Mohd. Faiz vs The State Of Madhya Pradesh
2022 Latest Caselaw 7019 MP

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       IN THE HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR

                      BEFORE
        HON'BLE SHRI JUSTICE VIRENDER SINGH

                   ON THE 10th OF MAY, 2022
             CRIMINAL APPEAL NO. 6269 of 2019
Between:-

Sachin, S/o Shri Om Prakash
Karosiya, Aged about 31 years,
Occupation Labour, R/o A-341,
Mulla Colonym, Housing Board
Colony, Karond Nishatpura district
Bhopal.
                                                ...Appellant
(Shri V.C. Rai, counsel for the appellant)

And

The State of Madhya Pradesh,
Through-     P.S-     Nishatpura,
district Bhopal (M.P.)
                                              ...Respondent

(By Shri Pramod Pandey, Public Prosecutor)
            CRIMINAL APPEAL NO. 4978 of 2021
Between:-

Mohd. Faiz, S/o Shri Mohd. Zafar,
aged about 34 years, Occupation
Labour, R/o LIG EWS-50, Behind
Rusali Masjid, Housing Board
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Colony,     Karonda,      Nishatpura,
district Bhopal.
                                                        ...Appellant
(Shri A. Usmani, counsel for the appellant)

And

The State of Madhya Pradesh,
Through-     P.S-     Nishatpura,
district Bhopal (M.P.)
                                                      ...Respondent

(By Shri Pramod Pandey, Public Prosecutor)

...................................................................................
   These appeals coming on for hearing on IA No.6369/2022 an
application for suspension of sentence under Section 389 Cr.P.C. and
for final hearing (in Cr.A No. 4978/2021).

                          JUDGMENT

Learned counsels appearing for appellant Mohd. Faiz (in Cr.A

No. 4978/2021) submitted that the appellant Mohd. Faiz has

completed half of the sentence; therefore, either his sentence be

suspended or his appeal be heard finally.

2. This Court chose to hear the appeals finally.

3. Both the appellants have been booked by Police Station,

Nishatpura, Bhopal in Crime No. 359/2018 under Sections 307, 327,

506/34 I.P.C and 25 (1B)(b) of the Arms Act; therefore, their

respective appeals are heard together and are being disposed off by

this common judgment.

4. Charge-sheet was filed against both of them and they were

charged under Section 307 read with Section 34 I.P.C in alternate

Section 329 read with Section 34 I.P.C and 506 Part-II I.P.C. In

addition to that Mohd. Faiz was also charged under Section 25 (1B)(b)

of the Arms Act, 1959. They both were tried together. On the date of

delivery of judgment, i.e., 6.7.2019 appellant Mohd. Faiz remained

absent, hence the case was posted for delivery of judgment on

9.7.2019. On that date also Mohd. Faiz did not appear before the

Court; therefore, the Court delivered the judgment against appellant

Sachin and acquitted him from the charge under Section 307/34 and

506 part-II I.P.C as well as Section 25 (1B)(b) of Arms Act but

convicted him under Section 329/34 I.P.C and awarded four years R.I.

with fine of Rs.1000/- in default R.I. for three months. He preferred

Criminal Appeal No. 6269/2019.

5. Appellant Mohd. Faiz declared proclaimed offender and

perpetual arrest warrant was issued against him on 25.7.2019. After

about two years of the delivery of judgment with regard to co-accused

Sachin, on receiving information that Mohd. Faiz is detained in jail in

connection with some other crime, a production warrant was issued

on 17.9.2020 and in compliance whereof he was taken into custody in

this case. Thereafter a separate judgment was passed against him on

19.2.2021, whereby he was also convicted under Section 329 I.P.C and

25 (1B)(b) of the Arms Act and was awarded 4 years R.I. with fine of

Rs.1000/- and 2 years R.I. with fine of Rs.1,000/- respectively along

with default punishment of four and one month's R.I. He also

preferred Appeal bearing Cr.A No. 4798/2021.

6. The prosecution case, in brief, is that on 12.5.2018 when

complainant Sheikh Sattar was standing near Syed Hazrat Jinsawali

Dargah situated near a liquor shop at about 19:15 hours, both the

appellants, viz., Faiz and Sonu came and asked for money to buy

liquor. Faiz was having a knife in his hand. When Sheikh Sattar

refused to accede to their prayer, Sonu caught his hands and Faiz

wielded knife twice with intent to kill him. In his attempt to defend

himself, Sattar sustained injuries on the left thumb and also on the

head. Ashok Verma (PW-2) and Sunil Ahirwar (PW-3), who were

standing beside defended him. On their intervention both the

assailants left the place under the threat to life.

