Yasin Khan vs State Of Rajasthan

The present criminal appeal has been preferred by the accused-appellant against the judgment and order of conviction dated 05.01.2017 passed by the learned Additional Sessions Judge No. 3, Bikaner in Sessions Case No. 118/2012 whereby the accused-appellant has been convicted for the offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment with fine of Rs. 10,000/- and in default of payment of fine to further undergo two months additional rigorous imprisonment.

The F.I.R. No. 113/2011 having been lodged by P.W. 12 - Allarakha at Police Station Chhatargarh, District Bikaner for the offence under Section 302 read with Section 34 of I.P.C., the investigation commenced. During the course of investigation, the police arrested the accused-appellant on 26.07.2011.

After conclusion of investigation, the police filed charge-sheet against the accused-appellant and the co-accused Amir Khan for the offence under Section 302 read with Section 34 of I.P.C. Subsequently, the co-accused Amir Khan was declared juvenile and therefore, the matter qua him was forwarded to the concerned Juvenile Justice Board.

Learned trial court framed, read over and explained the charge for the offence under Section 302 in alternate Section 302/34 of I.P.C. to the accused appellant, who pleaded not guilty and sought trial.

Learned trial Court, after recording evidence, examining the accused-appellant under Section 313 of Cr.P.C. and hearing the arguments from both the sides, convicted and sentenced the accused-appellant as above vide judgment dated 05.01.2017. Hence this appeal.

We have heard learned counsel for the accused-appellant and the learned Public Prosecutor.

While assailing validity of the Judgment dated 05.01.2017, learned counsel for the accused-appellant has vehemently and fervently submitted that there are material contradictions and omissions in the testimony of the prosecution witnesses examined before the learned trial court.

He further submits that the accused-appellant was roped in only to settle the score as both complainant and the accused persons were engrossed in a criminal case pending trial.

He further submits that the eye-witnesses i.e. P.W. 9 - Kasam Ali, P.W. 11 - Meer Khan and P.W. 12 - Allarakha were close relatives of the deceased and therefore, being interested witnesses, their testimony was required to be disbelieved and discarded.

He further submits that Amir Khan who was accompanying the accused-appellant was having a pistol but the same was not used in the incident. If there was any intention on the part of the accused-appellant to kill Hakam Khan then, the pistol would have been used instead of knife.

He further submits that all the memos were prepared by the police in connivance with the interested witnesses which suffered from material omissions creating doubt in the entire prosecution story. The medical evidence also did not corroborate the version of the prosecution witnesses.

Learned counsel on the strength of these arguments submits that the prosecution could not prove beyond reasonable doubt that present appellant was guilty of the offence alleged in the present case and therefore, the learned trial court committed grave factual and legal error while convicting and sentencing the accused-appellant for the alleged offence as above vide Judgment dated 05.01.2017, which warrants interference by this Court and the accused-appellant may be acquitted from the charge levelled against him.

Per contra, learned Public Prosecutor has submitted that there were three eye-witnesses i.e. P.W. 9 - Kasam Ali, P.W. 11 - Meer Khan and P.W. 12 - Allarakha, who in their testimony have categorically stated that the accused-appellant inflicted the fatal stab wounds to Hakam Khan by a knife. Therefore, the testimony of these witnesses could not be disbelieved merely because they were close relatives of the deceased. Their presence at the place of incident was proved beyond shadow of doubt and their version was fully corroborated from the medical evidence as in the statement of P.W. 8 - Dr. P.K. Saini, he described the dimension and nature of the injuries inflicted on the body of deceased Hakam Khan and the cause of death being the injury Nos. 1 and 2 sustained by him. He further submits that the accused-appellant was arrested by Shokat Ali (P.W. 1) on the spot while he was running away from the scene of incident. He further submits that recovery of knife vide Ex.P./10 and the F.S.L. Report (Ex.P/15) showing the bloodstains of 'O' blood group on the weapon of offence and the clothes of the deceased were matching, completing the sequence of events leading to the irrefutable conclusion that it was none other than the accused-appellant who murdered the deceased Hakam Khan.

