhagwan Narayan Gaikwad vs.
State of Maharashtra, 2021 SCC OnLine SC 748 has held 'The
compromise if entered at the later stage of the incident or even after
conviction can indeed be one of the factors in interfering the sentence
awarded to commensurate with the nature of offence being committed
to avoid bitterness in the families of the accused and the victim and it
will always be better to restore their relation, if possible, but the
compromise cannot be taken to be a solitary basis until the other
aggravating and mitigating factors also support and are favourable to
the accused for molding the sentence which always has to be examined
in the facts and circumstances of the case on hand.'
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10. As per prosecution case, appellant No.2 Chunai Khan and
appellant No.3 Ashtaq Khan @ Babu Khan caused gunshot injuries to
Bhole Khan and appellant No.1 Ale Khan @ Gajju @ Mukhtiyar Khan
caused gunshot injury to Shayrabai in furtherance of their common
intention. In the MLC report (Ex.P/19) of injured Bhole Khan it is
mentioned that the injuries sustained by Bhole Khan were dangerous to
life. Nevertheless only injured Bhole Khan entered into the
compromise with the appellants, while the other injured Shayrabai did
not. So looking at the facts and circumstances of the case, this Court
does not find fit to reduce the sentence of appellant no.1 Ale Khan @
Mukhtiyar Khan, appellant no.2 Chunai Khan and appellant no.3
Ashtaq Khan @ Babu Khan from three years and one year rigorous
imprisonment to the period already undergone.
11. However, in the instant case, the incident took place more than
29 years back; the parties are residing in one and the same village.
Appellants have been facing trial for the last 29 years. So in the interest
of justice, the sentence of imprisonment awarded by the trial Court to
appellant No.1 Ale Khan @ Gajju @ Mukhtiyar Khan, appellant No.2
Chunai Khan and appellant No.3 Ashtaq Khan @ Babu Khan under
Section 307/34 (two counts) is reduced from three years and one year
of rigorous imprisonment to rigorous imprisonment of nine months in
two counts.
12. Hence, the appeal is partly allowed and appellant No.4 Dilhaq
Khan is acquitted from the offences punishable under Section 307 read
with Section 34 of IPC in two counts. The sentence of appellant No.1
Ale Khan @ Gajju @ Mukhtiyar Khan, appellant No.2 Chunai Khan
and appellant No.3 Ashtaq Khan @ Babu Khan is reduced from three
years and one years of rigorous imprisonment to rigorous imprisonment
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of nine months in two counts. Both the jail sentences shall run
concurrently. The period already undergone by the appellant Nos. 1 to 3
shall be setoff from the jail sentence.
13. Appellant No.1 Ale Khan @ Gajju @ Mukhtiyar Khan, appellant
No.2 Chunai Khan and appellant No.3 Ashtaq Khan @ Babu Khan are
on bail. Their bail bonds stand discharged. They are directed to
surrender before the trial Court and the trial Court is directed to send
them to jail for serving the remaining part of jail sentence. If the
appellant Nos. 1 to 3 do not surrender as directed above, the trial Court
shall take action according to law for their arrest.
14. Accordingly, the appeal stands disposed of.
(Rajeev Kumar Dubey)
JUDGE
mn/as
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