7. The injured was immediately taken to a nearby hospital and

admitted therein. The hospital authorities intimated the Police. The

Police immediately reached to the Hospital and recorded Dehati

Nalshi (Ex P-1). Based on this Dehati Nalshi, an F.I.R was deduced

into writing and Crime No. 359/2018 was registered (Ex. P-15) The

Police visited the spot, prepared spot map (Ex. P-3), seized blood

stained and plain soil from the spot (Ex. P-2), arrested both the

appellants, recovered a knife from Mohd. Faiz (Ex. P4, 5 and 8),

collected medical papers of the injured and after completing

investigation filed the charge-sheet, which culminated in the

conviction of the appellants as indicated herein above.

8. Both the appellants have preferred their respective appeals on

the grounds that their conviction and sentence is bad in law. The Trial

Court failed to appreciate the evidence available on record properly. It

further committed error of law in not giving proper emphasis on the

defence version. The Trial Court did not properly consider that Dr.

Sanjay Singh Gour (PW-4) had admitted that the injuries found on the

left thumb and head of the injured were not grievous one. The injured

was admitted on 12.5.2018 and discharged on 14.5.2018 (Ex. P-13).

Therefore, the conviction of the appellants under Section 329 I.P.C.

for causing grievous hurt is bad in law. The Trial Court further failed

to see that in the police statement (Ex. D-1), the complainant did not

allege about the demand of Rs.500/- for liquor, but such story was

developed subsequently. Independent witnesses, viz., Ashok Verma

(PW-2) and Sunil Ahirwar (PW-3) have not supported the allegation

made by the complainant. This fact has also missed observation of the

Trial Court. Witnesses of seizure P.W.2 Ashok Verma and PW-5

Gangaram have also not supported the case of the prosecution or the

recovery of knife from the possession of Mohd. Faiz. The

investigation of the case is also defective. The trial Court has not

considered omissions and contradictions appeared in the statement of

the witnesses. Therefore, the appellants are entitled for acquittal.

9. In the arguments counsels for both the appellants reiterated the

same grounds which have been mentioned in the preceding paragraphs

and, therefore, they need no repetition. In addition, the learned

counsel for the appellant Sachin in Cr.A. No. 6269/2019 has stated

that nothing has been recovered from his possession.

10. Learned Public Prosecutor has opposed the prayer of the

appellants and supported the aforesaid both the judgments.

11. I have heard the counsels and have perused the record.

12. Before the Trial Court, injured Sheikh Sattar (PW-1) has

categorically stated that at the time of the incident, he was standing

near Syed Hazrat Jinsawali Dargah. Both the appellants came and

hurled abuses. They demanded Rs.500/- to buy liquor and on his

refusal Sachin caught his hands and Faiz wielded knife twice with

intent to kill him. He sustained injury on the head which could be

treated by placing 22 stitches. Another injury inflicted on left thumb

and here also he had to get five stitches. Ashok Verma (PW-2) and

Sunil Ahirwar (PW-3) who were sitting beside, defended him. Ashok

Verma (PW-2) immediately called his sons and when they both, viz.,

Faizan and Salman reached there, offenders left the spot under the

threat of life. On the lengthy cross-examination of both the appellants

separately, nothing emerged on record to disbelieve his deposition

made on oath in the examination-in-chief. The statement of the

complainant is well supported by the corresponding injuries observed

of Dr. Sanjay Singh (PW-4).

13. True it is that independent witnesses Ashok Verma (PW-2) and

Sunil Ahirwar (PW-3) have not supported the case of the prosecution

but they both have been declared hostile and they could not offer any

plausible explanation for making a statement contrary to their earlier

statement. Law is well settled that hostility of any witness does not

affect the quality of the statement of any other witness, particularly the

injured witness. Since to prove any fact the number of witnesses has

not been fixed, the conviction can be based on the statement of only a

single witness. Non-supportive statement of other witnesses does not

affect the case of the prosecution adversely. Besides, apt to be

mentioned here that during the trial on 6.2.2019 independent witness

Ashok Verma (PW-2) submitted an application before the Trial Court

that Mohd. Faiz along with his two friends approached his mother and

threatened her to kill her son. The complainant has also stated in his

examination before the Court that the appellants were threatening him

to compound the case otherwise to face dire consequences. The

hostility of the witnesses can be understand in this backdrop. Even

otherwise keeping in view the settled proposition of law, non-support

of Ashok Verma or Sunil Raikwar does not affect the prosecution case.

