State of Rajasthan vs Ramzan Khan and Others

The instant cr. appeal has been filed by the State of Rajasthan under Section 378(3) and (1) of the Cr.P.C. against the judgment dated 29.3.1993 passed by the learned District & Sessions Judge, Jodhpur whereby the learned trial court acquitted respondents accused from the charge levelled against them under Section 302 and 201 IPC.

Before proceeding further, it is worthwhile to mention here that initially the cr. leave to appeal was filed by the State of Rajasthan against 8 respondents who were acquitted by the learned trial court, but the leave was granted by the Division Bench only against respondent No. 1 Ramjan Khan and respondent No. 2 Smt. Nashiba vide order dated 29.10.1993, therefore, this appeal is only against two respondents Ramjan Khan and Nasiba.

As per brief facts of the case PW-1 Noor Khan appeared before the SHO, Police Station, Phalodi and submitted a written complaint (Ex. P/1) alleging therein that accused Ramjan Khan got married with Amiyat Khatoon D/o. Kachhu Khan, but Ramjan Khan was having illicit relations with Smt. Nashiba therefore, on 10.5.1992 at about 11.00 pm in the night both the respondents murdered Smt. Amiyat Khatoon by throttling in the resident situated at Kali Beri area, Jodhpur. In the FIR, it was stated by the complainant Noor Khan (PW-1) that the aforesaid information was given by Nek Mohd. and Samsuddin and further they informed that if they would not intervene the body of your sister was to be cremated by the respondents, upon receiving above information the complainant went to the Police Station, Jamba for registration of the FIR, but after waiting whole of the night for SHO, the complainant went at Police Station, Phalodi but it is informed that incident took place within the jurisdiction of Police Station, Soorsagar, Jodhpur, therefore, FIR cannot be was not registered at Police Station, Phalodi but the said complaint (Ex. P/12) submitted by the complainant was forwarded alongwith original complaint (Ex. P. 1) vide forwarding letter Ex. P/12A through Assistant Police Inspector Chandra Singh. The SHO, Police Station, Soorsagar registered the FIR No. 76/1992 at 3.15 pm on 12.5.1992 under Section 302 and 201 IPC against both the respondents and other persons.

In the investigation, first of all, the Panchnama was of the body lying outside the Police Station in the truck No. RNJ 9162 (Ex. P/2) was prepared by the SHO, Police Station, Soorsagar in front of two witnesses Aamdeen and Samsuddin. Thereafter, the site plan (Ex. P/3) where alleged occurrence took place was prepared in the presence of two witnesses Mohd. Hanif and Sher Khan on 12.5.1992. The body of deceased Amiyat Khatoon was taken to the hospital for post mortem where post mortem was conducted by the medical board at 6.40 pm on 12.5.1992 and post mortem report (Ex. P/11) was given by PW-12 Dr. K.C. Choudhary, Chairman of the Board in which in all 8 injuries were found, out of which 7 injuries were of simple bruises and abrasions were found upon the body and injury No. 8 was found upon the abdomen of the deceased. As per opinion of the doctor the cause of death was shock and internal hemorrhage due to traumatic rapture of spleen (ante mortem in nature). After post mortem the body was handed over to the father of the deceased Kachhu Khan for cremation vide Ex. P/8.

In the investigation, statements of prosecution witnesses including alleged eye witnesses PW-16 Nek Mohd. and PW-17 Samsuddin and PW-1 Noor Khan (complainant) who had submitted the FIR before Police Station, Soorsagar, Jodhpur.

After usual investigation the charge-sheet was filed under Section 302 and 201 IPC in the court of Addl. Chief Judicial Magistrate No. 3, Jodhpur against 8 persons, from where the case was committed to the Sessions Court, Jodhpur for trial.

The learned District & Sessions Judge, Jodhpur framed charge after providing an opportunity of hearing to the respondents and other accused charge sheeted under Section 302 and 201 IPC and commenced the trial.

In the statements of 21 prosecution witnesses were recorded in the trial and 17 documents were exhibited. After recording statements of prosecution witnesses, the statements of accused appellants alongwith other accused respondents were recorded under Section 313 Cr.P.C. in which they denied all the allegations levelled against them and produced 2 witnesses DW-1 Babu Khan and DW-2 Abdul Karim in their defence.

The learned trial court after hearing the learned counsel for the parties finally acquitted all the 8 accused from the charges levelled against them vide judgment dated 29.3.1993.

The cr. leave to appeal was filed by the State of Rajasthan against 8 persons namely Ramjan Khan, Smt. Nasiba, Jethu Singh, Pratap Singh, Jamaldeen, Sher Khan, Ishaq Khan and Kamruddin, but the leave was granted by the Division Bench of this Court only against two respondents Ramjan Khan and Nasiba and leave to appeal against remaining accused Jethu Singh, Pratap Singh, Jamaldeen, Sher Khan, Ishaq Khan and Kamruddin was rejected vide order dated 29.10.1993.

Learned Public Prosecutor vehemently argued that a grave error has been committed by the learned trial court in acquitting the respondents Nos. 1 and 2 from the charge levelled against them under Section 302 IPC because by leading trustworthy and reliable evidence of eye witnesses PW-16 Nek Mohd. and PW-17 Samsuddin the prosecution has proved the allegation of murder beyond reasonable doubt because there testimony was corroborated by Dr. K.C. Choudhary (PW-12) who conducted post mortem of deceased in which 8 injuries were found upon the body of the deceased and per opinion of the doctor in the post mortem report Ex. P/11 dated 12.5.1990, the cause of death was shock and internal hemorrhage due to traumatic rapture of spleen (ante mortem in nature), therefore, the learned trial court ought to have considered the said important evidence while deciding the case of serious nature. It is also argued that prosecution has proved the allegation of illicit relations between accused respondent Ramjan Khan and Nasiba and due to those said relations they murdered Smt. Amiyat Khatoon. It is submitted that element of intention was proved by leading evidence, but the learned trial court failed to appreciate the evidence in right perspective. Further, it is submitted that there is evidence of extra judicial conviction before PW-1 Noor Khan, PW-2 Salman Khan and PW-3 Nijamuddin, therefore, the judgment impugned deserves to be quashed and the respondents are liable to be punished for offence under Section 302 IPC.

