Sawai Khan @APPELLANT@Hash State of Rajasthan & Ors

MOHAMMAD RAFIQ, J

These two appeals are directed against the common judgement dated 30.07.2011 passed by Additional District and Sessions Judge (Fast Track), Sikar

in Sessions Case No.56/2009, whereby and whereunder, the accused-appellant Sawai Khan has been convicted for offence u/ss.302 IPC and

sentenced to life imprisonment with fine of Rs.5,000, in default whereof to further undergo one year simple imprisonment. He was also convicted for

offence u/s.307/34 IPC and sentenced to ten years rigorous imprisonment with fine of Rs.1,000, in default whereof to further undergo further

imprisonment of three months; for offence u/s.353 IPC to undergo two years’ simple imprisonment; for offence u/s.3/25 of the Arms Act and

sentenced to one year simple imprisonment with fine of Rs.1,000, in default whereof to further undergo one month’s simple imprisonment and also

for offence u/s.27 of the Arms Act to undergo three years simple imprisonment with fine of Rs.1,000, in default whereof to further undergo simple

imprisonment of three months. Accused-appellants Vikas @ Khalid and Om Prakash were also convicted for offence u/s.302/34 IPC and sentenced

to life imprisonment with fine of Rs.5,000, in default whereof to further undergo one year simple imprisonment; for offence u/s.307/34 IPC and

sentenced to ten years rigorous imprisonment with fine of Rs.1,000, in default whereof to further undergo further imprisonment of three months and

for offence u/s.353 IPC to undergo two years’ simple imprisonment. Accused-appellant Vikas @ Khalid was also convicted for offence u/s.3/25

of the Arms Act and sentenced to one year simple imprisonment with fine of Rs.1,000, in default whereof to further undergo one month’s simple

imprisonment and also for offence u/s.27 of the Arms Act to undergo three years simple imprisonment with fine of Rs.1,000, in default whereof to

further undergo simple imprisonment of three months. All the sentenced were ordered to run concurrently.

Facts giving rise to this appeal are that Mehmood Hasan, Assistant Sub-Inspector submitted a written report to SHO Kotwali, Fatehpur on 26.3.2009

alleging that on 26th March, 2009 at about 8.00 pm, he and Constables Harish Chandra, Kalyan Singh, Sohan Lal and driver Pradeep Kumar were

performing the patrolling duties in Government vehicle No.RJ 23 4A 2101. When they reached near Chhatriya Bus Stand of Tehsil Fatehpur, he

received a wireless message from Circle Officer, Fatehpur that he tried to stop one silver colour Indica car without number plate in which three

persons were sitting, but instead of stopping, the person sitting on the front seat opened fire at him. Circle Officer asked to send a vehicle from the

Police Station to stop it. On receiving such message, Mehmood Hasan, ASI along with other members of the patrolling party reached near Do Janti

Balaji temple. Thereafter, he received another information on wireless message that said vehicle was now going towards Ratangarh. Mehmood Hasan

turned his jeep in that direction. In between, he talked to the Circle Officer as also the SHO of the Police Station, Fatehpur. When their jeep reached

near Viramsar on Ratangarh Mod, they received the telephonic message that the said Indica car was now returning back from Ratangarh railway

crossing. The vehicle was located near Village Tidiasar, but its driver took the car off the road on `kachcha’ route. Three persons came out of the

car and tried to run away. One of accused was caught hold of by the Constable Harish Chandra. He then shouted at another accused named Sawai

Khan asking him to open fire. Sawai Khan tried a shot, which hit Harish Chandra, Constable on his thigh. Another accused opened fire at the

informant (Mehmood Hasan). Taking advantage of this situation and the darkness, all the three accused ran away in the agricultural fields. He could

identify these accused. Informant then stated that he took the Constable Harish to Dhanuka Government Hospital, Fatehpur for treatment. The

Medical Officer however declared him brought dead. Information about the incident was given to the Senior Officer.

The FIR on the basis of aforesaid written report was registered for offence under Sections 302, 332, 353, 307/34 IPC and investigation commenced.