14. It is a fact that the charge under Section 307 I.P.C. has not been

found proved against the appellants but it does not mean that due to

un-availability of essential ingredients to constitute the said offence

the entire case of the prosecution becomes doubtful and has to be

thrown away. Therefore, this contention of the appellants also is not

helpful to them to get acquitted against the charges found proved by

the Trial Court.

15. It is argued that the investigation is defective in this case. It is

pointed out that the incident had taken place on 12.5.2018. The

Dehati Nalshi was recorded on the same date but the Investigating

Officer Anil Kumar (PW-7) has admitted that his departure is recorded

in Rojnamcha Sanha on 13.5.2018 at 13:16 hours. But, this statement

is related to departure of the witness with regard to the subsequent

investigation of the case. Therefore, it does not affect the case of the

prosecution. No other defect in the investigation could be pointed out

by the appellants.

16. It is a fact that Dr. Sanjay Singh Gour (PW-4) has admitted in

his cross-examination that no grievous injury was detected in the

medical examination and this fact has not been controverted by the

State. The Trial Court has convicted the appellants under section 329

observing that since the injury was caused by a deadly weapon, it has

to be considered a grievous injury. But this finding is contrary to the

law as well as the facts of the case. Therefore, the conviction of the

appellants under Section 329 is not sustainable.

17. Nothing has been stated against the recovery of knife from

Mohd. Faiz except that both independent witnesses have not supported

the case of the prosecution but as stated earlier, hostility of some of

the witnesses does not mean that other witnesses are telling lie, until

and unless their own statements are of such nature that reasonable

doubt can be raised against them. In this case Investigating Officer

has proved the recovery and his statement is well supported by the

documents prepared at the time of recovery, i.e., Ex.P-8, P-16,P-17

and in cross-examination his statement could not be rebutted. There is

no allegation of biasness against him and otherwise also, he is an

impartial responsible police officer and there is nothing to show that

he was acted mala fidely or has falsely implicated him. Therefore, in

this respect also, the finding of the Trial court are based on correct

appreciation of the evidence.

18. In view of the aforesaid discussion the appeals preferred by both

the appellants are partially allowed. Their conviction and sentence

under Section 329 I.P.C are set aside. However, looking to the

allegations made against them and the injuries found caused to the

complainant they are convicted under Section 327 I.P.C. The

conviction of Appellant Mohd. Faij under Section 25 (1B) (b) of the

Arms Act, 1959 is maintained.

19. In this case the appellant Mohd. Faij had wielded knife

repeatedly, when the injured refused to succumb to his demand of

giving him money to purchase liquor and caused injuries by knife on

his head. He again attempted to cause injury and in his attempt to

defend, the injured sustained injuries on the left thumb. Mohd. Faiz

has Crime No. 854/2020 under Section 25 Arms Act, registered at

Police Station Nishatpura, Bhopal in his account. Besides, his conduct

appeared during the trial and the fact that he absconded from the Court

when the Trial Court was going to deliver the judgment and he was

declared proclaimed offender, his conduct to tamper with the evidence

of the prosecution and other facts and circumstances of the case and

also keeping in view the nature and gravity of the injuries caused by

him, nature of accusation made against him, sentence awarded to him

by the Trial Court for the offences under Section 329 I.P.C is also set

aside. Now, for the offence under Section 327 I.P.C he is awarded 3

years R.I. with fine of Rs.10,000/- and in default R.I. for six months.

No need appears to alter his sentence for the offence under section 25

(1B)(b) of the Arms Act, 1959 both the sentences shall run

concurrently.

20. The offence against appellant Sachin has also been found

proved. As per the allegation, he caught hold the hands of the victim.

He did not cause any injury to him. He has no criminal record. He

had fully cooperated with the trial. Therefore, for the offence under

section 327/34 I.P.C. found proved against him, he is awarded 1

years's R.I. with fine of Rs.2500/- in default R.I. for three months.

21. In the result, in the manner indicate herein above the appeals are

partly allowed and are disposed off.

22. All pending I.As., if any, stand closed.

(Virender Singh) Judge

vivek

VIVEK KUMAR TRIPATHI 2022.05.13 18:06:05 +05'30'