Harun and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.

Shorab (P.W.4) submitted a written report (Ex. P.9) before Ashok Chauhan (P.W.17) who was then posted as SHO, Police Station Kishangarhbas. The written report (Ex. P.9) when translated into English, reads as under:--

"To,

The SHO Sahib, Police Station Kishangarhbas (Alwar).

Sub.: Report.

Sir,

It is submitted that I Shorab is a resident of village Odra, Tehsil Kishangarhbas. I am residing alongwith my family in a house constructed in the fields. Today on 2.10.2003 at about 8.00 AM, Israil, Islam, Samsu sons of Sufeda, Haneef, Fajjar, Ashraf sons of Dhupla, Harun S/o. Dhupla, Hakku S/o. Samsu, Umardeen S/o. Ashraf, caste Mew, r/o. Odra with a common intention to commit murder, came at our house. They trespassed into our house and caused injuries with lathies to my father Rustam. I came forward to save my father. In order to kill me, Islam gave a Farsi blow on my head. Israil also caused injury to me with lathi. My mother raised noise ''Bachao-Bachao''. She was also caused injuries by Harun and Haneef with lathies. She suffered injuries on her hand. All caused injuries to my father. Thereafter accused ran away taking lathies and Jaili. Blood was oozing out from ears of my father. Blood was also coming out from my head injury. My and my father''s condition became precarious. We were milking milk. They trespassed into our house and gave beating to us. They were armed with lathies and jailies. I have suffered injuries caused by accused on my shoulder and waist with lathies. Therefore, it is requested that case be registered and legal action be taken and lathies and jailies be got recovered from the accused.

Sd/-"

In the present case, Rustam father of Shorab (P.W.4) had expired. Shorab (P.W.4) and his mother Atari (P.W.5) had received injuries in the occurrence.

Dr. Ramesh Malawat (P.W.1) on 2.10.2003 being posted as Medical Officer had examined Shorab (P.W.4) and as per injury report (Ex. P.1) had found following injuries on his person:--

"1. An bruise with swelling 1/2 x 1/2 cm on right lower 1/3 of forearm.

An lacerated wound 2 x 1/2 x 1/4 cm with blood on right parietal region of skull.

An bruise 2 x 2 cm with reddish in colour on left above shoulder.

An abrasion 1/2 x 1/2 cm with reddish on lumber region."

Injury No. 1 was later declared as grievous.

Smt. Atari (P.W.5) as per injury report (Ex. P.2) received following injuries:--

"1. An swelling 2 x 1 cm on left elbow posterior.

An abrasion 1/2 x 1/2 cm with reddish on lower 1/3 on right wrist.

Complained of pain on left gluteal region."

Injuries on the person of Atari Devi (P.W.5) were declared simple.

Dr. Ravi Mathur (P.W.2) stated that he conducted radiological examination of Shorab and had found fracture of right forearm.

Dr. P.K. Saini (P.W.20) stated that on 3.10.2003 being posted as Medical Jurist at SMS Hospital, Jaipur he had examined Rustam, aged 65 years and as per injury statement (Ex. P.53) he had found following injuries on the person of Rustam:--

"1. Post operation bandage present over scalp with drainage tube present.

Abrasion of size 1 x 0.8 cm with reddish scar present on right shoulder part.

Abrasion of size 1.5 x 1 cm with reddish scar on back of chest right side M/3.

Abrasion of size 3 x 2.4 cm with reddish mark present on right calf.

Abrasion of size 5.5 x 1 cm with reddish scar present on left leg M/3 antero medially."

A perusal of injuries reveals that injury No. 1 was post operational wound. Injuries No. 2 to 5 were minor abrasion on non-vital parts of the body and were found simple. On 8.10.2003 at 0.45 AM Rustam died and his post-mortem was conducted.

Shorab (P.W.4) in court stated that Israil, Islam, Samsu, Hakku, Ashraf, Fajjar, Harun, Haneef and Umardeen they all came. They started giving blows to his father.

Atari (P.W.5) stated in court that Israil caused injury on the head of Rustam. She further stated that all the accused also gave injuries on the head of Rustam.

