Samad Khan and Others vs State of Rajasthan

Nisha Gupta, J.—This appeal under Section 374(2) Cr.P.C. has been filed against the judgment dated 5.3.2004 passed by Additional Sessions Judge Aklera Distt. Jhalawar in Sessions Case No. 35/2003 whereby the appellants have been convicted and sentenced as under:

"Under Section 302/149 IPC:- to undergo life imprisonment and fine of Rs. 2000/- each. In default of payment of fine, he has to further undergo two months simple imprisonment each;

Under Section 148 IPC:- Rigorous imprisonment for two years and fine of Rs. 500/- each in default of payment of fine, one month additional S.I. Each;

(Both the sentences were ordered to run concurrently)"

The short facts of the case giving rise to this appeal are that on 23.1.99, P.W./10 Sukhdevram has recorded the statement of Abdul Ayub (Ex. P/1) on which formal FIR No. 30/99 has been registered. It has been stated by Abdul Ayub in Ex. P/1 that on previous day hot talks have taken place between him and Amanullah and due to that incident today at 8.00 A.M. accused persons came having rifle, Gandasi, revolver and sticks in their hand, they made attack on him. First of all, Islam, Rahamtullah, Hajrat Noor and Mohammad Khan have inflicted stone injuries to him. Hakim had inflicted sword injuries on his hand. When Abdul Rehman, Suleman and Jamil rushed to save him they all inflicted injuries to them also. Hakim and Mohammed were having rifle and other persons were having Gandasi, sticks and pharsi etc. Due to the beating given to Habibullah, he fell unconscious. 22 accused persons have been named in Ex. P/1. Habibullah has died and after usual investigation charge-sheet has been filed against 19 persons in the Court of Additional Sessions Judge, Aklera Distt. Jhalawar for the offence under Sections 148, 302/149, 307/149, 325/149, 324/149 and 323/149 IPC. The case was committed and tried by Additional Sessions Judge, Aklera Distt. Jhalawar.

The charges have been framed against the appellants for the offences under Sections 148, 302/149, 307/149, 325/149, 324/149 and 323/149 IPC which were denied by the accused persons and they claimed to be tried. The prosecution has examined P.W./1 Abdul Ayub, P.W./2 Abdul Rehman, P.W./3 Suleman Khan, P.W./4 Usman Ali, P.W./5 Inamullah, P.W./6 Mobin Khan, P.W./7 Mohd. Rafiq, P.W./8 Nizamuddin, P.W./9 Yaya Khan, P.W./10 Sukhdevram, P.W./11 Krishnagopal, P.W./12 Puranmal, P.W./13 Basiruddin, P.W./14 Samiullah, P.W./15 Khalil Khan, P.W./16 Ramlal, P.W./17 Dr. R.D. Verma, P.W./18 Salim, P.W./19 Shafiq, P.W./20 Durgalal, P.W./21 Jumma Khan and P.W./22 Dr. Hemraj Meena to support his case. Prosecution has also relied upon documents Ex. P/1 to P/91.

Statements of accused persons have been recorded under Section 313 Cr.P.C. No defence witness was produced.

After conclusion of trial, the present appellants have been convicted and sentenced, as referred above, whereas other accused persons have been acquitted, hence this appeal.

The contention of the present appellants is that the judgment of the court below is perverse on the facts and is against the material on record. No finding has been recorded that whether the appellants were aggressors or it is a case of free fight or who have attacked first. Appellants have received grievous fire-arm injuries at the hands of complainant party. The prosecution has not given any explanation as regards to the injuries of the appellants, hence conviction of the appellants is bad in law. All the witnesses examined by the prosecution are partisan witnesses and unreliable. There is previous enmity between the parties in spite of this the Court has relied upon the interested witnesses, hence the appellants are entitled for acquittal.

Per contra, contention of the learned Public Prosecutor is that eye-witness are injured also who have supported the prosecution story and court below has rightly convicted the appellants after scanning the prosecution evidence.

Heard the learned counsel for the appellants and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case.

P.W./1 Abdul Ayub is the informant as well as injured in the incident. He has stated that on earlier day there was an altercation between him and Amanullah, Islam Hakim and Hajrat Noor etc. and he has reported the matter to police. With this enmity on the day of incident, all the accused persons armed with deadly weapons came to their house and inflicted injuries to him and in the incident Habibullah died. P.W./2 Abdul Rehman has also stated that at about 8.00 in the morning the incident has taken place. They received injuries in the hands of the accused persons and due to injuries Habibullah died. P.W./3 Suleman Khan is the other injured eyewitnesses and he has also stated the same facts as has been narrated by P.W./1 Abdul Ayub and P.W./2 Abdul Rehman.

P.W./5 Imanullah who is brother of Samiullah has also testified the same fact that accused persons have inflicted injuries to them and P.W./9 Yahiya Khan, P.W./13 Basiruddin and P.W./4 Usman Ali are the other witnesses who have also testified the fact that the accused persons have inflicted injuries to them and in all seven persons Abdul Ayub, Suleman, Rehman, Ajimullaha, Lookman, Ajij Sarif and Firoj have received injuries. P.W./22 Dr. Hemraj Meena has prepared the injury report of Habibullah who has suffered 7 injuries and thereafter post mortem report has also been conducted by him and prepared report Ex. P/83 cause of death of Habibullah is ''comma'' caused by head injury. P.W./22 Dr. Hemraj Meena has also examined other injured witnesses and prepared the injury reports (Ex. P/84 to P/91).

