Mehmood Qureshi @ Dabbi And Others vs State Of Madhya Pradesh

Devnarayan Mishra, J

T his Criminal Appeal has been preferred being aggrieved with the judgment and conviction passed by the First Additional Sessions Judge, Harda in Sessions Case No. 32/2008 dated 24-03-2009 by which the appellants have been convicted for the offence punishable under Sections 452, 323 r/w Section 34 and under Section 506 (2) of IPC and sentenced to undergo RI for 1 year and fine of Rs. 2500/-, RI for six months and fine of Rs. 1000/- and RI for 1 year and fine of Rs. 2500/- respectively with default stipulations.

The appellant No. 3-Hameed Qureshi @ Babbi has expired on 14-05-2010 and hence, his appeal abate.

3 . The prosecution case before the trial Court was that on 18-11-2007, the Claimant- Hamid Pahalwan was at his home and at that time, the appellants with the deceased co-accused entered into his home carrying a sword, knife, lathi and rod and stated that his son Zahid has committed an accident and started beating him by lathi, rod, knife and sword and as a result of which, he sustained the injuries. The report was lodged at police station Harda as Crime No. 707/2007 under Sections 458, 324, 323 and 506/34 of IPC. The victim was medically examined. The spot map was prepared. After completion of investigation, the charge-sheet was filed before the Chief Judicial Magistrate, Harda and upon committal of the case, sent for trial before the trial Court.

The Trial Court framed charges under Section 458, 506 and 307/34 of IPC. The accused persons abjured the guilt and pleaded for trial. The prosecution evidence was recorded. The appellants were examined under Section 313 of Cr.P.C The appellants have taken a defence that they have been falsely implicated in this case and they have not examined any defence witnesses on their behalf.

The trial Court after hearing the learned counsel for the parties, passed the impugned judgment has acquitted the appellants for offence punishable under Section 458, 307 of IPC but, convicted the appellant for the offence as stated in paragraph-1 of the judgment hence, this appeal.

Learned counsel for the appellants has submitted that the learned Trial Court has grossly committed any mistake in convicting the appellants for the above offences. From the prosecution story itself, it appears that the appellants were falsely implicated under Section 307 of IPC and that was not proved, which itself shows that the complainant was in the habit of false implication of the accused persons. There were lot of contradictions and omissions in the statement of the witnesses though, the weapons were not produced before the Trial Court but, the Trial Court convicted the appellants. Hence, the appeal be allowed and the appellants be acquitted of the charges.

Learned counsel for the appellants has submitted that the Trial Court has not considered the fact that on the same day, a counter FIR was lodged against the complainant with the FIR 708/2007 under Sections 294, 323 and 506 of IPC which was registered against Hameed (PW-1) and two other persons of his family but, the trial Court has not considered the evidence in proper perspective.

8 . Learned counsel for the appellants has further submitted that the appellants are facing trial since 2009 and the appellants have no previous criminal antecedents and they have incurred liabilities hence, if the conviction is maintained, the appellants be sentenced to the imprisonment already undergone or the fine amount be enhanced.

9 . Now the question for determination is that whether the appellants in furtherance of common intention has committed house trespass with preparation for causing hurt, assault or wrongful restrainment and in furtherance of common intention, the appellants have voluntarily caused hurt to the victim-Hameed?

Whether the appellants have threatened and by that created criminal intimidation to the victim?

11 . On the point of determination No.1, the victim- Mohd. Hameed (PW-1) has stated that he is acquainted with the appellants. On the date of incident, it was about 8-8.15 PM, he was in his home. The appellants/accused persons came shouting that his son Zahid has committed an incident and accused persons have entered into his home and started beating him. The accused persons were having sword and the accused Mehmood @ Dabbi assaulted with sword, accused Mehboob Qureshi assaulted with rod, deceased appellant Babbi assaulted with hockey and the accused Pappu Qureshi assaulted him with lathi and started abusing and stated that they will kill the complainant. Wahida (PW-2) came and asked why the accused persons were assaulting her husband. At that time, Mohd. Sarfaraz (PW-3) and Amin (PW-4) came there and intervened the matter and pushed the accused persons out of home. The appellants while going away from the spot were abusing and threatening. He has lodged an FIR. After the preliminary treatment, he was sent for further treatment to Bhopal and he was admitted in Hamidia Hospital for two days and after treatment, he was discharged.

Witness Wahida Bano (PW-2) has clearly stated that the accused persons came into his home stating that Zahid has committed the incident on that her husband has told that Zahid has not returned home and on that the accused persons started beating her husband. Sarfaraz (PW-3) and Amin (PW- 4) intervened the matter and on that the accused persons returned to their homes threatening the complainant.

13 . The witness Safaraz (PW-3) has supported the fact that the appellants were involved in the incident.When he reached the spot, he saw the crowd and the accused persons were present there and they have assaulted Hameed (PW-1) and blood was oozing from the head of Hameed. He saw the appellants running away from the complainant home but, he did not saw the appellants beating the complainant. He has also supported the fact that he brought the injured Hameed to Hospital and after treatment he was referred to Bhopal and in the cross-examination by the prosecution, he has denied that when he reached on the spot, he saw that the accused persons were assaulting the complainant and this witness has not been cross-examined on the point that he saw the appellants running away from home and Hameed was injured.

