Asif Mamu vs State Of M.P

3. Prosecution case in short was that 10/07/1996 was the date fixed in Sessions Trial No. 379/1995 in the court of the 3rd Additional Sessions Judge, Bhopal for evidence. The said case related to causing bullet injury by Mukhtiyar, Sheru and Asif on the leg of one Munne Painter who arrived court premises on that day at 10.30 am along with his witnesses viz., Munnu, Rais Nai, Saleem Baba, Saleem Bucha, Babu Bhai, besides others and they sat in the gallery outside the courtroom of the 3rd Additional Sessions Judge, which was on the first floor of the building of the said courthouse, where accused Mukhtiyar, Sheru, Asif and one boy, who was wearing red shirt, [in short, "red shirt boy"] were sitting from before. At 11.45 am accused Rajiulla, who was an advocate and uncle of appellant Mukhtiyar, came there and ordered to kill. Accused Asif and the red shirt boy were armed with 3 knives. Accused Mukhtiyar and Sheru, who were armed with revolvers, started firing from their respective weapons aiming towards Munne Painter besides Saleem Baba and Saleem Bucha and in order to save himself Munne Painter entered inside the courtroom of the 3rd Additional Sessions Judge. As a result of firing by the aforesaid two accused persons, Saleem Baba and Saleem Bucha received injuries and while Saleem Bucha fell down in the gallery itself, Saleem Baba moved to the said courtroom, fell down there and both of them succumbed to their injuries. According to the prosecution, the accused persons, with the intention of putting pressure upon the members of the prosecution party for changing their statement in the Sessions Trial No. 379 / 1995, in which witnesses had come to depose, conspired and made homicidal attack on them. Stating the aforesaid facts, a written report was submitted by Munne Painter before the officer-in-charge, Shahjahanabad police station in Bhopal town on the basis of which First Information Report [for short `FIR'] No. 410/1996 was drawn up at 1.10 pm against five accused persons, namely, Mukhtiyar, Rajiulla, Sheru, Asif and red shirt boy.

4. Thereafter, on the basis of statement of Rajiulla, who is accused in the present case, another FIR was drawn up at the same very police station at 1.35 pm bearing FIR No. 411 of 1996 for the prosecution of eleven accused persons, namely, Munne Painter, Majhar, Saleem Baba [since deceased], Saleem Bucha [since deceased], Saleem Kela, Badshah, Sadiq, Sajid, Guddu, Haseen and Assu Bambaiya 4 [absconding], which includes eight accused persons referred to above, in which case allegations were that red shirt boy was inflicted injuries by knife by accused persons of that case at the same time and place of occurrence and the said boy, after being assaulted, was thrown by some of the accused persons of that case from the first floor of the court building to the ground floor, who succumbed to the injuries.

5. Another FIR was drawn up at the said police station being FIR No. 412 / 1996 under Section 307, IPC against Saleem Kela, who was accused in FIR No. 411 / 1996, on the statement of one Mohd. Rashid - auto driver, in which allegations were made that when said Saleem Kela, after commission of the offence relating to which FIR No. 411 / 1996 was registered, was fleeing away and when he was chased by the Town Inspector, he boarded the said auto rickshaw asking the driver to drive the same but on refusal caused knife injury upon him. Saleem Kela also fired at the Town Inspector but the same did not hit him.

6. On the same day fourth FIR was drawn up at the aforementioned police station being FIR No. 413/1996 under Section 307, IPC on the basis of the statement of Sharad Charan Dubey, Inspector of Police attached to the concerned police station on allegations that when the accused persons of FIR No. 411 of 1996 were coming down through the stairs, he challenged them and accused Saleem Kela and three other persons attacked him with dagger, as a result of which injury was caused on the index finger of his left hand whereupon while Sharad Charan Dubey, in self defence, fired shots from his service revolver and chased them, Saleem Kela fired at him from country 5 made revolver, but he remained unhurt. Then Saleem Kela boarded the auto rickshaw and compelled the driver to drive the same and at that point of time once again resorted to firing. Sharad Charan Dubey, in self defence and in order to save driver of the auto rickshaw, again fired at Saleem Kela as a result of which he was injured and fell down whereupon he was taken to Hamidia Hospital for treatment.

