Akbar and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.

In the instant case, on 11th of June, 2004 at around 08:00 A.M. in the revenue estate of Mauja-Ratakhurd, appellant, Akbar, along with his co-accused, namely Shafi Mohammad @ Sappa had fired shots from the gun, resulting into death of Jakir and Yakub. Furthermore, appellant, Kamruddin @ Kamma armed with farsi had caused injury to Liyakat (PW-3), whereas, appellant, Sarajuddin @ Pucha armed with lathi had caused injury to Chander (PW-4).

The Court of Additional District and Sessions Judge (Fast Track), Kishangarhbas, Alwar, vide its impugned judgment dated 30.11.2005, substantively, held appellant, Akbar, guilty for offence punishable under Section 302 of Indian Penal Code.

The trial Court has not invoked Section 149 I.P.C., or Section 34 I.P.C., qua appellants, namely Kamruddin @ Kamma and Sarajuddin @ Pucha.

Therefore, the trial Court, substantively, convicted appellant, Kamruddin @ Kamma only for offence punishable under Section 324 I.P.C. and appellant, Sarajuddin @ Pucha for offence punishable under Section 323 I.P.C.

In the present case, three co-accused of the appellants, namely (i) Shafi Mohammad @ Sappa, (iii) Rasid @ Kanchi and (iii) Smt. Bashiri were acquitted by the trial Court.

The trial Court, having convicted the appellants for the above said offences, vide a separate order of even date, sentenced them as under:--

"Accused-appellant : Akbar

For offence under Section 302 I.P.C. to undergo life imprisonment and to pay a fine of Rs. 5000/-. In default of payment of fine to further undergo one month simple imprisonment.

Accused-appellant : Kamruddin @ Kamma

For offence under Section 324 I.P.C. to undergo three years rigorous imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo one month simple imprisonment.

Accused-appellant : Sarajuddin @ Pucha

For offence under Section 323 I.P.C. to undergo one year rigorous imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo one month simple imprisonment."

(All the sentences were ordered to run concurrently)."

Aggrieved against their conviction pronounced and sentence awarded by the trial Court, present appellants, namely (i) Akbar, (ii) Kamruddin @ Kamma and (iii) Sarajuddin @ Pucha have preferred this appeal, under Section 374 (2) of Code of Criminal Procedure, 1973, before this Court.

It is required to be noticed that in the written-report (Exhibit-P/6), complainant, Sharif (PW-8) had named as many as seventeen persons as accused.

The Investigating Officer, after a thorough investigation, had submitted charge-sheet against six accused-persons, namely (i) Akbar, (ii) Shafi Mohammad @ Sappa, (iii) Kamruddin @ Kamma, (iv) Sarajuddin @ Pucha, (v) Rasid @ Kanchi and (vi) Smt. Bashiri, respectively.

As stated earlier, out of six accused, three accused were acquitted, and three appellants have been convicted and sentenced in the manner, as mentioned herein above by us.

The complainant, Sharif (PW-8), presented written-report (Exhibit-P/6) before Kailash Chand (PW-18), who was then posted as In-charge, Police Station, Kherthal.

Kailash Chand (PW-18) stated that on 11.06.2004 at about 01:30 P.M., being In-charge, he was present at Police Station, Kherthal. Sharif s/o Yakub had presented written-report (Exhibiti-P/6) before him.

Rajendra Singh (PW-25) stated that on 11.06.2004 at about 10:50 A.M. he received a telephonic information that dispute has arisen between Yakub Khan and Kalla and shots have been fired, therefore, he should immediately reach at spot. Upon this, he being Station House Officer, proceeded along with the Police Party to Village Ratakhurd. On arrival at the spot, he saw that two dead-bodies were lying, having received firearm injuries. He made relevant entries in the ''rojnamcha'' and has placed on record Daily Diary Register (Exhibit-P/37).