The police after conclusion of the investigation filed charge sheet against the accused-appellants for the aforesaid offences. The learned trial court

framed the charges for offence u/ss. 302, 307/34, 353 of IPC and Section 3/25 and 27 of the Arms Act against Sawai Khan u/ss. 302/34, 307/34, 353

of IPC and Section 27 of Arms Act against Om Prakash and u/ss.302/34, 307/34, 353 of IPC and Section 3/25 and 27 of the Arms Act against the

accused-appellant Vikas @ Khalid. The accused denied the charges and claimed to be tried. The prosecution produced 34 witnesses and exhibited

110 documents. Defence did not produce any evidence. Accused in their statement u/s.313 Cr.P.C. alleged false implication. The learned trial court

on conclusion of the trial, convicted and sentenced the accusedappellants as stated above. Hence these appeals.

We have heard Shri Rajendra Singh Tanwar for accusedappellant Om Prakash, Smt. Sumati Bishnoi for accused-appellant Vikas @ Khalid and Ms.

Rajesh Kandwal for accused-appellant Sawai Khan as well as Shri Rajendra Singh Raghav, learned Public Prosecutor for the State.

Learned counsel for the accused-appellants have argued that learned trial court has wrongly appreciated the law, evidence and material available on

record. Entire evidence of the prosecution does not prove the guilt of the appellant beyond reasonable doubt. It is contended that the learned trial court

committed serious illegality in not sending the bullet and cartridge to FSL for examination. It does not prove that from which gun the said bullet was

fired, which was inflicted to Harish Chandra due to which Harish Chandra died. Harish Chandra might have as well died due to firing by police.

It is contended that it has been nowhere written in the FIR that one of the accused person was caught but in the statements of police personnel, all

that is stated is that one person was caught by police who shouted `Sawai Singh fire’ whereupon one person fired on the thigh of the Harish

Chandra. This creates serious doubt about the accused who inflicted that injury.

Learned counsel argued that there are material contradictions in the statements of witnesses which were recorded by the police and statement before

the court, which creates serious doubts about involvement of the appellants in the crime. The witnesses have developed their statements from the

statements which were recorded before the police.

It is submitted that the learned trial court committed serious illegality in not appreciating that not a single witness has stated name of any accused, who

was caught, whether he ran away or not, nowhere it was stated by them in their statements. On the contrary, they have stated that the accused

persons were caught from the hut situated in the field of Sumer Singh. While on one hand, the police has stated that they can identify the accused

persons but on the other hand, did not state anything that which accused was caught by them when police had intercepted the car.

Learned counsel contended that the learned trial court committed serious illegality in not considering that the witnesses who saw the Indica car

running on road, following by the police stated that the said car was Indica and its colour was silver. However, it was about 9:00 PM at night and there

was darkness and how they came to know about the colour and make of the car in darkness, in not believable.

It is submitted that the learned trial court committed serious illegality in not considering that the police had prepared description memo of place of

recovery (Ex.P9), whereby the pistol has been recovered from one of the accused persons. However, name of the accused person has not been

written in the said memo. It creates serious doubt on the prosecution story that entire story is false and the accused appellant has been falsely

implicated in the case.

It is contended that the learned trial court committed serious illegality in not considering that in the night how could the police follow the accused

persons on the basis of foot prints in the field. There may be foot prints of many persons there. Searching of accused persons on the basis of foot

prints by the police is not believable. Since there was darkness on the place of occurrence therefore how the accused appellants were identified by

police personnel, is not believable. No where position of the police jeep and car has been shown in the map so that it can be said that in the light of car

and jeep the faces of the accused persons were seen and identified. The learned trial court committed serious illegality in not considering that the

police did not recover the cartridge of the bullet which allegedly fired on the Circle Officer by the accused.

Learned counsel further submitted that the accused appellants have no motive to commit any crime. They have been falsely implicated in the present

case.

Learned counsel for accused-appellant Om Prakash has contended that nothing has been recovered from the appellant. He did not even fire at any

person to kill. Therefore no offence under Sections 302/34 and 307/34 is made out against him. It is argued that no overt act has been attributed to

accused-appellant namely; Om Prakash and Vikas @ Khalid. Allegation of opening fire at the deceased has been made only against accusedappellant