11. Presiding Officer of the trial court after recording of evidence thought it fit to inspect the place of occurrence, which is court premises, itself in the presence of Special Public Prosecutor and learned counsel appearing on behalf of the accused persons and prepared a map of the site where occurrence in both the cases is said to have taken place, which includes the gallery outside the court of the 3rd Additional Sessions Judge and the same was visible to the persons sitting in the courtroom of 1st Additional Sessions Judge, 3rd Additional Sessions Judge, 4th Additional Sessions Judge, counters of District Court, Nazarat Office, Office of COC and CCD Counter. The staff sitting in any of the three courts or in the aforesaid offices might have witnessed the occurrence. The Investigating Officer - R.K. Bajpai [PW-22] stated that he did not make any enquiry from the employees who were attached to the court of 1st and 4th Additional Sessions Judges, CCD Counter and to the offices of CDC Counter, Nazarat Office, COC Office or any other 4th Grade employees who were supposed to remain present. It appears from his evidence that the statements of advocates and advocates' clerks were also not recorded 7 during the course of investigation. It further appears that during the course of investigation statements of K. Rajamma Kurup [Reader] and Ram Chandra [Adeshik Lekhak], who were attached to the court of 3rd Additional Sessions Judge, were recorded by the police, but curiously enough, they have not been examined as witnesses in the present case. The aforesaid persons could have been independent witnesses in support of the prosecution case but, for reasons best known to the prosecution, they have been withheld. In the present case the informant, Munne Painter, who has been examined as PW-1 and according to the FIR was an eyewitness to the alleged occurrence did not support the prosecution case, as such declared hostile. According to the prosecution case Majhar [PW-2], Badshah [PW-3], Sadik [PW-4], Sajid [PW-5], Haseen [PW-6], Guddoo [PW-7] and Saleem [PW-8], who were also eyewitnesses to the alleged occurrence and could have been independent witnesses, did not support the prosecution case, as such also declared hostile.

14. According to prosecution, the Investigating Officer, R.K. Bajpai [PW- 22] seized one revolver belonging to appellant Mukhtiyar and two live cartridges from the house of the said appellant on disclosure statement made by him and prepared Seizure Memo [Ext. P/34]. Appellant Mukhtiyar is said to have fired at deceased Saleem Bucha and the bullet recovered from his dead body by the doctor [PW-13] was marked as article `J' and sent to Forensic Science Laboratory [for short `FSL'] where it was marked as article `EB-5', though the revolver said to have been recovered from the possession of appellant Mukhtiyar, for the reasons best known to the prosecution, was never 10 sent to the FSL. PW-22 is said to have recovered a country made revolver from one Saleem Kela also which was marked as article `K' and sent to the FSL where it was marked as article `A-2'. The report of the FSL [Ext.-40] shows that the bullet article `J' which was recovered from the dead body of Saleem Bucha and marked by the FSL as article `EB-5' was fired from the country made revolver [article `A-2'] which was seized from the possession of Saleem Kela. This finding of the FSL gives a death blow to the prosecution case that appellant Mukhtiyar fired at the deceased Saleem Bucha by his country made revolver causing injury to him.

19. All the eight appellants viz., Munne Painter, Mazhar, Badshah, Sadiq, Sajid, Haseen, Guddu and Saleem Kela of this appeal were tried in Sessions Trial No. 383 / 1996 and were acquitted by trial court of all the charges. Against the order of acquittal the State of Madhya Pradesh filed an appeal before the High Court which reversed the same and convicted the appellants under Section 302 / 149, IPC and 13 sentenced them to undergo imprisonment for life and pay fine of Rs. 50,000/- each, in default to undergo further rigorous imprisonment for a period of three years. They were further convicted under Section 147, IPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 10,000/- each, in default to undergo further rigorous imprisonment for a period of six months. They were also convicted under Section 148, IPC and sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 10,000/- each, in default to undergo further rigorous imprisonment for a period of six months. All the sentences, however, have been ordered to run concurrently.