It is to be noted here that Kailash Chand (PW-18) was manning the Police Station in absence of Rajendra Singh (PW-25), Station House Officer, Police Station, Kherthal, as he had proceeded to the spot.

In the written-report (Exhibit-P/6), the complainant, Sharif (PW-8) stated that in the morning at 08:00 A.M. they had gone to cultivate their filed. On their arrival to cultivate field, with the common intention and consultation, accused, Sappa, Rasid, Fakru, Arsad s/o Phoolu, Akbar, Pucha, Kamma sons of Ibrahim @ Kalla, Memam w/o Sappa, Sammu w/o Rasid, Farri w/o Fakru, Jarina w/o Sahabddin, Subina w/o Akar, Rasiya w/o Kamma, Janna w/o. Isaq, Isaq s/o Billu, Basiri w/o Kalla and Subani w/o Phulu armed with guns, farsi and lathies came and immediately, Akbar s/o Ibrahim fired shot from the gun, which hit his father Yakub. The second shot was fired by Sappa s/o Phoolu, which hit his brother, Jakir, who died at the spot. Sappa and Rasid sons of Phoolu were with guns. Akbar was also armed with gun. After causing fire shot injuries to Yakub and Jakir, they were loading third cartridge for firing shot on the complainant. The complainant saved himself. Thereafter, gun of Akbar was taken by Rasid. He fired shots at other family members of the complainant. They suffered firearm injuries. The above said accused, Kamma and Pucha, after taking gun from their brother, Akbar, were also firing shots at the family members of the complainant. The family members of the complainant were caused injuries by lathis and farsi. The complainant, in order to save himself, climbed on the hill. They followed him upto hill. Chander s/o, unknown and Rakmu s/o Chander, who have cultivating field of the complainant with tractor, had seen the occurrence.

Dr. Mahendra Kumar Sharma (PW-1) on 11.06.2004 was posted as Medical Officer at Government Hospital, Khairthal. He had conducted autopsy on the dead-body of Yakub. As per Post Mortem Report (Exhibit-P/1), he had found the following injuries on the person of Yakub:--

"1. "The entrance wound of firearm:- There is a lacerated punctured wound of size 4 cm x 4 cm on the right para-sternal border (1" lateral to the para-sternal border), between 5th and 6th ribs. The margin of the wound is abraded with grease on the surroundings. On dissection of the wound, the wound was passing posteriorly and laterally. The wound dept is 5 cm then diverted in three roots about 1 1/2 cm in dept. the middle lobe is injured and lot of blood (about 1000 ml) is present in right thoracic cavity. The pieces (three metallic) of bullet are taken out and put in the vial, sealed and handed over to the Police. There is no any exit wound. The tissues surrounding the wound are stained.

There is circular wound of size 2 cm x 2cm in size and skin and subcutaneous tissue depth with slight pithing on frontal bone at the site of the wound. The margins are abraded and have grease at margins. The wound is due to the firearm.

All the above injuries are ante-mortem in nature."

As per opinion of the Medical Board, the cause of death of Yakub was shock, due to injury on the right lung, which was sufficient to cause death in the ordinary course of nature.

On the same day, Dr. Mahendra Kumar Sharma (PW-1) had also conducted autopsy on the dead-body of Jakir. As per Post Mortem Report (Exhibit-P/2), he had noted the following injuries on the person of Jakir.

"1. Entrance wound of firearm : There is a lacerated punctured wound on the left side of abdomen (anterolaterally just below 10th rib in the anterior axillary line of size 2 cm x 2 cm with abraded margins and grease at margins. In the surrounding area to this wound, there is tattooing burning due to firearm powder and blackening around the wound is present in the surrounding area about 18cm x 18 cm in the form of about sixty circular dots about 1 cm in diameter. On dissection of the wound, the direction of the wound is backwards and medically towards interior of the body about 6 cm in depth, severing the stomach along the greater curvature and its mucous membrane at this site and reaching upto the spleen which is injured due to bullet (metal piece) wound spleen (size 6cm x 2 1/2 cm). There is about 1500 ml of blood in the peritoneal cavity. The pellet is removed from the peritoneal near spleen. There is no wound of exit the tissues surrounding the wound are stained. The injury is antemortem in nature. The piece of bullet is taken out and put in the vial sealed and handed over to the Police (P.S. Khairthal) to be sent to F.S.L. Rajasthan."