The contention of the counsel for the appellants is that all the prosecution witnesses are interested witnesses related to each other and having inimical relations with the appellants, hence the court below has erred in placing reliance on the partisan witnesses and furthermore, the contention of the appellants is that the prosecution has failed to explain the injuries of accused persons, hence the whole prosecution story is false on the face of it. P.W./22 Dr. Hemraj Meena has accepted in his statement that he has also prepared the injury reports in cross-FIR which has been placed on record as (Ex. P/18 to P/28).

On scanning of Ex. P/18 to P/28 it can be gathered that as per Ex. P/18 and 19 Hajratnoor has received in total four injuries. Out of which two are fractures and injuries are with fire-arm. As per Ex. P/20, Usuf has suffered three injuries out of which one is incised wound by sharp edged weapon. As per Ex. P/21 Samadkhan has received two injuries. As per Ex. P/22 Amjadkhan has received one injury and that too by fire-arm. As per Ex. P/23 Rahamtullah Khan has suffered two injuries. As per Ex. P/24 Amanullahkhan received one injury. As per Ex. P/25 Firojkhan suffered three injuries out of which one has been found grievous in nature. As per Ex. P/26 Mangu Khan has received one injury of fire-arm. As per Ex. P/27, Safi Mohammad has also suffered one injury on right elbow joint from fire-arm. As per Ex. P/28 Aashan Khan has received six injuries out of which four are from fire-arm.

Hence in view of the above, in total 10 persons suffered injuries in the same incident and out of which five have suffered bullet injuries.

The prosecution has not put any explanation about the injuries suffered by the accused persons. P.W./10 Sukhdevaram is the Investigation Officer. He has admitted the fact that accused persons have been examined medically but he has not accepted the fact that Jumme Khan, Hajrat Noor, Rashid and Shafiq have received firearm injuries and no explanation has been given by the Investigation Officer. P.W./10 Sukhdevaram has not explained that how the accused persons have suffered injuries which are grievous and even by firearm and counsel for the appellants has heavily placed reliance on Lakshmi Singh and Others Vs. State of Bihar, where the Court has held as under:

"In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."

In the present case, the witnesses have even not accepted the fact that any injuries have been suffered by the accused persons. P.W./1 Abdul Ayub, P.W./2 Abdul Rehman, P.W./3 Suleman Khan, P.W./13 Basiruddin, P.W./5 Imanullah and P.W./9 Yahiya Khan all have denied the fact that accused appellants have suffered any injury in the incident and as such the prosecution witnesses who were examined as injured and also received injuries in the incident are unreliable and they are also related to each other and inimical to appellants. Ten persons on the side of the appellants have suffered injuries but prosecution has kept silence as to the fact that how the appellants have suffered injuries which clearly concludes that the prosecution has not come forward with the true genesis and origin of the incident. The possibility cannot be ruled out that appellants have exercised their right of private defence of their person while they were subjected to assault resulting in injuries to the prosecution witnesses. No unrelated, independent witness has been examined by the prosecution. The testimony of the prosecution witnesses who are partisan and interested does not inspire confidence as they have suppressed the injuries of the accused persons and their statements have been falsified and further prosecution has failed to explain the injuries suffered by the appellants and the probability cannot be ruled out that the witnesses are telling lie. In this respect also the defence has come with a case from the very initial stage that they have suffered injuries in the incident and Dr. Hemraj Meena (P.W./22) has also testified the same, hence the possibility cannot be excluded that the appellants were the victims of the assaults and they have caused injuries to the prosecution witnesses and to the deceased in their right of private defence of their person, hence they have not committed any offence.

From the above discussions, the court below has acted perversely while believing the interested and inter-related witnesses and specially when true genesis of the occurrence has been suppressed and even the prosecution has tried to suppress the injuries of the appellants as P.W./10 Sukhdevaram gave evasive replies as to the injuries suffered by the appellants. The whole prosecution case as put forward seems to be doubtful and we are of the considered opinion that the appellants are entitled for the benefit of doubt.

Consequently, the appeal is allowed. The judgment under appeal dated 5.3.2004 passed by Additional Sessions Judge, Aklera Distt. Jhalawar in Sessions Case No. 35/2003 quashed and set aside. All the appellants are acquitted of the charges levelled against them. Appellant Samad Khan, is in jail, he be released forthwith, if not required in any other case. Other appellants Ahasan, Hajrat Noor, Islam, Hakim and Mohammed Khan need not to surrender, their bail bonds and surety stands discharged.

Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, accused appellants Samad Khan, Ahasan, Hajrat Noor, Islam, Hakim and Mohammed Khan are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each and a surety bond in the like amount, before the trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellants, on receipt of notice thereof, shall appear before the Supreme Court.