20. Prosecution case in short was that Rajiulla, who was a practising advocate in Bhopal Court, arrived as usual, court premises at 11 A.M. on 10.07.1996 which was the date fixed in Sessions Trial No. 379 / 1995 in the Court of the 3rd Additional Sessions Judge, Bhopal for evidence. In the said case Mukhtiyar, nephew of Rajiulla and his associates, viz., Asif and Sheru were made accused under Section 307, IPC. Asif, Sheru and his friend, red shirt boy came to court premises and they were in the gallery in front of the court of 3rd Additional Sessions Judge at about 12 noon. Rajiulla, along with his Senior Advocate Shri Jagdish Gupta and typist Asif Bundella, came to the court of the 3rd Additional Sessions Judge with an application for dispensing with the personal appearance of Mukhtiyar who didn't come to court because he was apprehending danger to his life and filed the same. Seeing Rajiulla, out of the eleven accused persons, viz., 14 appellants Munne Painter, Majhar, Saleem Kela, Badshah, Sadiq, Sajid, Guddu, Haseen and accused Saleem Baba [since deceased], Saleem Bucha [since deceased] and Assu Bambaiya [absconding], who were there in the gallery outside the courtroom of the 3rd Additional Sessions Judge, appellants Munne Painter and Majhar said that as Mukhtiyar was not coming to court on that day his uncle Rajiulla and his associates Asif, Sheru and friend red shirt boy should be done to death. Upon this, appellant Saleem Kela started firing from his revolver whereas other accused persons who were armed with knives pounced upon the red shirt boy and caused knife injuries to him. Appellant Saleem Kela fired at Rajiulla, but he could save himself by lying down on the floor. After the assault, appellant Munne Painter and Majhar exhorted that the red shirt boy should not remain alive, upon which, appellants Saleem Kela, Badshah, Sajid, Guddu and accused Assu Bambaiya lifted the red shirt boy and threw him from the first floor of the court building to its ground floor, as a result of which, he died instantaneously. It is further case of prosecution that Rajiulla fled away from the gallery to save his life and all the aforesaid eleven accused persons took to their heels. Stating the aforesaid facts, Rajiulla submitted a written report at the police station on the basis of which FIR No. 411 of 1996 was drawn up at 1.35 pm on the same day for prosecution of the aforesaid eleven accused persons, which includes eight appellants of the present appeal.

25. Presiding Officer of the trial court after recording of evidence thought it fit to inspect the place of occurrence which is court premises in presence of Special Public Prosecutor and learned counsel appearing on behalf of accused persons of both the cases, i.e., case and counter case and prepared a map of the site, i.e., the gallery outside the court of the 3rd Additional Sessions Judge where occurrence in both the cases is said to have taken place, which place was visible to the persons sitting in the court of 1st Additional Sessions Judge, 3rd Additional Sessions Judge, 4th Additional District Judge, CDC and CCD counters of District Court, Nazarat Office and Office of COC. The staff sitting in any of the aforesaid courts or in any of the said offices who could have been best witnesses in support of the prosecution case have been withheld by the prosecution for the reasons best known to it. That apart, neither any advocate nor any advocate's clerk, who could have been independent witnesses in support of the prosecution case have been examined. In the present case, Rajiulla, who was the informant and examined as PW-1, and, according to the FIR, was an eyewitness to the alleged occurrence, did 17 not support the prosecution case and accordingly was declared hostile. Prosecution witnesses Sheru [PW-3], Asif [PW-4] and Mukhtiyar [PW-9], who were also eyewitnesses to the occurrence, did not support the prosecution case and as such they were also declared hostile. These four eyewitnesses, who were independent persons in support of the prosecution case, have not supported the same.

17. In view of the fact that the prosecution case is not supported by medical evidence, the report of FSL, the fact that PW-24, who knew the accused persons from before, did not find any of them amongst the persons, who were fleeing away through the stairs of the court immediately after the occurrence, PWs 1 to 8, including the informant, who were independent persons having not supported the 12 prosecution case, no steps whatsoever were taken by the prosecution to examine in court, the Reader and Adeshik Lekhak of the court of 3rd Additional Sessions Judge, though they were examined by the police during the course of investigation, the investigating officer

34. In view of the foregoing discussion, we are of the view that it would not be safe to place reliance upon the evidence of PWs 2, 5, 7, 8, 15 and 19 and, accordingly, we hold that the prosecution has failed to prove its case beyond reasonable doubt and the High Court was not justified in reversing the judgment of acquittal as the view taken by the trial court was reasonable one and the same could not be said to be perverse in any manner.

36. In the result, all the three appeals are allowed, the impugned common Judgment of conviction rendered by the High Court is set aside and the judgments of acquittal passed by the trial court are restored. The appellants, who are in custody, are directed to be released forthwith if not required in connection with any other case.