As per opinion of the Medical Board, the cause of death of Jakir was shock, due to injury to spleen, which was sufficient to cause death in the ordinary course of nature.

On the very same day also, Dr. Mahendra Kumar Sharma (PW-1) had examined Liyakat (PW-3). As per Injury Report (Exhibit-P/3), he had found the following injuries on the person of Liyakat (PW-3):--

"1. Incised wound with dry red clot of blood 2 cm x 1/2 cm x bone deep. Left cheek prominence vertically placed."

On 11.06.2004 Dr. Mahendra Kumar Sharma (PW-1) had also examined Chander (PW-4), and as per Injury Report (Exhibit-P/4), he had found the following injuries on the person of Chander (PW-4):--

"1 1/2" linear stitched (3 stitches with black thread) wound, transversely placed behind left parietal eminence."

Dr. Babu Lal (PW-2) stated that he was a Member of the Medical Board, which had conducted autopsy on the dead-bodies of Yakub and Jakir.

Liyakat (PW-3), being injured eye-witness, in the Court, stated that a year ago, in the morning at about 08:00 A.M. they had gone to cultivate their field. The tractor was of Chander (PW-4), who is resident of Kakrali and is their relative. The tractor was driven by Rakmu, who is brother of his wife. When they were cultivating the field, Sappa came and said not to cultivate field. His father Yakub said that field belongs to them and they will cultivate the same. Sappa had gone to his Well. Meanwhile, Akbar, Kammu, Pucha and Bashiri etc. came. Akbar was armed with gun. Kamma was armed with farsi. Pucha was armed with lathi. Akbar fired shot, which hit in the chest of his father Yakub. Then, he fired another shot at Jakir, which hit on his abdomen. Yakub and Jakir died at the spot. Kamma caused farsi blow on the cheek of Liyakat. Pucha caused lathi blow on the head of Chander (PW-4). Kamma and Akbar armed with gun followed Sharif in order to kill him. Sharif went up to hill. Later-on, as to who caused injuries to whom, is not in his knowledge. Nobody intervened to save. Yakub and Jakir died, due to gun shot injury. Liyakat and Chander received injuries. The fight had ensued due to land dispute.

In cross-examination, this witness stated that the dispute has arisen between the parties over a land. This witness was confronted with his previous statement recorded by the Police.

To similar effect is the statement given by Chander (PW-4).

Rukbuddin (PW-5), non-injured eye-witness. Saddiq (PW-6), Fakruddin (PW-7) and Sharif (PW-8) have reiterated the prosecution version that due to shot fired by Akbar accused, Yakub and Jakir had died. Liyakat (PW-3) and Chander (PW-4) had received injuries.

We need not notice the evidence of the remaining witnesses, who had participated in the investigation, to prove the arrest of accused, recovery effected from them, the site-plan of the place of occurrence and the site-plan of the spot from where weapons were recovered.

Suffice it to say, prosecution, in all, had examined twenty-five witnesses and placed on record forty-five documents as Exhibit-P/1 to Exhibit-P/45.

Thereafter, prosecution closed its evidence.

The statement of accused were recorded under Section 313 of Code of Criminal Procedure, 1973. They denied all the incriminating evidence put to them and pleaded innocence.

In defence, accused had examined Liyakat (DW-1), Rakmuddin (DW-2), Sadik Khan (DW-3) and Fakhruddin (DW-4) respectively.