We have considered the submissions made at the bar and have minutely gone through the record of the learned trial court as well as judgment dated 05.01.2017 impugned herein.

P.W. 9 - Kasam Ali who was accompanying the deceased Hakam Khan stated that while they were sitting on the tea stall, Yasin Khan and Amir Khan came there. Amir Khan caught hold of Hakam Khan and Yasin Khan inflicted 5-6 knife injuries on the chest, stomach and back of Hakam Khan. Hakam Khan fell on the ground after walking 50-60 feet. While they were running from the spot, Shokat Ali (P.W. 1) intercepted Amir Khan and Yasin Khan. Hakam Khan was taken to the hospital where he succumbed to the injuries sustained by him. Hakam Khan was murdered by Yasin Khan and Amir Khan because of the old enmity. Nothing significant was elicited in the cross-examination of this witness so as to doubt credibility or veracity of the deposition made by him in the examination-in-chief.

P.W. 11 - Meer Khan stated that while they were sitting on the cabin of Kaluram and playing cards with Kasam Ali (P.W. 9), Hakam Ali came and sat there. While Hakam Ali was having tea, Yasin Khan and Amir Khan came around. Amir Khan caught hold of Hakam Khan and Yasin Khan inflicted stab wounds to him 3-4 times. Hakam Khan ran for some distance and then, fell on the ground. Thereafter, he was taken to the hospital, where he was declared dead.

P.W. 12 - Allarakha also stated almost on the same lines as P.W. 11 - Meer Khan.

P.W. 8 - Dr. P.K. Saini being a member of the medical board which was constituted to conduct autopsy upon dead body of the deceased Hakam Khan, described the dimension and nature of injuries inflicted to the deceased. He stated that the cause of death of the deceased was Injury Nos. 1 and 2 inflicted by sharp edged weapon which were sufficient to cause death in the ordinary course of nature. The injuries were ante mortem in nature.

P.W. 13 - Balraj Singh was the investigation Officer who conducted investigation of the matter and stated that he prepared the site plan, recorded statements of the witnesses, effected recoveries, collected samples and after completion of investigation, as prescribed in law, submitted the report before the court of competent jurisdiction.

The recovery memo of weapon of offence i.e. bloodstained knife is Ex.P/10. The F.S.L. Report is Ex.P/15 wherein the bloodstains of 'O' group were found on the weapon of offence i.e. knife matching the bloodstains present on the clothes of the deceased Hakam Khan.

In the present case, we find the clinching evidence of three eye-witnesses i.e. P.W. 9 - Kasam Ali, P.W. 11 - Meer Khan and P.W. 12 - Allarakha. Cumulatively all the three witnesses stated in the same breath that the accused-appellant stabbed Hakam Khan number of times while he was sitting at the tea stall of Kaluram, which ultimately proved fatal as after having taken to the hospital, Hakam Khan succumbed to the injuries inflicted by the accused-appellant. Further, the accused-appellant was nabbed by Shokat Ali (P.W. 1) immediately while he was trying to run away from the place of incident and was arrested on the same day. The statements of the eye-witnesses get complete corroboration from the medical evidence as the injuries mentioned by these witnesses on the body of the deceased are same as described by P.W. 8 - Dr. P.K. Saini in the postmortem report (Ex.P/9) showing the cause of death as haemorrhagic shock due to injury Nos. 1 & 2 which were ante mortem in nature caused by sharp edged weapon which were collectively as well as individually sufficient to cause death in the ordinary course of nature.