Sawai Khan. Even this fire was shot by him at the deceased Harish Chandra to save himself and his companion, who was caught by deceased. The

fire was therefore opened in exercise of right of private defence. The manner in which the gun shot was fired at the deceased indicated that intention

of appellant was never to kill him, but rather to free from his clutches, which is evident from the fact that the shot was fired on a non-vital part of body

namely; the thigh of the deceased. Besides, as per the allegation of prosecution, though the country made katta has been recovered at the instance of

accused Sawai Khan vide memo Ex.P10 and one country made pistol from accused Vikas @ Khalid vide memo Ex.P11, but their intention would not

be to kill the deceased or any other person, otherwise there would have been many more casualties. The fact that accused did not repeat and opened

fire only once, not only indicate that they did not have any intention to commit murder, but also did not take undue advantage of the situation. The

incident having happened suddenly at the spur of the moment and accused having not repeated the injury, not caused the injury on any vital part of the

body, their case would fall in exception 4 to Section 300 IPC. Since only one of them namely; Sawai Khan had opened fire, he can at the maximum be

convicted for offence of culpable homicide not amounting to murder falling u/s.304 Part-I of IPC. The other accused namely; Om Prakash and Vikas

@ Khalid, who did not share the intention with Sawai Khan, deserves to be acquitted.

Shri R.S. Raghav, learned Public Prosecutor opposed the appeal and submitted that the accused-appellants were habitual offenders inasmuch as they

had been habitually looting the vehicles and to achieve that object, they would easily murder the driver of the vehicle.

It is contended that prior to that incident, the accused had looted the Indica car and committed murder of Rameshwar, the driver of this Indica car.

This Indica car was taken by them on hire basis. Rameshwar was driving that car in the morning on 25.3.2009. Accused hired the Indica car on 25th

March, 2009 from Nagaur Taxi Stand. They committed the murder of Rameshwar. It was thereafter that the ASI, Mehmood Hasan received a

wireless message from Circle Officer, Fatehpur that when he tried to stop this silver colour Indica car without number plate in which three persons

were sitting and when he gave signal to stop, the person sitting on front seat opened fire at him. Reference is made to the FIR No.134/09 and the

charge sheet filed in the case of Rameshwar (Ex.P77). This FIR was lodged by Prakash Ram on 25.3.2009 with Police Station Nagaur. He has stated

in the FIR that he had purchased a brand new car on 20th March, 2009, the number plate of which was yet to be fitted. His brother Rameshwar was

driving that vehicle in the morning of 25th March, 2009. His brother Rameshwar had parked the car at the Taxi Stand situated at Government

Hospital, Nagaur. Two persons came there at about 10.00-10.15 am. They hired the car upto Deedwana. They started from there. Informant’s

brother Ramniwas had a talk with Rameshwar on mobile at 12.16 am, that time, he informed his brother that accused had beaten him and forcibly took

him with the car. Then the call was disconnected. Thereafter, he continuously tried to connect the telephone and enquire about his brother. The chesis

number and engine number of the vehicle were given. The police in that case filed charge sheet for offence u/s.394 and 342 IPC against the accused

Sawai Khan, Vinod @ Khalid and Om Prakash. It is submitted that the aforesaid case no.65/09 is pending trial in the Court of Additional Sessions

Judge No.2, Nagaur, which fact is proved by Shankar Singh (PW30), the then S.I. Police Station Parbatsar, District Nagaur.

Learned Public Prosecutor argued that as per the allegations in the present case, accused after opening fire at the police party in which one of the

Constable died, taking advantage of the darkness fled away from there. The teams constituted under the leadership of S.P. Sikar and S.P. Churu

followed them in the night along the marks of their foot steps. They were finally traced in a hut located in the jungle of Village Malpura around 9.00

am. When the warning was given to them to surrender, they did not surrender and instead, opened fire at the police party. Reference is made to the

FIR No.65/09 for offence u/ss.353, 332, 307, 120B IPC and Section 3/25 and 3/27 of the Arms Act was lodged regarding that incident which is

Ex.P65 by Jauhar Lal, SI, Police Station Ratangarh. Police in defence had to also open two rounds of fire by 38 bore revolver and one round by 3x3

service rifle. In total about 8-10 rounds of fire were opened by the police. When they were completely encircled all around, the accused then

surrendered. Charge sheet against the accused in that case was filed and the matter is pending trial in the Court of Additional Sessions Judge,

Ratangarh, Churu as Sessions Case No.1/2010.

Learned Public Prosecutor has made reference to yet another FIR No.59/09 (Ex.P67) lodged by one Gunwant Kumar, the onwer cum driver of Van

no.RJ01-T-1213, whose vehicle was hired by the accused from Diggi Stand, Ajmer to go to Makrana and looted the vehicle near Parbatsar after tieing

him and his companion Roop Kumar with tree by ropes. Learned Public Prosecutor has also referred to the certified copy of the judgement dated

3.4.2010 in which the accused-appellants along with three other accused were acquitted on allegation of looting the D.I. MAX Jeep No.RJ 14 U 1202.