In nut-shell, the prosecution case, which has emerged in the testimony of witnesses, is that the complainant party had gone to cultivate their field. They were attacked by six accused. Akbar had fired shot, due to which Yakub and Jakir, father and son died. Injury was caused to Liyakat, another son of Yakub, and Chander, who had brought tractor for cultivating agricultural field.

Mr. S.S. Hasan, the learned counsel appearing for the accused-appellants, has submitted that the prosecution version stated by the witnesses is not truthful. It is further submitted by the learned counsel that in the written-report (Exhibit-P/6), as many as seventeen persons were named as accused.

It is contended by the learned counsel that the charge-sheet was submitted only against six accused, and, in the Court, the witnesses had confined active role to only three persons, namely, Akbar, Kamruddin @ Kamma and Sarajuddin @ Pucha. It is further contended by the learned counsel that in the written-report (Exhibit-P/6), it was specifically stated that Shafi Mohammad @ Sappa had also fired shot, as a result thereof Jakir had died. In the Court, the witnesses had departed from their Police version, and the injury attributed to Shafi Mohammad @ Sappa has also been attributed to Akbar.

So far as Akbar, appellant is concerned, the witnesses, in the Court, are consistent.

In the written-report (Exhibit-P/6), it was also stated that the shot fired by Akbar had hit Yakub.

In the Court, the witnesses, had taken version that both, Yakub and Jakir had received gun shot injury each by the hand of Akbar.

So far as appellant - Akbar is concerned, Injury Report regarding gun shot injury caused to Yakub is corroborated by medical evidence. Thus, the witnesses have not made any deviation from the Police version. Liyakat (PW-3) and Chander (PW-4) have received injuries in the occurrence. They have specifically named Akbar as the one, who had fired shot, as a result thereof Yakub and Jakir had died.

Therefore, we can place implicit reliance upon the testimony of Liyakat (PW-3) and Chander (PW-4) respectively.

The argument advanced by the learned counsel appearing for the accused-appellants is that because of injury attributed to Chander (PW-4), which is now also attributed to Akbar, we should discard the entire prosecution version is not acceptable. Furthermore, Falsus-uno-falsus-omnibus is not available to the Indian Courts. We shall intend to believe injured witnesses, and furthermore, so far as injury caused by Akbar to Yakub is concerned, there is no doubt.

Consequently, the sole argument advanced by the learned counsel appearing for the accused-appellants that the witnesses are not truthful, therefore, the same should be disbelieved, is rejected, being devoid of merit.

In alternative, the learned counsel appearing for the accused-appellant, has submitted that the occurrence, in the present case, has taken place on 11.06.2004 and the appellants Kamruddin @ Kamma and Sarajuddin @ Pucha are in the corridors of the Court for more than one decades.

There is merit in the arguments advanced by the learned counsel appearing for the accused-appellants.

In the present case, appellants, Kamruddin @ Kamma and Sarajuddin @ Pucha had suffered protracted trial for a period of eleven-years, considering the agony and pain of a protracted trial, we are of the view that their sentence can be reduced.

We are of the view that no useful purpose will be served by sending the appellant, Kamruddin @ Kamma behind the bars who has served sentence of seven months, out of total sentence of three years rigorous imprisonment awarded under Section 324 I.P.C. and appellant, Sarajuddin @ Pucha has also served sentence of seven months, out of total sentence of one year rigorous imprisonment awarded under Section 323 I.P.C.

As per the record and submissions made by the learned counsel appearing for the accused-appellants, both the appellants, Kamruddin @ Kamma and Sarajuddin @ Pucha, have undergone seven months sentence, therefore, we reduce their sentence to the period of seven-months, period already undergone by them.

With the above modification, qua the reduction of sentence of appellants, Kamruddin @ Kamma and Sarajuddin @ Pucha, the present appeal is disposed of, qua them.

However, we find no merit, so far as appeal of Akbar is concerned, and the same is, hereby, dismissed, while affirming his conviction pronounced and sentence awarded to him for offence under Section 302 I.P.C. by the trial Court.