Lastly it is argued by learned Public Prosecutor that the ground upon which the judgment is given by the trial court are totally unfounded and far from truth because both the eye witnesses PW-16 Nek Mohd. and PW-17 Samsuddin categorically stated before the court that they saw the incident from their eyes, therefore, the judgment impugned may kindly be quashed and both the respondents may kindly be held guilty for the alleged offence of murder.

Per contra the learned counsel appearing for the respondents submits that there is no error in the finding given by the learned trial court so as to acquit both the respondents from the charge levelled against them because the so called witnesses PW-16 Nek Mohd. and PW-17 Samsuddin are planted witnesses which is evident from the perusal of their statements.

It is submitted that totally unnatural statement is given by both the witnesses, therefore, the learned trial court after due consideration of their statements has rightly disbelieved their testimony so as to acquit the respondents. It is also argued that as per the statements of PW-12 Dr. K.C. Choudhary, Chairman of the medical board there were 8 injuries out of which 7 were of bruises and abrasions in nature and injury No. 8 was on abdomen were not cause of death and as per opinion of the medical board the cause of death was shock and internal hemorrhage due to traumatic rapture of spleen (ante mortem in nature). Meaning thereby, it is a case in which there is no allegation of using any weapon to commit murder of deceased, so also, the body of deceased was taken from Kali Beri to Phalodi and come back after 2 days for registration of the FIR. It is submitted that if the statements of PW-16 Nek Mohd. and PW-17 Samsuddin are accepted to be true then those witnesses did not inform the complainant PW-1 Noor Khan immediately, but respondent himself took the dead body of his wife Amiyat Khatoon to the village Dholasar. All these facts loudly speaks that both the eye witnesses are planted witnesses so as to indulge the respondents in false criminal case of murder of his own wife. On the basis of above arguments it is submitted that the finding given by the learned trial court is after due consideration of the entire evidence for acquittal of respondents does not require any interference because proper assessment of evidence has been made by the learned trial court so as to acquit the respondents from the charge levelled against them for committing offence of murder. Therefore, this appeal may kindly be dismissed.

After hearing the learned counsel for the parties, we have scanned the entire evidence and perused the finding given by the learned trial court for acquittal of the respondents. Admittedly, the author of the FIR PW-1 Noor Khan stated whole story as per information given by PW-16 Nek Mohd. and PW-17 Samsuddin. Meaning thereby, the FIR was registered on the basis of hear say evidence but this court cannot lose sight of the fact that accused himself took the body of his wife in the truck of Jethu Singh to his village Dholsar and dead body was lying in the house of father of his father and the respondent Ramjan informed the complainant and other family member that his wife died due to pain in stomach but as per PW-1 Noor Khan witness gave altogether different story.

We have perused the statements of PW-12 Dr. K.C. Choudhary the member of the medical board, who performed the post mortem. The said witness categorically stated in his statement before the court that on 12.5.1992 the post mortem of the body of the deceased Amiyat Khatoon was conducted by the board in which Dr. Vivek Bhardwaj and Dr. N.S. Kothari were the members. In the post mortem 8 injuries of simple in nature were found. The following statements given by the doctor, which reads as under:

Meaning thereby the PW-12 Dr. K.C. Choudhary is not corroborating the allegation of complainant PW-1 Noor Khan and allegation of eye witnesses PW-16 Nek Mohd. and PW-17 Samsuddin.

The PW-16 Nek Mohd. and PW-17 Samsuddin were produced before the court as eye witnesses, but learned trial court after considering the testimony of both these witnesses held that their allegations are not corroborated by the medical evidenced, so also, the conduct of these 2 eye witnesses for not reporting the incident immediately to the police created serious doubt, about there presence, therefore, we are of the opinion that these witnesses can be termed as planted witnesses.

PW-16 Nek Mohd. has not specifically stated before the court on which date the incident took place and PW-17 Samsuddin stated before the court that incident took place on 11.5.1992, further both the witnesses categorically stated that occurrence took place in their presence, but in cross-examination both these witnesses stated that no information was given by them to any person.

The witness PW-16 Nek Mohd. gave following statements in cross-examination, which reads as under:-

Similarly, PW-17 Samsuddin gave the following statements in cross-examination, which reads as under:-

Upon perusal of above statement of so called eye witnesses and the finding given by the learned trial court coupled with the medical evidence of PW-12 Dr. K.C. Choudhary we are of the opinion that prosecution has miserably failed to prove its case beyond reasonable doubt. Therefore, the learned trial court after due consideration of the evidence acquitted all the accused from the charges levelled against them. We cannot lose sight of the fact that the investigating officer not only filed charge-sheet against both the respondents but field charge-sheet against remaining accused persons but the learned trial court acquitted all the accused persons and in the event of filing cr. leave to appeal this court disbelieved the prosecution case for 6 accused persons who were also charge-sheeted.

In view of the above, we are of the opinion that finding arrived at by the learned trial court does not require any interference because prosecution has failed to establish the charge against respondents Nos. 1 and 2 by leading trustworthy and cogent evidence.

In view of the above, there is no force in this appeal filed by the State of Rajasthan. Therefore, this appeal is hereby dismissed.