On similar facts, the vehicle was hired by the accused from bus stand Narena and the driver of the vehicle Hamid was killed and the vehicle was

looted. Since it was a case of circumstantial evidence, the Court of Additional Sessions Judge (Fast Track), Parbarsar and the attesting witnesses did

not support the case and the accused could secure acquittal, but that case too proves that the all the accused-appellants are members of the same

gang and are habitual in committing similar offences together.  Â

Apart from what has been argued by learned Public Prosecutor in the present case, we find that the manner in which the incident has taken place has

been proved by cogent and reliable evidence by the prosecution. Pradeep Kumar (PW1) has stated that when the Indica car of the accused was

taken on the kachcha road, three persons sitting in it, tried to ran away. One of them was caught hold by Constable, Harish Chandra who cried for

help and asked his fellow accused to open fire, which hit him. Similar statement has been made by Kalyan Singh (PW2), who has stated that when

Harish Chandra caught hold of one of the three accused, he cried for help and asked Sawai Khan to open fire and the fire opened by Sawai Khan hit

Harish Chandra on his left thigh. Sohan Lal (PW19), Constable of Police Station Kotwali Fatehpur has also given similar statement that fire shot by

Sawai Khan hit Harish Kumar on his left thigh and thereafter another accused opened fire at Mehmood Hasan, which he ducked. Narendra Singh the

then C.O., who was patrolling and first saw the Indica car without number plate at Bawri Gate has appeared as PW24 and stated that when he gave

signal to the car to halt, instead of stopping, the car speeded up. And when they chased the car, the accused sitting on the front seat opened fire at

him. He identified all the three accused in the test identification parade Ex.P40 to 42 and also in the Court. Apart from Narendra Singh (PW24), these

accused have been identified by Mehmood Hasan and Sohan Lal in test identification parade (Ex.P40 to 42). Raghuveer Prasad (PW3) was a

vegetable vendor at Bawri Gate, Fatehpur. On the fateful night, he saw an Indica car without number, which was going towards Ramgarh Mod. The

vehicle of Deputy Superintendent of Police was chasing that vehicle. When the vehicle of Deputy Superintendent of Police overtook that Indica car, a

person, who was sitting in the car, opened fire. Mehmood Hasan (PW5) has also stated that Constable Harish caught hold of one of the accused, who

asked Sawai Khan to fire who then shot at Harish Chandra on his thigh. Thereafter, another person opened fire at him, which he ducked. The

accused ran away from there taking advantage of the darkness. Laxman Singh (PW8), Nemi Chand (PW10) and Rajendra @ Raju (PW21) are the

persons present near the shop of Raghuveer Prasad at Bawri Gate, Fatehpur. They have also substantiated the above fact. Rajendra @ Raju (PW21),

who was sitting at Bawri Gate, Fatehpur along with Laxman and Nemi Chand has also given similar statement that fire was opened by the accused at

the police party. Mehmood Hasan was also attesting witness to the recovery of the country made `katta’ at the instance of accused-appellant

Sawai Khan vide memo Ex.P10 country made pistol at the instance of accused Vikas @ Khalid vide memo Ex.P11. Seizure memo of the Indica Car

without number plate is Ex.P25 and the arrest memo of the accused-appellants Sawai Khan, Vikas @ Khalid and Om Prakash are Ex.P28, 29 and 30

respectively.

Bhanwar Singh (PW9) and Sumer Singh (PW11) have proved the incident of fire opened by the accused from the hut at the police party and the

return firing by the police in the hut of the agriculture field of Sumer Singh in village Malpura, Tehsil Ratangarh. Mukut Singh (PW20) has stated that

he lifted the chance finger prints on the glass of door of the driver side of the Indica car and after developing them, they were marked as A and B. He

also lifted two chance finger prints on the left glass of rear door of car, which were developed and marked as C and D. Thereafter, he also lifted one

chance finger print on the rear window glass of the car, which was developed and marked as `E’. The memo (Ex.P43) was prepared by him for

lifting these chance prints. Rajendra Sharma (PW22) was the photographer of the Bureau. He has corroborated this fact that photography of five

chance finger prints was done by him. The photographs were Ex.P44 to 48 and specimen prints were Ex.P49 to Ex.P53. The memo of lifting the

finger prints was prepared as Ex.P43, the attesting witnesses to which were Sohan Lal and Sunda Ram, who have both supported the prosecution

case. The report of the office of the Director Finger Print Bureau, Rajasthan, Jaipur (Ex.P82) proves that the change print photographs marked as A

and B (of Sawai Khan) are similar and identical with the specimen right index finger and right middle finger print photographs marked as S4A and