Shakuna (P.W.7) daughter-in-law of the deceased stated that Israil caused an injury on the head of her father-in-law Rustam.

Mohammada @ Azad (P.W.6) also stated that first blow was given by Israil on the head of his father.

The Additional Sessions Judge (Fast Track) Kishangarhbas vide impugned judgment dated 4.3.2006 considering that solitary fatal injury on the head of deceased Rustam is attributed to Israil, substantively convicted him for offence under Section 302 IPC and also convicted him for offences under Sections 148, 323 IPC. Holding that remaining accused had only intention to cause simple injuries, the trial court convicted them for offences under Sections 148 and 323 IPC. The trial court also considering that fatal injury is attributed to Israil, and others had caused simple injuries in the occurrence, acquitted all other accused except Israil so far as offence under Section 302/149 IPC is concerned. The learned trial court also acquitted all the accused-appellants for offences under Sections 452, 325, 325/149 IPC. The trial court having convicted the appellants for above said offences, vide a separate order of even date sentenced the appellants as under:--

Appellant, Israil

U/s. 302 IPC: Life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo one month simple imprisonment.

U/s. 148 IPC: Three years rigorous imprisonment, to pay a fine of Rs. 2000/- and in default thereof to undergo one month simple imprisonment.

U/s. 323 IPC: One year rigorous imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo one month simple imprisonment.

Appellants, Harun, Haneef, Islam, Umardeen, Samsu, Fajjar, Hakku @ Hakmudeen, Asraf

U/s. 148 IPC: Three years rigorous imprisonment, to pay a fine of Rs. 2000/- and in default thereof to undergo one month simple imprisonment.

U/s. 323 IPC: One year rigorous imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo one month simple imprisonment.

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

Aggrieved against the conviction and sentence, the accused-appellants filed D.B. Criminal Appeal No. 280/2006. Whereas, aggrieved against the acquittal of Harun, Haneef, Islam, Umardeen, Samsu, Fajjar, Hakku @ Hakmudeen and Asraf for offence under Section 302/149 IPC, State of Rajasthan has also filed D.B. Criminal Appeal No. 117/2007.

In Cr. Appeal No. 280/2006, application No. 4346 dated 19.3.2015 was filed by Shri Harendra Singh, Advocate, that he may be permitted to withdraw Vakalatnama on behalf of Israil as he has died in Jail while undergoing his sentence. In Cr. Appeal No. 117/2007 application No. 14946 dated 20.12.2014 has been filed to withdraw the Vakalatnama on behalf of Harun, Haneef, Islam, Umardeen, Samsu, Fajjar, Hakku @ Hakmudeen and Asraf.

We allow both the above said applications and permit the counsel to withdraw his Vakalatnamas as Shri Rajesh Choudhary has caused appearance for accused Harun, Haneef, Islam, Umardeen, Samsu, Fajjar, Hakku @ Hakmuddin and Asraf in both the appeals.

In D.B. Criminal Appeal No. 280/2006 on 30.3.2015 noticing that Israil had died in Jail, we have passed the following order:--

"The court of Additional Sessions Judge (Fast Track), Kishangarh Bas, District Alwar, convicted and sentenced the appellant Israil s/o Sufeda Mev resident of village Odhara, P.S. Kishangarh Bas, District Alwar, substantively for the offence under Section 302 IPC and awarded life imprisonment.

An application has been filed on behalf of Mr. Harendra Sinsinwar stating therein that the appellant, Israil, who was confined in District Jail, Alwar, during the pendency of the appeal expired on 6.2.2010 in jail.

In these circumstances, we direct the learned Public Prosecutor to file an affidavit of Superintendent, District Jail, Alwar, regarding the factum of death of Israil s/o Sufeda Mev, who was then confined in jail in pursuance of the impugned judgment dated 4.3.2006, rendered by Additional Sessions Judge (Fast Track), Kishangarh Bas, District Alwar in Sessions Case No. 38/2004.

To await the affidavit of Superintendent, District Jail, Alwar, list this appeal on 3.4.2015.