Besides this, we also note that the accused-appellant was nabbed at the spot with the weapon of offence i.e. bloodstained knife which was also recovered on the same day immediately after the incident vide Recovery Memo (Ex.P/10). The said knife on being sent to the F.S.L. was reported to have the bloodstains of 'O+ve' blood group which was matching the blood group of the deceased as the clothes of the deceased were also found stained with "O+ve" blood group. In this view of the matter, we find that the testimony of the eye-witnesses is quite reliable and natural and therefore, merely on account of them being close relatives of the deceased, they cannot be branded to be interested witnesses so as to discard their testimony.

Our view is fortified by the observations of the Hon'ble Supreme Court in the case of Ganapathi & anr. Vs. The State of Tamil Nadu reported in 2018(2) R.C.C. (S.C.) 652 wherein it has been held in Para 12 to 15 as under :-

"12. The evidence of ocular witnesses, PWs 1 and 2, father and brother of the deceased, clearly exhibits the way in which the accused took away the life of deceased Murugan. Their evidence narrates the guilt of the accused beyond reasonable doubt and corroborates with that of the medical evidence. Dr. Danraj (PW12) who conducted the postmortem on the body of deceased Murugan, had pointed out as many as 10 cut injuries out of which injury Nos. 1, 2, 5, 6, 7, 8, 9 and 10 are fatal which were possible by sickle and capable of causing death whereas injury Nos. 7 and 9 were possible by knife. It appears that there were two independent witnesses (PWs 5 and 6) projected by the prosecution, but they have turned hostile. In several cases, only the family members are present at the time of incident, then the case of the prosecution will be based only on their evidence. When their evidence is the only evidence available, Courts should be cautious and meticulously evaluate the evidence in the process of trial and we are not able to appreciate the contention on behalf of the accused that the non-examination of independent witnesses and conviction based on the evidence of family members is fatal to the case of the prosecution.

'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested' [See: State of Rajasthan Vs. Smt. Kalki and Anr. (1981) 2 SCC 752].

Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made [See : Maranadu and Anr. Vs. State by Inspector of Police, Tamil Nadu (2008) 16 SCC 529].

Here in the case, PWs 1 and 2, though father and brother of the deceased, are natural witnesses and there is no bar in law in examining family members or any other person as witnesses. Their testimonies provided clear picture of the attack carried on by the accused over the deceased. We find from the record that the evidences of PWs 1 & 2 are consistent and inspire confidence in the mind of the Court. The Courts below have also properly scrutinized their evidence before taking them into account and there is nothing unusual in believing their testimonies. Apart from that, the prosecution has examined the independent witnesses PWs 5 & 6 who turned hostile. The prosecution has taken all possible steps to bring home the guilt of the accused. Hence conviction based on evidence of PWs 1 & 2 is not fatal to the case of the prosecution."

We find no contradictions in the statements of the prosecution witnesses, however, mere infractions of trivial nature in the testimony of the witnesses cannot vitiate their evidence, much less, when the testimony of the eye-witnesses is getting corroboration from the medical evidence, recovery of the bloodstained weapon of offence and the F.S.L. Report.

We have also gone through the memos prepared by the police during the course of investigation and discussed about the same in the preceding paras but we did not notice any infirmity in the same.

The argument of the learned counsel for the accused-appellant that Amir Khan was having a pistol but the same was not used is noted to be rejected only on the ground that the accused-appellant was having a knife which was used for inflicting injuries to the deceased Hakam Khan, which were found to be sufficient to cause death and the same being proved by cogent evidence is sufficient to prove the guilt of the accused-appellant, rather than, pondering over the issue why the pistol held by Amir Khan was not used in the present case. Besides this, merely the pistol was not used and knife was used cannot absolve the accused-appellant from the allegation of stabbing to death to Hakam Khan.

In view of whatever stated above, we are of the considered opinion that the judgment dated 05.01.2017 passed by the learned trial court convicting the accused-appellant for the offence under Section 302 I.P.C. deserves to be upheld.

Resultantly, the criminal appeal fails and is dismissed as such. The judgment and order dated 05.01.2017 passed by the learned trial court is upheld. The record of the trial court be returned forthwith.