S4B respectively of Sawai Khan. Similarly, the said report Ex.P82 proves that the chance print photograph marked as C & D (of Vikas Kumar) is

similar and identical with the specimen right index finger print and right middle finger print photographs respectively marked as S1A and S1B

respectively of Vikas Kumar. Similarly also, the chance print photograph marked E (of Om Prakash @ Prakash) is similar and identical with the

specimen right middle finger print photograph marked S1 of Om Prakash @ Prakash. Balbir Singh (PW18) has stated that he developed the right and

left foot impression of two persons, who were wearing shoes and of one person of left and right foot, who was bare foot and that he developed them

then and there and handedover to SHO Fatehpur Kotwali. Memos thereof are Ex.P19, 20 and 21. In cross examination, he has stated that he has

passed a diploma course for developing the foot moulds. Seizure memo of foot mould sample of accused Sawai Khan, Vikas Kumar @ Khalid and

Om Prakash were prepared vide memos Ex.P37 marked as F-I, Ex.P38 marked as F-II and Ex.P39 marked as F-III. The attesting witnesses

Banwari Lal (PW25) and Jagdish Prasad have supported these memos. Bare foot mould marked as F-I was found similar with the specimen right foot

impression of Sawai Khan. Similarly also, with left foot impression which is evident from the Finger Print Bureau, Rajasthan, Jaipur (Ex.P81). The

FSL report (Ex.P83) proves that various packets namely; J, K, F-II, F-III, F-IV and F-V were received by the laboratory properly sealed and

impression of the seal tallied with the specimen. Packet F-II contained two plaster of paris moulds of right and left footwear sole impressions of

accused Vikas @ Khalid. According to the aforesaid report, the right footwear sole impression reproduced in the mould exhibit K/R tallied with the

right footwear sole impression reproduced in the mould exhibit F-II/R and the sole of the shoe Exhibit F-IV/R. Similarly, footwear sole impression

reproduced in the mould exhibit K/L tallied with the left footwear sole impression reproduced in the mould Exhibit F-II/L and the sole of the shoe

Ex.F-IV/L. The right footwear sole impression of accused Om Prakash reproduced in mould exhibit J/K tallied with the right footwear sole impression

reproduced in the mould exhibit F-III/R and the sole of the shoe exhibit F-V/R. The left footwear sole impression reproduced in the mould Ex.J/L

tallied with the left footwear sole impression reproduced in the mould exhibit F-III/L and the sole of the shoes exhibit F-V/L.Â

Banwari Lal (PW25), the SDM has stated that on 30.3.2009, he was posted as Tehsildar, Laxmangarh and that on receiving requisition from Police

Station Laxmangarh, the foot prints of the accused Om Prakash, Vikas Kumar @ Khalid and Sawai Khan were obtained in his presence and

Constable Balbeer and one more Constable was also present there. While Sawai Khan gave the foot prints bare foot, the other two accused namely;

Vikas Kumar @ Khalid and Om Prakash gave foot prints with shoes. The three different memos are exhibited as Ex.P37, 38 and 39 respectively.

Dr. Mansha Ram (PW32), is the member of the Board who conducted postmortem of deceased has proved the postmortem report (Ex.P86),

according to which the cause of death of Harish Chandra was hypovolumic shock due to excessive bleeding.

Priyanka Yadav (PW34), the Senior Scientist Assistant of the Mobile Forensic Unit, Sikar has stated that she inspected the site of incident and took

photographs (Ex.P98 to P109). She prepared the inspection report (Ex.P110) according to which the door of the driver side of the Indica car was

opened. There was blood spared at some distance of the car. There was a bag lying on the seat near the driver seat, the clothes therein also had blood

stains. The blood was spared at different places inside the car. The FSL report Ex.P80 indicated that the pants, shirt, belt, socks, shoes, `baniyan’

of deceased contained human blood.

In view of above analysis of evidence, the guilt of the accused-appellants has rightly been held proved by cogent and reliable evidence and the learned

trial court was perfectly justified in convicting the accused-appellants for the alleged offences vide the impugned judgement. There being no merit, the

present appeals are hereby dismissed.

Office to place a copy of this judgement in connected appeal.