A copy of this order be handed over to the learned Public Prosecutor under the hands and seal of the Court Master for onward transmission and necessary compliance."

In pursuance of the above order dated 30.3.2015, Shri Sudhir Prakash, Superintendent, District Jail, Alwar has filed affidavit. In the said affidavit, it is stated that on 6.2.2010, Israil S/o. Sufeda while serving his sentence in District Jail, Alwar died during treatment in General Hospital, Alwar. Alongwith the affidavit, copy of inquiry conducted by Judicial Magistrate, First Class, Alwar (R/1) has also been annexed.

In view of affidavit filed by the Superintendent, District Jail, Alwar, we dispose of the appeal filed by Israil having abated. The State appeal filed against him shall also abate.

Considering the appeals filed by accused is pending since 2006 and the State appeal is also pending since 2007, record has been received and paper book is complete, before issuing notice to the accused who have been acquitted for offence under Section 302/149 IPC, we have called upon the learned Public Prosecutor to address arguments as to why should we disturb the finding given by the trial court.

Not only we have heard Shri Aladeen Khan, the learned Public Prosecutor, Shri Rajesh Choudhary counsel for accused, but have also perused the record and the paper book. The trial Judge has stated that since only one injury has been caused on the head and remaining injuries were abrasion, therefore, common object of the unlawful assembly was to cause simple injuries and Israil exceeded the said object and caused fatal injury. Thus, he was convicted substantively for offence under Section 302 IPC. In the present case, there were four injuries on the person of Shorab and three injuries on the person of Atari. Injury No. 3 on the person of Atari is complaint of pain. Only one injury on the person of Shorab was declared as grievous and it was fracture of right forearm and all other injuries were simple. We find that finding of the trial court that object of unlawful assembly was not to cause murder and only Israil is responsible for causing murder calls for no interference. The trial Jude has also disbelieved sufferance of fracture by Shorab (P.W.4). In Para-20 of the impugned judgment, the trial Judge has observed as under:--

The learned trial Judge held that supplementary statement of Shorab (P.W.4) was recorded on 9.10.2003 and X-ray examination of the injury was conducted after five days on 7.10.2003 and thus, sufferance of any grievous injury by Shorab is doubtful. To fortify the above finding, the court has also relied upon the statement of Mohammada @ Azad (P.W.6), brother of Shorab, who stated that Shorab had not suffered any fracture.

The trial court has expressed a view which is possible on the facts of the case. We cannot say that the finding returned by the trial court is perverse. Since the finding of trial court is possible on the facts of the case, we will not disturb the acquittal of the accused-respondents, Harun, Haneef, Islam, Umardeen, Samsu, Fajjar, Hakku @ Hakmudeen and Asraf for offence under Sections 302/149 and 325/149 IPC.

However, considering that occurrence had taken place in 2003 and a period of more than eleven years has already lapsed and appellants have been sentenced under Section 148 IPC to three years rigorous imprisonment and for offence under Section 323 IPC to one year rigorous imprisonment, we are of the view that it will not be appropriate to send the appellants namely Harun, Haneef, Fajjar, Asraf, Islam, Samsu, Umardeen and Hakku @ Hakmuddin behind the bars after more than a decade.

Thus, we order that the appellants Harun, Haneef, Islam, Umardeen, Samsu, Fajjar, Hakku @ Hakmudeen and Asraf shall be released on probation for a period of one year. Each of the appellants shall furnish personal/surety bonds to the satisfaction of the trial court affirming that they shall during the period of probation be of good conduct and peace. We also empower the trial court to specify any other conditions which it may deem fit, to facilitate probation of the appellants for a period of one year.

Consequently, D.B. Criminal Appeal No. 280/2006 stands disposed of in terms that appeal qua Israil, appellant No. 6, stand abated and remaining appellants Harun, Haneef, Fajjar, Asraf, Islam, Samsu, Umardeen and Hakku @ Hakmuddin, appellants No. 1 to 5 and 7 to 9 respectively, shall be released on probation. D.B. Criminal Appeal No. 117/2007 filed by the State of Rajasthan is dismissed upholding findings returned by the trial court.