Madhya Pradesh High Court
Rahman Ali vs The State Of Madhya Pradesh on 12 May, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 985 of 2023
(RIZWAN ALI KHAN AND OTHERS Vs THE STATE OF MADHYA PRADESH)
CRA/01222/2023
Dated : 12-05-2023
Shri Sankalp Kochar - Advocate for appellant No.1 - Rizwan Ali Khan
in Cr.A. No. 985 of 2023.
Shri Siddharth Datt - Advocate for appellant No.3 - Zibran @ Babar
Beg in Cr.A. No.1222 of 2023.
Shri Akhilendra Singh - Govt. Advocate for the respondent / State.
I.A. No. 1190 /2023 for appellant No.1 Rizwan Ali Khan (Cr.A. No. 985
/2023) and I.A. No. 1567 /2023 for appellant No.3 Zibran @ Babar Beg ( Cr.A.
No. 1222 /2023), for suspension of sentence and grant of bail to appellants
arising out of judgment dated 31.12.2022 delivered in S.T. No. 151 of 2017 by
19th Additional Sessions Judge Bhopal are taken up.
Both the appellants aforesaid have been convicted under Sections 302/34
of the I.P.C. and sentenced to undergo life imprisonment with fine of Rs.2,000/-
each ( on two counts) with default stipulations.
Learned counsel for the appellants by taking this Court to the prosecution
story submitted that on 02.04.2017, the main accused Rehman Ali by means of
his 12 bore gun caused gun shot injuries to Rashid Ali and Om Soni because of
that both died instantaneously. It is pointed out that even as per the prosecution
story the appellants were merely accompanying the main accused Rehman Ali.
No overt act of these appellants which brings their conduct within the ambit of
'common intention' to attract Section 34 of IPC is established. To bolster his
submission, the statements of Manish Raj Singh (PW-21) and Saiyad Shahid
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 5/13/2023
12:59:09 PM
Ali (PW-9) were relied upon. Manish Raj Singh (PW-21) (Investigation Officer)
in para 65 of his cross-examination clearly admitted that these two appellants
have not caused any injury whatsoever on the deceased persons.
Learned counsel for the appellants placed reliance on the statement of Dr.
G.P. Gaur (PW-12) before whom the bodies were brought and he deposed
that Minaz Khan brought the bodies whereas said person was not examined
before the Court below. AIR 1997 SC 1526 (Rehmat Vs. State of Haryana)
is relied upon to show that the non-examination of material witness in a case of
this nature causes serious dent on the prosecution story.
The Statement of Saiyad Shahid Ali (PW-9) is relied upon wherein he
deposed that while taking the injured / dead persons to hospital his clothes
became blood stained but blood stained clothes were not recovered. Thus, it is
common ground that both of them are not actually eye-witnesses and were
implanted as eye-witnesses as an after thought. PW-9 in his examination-in-chief
stated about Dehati Nalishi as a complainant whereas in cross-examination,
admitted that the report was not lodged in Salaiya Thana. Now in that event it
should not have been a Dehati Nalishi. Indeed, it should have been an FIR.
This appears to be an act of ante-dating and creating a document. In nutshell,
since there is no overt act of these appellants which attracts Section 34 of IPC,
there conviction is bad in law. Reliance is placed on the Supreme Court
judgment in (2022) 2 SCC 545 (Jasdeep Singh Alias Jassu Vs. State of
Punjab) wherein it was held as under:-
"26. There may be cases where all acts, in general, would
not come under the purview of Section 34 IPC, but only
those done in furtherance of the common intention having
adequate connectivity. When we speak of intention it has to
be one of criminality with adequacy of knowledge of any
existing fact necessary for the proposed offence. Such an
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 5/13/2023
12:59:09 PM
intention is meant to assist, encourage, promote and
facilitate the commission of a crime with the requisite
knowledge as aforesaid.
27. The existence of common intention is obviously the
duty of the prosecution to prove. However, a court has to
analyse and assess the evidence before implicating a person
under Section 34 IPC. A mere common intention per se
may not attract Section 34 IPC, sans an action in
furtherance. There may also be cases where a person
despite being an active participant in forming a common
intention to commit a crime, may actually withdraw from it
later. Of course, this is also one of the facts for the
consideration of the court. Further, the fact that all accused
charged with an offence read with Section 34 IPC are
present at the commission of the crime, without dissuading
themselves or others might well be a relevant circumstance,
provided a prior common intention is duly proved. Once
again, this is an aspect which is required to be looked into
by the court on the evidence placed before it. It may not be
required on the part of the defence to specifically raise
such a plea in a case where adequate evidence is available
before the court."
Sounding a contra note, learned counsel for the State opposed the prayer
on the basis of objections filed against these IAs.
We have considered the rival contentions of the parties.
In the aforesaid factual backdrop and without expressing any opinion on
the merits of the case, we deem it proper to suspend the remaining jail
s entenc e appellant No.1 Rizwan Ali Khan (Cr.A. No. 985 /2023)
and appellant No.3 Zibran @ Babar Beg ( Cr.A. No. 1222 /2023).
Accordingly, I.A. No. 1190 /2023 filed in Cr.A. No. 985 /2023) and I.A.
No. 1567 /2023 filed in Cr.A. No. 1222 /2023 are allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of appellant No.1 Rizwan Ali Khan (Cr.A. No. 985
/2023) and appellant No.3 Zibran @ Babar Beg ( Cr.A. No. 1222
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 5/13/2023
12:59:09 PM
/2023) are hereby suspended and it is directed that the appellants be released
on bail on their furnishing a personal bond for a sum of Rs.30,000/- (Rupees
Thirty Thousand only) each with one solvent surety each in the like amount to
the satisfaction of the trial Court with a further direction to appear before
the Trial Court, Bhopal on 12th July, 2023 and also on such other dates as
may be fixed by the trial Court in this regard during the pendency of this appeal.
Certified copy as per rules.
(SUJOY PAUL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
sarathe
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 5/13/2023
12:59:09 PM