Thus, from the statement of this witness it is clear that he reached on the spot after the incident has taken place and the appellants were returning to their home and complainant was in the injured condition. The witness Mohd. Amin (PW-4) has also stated that when he was going towards the spot, he saw that the appellants were present on the spot and the complainant was lying in his home in unconscious condition and blood was oozing out from his head. He also further stated that the accused Dabbi was having a sword and other persons were having lathi, rod and hockey and when they reached the spot, Dabbi was standing there and other accused persons were assaulting the victim.

Dr. G.S.Kushwaha (PW-5) treated the injured on the same day i.e. o n 18-11-2007, who found injuries over the head and thigh legs, and he has further stated that the injuries were prior to 4 hours of the time of examination. The complainant was examined and x-ray was done but, as per x-ray report Ex.P/7, no fracture of bone was found. The doctor has also clearly stated that all the injuries suffered by the complainant was caused by hard and blunt object and no injury was caused by sharp edged weapon.

As per the statement of Arun Singh (PW-8), the FIR was lodged on the same day i.e. 18-11-2007 at 9:00 PM after 1/2 hour of the incident and the accused persons were named and the statements of the victim is further supported by the medical evidence.Thus, it is clear that the appellants/accused persons entered into the house of complainant and assaulted causing injury to the complainant but, the statements of the witnesses that the appellant Dabbi was having a sword in his hand and he used the sword is not supported by the medical evidence. As per seizure memo E.P/13, only a strip of iron has been recovered from the possession of the appellant No. 1-Mehmood Qureshi @ Dabbi and knife has been recovered from the possession of the appellant-Mehboob and a bamboo stick has been recovered from deceased appellant-Hameed @ Babbi and a 'Taki' is recovered from the possession of the appellant-Khurshid.

The injuries sustained by the victim is doubtful that the appellant No. 1 was carrying a sword or iron strip and Mahmood Qureshi a knife and from the situation, it is probable that the incident happened with the family members of the appellant as per the FIR No. 708/07 on the same day and they reached to the complainant home and a quarrel has taken place and they entered into the house of the complainant and on that they assaulted the complainant. Thus, it is clear that the intention to commit the offence punishable with imprisonment, the appellants trespassed into the house of the complainant but, they were armed with weapons, it cannot be inferred beyond reasonable doubt. Thus, it is not proved that the appellants with preparation for causing hurt has trespassed the house of the victim.

Thus, the trial Court has convicted the appellants under Section 506 o f IPC. From the statement of the witnesses, as per the statement of Mohd. Hameed, when they were returning to their home, they were uttering the abuses and threatening but, the witnesses has not clarified what they were stating. In the same way, Wahida Bano (PW-2) has stated that the accused persons were threatening that they will kill the complainant. The witness Sarfaraz (PW-3) states that he saw the accused persons and they were 50 feets away from the spot but, this witness has not stated regarding threatening or uttering of abuses. Amin (PW-4) has stated that while the accused persons were returning they were threatening that they will kill the complainant. On this point, in the FIR, it has been stated that the appellants threatened to kill him while running away from the spot but, nowhere from the statement of the witnesses, it appears that the complainant was intimidated by the act of the accused persons. Furthermore, in this case, it is noteworthy that on the material point, the complainant (PW-1), Wahida Bano (PW-2) and Amin (PW-4) has exaggerated the incident and have stated that sharp edged weapon a sword was used but, that is not supported by the medical evidence and offence of threatening which involves only oral statement and in that case, it is clear from the cross-examination of (PW-1) that Sarfaraz on the report of the appellant's sister, a case was also registered against the witness Mohd. Hameed and the case was pending and in that situation, only on the statement of the interested witnesses, the appellants would not have been convicted under Section 506 of IPC. The trial Court has not discussed the facts and ingredients of offence on this point.

19 . Thus, from the above discussion, the offence punishable under Section 452 and 506 is not proved. The offence punishable under Sections 451, 323 is proved against the appellants hence, the appellants are being acquitted for the offence punishable under Section 506 and conviction under Section and 452 is modified and the appellants are convicted for the offence punishable under Section 451, they are converted accordingly.

Considered on the point of punishment.

21 . In this case, it is clear that the complainant has also assaulted the family members of the appellants and the incident has taken place in 2009 and no criminal antecedents of the appellants was brought before the trial Court or this Court.

22 . Looking to the facts and circumstances of the offence, the jjail sentence of the appellants imposed by the trial Court is reduced to till rising of the court and the fine amount imposed by the trial Court to each of the appellant for the offence punishable under Section 451 of IPC is enhanced from Rs. 2500/- to Rs. 5,000/-.

The fine amount with regard to offence punishable under Section 323 of IPC is affirmed. Thus, each of the appellant is liable to deposit Rs. 6,000/- of fine amount and as per the order of the trial Court they have already deposited the fine amount of Rs. 6,000/- and if not already deposited, the fine amount shall be deposited within three months from today and if fine amount is not deposited then, they shall undergo simple imprisonment of 03 months and 01 month consecutively for each default. If the fine amount being deposited, Rs. 10,000/- shall be paid to complainant-Hameed s/o- Sheikh Daud, R/o- Jatrapada Manpura Harda as a compensation amount.

24 . The appellants shall appear before the trial Court to serve the sentence of till rising of the court within one month after receipt of the copy of the judgment. If they themselves does not surrender before the court, the trial Court shall execute the sentence by issuing notices and if required arrest warrant.

The order of the trial Court regarding the case property is affirmed.

With the above modification, the appeal is partly allowed.